Khanna v The Queen

[2006] HCATrans 330

[2006] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M6 of 2006

B e t w e e n -

AJAN KHANNA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 11.33 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR C.B. SIMPSON, for the applicant.  (instructed by Karp & Karp)

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MRS C.M. QUIN, for the respondent.  (instructed by Solicitor for Public Prosecutions)

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, in an appeal against conviction following the verdict of a jury under the familiar Australian form criminal appeal statute, the Court of Appeal in this case directed itself in accordance with authorities, which are noted at the foot of page 71 and about which, subject to the point we wish to raise, there could not possibly be any complaint as to that being the appropriate self-direction.

In that sense, our proposed issue concerning what happened on appeal resembles somewhat the way in which we would put the position concerning the trial – that is, there are no complaints about directions to the jury, there are no complaints about the self‑directions in the Court of Appeal.

However, when it came to the point of reviewing what my learned friend, Mr Bellanto, had put on appeal just as, so it appears, he put it to the jury at page 79 of the application book, the leading reasons of Justice Cummins proceed, having reviewed the so‑called inconsistencies and in particular drawn to attention cross-examination about some of those inconsistencies as follows about lines 15, 17 or so, the nature of the distress alleged to have been suffered by the complainant is referred to obviously and, with respect, appropriately in connection with an understanding of the way in which she had given differing versions over a number of years and in different contexts.  Then when his Honour proceeds to refer to the applicant not having given evidence - and we do not complain about that because of the obvious proposition that that left the jury with no other sworn version of events - that is not strictly correct in relation to the other members of the family but it is for all intents and purposes an appropriate point to have made about the fact that there was no answering evidence from my client.

Then comes the sentence which, in our submission, shows a failure fully or completely to carry out the statutory task given to appellate benches by the criminal appellate statute because all his Honour says is that:

The jury was well placed to assess the truthfulness and reliability of the witnesses and in particular of the complainant.

That, of course, is a statement which while true is again the starting point or an assumed truth for the application and operation of the criminal appellate rules.  “Well placed” simply means, of course, that was the so‑called constitutional tribunal, it was there, it saw and heard the evidence, in short, the well‑known advantages which this Court in Weiss, borrowing from the civil decision of Fox v Percy, reminded lower courts had its place in criminal appellate law as well.

But that, of course, is something which is true of each and every jury verdict which comes under scrutiny as to whether the evidence supported it or whether it was reasonable given the evidence all against the backdrop that that notion of reasonableness is to be measured in relation to the possibility of a miscarriage of justice.  It is for those reasons, in our submission, that the leading reasons which are ‑ ‑ ‑

HAYNE J:   What are we to make of the next two sentences in those reasons?

MR WALKER:   The first of those sentences is what I had earlier referred to, namely, we have no complaint about process and I do stress this is not a process case.

HAYNE J:   Yes, I understand, but the next one?

MR WALKER:   The second is referring back to the correct self‑direction by the Court of Appeal to which I referred earlier; references to this Court’s classic expositions of what is required under the criminal appellate statutes.

HAYNE J:   So what is missing?

MR WALKER:   In our submission, what is missing is a conclusion by his Honour for himself as someone considering the record of the facts through the lens which this Court has said in Weiss is appropriate, which includes the Fox v Percy consideration, of whether the evidence was such as to enable dispelling of reasonable doubt, that is, proof beyond reasonable doubt.  The onus is unquestionably the same.  It is not a question of speculation as to what this jury may have done or prediction as to what another jury might have done.  Your Honours will appreciate that by that ‑ ‑ ‑

HAYNE J:   But in this case – this case stands apart from a number of others that have been seen in that there is a person who gives evidence of having observed the conduct of which complaint is made.

MR WALKER:   Yes.

HAYNE J:   Is this, in the circumstances, a case in which the intermediate court should have itself entertained a doubt as to the guilt of the accused founded on the particular matters – how shall I put it – of discordance in the evidence?  That is your ultimate test, is it not?

