Hettrick v The Queen

[2010] HCATrans 301

[2010] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 2010

B e t w e e n -

WAYNE LEONARD HETTRICK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 12.52 PM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it please the Court, I appear for the applicant.  (instructed by Ryan & Bosscher House)

MR A.W. MOYNIHAN, SC:   If it please the Court, I appear with my learned friend, MR B.J. POWER, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

CRENNAN J:   We note you need an extension of time.

MR KIMMINS:   Yes.

CRENNAN J:   Is there any opposition to that?

MR MOYNIHAN:   No, your Honours.

CRENNAN J:   Yes, thank you, Mr Moynihan.  Yes.

MR KIMMINS:   Thank you, your Honour.  The next point is that the only oral submissions that I intend to make are in relation to the question of the differential verdicts and the authorities relevant thereto.  The Court would be aware that the only two counts that this particular application refers to were count 9 on the indictment and also the circumstance of aggravation of rape in relation to count 1 on the indictment.

CRENNAN J:   Yes.

MR KIMMINS:   So far as the Court of Appeal’s approach to ‑ ‑ ‑

CRENNAN J:   Just before you go on, in relation to your draft notice of appeal, which is to be found at application book 77, are grounds 1 and 3 combined, pretty much cover the same territory?

MR KIMMINS:   Yes, your Honour.  They do, your Honour.

CRENNAN J:   Yes, thank you.

MR KIMMINS:   I was going to take the Court to application book 62 where the Court of Appeal in paragraph 62 where the Court of Appeal in paragraph [22](a) and (c) primarily outlined the appellant’s arguments in relation to the point that I seek to ventilate at this stage.  It is to be noted in [22](c) when outlining the appellant’s argument, the court noted the italicised words to the extent that the verdict on count 9 was “an affront to logic and common sense” and then quoted from MacKenzie v The Queen.

CRENNAN J:   Yes, but then I think in paragraph [28] on the next page that is where the point is dealt with in terms of the conclusions reached.

MR KIMMINS:   That is correct, your Honour.  It is to that that I wish to direct the Court’s attention.  Prior to doing that, what I briefly wished to touch upon was that during the course of the appeal the court was taken to comments by the New South Wales Court of Criminal Appeal in the matter of TK which is referred to in our notice of appeal.  We suggest that Justice Simpson in the main judgment in that particular case has really taken the authorities of this Court and also the New South Wales Court of Criminal Appeal and reviewed in some depth the extent and the rationalisation of those authorities and we would submit that her Honour considered in some depth the considerations and the tests which could be in a more descriptive adaptation from all the authorities.

Could I take the Court, please, to the decision of TK and primarily paragraphs 130 and 131 and note in the first sentence in 130, part way through, her Honour noted:

the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complaint’s credibility . . . The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.

In 131, the second sentence her Honour notes:

It is not uncommon to find that the explanation for conviction on the one hand, and acquittal on the other, is to be found in some corroborate (often even usually, circumstantial) evidence of another witness.  But, logically, how can this be seen as other than casting doubt upon the credibility of the complainant?  It suggests that the complainant is accepted only where externally corroborated in some detail.  In other words, his/her credibility is in question unless supported by some external factor.

I also refer the Court to her Honour’s comment at the bottom of paragraph 133 and the last sentence where her Honour notes:

An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts.

Then in 135, commencing part way through with the sentence:

But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test.  The issue is not only whether the verdict was open “upon the whole of the evidence”.  It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning.  It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones –

It is to be noted that in my learned friend’s outline at paragraph 3.4 on transcript 93 he referred to the fact that this Court refused special leave to appeal so far as TK’s Case is concerned and it is to be noted that the Chief Justice in dispensing with the – refusing leave noted that:

In our opinion, the decision of the Court of Criminal Appeal does not disclose error in the way in which the Court of Criminal Appeal assessed whether different verdicts in a multiple‑verdict case reflected a compromise inconsistent with the jury’s duty.

What then do we make of the relevant verdicts in this particular case?  Despite what her Honour mentioned that it is really to the acquittals that we look could I take the Court firstly to the question of the guilty verdicts.  Not only is it apparent, in my submission, that the complainant testified so far as the relevant offences the applicant was convicted of, but more importantly it would be my submission that the jury were able to assess a confession which the applicant made and the applicant in fact confessed to engaging in the behaviour alleged by the complainant in the relevant counts that he was convicted of, for example, transcript 64 in the decision of the Court of Appeal.  It is at the top of the page.  It is part of paragraph [30] where Justice Muir noted in the second line, “by his admissions that he:  had” then the relevant indecencies ‑ ‑ ‑

CRENNAN J:   We see those.

