ITA v The Queen

[2004] HCATrans 96

[2004] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S449 of 2003

B e t w e e n -

ITA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 12.09 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the appellant.  (instructed by Jeffreys & Associates)

MR G.E. SMITH:   If the Court pleases, I appear for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   The special leave point in this case is really the conflict between this case, which was rather unimportant previously, but, having been decided by the Court of Criminal Appeal, it is directly conflicting with the decisions of Piazza and Zorad.  Rather in relation to what was a fair trial at law, the situation in relation to Piazza, which was set out in the summary, was, at page 460:

“A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence.”

A respectful body of longstanding authority was cited for that proposition.  It is a proposition which has been re‑stated many times since.

The obligation asserted by that longstanding authority was maintained by subs(3) of s405AA –

that is now section 99 of the Criminal Procedure Act –

The trial judge must still present to the jury the issue of the fact which they have to determine.  The judge did not comply with that obligation in the present case, and the consequences of that failure have been such that the appeal must be upheld.

So in that case it is a must, really.  In this particular case, of course, there was no compliance with that at all.  This trial had really commenced on 12 August and it went until 28 August, when his Honour apparently went into hospital for about a week or so, and then it was resumed on 9 September.  The complainant had given evidence from 13 to 16 August and the summing up by his Honour was on 13 September, which was about a month later. 

Now, in relation to the matters here which were of importance, in relation to count 1, there was an allegation of a different type of sexual assault and there was the question of the consent, which is a difficult question, usually, in any case.  Then there is the question of knowledge in relation to it.  His Honour, really, in relation to consent, did not say anything other than, “You all know what consent is”, practically.  He then put, in relation to that, the Crown case only.  He did not put anything other than, “It was denied”, and that counsel had said it was apparent from the facts that she was consenting.

GLEESON CJ:   It was a pretty stark issue that was presented to the jury for consideration.  The defence case was that she was a prostitute who had been paid for her services.  There is not any elaborate law involved in resolving that issue, is there?

MR PAPAYANNI:   No, but, of course, in relation to the question of consent, the Crown still had to establish that there was no consent, and also the knowledge.  All the judge said was, well, you look at what is in the mind of the accused ‑ ‑ ‑

GLEESON CJ:   Of course, the Crown had to prove that she was not consenting, but was there some intermediate factual situation, reasonably available for consideration by the jury, in between the prosecution case and the evidence of the complainant about what happened to her and the defence case, which was that she was a prostitute being paid for her services?

MR PAPAYANNI:   There was the question of her conduct and that was relied on to a great extent.  The difficulty about this case is that it should have been a separate trial in relation to the offences in relation to the other person, because you cannot charge two people with separate offences in the one indictment.  That point was taken and refused by the Court of Criminal Appeal because it had not been taken below.  When it came to the situation in relation to the fourth count – the fourth count was an allegation of attempting to pervert the course of justice by the very fact of the defence of the applicant in this case, and that was that she was entitled to get somebody else to say or confirm what he said in relation to the fact that she was a prostitute.  Of course, that was devastating in relation to the applicant.

Now, there was nothing given in relation to the facts in relation to consent.  The situation was that she was in a house, there were two other people there, she did not make any outcry, she was not assaulted physically in any way, she went and had a shower, and all those sorts of things.  Her complaint – she had rung somebody, her boyfriend, she had lied to him as to where she was going, and so on.  All these matters there showed that, in relation to the facts themselves, she was consenting.  The situation in relation to it was that his Honour then also had been given the facts in relation to “in company” and, of course, in relation to “in company”, the Court of Criminal Appeal set that aside as it was unsafe and unsatisfactory.  If the facts had been given in relation to that, his Honour would then have had to tell them what the law was in relation to it.  So you get a situation here where nothing was said at all.

