Kennedy v The Queen

[1999] HCATrans 51

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S202 of 1998

B e t w e e n -

MICHAEL GRAHAM KENNEDY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 1999, AT 12.36 PM

Copyright in the High Court of Australia

MR R.S. TONER, SC:   If the Court pleases, I appear for the applicant, with my learned friend, MR M. THANGARAJ.   (instructed by Murugan Thangaraj)

MR A.M. BLACKMORE:   If the Court pleases, I appear with MR D.S. INVERARITY.   (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

MR TONER:   Your Honours, can I start, perhaps, where there is a hole in the written submissions, namely, on the question of the way the learned primary judge exercised his discretion in the case.  Could I take your Honours to page 19 of the book.

GAUDRON J:   It is said that these things are discretionary but is that really an exact description?  I mean, the principles are not in doubt, are they, and it is really a question of forming a value judgment in the circumstances?

MR TONER:   Well, that might be another way of expressing a discretion though, your Honour.  But it is in circumstances where a person - - -

GAUDRON J:   Perhaps it is more precise to say no precise answer can be given without examination of the facts.

MR TONER:   Yes.  That is the way I was thinking of it, your Honour.  My principal submission about it is this:  his Honour has formulated the wrong test in relation to what one does when examining cases such as this and he seems to have formulated it in a way that there is a balancing exercising to be undertaken between the degree of unfairness or unfairness to an accused as against the public interest in having people brought to trial and judgment.  In our submission, there is no such balancing exercise to be undertaken.

McHUGH J:   That is not what the cases say, is it?  I used to say that when I was on the Court of Appeal in cases like Jago and other cases but the High Court said to the contrary, there is a balancing exercise, does it not?

MR TONER:   But the first examination must be this:  to see whether, in the circumstances of the case, an accused can get a fair trial, in other words, one, where, in the circumstances such as this, there can be no sensible remedy given by directions or warnings issued by a trial judge to the jury.  So that is the first task to be undertaken.  If that cannot be done then the second test, namely, when one balances against the public interest, does not arise in my submission and nor should it because it would be both an illogical and unfair result to an accused if that was the outcome.  In other words, how could you conclude, on the one hand, that the accused’s trial is going to be unfair and then, on the other hand, say, “Well, you’ve got to stand your trial because there is a public interest in you standing your trial”, because of either the seriousness of the allegations or the particular nature of the crime charged.

McHUGH J:   Yes, but I think what Jago and other cases say, really, is that the question of fairness involves considering detriment to the public as well as detriment to the accused, that you cannot evaluate the question of unfairness without also considering the public interest in the proceedings.

MR TONER:   But the qualification that I think is inherent in Jago must be this, that if the conclusion is that the trial of an accused will be unfair, full stop, then there is no counterbalancing factor which will have him stand his trial.

McHUGH J:   That is what I used to say in the Court of Appeal in those early cases but my recollection is that the High Court rejected it, and other judges of the Court of Appeal said to the contrary to what I used to say.

MR TONER:   Yes.  Well, can I take a look at what Justice Deane had to say in Jago, at page 57, in that passage which starts – the first full paragraph on the page, at about halfway down that paragraph:

The best that one can do is to formulate relevant general propositions and examples derived from past experience.  Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.  One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.

Now, that proposition stands independent of any counterbalance, namely, whether there is a public interest in having a person charged with so serious offences, as these ones undoubtedly are, in circumstances where what his Honour said in that passage prevail.

GAUDRON J:   Well then, be that accepted, you then have to demonstrate that it is arguable that that is the case here.

MR TONER:   Yes, your Honour.  This case is not like the recovered memory cases or the very old allegation cases.  This is a case where the applicant was originally charged of having committed - - -

GAUDRON J:   Let us deal with the charges now because they are different, are they not?

MR TONER:   The time frame is different but can I say this by way of preamble to it, that the original charges said her birthday and the date that she originally reported to DOCS in relation to her then guardian; those dates have been winnowed down as a result of further statements from the complainant and as a result of the Basha inquiry.  The dates now are, after what was said to be the “gun show”, to a period of about two weeks prior to her first reporting to DOCS of the complaint she had about a Mr Colby.

GAUDRON J:   And what is the period?

MR TONER:   That is about a six-week period.

GAUDRON J:   Yes.  And is it said what day of the week these events occurred?

MR TONER:   No.  They could have been any one of the days within that time.  So that, effectively, unless he can alibi himself for the whole of that time - - -

GAUDRON J:   Well, not necessarily.

