Libke v The Queen

[2006] HCATrans 717

[2006] HCATrans 717

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2006

B e t w e e n -

JUSTIN PATRICK LIBKE

Applicant

and

THE QUEEN

Respondent

For directions

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 20 DECEMBER 2006, AT 11.00 AM

Copyright in the High Court of Australia

MR D.J. CAMPBELL, SC:   May it please the Court, I appear with MR P.E. SMITH for the applicant.  (instructed by Bartels Lawyers)

MR D.L. MEREDITH:   I appear for the respondent, your Honour.  (instructed by Director of Public Prosecutions (Queensland))

HIS HONOUR:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honour, can I first offer an apology?  The amended draft notice of appeal which your Honour probably has in front of you was something that was prepared prior to the transcript of the hearing on 8 December being available.  That transcript is of course useful in preparing and, indeed, refining and isolating the issues because we are aware of this Court’s concern that an appeal of this nature must be on limited and isolated grounds.  Having had the benefit now of reading the transcript which we did not have at the time that the draft notice was prepared, I have prepared a supplementary draft notice.  I do not know if your Honour would care to see it.

HIS HONOUR:   Yes, thank you, Mr Campbell.

MR CAMPBELL:    Thank you, your Honour.

HIS HONOUR:   Has Mr Meredith seen it?

MR CAMPBELL:   Yes, Mr Meredith has a copy.  Can I tell your Honour how it has changed?  It has added in paragraphs 4, 5 and 6.  There was originally a paragraph 4 which has been deleted because it was thought on reflection to be repetitive.

HIS HONOUR:   Yes, that, I think, Mr Campbell – 4 encapsulates the idea that I had in mind that I referred to at page 13 of the transcript.  I wondered whether perhaps a little more particularity might be desirable in relation to ground 4, something to this effect:  “In the context of the trial judge’s directions on the several defences of mistake” – there is no need to make a note; I have a note of it here.  Just tell me what you think.

MR CAMPBELL:    Thank you, your Honour.

HIS HONOUR:   “In the context of the trial judge’s directions on the several defences of mistake, the jury should have been told that if the appellant honestly and reasonably believed that the complainant’s capacity for communication, social interaction or learning was not substantially reduced, or if he reasonably and honestly believed that the complainant was not a person needing support, he was entitled to be acquitted”.  In other words, the particular elements – the argument is or may be – and I am not saying that this is a good argument, but it seems to be the point, if there is one, that the particular elements of intellectual capacity, his awareness or state of mind in relation to each of them, was something that should have been brought home to the jury.

MR CAMPBELL:    With regard to the question of honest and reasonable mistaken belief, yes.

HIS HONOUR:   Yes, and of course you have two aspects of it.  You have the aspect of it that the onus remained on the Crown to negative in relation to rape.

MR CAMPBELL:    Yes.

HIS HONOUR:   And I think in relation also to the sodomy charge.  I am not sure.

MR CAMPBELL:    The supplementary charge, 216, the onus shifts to the accused, which is ‑ ‑ ‑

HIS HONOUR:   But it is the same definition of the elements.

MR CAMPBELL:    It is the same problem, yes.

HIS HONOUR:   I see you have added the ground in relation to the flowcharts, which was a point taken in the Court of Appeal, but neither of these points was taken by counsel.  There was no application for a redirection in relation to either of these, was there?

MR CAMPBELL:    No, at the trial, but even so, your Honour.

HIS HONOUR:   But the flowcharts argument was certainly agitated in the Court of Appeal.  It was dealt with.

MR CAMPBELL:    It was.

HIS HONOUR:   I will just hand these down, one for Mr Meredith too, of course.  Just ignore the second possible ground.

MR CAMPBELL:    Thank you, your Honour.

HIS HONOUR:   You have covered the second one in your new ground 6.

MR CAMPBELL:    The second one is covered in the draft paragraph 6, yes.

HIS HONOUR:   I should see what Mr Meredith has to say about these matters.

MR CAMPBELL:    Thank you, your Honour.

