Howes v the Queen M110/2000
[2000] HCATrans 603
•13 October 2000
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M110 of 2000
B e t w e e n -
RODNEY STEWART HOWES
Applicant
and
THE QUEEN
Respondent
Bail Application
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 13 OCTOBER 2000, AT 9.38 AM
Copyright in the High Court of Australia
MR P.A. D’ARCY: May it please the Court, I appear for the applicant. (instructed by Capell Burke)
MR G.G. HICKS: May it please the Court, I appear on behalf of the respondent. (instructed by the Solicitor for Public Prosecutions)
HIS HONOUR: Yes, Mr D’Arcy. Mr D’Arcy, you should assume that I have read the outlines of submissions that have been made for the bail application. I have read the Court of Appeal judgment and the application for special leave. I have looked also, although not read entirely, those parts of the transcript of the applicant’s trial that have been made available.
MR D’ARCY: Thank you, your Honour, for that indication. I rely on the material set out in the affidavit in support and, as I follow the principles, I am required to show exceptional circumstances before the Court could grant bail. I take it from the respondent’s position that there is no suggestion, other than the need to show exceptional circumstances, that there is any other underlying problem with the grant of bail.
HIS HONOUR: So do I. I think that for present purposes, Mr D’Arcy, the point that would assist me most is to hear what you say about prospects of success on the application for leave.
MR D’ARCY: Yes. That really turns to the ground of appeal that was described generally as the unsafe and unsatisfactory ground, and the applicant’s submission about that is, in essence, that the ground was not in any adequate way determined by the Court of Appeal. In saying that, I take your Honour to the parts of the Court of Appeal’s judgment where his Honour the President refers to that area of argument at the bottom of page 1 of the court’s judgment, in the last paragraph on that page where it is set out:
Ground 3B averred that the jury’s verdict was and unsatisfactory because there was no evidence upon which a reasonable jury, properly instructed, could have found that the aforementioned element was proved.
His Honour then continues on and in the next full paragraph sets out:
I agree, for the reasons advanced by Brooking, J.A., that grounds 3A and 3B should be rejected.
He then turns to an analysis of the words “under the care, supervision or authority”. On the last page of the judgment his Honour Mr Justice Chernov recites that he agrees with the reasons advanced by their Honours and says no more. It is at page 44 of the judgment that the only area of stated dealing with this ground is set out by his Honour Mr Justice Brooking. He commences in the first full paragraph on page 44 in dealing with that but under the matter that was previously set out as that issue of “the care, supervision or authority” one and then says towards the end of the paragraph that he has – perhaps if I take it from about the middle of the paragraph:
Although some further matters were mentioned in oral argument, the burden of the applicant’s arguments and the Crown’s response can be ascertained from the written Outlines of Submissions, and this written record makes it unnecessary to summarise the arguments here. Having carefully considered the evidence as a whole and the arguments advanced on both sides I am of the view that the jury were amply warranted in finding the element of sexual penetration proved. This ground must therefore fail.
It is that part of the judgment that seems to be adopted by the other two judges that is the only area of dealing directly with the unsafe and unsatisfactory ground and, in saying that, it does not deal with it, in my submission. It flatly says, “I am not giving my reasons”.
HIS HONOUR: But what could a judge say usefully about this element of the applicant’s argument in the Court of Appeal? Do I understand the argument to be one which focused upon the cross‑examination of the complainant that appears at about page 202-203 of the trial transcript and focused particularly upon the questions and answers that I might characterise as “the 90 per cent answers”?
MR D’ARCY: That is right. Yes, that is right, your Honour.
HIS HONOUR: That evidence had to be understood, did it not, in light of the complainant’s evidence‑in‑chief, which, if one stopped there, appeared unequivocal evidence of penile penetration? It had to be assessed by the jury in light of the forensic evidence given in elaboration of some evidence given by the complainant about the size of the accused’s penis.
MR D’ARCY: Yes.
HIS HONOUR: What was the Court of Appeal to do, do you say, to deal with the argument satisfactorily?
MR D’ARCY: To set out some reasons and considered reasons. Rather than simply say, “We have considered it and reject it”, they have really not advanced any reasons and there is, therefore, no way of discerning what the reasoning process was to reject the argument. It is, in effect, one of the most basic denials of an ability to ascertain what it was that the court thought. It is simply saying, “We reject it”, without saying why.
