H v The Queen

[2003] HCATrans 277

[2003] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S345 of 2002

B e t w e e n -

H

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 AUGUST 2003, AT 10.25 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Commission (NSW))

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent with my learned friend, MS F.E. GUY.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Thank you, your Honours.  Your Honours, this application raises what I would submit is an important question regarding the scope of a trial court to grant a permanent stay of proceedings.  The circumstances that existed in this case were unusual in the sense that the complaint of sexual assault was brought by the complainant some 28 years after the incident complained of, and that incident complained of is said to have occurred when that now adult person was five years of age or possibly just having turned six.

GLEESON CJ:   Now, we know that your client pleaded guilty to a similar offence against his daughter.

MR BYRNE:   Yes.

GLEESON CJ:   When had that offence to which he pleaded guilty occurred and how old was the daughter at the time of the occurrence?

MR BYRNE:   That offence was said to have occurred between the ages of seven and eleven, I think the daughter was.

GLEESON CJ:   And how long before the complaint was made?

MR BYRNE:   That was something in the order of 20 years as well.

GLEESON CJ:   Same thing, and we know that he pleaded guilty to that one.

MR BYRNE:   He did, but that, of course, is a different ‑ ‑ ‑

GLEESON CJ:   That shows that it can happen, does it not, Mr Byrne?

MR BYRNE:   Unquestionably it can happen, your Honour.  I would not seek to suggest otherwise, but the issue so far as the daughter was concerned is, in my submission, irrelevant to the determination of the crucial question that the trial court was confronted with here.

GLEESON CJ:   Not quite, one of the arguments that was put that was acquittal was inevitable.  Acquittal evidently was not regarded as inevitable in the case of the daughter, where similar problems existed.

MR BYRNE:   In the case of the daughter, of course, the evidence was supplemented by the accused’s own response to the charges.  There has been a stark contrast between his response to the charge, or at least one of the charges involving the daughter, and the charge involving the son.  It might be said as well that the charge involving the daughter was not inherently unlikely, as it might be said the charge involving the son was.  The specific facts of the charge involving the son are highly unusual and so unusual that it caused, in this case, the prosecution to obtain expert medical evidence to determine whether the alleged offence was even physically possible.  Because of its very nature it was regarded with some, in my submission, legitimate degree of scepticism.

The primary issue or the fundamental issue, in my submission, was whether or not it could be said that the accused would obtain a fair trial of that particular charge and it could be said that he was unable to obtain a fair trial in this case, in my submission, on a number of grounds.  The first of those might be said to be a procedural ground in the sense that there was procedural unfairness caused to him in that he was completely deprived of any ability to mount an effective defence, and that was a specific finding effectively made by the learned judge who determined the application for the stay.

GLEESON CJ:   Where do we find that?

MR BYRNE:   That is at page 11 of the application book, your Honours.  Her Honour said alongside line 35:

steps that have been taken to try to prepare a defence for the applicant in this matter.  It would certainly seem that the efforts made by Mr Irvin [his solicitor] have been considerable but really because of the length of time between the alleged offence and when it was reported in 1998, this has really prevented anything worthwhile being able to be placed before a jury on behalf of the applicant/accused in any trial that may be held.

That, in my submission, is a finding of procedural unfairness in the sense that the applicant, as he is, has been deprived of the ability to mount any effective defence to the charge.

The more important aspect of unfairness, in my submission, is the specific finding made by the learned judge that the prospects of conviction in this case were, as she described it, very unrealistic.  She said ‑ ‑ ‑

CALLINAN J:   Mr Byrne, just before you do that, can I just ask you about at page 13, line 40:

I must say that I share the crown prosecutor’s view of the likelihood of success of such a case –

What was the submission of the Crown Prosecutor?

MR BYRNE:   What had happened, your Honour, was that the Crown Prosecutor had filed an affidavit relating to certain things that had happened when the applicant pleaded guilty to the charge involving his daughter.  The Crown Prosecutor’s view is recorded in her Honour’s judgment and that appears at page 3 of the application book, alongside line 55 the second last line of page 3 of the book:

Mr McPherson swore in is affidavit that he informed –

counsel for the defence –

that he was of the opinion that there was no real prospect of conviction on the buggery charge and that he intended making a recommendation to the Director that there be no further proceedings.

