Grills v The Queen- PJE v The Queen

[1996] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 1996

B e t w e e n -

PATRICK GERARD GRILLS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S154 of 1995

B e t w e e n -

PJE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 10.12 AM

Copyright in the High Court of Australia

___________________

MR P. BODOR, QC:   If it please the Court, I appear for Grills with my learned friend, MR S.J. ODGERS.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR P. KINTOMINAS:   May it please your Honours, I appear for the applicant PJE with my learned friend, MR R.K.M. RASMUSSEN.  (instructed by Doherty Partners)

MR R. KELEMAN:   If it please the Court, I appear for the respondent in both matters.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Bodor.

MR BODOR:   This application arises consequent upon the judgment of his Honour Judge O’Reilly on 6 June.  The Court of Criminal Appeal heard the appeal from that judgment on 12 December.  In the intervening period, on 9 October PJE was decided by the Court of Criminal Appeal differently constituted.  Your Honours, the Court of Criminal Appeal in Grills, for whom Justice Sully spoke, recognised that the appeal of Grills raised important matters for consideration and urgent reassessment by the legislature and other proper revision.  We say this is a place for that other proper revision.

His Honour Justice Sully, again speaking for the court, with whom other members agreed, recognised at application book page 20 line 51 that:

It is sufficient to understand that the nature of the matter was such that it was completely predictable that once the trial had commenced, s 409B of the Crimes Act would be invoked, and could be confidently expected to entail, in the current state of authority.....inhibition upon the proper presentation by the present applicant of some, at least, of his intended defences ‑ ‑ ‑

KIRBY J:   This is at an interlocutory stage at this stage, is it not?

MR BODOR:   Yes.

KIRBY J:   Why is it not a proper course to let the matter take its course, the trial to be run and then, if at the end of the day you say it can be demonstrated that you could not get a fair trial, then that is something which will add strength to the argument and the Court would at least then have (a) the conviction, and (b) the facts demonstrating the unfairness?

MR BODOR:   Because in this matter we say that by the evidence which is available, the objective evidence which is available before trial, it is apparent what will occur during the trial and that the injustice is predictable.

KIRBY J:   You say the essence of the injustice is the very conduct of the trial?

MR BODOR:   Yes.  The injustice is that Grills cannot demonstrate to the jury material which would have a very relevant bearing on the assessment of the witnesses and we know that in advance.  The Court of Criminal Appeal recognised it, the trial judge recognised it and, with respect, we say it is recognisable.  This is not a case, for instance, of an accused making murky allegations against a complainant during the course of a trial.  Here the information is available, it is information which arises from the complainant herself years after the conduct the subject of the proceedings to independent people such as police, such as social workers and indeed her own parents, so it seems, and in that light is something which is not part of the relationship, if I can call it that, between an accused and a complainant, such as in Berrigan, but quite a distinct and distinguishable position.

BRENNAN CJ:   The position is as simple as this, is it, that a trial according to law cannot be a fair trial?

MR BODOR:   This trial according to law is an exceptional case, we say.

BRENNAN CJ:   However you describe it, the proposition is:  because it is according to law, it will not be a fair trial?

MR BODOR:   Yes.

BRENNAN CJ:   How can that be?

MR BODOR:   Because the evidence is available which demonstrates that any attack, if I can call it that, upon the complainant must be incomplete, it cannot be assessed in its true context, in its true light.

McHUGH J:   But that overlooks the view that Parliament took a considered decision.  They were not lacking people when this legislation was introduced to warn those who had the carriage of this matter as to what the result of this sort of legislation could bring about, but Parliament went ahead and legislated.  That being so, how could a trial be regarded as fair when the Parliament has said this evidence has to be excluded?

MR BODOR:   Parliament of course did legislate, but Parliament did not legislate away the right of a court to prevent the trial proceeding if it was identifiable that it would be an injustice.

KIRBY J:   My understanding of your case is Parliament has its rights which courts will respect, but courts have their rights which Parliament respects.  The court’s rights are to ensure, in the individual and particular case as distinct from the generality with which Parliament deals, the fairness of the trial for the particular accused by the application of the law.

