Harman v State of Western Australia
[2005] HCATrans 1038
[2005] HCATrans 1038
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P44 of 2005
B e t w e e n -
DAVID LOCKYER HARMAN
Applicant
and
STATE OF WESTERN AUSTRALIA
Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON FRIDAY, 16 DECEMBER 2005, AT 2.36 PM
Copyright in the High Court of Australia
MR P.G. GIUDICE: May it please your Honours, I with, MR R.P. ARNDT, appear for the applicant. (instructed by George Giudice Law Chambers)
MS T.D. SWEENEY, SC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)
GUMMOW J: Yes, Mr Giudice.
MR GIUDICE: Your Honours, I seek leave to amend the application for special leave to substitute ground 2 thereof with ground 2 in the amended notice of appeal filed 7 December 2005. It adds a further two grounds, grounds (a) and (d).
KIRBY J: We do not have those. Tell us the substance of those added grounds.
MR GIUDICE: Ground 2(a) is that their Honours erred in deciding that the learned trial judge’s direction to the jury left the jury in no doubt as regards the onus of proof, given the prosecutor’s submission to the jury that it is defence counsel’s job to test the evidence and to persuade them that they should have a reasonable doubt. The proposition is that that reverses the onus of proof in that gives defence counsel the job of persuading innocence. The other additional ground is ground 2(d) which is the trial judge’s direction to the jury that it is not the lawyer’s or the policeman’s questions which are the evidence, but rather it is the answer that is the evidence.
The proposition there, your Honours, is that the jury is sworn to harken to the evidence and that given even a denial by the witness to the proposition being put to the lawyer in the light of the demeanour of the witness in that denial and other evidence during the trial it well might be the case that the jury accepts that the proposition being put is the evidence rather than the answer.
The obvious matter which I raised with his Honour at the time was that the lawyer’s question will be the evidence if in fact it is accepted. Those are the two ‑ ‑ ‑
GUMMOW J: Now, is there any opposition to these additional grounds? Have you seen them, Ms Sweeney, unlike us?
MS SWEENEY: I have seen them referred to in the summary of argument, your Honours. There is no opposition.
GUMMOW J: Thank you. Yes, Mr Giudice.
MR GIUDICE: Thank you, your Honours. The applicant also seeks leave to appeal out of time in this matter.
GUMMOW J: Yes, I see that. Is that opposed?
MS SWEENEY: No, your Honours.
GUMMOW J: Yes, thank you, Ms Sweeney. Yes, well, you have that leave.
MR GIUDICE: Your Honours, the question that is raised in this special leave application, in my submission, is when a Crown Prosecutor impermissibly invites a jury to consider the question of why would the complainant lie, what direction should be given by the trial judge to correct that. In this particular case, at page 91 of the appeal book ‑ ‑ ‑
KIRBY J: We do not have to revisit it in order to lay down the general principles because they have been laid down earlier in the series of cases, so you have to persuade us that there has been a miscarriage of justice in the particular case, and relevant to that I read the remarks on sentence of Judge Fenbury and he said that he had the advantage of seeing the trial and sitting through it – I am referring to page 22 of the application book, in the middle of the page:
I don’t think I really need to say any more. He was utterly convincing –
this is the complainant:
I thought, and the jury’s verdict, for what it is worth, no doubt was an accurate and true verdict. They got it right, if I may say, in my view, having assessed the participants myself.
Now, that does not mean that your clients are not entitled to have a legally accurate trial, but it does indicate that a judge who sat through the whole trial thought that the complainant was impressive and had a genuine complaint to make against your clients.
MR GIUDICE: Yes, it does, your Honour. However, it is my submission that that should not be relevant in this case. That sort of comment has been made by trial judges before when people have been found to be completely innocent. The Guildford Four is a perfect example where the trial judge said, “If you were here for treason I would not have any hesitation at all in ordering the death penalty”, and they turned out to be innocent. The real point is ‑ ‑ ‑
KIRBY J: It is just that we do not have to say again that judges should not say why would the complainant lie, and we do not have to say again what judges have to do in those circumstances because we have said that, and therefore we are not looking at the laying down of an important principle. We are looking at its application in this particular case.
