King v The QUeen
[2003] HCATrans 643
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P28 of 2001
B e t w e e n -
RODNEY NATHAN KING
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 10 APRIL 2003, AT 10.13 AM
Copyright in the High Court of Australia
MR J.A. SUTHERLAND: May it please your Honours, I appear for the applicant. (instructed by McDonald & Sutherland)
MR S.E. STONE: May it please the Court, with MR C.C. PORTER, I represent the respondent. (instructed by Director of Public Prosecutions for Western Australia)
GLEESON CJ: Yes, Mr Sutherland.
MR SUTHERLAND: Thank you. This application, perhaps I should indicate at the outset, will relate only to the matter of conviction. I have analysed the material that emerged from the trial and the court below and that decision has been taken, that is, to abandon the issues concerning sentence.
GLEESON CJ: Thank you. May I raise a matter with you before you go any further, because it is a matter about which you and Mr Stone are in warm agreement. I just want to ask you a question about it and I will ask the same question to Mr Stone. On page 618 of the application book, in the judgment of Justice Wheeler, in the second sentence at paragraph 40, her Honour states a proposition of logic. Do you see that?
MR SUTHERLAND: Yes, your Honour.
GLEESON CJ: If it is not possible, as a matter of logic, for what her Honour refers to to occur, why is it necessary or even appropriate for the judge to direct the jury to consider whether the accused has satisfied them on the balance of probabilities that he did in fact have his wife’s consent?
MR SUTHERLAND: Perhaps the way that I can deal with that is to postulate an example. You might get into a place by deception, as in this case. You are asked, when you knock on the door, “Who is it?” “It is the neighbour”, or you indicate that you are someone else. The person opening the door has not applied his or her mind to the question of whether the consent to come in applies to the person who is actually beyond the door. There can be a range of situations perhaps, of which that is one.
The other issue that then arises is with regard to the substantive offence contained in the indictment, whether, as in this case, a history of meetings can have an impact on the question of consent. The consent in each case is a different – whilst in essence it is the same notion, it must be predicated upon different factual aspects of the background of the case.
KIRBY J: Could you explain that a little more.
MR SUTHERLAND: I will seek to do so, your Honour, and again by reference to the facts in this case. It is the case that the parties, the complainant and the applicant, met a number of times after the restraining order had been issued. That set up a pattern of conduct whereby no objection had been taken to those meetings. In that situation a person such as the applicant in going to the house might well feel that he is in a position to be able to persuade the person protected by the order, that is the complainant, that this is yet another meeting, from the circumstances of which would emerge a consent relevant to ‑ ‑ ‑
KIRBY J: Yes, but the fact that he goes there and gives a false statement about who he is is pretty hard to reconcile as a matter of fact and a matter of evidence with his having her consent. If he had her consent one would think he would just say, “It’s your loving hubby”, or whatever his first name is. It just does not seem to easily jell. I suppose you have to say he thought if only he could get his toe in the door his powers of persuasion might then overcome any initial reluctance she might have if she refused at the door threshold.
MR SUTHERLAND: Yes, certainly, but also in this case and because it is not an issue that I anticipated, there was some evidence of Mr King having a habit of pretending to be somebody else when he picked the telephone up and matters of that sort. So, again, if that aspect of his prior conduct was again repeated in these circumstances, it is a playful approach that he adopts in many social situations.
GLEESON CJ: Mr Sutherland, I understand perfectly well, I think, that the question of consent or the issue of consent might be, as they say, nuanced, but the issue of consent or the kind of consent or the quality of consent that formed the element in the charge that the Crown had to disprove was not any different, was it, from the kind or nature or quality of consent that the accused would have had to establish on this approach set out on page 618?
MR SUTHERLAND: Certainly I accept that the ‑ ‑ ‑
GLEESON CJ: It is the same consent, is it not, whichever way you look at it?
MR SUTHERLAND: Yes. I do not dispute that but I do say ‑ ‑ ‑
GLEESON CJ: As I say, I understand how it might be a complicated question but it is the same question, is it not?
MR SUTHERLAND: I concede that it is essentially the same question. The difference only emerges in the context in which it applies within the count in the indictment. There are two separate pieces of behaviour. One is going to the house. In this particular case, in my submission, at its highest I think it can be put for the applicant that what he did was engage in some deceit of the sort that he had previously engaged in on a number of other occasions in terms of the way he conducted himself, using the analogy of answering the telephone, for example, followed by a hope on his part that the previous history of contact and the conduct of the parties from the time that the restraining order had been issued would avail him in the circumstances that flowed from the point where he was recognised and at the premises.
GLEESON CJ: All I am trying to understand a little bit more than I do at the moment - and it seems to be a matter on which you and your opponent are agreed - is this: if the jury are told, correctly, that the Crown bears the onus of proving beyond reasonable doubt that the wife did not consent, in what circumstances might the jury find themselves going through the mental exercise of considering whether the accused established that the wife did consent?
MR SUTHERLAND: In a case such as this perhaps I need to approach that question from the point of view of the disastrous consequences for the applicant of not going into evidence because the question, as your Honour says, is the same in each case and whilst he might have adopted a deceptive approach to get in, which in any circumstances would cause the situation where he entered the premises without the complainant applying her mind to the question of consent simply because she assumes it is somebody else, the question being the same, once he testifies about the circumstances that from his recollection existed from the time he arrived at the house and what he did during the time that he was in the house, that could put potentially a different complexion on the matters to be considered by the jury. An analysis, in my submission, of the way in which this case unfolded demonstrates that what appears to have been the applicant’s intention to testify was affected by events that occurred from the commencement of the trial.
GLEESON CJ: This may not affect the ultimate outcome of the appeal, but we have to produce a judgment that is going to lay down principles and I am raising for consideration the following question of principle. If there is an element of an offence on which the Crown carries the onus of proof beyond reasonable doubt and precisely the same fact is potentially an element of defence on which the accused would otherwise carry the onus on a balance of probabilities, is it (a) necessary, or (b) even appropriate for the judge to direct the jury that there is an aspect of the case relating to that matter on which the accused carries the onus of proof?
MR SUTHERLAND: Yes, in my submission, it is because a way of addressing the jury would be to say, “In this case, rather unusually in the criminal law, we have a situation in which the burden of proof is reversed and, in this case, in practical terms, it is upon the accused person and it is upon the accused person on the balance of probabilities to establish the fact of consent”.
GLEESON CJ: Not all counsel for all accused people would rush to embrace that proposition.
MR SUTHERLAND: Perhaps that is so, but I think, in practical terms, this is the case. There are some offences where a burden is cast upon a defendant or an accused person. I can think offhand of three situations, this being one, unlawful possession of goods under the Police Act (WA) is another where a burden can move from the prosecution to the defence and, of course, the other one that comes to mind is under the Misuse of Drugs Act (WA) where an accused person may have to deal with the question of intent concerning possession of drugs.
KIRBY J: Now, on the question of the proviso, the respondent puts it that in effect you got a better statement on the law, namely that the Crown bore the onus throughout on the issue of consent and therefore, in effect, the law was put to the jury in a way that was more favourable to your client than it would have been if it had been put in the segmented way that you are suggesting. If that is a correct proposition of law, then the only way you can get up is either (a) to say that this was not a trial according to law in a fundamental respect, or (b) that because of the way the judge did not correctly address the different onuses and the way the case unfolded at a time when your client was not legally represented, he failed to put his best foot forward in an evidentiary sense, to put his evidence before the jury which might in its totality have impressed the jury and might have carried the day on the onus question, even if the correct onus had been explained and, in respect of the statutory offence, he had borne an onus of his own, that the evidentiary deficit was what was critical to your client and therefore he did not get a chance to put his case.
MR SUTHERLAND: I would adopt each of those propositions. I think on an analysis of what happened during the course of the trial it is the case that there was not a fair trial according to law, but importantly also, so far as the evidence is concerned, had it been appreciated by the accused man that he had that particular burden of proof, then I think it inevitable that he would have gone into evidence and the jury then would have been seized of an appropriate range of information upon which it could base its verdict.
Now, I do not know that it necessarily follows that he was unable – well, the fact that he was unrepresented is of course of considerable significance, but it does seem to emerge ‑ ‑ ‑
KIRBY J: That was by his own election, of course, and he has a right to represent himself.
MR SUTHERLAND: Yes, and that may weaken his position to some extent, but I gather, and I gain the impression from counsel’s failure to raise the point with the trial judge at the conclusion of the Crown’s opening, that he was not aware that there was that particular defence available.
KIRBY J: Leave aside who was responsible for it – it may have been both counsel then appearing and the accused – but the net result was that because of the direction you say at least a reasonable inference is that because of this misunderstanding of the law, if it be a misunderstanding, that the accused did not go into evidence and therefore missed the opportunity of putting his version which might have been overwhelming to the jury. We just do not know, because he did not get that chance.
MR SUTHERLAND: I think in fact that that is the case. The trial from an early point moved down a path that took it off the rails, as it were.
KIRBY J: The argument to the contrary is that he got the best possible direction on the law and that he had a full chance to put whatever he wanted to put. He did not do so and what evidence was before the jury was pretty overwhelming, even from his own version, that he gave a false statement when he knocked on the door. It is hard to reconcile on one view with a person going there with the prior consent of his wife.
MR SUTHERLAND: Accepting the proposition that is contained concerning the evidence in that comment, I think it is arguable that the applicant was deflected from giving evidence in his defence in this case. He was deflected by not only the misunderstanding of law but with respect to the way in which certain matters were discussed in the course of the proceedings. The question as to whether he would give evidence was addressed in such a way by the presiding trial judge – and here I refer to the application book at page 326 at line 23 and following, where at the conclusion of proceedings on 15 December 1999, which I think was the third day of the trial, in front of the jury his Honour discussed with the applicant the progress of the trial and what was to happen. He raised with him and said:
last night I explained to you in the absence of the jury that at this stage of the trial you have the right to continue with your right to silence, which you have enjoyed from the beginning of the trial process right up to this stage, and you may now, if you wish, elect to go into evidence or not. It’s your right to remain silent of you wish.
It’s your right not to give evidence. You don’t have to prove anything. There is no burden of proof on you in this trial. The crown has to prove each and every element of the two offences it alleges against you beyond reasonable doubt. It says, by closing its case, that that stage of the trial has been reached. So the matter is now for you to decide, to exercise your right to give evidence if you choose, or not, if you choose. It’s a matter for you. What – have you made a decision about this?
The whole drift of that particular comment to the applicant is to emphasise the right to silence.
GLEESON CJ: Are you saying that what he said to the applicant was wrong and misleading, that the Crown did not have the onus of proving beyond reasonable doubt the absence of consent?
MR SUTHERLAND: No, not entirely wrong but ‑ ‑ ‑
GLEESON CJ: Well, was it right or wrong? Did the Crown have the onus of proving beyond reasonable doubt the absence of consent?
MR SUTHERLAND: With regard to the element of the offence involving entry into the premises, it certainly had that burden.
GUMMOW J: It was incomplete.
MR SUTHERLAND: It is incomplete, yes.
KIRBY J: You say it is a right as far as it went but it did not tell the full story and did not reveal to him that he bore the onus in respect of the defence.
MR SUTHERLAND: That omission, in my submission, makes it wrong.
