Iongi v The Queen

[1994] HCATrans 208

.~._

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B44 of 1993

B e t w e e n -

DAVID IONGI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Iongi 1 11/2/94

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.22 AM

Copyright in ·the High Court of Australia

MR S.E. HERBERT, QC:  May .it please the Court, I appear for

the applicant. (instructed by Gilshenane Luton)

MR B.J. BUTLER:  I appear for the respondent, with

MR J.R. HUNTER. (instructed by D. Field, Solicitor

to Director of Prosecutions)

MASON CJ: Yes, Mr Herbert.

MR HERBERT:  Your Honours, might I begin by stating that

this application involves an appeal against a

discretion exercise by the trial judge below as to
severing an indictment. It would therefore involve

questions of appealing against discretionary

judgments. The only support we have in the

judgments below is in the judgment of

Mr Justice Fitzgerald, the President of the Court,

who concluded that joinder in these circumstances

is in breach of what was laid down in de Jesus.	If
I could refer Your Honours to page 15 of the record, at line 31.

Put simply, there was a long history of sexual

misconduct on the part of the applicant towards the

complainant, and whilst views may have differed at

some stage, there was no point taken below and

therefore no point taken here, that all of the

evidence concerning the nature of those sexual
contacts was admissible. That concession was made

below and so the act itself, which was the subject

of count 2, was conceded to be admissible in

respect of count 1, and vice versa. This was on

the basis that this evidence was evidence of the

nature of the relationship between the parties and

was therefore admissible.

Now, the only evidence inadmissible upon

count 1, but admissible upon count 2, was the

evidence of fresh complaint in respect of count 2.

There was no other inadmissible evidence.

fresh complaint was not the subject of specific The

direction but it is necessary to say at once that

no direction was sought below by counsel then

representing the applicant for the learned judge to

give any direction concerning such a complaint.

McHUGH J:  But has that really got anything to do with the

special leave question which is raised?

MR HERBERT:  It may be relevant to the exercise of

discretion by this Court if the point was not taken

below.

TOOHEY J:  I am not clear what the special leave point is,

Mr Herbert, and if you look at the notice of

Iongi 2 11/2/94

appeal, the draft notice, and without trying to

scrutinize it over-scrupulously, it asserts that:

The Court of Appeal erred in failing to hold

that the learned Trial Judge had erred in

failing to direct separate trials, in that

evidence admissible only upon Count Two was

led at the trial of both Counts One and Two, and there was no direction to the jury as to the admissibility of that evidence -

which really seems to amount to saying nothing more

than that there would have been no error had the

trial judge given the jury a direction as to the
use they could make of the complaint in respect of
count two as regards count one, namely that they
were not to use it for that purpose. If that is

all it is about and the trial judge was not asked

to give that direction, where are you?

MR HERBERT:  I am at the point where I say that I have

difficulty taking the application much further.

McHUGH J:  Your problem is the concession that has been made

below.

MR HERBERT: With that concession I have put the submissions

I can, may it please Your Honours.

MASON CJ:  Thank you, Mr Herbert. The Court need not

trouble you, Mr Butler.

The Court is not persuaded that the decision

of the Court of Criminal Appeal is attended with sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 11.36 AM THE MATTER WAS ADJOURNED SINE DIE
Iongi	11/2/94