Jones v The Queen

[1996] HCATrans 366

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 1996

B e t w e e n -

MARK RODNEY JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 9.30 AM

Copyright in the High Court of Australia

MR T.J. ELLIS:   May it please the Court, I appear for the applicant. (instructed by Clarke & Gee)

MR D.J. BUGG, QC:   May it please the Court, I appear for the respondent, with my learned friend, MR D.G. COATES. (instructed by the Director of Public Prosecutions (Tasmania))

GAUDRON J:   The Court is of the view that it would be assisted if Mr Bugg were to commence the argument.

MR ELLIS:   If it please the Court.

MR BUGG:   Yes, thank you.  Your Honours, the outline of argument which has been submitted by the respondent details in summary reform the response to the special leave points made by the applicant.  Have your Honours received those documents?

GAUDRON J:   Yes, thank you.

MR BUGG:   Thank you.  In summary form then, your Honours, the response, by way of outline, to the special leave points which have been made by the applicant, is that firstly the directions, according to the Lillyman decision, have been held by a majority of our Court of Criminal Appeal in Tasmania to be applicable and therefore that the learned trial judge in this case erred in not so giving those directions.

KIRBY J:   Now, let us get this clear; may I just ask you this.  My understanding of the principle is that, for the purpose of determining what the Court of Criminal Appeal decided, you disregard the dissenting judge and therefore, though in his reasons Justice Slicer agreed, he was dissenting in the result, so that amongst the majority you have the division of opinion between the presiding judge and Justice Wright.  It is not a very satisfactory way to lead the principle, because I understand you do not support what Justice Wright said.

MR BUGG:   No, I certainly do not, your Honour, that is correct.  I accept what your Honour says but I suppose in trying to distil the ultimate resolution of this matter by the Court of Criminal Appeal, the consideration of this particular issue by Justice Wright is not one of a blanket rejection of the application of the Lillyman principle, but rather one of saying, in the particular circumstances of the case a Lillyman direction was not required, and I highlight ‑ ‑ ‑

KIRBY J:   Have you seen the decision of the Court in Crofts?

MR BUGG:   No, I have not, your Honour.

KIRBY J:   That is, I think, in the latest part of the Australian Law Reports - and the Court revisited Kilby a couple of weeks ago and emphasised the importance of adhering to the principles that were there stated.  I think that that is the latest word on this.  It does not help you.

MR BUGG:   Yes.

GAUDRON J:   It comes down to the question of the application of the proviso, does it not, Mr Bugg?

MR BUGG:   Yes, it does, your Honour, and I certainly would not seek to water down the importance of the application of the Lillyman principle and I have not sought to do so in the outline of submissions.  In so far as the application of the proviso is concerned, it seems to me that the question on a special leave application for serious consideration is whether or not the application of the proviso in this particular case effectively makes a Lillyman direction unnecessary and, therefore, would give rise to the unfortunate situation of saying, “Well, if a Lillyman direction is not given, then the proviso will apply in any event, therefore, a Lillyman direction is not necessary.”  I have tried to isolate this particular matter to the circumstances of the case and I have highlighted - - -

GAUDRON J:   Why would there not have been a chance of acquittal that was fairly open if a proper direction had been given in this case?

MR BUGG:   Well, your Honour, in so far as a proper direction is concerned it would merely have reinforced the debate which had gone on between the Crown and the defence during the trial as to the motivation of the complainant in making the complaints that she did.  In other words, the defence position being one that these were untruthful complaints put forward to avoid a confrontation with her boyfriend.  From the Crown’s point of view‑ ‑ ‑

KIRBY J:   That is a dispute between counsel.  We are talking about the instruction by the judge to the jury which convention tells us is something that is taken more seriously than the utterances of mere barristers.

MR BUGG:   Well, far be it for me to try and say otherwise, your Honour.  As far as this particular matter is concerned, the position the Crown takes and has taken throughout is that this evidence was only ever adduced to buttress the credit obviously of the complainant but, in all the circumstances of this case, I must say that I tried to envisage a basis or circumstance in which the jury may have inappropriately, or impermissibly, used the evidence which was adduced and I find myself in agreement with the majority in so far as that is concerned, that there does not appear to be any logical alternative basis upon which the jury could have used this material other than to buttress the credit of the complainant.

KIRBY J:   The theory is that they might have taken the view that because it was said that complaints were made and because that was proved that that necessarily proves that the complaints are true, and this is the important distinction.  That because a person makes a complaint does not mean that what they are saying is true, and this is the important distinction that the authority of this Court requires to be made and brought home by judicial authority to a jury. 

MR BUGG:   Yes, I accept that position, your Honour.