GLEESON CJ: What exactly should he have said ‑ ‑ ‑
MR SUTHERLAND: He should have said at this point, “We have almost reached the stage – we have reached the stage where the Crown is about to close its case. The Crown has had a burden in this particular case of proving certain aspects of the charges against you. There is, however, one aspect of the first count in the indictment against you where there is a burden upon you under the provisions of section 62 of the Restraining Orders Act and it is for you – there is a defence available to you, of consent, within the terms of that particular provision.”
GLEESON CJ: Is this a matter of shifting burden or does the burden continue with the Crown? On the element of consent, on the fact of consent, what are we talking about – a continuing burden on the Crown and a co‑existing opposite burden in relation to precisely the same fact on the defence?
MR SUTHERLAND: There are two separate elements in count (1) where the question of consent arises. With regard to the first aspect, that is, being in the place or entering into the place, the burden is on the Crown. The notion of consent is the same in each element but on the second element, that is, in that place breached the restraining order, the question of consent falls to be established by the person against whom the order has been made to the balance of probabilities.
I accept that the notion of consent is the same but in practical terms if you are going to establish that you have not breached the restraining order, in effect, you must go into evidence. You must know that there is a burden on you and you must, in my submission, not be deflected from a proper consideration of your position by what the judge says to you as an unrepresented person.
KIRBY J: Has that been held in Western Australia? Are there decisions which hold that?
MR SUTHERLAND: The case that I think supports that proposition is Gidley and I think it is MacPherson that is referred to in Gidley.
GLEESON CJ: Can you give reference to that.
MR SUTHERLAND: Certainly.
KIRBY J: It is quite a hard thing to keep in your mind relevant to the one issue, ie, consent, that there are these competing obligations or burdens of proof. It is hard for me to keep it in my mind, so what a jury must make of it, I do not know.
MR SUTHERLAND: Perhaps, in a practical sense, because if a person such as the applicant in this case realised that he had that particular burden upon him, he would go into evidence and then he may not be able to establish beyond reasonable doubt that he was not in breach of the restraining order. He might not be able to satisfy the jury on the balance, but he might be able to create a doubt in the jury’s mind concerning the aspect of it that the Crown must establish, which is the absence of consent on the first part.
GLEESON CJ: I have an anterior problem. I just do not have difficulty remembering it; I have some difficulty understanding it. I can understand that if he was just charged with breach of a restraining order he carries the onus of proof on the question of consent. But here he is being charged with what I think might be described as an offence of home invasion. That is what it is, is it not?
MR SUTHERLAND: The Crown would assert that to be so. I think the applicant would say ‑ ‑ ‑
GLEESON CJ: He is charged with an offence of home invasion and the question of whether or not she consented arises in two ways. It arises as an element of the offence and it arises, at least theoretically, as a potential defence for him in relation to an aspect of the offence but it is the same question that arises. What does it mean to tell a jury that in relation to that same question both sides bear an onus of proof?
MR SUTHERLAND: At the conclusion of a trial of this sort properly conducted, it would be necessary to explain it to the jury and the jury would have to grapple with the difficulties. Now, a fair trial properly conducted in this case would have put the jury in that particular position, that it had to grapple with what your Honour describes as that anterior question. That simply is a consequence of a person being charged with burglary using a breach of a restraining order as the substantive offence committed in the course of the burglary.
GLEESON CJ: Well, you have in your favour that the difficulty that I am having is not shared by your opponent and it was not shared by the members of the Full Court.
KIRBY J: I am beginning to feel the same difficulty as the Chief Justice. I think it is partly a difficulty of concept, that is to say, can it exist, that you can have competing onuses on the one matter, and partly it is a practical difficulty of explaining it to a jury and a jury understanding it and going through the mental processes that they are told in order to come to a lawful conclusion. It is not an easy problem.
MR SUTHERLAND: It is the circularity comment that was made.
GUMMOW J: It is a problem the legislature has created and that has to be lived with, has it not? It comes from 62(1).
MR SUTHERLAND: Yes.
GUMMOW J: Matching the specific provision of 62(1), the general concepts of burden on the Crown.
MR SUTHERLAND: Yes.
GLEESON CJ: So what does a judge actually tell a jury about the way they consider the matter of consent? What is the proper direction? That is what this case is going to be authority for when we ultimately decide it.
MR SUTHERLAND: Given the way the legislation is framed, the way it exists in Western Australia, the judge has to go through the charge step by step and point out the dilemma that he has in explaining it to the jury and which the jury have to grapple with. I am sure my learned friend will say it is not beyond the scope of a judge to make the proper direction, nor of a jury to understand it, but it does involve some difficult concepts in terms of the jury grasping the direction presented to them orally, as is the case in Western Australia, where written directions do not accompany the jury to the jury room, and bearing that in mind. Certainly, in my view, section 401, section 402, of the Criminal Code permits the framing of an indictment in this fashion but it may create a problem for the trial process.
HEYDON J: It is almost an abuse of process, is it not, to formulate an indictment in this way?
MR SUTHERLAND: Well, I suppose another way of putting it, your Honour, would be to say it sets the bar very low from the prosecution’s point of view in terms of establishing the elements of the offence.
HEYDON J: It launches the case onto a sea full of icebergs and floating wreckage. It is almost bound to miscarry in some way.
MR SUTHERLAND: Yes, I agree. There is a considerable risk of that.
HEYDON J: It would have been simple to have had a third charge, namely breach of the restraining order, and taken it out of the first charge.
MR SUTHERLAND: The difficulty with that is that a breach of a restraining order cannot on its own be included in an indictment. It is a simple offence.
GLEESON CJ: Yes. Where does it fit into the statute. Section 401 is the offence.
MR SUTHERLAND: Section 595 I think is the provision, from memory, which talks of what can be included.
GLEESON CJ: Do we begin with section 401?
MR SUTHERLAND: Yes, you begin with section 401.
GLEESON CJ: Can we just have a look at that. This was a charge of an offence under 401(1)(a), is that right?
MR SUTHERLAND: Yes.
GLEESON CJ: And the relevant “circumstances of aggravation” were those referred to in section 400(1)(a)(vi), is that right?
MR SUTHERLAND: Yes.
HEYDON J: There is also paragraph (b) though, is there not?
MR SUTHERLAND: Section 401(2)(a) and it arises this way. It was alleged against Mr King that he was “in the place of another person” - if you go to 401(2) - and he was accused of committing “an offence in the place of . . . that other person”. The offence must then be specified in the count in the indictment and the offence that was specified here was that of breach of restraining order.
GLEESON CJ: Just a minute. That is the “offence” referred to in section 401(2), is that right?
MR SUTHERLAND: Yes, your Honour.
GLEESON CJ: So the restraining order had nothing to do with the circumstances of aggravation?
MR SUTHERLAND: No. The circumstances of aggravation arise as a consequence of the assertion that the applicant:
immediately before the commission of the offence . . . knew or ought to have to have known that there was another person . . . in the place –
that is one circumstance of aggravation, but there were two that were pleaded. The other circumstance of aggravation is that in the course of that particular incident he detained Sandra King. In fact, they were expressed the other way around.
GLEESON CJ: Now, tell me, is trespass an offence?
MR SUTHERLAND: Under the Police Act in Western Australia there is an offence of being on premises without lawful excuse.
GLEESON CJ: All right. Let us pause there. Suppose the “offence” referred to in a particular case referred to in subsection (2) was that that you just identified. The Crown has to prove under part of subsection (2) that the offender is in somebody else’s home, if I can oversimplify it, without the homeowner’s consent, but if the offence allegedly committed is the offence of trespass that you have just identified, that is the same thing as being there without lawful excuse.
MR SUTHERLAND: Yes. It is a very similar thing, certainly.
GLEESON CJ: It is an aspect of this crime created by section 401(2) that the “offence” referred to in the first line of subsection (2) might be simply being in somebody else’s house without their consent.
MR SUTHERLAND: I think in that particular case it would be absolutely clear that the two elements were so similar as to be virtually identical.
GLEESON CJ: They are identical in this case, are they not? I mean, the element of consent?
MR SUTHERLAND: In effect, I think they are. I would just make the observation that you could go into somebody else’s house and breach a restraining order in a different way, such as by using the telephone to ring the complainant saying, “I’m in your house. Why aren’t you here?” The telephone call would breach the restraining order. But in this case it is the, in effect, as a matter of fact, the same thing.
GUMMOW J: Where do we find the text of the restraining order?
HEYDON J: At page 450 in volume 2.
GLEESON CJ: Is the relevant part of it what appears at page 450 in about the middle of the page, “enter upon”?
MR SUTHERLAND: Yes, and indeed the way in which this particular case was run it was that aspect of the restraining order that was relied upon, as I understand the position.
GLEESON CJ: Now, where does the matter of consent come into it?
MR SUTHERLAND: The matter of consent arises from section 62 of the Restraining Orders Act.
GUMMOW J: So is 61(1) an absolute offence?
MR SUTHERLAND: No, in effect it is not and in practical terms it could not be. You must know that you are committing the offence and the example I would give is if you were in the street and you saw the person protected and you went out of your way to accost that person, clearly you would be in breach; if you accidentally bumped into the person, you are not.
GUMMOW J: But is that because of the application of the general provisions in the Code about criminal responsibility ‑ ‑ ‑
MR SUTHERLAND: I believe that that is the answer to it.
GUMMOW J: ‑ ‑ ‑ in Chapter V, “Accident etc”, “Mistake”, “Extraordinary emergencies”, et cetera.
MR SUTHERLAND: That is the view that I take. I do not know whether my learned friend would take the same view, but it is not absolute, in my submission. It is one that requires proof that you behaved in a way that is prohibited with the knowledge that you were doing it, not accidental.
GUMMOW J: What is the understanding in Western Australia as to the relationship between Chapter V of the Criminal Code and the creation of offences in all sorts of other statutes dealing with a wide miscellany of things.
MR SUTHERLAND: From memory it is the definition of “offence” in the definition section.
GUMMOW J: Of the Code?
MR SUTHERLAND: Of the Code.
GUMMOW J: Which gives it this umbrella effect.
MR SUTHERLAND: Yes, it describes, from memory, offences as crimes, misdemeanours or simple offences.
GUMMOW J: Yes.
MR SUTHERLAND: And the provision that I was talking about that enables the pleading of a simple offence in 401(2) is also contained in the Code and I was saying off the top of my head I thought it was 595, but I may be wrong about that.
GLEESON CJ: So the problem that we are looking at arises out of the interaction between section 401(2) of the Criminal Code and section 62 of the Restraining Orders Act.
GUMMOW J: When it is all put in the one charge, as Justice Heydon has been saying.
MR SUTHERLAND: Yes.
KIRBY J: You were going to take us to Gidley. What does Gidley say that throws any light on these issues?
MR SUTHERLAND: The reference to Gidley, which is ‑ ‑ ‑
GUMMOW J: Just before you go to Gidley, is there anything in Part V dealing with consent?
MR SUTHERLAND: Of the Code?
GUMMOW J: Yes.
MR SUTHERLAND: Not to my recollection.
GUMMOW J: That is why we keep finding it specifically in other sections.