MR BODOR:   Exactly.

KIRBY J:   The court should not preside over charades which involve serious injustice to the accused.

McHUGH J:   All I can say to that argument of yours, Mr Bodor, is that fairness is not up there; it is just not up there.  One has to take into account what the Parliament has said.  If Parliament said the onus was on the accused to prove his or her innocence beyond a reasonable doubt, the courts are faced with that problem.

KIRBY J:   But you would say fairness is not up there but it is in every courtroom of this land that courts ensure that it is observed.

MR BODOR:   Yes, and if the Parliament had intended that all trials of this nature proceed irrespective of whether or not fairness arises, they would have said so, with respect.

BRENNAN CJ:   Why would they?

MR BODOR:   Because it must be anticipated, having regard to what has fallen from this Court and other courts that have applied judgments from this Court, that a trial which is fundamentally unfair cannot and should not proceed.

BRENNAN CJ:   I must say that the notion that a court can find a trial to be unfair because of a provision that is made by the Parliament seems to me to destroy the whole notion of the separation of powers.

MR BODOR:   With respect, your Honours, it should not be thought that Parliament has all the answers, and that is why we entrust the courts with it.

BRENNAN CJ:   But it does.  It is a Parliament which within its power is plenary.

MR BODOR:   Yes, I understand what your Honour is saying, but I can only revert to the proposition that, had they felt that there should be no - Parliament took the view, and it is disclosed in the second reading speech of the Minister for Education, I think it was, which is contained in the application book, that there is no instance where judicial discretion should apply once section 409 is invoked.  That is a very different proposition, in my submission, and the court regulating its own process and saying if this trial proceeds, section 409 must be invoked, then I am powerless to allow that which the defence seeks, but what I can ensure is that a trial which at its core cannot disclose the truth and background to these allegations, I can stop that trial.

KIRBY J:   As I understand your argument, you are not attacking the validity of the legislation?

MR BODOR:   No.

KIRBY J:   You say but in this particular case, as it falls on the facts of this particular case, it will create an inevitable unfairness which the courts should not have to preside over?

MR BODOR:   Exactly.

KIRBY J:   The temples of justice, as I think Justice Cardozo once said, should not be submitted to this process.

MR BODOR:   Exactly.

KIRBY J:   We had all these discussions 10 years ago when the stay applications came upon us.

MR BODOR:   We make no challenge to the legislation itself.  The legislation speaks for itself and we are left with that, we are stuck with that.  What we do have fortunately is judicial discretion to regulate the application of the proceedings.

KIRBY J:   I suppose that you would also say that, right or wrong, your argument is an important one?

MR BODOR:   It is an important one, we would submit, and it is one that was recognised as important, we would submit, by the Court of Criminal Appeal and indeed by the trial judge.  Trial judges are at the coalface and, if one looks at the comments of a trial judge when refusing the stay ‑ ‑ ‑

KIRBY J:   There is a division now, is there not?  I think Judge O’Reilly was against you in this case, but in the other case the trial judge, Judge Dent, upheld the argument.

MR BODOR:   Yes, and indeed, in PJE, the one which Judge Dent was involved in, I note that his Honour Justice Grove in the Court of Criminal Appeal envisaged that there may be cases in his judgment but that PJE was not a suitable vehicle, he felt, for a stay a priori, whereas Justice Sperling took a different view, as did Justice Cole.  Quite clearly they are matters of fundamental importance and go to the very core.  It may be that, if this Court took the view that special leave should be granted and ultimately there were some view this Court expressed on the matter, that the legislature would have to revisit the situation and perhaps take into account the benefit of experience and hindsight because this legislation has, we say, covered the field for a purpose.  The purpose one can envisage was, as the premier said in his second reading speech, a purpose to ensure that victims of sexual assault should not have to go through the humiliation and embarrassment.

The legislation was enacted for that purpose.  This is not that type of case at all.  This is one where evidence does reveal that this is not a question of sullying the name of a complainant in a consensual case where the true social degradation occurred.

