JRW v The Queen

[2015] HCATrans 29

[2015] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M111 of 2014

B e t w e e n -

JRW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 2.21 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:  May it please the Court, I appear in this matter on behalf of the applicant.  (instructed by Galbally Rolfe)

MR G.J.C. SILBERT, QC:  May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes, Mr Holdenson.

MR HOLDENSON:   During the trial, just after the close of the Crown case, the learned trial judge directed an acquittal on charge 12.  This application concerns the evidence which had been led by the Crown in support of charge 12.  More particularly, the application concerns the admissibility of that evidence on charges 8 and 11 – the only two charges to go to the jury and the two charges upon which the jury convicted the applicant.

The application also concerns the directions to the jury with respect to the purpose for which the jury might use that evidence on charges 8 and 11 that had been led on charge 12.  The evidence which had been led on charge 12 had been given by the sister of the complainant, S, and S said that she awoke and observed her father, the accused, together with the complainant.  They were together on the couch in the lounge room and they were both in the nude, or naked.  She described seeing the accused lying on top of the complainant, the complainant having her legs hanging out the sides of him – or coming out the sides of him.

Your Honours will see an extract of that evidence in the application book within the respondent’s summary of argument, as I recall, at page 110, your Honours will see in the middle of the page that evidence.  Your Honours will see at about line 21 on the page, there is extracted on the page there a passage from the evidence of that witness, S, and it is precisely as I said. 

What that witness saw and described can only be described as the perpetration of an indecent assault by the applicant upon the complainant.  That was the only evidence led on charge 12 – a charge which alleged the offence of indecent assault.  The complainant gave no evidence on that charge and, in fact, the learned prosecutor asked the complainant no question whatsoever concerning that act or event.

As I said, at the close of the Crown case, the learned trial judge directed an entry of a verdict of acquittal.  Perhaps I should take your Honours to the ruling, or an extract of the ruling.  It is to be found at page 64 of the application book.  At page 64, within one of the judgments below, at about line 40 on the page, your Honours will see the relevant extract from the ruling, going to the second paragraph:

I propose to enter a verdict of not guilty on Charge 12 on the basis that no reasonably instructed jury could enter a verdict of guilty on that charge.  The complainant gave no evidence . . . The sister gave evidence that she saw an event that appeared to be the accused man –

It is there described just as I described it.  The next sentence -

And in circumstances where the complainant gave no evidence of any such event, then a properly instructed jury could not be satisfied beyond reasonable doubt that that particular event occurred.

NETTLE J:   You did not read the two lines:

she provided no external details of the event that would allow the accused man to test that particular event.

MR HOLDENSON:   Well, she did provide external details.  She described where it occurred.  She described how it occurred.  Not only where, as in room, but in location in room and this charge was caught by a time issue because an element of the offence charged became whether or not the complainant was under 16.  So, it was not over too large a number of years. 

But, with respect, one only need go back to the evidence given by that witness which is set out, in part, at page 110 of the application book.  There are external details there and there are plenty of cases that go through the Court of Appeal where the evidence is less than that and more uncertain than that and the Court of Appeal upholds the verdicts as not unreasonable and not capable of not being supported by the evidence.  There was enough evidence there.

So, what the judge did not do is he did not direct the acquittal on the basis – nor could he have directed the acquittal on the basis – notwithstanding the sentence to which your Honour has taken me – on the basis that no specific offence had been identified or that there was some lack of sufficient particularity or some latent duplicity or uncertainty, or for some other reason that a lawful or valid conviction could not be returned on that charge. 

NETTLE J:   I know you say that, but Justice Coghlan’s judgment is directed to large tracks of the argument between counsel and the trial judge as to the basis on which the acquittal would be directed which suggests it was lack of particularity.

MR HOLDENSON:   At page 67 of the application book, your Honour, at paragraph 38 is, I think, the key paragraph to which your Honour refers.  That, with respect, is just wrong.  Paragraph 38 is where his Honour says, and I quote:

I regard it as being clear that the reason why his Honour directed the acquittal was that there was insufficient particularity for the event to be identified so that it could justify and identifiable charge and therefore a conviction.