MR GIUDICE: The submission is that what his Honour said to the jury did not undo the damage which, in my submission, was done by the comments of the prosecutor in closing address. What his Honour said to the jury is on page 14 of the appeal book.
GUMMOW J: We do now have the amended notice of appeal filed on 7 December. Go on.
MR GIUDICE: Thank you, your Honour. In Palmer their Honours in the majority said:
A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry.
That is at page 218 of the report which I have provided, so this was a case where ‑ ‑ ‑
GUMMOW J: I think you start with the advantage of the dissenting judgment of Justice Steytler, do you not?
MR GIUDICE: Yes.
GUMMOW J: How did he deal with this question of miscarriage, the substantial miscarriage?
MR GIUDICE: He said at page 66:
In my opinion, as a consequence of what was said by the prosecutor the jury was left with the impression that the absence of evidence indicating any sensible motive for a false complaint strongly suggested that the complainant must be telling the truth.
At 67 paragraph 104:
In all the circumstances, and given that, as it seems to me, this was a case in which credibility must have played a very substantial part in the jury’s determination, there is a reasonable probability that the jury was influenced significantly by the lack of motive on the part of the complainant to lie. Consequently, in the absence of a direction of the kind suggested in Topalidis it is not possible, in my opinion, to say that no substantial miscarriage of justice has occurred.
Now, the other judges agreed that what was said was impermissible, but then formed the view that his Honour by his direction which I have referred to you on page 14 rectified the situation, and it is my submission that his Honour’s direction on page 14 does not address specifically the danger that was referred to in Palmer.
KIRBY J: Which line? You cannot just give us a whole page?
MR GIUDICE: Page 14 at line 20. It says:
He asserted that the complainant’s failure to pick up minor errors in the statement that he signed a second time is unimportant in the circumstances. He put to you that the complainant’s statement that he wouldn’t be here in court if he consented was plausible and believable as a statement.
KIRBY J: This is all a narrative or a chronicle of what counsel have put. Where did the judge put his own direction to the jury?
MR GIUDICE: It follows immediately after that. He says this:
As to that, of course, it is not for you to speculate about that matter, but that is what the complainant did say.
That is all he said. He did not say to them, as was said in Topalidis, Ferry’s Case – he did not refer specifically to what was said and tell the jury that they should not embark upon speculation in relation to the question of why would the complainant lie.
KIRBY J: Was there any request for redirection?
MR GIUDICE: Yes.
KIRBY J: Where is that in the application book?
MR GIUDICE: It is not, unfortunately.
KIRBY J: Because sometimes I could understand trial counsel for strategic reasons would not want to have this matter dealt with at any length, and maybe would not want to return to it for forensic reasons, but you say here there was a request to redirect?
MR GIUDICE: Yes, there was, your Honour. It is at page 260 of the transcript ‑ ‑ ‑
KIRBY J: We do not have that. Just read us what was said or tell us the effect of it?
MR GIUDICE: The effect of it was that the prosecutor invited the jury to speculate as to why on earth Mr C would, one and a half years down the track, put himself before a bunch of strangers, as he put it, and go through all this, and why would he come along and tell the jury this if it was not true and the judge queried whether in fact he had said that and then agreed that he probably did.
KIRBY J: What was the redirection that you asked the judge to give or trial counsel asked the judge to give?
MR GIUDICE: I would ask you to consider my submission that the jury be told that it is not an acceptable way to approach the matter at all, and I referred to a case where a Crown Prosecutor had said exactly that to the jurors – did not say exactly what Mr Mischin said but said why on earth would a young boy come and make this thing up unless it were true. So I asked the judge to – and the judge said to me that he was not sure what he could do about it but he would think about it.
KIRBY J: He thought about it overnight, that is right. He reserved it overnight?
MR GIUDICE: Yes.
KIRBY J: And in the morning, what, he came back and said he was not going to elaborate before the jury. Is that it?