MR KIMMINS:   Yes.  My submission is the guilty verdicts are explicable due to a combination of the complainant’s testimony being backed up or supported by his admissions.  So far as the not guilty verdicts are concerned I would take the Court to transcript 35, at line 25 in the learned trial judge’s summing‑up where he noted:

Now, there are things in this case here that may contradict the complainant.

His Honour then deals with a number of counts, numbers 2, 3, 4, 5, 10 and 11 and then concludes at the bottom of transcript 36 at line 50:

So those are matters that you would consider in evaluating the evidence and the truthfulness and reliability of the complainant’s evidence.

Could I note for the Court’s attention that amongst those counts I have just taken the Court to were reference on transcript 36 to counts 5 and 6.  I readily have to accept that the jury convicted the applicant on counts 5 and 6 despite the fact that his Honour said that there was some evidence made to contradict the complainant but I note, as I have already indicated, when dealing with why the guilty verdicts were returned that the applicant had confessed to behaviour similar to that in his interview with the police.  Counts 2, 3, 4, 10 and 11 were offences that the jury acquitted the applicant on. 

So based with a direction from the trial judge in relation to the five counts that the jury acquitted the applicant on that they were matters that they would consider in evaluating the evidence and the truthfulness and reliability of the complainant’s evidence the jury were not so satisfied and acquitted.

KIEFEL J:   At one level, Mr Kimmins, the assumption that a not guilty verdict must reflect on the credit of the complainant does not really take account of the requirement of proof beyond reasonable doubt and that the jury may attend to that.  In this case there may have been doubt about accuracy, but no real belief on the part of the jury that the complainant was an untruthful witness.  I mean, they may have attended to the specific detail and any problems with it as the defence had put forward on those two counts.

MR KIMMINS:   Your Honour, could I deal with it this way and hearken back to the words that I quoted from Justice Simpson in that line in paragraph 133:

An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts.

The most likely explanation, with due respect, has to be that where the complainant was corroborated by the applicant’s confession the jury were prepared to convict.  Where there were not, where there was the complainant’s testimony and some evidence which caused doubt in relation to some aspect of her evidence then they were not prepared to accept her testimony.  They are the ones that the jury acquitted on.

Count 9 sits by itself, with due respect.  It is her testimony and her testimony alone, with no corroboration on one side nor any evidence which could be pointed to show some inaccuracy, unreasonableness or untruthfulness so far as that count is concerned.

KIEFEL J:   The submission you are making, why does not that underscore what I have just said about the jury attending to the requirement of proof beyond reasonable doubt?

MR KIMMINS:   Because, with due respect, your Honour, they would have to – I am sorry, I come at it this way.  To render a verdict of guilty they have to be satisfied beyond reasonable doubt.  If they are not satisfied beyond reasonable doubt then they acquit – it is standard.  The likely reasons why they would come to that conclusion have to be looked at from all of the facts and circumstances surrounding the case. 

In this particular case we can point to evidence which was left to the jury on the basis of affecting her reliability and her truthfulness.  Once again, I hearken back to what his Honour said to the jury so far as those matters were concerned.  If they accepted what the learned trial judge said that those factors could well and truly be relied upon to consider whether she was a reliable or truthful witness then the likely explanation is that they were not satisfied in relation to her credibility as such.

KIEFEL J:   Or they were giving the accused the benefit of the doubt they had?

MR KIMMINS:   That may be open, but can I suggest it is not likely and I hark back to those words.  When one looks at the whole of the case it is open but it is not the likely explanation for it because of what ‑ ‑ ‑

KIEFEL J:   The trial judge gave a direction about acting upon uncorroborated evidence, I take it?

MR KIMMINS:   The judge indicated to the jury – I do not believe there was specifically a direction so far as acting upon the uncorroborated testimony of the complainant.  His Honour dealt with some aspects of corroboration, if it pleases the Court, at transcript 30, line 30.

KIEFEL J:   I am sorry, is that page 30?

MR KIMMINS:   Application book, that is where the first reference to corroboration comes in.

KIEFEL J:   Yes.