MR SUTHERLAND: That is right, and in the Restraining Orders Act, in fact, there is a specific incorporation of the provisions of section 319 of the Criminal Code into the Restraining Orders Act to define “consent” for that particular purpose.
GUMMOW J: Section 319?
MR SUTHERLAND: Yes. This definition is contained in 319(2):
“consent” means a consent ‑ ‑ ‑
GUMMOW J: That is for sexual offences.
MR SUTHERLAND: That is the section in which it is contained and it is the reference to that particular definition that is contained in section 62(1) of the Restraining Orders Act.
GUMMOW J: Just a minute. Yes, I see. It is fairly lazy drafting, but there it is. Yes.
MR SUTHERLAND: It does require a certain amount of flicking back and forth to get to grips with it. It takes me back to the point that it was a remarkable feature of this case that that consent defence seems to have eluded everyone at the trial. The only person it did not elude was the applicant when he was first arrested. He addressed the issue ‑ ‑ ‑
KIRBY J: He kept saying he had been to the police and they had given him advice on the matter and that the advice they had given him was that he could go if he had consent.
MR SUTHERLAND: If he were invited was the way he expressed it, but in layman’s terms I think he was talking about that notion of consent. In fact, the history of the matter was that there had been, according to the complainant’s evidence, seven meetings. Now, the gloss that she put on those meetings was, of course, that she had not been terribly happy about them, but, of course, if the applicant had gone into evidence the jury would have had a countervailing view of that. But certainly it was the case at the outset that he said, “Look, that’s my understanding”, and that really in the whole case seems to be the only point at which a relatively correct or fairly accurate analysis of the position was made.
Of course, the applicant did not make that point at trial, so you must infer from that that something has occurred between that initial understanding, the correct understanding, and the events that then transpired, including the trial. At some point he has been deflected from that understanding. He may have been deflected at a fairly early stage by the police officers themselves because in the course of the interview the opposite view was put by those officers that the restraining order means what it says. I suppose a police officer on the beat is going to take a fairly concrete view of these things in the nature of the work that he does.
Thereafter the applicant had two other counsel prior to the counsel who appeared at trial and it seems to have just disappeared off the radar screen as far as he is concerned, and when you look at one or two aspects of his questioning he seems to have coped reasonably well with some of the concepts, one of which was credibility. I notice that at one point he sought to question the complainant about evidence that she had given at a bail hearing and he clearly understood the significance of what he was doing there. Again, that is an area where he was somewhat deflected by the trial judge from following that course of questioning.
KIRBY J: We are not concerned with credibility as distinct from consent, are we?
MR SUTHERLAND: Credibility I think is relevant in this sense, that had the trial been conducted according to law, had the applicant realised that there was this burden upon him, it is inconceivable that he would not have gone into evidence. In support of that I draw your Honour’s attention to the comments made by counsel that he had been recently instructed and there were a number of things that he needed to attend to, the issuing of subpoenas and so on.
KIRBY J: Then he entered into the cross‑examination of the complainant halfway through, is that correct?
MR SUTHERLAND: Yes, he continued with it.
KIRBY J: And then the accused, your client, was so unimpressed with his performance that he sacked him after the cross‑examination, is that correct?
MR SUTHERLAND: He dispensed with him during the cross‑examination.
KIRBY J: During, I see.
MR SUTHERLAND: And then persisted with his cross‑examination and, as I say, he did seek to raise this particular issue about the evidence previously given by the complainant. He sought to attack her credibility. He had an understanding of the importance of that, yet had no understanding of the importance of going into evidence to establish that question of consent.
GUMMOW J: Now, can we just look at the Restraining Orders Act again? There had been a freestanding prosecution for a breach of section 61?
MR SUTHERLAND: Yes.
GUMMOW J: Consent would enter only under 62, would it not, and the position of the Crown would not be touched, would it? In other words, 62(1) creates a defence and that is it but it is a defence upon “the person who is bound by the order” and everyone takes that to satisfy to reasonable probabilities, is it not?
MR SUTHERLAND: Yes, and, in fact, if your Honour looks at ‑ ‑ ‑
GUMMOW J: Similar words as to consent. There would not be a Woolmington superadded factor, would there?
MR SUTHERLAND: No, not in my view.
GUMMOW J: That comes about because of the creation of an offence upon an offence by 401(2). That is the cause of the conundrum, is it not, because the offence created in 401(2) says “without that other person’s consent”?
MR SUTHERLAND: Yes.
GLEESON CJ: If the “offence” referred to in 401(2) was armed robbery, you would not have a problem.
GUMMOW J: Yes.
GLEESON CJ: It is because the “offence” referred to in 401(2) in this particular case is an offence of a kind to which consent is an answer that you have the problem of marrying the first line of subsection (2) with the second line of subsection (2) and then of telling the jury the reasoning process they are supposed to go through.
GUMMOW J: It makes it very hard for everyone involved, really, but there it is.
MR SUTHERLAND: It certainly does.
GLEESON CJ: I am trying at the moment to think of other examples. The examples that you gave earlier are not examples of the problem at all; they are just examples of cases where the accused carries the onus of proof on a particular issue.
MR SUTHERLAND: That is right.
GLEESON CJ: They are commonplace. But I have been trying to think of another example of a case in which the same fact is an element of the offence and also potentially an element of a defence by way of confession and avoidance.
MR SUTHERLAND: One example might be entering premises, being in a place without consent and therein committing a sexual offence, where the issue of consent arises and the question of mistake could arise.
GLEESON CJ: No, it is a different kind of consent. One is consent to being inside the house and the other is consent to something else.
MR SUTHERLAND: Yes.
GLEESON CJ: I am trying to think of a case in which fact X is an element of the offence that the Crown has to prove and is also, for some reason, potentially an element of a defence by way of confession and avoidance. At the moment, I cannot think of one. I am bound to think of one in a moment ‑ ‑ ‑
MR SUTHERLAND: I clearly went in the wrong direction there and I understand the point that your Honour is making. I cannot advance an example.
GLEESON CJ: Well, it is Mr Stone, really, who I think has the principal obligation to assist us in relation to this problem.
MR SUTHERLAND: That discussion so far has gone along a particular path that I must confess I did not anticipate. I wonder whether it might be appropriate simply to at this point deal with the issues as I understood that they emerged, that is, that there was a concession on the part of the Crown that the judge at trial had erred, that that was upheld by the Court of Criminal Appeal and that the thrust of the argument for the applicant is that the Court of Criminal Appeal failed to engage adequately in an analysis of the context in which the error occurred, dealing with the issues that arose in Wilde.
GLEESON CJ: You were going to tell us what you take from Gidley?
MR SUTHERLAND: Yes, certainly. The reference that I have in my list is R v Gidley [1984] 3 NSWLR 168 and the comment that was made by Justice Hunt at 181, commencing between D and E:
The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case.
Now, with regard to what it was that his Honour Judge Nisbet said in the passage that I referred your Honours to, I do not think he fell into that second error. He did not advise Mr King as to how he should conduct his case. But he did fail to advise him concerning his rights and, as a consequence, Mr King was not put in a position where he could make an effective choice. “Such information and advice” in that particular comment must necessarily, by necessary implication, be “correct information and correct advice”, and that simply did not occur at that point in the trial where the trial judge was very directly telling Mr King his position, which was that he had the right to remain silent because there was no burden upon him. The upshot of that is that ‑ ‑ ‑
GLEESON CJ: What was the page of that reference again you gave us earlier?
MR SUTHERLAND: Page 181.
GLEESON CJ: No, the page reference to the application book.
MR SUTHERLAND: It is at 326, commencing at line 23.
GLEESON CJ: Thank you very much.
KIRBY J: Now, 62(1) is not a defence, as such, to 401(2) of the Code, is it?
MR SUTHERLAND: No.
KIRBY J: It is only a defence to the charge of breaching a restraining order?
MR SUTHERLAND: That is right.
KIRBY J: It is important to keep the two separate. Did the trial judge do that or not, in your submission?
MR SUTHERLAND: He did not because he said, in effect, in the circumstances of this case you can take it that that offence has been committed. He did not leave it for the jury. He said - and that is contained in the application book at volume 2.
KIRBY J: I think you quote this in your written submissions.
MR SUTHERLAND: Yes, I did.
KIRBY J: We had better have the context though.
MR SUTHERLAND: Sorry, it is volume 1, page 358 commencing at line 45, where his Honour commenced to explain to the jury that element of count (1) relevant to the commission of the offence of breach of a restraining order.
GUMMOW J: Do we find anything in the summing up which is a translation for lay people of the conjunction between these two statutes which gives rise to all these problems?
MR SUTHERLAND: In effect it was avoided and the manner in which was avoided was by his Honour at this particular reference saying:
the position is that it’s clear and unequivocal in its terms and there’s no issue but that Mr King was in the place of his wife in breach of that violence restraining order.
GLEESON CJ: He was going through these elements one by one and by the time he got to the element of breach of the restraining order he had already told them that the Crown carried the onus of proving that he was there without her consent.
MR SUTHERLAND: Yes.
GLEESON CJ: Is it right that if he was there without her consent there was a breach of the restraining order?
MR SUTHERLAND: That is correct, as far as it goes.
GLEESON CJ: What is the rest of it?
MR SUTHERLAND: That there is scope for a person charged with breach of a restraining order to establish to the contrary.
GLEESON CJ: But the context in which the judge told them there was no issue about a breach of a restraining order was that he had previously told them that the Crown had to prove that he was there without her consent. Leaving aside questions of onus of proof which we have already discussed, it is right to say, is it not, that if he was there without her consent there was no issue about whether there was a breach of the restraining order?
MR SUTHERLAND: He took it further than that. In my submission, he removed the consideration of that question of consent from the jury by what he said at page 358 line 43 onwards.
KIRBY J: Your position has to be, as I understand it, that normally in a criminal trial and in a criminal trial on section 401 of the Code, the accused can remain silent and in the accusatorial nature of the trial put the Crown to the proof, but in respect of a breach of a restraining order there is a particular provision that requires if he is to have a defence that he must consider whether he goes into evidence himself. Therefore, to the extent that he was misled by the way the judge directed the jury and conducted the trial, he never really had the chance to turn his attention to that issue of consent which might have propelled him into evidence which might have provided evidence that would have been helpful to his defence not only of the restraining order offence but also of the section 401 offence on the common issue of consent.
MR SUTHERLAND: I agree with that. Going into the witness box in those circumstances would not only have involved addressing the question of the burden upon him of proving consent to the breach of the restraining order allegation, it would also have had an impact on the other question where consent is relevant.
KIRBY J: At least he had to have his mind directed to making an informed decision one way or the other on that point, a decision which conformed to the law.
MR SUTHERLAND: Yes.
KIRBY J: One might form a view it seems unlikely in the events, and the facts and his false explanation, knocking on the door, that he would be able to prove it. We just do not know because he did not get the chance.
MR SUTHERLAND: We just do not know and we do not know what his explanation was for what he said to the police. He may have had a good explanation for that, in the circumstances, and the lies direction would had to have dealt with that particular piece of evidence. It is not absolutely critical, of course, that a person go into the witness box even when there is a burden upon him, allowing for the sort of situation where the credibility of the complainant perhaps had been impugned to such an extent as to make it, on balance, unnecessary, but this was not that sort of case.