MR GIUDICE: No, he did not say anything about that particular point. He just went into his summing‑up.
KIRBY J: Perhaps one can see your first new point, 2(a), as being really of the same genre, that is to say, not respecting the accusatorial character of the criminal trial and reversing the onus of proof?
MR GIUDICE: Yes, I do, your Honour, and I say that that gives extra impetus to the argument in relation to the Palmer question in that the ‑ ‑ ‑
KIRBY J: Did you direct the judge to Palmer? Was the case that you directed his attention to the decision of this Court?
MR GIUDICE: Yes, I ‑ ‑ ‑
GUMMOW J: It should have been in the transcript, should it not?
MR GIUDICE: Yes, I do not know whether I did, actually.
KIRBY J: However, you directed attention to this area of the law, and the judge said he would consider it overnight. I remember reading that.
MR GIUDICE: Yes, he said he understood my point and he knew what I was talking about ‑ ‑ ‑
KIRBY J: It seems to have been properly reserved then?
MR GIUDICE: Yes.
GUMMOW J: Then did you take it up again the next morning?
MR GIUDICE: No, your Honour. I have been told off for that sort of thing in this ‑ ‑ ‑
GUMMOW J: That is part of your job to get told off from time to time.
MR GIUDICE: I make the point and explain what I submit is the law and argue with the judge and then he reserves his decision and then does what he decides. It is my respectful submission that counsel cannot be criticised for then revisiting the matter and saying the same thing all over again.
KIRBY J: Yes. Telling them that defence counsel’s job is to test the evidence, that is fair enough, but to persuade them that they should have a reasonable doubt could possibly be interpreted as meaning that they bear an onus to establish the reasonable doubt as distinct from the prosecution having the obligation to prove the case beyond reasonable doubt.
MR GIUDICE: Yes, and reasonable doubt equals innocence, so on one look at it it means my job is persuade the jurors that he is innocent.
KIRBY J: We have not come at that yet.
MR GIUDICE: No. When his Honour said that to the jurors, I immediately felt extreme disquiet.
KIRBY J: We do not want to know about your feelings. Did you reserve that point as well?
MR GIUDICE: Yes. In fact it was not his Honour, it was the Crown Prosecutor, sorry, and his Honour did not redirect. In fact his Honour suggested that it was my job, as did the Court of Appeal judges.
KIRBY J: What was your theory of this case - that this was consensual sex with the complainant? Is that the way you presented the defence?
MR GIUDICE: Yes. The complainant had had sex with Mr C, the witness for the prosecution ‑ ‑ ‑
KIRBY J: There is no need to put the names on the transcript. It goes into the Internet.
MR GIUDICE: Sorry, your Honour, with a witness for the prosecution, and immediately after that the other two came into the cell ‑ ‑ ‑
KIRBY J: That is right, and their assertion was this was consensual and the complainant said it was not and that was the issue for trial?
MR GIUDICE: Yes, and the witness for the prosecution agreed in cross‑examination that he himself thought it was consensual what was going on in the cell between the three of them, and that he saw no yelling or screaming or ‑ ‑ ‑
KIRBY J: I think he agreed that there is a lot of noise in prisons and therefore that he might not have heard it. That was put to him, I think, something to that effect.
MR GIUDICE: I think that might have been another witness, your Honour. This was a witness for the prosecution who I said to the jury is really the key to the defence case in that he agreed that everything looked okay to him. He was a friend of the complainant’s, he had had sex with him himself and he went out of the room at one stage to get a cigarette. I put to him, “You would never have left that cell if you thought for one minute that what was happening to your friend was not consensual” and he agreed, and that if he had had any doubt about it he would have went over and told those boys to stop what they were doing.
When he came back in from having a cigarette for a very short time, he then noticed a change in the complainant and then said to the two accused, “Stop, get out you blokes”, and they immediately did. Then they came in and apologised to the complainant. Now, the Crown Prosecutor said to the jurors that that cross‑examination ‑ ‑ ‑
KIRBY J: The apology could be interpreted by the jury as an acceptance that they had gone beyond consensual activity?
