Ik v The Queen

[2005] HCATrans 432

[2005] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A64 of 2004

B e t w e e n -

IK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 JUNE 2005, AT 11.58 AM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear for the applicant.  (instructed by Michael Woods and Co)

MR P.F. MUSCAT:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

MR PEEK:   Your Honour, the applicant does require a short extension of time.  I understand that my learned friend consents to that, and I apply for that - something just under two weeks, I believe.

GUMMOW J:   Yes, you have that leave.

MR PEEK:   Thank you, your Honour.  Your Honour, if I can say this first that we submit that this is a particularly good vehicle in which to consider the difficult question of the extent to which uncharged acts need to be proved in a case such as this.  It is a case where the point was fully taken before the trial judge.  Indeed, submissions were made before his Honour’s summing‑up and that is acknowledged by the Court of Criminal Appeal.  There are no suggestions in this case of tactical decisions, et cetera.  The appellate proceedings were carried forward very promptly and there was full consideration of this matter in the Court of Criminal Appeal.

So you have the full views of the Court of Criminal Appeal but, of course, you are immediately faced with the situation that up to the time of the decision of this honourable Court in Gipp, the settled law in South Australia was that uncharged acts had to be proven beyond reasonable doubt and the jury had to be very clearly told of that before any use could be made of them.  That appears in such cases as R v R and the cases referred to therein including such cases as Peake and indeed, earlier than that.

Now, subsequent to Gipp the Court will note that there are decisions either way.  Sciberras is, of course, a case favouring my learned friend, but the other case in the booklet for the applicant of R v Clifford, once again held, but without Sciberras being cited therein, that one needed proof beyond reasonable doubt.  So it came to be, if it please the Court, that in this case the matter was fully ventilated, but we submit that there is still very much a question of real doubt on the matter and, of course ‑ ‑ ‑

GUMMOW J:   Do you quarrel with the formulation by the Chief Justice at paragraph 69 on page 71 of the book, where he encapsulated four propositions.

MR PEEK:   Thank you, your Honour, I have that.  Your Honour, if his Honour is saying or anticipating by the words “not the surrounding facts and circumstances” we would take issue with that in a case of this kind where uncharged acts are taken to be part of the surrounding facts and circumstances.

We would say that that is the correct law and I will be coming to the case of Gipp in a moment.  So we would say that when his Honour then goes to the second, one does not have to comply with such a high standard in this type of case but that, of course, in any event, we would say that such uncharged acts are in fact facts or circumstances of such significance that they should be proved beyond reasonable doubt.  Of course, we agree:

that particular care is called for if the evidence is to be, or might be, used to support a form of propensity of tendency reasoning.  The fourth is that, trial judges should avoid confusing juries by introducing reference to differing standards – 

with which, of course, we agree, on the basis that the sole standard of proof in a case of this sort should be proof beyond reasonable doubt.  So obviously your Honour can see that I do not, as it were, give a blanket yes or no to the whole of that paragraph.

I wonder if it would be useful if I took your Honour first, without going right through, of course, to the directions of the trial judge which appear at pages ‑ ‑ ‑

GUMMOW J:   I am just trying to isolate the special leave question without getting down into minutia at the moment.

MR PEEK:   Yes, certainly, your Honour.  The question we pose ‑ ‑ ‑

GUMMOW J:   Is the special leave point encapsulated in your draft notice of appeal at page 100?

MR PEEK:   Yes, your Honour, I believe so, and more particularly as set out at page 102 at paragraph 1 where we say the special leave question is whether the judge presiding at a trial for a sexual offence is required to direct the jury that before they can take into account any “uncharged act” they must first be satisfied beyond reasonable doubt that it had occurred.

We say that gives rise to the special leave point (1) against the background of the conflicting decisions on this very matter in South Australia, it being remembered that all of these decisions of the Court of Criminal Appeal were each only a Bench of three.  There has not been a Bench of five which is purported to overrule such cases as R v R which specifically decided that the standard was beyond reasonable doubt and the jury had to be so directed.

CALLINAN J:   Is there support for what you are putting in what Justice Gaudron said in Gipp?

MR PEEK:   Yes, your Honour.

CALLINAN J:   Which I think is accurately summarised in the headnote at paragraph (2), attributed to her Honour:

The direction that the history of sexual abuse need not be proved beyond reasonable doubt was erroneous because it left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship –

That is really this case on your submission, is it not?

