Knuth v The Queen

[1999] HCATrans 89

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 1998

B e t w e e n -

MORTON JOHN KNUTH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 10.48 AM

Copyright in the High Court of Australia

MR R.V. HANSON, QC:   If the Court pleases, I appear with my learned friend, MR P.A. LEASK, for the applicant.  (instructed by Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MR A.W. MOYNIHAN.  (instructed by the Director of Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Hanson.  Now, you need an extension of time in this matter, do you not?

MR HANSON:   By a few day, I think it is, your Honour.  I think it is only a few days.  May I make that application?

GUMMOW J:   Yes.

MR HANSON:   Leave that stand on the merits with the application itself.

GUMMOW J:   Yes.

MR HANSON:   Your Honours, the applicant has been convicted on two counts with indecently dealing with his daughter.  The indecent act in each instance being putting his penis in her mouth.  They were counts 1 and 4 in the indictment.  He was acquitted of a charge of raping her and also of an alternate charge of incest.  She gave evidence that the event, the subject of count 1, occurred in a shed on the family property.

GUMMOW J:   Well, I think we know the facts.

MR HANSON:   Very well.

GUMMOW J:   You can take it that we are seized of those.  Where do you say the Court of Appeal went wrong, that is what we need to know?

MR HANSON:   In applying the proviso, your Honours.  It was not a case in the proviso at all.  She gave evidence of, really, a course of conduct of similar conduct to that which supported the convictions on counts 1 and 4; not just a single instance as the Court of Appeal seems to have treated it as but, really, she gave evidence of the course of conduct.  Nothing was said about that to the jury, neither at the time the evidence was given nor in the summing up.  They were neither told what use they could make - - -

GUMMOW J:   Was any direction sought?

MR HANSON:   It was not asked for, no.

KIRBY J:   This is not an uncommon problem and the Court has examined it in recent times.

MR HANSON:   It has, your Honours.

KIRBY J:   It is a potentially serious problem but this does seem to be a jury that showed discernment by rejecting certain allegations and accepting those on which your client was convicted.

MR HANSON:   That is our point.  They must have had reservations about her reliability to acquit him on counts 2 and 3.

KIRBY J:   That is one way to look at it.  The other is that they attended to the evidence and considered, as their oath required, the particular evidence on the particular matters charged.  That is the other way to look at it.

MR HANSON:   Your Honours, our point is this, that there is a real danger that they did, indeed, use the evidence of the uncharged misconduct in an illegitimate way.

KIRBY J:   If that is the logic, would that not have flowed over to conviction on the other counts, the rape and incest counts?  I mean, if they were simply looking at it in the broad brush, if that was the approach of the jury, would that not have resulted in convictions on the other counts?

MR HANSON:   Not necessarily, your Honour, because it is different conduct.  The conduct upon which they received no direction is exactly the same type of conduct for which he was convicted, whereas the conduct for which he was acquitted is a different type of conduct.  Our point is that they may have taken this evidence of this course of similar conduct and used it in an illegitimate manner to tip the balance on counts 1 and 4 upon which he was convicted.

We are mindful of what Justice McHugh had to say to the effect that an omission to this effect does not necessarily mean that there is a miscarriage of justice.  We are mindful of that.  But, in our submission, it can be said that having regard to the similarity of the conduct upon which no direction was given and the conduct for which he was convicted, that the omitted direction deprived him of a real chance of acquittal.  They may have picked it up and used it to reason that he was in the habit of doing this sort of thing, a prohibited line of reasoning. 

It was not just a single instance, as Mr Justice Lee identified in the court below.  Do I need to demonstrate that to your Honours that she really did speak of a course of conduct?

GUMMOW J:   Yes.

MR HANSON:   I think it starts at page 2 of the record.  from line 20 above she is speaking in evidence in-chief of the first instance which happened in the shed, count 1.  She is then asked at about line 22, whether she knows:

on how many other occasions it took place?---There were times when we used to go for drives –

and then on that page she described, in our submission, a course of conduct – “more than one occasion”.

