Larry Cavanaugh - a Pseudonym v The Queen

[2022] HCATrans 129

[2022] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M3 of 2022

B e t w e e n -

LARRY CAVANAUGH (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 12 AUGUST 2022, AT 10.28 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances.

MR P.J. MATTHEWS appears with MR P.J. SMALLWOOD for the applicant.  (instructed by Slades & Parsons Criminal Law)

MS J.B. WARREN appears with MS B.J. GODING for the respondent.  (instructed by Office of Public Prosecutions (Vic))

GAGELER J:   Mr Matthews.

MR MATTHEWS:   May it please the Court.  We submit, your Honours, that in dismissing the appeal in this matter the majority made what we contend, with respect, are significant legal errors, that is, errors in the process of analysis of the verdicts.  Those errors are identifiable, we contend, by a comparison of the two sets of reasons, and we submit that the case raises questions of law of general application warranting special leave because the identification of those errors and the outlining of a correct approach for intermediate appellate courts considering the unsafe and unsatisfactory ground in cases of this kind would be of assistance.

When we say “cases of this kind” we mean trials involving sex offence allegations where the evidence is essentially oath on oath and where the accused faces a measure of disadvantage, forensic disadvantage, by reason of delay in complaint.

GAGELER J:   Mr Matthews, we have been dealing with that sort of case since M v The Queen.

MR MATTHEWS:   Yes.

GAGELER J:   It is not a new category.

MR MATTHEWS:   No, certainly not, and the principles, with respect, are well settled in M, and they are stated by the majority – by that, the Court will understand I am referring to Justice Walker with the President agreeing – they are stated at the outset of the judgment in uncontentious terms.  But can I turn to perhaps the first error identified in order to further answer that question, your Honours, and that is the error identified in ground 2, that the majority failed to articulate a reasonable basis for:

the jury to be satisfied beyond reasonable doubt –

either that the evidence of the applicant:

was untruthful or unreliable –

or that:

the charges . . . had been proved.

This is the advance in understanding that we contend for, that is that in coming to a view about whether or not there was that basis, that reasonable basis, and formulating that basis it required, that entailed careful consideration of three matters in the context of this case:  the alleged improbabilities and inconsistencies in the complainant’s account, the fact that the applicant’s evidence was unimpugned despite extended cross‑examination, and the forensic disadvantage he confronted which we submit had three consequences – it limited the evidence he could give to what he gave, the evidence he could call and his capacity to challenge the prosecution case.

We submit that it was necessary for the court to consider both the combined effect of those matters and the significance of each in the evaluation of the others.  As I have said, I think previously, this issue will arise not uncommonly given the frequency with which these sorts of trials run in courts throughout Australia.  We particularly highlight what Justice Kaye said at paragraphs 148 and 149 of his judgment in that he refers to the three matters I have just mentioned and then in particular at 149 he says:

Taken together, those considerations weighed substantially against a conclusion that it had been established, beyond reasonable doubt, that the accused was guilty of the offences that were the subject of the charges.

Then we would highlight this next bit, your Honours:

The critical issue, on this application, is whether the combined effect of those considerations was such that, notwithstanding the acknowledged advantage of the jury in hearing and seeing the evidence of witnesses, and notwithstanding the assumption that the jury assessed the evidence of the complainant to be credible and reliable, nevertheless the jury, acting reasonably, ought to have entertained a reasonable doubt as to the proof of the applicant’s guilt of the charges it was considering.

GAGELER J:   Sorry, Mr Matthews, that is really just a paraphrase of Pell, is it not?  I mean, it is an orthodox and absolutely correct statement of law.

MR MATTHEWS:   It is, but we would contend that the majority did not set out with that question mind and consequently, with respect, went astray with their analysis of the case, whereas Justice Kaye in his judgment proceeded to do precisely what I identified earlier, which was to consider both the combined effect of those matters and the significance of each in the evaluation of the others.  It is the fact that the majority went so far astray, in our respectful contention, in not undertaking that process of analysis, in not doing what I had mentioned before, that the majority in effect never reached the required level of satisfaction; that is, that there was a reasonable basis of one or other of the kinds mentioned in ground 2.

GAGELER J:   Another view is that the majority was acting upon the same understanding of the law but evaluated the probabilities or improbabilities on facts or on the evidence differently.

MR MATTHEWS:   We contend that it was, rather, a process error that infected that process and meant that the evaluation was never properly conducted, with respect, your Honours.

GAGELER J:   Can you point to the error in the judgment of Justice Walker?