HIS HONOUR: The conclusion is expressed as:
that the jury were amply warranted in finding the element of sexual penetration proved.
What reasoning process could have been, but was not, exposed that would have supported that kind of conclusion? Let us take it away perhaps from the facts of this particular case. I am not inviting you to concede that there was ample evidence on which the jury could have reached the conclusion. But what kind of reasoning process could have been exposed?
MR D’ARCY: It would seem, in my submission, that the court should have adequately set out what factors there were and then say why it was that they rejected those as allowing the jury to make the finding it did. One only has to think of the “90 per cent” issue to see that it is a difficult concept to give reasons for because of the very nature of the mathematics of it that some people might well take the view that a 90 per cent certainty allows for a 10 per cent doubt and whether that equates with a reasonable doubt.
Now, that whole issue is just simply avoided by giving no reasoning. True it is it is a difficult area to embark on, but once there is a denial to give any process of reasoning in the stated reasons for judgment, it is not able to be ascertained.
HIS HONOUR: Let it be assumed for the purposes of the immediate debate that the reasons of the Court of Appeal were deficient in the respect you identify. Would it then be incumbent upon the applicant to go further and to say not only were the reasons deficient, there has, in fact, been a miscarriage because the verdict was unsafe and unsatisfactory? Do you have to take that second step in a leave application?
MR D’ARCY: No, I do not submit I have to, your Honour. What is submitted is that it was an unanswerable submission and that was why it was unanswered. The court’s work at any appellant stage in this country would be made absolutely simple if an appellant court was able to address an issue by saying, “We have read the arguments and we reject them. We give no further reasons. We say nothing more.”
It is a fundamental principle, in my submission, that to have any ability to discern why it is the court rejects an argument the reasons must be stated. It might have some appeal to courts to be able to do that because it would certainly shorten the writing of judgments, but it really would not take the law anywhere. It would mean that a judgment would stand to be a hollow one. The principles upon which the court applied to it would never be able to be ascertained.
HIS HONOUR: You go so far, as I understand your submission, as to say that in any event the conviction was unsafe and unsatisfactory by reason of the 90 per cent exchanges, if I can inaccurately but conveniently put them in that category.
MR D’ARCY: Yes.
HIS HONOUR: Yes. What was the jury to make of the complainant’s evidence‑in‑chief?
MR D’ARCY: In‑chief she made that complaint, that there was penetration.
HIS HONOUR: Does it then come to how the jury assessed the significance of counsel’s cross‑examination and the significance of the answers which she gave in the course of that cross‑examination?
MR D’ARCY: Together with the other forensic evidence. I would not rest with that alone, your Honour. It would be my submission that the other forensic evidence was of great significance ‑ ‑ ‑
HIS HONOUR: If they accepted it. If the jury accepted it.
MR D’ARCY: It barely was challenged, in effect. Indeed, on reflection, I do not think it was challenged, in my submission.
HIS HONOUR: Yes. You see the point at which I struggle, I think, Mr D’Arcy, can be put this way, that the assessment to be made of the evidence that was given in‑chief, in cross‑examination and from other witnesses, notably the forensic witnesses, appears at first blush to be quintessentially a jury question and how can an appellate court on the cold words of the transcript, say, putting it a little tendentiously, if you will forgive me, that counsel’s cross‑examination had the effect which all counsel believe it has? I hark back to my own 20 years of experience and belief that my cross‑examination was effective. Strangely, others did not seem always to have that view.
MR D’ARCY: That may be one approach, your Honour, but at this stage the approach must be a different one because at this stage the Court is dealing with the question of the prospect of a special leave application succeeding and in this instance the real complaint is that the reasons are not set out. Whatever they be, they are absent from the judgment. If the court were to say what your Honour has just posed, that might be one thing, if the
court below had said that, that quintessentially it was a jury matter and on all the evidence, weighing it up, for this reason and for that reason, we would have our reasons then and the complaint I make would not be able to exist.
HIS HONOUR: Yes. As I understand it, you put the burden of your application or the weight of your application on this aspect of the application for special leave. Two questions that then emerge are, one, whether you have more to say about this aspect of the application for special leave; but, secondly, is there anything to which you would draw attention in the other grounds?
MR D’ARCY: No, I do not seek to do the latter, your Honour. Those other grounds have some substance, but perhaps not for this purpose, or this present purpose, if I can put it that way, and I do not have any further submission to make on the primary matter, your Honour.
