Holland v The Queen

[1993] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl22 of 1992

B e t w e e n -

GLENN RODERICK HOLLAND

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Holland 20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 11.59 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by T.A. Murphy, Acting

Director, Legal Aid Commission (New South Wales))

MR R.O. BLANCH, OC:  May it please the Court, I appear for

the Crown, with my learned friend,

MR F.D.L. HOLLES. (instructed by S.E. O'Connor,

Solicitor for the Director of Public Prosecutions)

MASON CJ: Yes, Mr Game.

MR GAME:  If the Court pleases, two groups of submissions

were presented in the documents supporting the

special leave application; one concerning attempt,
the second concerning corroboration. No argument

is put to the Court in relation to corroboration.

So, submissions are only put in relation to

attempt.

In this case the applicant was convicted of

four counts of attempted digital penetration and

two counts of cunnilingus. Attempt was not

indicted and not raised until the close of the

defence case. It was raised by the Crown at that

time. Attempt was left to the jury, but the jury

were given no directions on the elements of the

offence or how the jury might conclude that the

applicant was guilty of attempt.

There was, on our case, no evidence upon which

the jury could convict the applicant of attempt,

and that is for two reasons; firstly, attempt was

entirely inconsistent with the complainant's

evidence, and she gave quite unequivocal evidence

of observations of digital penetration, full

digital penetration to the extent of the knuckles.

She gave evidence to that effect in cross-examination and that was the effect of her

evidence in-chief. So the first reason is because

attempt is entirely inconsistent with the

complainant's evidence.

The second reason is because, absent evidence

of penetration, there is no evidence from which a

jury could infer intent. So that the question of

attempt has to viewed from the assumed point of

view there there is no evidence of penetration.

Once that evidence goes, there is no evidence from

which one can infer that the applicant had such an

intent.

Now, that was the central point of the

submissions put to the Court of Criminal Appeal,

and it was not addressed in the judgment of that

court.

Holland 2 20/5/93

The reason attempt was raised was because in

cross-examination of a Dr Turner, that doctor, who

had said that her findings were consistent with the

complainant's account, conceded that you might

expect to find haemorrhaging or fissures following

penetration. Our submission in relation to that is

that that might have weight in relation to the

credibility of the account given by the

complainant. But absent some other evidence from

which one could infer attempt, for example,

resistance or evidence of a failed attempt,

evidence of that kind, that evidence bears no

logical connection with an inference of a failed

attempt. It might be one circumstance in a case,

but it bears no logical connection on its own. The

Court of Criminal Appeal disposed of the appeal on

the basis that there was such evidence from the

doctor. In our submission, that is simply

illogical.	So we say that attempt should not have
been left.

DAWSON J:  You say that the intent has to be the intent to

commit the completed crime?

MR GAME:	Yes.
DAWSON J:	And you cannot infer that intent from the

surrounding circumstances?

MR GAME:  Your Honour, once you take away the evidence of

penetration, there is no evidence in this case of

an intent to penetrate. There is her evidence that

he penetrated and there is his evidence that he did

not. We do not concede this but, for example,

there might be evidence that would support an

inference of an indecent assault. We do not

concede that, but there would be nothing that could

take it beyond that because the evidence of

penetration has to be excluded from the

consideration. That was really our fundamental

point in the Court of Criminal Appeal and it simply

was not addressed.

DEANE J:  What do you say of the paragraph in

Justice Allen's judgment commencing near the bottom of page 115, which seems to be the focal point of

His Honour's judgment?

MR GAME:  Your Honour, the jury might have understood that

what they were considering was - they might have

understood that, but they would not have understood

that they had to consider that in a particular

context. They could not possibly have understood

that there was a factual context in which they had

to consider that question.

Holland 20/5/93

DEANE J:  I am being ambiguous, Mr Game. If what His Honour

says there is correct and open, I have difficulty

in following your submission that attempt was not

open and should not have been allowed to go to the

jury.

MR GAME:  I would only set that passage in the context of my

primary submission having been rejected, that is to

say, in the context of a conclusion that attempt
should have been left. But if my primary

submission is correct -

DEANE J: That puts the thing in the wrong order to what I

was asking you. If that were a view that was open

on the evidence, I would have thought that attempt

should obviously have been allowed to go to the

jury.

MR GAME:  Your Honour, our submission is that that is not a

view open on the evidence.

DAWSON J: Really, you must found on that, must you not?

MR GAME: Yes. There is simply no evidence in this case

from which such an inference could be drawn.

DAWSON J:	Of intent?
MR GAME:	Yes.

DEANE J: But that really is'based on a submission that

because the complainant gave evidence along one
approach and the accused's case was on another

approach, it was not open to the jury, in the

circumstance of this case, to find anywhere in

between.

