Hansen v The Queen

[1989] HCATrans 150

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl of 1989

B e t w e e n -

RONALD JAMES HANSEN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

Hansen

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 29 JUNE 1989, AT 11.04 A11

Copyright in the High Court of Australia

BlT 4/1/CM 1 29/6/89

MR W.T. McMILLAN:  May it please the Court, in this matter

I appear with my learned friend, MR P.J. ALCORN, for the applicant. (instructed by the Public

Defender)

MR D.G. STURGESS, QC: If the Court pleases, I appear with

my learned friend, MR A. KTMMINS, for the

respondent. (instructed by the Director of

Prosecutions)

MR McMILLAN: 

I hand up an outline of argument.

MASON CJ: 

Thank you.

MR McMILLAN: 

Might I take the Court to the reasons of

the Court of Criminal Appeal at page 251 of the
record. There the Court was dealing with the

first particular of the sole ground argued,

namely, the inconsistency of the verdicts. It

is to be recalled that the applicant had been

charged with events which had taken place in

early 1984. There were originally three counts

of rape with alternative of incest in respect of

each.  The accounts that went to the jury were the

three incest.

And then there was a later event in late 1986,

which was a count of rape and an alternative

count of incest. Those two counts did go to the

jury. The jury acquitted in respect of the latter

counts but found the applicant guilty in respect of

the former counts. The Court of Criminal Appeal

approached this particular point by particularly

referring to the summing up passage which fell

from the trial judge on the last day of the

trial. It revolved around the fact that the

Crown was tied into a particular passage of time

in respect of when these offences occurred and

that is between 30 November, 1986 and 1 January, 1987.

The test which the Court of Criminal Appeal

applied to that question appears at the foot of that

page 251:

indeed I think that it is highly probable - that the
jury, with that specific direction £ran the learned

trial judge, may have believed the complainant's accounts of events but were not prepared to find

that they occurred during November:	hence the
acquittals.	In my view this grmm.d fails.

Now the applicant accepts that it bears a heavy

onus in arguing that particular ground, so much
so arises out of the decision in DURANTE, (1972)

56 Cr App R 708, which has been followed by several

Australian States. What the applicant must

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satisfy the appellant tribunal on, is that the
two verdicts cannot stand together, and that no

reasonable jury mo had applied their mind properly to the facts in the case, could have arrived at the conclusion.

Now there was conflicting evidence as to

events which occurred in early December. There is

no evidence as to what could have occurred on

30 November. 30 November, 1986 was a Sunday. The

applicant had given evidence that he went to

church almost every Sunday. He was able to give

evidence as to what he did on the first Sunday

in December and the second Sunday in December.

The complainant had given evidence that the event took place before Christmas 1986, so there still

left that date of 30 November and the jury, in
our submission, could well have come to the view

that the complainant could not be believed that the

events took place. She went into the matters in

quite a bit of detail and although the jury had

ringing in their ears the direction that they must

find that the events took place between 30 November

and 1 January, nevertheless there was still that

30 November, which was available to them, to find

whether or no the events took place.

It is our submission that the approach adopted

by the Court of Criminal Appeal, in dealing with

that point, was incorrect. If we could deal with the -

BRENNAN J: Why, is 30 November included in the dates between -

1:1R McMILLAN:  Your Honour?

BRENNAN J: Is 30 November included in the period specified

in the indictment?

1:1R McMILLAN:  Yes it is. It is between 30 November and

1 January, 1987.

McHUGH J: That excludes 30 November. It is not from, it

is between.

1:1R McMILLAN: Well, Your Honour, that was not explained to

the jury, with respect, they were not law

students up in Toowoomba on that day, we can not

presume, so it could well have been between the 30th and

those two dates. That is our submission.

BRENNAN J:  But really, Mr McMillan, if the proposition was

that he was praying and not doing what he was

alleged to have done on a couple of the Sundays

and they were told they had to be satisfied

beyond reasonable doubt that it occurred before	Christmas, why could not the jury say. 11Well
we have got a doubt about that?".

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Just because a Sunday is available that he was

not on his knees does not mean that the jury

should have been satisfied beyond a reasonable

doubt.

MR McMILLAN:	Yes, that proposition has got to be accepted.
BRENNAN J:	Then that is the end of the argument, is it not?

MR McMILLAN: Well the argument is that, consistent with

the authorities, that two verdicts can not stand

because they must have disbelieved this girl that these events happened between those two

dates.

McHUGH J:  They just simply did not accept that it happened

before Christmas or in this period.

MR McMILLAN:  Yes, the Crown case finally was that it was

between 30 November and Christmas, because she

was quite clear that it happened before

Christmas. Turning to the next point, and it

concerns the question of a letter which was

written sometime in 1984 by the complainant to

a person by the name of Pedersen. Pedersen

was a man of some 28 years of age - - -

McHUGH J: Is this mentioned in the Court of Criminal

Appeal?

MR McMILLAN:  Yes, Your Honour. It is dealt with by the

Court of Criminal Appeal at page 254, line 38 onwards.

McHUGH J: I see. Yes.

MR McMILLAN:	Now at page 141, line -
MASON CJ:	What is the point you are making here? The

point was fully explored at the trial and

presumably the jury accepted the complainant's

explanation of this.

MR McMILLAN:	Yes, but taken with the other matters, the matter that we have already dealt with and the other matters to which we will take the Court
briefly, this was a verdict which was unsafe
and unsatisfactory.  We went to particulars
in the lower court and we say that, particularly
on this point, the court did not properly look
at the question.  At line 42 the court said:

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MASON CJ: What page is this?

MR McMILLAN:  This is at page 254. And after looking at the

point, rephrasing it, the court said, at line 42:

Here again there was a conflict between witnesses, and it was for the jury to decide whether they

resolved the conflict in favour of the Crown
or in favour of the defence.

Our submission is that that did not apply a test, which this Court laid down in MORRIS, which was

at page 462 in the judgment of Your Honour

the Chief Justice, that there was to be an

independent investigation by the Court of Criminal

Appeal. Merely to say that it was for the jury to

decide does not address the test.

McHUGH J:	MORRIS is one of your more successful special
leave applications, Mr McMillan.
MR McMILLAN:	It was a successful one, yes, Your Honour.
MASON CJ:	You do not seem to have forgotten it, Mr McMillan.
MR McMILLAN:	It has had varying stages of success since then. The third point which we say supports
this ground deals with the question overall
of the lack of corroboration of this girl's
testimony. Although the trial judge gave the
direction that is required, nevertheless,
considering that this was a sexual offence, considering that it was a matter where there was absolutely not one shred of corroborated
evidence, either as to the events in early 1984
or to the event in late 1986, that the jury,
nevertheless, with all those other difficulties,
went ahead and found this man guilty in respect
of those three earlier offences.

Now,that matter, in fact, was dealt with by

the Court of Criminal Appeal at page 252 from

line 40 onwards. The court there took up the

view that it was an attack on the extent of the

corroboration and indeed that is the way it was

partly argued in the court below. At the first

full paragraph on page 253 the court finishes its

application to that point. Thos~ in essenc~ are

our submissions on why this Court should grant

special leave to argue the appeal on the sole

ground that this was a verdict which was unsafe and unsatisfactory. Those are our submissions.

MASON CJ:  Thank you Mr McMillan. The Court need not

trouble you, Mr Sturgess.

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1e Court is not persuaded that this

ap	cation for special leave raises any question
of ~eneral principle.	The application is
therefore refused.

AT 11.19 AM THE MATTER WAS ADJOURNED SINE DIE

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