HIS HONOUR: Yes.
MR D’ARCY: I have not addressed to your Honour the other issue that is set out in the outline, being the time spent in custody and the effect of that.
HIS HONOUR: For present purposes, I think, Mr D’Arcy, subject to what Mr Hicks may say, it seems to me the primary ground for debate is the one we have just traversed, but if Mr Hicks raises something, then you will have you reply.
MR D’ARCY: Thank you, your Honour.
HIS HONOUR: Perhaps it will be convenient if I deal now by hearing Mr Hicks. Mr Hicks.
MR HICKS: Thank you, your Honour. Dealing with this aspect of prospects of success at the leave stage, can I also refer your Honour to page 5 of the judgment of the learned President his Honour Justice Winneke at paragraph [7] on page 5:
I am also in agreement with Brooking, J.A. that there was ample evidence upon which the jury was entitled to find that the applicant had participated in an act of sexual penetration with the complainant.
Your Honour, in respect of the actual scope of the appeal, whilst it is certainly no answer to say that it was not the most powerful point brought before the Court of Appeal, certainly when his Honour Mr Justice Brooking dealt with the matter at page 44 it was clear that the court was really doing no more than stating the obvious. It was not a situation that required great elaboration.
His Honour Mr Justice Brooking, at page 44, said, “Look, I have looked at the various arguments in respect of the matter” and, in particular, those arguments in relation to the outline on behalf of the respondents highlight a number of very salient facts which clearly would have enabled the jury to be left in no doubt whatsoever that sexual penetration had taken place.
In particular, this was a situation where the complainant was a young 17‑year‑old girl, a virgin. She is in a situation that she said that she expected to feel something. She also indicated in particular and in clear‑cut terms, even after she had been cross‑examined about the fact that at the committal she had made this comment about, “I am only 90 per cent certain”, she said at the time, “There was thrusting movements. Of that I am absolutely sure of.” In particular, your Honour, she said that the applicant’s hands were up near her hip. It only left the penis as being the only other instrument which could have been used in that sexual intercourse.
Further, your Honour, that when the young girl, the student, got back to school two days later he, in fact, that is, the applicant, asked her as to – there is discussion about whether she, that is, the complainant, might have been pregnant, to which the applicant then said, “It would be best if you have a pregnancy test”.
The evidence was in one sense, once the evidence of the complainant was accepted, overwhelming that, in fact, sexual penetration had taken place, which no doubt had led the learned President to make the comment that he did, “there was ample evidence”, and his Honour Mr Justice Brooking to make the comment that he did, that there was ample evidence. It was not a matter which required great elaboration. He was really stating the obvious, that on this particular matter there was more than sufficient evidence for a jury to be well and truly satisfied, once they accepted her version of the matter, of sexual penetration. It did not require a great deal of elaboration. It was really stating the obvious.
HIS HONOUR: Yes.
MR HICKS: In any event, your Honour, even if for some reasons it was suggested that the reasoning was deficient, in my respectful submission, it certainly would not warrant a special leave where the facts clearly bespeak that there has been no miscarriage of justice in terms of ample evidence being of sexual penetration. One could gauge by the strength of the evidence it really required no more than a couple of lines out of the whole
of the 45 or 44‑page judgment. It was pretty obvious there was ample evidence once you accept the evidence of the complainant.
HIS HONOUR: Yes.
MR HICKS: There is no other matters, unless your Honour desires them.
HIS HONOUR: Yes, thank you, Mr Hicks. Mr D’Arcy.
MR D’ARCY: In response to that, your Honour, in my submission, the material taken as a whole demonstrates that there was not ample evidence of penetration. I mean, this is a situation where the complainant says that before this event she was a virgin and was so afterwards and she says that the point of penetration was past the hymen and, again, she says that stays intact following this event. Now, even that is an issue ‑ ‑ ‑
HIS HONOUR: I notice that one of the forensic witnesses referred to a case he had encountered of a 14-year-old girl who had had two terminations of pregnancy and whose hymen, on examination, was flawless.
MR D’ARCY: That was Dr O’Dell saying - - -
HIS HONOUR: Yes.
MR D’ARCY: Yes, that is right. That has to be read in the context of the other pieces of forensic evidence that accompanied this and the description of the complainant compared with the observation of the witness called on behalf of the defence about the accused’s penis and its size. In my submission, those are the very sorts of issues that require the court to deal with them and to say something about it other than to say there is ample evidence and nothing more.