MR WALKER:   Yes, it is.  Our answer is, yes, they should have, but contained in that answer is that they should have asked themselves that question and directed themselves to that question, not asked whether the jury had material upon which they could have convicted.  There was no – the complaint about a failed no case submission here, of course, again, the premise, in our submission, of a criminal appellate statute is that there will be something here, there, a roundabout in the record of a trial by which one can understand how the jury might have got to the result they did.  That is not the test under a criminal appeal statute.  The test is whether the evidence supported it, whether there might be a miscarriage by reason of an unreasonable approach.

Our submission is that those words, as most recently explicated by the Court in Weiss in a different but materially similar context, that is, the different context of the proviso explicitly assimilated to the present case as it was in Weiss, that those factors combine to require the appellate court not to say, “I can see how the jury might have done it” and therefore end of the appeal, but to say “What do I think about the Crown’s contention that guilt had been proved beyond reasonable doubt” given the following catalogue of discordances or inconsistencies, some of them which we have sought to highlight by our selection in our written submissions in this Court being such as do not lend themselves to ready explanation.

HAYNE J:   Can I just understand the framework of the Crown case at trial.  Was the Crown case at trial the complainant gives evidence of inappropriate touching, the complainant’s sister gives evidence that she saw the accused put his hand up her sister’s dress, the sister gives evidence of immediate complaint and the complainant’s mother gives evidence of complaint a week later?

MR WALKER:   Yes, your Honour.  That is why the so‑called discordances or inconsistencies loomed so large because as to each of those matters there was in the Crown case elicited - that is, by reason of cross‑examination and the proof of prior inconsistent statements – there was elicited seriously, not merely trivially, discordant matters of narration of an event which needed to be believed or accepted by the jury in order to secure a conviction beyond reasonable doubt.

There is no doubt that when one considers the matters that we have headed in our written submissions, see pages 88 to 90, particularly the presence of the father - that had to do with circumstances which fed into the clothing matter.  The presence of the father had a relation to was it a school day or a holiday, that had a relation to whether it was a school skirt or pyjama track trousers.  That of course has an obvious relation to clothing and the clothing has, as your Honour Justice Hayne has drawn to attention, a relation to the sister’s version because the sister’s version could not be accepted, that is, it would be unsafe to have accepted, that is, it would be in the statutory terms insufficiently supported or not reasonable, if there was no skirt at all.  That is why the position of the various people, including the sister, and there are differences not of mere detail but of considerable configuration in relation to where with respect to the couch, how far away and, indeed, in what direction people were facing.

Now, those are matters which call for explanation because it would be idle for us not to accept that a Crown case can succeed notwithstanding what would otherwise be damaging, perhaps fatal, inconsistencies in Crown evidence.  We must accept that.  It would fly in the face of administration of criminal justice and common sense for that not to be so, but in order for an appellate bench administering its function under the criminal appeals statute to consider the contention of the appellant that the verdict cannot be supported or is not reasonable against the serious requirement of considering a possible miscarriage of justice, then, in our submission, it is necessary for there to be an explanation sufficiently cogent to justify proof beyond reasonable doubt in the appellate judge’s mind of those inconsistencies. 

In a case of this kind, I am obviously forced to concede at the very outset that the nature of the offence charged and the character or nature of the complainant, particularly the age, is quite enough, we accept, to explain what might be called degrees of confusion and degrees of uncertainty and it would be idle to submit otherwise and we do not.  In any case of any kind of offence and of any kind of complainant, it will always be appropriate for a jury to be instructed and certainly to have addresses to the jury and then on appeal for this to be reflected, namely, that the lapse of time does not require a great deal of explanation as to how that might produce inconsistencies or differences in versions, particularly in a system which so highly prizes the recitation orally of that which you have, for example, first told the policeman four, five years ago.

We are not, in this case, calling in aid simply the fact of the inconsistency, but rather that the approach taken in the Court of Appeal was one which did not culminate in their Honours deciding for themselves in a case where inconsistencies of major kinds were at the heart of a matter, the reliability for the large burden borne by the Crown of beyond reasonable doubt and the need for those inconsistencies to be at least sufficiently explained, mitigated ‑ ‑ ‑

HEYDON J:   So this is a “no reasons” appeal you want?