NETTLE J:   Yes.

MR HOLDENSON:   There is some discussion elsewhere in the transcript as to why his Honour returned the verdict, that is, directed that there be an entry of acquittal.  One of the passages in the transcript is, of course, within the impugned directions.  At page 18 of the application book, his Honour gave the reason which is, to a large extent, found within the passage in the ruling.  At page 18 of the application book, third line on the page:

Now, the complainant gave no evidence about that –

This is the directions to the jury.  His Honour says -

and that is why you are not considering that as a count, why Count 12 is out of the trial.

Again, his Honour made reference to it in his reasons for sentence.  The reasons for sentence have been set out in the application book and within the reasons for sentence at paragraph 3 on page 43 of the application book, his Honour says, paragraph 3, and I quote:

At the conclusion of the Crown case the Court had directed verdicts of not guilty in relation to the other charges on the indictment.  Charges 10 and 12 –

and we are talking now about 12 -

were the subject of a directed acquittal on the basis that there was no evidence in relation to those charges.

There was evidence, albeit not from the mouth of the complainant, but that is not fatal.  There was evidence.  It was sufficiently precise to enable the matter to move forward.  His Honour, nevertheless, determined that there was not enough evidence upon which a properly instructed jury could convict.  It may be that I did not quite get to the foot of that page where that ruling is set out.  I just cannot find it as I speak.  It was in the judgment below.  Perhaps a little further on, on that page 64, how would I impose sentence when:

the complainant has given no evidence that that particular event has occurred?

So, what turned it in favour of the accused, as he then was at the trial, was the fact that the judge considered the fact that the complainant, having given no evidence about it, precluded a verdict of guilty.  But, can I say this?  The point is, there was a verdict of not guilty entered on that charge and, as a consequence, the statute provides to a large extent, the answer.  Section 241 of the Criminal Procedure Act - and that was provided to the Court several days ago – it is referred to, of course, in the outline – section 241(3) provides for the effect of a directed verdict of not guilty.  It provides that it operates so that its effect is:

as if it were the verdict of a jury on the trial –

Well, two charges were left to the jury – 8 and 11 – and the impugned direction – I have in part taken your Honours to it already – is at pages 17 and 18 of the application book.  At the foot of the page, four lines from the foot of the page:

The second piece of evidence of [S] that the Crown wants to ask you to use that sheds light on the relationship between the accused man and [the complainant] is what happened, what she said happened in the lounge room when she woke up and saw the accused man naked on top of the complainant.

KIEFEL J:   Were it but for the directed verdict of not guilty on charge 12, do you agree that that evidence would have been relevant as evidence of sexual interest?

MR HOLDENSON:   The answer to that is no.  Should the jury have acquitted?

KIEFEL J:   That is what I was asking.

MR HOLDENSON:   So, if it goes to the jury ‑ ‑ ‑

KIEFEL J:   That is what I am saying to you.  What I am really putting to you is that if you put aside the question of whether there had been a directed verdict on that question and what follows from that, do you accept that the evidence itself was of a nature to be relevant as evidence of sexual interest?

MR HOLDENSON:   The answer is only until such time as the jury acquits.  If the jury acquitted on charge 12, then it could not be used by the jury in its consideration of charges 8 and 11.

KIEFEL J:   Now, in the event that they were a directed verdict or the jury is taken to have acquitted, the evidence could not have been used, with respect – could not have been used by the jury to establish the offence.

MR HOLDENSON:   Correct.

KIEFEL J:   The question is whether or not it could be used by the jury for other purposes?

MR HOLDENSON:   Well, can I take the Court to this Court’s decision in Kemp v The King (1951) 83 CLR at 341. That has been provided to the Court. Facts can be very shortly stated. Kemp was tried on a three count indictment - on three counts of indecent assault - by jury, acquitted on counts 1 and 2, convicted on count 3. Appealed against conviction, conviction quashed, retrial ordered, retrial conducted on count 3. At that retrial on count 3, the Crown led evidence of a number of indecent assaults on a similar fact evidence basis including the two indecent assaults which had been the subject of acquittals at the previous trial.