HAYNE J:   And what did counsel for the accused at trial do with this evidence?  Challenge it, turn it into an issue that was alive and right before the jury, or simply try to get rid of the evidence and let it slip into the background?

MR HANSON:   Well, you can see from the transcript here that it was not objected to when the evidence was given.  The transcript carries on - - -

HAYNE J:   No, and was it the subject of cross-examination?

MR HANSON:   The cross-examination is there starting at page 6 and the defence case was that nothing happened.

GUMMOW J:   At all?

MR HANSON:   The applicant even gave evidence.  He gave evidence at his trial and denied it.

KIRBY J:   You could understand, in a sense, why counsel might feel restrained to cross-examine and raise it and stretch it out but I cannot understand why, in all of these cases, defence counsel just sit instead of leaping up and objecting.  I mean, you are not the first case to come up with this.  Crown Prosecutors should have clear instructions that they are not to lead witnesses in a way that will bring this evidence in.  The principles have been dealt with by the Court in a number of recent cases and we are not a court of super criminal appeal.

MR HANSON:   All of that is perfectly true, your Honour.  It really comes down to a question of whether the court was correct in applying the proviso in the facts of this case.

KIRBY J:   But if counsel did not object, did not cross-examine, did not ask for the discharge of the jury – this is the first page of the transcript – then it is leaving it very late in the day to come up to the High Court of Australia in a case where the jury did appear, at least on one view, to show some discernment in its approach to the different verdicts.

MR HANSON:   The failure to object, of course, is a relevant matter here as it would have been in the Court of Appeal but it is not fatal, your Honours, if the omission - - -

KIRBY J:   I am not saying it is fatal, but if we got to the point where, in the view of some counsel, it just does not matter and therefore the vigilance that once was expected of defence counsel at a trial seems not to be required any more.  Well, I just do not go along with that.

MR HANSON:   Well, that is the way the trial ran, I am afraid, your Honour.  It ran that way and it was compounded, in our submission, by ‑ ‑ ‑

HAYNE J:   It may have run that way for reasons that seemed good to counsel at the time; that it was better to leave this so-called background evidence right there in the background and not take it out and put it up in neon lights for the jury as would happen if the judge started giving directions about it.  To come along now and say, “There should have been directions” presents a difficulty in those circumstances.

MR HANSON:   It does, your Honour, but the same point was taken in the Court of Appeal and there was no suggestion there that it was a deliberate omission on the part of defence counsel.  The matter was dealt with in the Court of Appeal on the basis of the proviso alone.  I do not think I can assist your Honours any further in addition to what we have in our written outline. 

GUMMOW J:   Yes, thank you, Mr Hanson.  We do not need to call on you, Mr Byrne.

There will be an extension of time for the making of the application for special leave but special leave will be refused.  No directions in relation to the use to be made of the evidence of the uncharged offences was sought.  The Crown conceded in the Court of Criminal Appeal that, nevertheless, a direction should have been given but the court concluded that the applicant had not lost a real chance of acquittal.  The Court of Criminal Appeal applied the correct principles in the circumstances of the particular case.  A further appeal has insufficient prospects of success to warrant a grant of special leave.

KIRBY J:   Mr Byrne, I hope I can say to you, as I mentioned to Mr Hanson, that I really think prosecutors should have general instructions not to open this up because it is very prejudicial to a party and you conceded in the Court of Criminal Appeal that there ought to have been some response to it, that it was wrong, and yet we see in many cases that prosecutors do open these matters up and it is very hard for us to repair all of the wrongs that might possibly be done.

MR BYRNE:   Thank you for those remarks, your Honour.  I will do my best.

GUMMOW J:   You should take that on board, Mr Byrne.  As indicated, special leave is refused.

AT 10.59 PM THE MATTER WAS CONCLUDED