And a little further on, alongside line 10:

he did express a firm opinion that there was no real prospect of conviction.

And the learned judge said that she agreed with that assessment of the likelihood of conviction.  That aspect of the matter might be said to raise the issue that was considered expressly by this Court in Walton v Gardiner, where the scope of the doctrine of abuse of process was considered in another context but it was there said that where it could be said that a litigation was doomed to failure, then it would be an abuse of process to permit it to continue.

In this case, the likelihood of a jury convicting on the available evidence is, in my submission, indeed remote, and in the unlikely event of a conviction it is highly likely, again, in my submission, that a court of criminal appeal would ‑ ‑ ‑

GLEESON CJ:   It is a bit hard for us to say that without ever having seen the complainant, is it not, let alone without ever having seen the accused?

MR BYRNE:   In my submission, your Honour, that is one of the dangers, that all one would see of the complainant is a man who is now 33 years of age and the jury is called upon to determine his reliability as a 5‑year‑old child.  It simply cannot be done.  It is a matter of speculation.

GLEESON CJ:   Why is it not called upon to determine his reliability as a 35‑year‑old man professing to remember what happened when he was a child?

MR BYRNE:   Because his reliability as a 35‑year‑old adult depends entirely on his perception as a 5‑year‑old and his recollection of the events that occurred when he was five and that is purely a matter of speculation in a jury to determine, “We find this 35‑year‑old adult an impressive man and we believe what he said about his recollections of incidents said to have occurred when he was five”.  That is something which, in the absence of some supporting evidence, is asking, with respect, too much of a jury.

GLEESON CJ:   That sounds like a scientific proposition.  You mean it could not happen?

MR BYRNE:   It would not be a sufficient basis on which to found a conviction.  It could happen that a person ‑ ‑ ‑

GLEESON CJ:   You mean as a matter of law?

MR BYRNE:   As a matter of law I would submit that the evidence of a person recalling events when that person was five years old and, of course, taking into account that that recollection is now some 30 years old, that that would be an insufficient basis to found a conviction unless there was some evidence which in some way supported the correctness or reliability of the version given by the witness.

GLEESON CJ:   That seems to amount to the proposition that a trial judge would be obliged to take this case away from a jury.

MR BYRNE:   I suppose, ironically, the situation is that a trial judge, at least under the law in New South Wales at the moment, would not have that power unless he or she felt that the evidence was so unreliable that the evidence was effectively withdrawn from the jury, which would then leave there as being no evidence on which a conviction could be based.  But if the evidence was given and it was evidence which prima facie was able to be taken as proof of the elements of the offence, then it is a matter which should be left to the jury.  There is no power to withdraw it in New South Wales.

CALLINAN J:   No matter how tenuous?  What is that, Doney?  Which case is that?

MR BYRNE:   The notion of tenuous evidence ‑ ‑ ‑

CALLINAN J:   I would say Doney’s Case holds exactly the proposition that you have just stated, I think.

MR BYRNE:   Yes, Doney, the decision in this Court.

GLEESON CJ:   Which is only an elaborate way of saying it is a jury question.

MR BYRNE:   Yes, certainly, although that does represent something of a change from the position that existed for the decision in R v R, which was that decision your Honour the Chief Justice ‑ ‑ ‑

CALLINAN J:   I am sure they tried, Mr Byrne.  I think Doney’s Case may have caused a lot of expensive and ultimately futile criminal litigation to go ahead.  But may we infer in this case, we have to, do we not, that the Director is applying his mind to the matter and has taken a different view of it from the Crown Prosecutor?  It is an executive matter, really, is it not?

MR BYRNE:   It appears clear that the Director has taken a different view but the Director’s view is not, with respect, binding on the Court, in the sense that the Court is not entitled when an application for a permanent stay is made to consider whether or not the prosecution is doomed to failure.

GLEESON CJ:   We are not sitting here considering an application for a stay of proceedings.

MR BYRNE:   No.

GLEESON CJ:   Where is the error in the reasoning in the Court of Criminal Appeal?