MR MATTHEWS:   Yes, your Honours.  On the issue of the evidence of the applicant not being impugned in any way, we would take the Court to paragraph 265, court book 195, of the judgment.  Now, this was the only mention of the applicant’s evidence in the course of the analysis by the majority, and what the majority said there was, quote – Justice Walker, I should say, your Honours:

I note for completeness that I agree with Kaye JA in so far as he has concluded that the prosecution’s submissions concerning what were said to be inconsistencies in the applicant’s evidence cannot be sustained.  That, however, is not sufficient for a conclusion that it was not open to the jury to find him guilty.

That, in our respectful submission, is nothing like sufficient, a consideration of the significance of the evidence of the applicant being unimpugned.

STEWARD J:   Mr Matthews, do you want to say anything about the second sentence of paragraph 207 in Justice Walker’s reasons, having regard to what this court said in its published judgement yesterday in Dansie, where they say that one way of looking at the matter is to ask whether a solid obstacle to reaching a conclusion beyond reasonable doubt or whether instead the path to conviction is open, do you have any complaint about that as a test?

MR MATTHEWS:   No, your Honours.

STEWARD J:   All right, thank you.

MR MATTHEWS:   But the challenge then is to appropriately apply that question, that is, to apply the principles.  I think the Court appreciates the submission that we are making on that.  As Justice Kaye said and did in his Honour’s judgement, the fact that the applicant’s evidence was unimpugned necessarily needed to be borne in mind when evaluating the evidence of the complainant.  And as his Honour said at paragraph 181, there is not necessarily any need to go to that, your Honours, it had to be done, that is, the assessment of the complainant’s evidence with some care.  In that way, the important aspect of the evidence being unimpugned, that the applicant bore upon the analysis of the complainant’s evidence.

Similarly, the forensic disadvantage, as Justice Kaye put it, needed to be taken into account and given appropriate effect and weight.  And the Court will bear in mind what we have submitted is the effect of that forensic disadvantage on the evidence of the applicant.  Now, by comparison, the majority at paragraphs 267 to 269, appeal book 196, deals with the forensic disadvantage again, in what we would contend is a limited way. 

Her Honour refers to the death of the witness relevant to the night before the wedding allegation and said that the deaths of the three witnesses did not in itself lead to doubt but otherwise did not weigh for themselves the significance of that forensic disadvantage.  That is, did not conduct an exercise along the lines of what Justice Kaye set out for himself at paragraph 149.

The consideration, rather, in relation to forensic disadvantage was primarily, we submit, in relation to whether or not a stay application was justified or the fact that it had not been made, whether it was warranted in the circumstances.  With respect, your Honour, we submit that was not a relevant consideration.

The real issue with forensic disadvantage was how it weighed against the other two and in evaluating the other two of the three key matters in this case.  We submit that this case provides a suitable vehicle for the Court to illustrate the application of the principles and, in particular, the desirability of a requirement that a reasonable basis for one or other of the states of satisfaction set out in ground 2 needs to be articulated because that would, we submit, mean that there is less chance of a court not asking itself the critical question, questions, at the outset that we say is embodied in paragraph 149.

GLEESON J:   Mr Matthews, do you criticise the reasoning in the second half of paragraph 268 of Justice Walker’s judgment?

MR MATTHEWS:   I wonder if I might answer that by reference to the second legal error we identify, your Honour, that is in ground 3, the failure to consider the cumulative effect of the alleged improbabilities and inconsistencies in the complainant’s account.  We submit that those improbabilities and inconsistencies – potential improbabilities and inconsistencies, to put it that way – necessarily had a compounding effect each upon the other, and also the finding of one improbability needed to be considered as to whether it bore upon the assessment of another improbability.

What we submit the majority did on this issue was, as the Court will appreciate from the written submissions, considered each of the  improbabilities in isolation and whether each in themselves presented a solid obstacle to conviction.  One sees that at various points through the majority judgment.  That is what we submit is in essence the process that was undertaken.  So there was never – and again, this is a process error we say goes to whether the required state of satisfaction was ever reached – there was never a consideration of the compounding effect.  So, when her Honour came to say that at 268, her Honour had not previously gone through the necessary process of considering the compounding effect.

So, again, what we submit to be a legal error – an error in the process of reasoning infecting the end conclusion – we say that, in addition, the fact that there was a compounding effect to these improbabilities, and the fact that there was unimpugned evidence and significant forensic disadvantage in the background obliged the court to look very carefully in light of all relevant evidence at the improbabilities.