MR GIUDICE: Yes, it could have been, and the Crown Prosecutor said to the jurors that that cross‑examination was a “Dorothy Dixers” implying that – well, “Dorothy Dixers” are things that happen in Parliament where somebody gets up and asks the Minister a question where it is all organised.
KIRBY J: It has been known to happen in court where you have a friendly witness called by the other side. That is all that they were saying.
MR GIUDICE: Yes, but it was never put to the witness. It was never put to the witness himself and the case of Teasdale says that that is most improper, to simply come out and say that in the final address.
KIRBY J: Anyway, your argument is anchored on Palmer. You say that the standard in Palmer was not observed, and there were earlier cases in this Court, were there not, apart from Palmer? Since I have sat here there have been, I think, three of these cases.
MR GIUDICE: I thought before Palmer they were mostly New South Wales cases.
KIRBY J: You may be right, however.
MR GIUDICE: But since Palmer the principle has been extended to not only cross‑examination of the complainant but the summing‑up to the jury by the prosecutor. May it please your Honours.
GUMMOW J: Thank you. Yes, Ms Sweeney.
MS SWEENEY: Your Honours, in relation to ground 2(b), namely the Palmer issue, there was no confusion we would suggest in the court below as to the correct application of the law. There was a difference of opinion between their Honours as to whether his Honour’s direction to the jury was sufficiently firm and clear.
KIRBY J: He said he would go away and think about it overnight and then he came back and he does not seem, with all respect, to have given it much thought. There does not seem to have been very much that was said to correct the false line of reasoning which Palmer exposes of reasoning because you think that a person does not have a reason to have submitted himself to this ordeal that therefore the onus is on the accused to show that he is innocent.
MS SWEENEY: Your Honour, what I would suggest his Honour has done is adopt the line of reasoning in the case of Smith v The Crown which would be in the set of materials provided to this Court. It is case No 5 in our collection of materials, and if I could take your Honours to the passage. If your Honours go to tag number 5 and then to the passage at paragraph 102, firstly, where his Honour the Chief Justice in that paragraph – this is a decision of the New South Wales Court of Criminal Appeal ‑ ‑ ‑
GUMMOW J: This is before Palmer, is it not?
MS SWEENEY: No, this is two years after Palmer. It is the year 2000 ‑ ‑ ‑
KIRBY J: It is the Chief Judge at Common Law, Justice Wood.
MS SWEENEY: Yes, thank you, your Honour. After citing the case of Uhrig then at passage 102 summarises that:
In the various decisions, where the prohibited question has resulted in a conviction being set aside, it has been left in a way giving the matter prominence as a “central theme or issue” ‑
and then reference is made to the cases of F and Rodriguez –
or endorsing its legitimacy or otherwise describing it as an “appropriate” or a “reasonable” or “proper” question to ponder -
Turning the page at paragraph 106, halfway through that paragraph:
In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant.
107 Where the evidence of a possible motive comes from another witness, or where the matter arises in some half‑hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence.
That course of action appears to be precisely the course of action his Honour took in this case. His Honour at appeal book page 14, third paragraph down, has dealt with the matter in this way, and he is referring here to the prosecutor:
He put to you that the complainant’s statement that he wouldn’t be here in court if he consented was plausible and believable as a statement. As to that, of course, it is not for you to speculate about that matter, but that is what the complainant did say.
KIRBY J: What does that mean? I mean, I do not know what that means. I wonder whether a jury would know what it means. Speculate about what matter?
MS SWEENEY: We would suggest, your Honour, that links back to what the prosecutor actually said which is captured at page 55 of the appeal book.
KIRBY J: But it leaves the complainant’s statement hanging in the air without a firm indication from the judge in accordance with Palmer that that is to lead to an impermissible way of reasoning, otherwise in every case where any person makes a complaint that leads to a criminal prosecution then prosecutors and judges can say, well, why would the person complain? There were days when people would say, well, why would the police tell false evidence, and that is an impermissible way of reasoning. The prosecution always bears the onus of proving guilt. It is not the accused that has to prove innocence.