MR PEEK:   Yes, it is, exactly so, and what I wanted to do immediately was to go to that passage which is at paragraph 21 at page 115, which you will find in my learned friend’s table of cases, and of course, I go to that because that it is the first judgment in Gipp, and it is not necessary for me to read it, your Honour having just done so, but it is that last part ‑ ‑ ‑

CALLINAN J:   The problem about Gipp is that the members of the Court approached the case in different ways.

MR PEEK:   Yes, they did.

CALLINAN J:   Two Judges dissented and her Honour took this view – I treated it as a propensity case, if anything – and the other majority judgments, I think took a different line again.

MR PEEK:   I wonder if your Honour would let me just have a couple of minutes to go through those particular passages in those judgments because I agree that that is very important.  Could I take you to the judgment of ‑ ‑ ‑

CALLINAN J:   It is probably enough for your purposes on this point, I think.

MR PEEK:   That there is a difference in the approach?

CALLINAN J:   Yes.

MR PEEK:   Yes, well, that is one thing we are certainly putting.

CALLINAN J:   That point, whether it is good or not, I think you have made it.  Are there other points?

MR PEEK:   That is certainly the main one.  Your Honour does not want the precise page references in the various judgments?  Clearly your Honour is aware of them.

CALLINAN J:   I think we know the general subject to what the presiding Judge says, anyway.

MR PEEK:   I will not do that then.  Can I just make one point about the judgment of Justice McHugh and Justice Hayne because it is very important in relation to this particular case.  Can I take you very briefly to page 134 paragraph 81, and can I just read the last seven lines of that paragraph if I may where their Honours say:

Propensity evidence of that kind usually concerns crimes or wrongs committed against the person or property of a person other than the person whose property or person is the subject of the crime charged.  It usually disadvantages the accused by introducing evidence from a third person which corroborates the complainant or by revealing that the accused – 

et cetera.  Now, your Honours will already be well aware that that is a particular matter of concern in this case because not only was the complainant saying there had been, as it were, to use her words, heaps of previous occasions of sexual interference, as it were, and you will see the evidence of that set out at page 113 of the application book, but she also said that there had been a large number of times in which she had been shown pornography by the accused.

Now, the trial judge used the showing of pornography to go to a so‑called sexual relationship and thence to proof of the offence.  Now, the point here, of course, is that it was suggested that shortly before – that is to say, the day before the last of the charges ‑ ‑ ‑

CALLINAN J:   That one of her friends had been taken there.  Is that taken ‑ ‑ ‑

MR PEEK:   Yes, that is right.

CALLINAN J:   Look, I do not think their Honours were necessarily saying that you could only have propensity evidence if a third party were involved?

MR PEEK:   No.

CALLINAN J:   Their Honours were merely making an observation about the most likely situation or the most common situations of propensity evidence.  I took a different view, in any event, that this was, if anything, propensity evidence.  So I do not know whether this adds anything really.

MR PEEK:   It may not, your Honour.  If I could just add a sentence there to wind that up then, that we are saying that it is a very dangerous situation, and the type of danger to which their Honours ‑ Justice McHugh was adverting that when the Crown pray in aid the evidence of the two friends who say, “We were shown pornography”, that then tends to introduce a line of reasoning, well, therefore she is to be accepted on this evidence that she was shown heaps of pornography and that goes to relationship.

CALLINAN J:   What you have not dealt with, however, is whether you would be likely to succeed on the miscarriage of justice aspect of the matter.  There was DNA evidence, was there not?

MR PEEK:   There was, but that was entirely consistent with the evidence on oath given by the applicant, your Honour, and it must be ‑ ‑ ‑

CALLINAN J:   Yes, except that Chief Justice Doyle made the point, however, that there was a matter that the complainant could not have known about.

MR PEEK:   The first point is that there was never any DNA found at the site of any of these samples emanating from the complainant which one would have thought one would have found, if in fact her story, as distinct from his story, was correct.  There are various other discrepancies with the Crown case apropos that and, of course, the complainant agreed, your Honour, that she had in fact been told by the applicant of this difficulty that he had with his penis and the Court is aware of that in general ‑ ‑ ‑

CALLINAN J:   I was not only thinking of that, I was thinking of the towels and where they were found and Chief Justice Doyle’s point about it that it was not something that the complainant would have been likely to know about had the events not occurred as she said they did.

