KRI v The Queen

[2013] HCATrans 55

[2013] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M92 of 2012

B e t w e e n -

KRI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH 2013, AT 2.44 PM

Copyright in the High Court of Australia

MR J.E. McLOUGHLIN:  If the Court please, I appear for the applicant.  (instructed by Michael Brugman)

MR T. GYORFFY, SC:   If it please the Court, I appear with my learned friend, MR P.J. DOYLE, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes, Mr McLoughlin.

MR McLOUGHLIN:   Your Honours, when the applicant – some 14 or 15 years after these offences were alleged to have been committed – stood trial, he had very few objective indisputable facts that he could rely on to support his denial of having committed the offences.  One of those facts was the very long delay that had occurred before any of the complainants had made a complaint about the alleged conduct.  Before the trial judge could direct the jury that they could take that delay into account in assessing the credibility of the complainants, she had to be satisfied that, in effect, there was sufficient evidence that their credibility was affected by the delay to justify it being taken into account.

Her Honour did give such a direction or warning.  You can see that at page 76 of the application book at line 16.  What her Honour did was to commence what she said to the jury on this issue – and I am dancing around the issue of whether it is a direction or a comment because ‑ ‑ ‑

KIEFEL J:   Well, that is the essential point, though, is it not?

MR McLOUGHLIN:   It is one of the points, your Honour, but in my submission, the case goes further than that.  She began a bit earlier on that page at line 4, briefly summarising what the complainants had said to explain their reasons for not complaining earlier.  That is a pretty broad summary; that is at appeal book 76, line 4.  It essentially says that the complainants did not complain because they did not know what to do, were afraid, and in relation to one of them, he did not want to cause a rift between his friend – the son of the applicant – and his father, the applicant.

Her Honour then gave a general direction, a warning that delay could be taken into account.  What then followed, culminating in the two paragraphs which are complained of, is a series of observations calculated to persuade the jury to discount delay as a matter affecting credibility.  First of all her Honour ‑ ‑ ‑

KIEFEL J:   You mean they may have had that effect, not that they were calculated?

MR McLOUGHLIN:   Well, I am using “calculated” in the sense of having that effect, without imputing a motive.

KIEFEL J:   Yes, exactly.

MR McLOUGHLIN:   First of all, having told the jury that the delay was relevant only to credibility, and then having given the statutory warning that there may be good reason why a victim of sexual assault may delay or hesitate in complaining, her Honour then did not proceed to address issues of delay but then addressed a series of issues bearing upon general credibility.

KIEFEL J:   Yes.

MR McLOUGHLIN:   First of all, that the jury ought to take into account how young they were when all these offences occurred.  Then, on the following page – that is page 77 – page 78 talked about whether or not there was a motive arising from their disliking the applicant and canvassed the evidence which suggested that they did not dislike the applicant.  Then at page 79 of the application book at line 24 and following, the fact that on the account, counsel for the complainants in evidence, they had done various things in reaction to the alleged offences which was consistent with the offences having been committed ‑ that is, one of them wrapped himself in blankets and another two, on different occasions, moved to a different part of the house to sleep ‑ all of which, really, had the effect of then loading up with the jury that the proposition – really, this delay had no effect on the credibility of the complainants at all.

Then one comes to the two paragraphs complained of which, it is submitted, are plainly to be read as directions, and their real vice as directions is that they say – or the learned judge says in those two paragraphs with the authority of her office that the explanations given by the complainants for their delay in complaining are true, are recognised by the law as valid explanations for delay.

Now, although this issue was not explored in the dissenting judgment of Justice Osborne below – it did not go that far – the real implication of a jury being directed, or even a comment being made in these terms by a judge in a way which says to the jury, I accept the validity of these explanations, is that it derogates from the position of the jury as the constitutional trier of fact, and that is the real vice of these two paragraphs.

GAGELER J:   How is it different from simply an illustration of the statutory warning required by section 61(1)(b)(i)?

MR McLOUGHLIN:   Well, because it contains an assertion of fact delivered with judicial authority about how people behave.  It is one thing to tell the jury, these are the explanations which were given by the complainants, use your experience of life, the 12 of you, to consider whether they remove any doubt you might have because of the delay in complaining.  It is another thing for a judge to say, experience tells us – remembering that this is a charge in which, for reasons which are not explained, her Honour never informed the jury in the way which is normal, as his Honour Justice Osborne pointed out, that there is a distinction between a direction of law and a comment, and my comments as a judge are in the same category as arguments of counsel.

I have referred in the written submissions, your Honours, at paragraph 3.9 which is at appeal book 209, to a passage which appears early in the charge – the marginal note, I am sorry, which appears on the following page, actually, is incorrect ‑ it should be AB 38, not 579, 579 being the page in the transcript.  It is submitted that that direction, really, had the opposite effect.  It really had the effect of suggesting to the jury that everything her Honour said was gospel.

