Gul v The Queen

[2019] HCATrans 69

[2019] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 2018

B e t w e e n -

HUSEYIN GUL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 12 APRIL 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR D.C. HALLOWES, SC:   If the Court pleases, I appear with MR S.N. ANDRIANAKIS for the applicant.  (instructed by the applicant)

MR C.B. BOYCE, SC:   If the Court pleases, I appear with MS A.S. ELLIS for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

BELL J:   Thank you.  Mr Hallowes, I think you need an extension of time. 

MR HALLOWES:   We do. 

BELL J:   Is there any opposition to that, Mr Boyce.

MR BOYCE:   Your Honour, we have formally opposed it.  I think it is some six months out of time. 

BELL J:   Yes. 

MR BOYCE:   Our opposition is formal, really. 

BELL J:   Yes.  You have the extension, Mr Hallowes. 

MR HALLOWES:   Thank you, your Honour. Now, we say this case presents an opportunity to address the circumstances in which there are substantial and compelling reasons for a trial judge to give directions, pursuant to section 16 of the Jury Directions Act 2015, where they have not been requested by either party at trial. 

We say this is a case where that should have been done because, on the evidence, there was an issue raised as to an element of the two offences in question, namely the applicant’s belief in consent. Directions on that issue were not requested by defence under section 12 of the Jury Directions Act, and the judge at trial did not give adequate directions on that issue and we say that ‑ ‑ ‑

BELL J:   The trial was conducted on the basis that the acts did not happen.  Is that so? 

MR HALLOWES:   That is correct.

BELL J:   So that one could perceive a forensic disadvantage to directions on consent in circumstances where that simply was not the issue.

MR HALLOWES:   We say that that suggested forensic disadvantage which is referred to, certainly by Justice Croucher in his judgment at the Court of Appeal, does not actually stand up to scrutiny.  We say that a direction given along the lines of “the prosecution firstly have to prove that the events in question happened and, further, the prosecution have to prove that if the events did happen that the accused was aware that the complainant was not consenting or might not be consenting” has no forensic disadvantage to it to the accused. 

NETTLE J:   But, Mr Hallowes, the judge did direct the jury just that ‑ at page 224 of the transcript, beginning at line 22. 

MR HALLOWES:   In his charge, your Honour, at that relevant page he gives the direction in relation to them but accompanying that, if one goes to page 225, he says at line 6:

If you are satisfied beyond reasonable doubt that the incident as described by [the complainant] at p. 36 did occur, you would have no difficulty finding each of the elements of the offence were established. 

So we say that although ‑ ‑ ‑ 

KEANE J:   But that was right.  That was right, was it not, given the way the case was conducted? 

MR HALLOWES:   No.  We say that is not right in the sense that regardless of the way the defence was conducted, or the case was conducted, it was still an obligation for the prosecution to prove the case. 

KEANE J:   That is right, and the judge had told them that was an element of the offence but that they would have no difficulty in concluding what they needed to conclude in relation to that element.  In relation to that there was no contention advanced by your side to suggest that there would be a difficulty. 

NETTLE J:   Indeed, to the contrary, at page 171 beginning at line 1, defence counsel says that is exactly right. 

MR HALLOWES:   What we say about that though is that whether that be a considered forensic decision or not we say that that cannot be a sound forensic decision.  Going back to - the central submission that we make is that there is no forensic disadvantage from a direction being given to say that the defence position is these events did not happen. 

NETTLE J:   But, Mr Hallowes, plainly it was a considered forensic decision because at page 54 of the transcript, the judge gave defence counsel overnight to think about whether or not he wished to advance a defence of consent following the complainant’s change of evidence, and after defence counsel had overnight to think about it evidently he persisted with the defence only of there being having no penetration. 

MR HALLOWES:   In our submission, that is in terms of the running of the trial rather than at the stage of the judge’s charge.  That is the question of how defence were going to run the actual case itself, and we can see that the defence run at trial was the events did not happen. 

BELL J:   Mr Hallowes, if you are right in your submission, effectively the Jury Directions Act goes out the picture, surely. 