KIRBY J: If you got up on that point, which in a sense is, as I see it, a procedural fairness point of the way the trial unfolded, you do not have to consider, or do you have to consider, the proviso? I know you want to get into this argument about a fundamental failure of the trial but my observation – I think we looked at this in Festa – is that not very many cases have got up on that basis. It is a relatively rare thing. Justice McHugh sometimes propounds it but it is not often successful and he is not here today.
MR SUTHERLAND: The only authority that comes to mind is the one that I cited, Couper, in the New South Wales Court of Appeal.
KIRBY J: Yes, but what about this Court? I mean, it has been referred to in Wilde and a couple of other cases. Have you collected the cases where that particular aspect, the proviso or the non‑application – that you do not get to the proviso, has been upheld in this Court?
MR SUTHERLAND: The cases that I have looked at are cases such as Gilbert, Conway, Festa, Heron, which was handed down earlier this week.
KIRBY J: Did any of them get up on the fundamental failure of the trial, that it was not a trial at all and therefore you did not get to the proviso?
MR SUTHERLAND: None of them did.
KIRBY J: It was argued in some of them.
MR SUTHERLAND: It was argued even in Wilde and did not get up in Wilde, although the proposition was ‑ ‑ ‑
KIRBY J: Has it ever got up?
GLEESON CJ: It might get up if somebody ordered trial by battle.
KIRBY J: Then it has to be a pretty extreme case.
MR SUTHERLAND: The one authority that I can refer to is the one of Couper where it predates Wilde but, essentially, that the proposition is that which is contained in Wilde.
KIRBY J: This was the seeds of the Wilde theory.
MR SUTHERLAND: It is referred to in Wilde, certainly. Chief Justice Street at page 5, without referring to what the authorities were, at the middle of the page said:
The line of authority on the application of the proviso requires an evaluation of the significance of the irregularity, not the weakness of the defence case.
KIRBY J: But the proviso is a global – I mean, it was operating right throughout the Empire. I mean, it has been there since 1906 in the Imperial Act or the English Act and it has been followed and copied as a template throughout Commonwealth countries. If this is such a big question that you do not even get to the proviso in certain fundamental faults, you would think there would be at least a few cases where the point had been made out.
MR SUTHERLAND: Perhaps those cases do not mention the proviso because the appeal is simply allowed without reference to it.
KIRBY J: That might be so, but can you point to any of them?
MR SUTHERLAND: No, as I stand here I cannot.
KIRBY J: I cannot remember them. I think Justice McHugh has on occasion said that in this Court. In fact, I am sure on one or two occasions that his Honour has said, “This is not a proviso. This is a Wilde Case. This is a fundamental failure of the trial.”
MR SUTHERLAND: He certainly said so in Krakouer.
KIRBY J: He has said it in other cases, too.
MR SUTHERLAND: He may well have done, but the citation that I draw your Honours’ attention to in Krakouer (1998) 194 CLR 201 at page 212 ‑ ‑ ‑
GLEESON CJ: No, that cannot be right.
MR SUTHERLAND: Sorry, it is at page 226. At paragraph 74 he talks of:
the trial judge’s misdirection took this critical issue out of the jury’s hands.
And, in effect, by his Honour the trial judge saying as he did, there is no question but that Mr King was in the place of Mrs King in breach of the restraining order.
GLEESON CJ: But if you look at the middle of page 75, all that his Honour is saying is, “I can’t presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred”. That is a conclusion expressed in terms of the section of the statute to which the proviso is a proviso. The proviso is just part of, in New South Wales I think, section 6 of the Criminal Appeal Act and what a Court of Criminal Appeal is always doing is applying the statute.
MR SUTHERLAND: Yes.
KIRBY J: Where is it in the Code in Western Australia?
MR SUTHERLAND: In 689(1).
GUMMOW J: It is set out at page 211 of Krakouer actually.
MR SUTHERLAND: But it is the terms of ‑ ‑ ‑
GLEESON CJ: It is part of section 689(1).
MR SUTHERLAND: Yes, 689(1).
KIRBY J: It is a definitional point really. It is to the extent that there has not been a trial at all and therefore the words of section 689, you would have to be saying that, in effect, there is no real verdict of the jury or there is no ‑ ‑ ‑
MR SUTHERLAND: The proceedings so far miscarried as not to have been in truth a trial.
GLEESON CJ: But does it amount to anything more than a proposition that there are certain types of irregularity which produced the consequence that you can never say there has not been a miscarriage of justice for the purposes of section 689(1)?
MR SUTHERLAND: Inevitably to move to the proviso you must have found there was a miscarriage of justice in the terms in the first part of the section, but it is not every miscarriage of justice that is going to ‑ ‑ ‑
GLEESON CJ: No, but some verbal formula like saying that the proviso does not apply really just deflects attention from the words of the statute. What you have to do in every case is apply section 689. There may be some forms of error or irregularity that are so fundamental that the conclusion that there has been a miscarriage of justice is inevitable and you do not get into looking at the strength of the evidence against the accused.
MR SUTHERLAND: And it may be in some cases that there is an aggregation of mistakes that leads to that particular conclusion ‑ ‑ ‑
KIRBY J: But that seems to be an application of the proviso, not a procedure whereby you say you do not even get to the proviso because it is just really not a trial or it is not a true conviction, it is not a true verdict. That, as I take it, is the logical point that Justice McHugh and others who propound the Wildean view are saying, that the proviso is posited on there having been a trial that at least conforms to minimal standards and you do not get to it unless you have reached those standards. It would be presented in a case, for example, where a judge directed a jury that the Crown has to prove the case on the balance of probabilities. Now, is that a case for the proviso or is that a case where it is just so misconceived that it has not been a proper trial?
MR SUTHERLAND: Yes, it is in that category.
KIRBY J: However, you have not been able to find throughout the whole British Empire and Commonwealth and all the dominions of the Crown and all the places where this section has applied for a hundred years a single case where this logical presupposition has got up.
GUMMOW J: Part of the problem is there would have to be jurisdiction to give effect to it. In other words, 689 is creating a new right of appeal.
GLEESON CJ: The…..that is being referred to destroys the right of appeal as well as the application of the proviso.
KIRBY J: It does not look as though this has a lot of life in it, this aspect of your case.
GUMMOW J: There is a distinction in 689 between “miscarriage” and the addition of the word “substantial” in the proviso.
MR SUTHERLAND: Yes.
KIRBY J: Did Justice McHugh approach the matter in this way in Festa, do you know?
MR SUTHERLAND: I would have to refer to Festa, which I do not have in front of me.
GLEESON CJ: I think in Festa he looked at the strength of the Crown case against the accused. That is all the members of the Court did - an exercise that would be irrelevant, on this approach.
KIRBY J: There has definitely been a case in the last two or three years where his Honour has embraced again this principle, so I am just trying to make sure that I am being fully alert to it, as I understand it.
GUMMOW J: You have to read section 704 of the Criminal Code with 689, because 704 removes any other form of relevant appellate process. So all you have is what you are given by this chapter of the Code, and if you take yourself out of 689 you are in a void, it seems to me.
GLEESON CJ: If you look at what Justice McHugh said in paragraphs [125] and [126] of Festa, he just examined the strength of the Crown case against the accused.
MR SUTHERLAND: I think it is inevitably the case that a discussion about the conduct of the trial, the context in which the error occurred and so on is inevitably going to cover the same ground. Both the issues, I suspect, and my recollection of the cases is that they tend to be canvassed in that global fashion.
GLEESON CJ: Your point here, good or bad, is that your client should have been told he had an onus of proof, and if he had been told he had an onus of proof it is likely that he would have given evidence and the outcome of the trial might have been different.
MR SUTHERLAND: I think it goes further than that. The judge took the matter of the element in count (1) concerning the breach of the restraining order away from the jury by what it was that he said. There is no question but that he has breached that order. That was a question for the jury to determine in the circumstances.
GUMMOW J: Where do we actually see that said?
MR SUTHERLAND: That is at page 358 volume 1:
there’s no issue but that Mr King was in the place of his wife in breach of that violence restraining order –
and went on to talk about ‑ ‑ ‑
GUMMOW J: Second-last line.
MR SUTHERLAND: That is right. He goes on to talk ‑ ‑ ‑
GLEESON CJ: And having said what he said at line 30 on 358. So he has got to that point on the assumption that your client was there without her consent.
MR SUTHERLAND: I do not think his Honour applied his mind to the question of consent in that particular element.
GLEESON CJ: Well, he applied his mind to consent about 30 seconds earlier.
MR SUTHERLAND: Yes, in the context of being in the place.
GLEESON CJ: Yes, and you have already agreed with me that if he was there without her consent, there was no other issue in relation to whether there was a breach of the restraining order. Your problem, your complaint, relates to the matter of onus of proof.
MR SUTHERLAND: It does and it has that flow‑on effect in terms of the onus of proof that the applicant was simply not put in a position where he could properly apply his mind to the real question that he needed to.
KIRBY J: Well, now, if your case of Wildean failure at the threshold does not get up, you are in the realm of the proviso and that is exactly where the Court of Criminal Appeal saw this case. They accepted that a misdirection had occurred. They then went on to apply the proviso, which is their responsibility under the Code, and they came to a view, evaluating the matter. So why would this Court second‑guess the decision of the Court of Criminal Appeal? Why is it wrong to say that on the material that was before the trial court the conviction of your client was inevitable, or that there has been no miscarriage of justice in all the circumstances?
MR SUTHERLAND: The observation I make about the approach of the Court of Criminal Appeal takes me to page 618 of the application book at line 29 where her Honour Justice Wheeler said:
In this case, in the whole of the context of the trial, the issue of whether the Crown had proved lack of consent beyond reasonable doubt was squarely before the jury.
That was correct as far as it went and the difficulty was that on an analysis of the entire context of the trial the Court of Criminal Appeal would have been able to see that the trial had gone off the rails prior to the point where the judge was addressing the jury and analysis of the events throughout the course of the trial was, in my submission, required in order for the Court of Criminal Appeal properly to analyse, as it is required to analyse, the question in the context of the trial.
I take your Honours back through those aspects of the trial where things occurred that were relevant to the consideration of the context. In my reply paragraph 5a I refer to those, the representation question and, in fact, that that representation – counsel recognised the difficulty that he was in. His initial approach – and this is at page 3 of the application book through to page 8 – was essentially to ask for an adjournment and to explain the difficulties that he was labouring under.
Now, at that point Mr King was represented, but certainly was not, it would seem, told that he had this particular onus or defence available to him. Moving on from there, at the end of the trial, the applicant had not given evidence but there was a clear indication at the commencement of the trial that he had evidence that he wanted to lead and somehow got deflected, and there I refer to what it was that his Honour the trial judge said in that passage that I read at page 326 of the application book.
KIRBY J: Where did your client indicate he had evidence to call?
MR SUTHERLAND: It was done through counsel, and if your Honours go to page 3 of the application book, at line 16 counsel talks initially of an adjournment and the reasons for that and at 35 a subpoena addressed to some telephone records and over the page at 12:
there are witnesses who Mr King instructs me he has spoken to Ms Amidzic and his earlier solicitor Mr Crispe in regard to having subpoenaed ‑ ‑ ‑
KIRBY J: They were not called, of course. He elected to call no evidence and to address last.