KIEFEL J:   I do not know how you could really say that given that its context, both in what preceded it and what immediately followed it, is the jury’s own assessment of matters to be taken into account in considering the credibility of the complainants.

MR McLOUGHLIN:   Well, I rely on the difference in terms used in this section, particularly, if your Honour looks at page 625 of the charge, so it is application book 71.  Her Honour has concluded that point along a series of observations about inconsistency in evidence and concludes it.  Then at line 28 on page 71, says:

Which possibilities apply here are not for me to make a decision about.  All I am doing is identifying –

issues.  Further on, at appeal book 73 and 74, there are some observations about the cross‑examination of one of the complainants who is identified in the judgment of the Court of Appeal as BRM and his assertion in cross‑examination that he had dyslexia and some other kind of learning, or information processing, disability.

Her Honour enjoins the jury to read carefully the transcript – this is over the page at appeal book 74 – to read carefully the transcript and make up their own mind about whether that argument, put by counsel for the applicant, is valid.  In contrast to those two – and there are other examples in the charge – but in contrast to those examples there is no such observation in relation to these matters.  I also rely on the matters that Justice Osborne enumerated at paragraph 136 of the judgment below, that is page 193 of the application book, paragraphs 136 and following, in which his Honour explains how he has come to the conclusion that he regards this as a direction, not a comment.  So, they are really the arguments which I make in support of the proposition that this must have been regarded as a direction and not a comment.

My learned friends say, in any event, the matter does not raise an issue of principle.  This issue is a matter about which reasonable minds could disagree.  In my submission, the question of whether it is a comment or a direction is of such importance and if there is ‑ ‑ ‑

KIEFEL J:   Well, the question really is whether or not there has been a miscarriage in relation to the directions, not really so much a question of settled principle or not is relevant here.

MR McLOUGHLIN:   Well, your Honour, I am really addressing this Court’s concern not to waste its time on matters about application of principles.  In my submission, if you have got a disagreement in an intermediate appellate court about whether, given the importance that this Court has laid on the different roles of judges and juries, in Azzopardi and RPS and Hargraves, and if there are judges of intermediate appellate courts disagreeing about whether these are directions or comments, then it is really a matter of sufficient importance to warrant the attention of this Court if it considers there has potentially been a miscarriage of justice.

I submit there has been a miscarriage of justice because of the importance of this issue in the defence mounted by the applicant and the impact on the fair consideration of the facts before it by the jury of the judge’s statements to the jury about how they should approach the issue of delay.  Your Honour Justice Kiefel said earlier, is this all about whether it is a comment or a direction.  There is a further issue which has opened up by the subject matter of this direction or comment by her Honour and that is the extent to which judges can, and should, import into either directions or comments to a jury matters which are not in evidence, on this subject, touching upon human behaviour.

Normally, courts have regarded the assessment of human behaviour as matters for juries.  In the field of sexual offences there have been progressive statutory interventions to deal with antiquated social attitudes.  We have now reached a point where two decisions of this Court, in particular stand, Longman and Crofts, still for the proposition that delay is a relevant consideration.  On the other hand, as the majority below pointed out, there are decisions both of the English Court of Appeal and the decision of the Court of Appeal in Victoria which suggest that judges can, and should, go beyond what is actually in evidence in a trial in putting

before a jury matters that they should consider on the issue of delay and complaint.

I submit that it is important for this Court to take a position reinforcing the primacy of the jury as the decision‑maker of facts and to take a stand against the importing into the consideration in trials, matters which are not in evidence and tested about these issues of human behaviour because of the varying social agendas of different judges.  One of the consequences of that is that, depending on which judge presides at a trial, you will get quite different approaches to the directions of juries.

KIEFEL J:   In the end, it comes back to the same question, does it not, whether or not a matter respecting human behaviour which is the province of the jury has properly been left for the assessment of the jury and that they understand that to be the case; that is really what it comes down to.

MR McLOUGHLIN:   Yes, and I submit not because of the terms in which the jury were given this instruction and the way in which the information conveyed in those two paragraphs answered and fitted with the explanations that the complainants gave for their delay in complaining.  As your Honours please.

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

This application for special leave raises a question whether comments made by a trial judge as to the reasons why victims of sexual assault might delay in bringing a complaint would be misunderstood by a jury to be directions of law rather than matters of comment.  A majority of the Court of Appeal of the Supreme Court of Victoria considered that the jury in this case was not misled.  We are not persuaded that there is sufficient reason to doubt the correctness of that decision to warrant the grant of special leave.  Special leave is refused.

MR McLOUGHLIN:   May it please the Court.

AT 3.05 PM THE MATTER WAS CONCLUDED