KIRBY J:   Can you not reargue those points at the trial and seek to persuade the judge of trial to change his or her opinion?

MR BODOR:   As to a stay?

KIRBY J:   No, as to the admissibility ‑ ‑ ‑

MR BODOR:   No, because section 409B is absolute, we say, unless it comes within the provisions of subsection (3).  The trial judge has no discretion.  That is the very difficulty.  Once a trial embarks, there is only one course that can be taken.  Whilst the view is that, as expressed by Justice Mahoney in Morgan’s Case, that it may be something that can be corrected, I note in discussion, if I can call it that, in Berrigan that your Honour Justice McHugh took a view which seems to disagree with Justice Mahoney’s approach in Morgan’s Case.  It may be that that is another discussion or debate that has to occur on another day, but it would be a difficult proposition, I would say with respect, to suggest that, if section 409B is correctly applied, then the Court of Criminal Appeal can nonetheless hold that a trial was unsafe and unsatisfactory.

McHUGH J:   Having regard to what has been decided in these cases, the quicker Parliament looks at this section, the better.

MR BODOR:   That is so.  It may be that activity by this Court might stimulate a revision and a re‑evaluation of that.  Might I also say that Justice Dawson in Berrigan during the course of the discussion noted that one could not complain of the legislation itself because it is there for us all to abide by but, in combination with other factors, an injustice may well result.  So there is clearly recognition ‑ ‑ ‑

KIRBY J:   What is wrong with saying that the Court of Criminal Appeal has the remedy; it can quash any conviction after the event if the outcome of the trial proves to be unfair?

MR BODOR:   And in the meantime Mr Grills, with respect, inevitably spends anywhere between six months and a year in custody as a convicted child molester, a scar that no person should have to endure unless he has had a fair trial.  I do not know if I can assist the Bench further.

BRENNAN CJ:   Thank you.  We will hear Mr Kintominas.

MR KINTOMINAS:   May it please your Honours.  Your Honours have perhaps put your fingers on the nub of this matter, and that is:  how can it be that a trial which is conducted according to law can be argued to be an unfair trial?  Perhaps if I could start by referring your Honours to what her Honour Justice Gaudron said in Dietrich at page 362 of that report from the Commonwealth Law Reports:

It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law.  The expression “fair trial according to law” is not a tautology.  In most cases a trial is fair if conducted according to law, and unfair if not.  If our legal processes were perfect that would be so in every case.  But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law.  Thus, the overriding qualification and universal criterion of fairness!

Your Honours, there is a number of difficulties, but the first ‑ ‑ ‑

KIRBY J:   I think the question is whether that melts before the flame of parliamentary enactment which is clear.

MR KINTOMINAS:   Your Honours, fairness, in my submission, is what the informed intelligent man in the street sitting at the back of the Court thinks of the whole thing.

KIRBY J:   Do not - “person in the street”, please.

MR KINTOMINAS:   If somebody in this Courtroom observed me addressing your Honours and somebody came up and put his hand around my mouth and in effect silenced me so that I could not put my client’s point of view to your Honours, the man in the back of the Court would hardly think that that was fair.  Indeed, this is what the effect of section 409B can have in particular cases in criminal cases.  It gags the accused and it gags the accused’s counsel.

McHUGH J:   Sometimes you can even gag the accused and it can be a fair trial.  Indeed, it was done in the United States and it might be in circumstances it has to be done here.  In fact, in Canberra quite recently there was a murder trial where the accused was not allowed to be in the courtroom but was downstairs in the cells.

MR KINTOMINAS:   There may have been particularly good reasons for that, your Honour.

McHUGH J:   Exactly.

MR KINTOMINAS:   Yes.  Your Honour, if I can just throw up two examples of the sorts of things that this piece of legislation can do in its present form.  Firstly, from the point of view of an unfair trial to the defence, you could have an accused who is accused by a woman who has accused practically every male in the country of raping her.  That is an exaggeration but certainly she might have accused many important people.  It is clear that if a jury hears that evidence, they have come to the conclusion that she is just a compulsive accuser and would have put no faith at all into any accusation made by her, yet a jury would not be allowed to hear it.