MR MEREDITH:   Your Honour, in relation to that, I have only just seen this, but it would seem only to refer to count 1 then.

HIS HONOUR:   Is that the only one where the Crown has to negative mistake?

MR MEREDITH:   Consent, which would then – the accused has to show on the balance of probabilities ‑ ‑ ‑

HIS HONOUR:   I mean mistake in relation to consent.

MR MEREDITH:   Yes.

HIS HONOUR:   There are two aspects of mistake, are there not?  There is mistake in relation to consent and there is mistake in relation to intellectual impairment.  Is that right?

MR MEREDITH:   Yes, but even if he thought she were consenting, it would not matter if ‑ ‑ ‑

HIS HONOUR:   Just stay with me for a moment, if you do not mind.  Let us deal with mistake as to consent first of all.  Mistake as to consent is a defence in relation to all charges?

MR MEREDITH:   It is not a complete defence.

HIS HONOUR:   It may be a question of different onus, but is that right or wrong?

MR MEREDITH:   No, because if she were consenting ‑ ‑ ‑

HIS HONOUR:   She cannot consent to the offence of intercourse or indecent dealing with an intellectually impaired person.

MR MEREDITH:   That is so.

HIS HONOUR:   But there is a still a possible defence, the onus being on him to show that he was mistaken as to her intellectual impairment.

MR MEREDITH:   That is so.  If she was not consenting to anything, it would not matter – and it was made apparent – then his belief about her intellectual capacity would be irrelevant because you do not even get that far.  But once she is either consenting or he is left in a position of doubt or the Crown cannot prove beyond reasonable doubt that he did not know that she was not consenting, then it goes to the issue of, in relation to the lesser charges, his showing an onus that he had a belief that – so consent stops being a defence for him when it is left in doubt or the Crown cannot – I mean, obviously all the issues have to be canvassed because the issue might ‑ ‑ ‑

HIS HONOUR:   Well, let us be specific about it.  If we look at count 1 on ‑ ‑ ‑

MR MEREDITH:   In relation to count 1, consent – there are two parts to that.  The jury had to be satisfied beyond reasonable doubt that not only was she not consenting, but that he did not have an honest and reasonable mistaken belief as to her consent.  So the jury could have either ‑ ‑ ‑

HIS HONOUR:   So it is irrelevant whether she was intellectual impaired on not on count 1 because, even if she was not intellectually impaired, if she did not consent, or if she did not consent but he was mistaken as to it, he is still convicted.

MR MEREDITH:   Yes.

HIS HONOUR:   But intellectual impairment is irrelevant on count 1, is it not?

MR MEREDITH:   It is a factual consideration but not a legal one.

HIS HONOUR:   No, thank you, yes.  Well, then count 2 ‑ ‑ ‑

MR MEREDITH:   Counts 2, 4 and 5 I think are the ones that – or 2 and 4, sorry ‑ ‑ ‑

HIS HONOUR:   In any event, that is a matter of particularity and there are different arguments, but I think the suggested ground is neutral as to that aspect of the matter.  Is that correct?

MR MEREDITH:   He would not have been entitled to be acquitted on the other 2 and 4 if he did not establish on the balance of probabilities that ‑ ‑ ‑

HIS HONOUR:   Yes, but that means that it would have been – put it the other way, he would have established that if he had been able to prove the converse of – if he had proved those matters, if he had proved, for example, on those, the onus being on him on the balance of probabilities, for example, that there was no substantial reduction in her communication, social interaction or learning, if he had proved that, or if he had proved that he was mistaken as to whether she was a person needing support or not, because the definition of “intellectual impairment” is conjunctive.

MR MEREDITH:   Yes, if ‑ ‑ ‑

HIS HONOUR:   It contains conjunctive elements as well as some disjunctive ones.  The first limb is expressed disjunctively with “or”.  The connection between the first and second limb is a conjunction one.  It is “and”.

MR MEREDITH:   Yes.