MR HALLOWES:   No, we say ‑ ‑ ‑ 

BELL J:   The Jury Directions Act requires, amongst other things, the judge to give a direction that he is requested by the defence, save where to do so would involve the jury considering issues in the trial in a manner that is different from the way in which the accused has presented his or her case.  The scheme of this Act, one might think, is to ensure the prosecution and defence identify the directions that are sought and request them and, indeed, the judge might properly decline to give a direction requested by the defence in a circumstance where the judge assesses the direction does not match the way the case has been run.  It is very difficult to see how one can accommodate that statutory scheme with the submission that you are advancing. 

MR HALLOWES: We say that - we do not quibble that that is the basis of the legislation and the idea behind the legislation, but we say that there still is a requirement for the trial judge to assess the trial and make his proper assessment as to the appropriate directions. We say that not only does that appear in section 5 of the Act, but we say that section 16 must have some work to do. There must be, in accordance with section 16, occasions where, despite what defence and prosecution have considered at trial and addressed the judge at trial as to the issues, there must be occasions where there are substantial and compelling reasons for the trial judge to consider, to avoid a miscarriage of justice, that there will be further directions he might give.

BELL J: Accepting that there must be such a case and one good instance, plain incompetence on the part of defence counsel, as giving rise to such a case one has to understand section 16 against the provisions of section 15, which provide that the judge must not give the jury a direction that has not been requested.

It would be something of an appellate picnic, would it not, if your submission is right in a case where an evident forensic choice that could not be described as incompetent has been made and the judge, under the statutory scheme, has not given the directions, the elaborate directions on consent – the judge did direct on the fact of consent as an element, both of the indecent assault and the rape counts, but your complaint is that the judge did not go on in accordance with the scheme, I think, as you would contend under then 37AAA and AA.  Is that right?

MR HALLOWES:   That is correct.  We say that because of the circumstances of this case the forensic decision cannot be described as a sound forensic decision.  We say the circumstances of this case are that the forensic decision deprived the applicant of a realistic prospect of acquittal in circumstances where we say there was not, when it is scrutinised, an undermining or an undercutting by direction being given in the types of words that I raised before, in the sense that the first part that a jury would have to consider in the prosecution case is did the events happen. 

Then, if they are satisfied of that, they further would have to consider whether or not the accused may have had a belief in consent.  We say that was raised on the evidence and a direction in accordance with that cannot be seen to undercut or undermine the accused’s defence ‑ these are directions being given by the trial judge where the starting point is are you satisfied that the events occurred, and in the direction given – in a sense that was the end for the jury.  The direction that I am suggesting should have been given would have added a further barrier to the prosecution case and not in a way that would be said to have been in any way an undermining of the manner in which the defence was run. 

NETTLE J:   Mr Hallowes, how does your submission fit with note 2 under section 17? 

MR HALLOWES:   We say that in relation to that note, when one reads section 17 the abolition of the common law obligation does not limit the obligation of the trial judge.  So we say, in a sense, it is simply something that is indicating that this Act is replacing the common law.  The Act itself is not saying that on any occasion where the defence is open on the evidence but has not been identified, necessarily there can be no direction as to it. 

NETTLE J:   Well, it does not necessarily have to be none, but your case is really a Pemble case, and 17(2) abolishes Pemble. 

MR HALLOWES: It abolishes that rule of common law but replaces it – it does not say in the Act itself, therefore on any occasion where that situation might arise there cannot be substantial and compelling reasons. We say the note is really saying the common law is abolished; the test is now the test under section 16.

BELL J:   When you say the question of reasonable belief in consent was raised on the evidence there was no evidence from the applicant to that effect ‑ ‑ ‑

MR HALLOWES:   No. 

BELL J:   And, indeed, I think the complainant’s evidence was that at the time she was being held by her hair forcefully – pushed against the wall, hair held forcefully whilst the act of penetration occurred.

MR HALLOWES:   Yes.

BELL J:   Now, what was it that raised on the evidence that the applicant might have had a reasonable belief in consent? 

MR HALLOWES:   First of all we rely on what the complainant said at page 37 of the trial transcript.  That appears at page 36 of the application book, from lines 1 through to 9, where after these events, when the complainant said to the applicant: 

you just raped me. 

His response was: 

“Don’t play games . . . As if.  You wanted it -

and then follows through with the threat. 

NETTLE J:   Mr Hallowes, as the judge directed the jury, she was saying, “No, don’t - stop” and she was crying and resisting. 