MR SUTHERLAND: Yes, and indeed, what his Honour said at 326 in front of the jury to the applicant about continuing with his right to remain silent, he referred back to what had been said the previous night, and that is contained at page 240 at line 12 where the question of addresses was canvassed and Mr King was advised, at the middle of the page, by his Honour, that he would go first if he went into evidence.
Interestingly there, when you go back to 326, what his Honour says in front of the jury about “the right to continue with your right to silence”, which he emphasised significantly, really was not what the discussion the previous night was about.
GUMMOW J: There is big emphasis on 240 about who is going to talk to the jury last.
MR SUTHERLAND: Yes.
GUMMOW J: There is a certain suggestion of Mr King being better off if he is in that position.
MR SUTHERLAND: It is certainly reinforced at 326. In fact, there is something persuasive about the style of speech. That gets back to Gidley. It is in the context of an unrepresented accused and the need for advice to be given as opposed to strategy discussed and yet this almost gets into the strategic area, absent proper advice about the law.
The other aspects that, in my submission, the Court of Criminal Appeal should have taken into consideration was that the mistake emerged at a very early stage. The learned Crown Prosecutor made the same errors, and that is in her opening address at page 31 at line 15, and that part of her opening goes through for the next couple of pages.
KIRBY J: The Court of Criminal Appeal substituted an order that the appellant there be eligible for parole. Was the appellant then admitted to parole?
MR SUTHERLAND: Yes, he was. His present situation is that he has twice been released to parole and twice been returned to prison for breach.
GLEESON CJ: Why?
MR SUTHERLAND: It is not in the application book but I can indicate that on the first occasion it was alleged that he had failed to comply with some of the requirements of his parole program concerning, in particular, counselling for gambling and some aspects about his conduct concerning the way he interacted with other people. The Parole Board, with that particular instance ‑ ‑ ‑
KIRBY J: Who is the counsellor who gives that instruction?
GLEESON CJ: I know a number of people who have that problem.
KIRBY J: You might let the Court know who the counsellor is.
MR SUTHERLAND: I am sorry ‑ ‑ ‑
KIRBY J: I am only joking. Move on.
MR SUTHERLAND: I know, I just lost the track of it there. He was in fact on parole at the time that he appeared to deal with the special leave matter and he was returned to prison after that because he took a postcard to the home of his family, and that was in breach ‑ ‑ ‑
GLEESON CJ: Where is he right now?
MR SUTHERLAND: In prison.
KIRBY J: This is for breach of parole?
MR SUTHERLAND: As a consequence of breach of parole. That is not a separate offence. It is an administrative act that returns him to prison and the impact of it is that unless he is re‑released to parole, at this point he will do the full seven years without remission.
KIRBY J: And you are not seeking to challenge the sentence now?
MR SUTHERLAND: No, I am not. There are aspects that Mr King can pursue in terms in re‑release on parole.
KIRBY J: Justice Gaudron was concerned – I read the special leave transcript – that an error had happened in sentencing your client. I do want to open a point that you are not seeking to canvass on behalf of your client, so long as he knows that that issue is not being dealt with by this Court and that it did give rise to a grant of special leave on the point, or at least to the referral of the point to the Full Court, and that it appeared to concern Justice Gaudron at the time the special leave argument was held.
MR SUTHERLAND: Yes.
GLEESON CJ: We are not inviting you to tell us about your communications with your client.
MR SUTHERLAND: The abandonment of that particular point arose from the analysis that I made of the power that the DPP has to frame an indictment in the way that it did.
GUMMOW J: We did not know about that when we were dealing with the matter in the first instance.
MR SUTHERLAND: The other problem that arises is that the question of the severity of the sentence was not dealt with in the Court of Criminal Appeal. I am surprised at that because ‑ ‑ ‑
KIRBY J: I think that is not quite right, is it? Did not the Court of Criminal Appeal say that the argument of manifest excess was not tenable?
MR SUTHERLAND: What was argued in the Court of Criminal Appeal was the failure to take into account matters in litigation rather than the excess.
KIRBY J: Anyway, you have given it a lot of thought and you have withdrawn that aspect of the matter, and we are not concerned with it.
MR SUTHERLAND: I took the view that I was unable effectively to argue it.
GLEESON CJ: You do not have to justify your decision.
MR SUTHERLAND: Yes. If I am wrong, I must wear the consequences of that in terms of dealing with Mr King. The Court of Criminal Appeal dealt with matters of mitigation, it dealt with the question of parole, it reversed the decision ‑ ‑ ‑
KIRBY J: I do not think you need to go any further on the issue of sentence. If it is not now before us, it is not ‑ ‑ ‑
GLEESON CJ: Thank you.
GUMMOW J: What we were concerned with was getting Mr King to get some competent legal advice, which he has obviously now had.
KIRBY J: That is meant as a compliment. It is as close as this Court ever gets.
MR SUTHERLAND: That takes me back to the issues that I was seeking to canvass about the failure of the Court of Criminal Appeal to address the various issues that, in my submission, it should have addressed in terms of the context of the trial and I ‑ ‑ ‑
KIRBY J: Well, I think you have dealt with all that, have you not?
MR SUTHERLAND: Yes.
KIRBY J: And your written submissions are good. You have given us references to the transcript, so I think we have it.
MR SUTHERLAND: Yes. Well, unless there is some particular aspect that otherwise arises, those are my submissions.
GLEESON CJ: Thank you, Mr Sutherland. Yes, Mr Stone. Mr Stone, you have heard the exchange with Mr Sutherland. On page 618 at line 44 Justice Wheeler refers to the need for “a very careful direction”. Do you see that?
MR STONE: Yes, I do, your Honour.
GLEESON CJ: Could you tell us what the direction might be?
MR STONE: The direction would need to involve the jury being instructed in relation to the consent element of the offence of burglary, that the Crown bore the burden of proof to the standard of proof beyond reasonable doubt in relation to, if we could call that the first element. In relation to, if we can call it the fourth element, the breach of restraining order offence and the consent issue that is thrown up by section 62, that the accused bears a burden on a balance of probabilities.
GLEESON CJ: But burdens of proof do not exist in the abstract; they exist in relation to proof of facts.
MR STONE: Yes.
GLEESON CJ: And there is only one fact in contest here and that is the fact of consent. How can both parties bear the burden of proof in relation to the one fact?
MR STONE: It is difficult and confusing, as her Honour Justice Wheeler points out, but in the unusual circumstances of this case – and I say that because the indictment could have been framed in other ways – that the consent issue may not have necessarily have been the same in relation to both elements of the offence. Had the breach of the restraining order particular been anything other than entry into the house, then the issue would not have revolved around that same factual issue, namely whether Mrs King had given her consent for the applicant to be there.
KIRBY J: But that would not be an unusual term of a restraining order; it would be virtually universal, would it not?
MR STONE: Well, it is in the sense that ‑ ‑ ‑
KIRBY J: Because that is often what the person getting the restraining order is concerned with, that the defendant will come into their presence and their presence will include generally where they sleep and that will normally be their house.
MR STONE: Yes, I accept that. So that, in the terms of this violence restraining order, which simply brings in a series of scenarios that they have drawn from the legislature itself, there are any number of ways in which it could have been breached. For example, the breach could have been his ‑ ‑ ‑
GUMMOW J: By telephone.
MR STONE: By telephone, his striking her with the door as he entered the house, by slapping her, by – I am looking at page 450 of the application book, your Honours – communicating or attempting to communicate.
GLEESON CJ: But what happened was that the prosecution selected as the form of breach a form that duplicated an element of the principal offence.
MR STONE: Yes. That is what makes this case unique, in that sense, and had the prosecutor opened on any of the others that were available, this situation would not have arisen in that sense.
KIRBY J: I may be misunderstanding Justice Gaudron’s statements on the special leave hearing. Were you at the special leave hearing?
MR STONE: No, I was not but I have read the ‑ ‑ ‑
KIRBY J: Have you read the transcript?
MR STONE: Yes, I have, your Honour.
KIRBY J: As I understood what her Honour was getting at, it was that where what was in essence a breach of a restraining order occurred, it was an unusual course for the prosecution to take to prosecute for home invasion and deprivation of liberty and that one would have not expected that that would have been the prosecutorial decision, something which we cannot review, and that was, I think, what led her Honour into concern about the level of the sentence, that this was, looked at broadly, a case of a breach of a restraining order in a familial situation, not a case of home invasion and essential restraint on the victim.
MR STONE: Yes, I understood that as being the understanding reached at the special leave stage, but clearly ‑ ‑ ‑
KIRBY J: Any way, the problem the Chief Justice has raised with you is the problem of principle that remains.
MR STONE: Yes.
KIRBY J: We have to say how that happens. Now, as I understand it, your answer is that it is a problem that has its source in the statute. You just have to instruct the jury seriatim on the one offence, the 401 offence, it is on the Crown and you have to deal with that separately and first and then once you have dealt with that you come to the breach of restraining order and on that matter it is on the accused.
MR STONE: On the balance of probabilities.
KIRBY J: And on a different onus and you have to deal with that and you have to deal with it separately. No doubt the facts will be the same for each but you have to reach each conclusion applying the law as it has been laid down by Parliament.
MR STONE: Yes.
GLEESON CJ: Is that what is sometimes called a shifting onus?
MR STONE: It is a shifting onus but it is still, nevertheless ‑ ‑ ‑
GLEESON CJ: Does it shift back again?
MR STONE: Yes, in the sense that the accused would raise the defence on a balance of probabilities, the Crown would seek to negative that beyond reasonable doubt.
GUMMOW J: Under 62?
MR STONE: Yes. It may be that in raising ‑ ‑ ‑
GUMMOW J: If this was purely a restraining orders matter, how do you say it would work?
MR STONE: If it was purely a restraining orders matter, the Crown would still bear the onus of proving each element of the restraining order offence beyond reasonable doubt. However, it is a defence to that charge for the accused to show on a balance of probabilities ‑ ‑ ‑
GUMMOW J: Wait a minute. The restraining order just for bad entry upon premises.
MR STONE: I am sorry?
GUMMOW J: The restraining order is simply for bad – relevantly – entry upon premises.
KIRBY J: It says nothing about phone calls or ‑ ‑ ‑
GUMMOW J: It does not say anything about consent.
MR STONE: No, one goes to section - it would depend upon how the – I might have misunderstood your Honour’s question, but it would depend how the particular restraining orders offence was particularised.
GUMMOW J: Yes.
MR STONE: How the breach was particularised.
GLEESON CJ: Plainly, consent, as the statute recognises, has to be a defence because she might have rung him up and said, “One of the children is very ill. Will you please come and help?”
MR STONE: Yes, indeed, but to go back then to your Honour’s question, yes, the Crown would bear the burden. If it is simply a breach of restraining orders offence which is dealt with summarily, the prosecution would bear the onus of proof of establishing each element beyond reasonable doubt.
GUMMOW J: Each element?
MR STONE: Yes, and the defence ‑ ‑ ‑
GUMMOW J: Each element, including negativing the defence?
MR STONE: Indeed. One would need to. The defence, of course, may be able to establish his case either on a balance of probabilities, which is accepted, or it may be ‑ ‑ ‑
GUMMOW J: Negativing the defence even if it….. I do not quite understand that.