BRENNAN CJ:   This is the argument which was put against the enactment of any legislation which limited the right of cross‑examination of a prosecutrix in rape.  The assumption always was that the cross‑examination would not be allowed unless it was relevant.

MR KINTOMINAS:   Your Honour, it may well be that before the law was changed, it was misused by defence counsel and it may be that courts perhaps should have done something to limit cross‑examination before the Parliament stepped in.

KIRBY J:   But this is irrelevant.  I understand that your argument is that, though Parliament has a perfect right to limit cross‑examination of prosecutrixes or the children and so on, it still is retained by the court the power, the duty, to ensure that the way that falls on a particular case and particular evidence does not turn the trial into an unfairness, a serious unfairness.  That is the only question in this application.

McHUGH J:   But you have another problem, have you not?  I know it is a matter for the trial but it is hard to see how 409B will exclude the evidence that you rely on in this particular case.

MR KINTOMINAS:   Is your Honour putting to me that 409B would not exclude ‑ ‑ ‑

McHUGH J:   It seems to me it is certainly strongly arguable in your favour that 409B does not exclude the evidence that you are seeking to lead.

MR KINTOMINAS:   Your Honours, that would take the view that M was wrongly decided.  Certainly that argument has not been put by me.

McHUGH J:   Naturally it would not be put by you.  You are seeking a stay.  You are trying to get the proceedings stayed.  You want to make 409B as black as it can be made from your point of view.  But at the trial I am sure you will have a different argument.  One of the judges in the Court of Criminal Appeal said as much as a question as to whether it is admissible.  Speaking for myself and not having heard a detailed argument about it, I think there is a lot to be said for the view that 409B would not exclude this evidence.

MR KINTOMINAS:   Your Honours, that may be but the law at the moment as it stands in New South Wales is that M is a decision of the Court of Criminal Appeal.  The Court of Criminal Appeal has chosen, in view of what fell from the parliamentarians in the second reading speeches, to interpret that section literally.  It is of course quite obvious that, despite the fact that warnings may have been given to the parliamentarians, that they did not necessarily foresee all the sorts of problems that could occur.  But in terms of whether or not there is to be any legislative reform, one thing that your Honours may care to consider is this, that if this appeal was to be successful, that leave was to be granted and the appeal was to be successful, one would have thought the political realities of the case would be that the government would not sit there and just let the stays be granted.

If they did, then that would confirm what is being argued on behalf of the appellant, that the Parliament was prepared to tolerate stays in cases where there is some unfairness rather than emasculate the general restriction.  If on the other hand the Parliament felt that the stays were unacceptable, then it might move in two ways.  It might either bring in specifically a provision that no stays are to be granted or, alternatively, it might then move to give a general residuary discretion.  That is a matter for the Parliament, not for the courts.  But what is a matter for the courts is a question of ensuring that there are fair trials.

The argument against me necessarily presupposes, in my submission, that the Parliament was not prepared to countenance stays.  There is just nothing in section 409B.  There is no subsection (7) or (8) which says, “And by the way, the judiciary can’t get out of this by granting stays”.  One can say that fairness is not just up in the air but, if one sits back and allows a trial to proceed where it will be unfair because relevant evidence is going to be excluded, that is another matter.

McHUGH J:   But how can courts intervene?  Supposing Parliament said in cases of this sort, “Upon arrest there’s a presumption of guilt” and many people in the community would take the view that that must lead to an unfair trial.  But what would a court do?  Could it stay the proceedings?

KIRBY J:   You have to say that a court would accept the general principle and faithfully apply it, but if in a particular case that led to a serious unfairness, the court reserves to itself the role which courts always have had, unless abolished, to ensure justice.

MR KINTOMINAS:   Yes, I certainly embrace that proposition.  I do not put it to this Court ‑ ‑ ‑

McHUGH J:   You have to remember this doctrine of staying criminal proceedings is a very late arrival on the scene.