In a very short judgment of the Court given by Justice Dixon, as he then was - could I take your Honours to the very foot of page 342 – and I mean the very foot of the page – five lines from the foot of the page:

But it seems to us to be clear that upon the evidence that the occasions covered by the indictment were at least included in the evidence of similar acts which was tendered and received.  Evidence of these occasions was, in our opinion, inadmissible.  The evidence was admitted after objection.  Moreover, no direction was given to the jury enabling them to understand that they should discard any evidence covering the same matters as were the subject of the first two counts –

where there had been the acquittals at the earlier trial:

The conviction, therefore, in our opinion, cannot be supported.

Your Honour might say to me, well, there is a distinction there, Mr Holdenson.  The evidence that was leading that case was evidence of acquittals from an earlier trial.

KIEFEL J:   Yes.

MR HOLDENSON:   A few minutes ago I provided to the Court crier and Deputy Registrar – and it has been provided, as I understand it, to your Honours’ associates – an unreported decision of the Victorian Court of Criminal Appeal in the case of Wilson.  I need take your Honours no further than the catch words on the front page.

KIEFEL J:   That is not very reliable, is it?

MR HOLDENSON:   I am sorry?

KIEFEL J:   Catchwords.

MR HOLDENSON:   Well, I can take your Honours to the judgment but can I just put it this way.  Wilson was tried on two counts of rape involving two complainants.  Crown went to the jury on similar fact evidence reasoning basis.  Exception was taken at trial by counsel for the accused that the direction must allow for the fact:

that if the jury were to acquit on count 1 -

then the evidence can in no way be taken into account as similar fact evidence for the purposes of similar fact reasoning in the jury’s consideration of count 2.  The judge refused to give the direction.  Accused acquitted on count 1, convicted on count 2.  There is the appeal. 

In the joint judgment, the Court applies Kemp’s Case – and if your Honours have regard to the foot of page 3 of the judgment your Honours will see the extract from, or reference being made to the passage from Kemp’s Case I have just read that to the Court.  On page 4 is the relevant extract of the charge and it is said on page 4, two‑thirds of the way down the page – and the point succeeded, I will not read it out, but that is this case.

The respondent on this point puts against the applicant that paragraph from Carroll’s Case, the joint judgment of Chief Justice Gleeson and Justice Hayne – paragraph 50 from Carroll’s Case and your Honours will see it extracted on page 112 of the application book.  On page 112, your Honours will see in the middle of the page paragraph 19, the passage from Carroll, which is where Chief Justice Gleeson and Justice Hayne held that – second line:

the tender of evidence, which might have the have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision.  There may be cases where, at a later trial of other allegedly similar conduct –

So we are into similar fact evidence reasoning -

may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct . . . In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”

KIEFEL J:   How does the tender of this evidence as evidence of sexual interest in relation to another charge cast doubt upon the charge of indecent assault which was the subject of the directed verdict?

MR HOLDENSON:   As I understand your Honour’s question, it is within the content of the direction on page 18 of the application book.  The manner in which his Honour directed the jury by indicating within the direction that they could accept the evidence given by the sister [S] and in that regard ‑ ‑ ‑

KIEFEL J:   But that is to say you may accept this as evidence of something which occurred.  It is not to say you accept this as evidence of an offence which has been committed.

MR HOLDENSON:   But that which is set out there – if you accept that evidence – that evidence being nothing other than indecent assault as distinct from a portion or an extract of the evidence.  If, for example, there had been an issue in the case as to whether or not the accused had ever been together with the complainant, this evidence could have gone in for that purpose and that purpose alone as long as – and I am mindful of what Storey holds – as long as the jury can be and is directed that they must not take a view of the evidence which is inconsistent with the acquittal.  The manner in which his Honour ‑ ‑ ‑

KIEFEL J:   Well, how is this inconsistent with an acquittal of an offence of indecent assault?  How?

MR HOLDENSON:   What his Honour is saying, if you ‑ ‑ ‑

KIEFEL J:   All that is being said by the tender of this evidence is you may consider whether or not this event occurred.

