Hayward v The Queen

[2021] HCATrans 129

[2021] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B10 of 2021

B e t w e e n -

JAMIE MARK HAYWARD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 12.29 PM

Copyright in the High Court of Australia

MS C.L. MORGAN appears with MS A.R. HUGHES for the applicant.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC appears with MS C.N. MARCO for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J:   Yes, Ms Morgan.

MS MORGAN:   Your Honours, this is an issue which is perhaps a narrow one but of sufficient general importance to justify a grant of special leave.  I note that the application for extension of time has been made.  The application was made outside the time limit and the reasons for this are set out in the affidavits of the applicant and of Ms Power…..Legal Aid.  I cannot advance those reasons any further other than to say that this is an important question of law and it is the first time that the directions relating to indecent assault have been considered by this Court.

The current approach intrudes upon the role of the jury and there is a need for this Court to correct it.  We do not say that the trial judge or the Court of Appeal misapplied the law as it is currently understood to be in Queensland.  We say that the current approach is wrong in principle and this Court should correct it.

STEWARD J:   Ms Morgan, can I ask a question?  Can you help me understand how, as a factual proposition, is there a difference between your new intention proposition and the defence of mistake in the circumstances of this case?

MS MORGAN:   Your Honour, we say that the intention, that is the intention that attaches to an assault under the Criminal Code, an intentional application of force or a touching, in the circumstances of a case of indecent assault what the prosecution is to try to prove is that there was an intentional application of force in circumstances that were objectively indecent. 

The focus in this case on the excuse or proposition that the assault was not unlawful because there was an honest and reasonable but mistaken belief on the part of the defendant perhaps obscures the real issues or did indeed obscure the real issue and that was that the Crown was required to prove that there was an intentional application of force that was objectively indecent.

So, the erroneous approach of both defence counsel and the trial judge in this case led to a situation where the Crown was in fact not required to prove something that it was, as a matter of law, required to prove.

STEWARD J:   All right, thank you.

MS MORGAN:   Your Honours, a second reason why this is an issue of general public importance is that a conviction for an indecent or sexual assault can have very serious implications for a defendant.  For the applicant, it has meant the loss of his career as a police officer and has prevented him from undertaking a new career as a real estate agent.  We say there has been a serious miscarriage of justice in this case as the applicant was deprived of a pathway to acquittal that should have been open, and this miscarriage of justice has had a very serious consequence for him.

The issue has broader implications, your Honours.  It is not isolated to Queensland.  Similar provisions relating to indecent assault apply in other States - in Western Australia, South Australia, the Northern Territory and Tasmania.  We say that the current approach by the Court of Appeal in Queensland to indecent assault is that a jury is only required to consider an accused’s intention or motive as being relevant to the element of indecency where the act is categorised as sexually equivocal.

This involves, as in the present case, a preliminary determination by the trial judge of whether the act is sexually equivocal because of the body part touched.  This intrudes on the role of the jury as the tribunal tasked with matters of fact.  Indecency is an issue of fact applying the standards of the community.  It is, in that sense, an objective matter for the jury to determine.  It is not a matter that should be…..by a preliminary view of the trial judge.

The current state of the law does not recognise that the defendant’s purpose or intention is critical to a finding of whether there has been an application of force that was, in all the circumstances, indecent in the view of the jury.  It impermissibly places that preliminary fact‑finding role on the trial judge and it seems to arise from perhaps a misapprehension of the judgment of the Chief Judge at Common Law in Harkin’s Case where the judgment seems to suggest that, at least in that case, the intentional – and I note the word “intentional” – application of…..to the breast of a young girl was inherently indecent without more.

That has been interpreted in Queensland as authority for the proposition that if a certain part of the body is involved then the assault is indecent and the reasons or purpose – in the sense of intention behind it – are not relevant.  We contend that that is incorrect.

The passage that is often referred to in the judgment in Harkin, your Honours, is – it appears in the judgment of Chief Justice Lee and is oft referred to in judgments in Queensland, page 301 – where the trial judge had said you might have little problem in this case coming to the view that a man of the age of the accused touched the girls deliberately, in a way which they allege, on the breast.  That would amount to an act of indecency.  The direction went on to say it is up to you whether you did. 

Indeed, your Honours, our submission is that is the correct position, that is it is for the jury as representatives of the community to determine whether the defendant intended to do an act which was objectively indecent.  So, the intention could be inferred, it is conceded, but it is not a matter for a preliminary finding to be made by the trial judge.

GAGELER J:   Now, before the Court of Appeal, a suggestion was made by counsel then representing your client as to what the direction should have been in this case.  Do you adhere to that?