We highlight – as instances of where that did not occur, with respect – the consideration of the issue of the absence of injury or sign of injury, and the absence of what Justice Kaye referred to as a child’s scream’s over a period of two minutes not being investigated or inquired about in any way over all of those occasions that this allegedly occurred over all of those years.  I will not take those matters any further, your Honours.  We have dealt with those quite significantly in our reply, and the Court will be aware of what we say about the limitations of the analysis performed; the fact that it did not take into account – in particular, on the first matter, the sign of injury matter – the whole of the evidence.  I hope that answers your Honour Justice Gleeson’s question.

We say again that the process miscarried, leading to that conclusion, and therefore the process of reasoning was not appropriate in the circumstances.  Again, what needs to be appreciated here is that when you

have – and it goes back to the previous error – when you have these three matters interacting, each informs the other and great care needs to be taken – where you have potentially compounding improbabilities – to assess those, both individually and in combination, their cumulative effect, and the effect of one on the evaluation of another so that – for instance, the majority found that it was improbable that the incident on the night before the wedding occurred.

What effect does that have – because one might think that is a significant finding, given that there was some detail provided for this incident – what effect does that have on evaluating the probabilities of the other incidents or to evaluate, for instance, the significance of the fact that the relationship between applicant and complainant was taken up again after the applicant had left the house?  So, this is the care that we say flows from framing the question as it was in Justice Kaye’s judgment at paragraph 149.  We say that the majority did not undertake that process.

Your Honours, the third and fourth errors I will not say anything further about, they are dealt with in the written submissions, those are grounds 4 and 5, except to make one additional observation, which is that ground 5, the issue of the recording of the evidence, effectively alleges, as your Honours will appreciate, that the majority took into account an irrelevant consideration, namely, its – with respect, namely, the manner in which the evidence was given on the principles as clearly established and as affirmed in the case of Pell.  The issue is not about manner.  The issue is solely about the record, in this case certainly and in most cases of this kind.  Those are our submissions, your Honours.

GAGELER J:   Thank you, Mr Matthews.  Ms Warren.

MS WARREN:   May it please the Court.  If it is convenient to the Court, I propose to address grounds 1 and 3 together initially.  Your Honours, the applicant contends that there existed deficiencies in the analysis applied by the majority of the court below.  In our submission, there were no such deficiencies in the analysis of the evidence conducted by Justice Walker, which President Maxwell adopted.  Justice Walker embarked on a thorough examination of the record, in our submission, just as her Honour was required to do and was well aware of the requirement to do in, accordance with M.  In our submission, the different conclusions reached by Justice Kaye and the majority in the court below are explained simply by a difference of opinion about the weight of the evidence.  The different conclusions, in our submission, were not driven by a question of principle or, as my learned friend has submitted today, a process error.

As Justice Walker observed, your Honours, this was not a complex case, it did not involve multiple complainants or a wealth of circumstantial evidence and it did not require particularly complicated directions for the jury to follow.  It was, as the courts often see and as your Honour Justice Gageler has noted, a common occurrence, a common case that comes before the court, essentially a word on word case.  All of the arguments about the strength of the prosecution case and the purported weaknesses in the evidence which are raised by the applicant here were before the jury for their consideration.  They were issues that the jury were capable of understanding with the directions of law given to them and, in our submission, well and truly capable of determining.

In this case, unlike in Pell, there was no other unchallenged evidence, with the exception of the complainant’s mother, which related to the complaint evidence, that is said to give rise to improbabilities, let alone compounding improbabilities in this case.  Although the applicant points to himself as a witness who gave evidence which was not shown to be inconsistent or impugned, his evidence was certainly challenged, your Honours.

Of the evidence which supported the prosecution case, in our submission, the applicant has failed to demonstrate, notwithstanding acceptance of the credibility and reliability of the complainant, that there were inconsistencies, discrepancies or other inadequacies in that evidence which must have caused a jury, acting rationally, to have entertained a doubt.  As set out in the application, and was certainly the substance of the appeal below, the applicant argues that there were numerous improbabilities within the complainant’s account which give rise to doubt.  We do not propose to address each of those improbabilities, similarly, they are addressed in our response, your Honours.

We simply note that each of the argued improbabilities identified by the applicant are all matters upon which reasonable minds can differ, as happened in the court below.  Such arguments might have given rise to a reasonable doubt but, in our submission, they are not of such a quality that the jury ought to have had a reasonable doubt.

If I can just turn to one further criticism that the applicant makes of Justice Walker’s reasons for judgment, the applicant’s contention – or the applicant contends that Justice Walker adopted what they have referred to as a black and white position in assessing the purported compounding effect of the various improbabilities.  In our submission, that is not a fair characterisation of the detailed analysis that her Honour conducted.