MR HOLDENSON:   That is right.  What is the event which is said to have occurred?

KIEFEL J:   Well, that does not in any way cut across or suggest is wrong the verdict of not guilty of an offence of indecent assault in relation to that event.

MR HOLDENSON:   That passage, in my submission, at the top of page 18, is to expressly invite the jury to make a finding which is nothing other than the accused perpetrated an indecent assault upon the complainant and if you make that finding then you can use that finding as evidence of sexual interest in the applicant toward the complainant.  That is such as to invite the jury to make a finding ‑ ‑ ‑

KIEFEL J:   Where do the words “indecent assault” appear?

MR HOLDENSON:   The words “indecent assault” are not there.  I do not suggest they are there.  But reading from the top of the page:

she woke up and saw the accused man naked on top of the complainant.

If you accept that evidence beyond reasonable doubt that in fact an event did happen, that the complainant was seen by [S] - and going back to the foot of the previous page, the direction is referable to the entirety of the content of the evidence given by [S] concerning that incident on the couch in the lounge room as distinct from a mere extract thereof.

NETTLE J:   Mr Holdenson, what do you say about Justice Redlich’s judgment, that assuming in your favour for the sake of argument that the basis of directed acquittal was not a R v VN point, but rather, as you would have it, that there was insufficient evidence to sustain the count 12, nonetheless, the judge was wrong in that, it was evidence upon which the jury could have found guilt on count 12 and, therefore, evidence which was available to them as tendency evidence on the other two counts.

MR HOLDENSON:   The answer to that is referable to paragraph 4 of Justice Redlich’s judgment at page 58 and the error, in my submission, that he makes is he accepts the proposition that the acquittal was not to be controverted but the error he makes is in the final sentence of the paragraph – and this is the discussion I had with her Honour Justice Kiefel a few minutes ago:

the jury could still rely upon it as proof that the applicant had a sexual interest in the complainant so long as it was not treated as proof of the indecent assault charged.

But the direction given was such as to – without using the words “indecent assault” ‑ ‑ ‑

NETTLE J:   I am sorry, it was the earlier passage from Justice Redlich’s judgment where he takes the view that the judge was wrong in concluding that there was not sufficient evidence of count 12 to sustain a conviction on

it.  If that is a correct analysis, what was wrong in leaving that evidence to the jury as tendency evidence for the other two charges?

MR HOLDENSON:   This case – if I can just deal with the first point – in a sense it does not matter whether the trial judge was right or wrong in directing the verdict of not guilty because section 241(3), coming after 241(2)(b) which is where if:

the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment –

does not depend upon a correct decision having been given or an incorrect decision having been given.  Once the decision is given it is conclusive and the parties to the proceeding are bound by it.  I have lost the thread of your Honour’s ‑ ‑ ‑

NETTLE J:   Is that to say that once the direction is given and the acquittals entered, not only are the parties bound by it but the parties are bound by the error in the judge’s analysis in directing that acquittal?  It is not just the acquittal but the error which stands behind it.

MR HOLDENSON:   That is correct.  Within all the cases that speak of – in this area of discourse of acquittals – the language that is used is “the acquittal is conclusive, it is binding”.  Until set aside, if it can be set aside, it binds the parties for the rest of time.

NETTLE J:   I think you answered ‑ ‑ ‑

MR HOLDENSON:   That is the point.  It does not matter whether the judge got this right or wrong as long as, for my argument, it was not referable to the Victorian case of VN – that is insufficient particularity.  But there was more than enough particularity there to describe the event.  As to time, as to place, it is a vivid description and it was repeated and when it was put to her that she was lying to help the complainant she expressly and strongly and sternly denied it and maintained the truth.  Certainly, she did not give the date or the time or the month but that is in no way fatal in these cases.  She got the time right to have the complainant under the age of 16 which, at the time, was an element of the offence.  I see the light is red.

KIEFEL J:   Yes, thank you, Mr Holdenson.  We need not trouble you, Mr Silbert.

There is no reason to doubt the decision of the majority of the Court of Appeal in this matter.  Special leave is refused.

AT 2.44 PM THE MATTERS WERE CONCLUDED