MR TONER:   There is another problem about it as well, of particularisation, and that is that there are variants within her statements as to whether it all occurred on one day or two days.  I think the common thread within her statements are that all these acts took place within one day but there is a variance but perhaps that is a matter for forensic advantage at trial.  But, effectively, he is left with one defence, namely, denial.  There is no sensible capacity on his part to be able to - - -

GAUDRON J:   Now, that is frequently the case in child sexual assault matters.

MR TONER:   Quite, your Honour.  But by way of analogy, assume for the moment the charges were not sexual assault.  Assume for the moment that the charge was armed robbery and that the charge was that the armed robbery was committed between 7 July and 31 August 1994 at an unnominated place, and that was the charge, and no further particularisation was given of it and the complaint in relation to the armed robbery was given within a matter of weeks of it having occurred.  Now, it would be my submission that a court could properly stay that indictment on the basis of want of particularisation because it is so broad and one would expect there would be greater particularisation to allow the accused to meet the charge confronting him beyond a mere denial.

Now, there is no difference in principle in this case to whether the charge was armed robbery.  If it was an armed robbery, you would expect particularisation.  If it is sexual assault, you would expect particularisation particularly where the complaint is made within days or within weeks of the end date of the period charged in the indictment.  Now, that is what makes this case different.  It is our submission, that he - - -

McHUGH J:   What makes it different from other sexual assault cases that come before the courts with young children in which often the matter cannot be tied down for period less than a year sometimes – many months anyway whether it happened when she was eight or nine.

MR TONER:   I think that that may best be expressed by what was said by Chief Justice Gleeson, as he then was, in Kennedy [No 1], and I think that is within the bundle, your Honour.  He expressed it this way - - -

McHUGH J:   Is this at page 27 of the book?

MR TONER:   Yes, that is right, your Honour.  I think it says “these events occurred a little over a year ago.”  Does your Honour have that part?

McHUGH J:   Yes.

MR TONER:  

We are not here dealing with a case of the kind sometimes encountered where a person complains of sexual activity that occurred many years previously in circumstances where it would be unreasonable to expect that the person could have anything like a clear recollection of the date.  These events occurred between March and September 1994 and, unless the complainant was a person possessed of a singular degree of sangfroid, must have been found by her to be memorable.

To similar effect, Justice Hunt said in Kennedy [No 2] - - -

GAUDRON J:   Well, that is a jury point, surely.

MR TONER:   It is our submission that where there is objectively a reasonable expectation that closer particularisation beyond merely bookend dates should be possible, one would anticipate, that a person ought not be put in jeopardy on his trial to conviction.

McHUGH J:   But she cannot give any further particulars.

MR TONER:   Quite, your Honour.  The Crown has given us its best particularisation and there is no criticism of the Crown of that because they are stuck, of course, with what they are told by the complainant.  But in circumstances where one would reasonably expect there to be both a closer particularisation as to time and place, where the complaint is made within weeks of the events having happened, one would expect that an accused is entitled to such particularisation to be able to resort to the possibility of other defences beyond blanket denial.

It has the tendency, your Honours, to transpose the onus of proof.  In other words, the Crown can simply say that, “This happened; these are the allegations; we cannot tell you when it happened; we cannot tell you where it happened” and you place the accused in the position where he has to either defend everyone of the days and all the time between the two bookends or resort to simply, “I didn’t do it.” 

McHUGH J:   Yes, but the Crown case is immeasurably weakened by those lack of particulars because, by hypothesis, it means that there can be no corroborative or confirming evidence.

MR TONER:   Except for this:  this is also in the context where the allegations, if accepted by the jury, are of an horrendous nature and that the trial will be inevitably coloured by what she says is a precise recollection of these horrendous events in circumstances where the only defence available to Mr Kennedy will be his denial of it, rather than him having any sensible capacity to resort to what otherwise may well be a cogent defence to horrendous allegations.

Now, if there is a balancing process to be had, it must be in favour of the accused in such a case where he is confronted with these terrible allegations against him, where, if he is convicted he can look forward to a very long prison sentence, and in circumstances where he is unable, because of the nature - of the want of particularisation of the case - - -

GAUDRON J:   It is not want of particularisation so far as the acts are concerned.  It is a want of particularisation only as to the precise day and place.

MR TONER:   Quite.  Those are the missing particulars.

GAUDRON J:   Yes.

MR TONER:   One would conventionally expect in circumstances such as this - - -

GAUDRON J:   Well, one conventionally would not.  A place may be different but - - -

MR TONER:   Well, time, your Honour.