HIS HONOUR:   So if he could have proved with respect to those defences on which he bore the onus either that her capacity for communication, social interaction or learning was not substantially reduced, he would be entitled to be acquitted, or if he proved that he honestly and reasonably believed – sorry, I should have put that in terms of belief.  If he proved that he honestly and reasonably believed that her capacity for communication, social interaction or learning was not substantially reduced, he would be entitled to an acquittal, or, even if he could not prove that but if he could prove that he reasonably and honestly believed that she was not a person needing support, that he would be entitled to be acquitted.

MR MEREDITH:   Yes, though consent is still an issue.

HIS HONOUR:   Yes, I am not suggesting ‑ ‑ ‑

MR MEREDITH:   In fact, it is a first issue, because if she is consenting, then you go on; if she is not consenting, you do not go any further.

HIS HONOUR:   Yes, quite.  I suppose such a direction would be in the context of the jury having been satisfied by the prosecution that she had not consented.

MR MEREDITH:   Yes, or that he did not have a – well, no, once you go past – or that the Crown could not disprove that he had an honest and reasonable mistaken belief.

HIS HONOUR:   It is expressed, I think, generally in the sense of it does not assume anything to the contrary of what you are putting to me.

MR MEREDITH:   Yes, on that I cannot ‑ ‑ ‑

HIS HONOUR:   Is that right?  I think it is, is it not, Mr Meredith?

MR MEREDITH:   Well, if we are going to have an appeal, then we are going to be able to think about this but ‑ ‑ ‑

HIS HONOUR:   Yes.  It is just useful to have the parties’ and Judges’ minds directed to ‑ ‑ ‑

MR MEREDITH:   I was given these this morning, so I have not ‑ ‑ ‑

HIS HONOUR:   No, you have not had an opportunity ‑ ‑ ‑

MR MEREDITH:   So I would not want to give a firm view, but I will put it in my own words so then it will be clear what the respondent’s position is.  If you go through the consent issue first and if the Crown cannot prove that she either did not consent or that he cannot prove that he did not have an honest and reasonable mistaken belief about her consent, then we go on to this issue of intellectual impairment, and then the onus is on him and then ‑ ‑ ‑

HIS HONOUR:   Under 216, is it not?

MR MEREDITH:   Yes, and he then has the positive – he has to put forward a positive position that if he on reasonable grounds – say, in the context of this case, he convinced the jury on the balance of probabilities that he had had enough contact with her to be in a position to have a belief about her and was mistaken, then he would succeed because he would have discharged his onus and the Crown had not ‑ ‑ ‑

HIS HONOUR:   And there would be some onus on Mr Campbell on the hearing of an appeal, if special leave is granted, to deal with the position that no redirections were sought in relation to these matters.

MR MEREDITH:   Yes.  I would draw your attention – it was not placed before you but there was a discussion beforehand about what the judge was going to address on.  That is in the record on the Court of Appeal, but not ever placed here because it was not a subject of any ground.

HIS HONOUR:   But it might conceivably become relevant now, is that what you are telling me?

MR MEREDITH:   Yes, and that was gone through and I think it reflects on some of the other ground about the flowchart not having the issue of consent because that was available to counsel and it was made clear that consent was going to be dealt with separately, but his Honour was going to – I mean, I will not go into it.  If we are going to have an appeal ‑ ‑ ‑

HIS HONOUR:   Yes, let us have the complete ‑ ‑ ‑

MR MEREDITH:   Record, yes, and that would be an issue that may well be high on the Court’s mind as to whether to allow an appeal, because the issues were canvassed in some detail beforehand, the conjunction of consent and the issue of intellectual impairment.

HIS HONOUR:   Well, it was a very complicated task for the judge because of the different onuses and the different possibilities, the different charges.  It would not have been an easy summing up to do.  His Honour certainly dealt with the elements of intellectual impairment, I notice, but the only possible question in that regard is whether his Honour should have dealt with the elements in relation to the mistake defences where they were available ‑ ‑ ‑

MR MEREDITH:   Yes.

HIS HONOUR:   ‑ ‑ ‑ to bring home to them what he had to be mistaken about specifically.  That is really the point of this.

MR MEREDITH:   Yes.  Well, the respondent says he did.  We are not conceding that point at all.