MR STONE: The onus must still be on the prosecution to establish each element of the offence.
GUMMOW J: The offence does not include the question of consent.
MR STONE: If that defence is not ‑ ‑ ‑
GUMMOW J: In other words, it is not like 401(2).
MR STONE: Perhaps if I could just turn to the piece of legislation.
GUMMOW J: It does not say, “Without that other person’s consent”. That is not found in 61.
MR STONE: The way, as I understand it, the section 62(1) defence arises in relation to the Criminal Code offence of home invasion is that that defence could be raised on a balance of probabilities in relation to a particular element of, if you like, the home invasion offence, namely the breach of restraining order. It would still be incumbent upon the prosecution to establish that fourth element beyond reasonable doubt. It can be raised, as is being argued in this case, that the applicant says he had permission.
GLEESON CJ: We happen, very unusually and perhaps very strangely, to have a case in which an accused person is complaining about the fact that the jury were not told he carried an onus of proof.
MR STONE: Yes.
GLEESON CJ: That is not likely to be a typical case in which this issue will arise.
MR STONE: No.
KIRBY J: That is not the full picture though, is it? He is complaining that he was not told that on this matter he bore the onus of proof and if he wanted to deal with that he might have to consider whether on the second charge he gave evidence himself.
MR STONE: It is on the fourth element of the ‑ ‑ ‑
GLEESON CJ: That explains why we have the unusual situation that the accused is complaining, but in the ordinary case where an accused is represented by counsel and this issue arises, the accused might not want the jury to be told that the accused carries any onus of proof in relation to the fact of consent.
MR STONE: Of course.
GLEESON CJ: And we have to look at the matter of principle. Our task extends beyond simply dealing with the particular circumstances of this case. The next case that comes up in Western Australia where a husband is charged with home invasion where he could have been charged with breach of a restraining order, this issue is going to arise again.
MR STONE: I would say, with respect, not. Can I answer it in this way. This particular charge proceeded on indictment because of the criminality involved. If it was simply a breach of a restraining order that did not involve deprivation of liberty, did not involve striking of the complainant, did not involve the deceit, did not involve the complainant being in her own home, did not involve a complainant who had fled from a refuge and sought to keep secret her whereabouts, if it did not involve any of those aspects but was simply a breach of restraining order whereby some contact had been made by the accused husband with the protected spouse, that would have been dealt with summarily.
GLEESON CJ: I do not think we are entitled to assume that Mr King is Robinson Crusoe.
MR STONE: No, I accept that, but by the same token I think the respondent can say that it is unusual to have particularised the breach in the way it was in this case. Had it been particularised as an assault on the complainant for the purposes of the home invasion or threatening words towards her, this issue would not have arisen.
KIRBY J: But as the Chief Justice suggests to you, it is not going to be a completely unique factual situation. The events of this case are not all that unique.
CALLINAN J: Mr Stone, is this an answer, is this a possible approach? Section 62(1) says:
Subject to subsection (2), it is a defence to a charge of breaching a restraining order –
Do you see that?
MR STONE: Yes, your Honour.
CALLINAN J: When a person is charged under section 401 ‑ ‑ ‑
MR STONE: Subsection (2).
CALLINAN J: ‑ ‑ ‑that person is not charged with breaching a restraining order. So that section 62 does not have any application. I do not know, is that a possible ‑ ‑ ‑
MR STONE: My understanding is that the offence that was alleged to have occurred in the place where the home invasion occurred was a breach of restraining order.
CALLINAN J: Yes, but he is not charged with the breach of a restraining order. He is charged with a section 402 offence.
MR STONE: He is charged with committing an offence which is an element – perhaps if I can rephrase that ‑ ‑ ‑
GUMMOW J: It is the commission of another offence.
MR STONE: Yes, it is the commission of another offence whilst on the premises of another.
CALLINAN J: Yes, but the fact that if he is charged separately with that other offence there may be a special defence which he has to make out does not mean that when he is charged under the Code he is bound to make that defence.
MR STONE: Yes, your Honour.
CALLINAN J: The occasion just does not arise for him, not only for the very good practical reason that the Chief Justice has suggested, but also because, although it is an element of the offence with which he is charged that he has committed some other offence, it is not that other offence with which he is, in fact, charged.
MR STONE: No, the offence, in fact, that he is charged with is the home invasion offence. That is the offence that he faces.
KIRBY J: And is that under section 61?
MR STONE: No, that is under the Criminal Code, section 401.
KIRBY J: Of course, yes. Was he charged with an offence against 61?
CALLINAN J: No, he was not. I suppose it is a possibility, and an extremely remote one, that a conviction under – is that right, that a conviction under section 61 being open ‑ ‑ ‑
MR STONE: It could well have been – and I am not saying that is what has occurred in this case – that he could have been charged summarily with a breach of restraining order.
CALLINAN J: I know that, but when he is charged under section 401, is a breach of section 61 an alternative verdict? It is not, I take it?
MR STONE: No, it is not. I will just find ‑ ‑ ‑
HEYDON J: Section 598B.
MR STONE: Yes, the specific alternative is provided for under the Criminal Code, namely if he is charged under 401 he could have been convicted of the alternative, 401(2), or if he is charged with section 401(2) he could have been convicted of the alternative of 401(1).
CALLINAN J: Why is not what I put to you a possible solution, that he is simply not charged with an offence under section 61 to which a defence under section 62 has any relation and, therefore, section 62 does not come into play at all and, indeed, it would be ridiculous if it did for the further reason, the practical reason that the Chief Justice has suggested. It would be much better if the Crown has the onus beyond reasonable doubt throughout and no occasion at all rises for the satisfaction of any onus by the applicant. So that way you could resolve it as a matter of statutory construction.
MR STONE: It does, that does resolve the issue as such.
GUMMOW J: And commonsense resumes its seat.
KIRBY J: Where is the indictment in this?
CALLINAN J: Page 1 of the ‑ ‑ ‑
GLEESON CJ: Where is that restraining order again, Mr Stone?
MR STONE: Page 450, your Honour.
GLEESON CJ: Suppose he – I am looking at 450, a little over halfway down the page, and I am taking the next example of a breach of the order ‑ ‑ ‑
MR STONE: Yes, “approach within 100 metres”.
GLEESON CJ: ‑ ‑ ‑ “approach within 100 metres”. I think that probably just restates the problem.
MR STONE: Yes.
GLEESON CJ: It is unlikely to be 100 metres from the front door to the back of the house. I am trying to think of an example of a contravention of this restraining order that would not turn upon presence in the premises.
MR STONE: Yes, perhaps the damage. The third one down, your Honour.
GLEESON CJ: Yes, but it is hard to see how consent would arise in that, is it not?
MR STONE: No.
GLEESON CJ: I am trying to think of an example of a contravention of the restraining order that does not involve being on the premises and to which there might be a question whether she consented. At the moment, I cannot think of one.
MR STONE: It could be “in possession of a firearm”, taking a firearm into the ‑ ‑ ‑
GLEESON CJ: All right, well, suppose she had said to him “Come here quickly with a pistol and rescue us from a snake” – that is not a fanciful example – and he was then charged with contravening the restraining order. That is the offence, 401(2); he is there with a gun. He is saying “Hang on; I brought that gun because she told me to come and kill a snake”. That is a case in which the consent that is relevant to the alleged breach of the restraining order is different from the consent that is relevant under section 401(2).
MR STONE: The entry consent.
GLEESON CJ: Yes. How would you handle that?
MR STONE: It would still require a direction to the jury on the consent issue with respect to the home invasion.
KIRBY J: Could I just get this clear in my mind. Section 62 is a defence to 61. He has not been charged with 61. The only value of the restraining order is as an evidentiary matter, as it touches on the question of the other person’s consent. So how does 62 come into the case as a matter of legal direction? The answer to that is it comes in in evaluating the other person’s consent. That is the only way it can come in, is it not?
MR STONE: Yes.
KIRBY J: But we are not dealing with 62 as such. It is purely an evidentiary fact, as relevant to the question of consent or not. So it is not as if he has been additionally charged with a 61 offence and this is an endeavour to reconcile the two sections; it is purely an evidentiary matter, as it touches on the one issue of consent in the case, namely, that posed by the language of section 401(2) of the Code.
MR STONE: Yes, that is so.
CALLINAN J: Section 62 only comes into operation as any application when there is a charge under section 61.
MR STONE: Yes, I understand that that is what ‑ ‑ ‑
CALLINAN J: And if you approach it that way, it means that ‑ ‑ ‑
MR STONE: Section 62 falls away.
CALLINAN J: Yes, but also, it means that you do not have any problems about the application in an appropriate case of Chapter V of the Code, do you? Mistake, an accident, and things of that kind can still be invoked and have to be negatived by the Crown. They are not complicated then by any need to refer to section 62, because it seems that the only defence probably to a section 61 offence is section 62. We do not have to decide that, but that might be one view.
MR STONE: Yes, well, that certainly ‑ ‑ ‑
CALLINAN J: In any event, if you approach it that way, you do not have any problems about applying Chapter V in an appropriate case either, do you?
MR STONE: No.
GUMMOW J: If that is right, how does it leave this case? What happened in this case?
MR STONE: It seems then that his Honour has not gone into error in not ‑ ‑ ‑
GUMMOW J: He is talking prose without knowing it – or she was talking prose, I should say.
CALLINAN J: In fact, what he told the accused was perfectly correct.
MR STONE: Yes.
CALLINAN J: The accused could, if he had wanted to, have given evidence. If he had, all he had to do was raise a reasonable doubt. He did not have to prove consent, on the balance of probabilities or otherwise.
MR STONE: Yes.
CALLINAN J: He was not prejudiced.
KIRBY J: Given the terms of the indictment, it would have been quite wrong to turn the trial into a trial of an offence against 61 to which section 62 of the Act was a defence when the only offence that was alleged was under section 401 of the Code. Now, the only issue is whether you leg‑up 62, as the accused tried to do, by saying, “But I went to the local police station and they told me that I would not [be acting without the other person’s consent] if I had gone there pursuant to agreement.”
MR STONE: Yes. That, of course, was contained in his video recorded interview which was before the jury.
KIRBY J: And, whether as an evidentiary fact, that imported that inquiry and then directions to the jury that there was a defence under section 62 available to the offence against 61 which was relevant to their evaluation to the person’s consent but upon that defence it was a matter on which the accused bore the onus of proof and whether in that indirect way the issue of section 62 as relevant to the presence and quality of the person’s consent ought to have been explained and brought into the trial.
MR STONE: Clearly, it was not in this case and ‑ ‑ ‑
GLEESON CJ: The accused went to the police station, I presume, before the indictment was framed?
MR STONE: Yes.
GLEESON CJ: At that stage, he might have been charged with a breach of section 61. Indeed, I imagine, one of his complaints is that he was not charged with a breach of section 61 but was charged with the far more serious home invasion offence.
MR STONE: Yes.
KIRBY J: But I think he had gone to the police station long before the offence.
MR STONE: He had, indeed.
KIRBY J: He had gone and sought out to know what he could do under this restraining order and he had been told, “Well, if you go with an invitation, you are not going to be in breach of the restraining order.’’
GUMMOW J: That was perfectly correct.