MR KIMMINS:   Then his Honour continues and specifically identifies counts 1, 7 and 8 as being corroborated by specific admissions.  Then his Honour at transcript 34 gives a propensity reasoning argument at about line 50 and then moves into the passage that I took the Court to previously at transcript 35 at line 25 about evidence that tended to “contradict the complainant” that would affect her truthfulness and reliability.  Then his Honour went on to basically summarise the prosecution and defence’s case at transcript 38, line 20.  That is the prosecution case.  The defence case was summarised between transcript 39, line 45 and the next page, transcript 40, line 50.

I do not believe that there was any other reference to corroboration.  My learned friend may well be able to point to that, or a direction so far as failure – no corroboration.  I should note that there was no what is commonly described as a Markuleski direction about how the jury were to utilise the verdicts of not guilty that they came to when coming to consider other offences as such.  The closest that they came was when his Honour was summarising defence counsel’s submissions at transcript 40 at line 1 to line 5 but there was no specific direction given by his Honour so far as that was concerned.  It was a really a recitation of defence counsel’s submissions.

The actual evidence in relation to count 9 which his Honour summarised to the jury was at transcript 29 at line 5 to line 10.  That was the sum total of his Honour’s recitation.  As the Court can see it is italicised so one takes it it comes from the transcript.  Whilst at this point could I ask the Court just to note at the bottom of transcript 28 his Honour’s recitation about count 8 which is in fact virtually in similar terms except that there is the added aggravation of penis being inserted. 

I turn to the Court of Appeal’s decision at paragraph [28 ]and it seems that the gravamen of what the court has said includes what your Honour Justice Kiefel has noted about:

The acquittals on counts 3, 4, 10 and 11 do not amount to positive findings either that the complainant’s evidence in respect of these counts was untruthful or unreliable.

That is correct but can I say that there is to be noted his Honour’s summing‑up, which I have taken your Honours to, where it was specifically left to the jury that way.  Then the reference to satisfied “beyond reasonable doubt” does not take it any further and the gravamen seems to be:

The failure of the jury to convict on these counts is explicable by the jury exercising caution and acquitting where there was some evidence capable of casting doubt on the complainant’s recollections.

The court seems there to have drawn a distinction between the word “recollection” in that sentence and the words “untruthful” and “unreliable” in the sentence earlier up the paragraph.  If a person’s recollection is faulty then he is one, unreliable and is the jury then able to seize upon that in coming to a conclusion as to whether the complainant’s credibility has been challenged to such an extent that they are not prepared to act upon it unless it is corroborated in some other way.

In this particular case, so far as those five counts were concerned that the applicant was acquitted on, the jury were not prepared to accept her as a witness of truth where there was some evidence telling against what her story was but the jury were prepared to accept her as a witness of truth to the requisite standard where there is in fact some corroborative evidence which was his confession.

We are left with a situation where this particular count he was convicted of relied wholly and solely upon her evidence with nothing to back it up, nothing to challenge it, as such, except for the fact the jury were not prepared to accept her version on five occasions where there was some evidence which put doubt in relation to what we submit is her reliability or her truthfulness so far as her allegations against the applicant.

What the court then notes at paragraph [30] about the confession that he – where he denied penile penetration and the court then referred to his submissions, we would submit, is not substantiated.  The fact is that his confession was in relation to specific acts.  He denied, repeatedly, penile penetration and it is the submission of the applicant that the reasoning of the court does not stand scrutiny.  I thank the Court.

CRENNAN J:   Mr Kimmins, may I just ask you a question just to clarify matters?

MR KIMMINS:   Yes, your Honour.

CRENNAN J:   In relation to your absence of consent point, do you rely on your written submissions or are you withdrawing that point?

MR KIMMINS:   No, I rely upon the written submissions, your Honour.

CRENNAN J:   Yes, thank you.

MR KIMMINS:   Thank you.

CRENNAN J:   We will not need to trouble you, Mr Moynihan.

This application concerns an appeal against conviction for sexual assault offences:  one count of maintaining a sexual relationship with a child under 16 with the aggravated circumstance of rape and one count of rape.  As to proposed grounds of appeal numbered 1 and 3, a unanimous decision of the Court of Appeal of the Supreme Court of Queensland involved the application of settled principles to the facts of the case - MacKenzie v The Queen (1996) 190 CLR 348. In relation to proposed ground of appeal numbered 2, we see no reason to doubt the correctness of the decision of the Court of Appeal. No question of a miscarriage of justice arises. Accordingly, special leave to appeal is refused.

AT 1.14 PM THE MATTER WAS CONCLUDED