HIS HONOUR:   Look, I understand that, of course, and we are only talking about possible grounds, and if special leave is given the Court might think that there is very little in this anyway, but it seems to me that it may be arguable anyway.

MR MEREDITH:   Yes.

HIS HONOUR:   But that would be helpful, Mr Meredith, to make sure that we have a very complete ‑ ‑ ‑

MR MEREDITH:   Yes.

HIS HONOUR:   How long did the trial last, by the way?

MR MEREDITH:   Seven days, your Honour.  The evidence was finished in, I think, four days and then it was three days of legal argument.  Yes, evidence was finished on the afternoon of the fourth day and then there was argument from day five and addresses started that day and went into the next day and the judge went that day and into the seventh.

HIS HONOUR:   None of this is any final expression of anything, Mr Meredith, it is just with a view to concentrating the parties’ minds, that is all.

MR MEREDITH:   Yes, your Honour.  I am not in a position to address the arguments that might come from this, but I understand this was merely to concentrate the minds of the parties as to what the issues might be.

HIS HONOUR:   Exactly.  It really takes up what I had in mind and said, I think, at page 13 of the transcript.

MR MEREDITH:   Yes, I am sorry, I only had access to that this morning.  It came out yesterday afternoon, I believe.

HIS HONOUR:   All right.  Mr Meredith, can you satisfy my curiosity – really it is only a curiosity – about another matter.  On page 121 of the application book there is a citation from something said by Justices Davies and McPherson in the Court of Appeal in the case of Shaw.

MR MEREDITH:   Yes.

HIS HONOUR:   I am not suggesting that the statement there is in any way exceptionable, but is it based upon anything that had been said elsewhere or ‑ ‑ ‑

MR MEREDITH:   You have caught me on the hop.  I will just have to read it.

HIS HONOUR:   It is not based upon any express provision of the Code, is it?

MR MEREDITH:   No, it is an interpretation of section – well, consent and the combination of section 24.  It is not a ‑ ‑ ‑

HIS HONOUR:   It is not really expressed neutrally – that is what struck me – in the sense that “not in law thereby taken to have consented to it”.  You can add to that, I suppose, “not in law thereby taken to have consented to it or not to have consented to it”.  It really seems to foreclose the possibility.

MR MEREDITH:   I think it is a practical question.  It may be that if she does not – the failure to manifest dissent does not of course mean that you consent, and that is nothing exceptional, but then failing to do so ‑ ‑ ‑

HIS HONOUR:   No, but the failure to manifest dissent does not mean that you have not consented either, or that you have or have not.  I mean, it seems to me to be neutral, but that is not quite expressed in a neutral way.

MR MEREDITH:   Yes, I think that sentence:

Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent –

Presumably if she says she did not manifest a consent and she has made a complaint, then she will say at trial, “I did not consent”.  It is making an assumption that if she said she consented then obviously the trial would stop right there.  So there is an assumption, of course, that she would say that she did not consent at the trial.

HIS HONOUR:   But it strikes me that it almost implies a reversal of the onus.  I do not whether it quite does, but it almost does.  If the position is neutral – and of course whether it is or not is subject to all of the evidence –the Crown has not proved its case.  It has not negatived mistake under section 24.

MR MEREDITH:   Well, if it is left neutral, it may not have proved that ‑ ‑ ‑

HIS HONOUR:   Absence of consent.

MR MEREDITH:   Yes.  Leaving aside his belief, it may not have proved it.

HIS HONOUR:   You would have to read it all in context.

MR MEREDITH:   Yes.

HIS HONOUR:   In any event, there was no suggestion that the trial judge summed up in terms of that citation, I do not think.

MR MEREDITH:   No, there is no complaint, and I do not think there ought to be by the applicant, that he had reversed ‑ ‑ ‑

HIS HONOUR:   I am just not too sure that if you had a summing up in those terms, subject to what else might be said, that the summing up might not be exceptionable.  It just might be exceptionable in the sense that ‑ ‑ ‑

MR MEREDITH:   I think the words that are important are “depending on the circumstances”.  For instance, if a boyfriend and a girlfriend are

together and she does not manifest a consent, given the history of the relationship, it would be taken as consenting; whereas if you drag someone from the street, she would not have to show consent for an accused person to believe that she was not consenting.

