HBJ v The Queen

[2014] HCATrans 195

[2014] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B10 of 2014

B e t w e e n -

HBJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 SEPTEMBER 2014, AT 12.00 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, QC:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, Mr Glynn.

MR GLYNN:   This application concerns the sufficiency of directions given to a jury concerning the elements of the offence of maintaining an unlawful sexual relationship with a child.  It is a narrow and fairly short point, your Honours.  To convict of the offence, a jury must be satisfied beyond reasonable doubt that there was an unlawful sexual relationship which involved more than one unlawful sexual act, which is defined as an act that constitutes, or would constitute if sufficiently particularised, an offence of a sexual nature.  That latter term is also defined.

In R v WAB [2008] QCA 107, your Honour Justice Keane, speaking for the court, made two related and relevant points. At paragraph [27], about line 7 of the paragraph, your Honour said:

It is not possible, however, in my respectful opinion, to avoid the conclusion that the legislature intended to permit an accused person to be charged and convicted of maintaining an unlawful sexual relationship upon unparticularised evidence of unlawful sexual activity.

At paragraph [28], your Honour said this:

It is also important to state that, while s 229B(4) is clearly intended to facilitate the conviction of offenders of a contravention of s 229B(1) even though the evidence against the accused is not sufficiently particularised to establish a charge of a separate sexual offence, that circumstance makes it all the more important to ensure that the accused has the benefit of the other procedures calculated to ensure a fair trial. In this regard, it is, of course, important that the accused should have every opportunity to meet the case made against him or her by the Crown.

The Crown particulars in this case were identified by Justice Fraser in giving the judgment of the Court of Appeal at record page 20, line 11.  His Honour said this:

The Crown particularised the acts constituting count 1 as including, but as not being limited to, “touching the complainant’s ‘bottom’ and/or digital penetration of the complainant’s anus and/or touching of her vaginal area both ‘inside and outside’ and/or kissing the complainant.”

At paragraph 3.5, the applicant’s outline refers to a relevant passage from RPS v The Queen.  Unless your Honours wish me to take you to the passage, I rely upon that as indicating what is required to fulfil the requirements set out by your Honour Justice Keane in paragraph [28] of WAB.

Jury members are not required to be satisfied of the same unlawful sexual acts before convicting.  The complainant made two section 93A statements, and I presume your Honours are familiar with that term, and gave evidence at a pre‑trial hearing.  In the first interview, the complainant said that the applicant did a number of things to her, some of which were clearly unlawful sexual acts. 

The content of that statement was summarised by Justice Fraser in paragraphs [5] and [6] of his reasons.  They included the following:  tickling her bottom, inserting his finger in her anus, rubbing her vagina outside or inside, pulling her pants down, kissing her in a sexual way.  Her second interview, which was summarised at paragraphs [8] to [10] of the reasons, is then further summarised by his Honour at page 25, line 54 – I am sorry, I have written down a wrong reference, but the effect of it was that in effect, the complainant in the second interview said that she really could not remember any of the things that she alleged in the first interview.

Her pre‑recorded evidence is summarised at paragraphs [11] to [17] of the judgment and the complainant seems to say that the following occurred:  that she saw a recording of her first interview before she gave evidence and what she said was true; secondly, that she could not recall what she said in the second interview, but it was true.  She said the applicant had tickled her, but she could not recall the details.  At page 22, line 58, this was specifically said:

She denied that she spoke to the appellant about that –

and then this is the relevant part –

She agreed that the appellant came and washed her when she was having a bath and that sometimes he washed her “rude part”.

That was a proposition which was put to her in cross‑examination, which she accepted.  There was then a series of questions at record page 24, lines 10 to 48, in which she said that she could not recall whether the applicant touched her on the bottom.  She said he inserted his finger in her anus, and then she could not recall whether she had done that.  Again, specifically, at line 20, this question and answer is recorded:

He’s told me that he would wash your bottom and your rude part when you were [in] the bath, do you remember that or disagree with that or don’t remember it or agree . . . ? – I think I remember.

Without in any sense challenging the Court of Appeal’s conclusion that the verdict was not unreasonable it can, in my submission, be fairly said that by the time the jury retired the evidence against the applicant was in disarray.  A juror or jurors may well have acted upon matters apparently accepted by the applicant through his counsel in cross‑examination, but it may have been left unsatisfied by the remaining evidence. 

It was critical, it is submitted, particularly in the light of the Crown particulars, that the jury be told more than simply that an unlawful sexual act is an act which constitutes an offence of a sexual nature.  That is the direction in the summing‑up at record page 6, line 26.  The jury should have been told that any indecency or unlawfulness of any touching needed to have as its purpose sexual gratification.

KIEFEL J:   Do you think that the jury – is your argument that the jury would not have understood that?

MR GLYNN:   I am sorry, your Honour?

KIEFEL J:   You are contending that the jury would not have understood that without the need for a direction?

MR GLYNN:   That is the contention, your Honour, yes.  That is, really, the effect of the whole submission is that there was a risk – sorry, not that they would not, but that there was a risk that they may not have understood it.

KIEFEL J:   But this relates, on your argument specifically, to the evidence relating to the touching of the vaginal area.  You do not seek the same direction in relation to the evidence relating to the touching or insertion into the child’s anus?