The Court of Criminal Appeal relied upon section 99 of the Criminal Procedure Act, which has no relevance at all.  It deals with the summary of evidence.  In future, if in this type of situation a judgment says, “A fair trial, according to law – in my discretion, I do not have to give any of those matters in Piazza consideration at all” and leaves it at that – a fair trial at law is not a matter of discretion for the judge.  That is what it was in this case and this is what the Court of Criminal Appeal upheld.  To show how wrong they were, in effect, the jury came back and said, “Can we have a copy of the Crown’s address?” and asked for a copy of the transcript in relation to the other witnesses.

Of course, they were not supplied with a copy of the transcript of what the Crown said, although there has been a recent case in which they say that they can.  We are not complaining about that.  But his Honour had said, look at what the Crown has said, look at what counsel for the accused has said, and they had not made any mistakes of fact. The Court of Criminal Appeal said, there is no complaint about what his Honour did, but, when you look at the situation here, you get nothing at all.  In fact, his Honour mentioned the Crown case and what they did, but made no mention in relation to consent other than to say that it was obvious that she was consenting.

In relation to knowledge, only the Crown case was put, except to say what was in his mind at the time.  Then you have “in company”.  No facts were given in relation to that, and that was set aside.  So that shows, obviously, that he did not get a fair trial according to law, and the law is as set down in Piazza.  It is a lack of communication, really, because if the judge had come back and said, “Look, I do not feel up to it, I have been in hospital for a week.  Do you want a discharge?”  But nothing of that kind went on.  His Honour went on, made mistakes in relation to the facts, which were corrected, and gave nothing at all as to the law in relation to the facts.

The facts, of course, in a case of this kind in relation to consent are very difficult to prove, usually, where there is no resistance or just token resistance, and then no substantive complaint at the time.  The situation there really was obvious to the jury.  They got no assistance whatsoever in relation to determining this matter or these counts according to law.  The fact that section 99 was made applicable was an error of law in relation to this matter, which is going to be followed in future.  We are going to get in

the future something of that kind, where you ask a judge to give the facts in relation to the ingredients that are there and he is going to say, “Oh, well, section 99 applies”, and it does not apply.

Here, the Court of Criminal Appeal is wrong in law, and, by reason of that, all the cases cited by the Court of Criminal Appeal have no relation at all to what was said in Piazza.  The cases – your Honour is quoted in certain of them – the one of Sanderson was in relation to corroboration, and Condon and so on.  None of those were in relation to the essential elements of a fair trial at law.  It was cited to the Court of Criminal Appeal, Piazza’s Case.  It was not cited in their judgment.  They took no notice of it, just ignored it, and it was directly in point in relation to this matter.  Not only that, of course, his Honour made no attempt to give the evidence in relation to each count.  He was reminded by counsel that count 4 was in relation to the co‑accused – if we can call him that, because he is on the same indictment – and he said, “The applicant is not involved”.  But he did not say the evidence was not admissible, because they could still have used it.  There should have been a warning then to the jury to say, “You cannot use that in any way whatsoever against the applicant”. 

The same applied to the second count in relation to the other accused, and that was that there was corroboration in his case, medical DNA corroboration.  There was no corroboration of any kind in relation to the applicant and the jury could have used that corroboration in relation to count 2 to support the fact that the complainant was telling the truth in relation to count 1.  A very strong warning should have been given in both cases that this could not be done.

In relation to that, you have a situation that here there is undoubtedly a wrong application of section 99.  It is going to be followed in the future and it is going to be used as an authority against setting out, according to Piazza, the full defence in relation to the facts and the law in relation to those facts.  The applicant here has not even had the semblance of a fair trial at all.  In future, this case is going to be used to say, “It does not matter.  It is obvious what the issues are, it is unnecessary to do this, it is unnecessary to give the facts”.  This is a situation which, in future, in my submission, should not be tolerated.  Thank you. 

GLEESON CJ:   We do not need to hear you, Mr Smith. 

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed. 

AT 12.23 PM THE MATTER WAS CONCLUDED