BRENNAN CJ:   There would be some of us who would not think that there has ever been a jurisdiction of that kind at all.

KIRBY J:   I think Justice McHugh in another place had a large part to play in its arrival.

MR KINTOMINAS:   Yes, your Honours.  But the tension between the parliamentary will and judicial process is something that one has to look at the historical origins.  In England where much of our law derives, the difficulty was that the person who sat on the Woolsack was also a member of the Parliament - in fact they all were, but he was a member of the executive as well, the Lord Chancellor.  The general legal history in England was generally aimed at sorting out difficulties between the Crown and the Parliament for many hundreds of years and for quite a while the judges were seen to be lackeys of the King.  Certainly there was a lot of ‑ ‑ ‑

McHUGH J:   As recently as 1808 Lord Ellenborough as Lord Chief Justice was also a member of the English Cabinet.

MR KINTOMINAS:   Yes.  There was a lot of trouble in the time of James II.

KIRBY J:   What is the relevance of all this foreign history?  We do not sit in the Cabinet now, we do not sit in the Parliament.  We have our separate duties and, indeed, I understand that to be the essence of your argument.

MR KINTOMINAS:   Yes, your Honour.

KIRBY J:   We respect Parliament; Parliament respects courts.  Courts carry out their own constitutional functions, including State courts.

MR KINTOMINAS:   My submission, your Honour, is this, that the notion that simply because the Parliament enacts a law about how a trial is to be conducted, to say that because the Parliament has enacted that provision the trial must be carried out in that fashion and cannot be avoided ‑ ‑ ‑

BRENNAN CJ:   No, must be carried out, not “in that fashion”.  That is not the question.  The stay is a stay of any trial.

MR KINTOMINAS:   Yes, your Honour.

BRENNAN CJ:   Yes, so it is a question of:  is it a trial according to law or no trial at all?

MR KINTOMINAS:   Not no trial at all, your Honour; no trial whilst the present impediments exist.

BRENNAN CJ:   While the law exists.

MR KINTOMINAS:   The law may be changed.  If the law was changed after the decision of this Court, the trial may still take place.

McHUGH J:   But that cap means that you cannot have a trial while 409B is on the statute books.

MR KINTOMINAS:   Yes, your Honour, in its present form.

BRENNAN CJ:   Well, that is the proposition.

MR KINTOMINAS:   Seeing your Honours have some difficulty with the submissions that I am putting ‑ ‑ ‑

McHUGH J:   I do not think all of us do.

MR KINTOMINAS:   Your Honours, can I say this.  This is an application for special leave.  We are constantly told when appearing for the appellant that we are not to argue the whole case and, indeed, one cannot argue the whole case in 20 minutes.  Even if the proposition that I am putting is wrong, it is a matter of importance.  It is a matter where the Court ought to grant leave and give a definitive reason or definitive reasons from on high from the High Court as to why it is wrong.  At present you have the situation where there have been, according to my researches - Judge Shillington in the District Court was persuaded by the reasoning for which I contend.  Judge Dent in the District Court was persuaded by that reasoning and also, I understand, Judge Rummery was in another matter.  It appears that in the Court of Criminal Appeal certainly Justice Grove was of the view that the principles for which I contended could be correct, accepting that he did not wish to apply them in this particular case.

Certainly, if one has a look at what fell from Mr Justice Mahoney’s lips in Morgan v The Queen, there is implied support for the argument there as well.  If that is all wrong, it is an issue that deserves the consideration of this Court to explain precisely why.  It is difficult obviously to argue that we are correct in a 20 minute time limit.  The issue is, as I understand it, whether the points raised are of a sufficient general public importance.  Indisputably, in my submission, these are matters of public importance.  In reference to Morgan, I take your Honours to page 554 where that was dealt with.  His Honour there said in the middle of the third paragraph:

If the result of the application of s 409B is that the accused has not had a fair trial, then the verdict will not stand.  I do not mean by this that every defect in the trial or every failure to conduct the trial in accordance with the law means that, in this sense, the trial has not been fair.  In exercising what, in effect, is a residual protective discretion, the court will, in my opinion, look to the substance of what has taken place.  Where the non‑compliance with the law goes to the substantial propriety of the trial and its fairness, the court will, in my opinion, intervene.  It will not do so if the non‑compliance with the law is peripheral.