MS MORGAN:   Yes, your Honour.  It was still a question for the jury in all the circumstances but, in our submission, that direction would have been appropriate in the circumstances of this case.

GAGELER J:   So, the first sentence, you agree with it?

MS MORGAN:   Your Honour, in the circumstances of that case, that the assault by touching the breast of a woman is indecent, I would say may be indecent rather than unequivocally is indecent because it is a question for the jury to determine whether it is indecent or not.  So that a direction in those terms ought, in my submission, to be couched in that form.

In this particular case there does not seem to have been an issue that if the touching were intentional then it was indecent, but that was based on the understanding, both of the trial judge and of defence counsel, as to the correct state of the law.  In our submission, that understanding was incorrect.

GAGELER J:   Thank you.

MS MORGAN:   Your Honours, this issue was recently considered by the Court of Appeal in the United Kingdom on an Attorney‑General’s reference which did specifically relate to whether a subjective intention to commit an act of indecency or a sexual – a sexual assault in terms of the new provisions carried with it some need to prove a subjective intention on the part of the defendant. 

That is not our contention.  Our contention is not that it is the defendant’s subjective intention that is determinative.  However, it is relevant.  It is not a situation where the Crown has to prove that he subjectively intended to do something which he subjectively intended to be indecent.  The question of indecency will always be objective, but the question of his subjective intention is relevant in the sense that it is used in Western Australia by the Western Australian Court of Appeal in Drago’s Case, that 1992 case where Justice Murray said, at 70, it is essential not to confuse motive or intention as an element of an offence under section 352 which, by virtue of section 23 of the Code, has no role, and motive as a factor in characterising the assault as indecent or not.

So, “intention” is not used in a sense that calls into question the operation of section 23 of the Criminal Code.  It is accepted that intention in the case of an offence under section 352 relates to the assault or the application of force, but the intention with which the application of force occurs is relevant to that objective or community element, that is the element of whether the assault was indecent in the minds of reasonable or right‑thinking members of the community.

Your Honours, perhaps the most important aspect of the erroneous approach to the law which has infected this decision of the Court of Appeal and, indeed, in the conduct of the trial is that it usurps the important role of the jury as triers of fact.  It places, as it were, a fetter on their determination of the issue of whether the act was, in all the circumstances, indecent. 

The jury’s determination of the question of indecency should not be so fettered.  Their determination of the question of indecency will reflect the standards of the community which they represent.  The community’s view of whether a body part carries with it some connotation of indecency will change with time.  It might well be the case that in 1901 the fondling of a woman’s ankles might have been regarded as inherently sexual or indecent.  It is very doubtful that a jury as representatives of the community in 2021 would have a similar view.

GAGELER J:   I am not sure that it is possible to put that submission, frankly.

MS MORGAN:   Well, your Honour, one does not know.  It is a question for the jury applying that standard whether they would think it was or not.  That is the point of at least one aspect of our submissions, that is that the community’s view was what the community view is, and that will change with time.  So that decision‑making by the jury should not be fettered in any way.  Touching a young girl in the area of her vagina might not be unequivocally sexual if the defendant is giving her a piggyback and grabs her to stop her falling off his back, so ‑ ‑ ‑

GAGELER J:   I think we are a long way from the facts of this case.

MS MORGAN:   Indeed, your Honour, but it is an illustration of the fact that in this case the issue was whether the application of force to the complainant was intended and it was, on the evidence given on oath by the defendant, not intended.  The error that infected the directions to the jury in this case was that the trial judge, applying what seems to be the accepted understanding of the law in Queensland, was that because it was a touching on the breast it was, prima facie, indecent.  The reason why it was done, or the purpose or intention with which it was done was not relevant.  Therefore, the defendant, the applicant was deprived of a pathway to acquittal because the jury may well have found that he had an honest and mistaken belief about who he was grabbing. 

But that was not reasonable in the circumstances.  He had given evidence he was looking straight ahead.  He was not looking to see who he was grabbing.  That requirement that his belief not just be honest and reasonable – honest and mistaken but also reasonable obscured the real issue and that was whether the Crown had established an assault that is an intentional touching in all the circumstances that was indecent and the jury applying the law in that way may well have come to a different conclusion.

GAGELER J:   Very well, thank you.  Was there something you wished to add?  No.

MS MORGAN:   Thank you, your Honour.

GAGELER J:   Mr Heaton, we do not need to trouble you.

The applicant in this case requires a substantial extension of time in which to file the application for special leave to appeal.  We are not persuaded that there is reason to doubt the correctness of the decision reached in the Court of Appeal.  In those circumstances the grant of an extension of time would be futile.  The application is dismissed.

AT 12.45 PM THE MATTER WAS CONCLUDED