MR WALKER:   It is a wrong question point which results in a “no reasons” outcome.

HEYDON J:   Yes, I understand your wrong question point.  That is really a question of construing the whole judgment and seeing whether it is possible to say that Mr Justice Cummins merely gave lip service to the authorities. 

MR WALKER:   Yes, I have to go to the point but ‑ ‑ ‑

HEYDON J:   But then you seem to say even if he had applied the right test he, in some way, reached the wrong conclusion on whether the inconsistencies were central or not or material or not or merely minutiae or not. 

MR WALKER:   Yes.

HEYDON J:   That is a purely factual inquiry.  Then, thirdly, you say there is not enough here to see whether Mr Justice Cummins directed his mind to the many inconsistencies because it is paragraphs 39 and 40, apart from the one sentence you have referred to, appear to reflect the contents of Mr Justice Cummins’ personal reasoning.  He said he read the whole of the evidence, we have to accept that ‑ ‑ ‑

MR WALKER:   Of course.

HEYDON J:    ‑ ‑ ‑ and he seems to offer some conclusions of the result of that activity.  If your complaint is merely the lack of detail, is that a really attractive prospect?

MR WALKER:   No.  A mere lack of detail in usual reasons I would not trouble your Honours any further on.  The point I have already been making by way of concession is, of course, evoked by, with great respect, the entirely appropriate way in which a number of matters which I can assure your Honours can be regarded as minutiae were dealt with compendiously by his Honour - for example, page 78, lines 14 and 15.

We entirely accept and we utter no complaint about that approach but that leaves important inconsistencies which are not the subject of the right question being asked by his Honour and thus, of course, reasons are not expressed for an appropriate kind of answer.  This is far more than a

complaint about the level of detail in judicial reasons.  This is a complaint about the anterior step - was the right question addressed by the court. 

Now, in our submission, one can see this perhaps even more clearly in the reasons in support of the outcome of Justice Ormiston starting at page 67.  In paragraph 1, his Honour, with great respect, points to the very ‑ ‑ ‑

HEYDON J:   Mr Justice Ormiston is, with respect, a sort of side issue, is he not, because Justice Vincent agreed with Justice Cummins so that you have to find the error there?

MR WALKER:   If your Honours read these reasons as Justice Ormiston agreeing in the result but differing in the approach to be taken to reach it, then there would be no point in dwelling on the way his Honour put it.  It is not clear, however, that that is how his Honour saw it, for example, page 69, paragraph 7, at about line 36.  The agreement which is expressed seems to proceed from generalised observations drawn from his Honour’s obvious and, with great respect, very considerable experience which are not expressed so as to be at cross-purposes with any High Court authority, let alone with what Justice Cummins was doing.

For those reasons, in our submission, the approach that one sees in paragraph 2 on page 67 is one which does show an approach which this Court should take this opportunity to correct, namely, that it is not for the appellate judges, as it were, to usurp, to use a coloured term, the role of the jury.  With great respect, that is not what the Parliaments have said.  The Parliaments have said they are to consider arguments that a jury verdict, including one where the trial was entirely regular and entirely fair was nonetheless not supported by the evidence or was unreasonable, again, as I say, according to this Court’s reading that says that that is in the context of possible miscarriage.

It is for those reasons, in our submission, that it really is a wrong questions case, but, of course, we accept that ‑ ‑ ‑

HAYNE J:   In the end, you would have to persuade us, would you not, that it is arguable that there has been a miscarriage?

MR WALKER:   Yes, it follows from – I think I have said it two or three times – without that the exercise is futile.  May it please your Honours.

HAYNE J:   Yes, thank you, Mr Walker.  We need not call on you, Mr Coghlan.

It is not arguable that there has been any miscarriage of justice in this matter.  Special leave to appeal is refused.

AT 11.52 AM THE MATTER WAS CONCLUDED