MS SWEENEY: We would say his Honour has made that very clear in his general directions on onus of proof. The prosecutor’s comment – may I just say this, we would submit that it was entirely appropriate for the prosecutor to make some comment about the issue of motive, that having been raised by the defence. Had he confined himself ‑ ‑ ‑
KIRBY J: That may be so, but then you have to balance that with some clear directions from the judge and apparently all members of the Court of Appeal in Western Australia thought that there was an error in the way the judge handled it but the majority thought that he had adequately dealt with it in this passage, but the passage does not seem all that satisfactory.
MS SWEENEY: We would submit, your Honour, that the choice his Honour has made is to deal with the issue of motive as a matter that has been raised in passing that is not central and to therefore deal with it in – to use a colloquial expression – a low‑key way so that it does not assume an importance that it would otherwise have, and that, we would suggest, is the sort of reasoning that was described in the case of Smith that I have just referred to.
So it is a question always of degree. To what extent was motive put forward as a central issue? In this case, there was some reference to it by defence counsel, a reference to evidence given that the complainant had complained afterwards that one of the men had physically hurt him, and there was some reference to that as perhaps being behind all of this. That is the issue that the prosecutor has addressed and I accept has overstepped the line by then asking the jury to, in effect, speculate, but the prosecutor has also said to the jury, sure, people might come to court and lie for a variety of reasons.
GUMMOW J: You rely on what Justice Murray said, paragraph 20 on page 40, do you not, “It would have been better”?
MS SWEENEY: Yes, and we accept those comments by his Honour. It would have been better had the prosecutor not invited the jury to delve into the issue of motive, but it was not, we suggest, a key or central thing to the case. It was a remark in response to something said by defence counsel, also not as a key point of his address and his Honour made it very clear where the onus of proof lay, and in particular gave an address of the Liberato variety.
KIRBY J: But defence counsel was sufficiently concerned about this line of territory that he raised the concern with the judge and asked him to give some directions to clarify the Palmer point, and that the judge really did not do on the following day.
MS SWEENEY: As I understand the situation, there was no request for a redirection but a request in advance for a direction, and his Honour has given the matter some thought ‑ ‑ ‑
KIRBY J: Yes, that is correct.
MS SWEENEY: And we would suggest has dealt with it in a way which minimises its centrality to the case, if I can put it that way. This was not a situation on the authorities where the applicant himself gave evidence suggesting motive which then might have been thought to have been disproved. It is a situation where an answer was volunteered by the complainant “Why would I be here” and that has then been picked up, we would suggest by both counsel, but not as a central theme and that is how his Honour has dealt with it, and that is how, we would suggest, the majority of our Court of Appeal has resolved that it gave rise to no miscarriage of justice, because it was not a central issue. Clearly, his Honour Justice Steytler disagreed.
KIRBY J: What do you say about the first added ground of the application, that is to say, that the judge said that it was the defence obligation to persuade them that they should have a reasonable doubt? That really does twist the onus of proof, does it not?
MS SWEENEY: That was not the court that said that, your Honour. That was the prosecutor.
KIRBY J: Yes, but if you leave that unattended, did the judge indicate in clear terms that that was not the obligation of defence counsel, that it was the prosecutor’s obligation to prove guilt beyond reasonable doubt?
MS SWEENEY: No, he did not. He has not specifically picked up on that comment and corrected any misapprehension, and we would suggest that, frankly, the prosecutor’s comment is not in any event going to have led the jury to suggest that there is a reversal. He is not suggesting that there is anything sinister or conniving in defence counsel’s role but rather that it is his role to test the evidence and to persuade the jury that they ought to have a reasonable doubt, and we would say the emphasis on “ought” is that they ought on an assessment of the evidence to be left with a doubt. There is nothing improper being suggested.