MR STONE: The advice that he had been given?
GLEESON CJ: Was right.
MR STONE: Yes.
KIRBY J: So the issue is whether given how he raised that matter that took the trial, if it were to be fairly conducted, into what on one view is an ancillary or potentially dangerous side issue of the relevance of section 62 to his understanding of the consent of the complainant.
MR STONE: Yes. Perhaps if I can approach that in this way – and taking up the point that my learned friend has made, that there was a tactical, if you like, decision to be made – strategic decision to be made by the accused as to whether or not he should go into evidence or call evidence. If I can approach that in this way – and if your Honours would bear in mind at the same time that the evidence that had been led at trial against him on his entry and the way in which he entered the premises came firstly from the wife, Mrs King, which was to the effect that he was uninvited, he did not know her whereabouts and that he turned up unannounced, coupled with the ‑ ‑ ‑
KIRBY J: Can I say that all of these are evidentiary facts relevant to the 401 offence, whereas the whole point of a potential defence for the accused was he was saying, “Go back earlier than all this, go back to my conversation at the police station, and my understanding that if I am invited or if there is consent I can go there and that is all I wanted to do and then my wife reacted in this funny way and I just told her to sit in the corner and we went off in a car to get my pay and she wasn’t really restrained because she could have fled at that stage but she stayed in the car and then we went home and it was only then that she rang 000.” So that, in short, that he, by the way the matter proceeded, was not given the chance to put his case of his understanding of the facts prior to the alleged home invasion.
MR STONE: With respect, if I can take your Honours to it, in his charge to the jury his Honour did put the accused’s version ‑ ‑ ‑
KIRBY J: From the video but not from sworn evidence which, as I understand the applicant’s case, it is that he was not given proper information on which he could make an assessment of whether he would give sworn evidence of what had been said at the police station and that that deprived him of an anterior fact that was relevant to the section 62 point that was thereby relevant to the consent point in the section 401 offence. I may be wrong but I think that is the way the case is being advanced.
MR STONE: I think if I can approach it in this way by saying that at page 333 ‑ my learned friend took you to page 326 which was one of a number of occasions in which the trial judge informed the applicant during the course of the trial of his right to give evidence and his right to give evidence himself, but at 333 point 5 ‑ and this is just a continuation of what my learned friend had taken your Honours to at 326 because this discussion with the applicant went on for some time as to whether or not he should call evidence or give evidence ‑ it comes down to this:
All right. Nevertheless, I do want to stress that it is the crown’s job to prove each and every element of these two offences beyond reasonable doubt. Now, it says that it has done by closing it case. Okay? That’s what the crown says it has done and that’s what the prosecutor will be saying to the jury. You don’t have to prove anything. The crown has to prove everything. So you have a right to silence. You have a right to remain silent.
You enjoy that right now and you do not have to go into evidence, but if you want the jury to consider your story the only way you can give it to them is by getting a witness to agree with it in response to a question, right, and that becomes part of the evidence before the court, or by producing some document or thing that supports your story, that then goes into evidence and a witness agrees with it, or by calling evidence yourself.
If I can just pause there for a moment. My learned friend took you to an early stage of the proceedings where the accused had subpoenaed documents. In fact, the subpoenaed documents, namely the Telstra records, did turn up at the court and were put into evidence by the accused. If your Honours please, they became exhibit 7 at page 272 of these proceedings. They actually went into evidence so the subpoenaed records he is concerned with were there. If I can just continue on, at line 20:
So the state of the trial is now that your wife has not agreed with any really material aspect of what I understand your story to be.
And his story to be at that stage is what is contained in the video record of interview, namely that he had been invited by his wife to go to the premises, that the police had told him that if he is invited he can go.
KIRBY J: I appreciate that but a record of interview of police conducting an interview with an accused is likely to be a more loaded presentation of the accused’s version than evidence on the accused’s own part which is sworn and given before the jury in whose charge he is.
MR STONE: With respect, it goes in, it was a mixed statement. It clearly was a mixed statement because he clearly explains, and I think my learned friend has indicated that exhibit in his outline, but the applicant clearly explained his understanding of what a breach of restraining order was, that he understood it was from what the police had told him that he could be invited around and that did not constitute a breach, that that had happened on many occasions. It is difficult to see how he could have improved upon what he had said to the police in that videorecorded interview.
KIRBY J: Well, you say that, and it is very nice of you, Mr Crown, to take that view about how the accused will present his case, but normally in our system it is for the accused to make that decision, so long as it is an informed correctly-based decision. Now, if he is represented, that will normally be it, but if he is not represented and the judge says things to him which do not fully explain where he stands in making that decision, I think then you have a problem as to whether he has, as it were, had a chance to put his best foot forward, as he thinks best.
MR STONE: I understand entirely what your Honour is saying, but I submit that in this case he was given that opportunity. If I could just take your Honours a little further on into these passages, because it became abundantly clear to the applicant at this stage what was the state of the evidence against him and it had to be borne in mind also that at no stage during the cross‑examination – that is the next point to be made – of Mrs King was it put by counsel when the accused was represented or by the applicant when he cross‑examined her himself, that he was invited around on this occasion, that she had phoned him up and said, “You come around and fix the car”. That was never put. It was never contested – and the accused by this stage was then unrepresented when the friend, Mrs Metselaars, the tape‑recorded conversation, when he revealed to her in that conversation – and he did not dispute this – that he had found out the wife’s address from another source.
GLEESON CJ: There is a decision of the New South Wales Court of Criminal Appeal in a case of Birks, in which an attempt was made to pour cold water on the idea that unrepresented accused are familiar with the rule in Browne v Dunn.
MR STONE: Save that in this trial, the trial judge on numerous occasions sought to explain to the accused his rights ‑ ‑ ‑
KIRBY J: And duties.
MR STONE: ‑ ‑ ‑and duties. But I do not ‑ ‑ ‑
GLEESON CJ: …..the rule in Browne v Dunn, did he?
MR STONE: No, and I will leave that to one side, because the point I am trying to make is that you had that evidence in any event uncontradicted, but you also had the evidence of the wife - she did not invite him around. You have the evidence of Mrs Metselaars and it was the tape recording itself, that he had found out her address – and this is his own words – “from another source”. So, whilst not criticising him ‑ ‑ ‑
KIRBY J: And you have fourthly the fact that he gave a false name when he came to the door.
MR STONE: Yes, and the very next thing that happens is that the wife runs out of the house and is seen by a neighbour in a distressed state, and then you add to that his videorecorded interview in which he does set out his understanding, his explanation. What his Honour said at line 20:
your wife absolutely denies inviting you over to the premises on 21 November and said as far as she knows you didn’t know where she lived. The crown produces the evidence of Mrs Metselaars which on the way the crown puts its case shows that you know that your - you told Mrs Metselaars that you found out where your wife was from Brad, the husband of ‑ ‑ ‑
And he says, “Cherise”. Then it goes over to page 334:
Your wife therefore denies – or, sorry – gives evidence which is presently uncontradicted by any other evidence, that you were in her house – in her place without her consent.
GLEESON CJ: Was there not some evidence of an intercepted telephone conversation?
MR STONE: Yes, that is the Mrs Metselaars, the tape-recorded conversation in which the applicant admits to the friend of the wife that he, in fact, found out about the wife’s place of abode from another source, yes.
KIRBY J: She was an officer of the Prisons Department, is that correct?
MR STONE: I thought Mrs Metselaars was a friend.
KIRBY J: I see.
MR STONE: I thought she was a friend of the family.
KIRBY J: Yes. How did she happen to be recording the – was that revealed how the telephone conversation was recorded?
MR STONE: No, I do not know that that was. There was a phone call made from prison to Mrs Metselaars.
GLEESON CJ: …..telephone call.
KIRBY J: Yes, I knew the prison was involved somehow.
MR STONE: That is right, yes. Then at line 10 his Honour says at page 334:
So what that means is that if you want to put a case to the jury then you – one of the two ways that you could have done so was by questioning witnesses and having them agree with your proposition so that the jury had evidence.
For example –
and he gives some examples. Down at the bottom at line 45:
I have only got to judge the law. So what will happen if you elect not to go into the witness box, is that the state of the evidence will be there, as I have just explained to you and the jury would be asked to make up their mind on the evidence as it presently exists. You won’t be able to add to it from the dock.
Line 6:
You can’t add to the body of evidence that we have got from the dock. Would you like to ask me some questions now about what I have just told you?
So there is a further explanation at 335. It continues on right through to 338 between lines 20 and 25, where the judge says to the applicant:
NISBET DCJ: All right. Have you decided? Would you still prefer not to go into the witness box?
THE ACCUSED: Yeah, I’ll not take that, your Honour. I’ll just ‑ ‑ ‑
NISBET DCJ: You won’t take the oath?
THE ACCUSED: No.
NISBET DCJ: You would just like to address the jury.
If I may add to that, that when the applicant first decided to dispense with the services of his lawyer, which occurs around about application book page 173, at application book 176 – and that went on for some time ‑ his Honour, in endeavouring to persuade the accused why he should remain represented, explained to him at 176 his rights about going into evidence. So that was right at a very early stage when he still had representation.
However, it was at application book page 182 that the applicant decided he would conduct his own defence. He made that decision at that point, and this was on the second day. Then at – and I think my learned friend has taken you to that – application book page 240, there is again a discussion about whether or not the applicant wished to give evidence or call evidence.
KIRBY J: Where is the transcript of the video tape?
MR STONE: It is in application book 2.
KIRBY J: Which page?
MR STONE: It starts at page 452, your Honour.
KIRBY J: I see.
MR STONE: Your Honour, 462 is where the discussion starts about the existence of a restraining order, and at 463 is where he starts speaking in terms of being invited around to the premises. Just returning to the accused’s rights to give evidence himself or call evidence, at between application book page 272 and 273 is where he receives from the court the Telstra records that he then used to cross‑examine his wife on and he put them into evidence himself. They became exhibit 7.
At application book page 339 to 340, he was given advice on the law by the trial judge. At application book page 341, he formally elected not to give evidence. At application book page 345, going through to 349, he was given advice as to the prejudicial content of the tape that went into evidence. Prior to that, and again simply to illustrate the point – my learned friend has taken you to the Gidley decision – the trial judge did assist the unrepresented accused with his rights. At application book page 200, he assisted the accused in framing questions. At application book pages 201, 202 to 204, he explained to the accused difficulties that may arise if he mounts an attack upon character, given his own record. At application book page 209, he in fact put questions for the accused, where the accused was having difficulty formulating questions. The trial judge did that for him.
At application book page 236, he narrowed the issues. At application book 238, he provided a copy of his own statements to the accused. The respondent would submit that the applicant is simply urging upon the Court that because a strategic decision was not taken, a tactical decision was not taken to go into evidence, therefore these proceedings are fundamentally flawed.
We would say that having regard to the way in which the trial judge explained to the applicant his rights and obligations in relation to giving or calling evidence, that the applicant was as fully informed as he need be in the circumstances of the case, given the issue at trial and given the content of the videorecorded interview which explained, in a particularly clear way from the applicant’s perspective, his understanding of a breach of a restraining order that his Honour then, in directing the jury – and if I can take your Honours to that – put the applicant’s case.