This was a case where there was no recent complaint. There was no forensic evidence, in effect, supporting the complainant’s account. Her concessions changed as to the evidence she gave between committal and trial and, indeed, she, initially, regarded what she had said at the committal about the 90 per cent as something that was, in effect, suggested to her by counsel and recanted that eventually when it was put to her that it was in fact from her own words.
The whole topic of saying the accused’s hands were to be able to be seen at a higher point, thus, in effect, suggesting that the only penetration could have been with the penis was something that was new, that it first occurred at the trial; that it never emerged at committal or in an earlier statement. All of those were significant issues that demonstrated considerable inconsistency and of a type that needed to be addressed other
than by simply disposing of them in a throw-away line saying, “There is ample evidence.”
HIS HONOUR: How can an appeal court deal with those things, not having seen the witnesses? How can an appeal court attribute, for example, weight to particular inconsistencies or difficulties in the evidence?
MR D’ARCY: Well, it is always one of the great difficulties, your Honour, but it is, in my submission, no solution to dealing with them by ignoring them, and that is really what has happened. If it please your Honour.
HIS HONOUR: Yes, thank you, Mr D’Arcy.
On 5 May 2000, after a trial in the County Court of Victoria, the applicant was convicted of one count of taking part in an act of sexual penetration with a 16 or 17-year-old child to whom he was not married and who was under his care, supervision or authority. That offence against section 48(1) of the Crimes Act 1958 (Vic) was alleged to have occurred between 6 and 14 October 1993.
On 11 May 2000, the applicant was sentenced to six months imprisonment. He appealed against his conviction and against his sentence to the Court of Appeal of Victoria. Pending the hearing and determination of that appeal, he was, on 19 May 2000, admitted to bail. His appeal was heard by the Court of Appeal on 14 and 15 August 2000, and on 11 September 2000, the court dismissed his appeal against conviction and sentence. The applicant was taken back into custody and it follows that his sentence will now expire during February 2001.
On 27 September 2000, the applicant filed an application for special leave to appeal to this Court. He now applies for bail pending the hearing and determination of that application.
The applicant accepts that the application for bail pending special leave to appeal to this Court invokes an extraordinary jurisdiction of the Court. It is said that the power to grant bail should be exercised in this case because exceptional circumstances are established by a combination of two matters. First, it is said that bail should be granted in order to preserve from futility the exercise of this Court’s jurisdiction to grant special leave to appeal and, if leave were granted, to allow an appeal. Second, it is submitted that the applicant is likely to succeed in his application for special leave.
Argument on the present application proceeded on the assumption that the first of these two elements was established, and I am content to dispose of the application for bail making that assumption without examining it. The argument on the present application focused on the second of the matters to which the applicant pointed, namely, his chances of success in his application for special leave.
The application for special leave contains three grounds. Again, for the purposes of the present application for bail, the applicant placed chief weight on the first of those grounds which complains that:
The Court of Appeal erred in its approach to, and rejection of, the ground of appeal that the verdict is unsafe and unsatisfactory; and, in particular –
(a) the Court failed to give any, or any sufficient, reasons for failing to uphold the ground;
(b) the Court failed to carry out any, or any sufficient, independent assessment of the evidence;
(c) on the whole of the evidence the Court should have concluded that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt;
(d) the Court should have concluded that the jury ought have entertained a reasonable doubt as to the element of sexual penetration, particularly in light of the complainant’s evidence that she was only 90 per cent sure that she had been penetrated by the applicant’s penis; and
(e) the Court should have concluded that the jury ought to have entertained a reasonable doubt as to the element of care, supervision or authority.
As I have already indicated, the Court of Appeal reserved its decision. Substantial reasons for judgment were given by both President Winneke and Mr Justice Brooking. The third member of the court, Mr Justice Chernov, gave no separate substantial reasons for judgment, confining himself to stating his agreement with the reasons given by the President and Mr Justice Brooking.
Much of the reasons given by the President and Mr Justice Brooking were directed to the question that was agitated in the Court of Appeal about the element of the offence in section 48(1) of the Crimes Act that the child in question “is under his or her” – I interpolate the accused’s – “care, supervision or authority”. Further, particularly in the President’s judgment, some considerable attention was given to an argument concerning the application of what is customarily referred to as the rule in Browne v Dunn (1893) 6 R 67.