KIRBY J:   I mean, this is a strong Crown case.  There is no doubt about this.  It is a strong Crown case, and the point of the proviso, as Justice Gaudron has said, is really the only point in this application, but a person is entitled to have a trial according to law and this Court has said repeatedly and recently that this distinction is important, and it was not made - the accused did not have a trial according to law.  The only question is whether we should say because it is a strong case that that did not really matter in the circumstances, or will be overlooked on this occasion.

MR BUGG:   I suppose really, your Honour, in summary, what I have tried to say in the outline of submissions is that if one applies the Mraz principle and says, “If a correct direction in law had been given to the jury, would the outcome, in this particular case, have been any different?”

GAUDRON J:   “Might the outcome have been any different?”; not “would”, “might”.

MR BUGG:   Yes, I accept that, your Honour.

McHUGH J:   In Lillyman itself, Mr Bugg, Justice Hawkins said, in effect, that the problem with the complaint was that the jury would be apt to treat the complaint as evidence of the facts complained of.  I know there are, at least to modern mind, some difficulty about the logic of this problem when the direction is not given, but if your submission is right, would it not be the case, in just about every case, that you could apply the proviso if there was a failure to give the direction?

MR BUGG:   I think not, your Honour.  I mean, firstly, this evidence was certainly not being used in any way in a corroborative sense; there was no dispute from the defence that the complaints were made.  The only dispute from the defence as to this evidence was the motivation from the complainant in making the complaints, so that, squarely from the first moment this evidence was adduced, the proposition became one before the jury of the complainant was lying when she made these complaints to cover up for a consensual act of intercourse.  Now that is quite a different situation, in my submission, and would arise in many cases, and it was that specific situation which certainly turned the mind, it seemed to me, of Justice Underwood and, to a lesser extent, Justice Wright, in the majority, and I could envisage a number of instances where obviously the facts would differ greatly and I know Justice Gaudron, I think it was, in M v The Queen, which is not in the list of authorities, indicated that it is inappropriate to try and generalise, certainly in situations such as this, and you must look at the particular circumstances of the case. 

I could envisage many rape prosecutions where recent complaint was made but the circumstances, either as to the strength of the case, the basis upon which it was treated during the trial process and its overall importance to the ultimate decision for the jury, would vary greatly to that which occurred in this ‑ ‑ ‑

GAUDRON J:   But ultimately it is a case about credibility, and this case has said on may occasions that where it comes down to credibility, then the proviso is not properly applied if it has the effect of either reducing the accused’s credibility or enhancing that of the complainant.

MR BUGG:   In this particular instance, I would submit that the circumstances of the case correctly place this evidence in that area of credibility and credibility alone, which of course is the only permissible way it could have been used by the jury and, in those circumstances, the findings of the majority as to the application of the proviso, in my submission, are correct, that, if that is the only basis upon which it was used and could have been used, or might have been used by the jury ‑ ‑ ‑

GAUDRON J:   No, it might have been used on the basis that she complained, therefore, it happened; rather than, she complained and she has given a consistent account and we can take that into account in establishing her credit.

MR BUGG:   She complained and therefore what she told us is true; it is splitting straws, but it seems to me, with respect, your Honour - it is unavoidable, as far as I am concerned; I cannot see any other basis upon which that material could be used or might have been used.

KIRBY J:   The judicial instruction does, however, have the advantage of calling to the mind of a lay jury that not every complaint is going to be truthful and requiring them to differentiate between the complaint as going to the consistency of conduct and the credit of the complainant, as against what actually happened, and that is not an unimportant distinction, because some complaints will be false, or they will arise out of embarrassment of being found with cuts and grazes with social friends and a complaint might be made that is not true, so the fact of the complaint does not necessarily prove the truth of the offence; that is the important distinction that has not been called to the jury’s mind in this case and it is a distinction which long established law, and recently restated law, requires to be drawn to notice.

McHUGH J:   I can well envisage jurists saying to themselves outside in the jury room, “Of course it happened, she made a complaint straight away”, and they used the complaint then on the question of probability rather than on credit.

MR BUGG:   The question the jury, at that point, your Honour, would be considering, would be the question of whether or not the account she had given in the jury box was truthful and in support of that proposition in terms of its determination as a real issue in the trial, of course, was the consistency of her conduct following her emergence from the laneway.  It is putting it a different way, I realise, but that seems to me to be the only basis upon which the jury could, in the circumstances of this case, come with that particular evidence.  Then you say, “What might the outcome have been if there had been a correct direction in accordance with Lillyman?”, and the circumstances of this particular case, in my submission, would have resulted in the jury being confronted with, first of all, the factual account given by the complainant and then, obviously, the consistency of her conduct as bolstering her credit.