MR GLYNN:   Inserting the finger in the anus, I accept, does not call for a direction that would put any innocent explanation upon the conduct.  As I have said some of the things that she alleged in the first interview were clearly unlawful sexual acts, and I do not cavil with that.  But the submission really, your Honour, is that by the time all of the evidence was in, the jury would have been confronted with a case that was in a fair degree of disarray.  The Court of Appeal found that the verdict was not unreasonable on the basis that the jury may well have accepted what was said in the first interview, and had explanations as to why they may have disregarded what was said in the second interview, and what was said in the pre‑recorded evidence.

Nonetheless, there was material there, because it cannot be said with certainty that the jury, or that all of the jury, particularly as the jury do not have to be satisfied about the same acts – there was no way to say that the jury all must have accepted what was in the first interview.  The way it was particularised left it open that, for example, the washing in the bath, the washing of the bottom, tickling of the bottom, and even the kissing, as it was to some degree clarified, may not have been sexual acts in that they did not have as their purpose some sexual gratification.

KIEFEL J:   Were further directions sought at trial?

MR GLYNN:   No, your Honour, they were not, but the issue was a live issue because of the address ‑ ‑ ‑

KIEFEL J:   But there may have been good reason that no further directions were sought.

MR GLYNN:   It is difficult to think what would have been a good reason, your Honour, when this was the focus of counsel’s address.  Your Honours, the Court of Appeal found this particular complaint to be unrealistic in the light of the evidence.  My learned friend’s response, as I understand it, is that this was not a live issue.  However, the Court of Appeal refers ‑ ‑ ‑

KIEFEL J:   I suppose on one view, it may have made sense not to ask for a direction because consistently, a direction in relation to the act necessarily being sexual may have focused attention upon those acts which were, as you accept, sexual and may have emphasised them.

MR GLYNN:   Yes, but against that, your Honour, is that it really does not seem to be advantageous to take that approach deliberately because the acts that were really in doubt, if one can call it as a result of the whole of the evidence, were those which could be said to be specifically or unchallengeably sexual acts.  What the jury may have accepted were the acts that were specifically adverted to by counsel for the applicant, that is, he put to her propositions about the tickling of the bottom, the washing of the vaginal and bottom areas, and the kissing.

Now, those were matters which the jury might have said well, they clearly happened because counsel has not only not challenged them, but put propositions to the witness about them.  The fact is that – I am sorry, I just have to find this passage where counsel’s address is referred to.  It is at page 27 in paragraph [26] and the passage commences at about line 19.  Justice Fraser says this:

The trial judge reminded the jury of defence counsel’s argument that these normal things “have been misinterpreted and reconstructed in a completely fantastic way . . . The allegations made against [the appellant] relating to the maintaining of the unlawful sexual relationship referred to things such as kissing, washing in the bath, touching her bottom, touching in the bath and in other places, touching the girl’s genital area and her anus.  [Defence counsel] then analysed each of those . . . ”.  The trial judge went on to refer to defence counsel’s arguments to the effect that the kissing and washing in the bath were normal things that a parent would do with a young child, and that “tickling or bum squeezing” was “the sort of thing that people would do and not think much about . . . ”.

So clearly, counsel raised it.  He clearly took on, or confronted, those allegations of conduct which were clearly sexual acts.  Against that background, it was, with respect, both a live and a relevant issue and one where, to adopt the protections referred to by Justice Keane in WAB, really called for the judge to identify for the jury the need for there to be some sexual gratification as the purpose of a touching for it to fit the necessary category.  My submission is that that was not done, and it is something that really is called for, given the nature of this offence.

KEANE J:   Would the judge have said “and you may take into account, in considering that, the evidence of the anal penetration”?

MR GLYNN:   Not in respect of those issues, because – your Honour, I would not ‑ ‑ ‑

KEANE J:   Why would not the trial judge say that you can use that evidence as affecting your view of the nature of the other conduct?

MR GLYNN:   Put that way, yes, there would be no harm in the judge saying that, but ‑ ‑ ‑

KEANE J:   Well, I can imagine that the accused would not have wanted the judge to say that.

MR GLYNN:   Your Honour, it is not as though the accused’s counsel failed to take head on and challenge those allegations that were relevant to that form of touching.  But before the jury could be satisfied, or could use, for example, the anal penetration to give colour to the others, it would be necessary for the jury to be satisfied, or those jurors who are going to rely

upon it to be satisfied, that that act took place.  They would have to be told that as well if they were going to be given that direction. 

It, with respect, does not weaken the need, in my submission, for a very clear direction that separates out those forms of conduct which may or may not fit the category of sexual conduct and those which clearly do not.  If the jury accepts those which clearly do not then they would convict; they would not even need to use that to colour the others. 

The difficulty that exists here is that the state of the evidence was such that it is impossible to say with any confidence what evidence the jury acted upon and – really, what evidence they acted upon, particularly against a background where different jurors can rely on different evidence to satisfy that element of the offence.  Unless there are some further questions, those are the matters I rely upon.

KIEFEL J:   Thank you, Mr Glynn.  We need not trouble you, Mr Moynihan.

We see no reason to doubt the decision of the Court of Appeal.  Special leave is refused in this matter. 

The Court adjourns to 10.15 am on Tuesday, 9 September in Canberra.

AT 12.18 PM THE MATTER WAS CONCLUDED