MR GAME:  Your Honour, the jury has to found their finding

on some basis. Now, if the jury were not satisfied

as to penetration, then in the context of this

case, that had particular implications in relation

to the complainant's credit, because there was no

suggestion on her case, on her evidence, or in any
other part of the case that she was mistaken.	Now,

the doctor's evidence cannot support an inference

that - - -

DEANE J: But how can there be? I mean, she gives her

evidence. I presume the defence did not

cross-examine on the basis, "Everything you say is

true except as to the extent of penetration." It

is just one of those cases where, in the context of

circumstances and so on it is open to the jury to

accept her evidence, as they obviously did, but
find that they could not be persuaded beyond

reasonable doubt as to an ingredient that required

a degree of preciseness.

Holland 4 20/5/93

MR GAME:  Your Honour - - -

DAWSON J: Well, you say to that if they could not be

satisfied beyond reasonable doubt that there was

penetration, they could not have been satisfied

beyond reasonable doubt there was intent to

penetrate.

MR GAME:  =~at is my submission, yes. But, once you take

a	· the evidence of penetration, there is nowhere
tc	urn in this case to find such evidence. One

me~~s a blank in terms of one's looking -

stretching the imagination, one finds a blank in

trying to see a basis upon which one could infer
th ~ intent and, in my submission, it is just not

th_ . .ce.

DEANE J: Except, were there not three possibilities really?

One is, the complainant was accepted completely.

The other is, your client's approach was accepted

completely. The other is that the complainant was

accepted, except to the extent that her evidence

had to be modified in the light of the doctor's

evidence. Now, if it is the third, why does it not

lead precisely to what Justice Allen said at page

115 to page 116?

MR GAME:  Your Honour, because the modification, is a

modification which has important implications in

relation to her credit.	The jury could have
simply - - -

DEANE J:  I follow that and no doubt that was put to the

jury with great enthusiasm.

MR GAME:  The jury might have concluded that the medical

evidence was neither here nor there, and it may

have been neither here nor there, but once the jury

accepted that there was a nexus between - or that

they accepted that there was something to be

accounted for in relation to the medical evidence

and gave that weight in relation to their

considerations of the complainant's evidence, then

her credit could not stand because of the way in

which she gave explicit evidence about that

question.

Now, if the jury - and I am shifting a little

here, but if one then turns to the direction that

the jury might have been given, because the jury

were given no directions as to either the elements

of the offence or how it might be established. If
the jury were to be given proper directions on this

question, then those directions would go something

like this: firstly, "If you are not satisfied

beyond reasonable doubt as to penetration, you may

consider the question of attempt. Number one, you

Holland 20/5/93

will have to decide whether or not you concluded

that because you are not satisfied in relation to

her credit; or two, you are satisfied in relation

to her credit but you believe that she might be

mistaken." The jury would have to be specifically

directed on that.

Secondly, the jury would have to be directed

as to the elements of the offence, and they were

not. Then the jury would have to be directed that

they would have to modify the factual - - -

DEANE J:	The elements of - - -?
MR PAGE:	The offence of attempt.  Then, thirdly, the jury

would have to be told that in order to consider

this question they would have to consider the

evidence minus the discarded evidence of

penetration. Fourthly, the jury would have to be

given a specific directional warning in relation to

the fact that there was no suggestion of physical resistance, there was no suggestion of mistake on the evidence.

In my submission, that would be the bare

minimum of a direction in circumstances such as

this and it is impossible to conclude, on the

facts, that the jury would have determined the

question otherwise, had they been properly directed

on it.

Indeed, it may have had implications in

relation to their deliberations in respect of the

other two counts on which he was convicted and, in

my submission, they should have been so directed

that if they concluded on question number one, on

the basis that they were not satisfied as to

credit, that would have implications in relation to

their other verdict. So, in my submission, once

one identifies what the direction is, one is unable

to say either that no miscarriage of justice has

resulted or to apply the proviso, whichever way one

looks at it in context of this particular case.

Those, in summary, are my submissions.

DEANE J:  Mr Game, I noticed this morning that there is a

recent decision of the English Court of Appeal in

(1993) 1 WLR 274, at page 285,, where, dealing with

attempted rape, Their Lordships said:

It is not, in our judgment, necessary in order to raise a prima facie case of attempted rape,

to prove that the defendant with the requisite

intent had necessarily gone as far as to

attempt physical penetration -

Holland	20/5/93
MR GAME:	Yes, Your Honour, I accept that but - - -

DEANE J: And they seem to indicate that provided you spell

out the elements of the substantive offence, the

word "attempt" goes a long way towards conveying

the necessary legal concept without getting into

details of the sort you were suggesting.

MR GAME:  Your Honour, that is a case about proximity, and

the Court of Criminal Appeal misinterpreted, in my

submission, the argument that was presented to them

as being an argument about proximity, and that
appears at the application book at page 116.