Now, quite plainly, if one examines what Justice Wright says, there was the question left to the jury in this case of honest and reasonable, but mistaken belief; they clearly rejected that.  Her complaint was one of rape, but also later attempted anal intercourse; they found that complaint true.  The jury, in this particular instance, clearly resolved the question of credit in favour of the complainant.  I realise that one could be wildly speculative about the use to which the jury would have put this evidence, but it was only ever put, and only ever dealt with in the trial process, in a permissible way, even without the direction.

KIRBY J:   Yes, but the judge has the duty to bring the authority of his office to instructing the jury correctly on the law and that did not happen; you concede it did not happen and, therefore, the accused did not have a trial according to law.  Now, it is a strong ground case and it really comes down to the question of whether the majority were correct in taking the view that the proviso was applicable here.  But the Court has recently in Crofts repeated how important this distinction is and it seems to me that it ought to be followed through.

MR BUGG:   Your Honours, all I can do is, once again, draw your Honours’ attention to the distinctions which would arise in this case from many others, so that it is not one which, in my submission, is of general application.  It does sit squarely within the particular circumstances of this case and is one where, in my submission, the correct direction if given would have left the jury where - the speculation of what they might or might not have done comes, once again, to just that conclusion, that they would have come back with the same result they did, that is, he has not been deprived of a fair chance of acquittal if the proper direction had been given, faced with one, a very strong Crown case; two, a strange set of circumstances where the accused makes no admission or statement about any cause of any injuries to the complainant but then at trial presents an account which it is posited is consistent with the medical evidence but, of course, must be seen retrospectively in the way in which it has been constructed.  Clearly, the jury rejected, because of the honest and reasonable but mistaken belief situation, the account given by the accused and did not regard him as a witness of truth.

I cannot take the matter any further, your Honours.  I realise that the issue sits squarely within the proviso.  It certainly seemed to me that that was the ultimate way in which this matter would resolve itself, but I cannot take it any further.

GAUDRON J:   That does raise another question though, Mr Bugg, and clearly special leave would only be granted if we were of the view that the proviso should not have been applied in the circumstances of this case.  Is it a matter that can conveniently be dealt with in total today or is it a matter in which you require a further hearing before a Court of five?

MR BUGG:   Your Honour, I certainly would seek an opportunity to advance a more detailed submission to your Honours about the proviso.  There are some issues which suffer as a result of summation in an application book such as this where your Honours assess the strength of the Crown case on an appellate court’s review which your Honours are saying the majority incorrectly assessed certainly legal aspects of the issues before it, and I would certainly seek that opportunity.

KIRBY J:   I do not think anybody contests that this is not a strong Crown case.  It is a very strong Crown case, but we have the situation that one judge in the majority puts forward a theory which you do not support and therefore the stand or the principle that has been established in Tasmania is one which is, to put it at its lowest, uncertain.  Now, the question which Justice Gaudron directed your attention to was whether this is a matter which might be appropriately dealt with now and whether any further submissions that you wish to put could be put in writing so that the matter could be disposed of without having a further hearing.

MR BUGG:   Certainly, your Honours.  I would certainly undertake to provide you with an outline, or a further written submission in support of the proposition that the provision should apply and that would obviate the need for an attendance before a Court of five. 

GAUDRON J:   Well, no, Mr Bugg, if is not a matter which you accept is a clear-cut matter, it is a matter that will be dealt with in the ordinary course and you need not worry about that aspect.

MR BUGG:   Your Honours, if it assists the Court’s timetable, I am quite happy to participate in the way Justice Kirby invited and if that is not the view of your Honours, well, so be it but, certainly, it seems to me that a matter such as this‑ ‑ ‑

KIRBY J:   Justice Gaudron has been reminding me to be a little more restrained. 

McHUGH J:   No, I think if you want to analyse the evidence which you may well want to for the purpose of the proviso, it is unsatisfactory on the materials that we have for this Court as presently constituted to deal with it as an appeal.

MR BUGG:   Your Honours, I must say the primary concern I have in relation to this is not keeping some score on the board or anything like that.  The importance to me is if a retrial could be avoided, particularly, when one is dealing with matters such as this, I would certainly seek any opportunity to try and do that and it seems to me that‑ ‑ ‑

KIRBY J:   Relevant to that comment, there would have to be a retrial.  The Court would not deal with it in any other way.  There would be a retrial at

which the judge would give the correct instructions, which he did not give and which you concede he did not give.

MR BUGG:   That is correct, but the question of the application of the proviso, of course, is the avoidance of that particular issue, but, your Honours, I can see my time is up.  I can hear my time is up, anyway.

GAUDRON J:   Yes, thank you, Mr Bugg.  There will be a grant of special leave in this matter.

AT 9.52 AM THE MATTER WAS CONCLUDED