GAUDRON J:   Time, in cases such as this, it is not at all uncommon for the charge to span a period, sometimes of months.

MR TONER:   I accept that in circumstances where you are looking at matters which occurred long ago, say, 10 or 15 years ago, that that would be the case but here the difference is - - -

GAUDRON J:   In point of principle, that cannot make any difference.  It may be significant in terms of assessing credibility but in point of principle it cannot be any different, can it?

MR TONER:   In my submission, in terms of the particularisation of a case against an accused it does make a difference in terms of the reasonable opportunity he would have had in the circumstances of this case to make investigations in relation to collateral circumstances; to make inquiries as to potential for an alibi defence_.  In cases where the charges relate to 10, 15 or 20 years ago, the prospects of - - -

GAUDRON J:   In many respects, that is more difficult for the defence.  When were these charges brought to the applicant’s - - -

MR TONER:   He was charged in November 1994.

GAUDRON J:   Yes, and it is now said that the offences occurred when, between what months?

MR TONER:   I am sorry, he was charged in November 1994.  The indictment now has it happened between 2 July 1994 and 28 August 1994.  Originally, he was charged with it having occurred between 21 March - - -

GAUDRON J:   Given that time span, you might think he would have a better chance of ascertaining what his movements were and where he was during that period than in the case of a person who is charged with an offence many years before.

MR TONER:   Except for this, your Honour, that this period has only relevantly recently been the period now said to be during which this offence occurred.  In the indictment - I think that we first learned that it was to be reduced to those dates on 23 March 1998.  So, four years had gone by.

McHUGH J:   But in some respects you have some particulars.  She says, does she not, in respect of the second act, that it took place in a motel room near Bankstown or some other airport.  Well, that gives you a bit of material to operate on, does it not?

MR TONER:   Well, I suppose it does, your Honour.  It would have us undertaking an investigation as to every motel, every hotel near the Sydney or Bankstown airports.

McHUGH J:   I do not think there would be too many motels near Bankstown airport, would there?

MR TONER:   There are plenty near the Sydney airport though, your Honour, near Mascot, and that is as close as it gets, namely, near an airport in Sydney, be it Bankstown or Sydney, on a date unspecified when all these things have said to have occurred on the one day.

McHUGH J:   I rather gathered from what you said in opening that there was just no limitation on what day of the week.  For some reason, I had an impression it was at weekends but am I wrong in that?

MR TONER:   You are wrong, your Honour.  There is evidence to suggest that it may well have been on a weekend but then there is other evidence which qualifies that which says it may well have been any other day of the week as well.  So, the probabilities are that the allegation is - - -

GAUDRON J:   Was the complainant at school during this time?

MR TONER:   She was a schoolgirl and she was at school but her evidence was that sometimes Mr Colby took her from school - - -

GAUDRON J:   Presumably there are records of school attendance.

McHUGH J:   Whether she was there at school during this six or eight‑week period.

MR TONER:   It is not for us to particularise the Crown’s case.

McHUGH J:   No, I know it is not, but when you talk about the problems of defending, there are some of the - - -

MR TONER:   Yes, but we anticipated that that is the sort of information that we might get from the Crown to assist us to identify when it was said that these things happened.  It is for the Crown to particularise this case.  If they have that material available to them and from that they can - - -

GAUDRON J:   You could also get that material, can you not?

MR TONER:   We are defending, not accusing, you see, your Honour, with respect.

GAUDRON J:   When I used to defend people, I always thought it was part of my responsibility to have subpoenas issued if it could produce evidence that would assist who is on the case.

MR TONER:   That may well have happened as well, your Honour, in this case but it is for the Crown to particularise its case.

GAUDRON J:   But it just says these are matters that cut across what has to be your primary submission, that there cannot be a fair trial of these matters and it seems to me that in a case such as this you do not make out that case simply by pointing to the complainant’s inability to give a precise date and place.

MR TONER:   But I point to the proposition that one would have anticipated that there should be better particulars when we now have to resort to one defence and one defence only.

GAUDRON J:   Well, you do not make your application to particulars to this Court, Mr Toner.

MR TONER:   I shall not, your Honour.  We have made it more than once in other places, your Honour.  But that is the essence of the case, your Honour.  They are my submissions.

GAUDRON J:   Thank you, Mr Toner.  We do not need to hear from you, Mr Blackmore.

We are of the view that there is no error of principle to be discerned in the approach of the Court of Criminal Appeal.  Accordingly, special leave is refused.

Court will now adjourn until 2.15.

AT 12.56 PM THE MATTER WAS CONCLUDED