Justice Walker correctly identified that the question on the appeal was whether the improbabilities arise by reason of aspects of the applicant’s evidence, aspects of the complainant’s evidence and/or an aspect of the complainant’s mother’s evidence and, if so, whether those improbabilities are such as to require the conclusion that the jury must have entertained a doubt.

It was therefore entirely appropriate, in our submission, and logical for her Honour to approach that task in the way that she did, and that is to consider whether each of the improbabilities advanced in argument by the applicant did in fact arise and arose to the degree contended by the applicant and, if they did, then go on to consider whether there was a compounding effect of those improbabilities which ought to have given rise to a reasonable doubt.  Justice Walker considered each of the argued improbabilities and concluded that it was open to the jury to find that almost all were not in fact improbabilities at all or, if they were, they were of very limited weight.

It was with that in mind that her Honour went on to consider the question of the combined effect of that evidence or those improbabilities.  Her Honour still took account of the potential compounding effect of the argued improbabilities, but did so with the understanding that where it was open to the jury to reject some or all of the argued improbabilities or attach little weight to them, the compounding effect was therefore necessarily reduced.

Again, in our submission, that was an entirely logical and proper approach that her Honour took.  The only exception was in relation to the offending on the night before the applicant’s wedding.  That is the matter where Justice Walker accepted that the nature of that evidence – that the applicant offended against the complainant alleged with DS sleeping right next to them, without disturbing DS – her Honour concluded that, in her view, that was improbable.

However, her Honour echoed Justice Kaye’s observation that it is the experience of the Court that sexual abuse is not uncommonly perpetrated in circumstances where an offender runs a risk of detection.  Notwithstanding that her Honour considered the account given by the complainant in respect of that offending to be inherently improbable, her Honour properly, in our submission, then went on to consider the advantage that the jury had of seeing and hearing the complainant and the applicant give evidence in respect of that night, and also the fact that they had the advantage of collective deliberation.

In our submission, given the central issue in this trial was the credibility and reliability of the complainant, it was entirely appropriate that her Honour went on to consider that advantage and conclude that it was open to the jury to find the applicant guilty notwithstanding the view that the account itself was inherently improbable.

Ultimately, your Honours, for the reasons articulated by Justice Walker with President Maxwell agreeing, almost all of the argued improbabilities, even if considered in some form of combination, were not of such a nature or quality to have obliged the jury, acting rationally on the whole of the evidence, to have entertained a doubt about the applicant’s guilt.  We maintain our submission that the applicant here seeks no more than for this Court to take a different view of the evidence than that taken by the majority below.  Those are our submissions in relation to grounds 1 and 3, your Honours.

If I can turn then, very briefly, to grounds 2, 4 and 5, for the reasons that we have set out in our response – and we maintain those submissions that the applicant has failed to demonstrate that there was any error of principle, approach or conclusion by the majority under those grounds, nor, in our submission, do any of those grounds raise a question of law that requires consideration by this Court.  In relation to ground 2, contrary to the applicant’s contention under this ground, the court below was not required, in our submission, to articulate a specific basis that entitled the jury to reject the applicant’s evidence.

Whatever the basis the jury had for rejecting the applicant’s evidence cannot be assessed, in our submission, in isolation, but rather but be assessed in relation to the whole of the evidence, which the majority plainly did, in our submission.  Noting, of course, in addition to that, that the jury had the benefit and the advantage of seeing and hearing the evidence.

In our submission, it is apparent from the whole of the majority’s reasons that there was nothing in the applicant’s evidence which gave rise to doubt in their minds and therefore invoked the test in M.  I note that my learned friend has not specifically gone to grounds 4 and 5 in submissions today.  I will rely simply on what we have said in our response in relation to those grounds as well, your Honours.  If the Court pleases, those are our submissions.

GAGELER J:   Thank you, Ms Warren.  Mr Matthews.

MR MATTHEWS:   Nothing further to say in reply, your Honours.

GAGELER J:   Very well.  Thank you.  The Court will adjourn to consider the course it will take.

AT 10.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.04 AM:

GAGELER J:   The majority in the Court of Appeal elaborated the principles upon which it proceeded by reference to a series of decisions of this Court, commencing with M v The Queen (1994) 181 CLR 487 and including, in particular, Pell v The Queen (2020) 268 CLR 123. The applicant does not seek to impugn in any way that elaboration of principle. We are not persuaded that the application of principle by the majority was attended by sufficient doubt on any of the five grounds upon which special leave to appeal is sought to warrant the grant of special leave.

The application for special leave is refused.

The Court will now adjourn until 11.30 am.

AT 11.06 AM THE MATTER WAS CONCLUDED