MR HALLOWES:   Yes.  The passage I have taken you to is that the first aspect that we say raises that possibility.  When one then looks at the description of events by the complainant we concede at first blush one might say well, how could someone possibly believe, given those circumstances, but one needs to have an understanding of the evidence the complainant gave of the nature of that evening and the events that took place during that evening because the complainant gave evidence of the matters that were originally part of charges 1 and 2 – the sexual activity there, which she said, in essence, in her evidence that she consented to those and they were occasions after she had been called “a fucking slut” – this is at application book page 16 and following, he had spat in her face, he had said:

“How would you like it if I spat on your mum’s grave?”, “How would you like it if I fucked your friend in the arse?” -

There is then a shower.  She says she thinks things were fine.  There is some further sexual activity and then she describes him pushing her back onto the bed, putting his penis in her mouth saying:

“Lick my arse”, and he puts his bottom on my face –

saying: 

“Lick my arse, bitch.  This is payback” - 

all in an aggressive manner and then one moves onto page 20 of the application book - this is “in an aggressive manner”:

“This is revenge, bitch”. 

Then he:

started putting my fingers in my bottom. 

She then goes on to describe the events that were charges 1 and 2, and she then says they were consensual.  So you have a period of aggressive – what would be termed aggressive behaviour, humiliating behaviour, verbal threats and immediately following those, there is what she says is consensual sexual activity.  So when one looks at the nature of the conduct of charges 3 and 4 and what she describes about those, which would ordinarily be thought to be very clearly indicative of the lack of consent to the applicant, we say that is not necessarily so given her consent to the first two charges, even in terms of her evidence, in terms of the conduct and surrounding circumstances of those. 

BELL J:   To come back to the question of the evidentiary foundation, it is that in response to a complaint by the complainant that “You raped me”, the applicant responded in terms, “You wanted it” and then proceeded to threaten to kill the complainant’s parents or to have them killed should she tell anyone about the incident.  That is as far as it goes. 

MR HALLOWES:   That is correct. 

BELL J:   Yes. 

MR HALLOWES:   In the Court of Appeal Justice Croucher found that those words were capable of raising such a belief.  Justices Priest and Ashley said that minds might differ whether the words were capable of raising a belief in consent.  We really adopt what Justice Croucher said about that, to say those words were capable. 

Now, it might have been that a jury directed on those may have said well, we do not think that they are an indication of a belief in consent.  But we say that was properly a matter for a jury to consider.  We say, consistent with what Justice Croucher said, that those were capable of raising that belief and consent such that a jury should have been given directions in relation to the consideration of that. 

If I could perhaps just briefly go back to the question of what it means by the fact that the defence was run at trial that it did not happen and, therefore, the question of whether in those circumstances there is still a necessity to give a direction as to an element of the offence.  We say simply because the defence is “I wasn’t there or it didn’t happen”, there is still that obligation on the Crown to prove the elements of the offence and especially where issues as to the elements are raised. 

There is the example given, and perhaps not properly elaborated in the written application, about if there was a murder and there was an alibi provided and, of course, it might be on those facts is the direction as to identification required and only identification, but if the allegation of the conduct for the murder was simply two blows by a fist to the head, although it had been denied by the applicant and that was the way the trial would run, the jury would still be required to have proper directions in that circumstance as to whether or not, if it was the accused, there was an intent to kill or cause really serious injury.  That is what we really say about this ‑ ‑ ‑ 

KEANE J:   No doubt in such a case the issue would be raised by the defence.  No doubt – I mean you are putting to us – you are putting it to us on the basis that this is an obvious proposition.  Of course it is obvious and the defence would raise it. 

MR HALLOWES: One would expect so, but what we say in this case is that for whatever reason it was not raised and that does not mean that one just says there is no possible way a direction should be given. We say this is why section 16 is there. Obvious or not, if it is a matter that potentially has evidence before a jury where there is a reasonable prospect of committal if it is properly directed upon, and there is no actual forensic disadvantage which I have addressed you on, we say in those circumstances that is when section 16 should be enlivened.

BELL J:   Thank you, Mr Hallowes.  I do note the light is on. 

MR HALLOWES:   Yes.  Thank you. 

BELL J:   Thank you, Mr Boyce, we do not need to hear from you. 

In our view, there are insufficient prospects, were special leave to appeal to be granted, that the appeal would succeed.  The application is dismissed. 

AT 9.52 AM THE MATTER WAS CONCLUDED