At application book 358 line 30, his Honour, whilst dealing with the elements of the offence in relation to the burglary, came to the consent element, and says this:
The next element – without her consent – now, as was predicted by the prosecutor in her opening address to you when she said what the case was about, she said that this would exercise your attention mostly, and on the papers it was tolerably clear and of course as the case has unfolded that has become the central issue here; that is, was Mr King in Mrs King’s place without her consent?
That was the issue throughout the trial. His Honour then went to deal ‑ ‑ ‑
CALLINAN J: Sorry, what page is that ‑ ‑ ‑
MR STONE: That is at 358 of the application book between lines 30 and 35. His Honour then further directed the jury on the consent issue, your Honours, at application book page 363 between lines 25 and 30:
Now, there are some other – let me now return to count 1 on the indictment and the other element of mistake that may be present in this question of Mr King being in his wife’s place without her consent.
GUMMOW J: Now, “mistake” is dealt with in 24 of the Code.
MR STONE: Yes, it is. In fact, it had no application to this case.
GUMMOW J: No.
MR STONE: But what I am taking your Honours to is the consent instruction to the jury.
KIRBY J: Where are you now, which page?
MR STONE: Page 363 between lines 25 and 30:
Now, a consent is something that is freely given. You can’t get somebody to do something by force, by duress, by overcoming their will. By the same token when an offence refers to somebody’s consent having to be obtained for the doing of an act and here it’s the entering of a place, then the person who is charged with the doing of the act said to be against someone’s consent can have a defence –
and then he goes on into the mistake.
CALLINAN J: Justice Wheeler thought it was a little over generous to the ‑ ‑ ‑
MR STONE: Yes, because it provided another avenue, if you like, by which you can mount a challenge. I do not see that as a particularly strong point, but it was there. But the point I wish to make is that at line 40 his Honour deals with:
The issue arises in this way –
and whilst you are talking about the wrong issue -
in his video record of interview the accused says that his wife gave him her address over the telephone on the night or sometime during the day or night of 20 November 1998, and he says that she gave him the address in the knowledge that he wanted it so that he could come and see the children. He says that when he arrived at the premises the next day he said that is was Rod, not the neighbour, and that the door was opened to him. The children came to greet him, I think he said – in fact –
Then at page 364 his Honour takes the jury through passages from the video record of interview which provide the accused’s defence, if you like, to the consent issue. At line 20:
I knocked on the door, she opened the door and she was startled and I said, ‘Calm down,” I think because she hasn’t seen me for I think about 7 to 10 days and she was startled. I said, “Calm down, calm down,” and I says, “I’m here to fix your car, and then I picked up the kids, gave the kids a kiss and started to talk –
At page 365 his Honour, whilst directing the jury in terms of the mistake ‑ ‑ ‑
GLEESON CJ: The prosecutor was Ms Archer, is that right?
MR STONE: Yes, your Honour. Throughout page 365 there is reference to the explanation being put forward by the applicant in his video record of interview as to his defence on the consent issue. The difficulty is, and I suppose one goes to page 366, that there were the two versions of events in such stark contrast.
KIRBY J: Yes, but one was sworn by Mrs King and the other was just a video interview from the applicant.
MR STONE: But in there for all purposes, with respect, your Honour.
KIRBY J: That is true, but it is framed by what I might put as gently as I can, a force not entirely sympathetic to him.
MR STONE: Yes, I accept all of that but at the same time one has to look at the realities of the evidence in the trial and as his Honour said ‑ ‑ ‑
KIRBY J: I take your point there and in the end it seems to me that it comes down to quite a narrow point of whether the judge at the point where he was explaining what it was open to the accused to do, should have said, “Look, you have been going around saying, and you say on your video interview, that you went to the police long before these events and they gave you a certain understanding. That could be something relevant to your claim that there was no offence and that is an ingredient in the offence with which you are charged and you could give evidence of that before the jury. That could be relevant to the way the jury consider whether there was an offence and you have to consider whether you do that and it is a matter for you, but you should take that into account.”
MR STONE: Short of directing ‑ ‑ ‑
KIRBY J: That is not directing, it is still leaving it to him, but whether that ingredient and the election he was really obliged to make for the presentation of the case he had said on the video to be converted into sworn evidence which one would think might have a bigger impact than a police interview, that is the very small point I think it comes to. One can only have sympathy for a trial judge trying to conduct a case without legally represented parties.
MR STONE: Yes, indeed. Save for that, the respondent would say that his Honour did everything that could be expected of his Honour, namely, pointing out the uncontradicted evidence as it stood at a time when the applicant could have, if he wished, gone to the witness box to further advance his case. I am not sure that I can take that matter any further, save to say that his Honour did say to the jury in explaining these issues at 366, 20:
It’s either he was invited or he wasn’t.
That is what it came down to ‑ ‑ ‑
GLEESON CJ: Yes.
MR STONE: The respondent would submit that it follows that the tactical decision or the fact that the applicant was not put in a position where he could make that tactical decision as to whether or not to give sworn evidence in this case and just take it a little further could not, at the end of the day, be regarded as a fundamental flaw in the proceedings.
GLEESON CJ: The case that is advanced against you in the Court of Criminal Appeal and in this Court is not that failure to give evidence constituted a fundamental flaw. It is that the trial judge misdirected the jury, and then to repel the suggestion that the misdirection was of no consequence the applicant says “Yes, but it was that misdirection that led me not to give evidence, and that was a very serious consequence”. But the premise for the argument is that there was a misdirection.
MR STONE: Yes.
KIRBY J: Do you accept that there was a misdirection?
MR STONE: The difficulty that I have been having with it, it would seem, from my appreciation now of the situation, that the defence as such that has been raised is one that would apply only where there is in fact a charge under section ‑ ‑ ‑
GUMMOW J: If that construction is correct, it must follow there was no misdirection.
MR STONE: Yes.
KIRBY J: But you have to prove as an element of the offence that there is an offence, and that element rests on a shaky foundation if there is a defence to it. That is where it is alleged that the defence comes in. Now, all I want to know is, as I understand it, the Crown, in its written submissions to this Court, in its position in the Court of Criminal Appeal, in its written submissions in the Court of Criminal Appeal, accepted that there was a misdirection.
MR STONE: Indeed.
KIRBY J: Are you seeking to withdraw that concession?
MR STONE: Yes, I am, your Honour. It seems, looking at the legislation, looking at the difficulty and appreciating, I think, more fully what Justice Wheeler was saying about the difficulty that is thrown up where you have to direct a jury on the same element ‑ ‑ ‑
GUMMOW J: The question is whether you do and that involves an issue of instruction.
GLEESON CJ: A question in my mind is whether Justice Wheeler, and she may not have thought it necessary, pursued the point that she made on page 618 in the second sentence, which strikes me as a very significant point, through to its logical conclusion. The logical conclusion of that point may be not that this is a case for the application of a proviso, but that there was no misdirection of the jury.
GUMMOW J: In fairness to her Honour, she was not being asked to consider these issues of construction which have been ‑ ‑ ‑
MR STONE: No, she was not, but her Honour took the view, and the Crown would say correctly, that if a jury accepted – and I think we have outlined that in our outline of submissions at ‑ ‑ ‑
GLEESON CJ: How long do you expect to require for the rest of your argument.
MR STONE: Not very much longer, if your Honour pleases.
GLEESON CJ: How long do you think you will be in reply, Mr Sutherland?
MR SUTHERLAND: Quite brief, your Honour.
GLEESON CJ: All right, we will sit through till we finish.
MR STONE: In fact, I will see if I can finish this now. If I can take your Honours to paragraph 28 of the respondent’s outline of submissions - and this really is the point that Justice Wheeler was making. As the jury was satisfied beyond a reasonable doubt that the prosecution had established that the applicant did not have consent to be in the complainant’s house for the purpose of the first element of burglary, it is clear that if the breach of restraining order element was correctly explained, the jury could not have found on the balance of probabilities that the applicant did have consent to be in the house.
As her Honour says at the bottom of 618, point 45:
once the issue of consent was determined adversely to the accused beyond reasonable doubt, the finding in relation to breach of the restraining order necessarily must have flown from that.
So the respondent’s position therefore is that there has not been a misdirection for matters of that. Thank you.
GLEESON CJ: Thank you.
KIRBY J: Could I just ask, in your researches, did you find any cases that were not referred to us by the applicant of the so‑called fundamental breach of the requirements of the trial?
MR STONE: No, I did not.
GLEESON CJ: Could I ask both counsel to do one thing. Because a large part of the discussion this morning arose out of a matter that was raised for the first time here I wonder if both counsel would have a look at the question of whether there is any authority dealing with the situation in which the one fact is both an element of an offence and potentially a matter of confession and avoidance and what happens in those circumstances in relation to the onus of proof. If you find nothing about it, do nothing about it, but if you find anything on that, could the one who finds anything about it let us have a note on it within, say, 14 days?
MR STONE: Certainly, your Honour.
GLEESON CJ: Thank you. Yes, Mr Sutherland.
MR SUTHERLAND: Thank you. There are just two matters that I seek to canvass. The first is the matter that his Honour Justice Callinan raised about whether section 62 of the Restraining Orders Act has any relevance in this case and the discussion that followed ‑ ‑ ‑
CALLINAN J: Any application.
MR SUTHERLAND: ‑ ‑ ‑ from that – well, I may not have expressed myself terribly well.
CALLINAN J: Anyway, if it has application, it has relevance, yes. Go on.
MR SUTHERLAND: Yes, certainly. I understand that distinction. I am just wondering if a person is charged with being in the place of another without consent and commits a different offence, such as assault in respect of which a defence might be available, is the fact of the defence not applicable.
GLEESON CJ: It is a different consent. It is not consent to being on the place. If you take the firearm example: if it had been alleged against your client that the breach of the restraining order was that he turned up with a firearm, and his answer to that was “She said there was a snake here and I had to shoot it”, then that would be a form of consent to having a firearm, but it is different from the consent to being on the premises.
MR SUTHERLAND: I appreciate that. I was just concerned that the discussion had gone down a path that, as I said, I had not anticipated that
the concessions that had been made in the court below in the proceedings to date ‑ ‑ ‑
GLEESON CJ: Would you like to have the opportunity to put in further written submissions on any aspect of the matter that you want to make written submissions about within 14 days?
MR SUTHERLAND: Yes, I would be grateful for that.
GLEESON CJ: Yes, well, you have that leave.
MR SUTHERLAND: All right. I take that particular point no further. The other observation that I seek to make is that my learned friend said, in effect, it is hard to see how the applicant could have done better than rely upon what was in his record of interview, the video of which went to the jury. I make the observation that not only had the police and the prosecutor, but indeed the judge, in effect, discounted the value of what it was that he had said, as a consequence of what I believed to be subject to the way the discussion has gone. It went against the law, as I understood it to be. Those were the only observations I sought to make.
GLEESON CJ: Thank you, Mr Sutherland. If Mr Sutherland decides to put in any written submissions of the kind mentioned, then you will have an opportunity to answer them within seven days after his submissions, Mr Stone.
MR STONE: I am obliged.
GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.
AT 12.43 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Constitutional Law
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Criminal Law
Legal Concepts
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Appeal
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Jurisdiction
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Charge
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Sentencing
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