There is a reference to Dietrich and the reference is not only that it may be corrected on appeal but that it can be stayed in the first place.  That reference there, in my submission, indicates that Mr Justice Mahoney was prepared to contemplate that the proper course would be to stay it in the first place.  But, your Honours, if one accepts that the Court of Criminal Appeal has the power to quash the conviction on the basis that it is unsafe and unsatisfactory, and unsafe and unsatisfactory only for the basis that relevant evidence was unfairly excluded by section 409B, then it is hard to see why a stay should not succeed in the first place where that can be predicted as a likelihood.

McHUGH J:   That argument may seem logically correct, but the major premise of it seems to me to be a very debatable proposition, that a court can hold an unsafe and unsatisfactory verdict because evidence was excluded under 409B.

MR KINTOMINAS:   Your Honour, as long as it is only debatable rather than clearly and manifestly wrong, then it is a very viable argument and one which I would urge this Court to take into account and grant special leave.  As I say, your Honours, if we are wrong we can be made and demonstrated and clearly shown to be comprehensively wrong by your Honours in Canberra.  It is a matter that the Court should decide.

KIRBY J:   Dietrich was a prosecution under a Code or a statute.  The Code or statute contemplated that a person would be prosecuted.  That was the will of Parliament but this Court said if the consequence of that was an unfairness, the court could amongst other things stay the prosecution of the trial.  In that sense it was putting itself against the will of Parliament and was doing so in fulfilling its function.  I suppose your logic is that you can do that against this statute of Parliament if, in the particular case, it falls to cause an injustice to your client.  That is your case.  I think we all understand the point.

MR KINTOMINAS:   Yes, your Honour.  It would be interesting perhaps to contemplate what would happen if the Victorian Parliament said, “Well, we don’t like the decision in Dietrich”.

McHUGH J:   Well, they have in effect.  They have set up their own procedure the way you process situations.  But Dietrich is a very different case from this.  The Dietrich Case was that of course you have a trial in accordance with law but you had incompetent representation because the accused was incompetent to defend himself.  It is the same if he is defended by a barrister who is incompetent.  The court would set aside the verdict on the ground it was a miscarriage of justice.  It does not seem to me that has anything to do with this particular area, and Justice Gaudron’s statement in Dietrich is being taken out of its context.

MR KINTOMINAS:   Again, your Honours, it gets down to what one means by “a fair trial”.  As I say, 20 minutes is not enough to do that proposition justice.  If Parliament was to reintroduce the Test Act ‑ ‑ ‑

BRENNAN CJ:   Your 20 minutes is not so short that you cannot make the point that you wish to agitate on appeal though, is it, Mr Kintominas?

MR KINTOMINAS:   No, your Honour.  If Parliament was to reintroduce the Test Act and deprive Roman Catholics of certain privileges like giving evidence in court, so if you were stuck with a Roman Catholic witness you would be in difficulties, one could not say that that would be a fair trial.

McHUGH J:   Why not?

KIRBY J:   It seems very unfair to me.

BRENNAN CJ:   I think your time is up, Mr Kintominas.  You are saved by the bell perhaps.  We need not trouble you, Mr Keleman, but what I am about to say is the view of the majority of this Court.

The decisions below are clearly correct.  To grant special leave would elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by the Parliament is unfair.  That is not a view to which a court is entitled to give effect in determining whether to exercise its jurisdiction when it is properly invoked. 

It is the unanimous view of the Court, however, that the provisions of section 409B of the Crimes Act clearly warrant further consideration by the legislature in the light of the experience of its operation.

AT 10.46 AM THE MATTER WAS CONCLUDED