On the former question, concerning the expression “under the care, supervision or authority” of the accused, Mr Justice Brooking concluded that the trial judge’s charge to the jury “was too favourable to the applicant”: see Reg v Howes [2000] VSCA 159 at [72]. Mr President Winneke considered that the judge’s charge may have been too favourable in this respect: [2000] VSCA 159 at [6].
The applicant seeks, by his application for special leave to appeal, to re‑agitate both of these questions in this Court, but neither, as I have already pointed out, formed the focus of the present application for bail. That concerned the Court of Appeal’s disposition of the applicant’s argument that there had been a miscarriage of justice because, in the course of her cross‑examination about the evidence she had given about penetration, there had been the following exchange:
Q. Well, you only at best – you are only 90 per cent sure that it was his penis. Isn’t that right?
A. Well, I wasn’t looking.Q. Now, answer my question. At best you are only 90 per cent sure?
A. Yes.Q. So even on your account in your own mind there is 10 per cent doubt as to whether it was his penis?
A. Not really. I think – I think it was his penis. I don’t have any doubt in my mind.
Of course, as counsel for the applicant submitted, that exchange in the course of cross‑examination had to be considered both by the jury and by the Court of Appeal, having regard not only to the immediate context in which it was given but also having regard to all of the other evidence which was given at the applicant’s trial. That evidence included the evidence which the complainant had given in‑chief, which, it may be thought, amounted to unequivocal evidence of penile penetration by the applicant.
Further, evidence was given at trial by expert witnesses directed to whether the complainant may have felt no pain and may have been left with an intact hymen if the applicant had penetrated her in the way in which she had described.
Mr Justice Brooking in his reasons for judgment said, [2000] VSCA 159 at [82]:
The only other submission made in support of the ground was that a reasonable jury properly instructed ought to have had a reasonable doubt about sexual penetration. I have not summarised the evidence bearing on the issue of penetration. It is by no means confined to the direct evidence concerning the alleged sexual encounter at the flat. Although some further matters were mentioned in the oral argument, the burden of the applicant’s arguments and the Crown’s response can be ascertained from the written Outlines of Submissions, and this written record makes it unnecessary to summarise the arguments here. Having carefully considered the evidence as a whole and the arguments advanced on both sides I am of the view that the jury were amply warranted in finding the element of sexual penetration proved. This ground must therefore fail.
Mr President Winneke said, [2000] VSCA 159 at [7]:
I am also in agreement with Brooking, J.A. that there was ample evidence upon which the jury was entitled to find that the applicant had participated in an act of sexual penetration with the complainant.
The applicant contends that it is likely that special leave to appeal will be granted because, as he submits, the reasons given by the Court of Appeal do not reveal the basis upon which the court acted. That being so, it is submitted that, without more, a miscarriage of justice is established. Counsel submitted that a miscarriage would be established without regard to whether the evidence adduced at trial was, on proper examination, sufficient or insufficient to support the conviction, though he went on to submit that, in fact, the evidence was not.
The Court of Appeal has unanimously held, in its reserved judgment, that there was no appealable error at the applicant’s trial. In Chamberlain v The Queen [No 1] (1983) 153 CLR 514 at 519-520, Justice Brennan said:
But there is another factor of more general and more fundamental significance which militates against the granting of bail. Mrs Chamberlain challenges the verdict upon which her conviction and sentence are founded: if the verdict were to be set aside, the formal conviction and the sentence would be quashed, if the verdict stands, so must the conviction and sentence. To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately. In a serious case, where the prisoner’s custodial sentence depends upon a jury’s verdict (as it does when there is a conviction for murder and there is no discretion as to sentence) an application for bail before the verdict is set aside is in substance an application to suspend the effect of the verdict. To grant bail in such a case is to whittle away the finality of the jury’s finding and to treat the verdict merely as a step in the process of appeal. The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.
Of course, the present case can be distinguished in some respects from that in Chamberlain. This was not a case for murder in which a custodial sentence was automatic, involving no discretionary consideration. Nevertheless, the proposition that the central feature in the administration of criminal justice is the jury and “it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court” applies with equal force in the present matter.
I am not persuaded that the application for special leave that he has made enjoys such prospects of success as would warrant admitting the applicant to bail. Accordingly, the application is dismissed. I will certify for the attendance of counsel at chambers.
AT 10.24 AM THE MATTER WAS CONCLUDED
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