MR BYRNE:   Your Honours, there are perhaps two ways of answering that question.  There are, in my submission, two errors in the decision made by the primary judge and her decision in that regard was seen by the Court of Criminal Appeal as being correct.  If I can take your Honours firstly to what the primary judge said in her reasons at application book page 12.  What her Honour said alongside line 35 was this:

the right to a fair trial is entrenched in the criminal justice system to ensure that innocent people are not convicted of criminal offences and a stay of proceedings may be granted to prevent an unfair trial.  But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial.

There is no, in my submission, right of the community to expect that persons charged with serious offences are brought to trial where it can be predicted by the court of trial that those trial proceedings will necessarily be unfair.

The learned primary judge did not, in my submission, adequately consider the aspects of unfairness that were established by the evidence in this case.  Firstly, she concluded that it was effectively impossible for the accused person to mount a defence, and secondly, she concluded that, putting it in other words, that the prosecution was in realistic terms, in her opinion, unlikely to succeed.  Any prospect of success she regarded as being unrealistic.  Now, if those two conclusions were made, then the conclusion should have been made that the trial proceedings would necessarily be unfair, in the sense that this Court held in Jago’s Case.

The error in the Court of Criminal Appeal’s reasoning is contained at page 29 of the application book, where the court said at paragraph 33, alongside line 10:

Finally it was submitted that, even if none of the matters discussed of themselves amounted to an abuse of process, their combined overall effect would result in a trial which would be unfair to the applicant and hence would amount to an abuse of process.

And his Honour said that he was:

not persuaded that this is so and can see no error in her Honour’s ultimate conclusion.

GLEESON CJ:   As I understand it, part of the abuse of process case that was argued here was that there was some kind of arrangement made at the time of the entering of the plea of guilty in relation to the daughter.

MR BYRNE:   That was another feature and it is relied on in the outline of the applicant’s argument but it is, in my submission, a subsidiary consideration to those two prominent matters that I would submit are at the core of this case and that is the established inability of the accused to mount a defence to the charge because of the delay, and secondly, the fact that it can be said – it is an unusual case perhaps but it can, in my submission, legitimately be said that the prosecution is doomed to failure.

If those two matters were established, and they seem to be accepted by the primary judge and they were not in any sense challenged in the Court of Criminal Appeal, then the conclusion should have been reached that any trial would necessarily be unfair and that then enlivened the jurisdiction of the court to grant the stay of proceedings which was requested.  Your Honours, those are the submissions.

GLEESON CJ:   I presume the committal proceedings were conducted on the papers?

MR BYRNE:   Yes, I understood there was a paper committal.  I apologise, your Honour, I have not seen the committal proceedings.

GLEESON CJ:   Somewhere along the line there was a magistrate who was obliged to apply his or her mind to the question of whether a prosecution was doomed to failure.

MR BYRNE:   There was.  The committal took place in June of 1999 but I have not seen any papers in relation to the committal proceedings.  My understanding was that there was what is known as a paper committal.  It is very unusual for a person in this situation to give evidence in committal proceedings, the complainant I mean, but I have to say, your Honours, I am not completely familiar with the conduct of the committal proceedings other than when they in fact occurred.

GLEESON CJ:   We just do not know, I do not think.

MR BYRNE:   I certainly do not.

GLEESON CJ:   Thank you, Mr Byrne.

MR BYRNE:   May it please the Court.  Your Honour, I think a matter I just should correct - your Honours asked me that question about the committal, my learned instructing solicitor advises me that there was a committal in this case and that the complainant in the matter did give evidence of committal and was cross‑examined, so I apologise for not telling you that.

GLEESON CJ:   I agree with you that it is unusual, but thank you for telling us.  We do not need to hear you, Mr Ellis.

In this matter the Court of Criminal Appeal gave careful consideration to, and in reaching its decision placed reliance on, the need for careful warnings and directions by a trial judge.  I refer in particular to paragraph 18 of the reasons of the Court of Criminal Appeal.  Undoubtedly this is a clear case in which there will be a necessity for careful warnings and directions.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 10.46 AM THE MATTER WAS CONCLUDED