MR PEEK:   Your Honour, she was living there, of course, at all relevant times and may well have taken the opportunity to watch and observe certain things.  The point is that, as his Honour Chief Justice Doyle found, there were many, many indicia going to a very big question mark against her credibility and reliability.  The Court will remember that in fact when she was on the backfoot in relation to her position at school completely made up a story of a pregnancy, which was always completely false, and then when she was locked into that, she made up the story of my client punching her in the stomach, thus terminating the pregnancy, all of which was a just complete tissue of lies.

Now, there was substantial evidence that these two girls, her friends, who were around that night and who supported her on being shown pornography had often supported her in various lies at school in relation to truancy and a whole host of other things, alcohol, et cetera, et cetera.  These were practised liars and therefore correct directions as to proof beyond reasonable doubt was absolutely critical, because if for example that direction had been given and the jury thence had a doubt as to the veracity of the two girls – and I am not naming them – who came around and saw the pornography, that may have made a very big difference to this chain of reasoning that was being offered to the jury that you can find that the pornography was shown by reference to the supporting evidence of those girls, that goes to establishing a sexual relationship which in turn rebounds to prove these charges.

So that is how I answer your Honour Justice Callinan.  It would have had a completely different complexion in the witness box apropos those visitors and the complainant herself, given as I say, that the Chief Justice recognises that this was an evenly balanced case in which there were very worrying aspects of the story of the complainant.  I will not go through those because the Court is aware of them.

GUMMOW J:   Yes, Mr Peek, we will hear from Mr Muscat now.

MR PEEK:   If your Honour pleases.

MR MUSCAT:   If it please the Court, the starting point in my submission is to articulate the purpose or relevance that the evidence of the uncharged sexual conduct is said to possess, because depending on its purpose or use will the answer be found as to the standard of proof for that evidence.             Now, unlike Gipp v The Queen, in this case there was a clear direction by the trial judge as to how that evidence was to be used and more importantly how it was not to be used.

GUMMOW J:   Where do we see that?

MR MUSCAT:   Yes, your Honour will find that at page 12 of the application book, page 8 of the summing‑up.  Indeed, the second paragraph, the learned trial judge commences:

Let me tell you something, and direct you, as to how that evidence can be used.  You can only convict the accused of any count on which he is charged, and which has been identified in the evidence, and which is the subject of a count.

So plainly, right from the beginning, he is saying to the jury, you can only use the evidence the subject of the count as proof beyond reasonable doubt, and then he explains that because there were all these other uncharged acts floating about for which he has not been charged that if there is still a reasonable doubt in the jury’s minds as to any of the charged conduct that they would find him not guilty because they would have a reasonable doubt.  They must not reason from the uncharged conduct that he must be guilty of something, and he tells them that that would be highly inappropriate.  Then he reinforces about line 20:

He can only be found guilty if he is found guilty of a particular count.  You see, the purpose of that evidence being led with which he has not been charged is that it is very difficult for you to understand and appreciate all of the evidence, unless you get the whole picture.

It is really in that fourth bulk paragraph, if you like, that he explains to the jury the ‑ ‑ ‑

GUMMOW J:   I am sorry, which paragraph is that, Mr Muscat?

MR MUSCAT:   This is page 12 of the application book.  It was the fourth paragraph, probably line 23 commencing:

You see, on any version of the facts, these two people knew each other ‑ ‑ ‑

CALLINAN J:   It is the whole paragraph, is it not, really?

MR MUSCAT:   It is the whole paragraph where he explains to the jury the purpose of the uncharged acts but tells them that they are in no way to use it by way of finding that if he has committed the uncharged acts that he is therefore likely to have committed the charge conduct, and he uses very clear simple language the jury could understand:

‘Where there is smoke there is fire’ –

in other words:

you must not say, ‘Where there is smoke there is fire’, you must not say ‘I can find him guilty of something’, even though the elements of any of these counts have not been proved beyond reasonable doubt.

That is a very apt description.  A jury would clearly understand how they are to use the evidence, but more importantly, your Honours, how not to use the evidence, and that was the problem in Gipp.  The trial judge in Gipp and the real ground of appeal in Gipp was the failure of the trial judge there to explain to the jury how not to use the evidence, and because the trial judge

did not explain how not to use the evidence, it was open that they may have used the evidence to reason that he was guilty of the charged accounts.