The point which I have been attempting to make

appears in its, what I would say, misconstrued

version from lines 20 to 30 on page 116. The

question in this case was not a question about

proximity at all, and if the argument was about

proximity, then there could be no argument put to

the Court. So, I would distinguish that case on

that basis, Your Honour.

We would say that it is appropriate to give

special leave in this case because this applicant -
in the circumstances of this particular case,
having regard particularly to section 35A(b) of the

Judiciary Act. An analogous case, we would say, is

Andrews in which special leave was granted where a

person was convicted, in effect, of another offence

than the one charged. We would say special leave

is also justified because the circumstance of
leaving "attempt", in effect, at the heel of the

case without directions is a problem of importance

in the administration of justice and we say this is

just such a case.

DEANE J: Except you have got the problem that you did not

ask for - when I say "you", I mean no further

direction in relation to this was sought.

MR GAME:  Your Honour, yes, I have to accept that. Those

are my submissions.

MASON CJ: Thank you, Mr Game. Yes, Mr Blanch.

MR BLANCH:  May it please the Court. In our submission, the

facts of this case were perfectly clear that the

victim in the case had given evidence of what she
regarded as penetration. It was quite open to the

jury in the circumstances of this case to be

concerned about the medical evidence as to

penetration although, of course, the medical

evidence was only as to the breaking of the hymen,

and "penetration", in its strict legal sense,

certainly would not require that but that does not

Holland 7 20/5/93

appear to have been explained to the jury in the

course of this trial.

Our basic proposition simply is that there is

no problem at all in the jury coming to the

conclusion that they were not prepared to accept,

beyond reasonable doubt, the evidence of the girl

that there had been penetration when taken together

with the doctor's evidence but they accepted her

entirely as to her evidence about what the

applicant was doing at the time.

Now, if the jury did that, then clearly, the

circumstances would allow them to return a verdict

of - - -

DAWSON J:  Where is the evidence of intent?

MR BLANCH: Well, Your Honour, the fact of what he was

doing, the fact that he was touching her in the

area of the vagina - - -

DAWSON J: Well, the intent to touch?

MR BLANCH:  Your Honour, she explained it in different

terms. She explained it in terms of - - -

DAWSON J: Yes, she said there was penetration and from that

you could infer intent.

MR BLANCH: Well, Your Honour, you could certainly infer

that but you could also infer that he was

attempting penetration.

DAWSON J:	Why?
MR BLANCH:	From the evidence that she gave, that there was

penetration. ·

DAWSON J: What evidence? The evidence of penetration?

MR BLANCH: Yes. The evidence of penetration, but that

itself would go far enough to establish that that
is what he was trying to do.	The jury obviously

reached a compromise verdict in the circumstances

in saying that they were not prepared, in light of

the doctor's evidence, to accept that there had

been, but they had no doubt that that is what he

was trying to do.

DAWSON J:  If they had been properly instructed they may not

have had to compromise.

MR BLANCH:  No, Your Honour, if they had been properly

instructed, they may very well have come to the

conclusion that there was penetration in any event.

Holland 20/5/93

DAWSON J: Or, alternatively, that there was no evidence of

intent.

MR BLANCH:  Your Honour, I cannot put it any higher than the

Court of Criminal Appeal has put it on the basis of saying that the evidence of facts are there for the

jury and on that evidence it was well open to the

jury to find that that is what he was attempting to

do. The jury knew very well what the elements of

the offence itself were. It was simply a matter of them then having to decide whether, on the evidence

that they had, that is what he was attempting to

do.

I can only adopt what the Court of Criminal

Appeal said in that context, Your Honour, that as

long as they knew what the elements of the offence

itself were, there is no magic in the word

"attempt" in this particular case. That just

simply is not a problem in this case.

DAWSON J: Well, the problem is clear enough.

MR BLANCH:  Yes, Your Honour.

MASON CJ: Yes, Mr Game?

MR GAME:  If the Court pleases, the problem is not so much

in the word "attempt" but how one relates to the

offence to the evidence in the case, so that it is

a question of the proper directions a la

Alford v Magee, that is to say, not only
identifying the elements of the offence but how the
offence is related to the evidence. That is where
the failure to give directions would founder in
this case. And the specific direction that if the
jury accepted her evidence, but for her account of
penetration, then they would have to look elsewhere

in order to find evidence of intent but, as I have

said, we submit there is no such evidence. Those

are my submissions in reply.

MASON CJ: Thank you.

in this case at 2 o'clock. The Court will announce its decision

AT 12.21 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Holland 9 20/5/93

UPON RESUMING AT 2.01 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case.

AT 2.01 PM THE MATTER WAS ADJOURNED SINE DIE

Holland 10 20/5/93