So we would query in any event whether a jury is likely to conclude from that assessment of defence counsel’s role that there is any reversal of the onus of proof being suggested but his Honour, while he has not corrected the comment or reprimanded the prosecutor has made it, we would suggest, crystal clear where the onus of proof lies, and in particular, has as I said, given a direction of the kind contemplated in Liberato that even if they do not believe the evidence of the accused, that that would not lead to a finding of guilt. So again, we say it is a question of degree but the jury ‑ ‑ ‑
GUMMOW J: Can you find the reference to Liberato for us?
MS SWEENEY: I will. At appeal book page 6, in passage 20 to 30, and we suggest that if there ever was any misapprehension created by the prosecutor’s comments that his Honour’s clear directions on the onus of proof which are found at appeal book page 3 and then confirmed and reinforced at appeal book page 6 at the passage I have referred to make it very clear to the jury where the onus of proof lay.
GUMMOW J: Thank you.
MS SWEENEY: They are my submissions, your Honours.
GUMMOW J: Thank you. Mr Giudice.
MR GIUDICE: Thank you, your Honour. Still at page 6 of the appeal book his Honour, when giving the Liberato direction, said that what they had to consider is that the complainant did not consent:
in other words, that the complainant’s evidence . . . is true and accurate in its essential parts.
Now, that is the problem with asking the question. Why would he go through all this procedure and trauma for all this time if he is not telling the truth? Palmer distinguishes between rebutting a proposition put to the complainant that there is a motive to lie on the one hand, and on the other hand, asking the jury to speculate about why this person would come to court and lie. So even if I did visit a suggestion with the complainant that he had a motive to lie, it does not get over the need for a strong and firm direction, in my submission, and in fact, it is my argument that I did not do that.
What I was putting to the complainant was this, “You believe you were raped, you are convinced of that?” He said, “Yes”. Then I said, “Well, immediately afterwards you did not complain of that, you said it was all my fault, I flirted and things might have got out of hand, and it is my fault, yes. Then you spoke to the prison officers and they told you, it is not your fault, and then you spoke to the sexual assault referral centre, and they told you you are a victim, and that is what you believe here today”. Now, I was not telling him he had a motive to lie, but what I was saying was that the initial complaint and the initial reason for his being upset is that he had been hurt as a result of this encounter.
As for putting to the jurors that it was my job to persuade them of failure to prove beyond reasonable doubt, that has happened to me in another case and I notice these things creeping in from time to time, and I took that case on appeal, the case of Etherton to the Court of Criminal Appeal in WA when another prosecutor said the same thing, and one of the appeal judges said, “Well, that is your job, is it not, and tried to get me to agree that it was my job to persuade the jurors”. So it is not a one‑off incident, your Honours.
GUMMOW J: Thank you, Mr Giudice. We will take a short adjournment.
AT 3.13 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.23 PM:
GUMMOW J: The applicant complains that the trial judge failed to conform to the instruction of this Court in Palmer v The Queen (1998) 193 CLR 1. In the Court of Criminal Appeal Justice Steytler in dissent agreed with that.
We are inclined to agree with Justice Murray who stated as one of the majority:
It would have been better if prosecuting counsel had not invited the jury to speculate about whether or not there was anything to suggest that the complainant had a motive to lie.
It may be that the trial judge should have given the jury directions to correct the effect of the statement by prosecuting counsel. In this Court we were referred by counsel for the present respondent to what was said by Justice Wood as Chief Judge at Common Law in R v Smith in the New South Wales Court of Criminal Appeal on 20 November 2000. The electronic citation is [2000] NSWCCA 468. At paragraph 107 the Chief Judge said:
Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence.
The law is as stated in Palmer and is not, as we would presently think, qualified by anything said by the Chief Judge at Common Law in the passage just mentioned. Nevertheless, in the present case the trial judge gave firm instructions on the onus of proof and in accordance with the decision of this Court in R v Liberato (1989) 159 CLR 501.
In these circumstances, we are not convinced that there would be sufficient prospects of success were special leave to be granted. Nor has there been a miscarriage of justice entailing a grant of special leave. These remarks include also the grounds put forward in the amended draft notice of appeal filed on 7 December 2005. Accordingly, the application for special leave is dismissed.
AT 3.27 PM THE MATTER WAS CONCLUDED
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