CALLINAN J:   Mr Gipp was convicted in Queensland of rape after a trial that lasted about two and a half hours, the most perfunctorily conducted trial I have seen.

MR MUSCAT:   Be that as it may, your Honour, it is the lack of the proper direction that led to that appeal being allowed, and more so, because the trial judge in Gipp said to the jury that they did not have to be satisfied beyond reasonable doubt about that evidence, so you had two problems.  You had the trial judge not explaining to the jury in Gipp how not to use it, and moreover that they could rely upon that evidence other than beyond reasonable doubt, and hence the Court found that the jury could have reasoned from that that if they found the uncharged acts proved then that would then lead to the accused in Gipp being guilty of the charged conduct.  That is how Chief Justice Doyle explained the reasoning in Gipp and the various pronouncements of the different judges in Gipp regarding their analysis of the burden of proof.

Now, in this case the Court of Appeal comprehensively dealt with this issue of what is the standard of proof required before the uncharged conduct can be used, and the Chief Justice’s judgment and indeed, Justice Vanstone’s judgment are very clear in that unless the jury is to be asked to infer from the uncharged conduct that the accused is likely by that conduct to have committed the charged counts then unless it is in those rare circumstances, then proof beyond reasonable doubt of other facts is not required.

Chief Justice Doyle articulates the four principles that your Honour Justice Callinan pointed out to Mr Peek at page 71 of the application book, paragraph 69 of the judgment.  Those four propositions are all correct in principle and in this case the trial judge made it absolutely clear to the jury that it is the charge that needed to be proved beyond reasonable doubt, how to use the uncharged conduct and most importantly – and I keep coming back to this – how not to use the uncharged conduct, because it is the use to be made of the uncharged conduct that ‑ ‑ ‑

GUMMOW J:   We do not need to hear you any more, Mr Muscat.  We will hear Mr Peek in reply.

MR PEEK:   If it please the Court, this is really not so much a case about how to use the uncharged conduct, but whether they are to use it at all in the sense of the level of satisfaction that they must come to before they can use it.  So my learned friend is really not addressing the special leave point upon which we rely in that regard.  Now, following the case of Gipp, at

page 108 of the application book in Penney v The Queen, your Honour Justice Callinan made certain remarks as to the level of proof in relation to an accused’s motive.

Now, that case of course was after Shepherd I should emphasise and we say that that links together with Gipp to present this Court with an important question as the way in which one determines when matters other than the precise charge which are relevant to the charge have to be proven beyond reasonable doubt.  Now, of course, we are not talking about motive in this case, but we are talking about, we say, even more dangerous matters, namely, uncharged acts, be it the sexual acts or be it the showing of pornography in this particular case.

So we group together those decisions and we say that in Gipp Justice Kirby in fact was quite close to the decision of Justice Gaudron in finding the importance of the non-direction in that case if one traces through his Honour’s judgment at pages 155, 157 and 158. So that you had Justices Gaudron and Kirby really on one side and their Honours Justice McHugh and Justice Hayne on the other with Justice Callinan taking a somewhat different approach.

So we say that my learned friend’s submissions as to adequacy of directions as to use are none to the point.  This matter of level of satisfaction is a matter that is subject to strikingly conflicting decisions in South Australia, each of the level - the same level on the hierarchy that the matter is therefore not in full analysis being settled in South Australia and is a continuing state of uncertainty, we say, with respect, in the High Court jurisdiction.  In those circumstances, because the matter has been fully and properly ventilated below, because this matter is in fairly short compass, there is not a great deal of transcript, and because the matter is starkly presented here, it is a very convenient vehicle.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Peek.  We will take a short adjournment.

AT 12.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.29 PM:

GUMMOW J:   The applicant contends that special leave to appeal should be granted in this case to enable the Court to resolve asserted differences in the reasoning of the Justices comprising the Court in Gipp v The Queen (1998) 194 CLR 106. However, this case is to be distinguished from the case that was before the Court in Gipp.  Unlike the situation in Gipp, the trial judge here warned the jury as to the limited use to which evidence of uncharged acts could be put, and their significance and relevance.  The trial judge told the jury that they had to be satisfied beyond reasonable doubt of the charged acts, upon which they should focus.

Accordingly, the ground upon which special leave is sought has insufficient prospects of ultimate success to warrant a grant of special leave and special leave is refused.

AT 12.30 PM THE MATTER WAS CONCLUDED