HIS HONOUR:   Yes, all right.  Well, you have made your position clear, but nobody’s position is firm at this stage.  We are only talking about grounds of appeal.

MR MEREDITH:   Yes, your Honour, I have nothing further then to say.

HIS HONOUR:   Thank you for your help, Mr Meredith.  It was most helpful.  Mr Campbell, I do not know whether that ground is ‑ ‑ ‑

MR CAMPBELL:   My only concern with regard to it is this, your Honour, that with regard to the rape count whether the way that the defences of mistake are expressed are sufficient to cover a mistake of a state of things, I think is the wording used in the relevant section, and the state of things is really her consent or not.  Our argument is that there is ‑ ‑ ‑

HIS HONOUR:   But we are not talking about actual consent in this draft ground; we are talking about mistake.

MR CAMPBELL:    Yes, and what it does not address ‑ ‑ ‑

HIS HONOUR:   We are not talking about mistake as to consent.  This ground is concerned with mistake as to his state of mind with respect to the elements necessary to constitute intellectual impairment.

MR CAMPBELL:    And to that extent, your Honour, it seems to be focused solely on section 216.

HIS HONOUR:   Yes.

MR CAMPBELL:    The argument on the rape charge is, your Honour – and it has been expressed before – that there is initially a question of whether or not the complainant had the capacity ‑ ‑ ‑

HIS HONOUR:   But that does not purport to deal with that in any way at all, Mr Campbell.

MR CAMPBELL:    Yes.

HIS HONOUR:   If you have a ground that you want to advance in relation to that – and you do not seem to have here – you should need to formulate it.

MR CAMPBELL:    Yes, ground 4, your Honour.

HIS HONOUR:   I see, yes.

MR CAMPBELL:    The argument is only this, that the initial question is whether or not there was the intellectual capacity to consent – cognitive capacity.

HIS HONOUR:   Well, that is in addition to the draft suggestion here.

MR CAMPBELL:    Yes.

HIS HONOUR:   Because the draft suggestion here is only concerned with ‑ ‑ ‑

MR CAMPBELL:    Section 216, in effect.

HIS HONOUR:   Well, I am not too sure about that.  As Mr Meredith pointed out, say that you have succeeded in the rape charge on the issue of consent, that would be the end of it, would it not – no, it would not be the end of it.

MR CAMPBELL:    No, then you would go on to the 216 ‑ ‑ ‑

HIS HONOUR:   Then you would go on.  So it is relevant – well, no.  Say she had consented, but there was a remaining question whether that consent was a consent that could in law be given because of her intellectual impairment.

MR CAMPBELL:    Your Honour is right.  The way that we have looked at that, your Honour, is that the first issue is did the complainant have the cognitive capacity, the intellectual ability to consent.  The jury appeared to have found that that was the case because there were on two accounts – rape charges were dismissed and ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.

MR CAMPBELL:    So the implication of that is that she must have consented.  So having the intellectual ability to consent, the question then is purely, did she consent.  The difficulty is that there was a blurring in the directions given by his Honour with regard to that.

HIS HONOUR:   Well, the draft here may assist you as an additional ground anyway.

MR CAMPBELL:    Yes, it is most useful.

HIS HONOUR:   All right.  Well, I will have to confer with the other members of the panel, Mr Campbell.

MR CAMPBELL:    Indeed, your Honour.

HIS HONOUR:   But do I understand then that you seek special leave on the six grounds which you have made available plus the further suggested ground that I have just shown to you or that we have just discussed?

MR CAMPBELL:   Indeed, ground 5, your Honour, of the suggested grounds might not be necessary in light of the suggested ground.  I think it is ‑ ‑ ‑

HIS HONOUR:   No, it might not. Yes, substitute ‑ ‑ ‑

MR CAMPBELL:    Substitute the suggested ground 5.

HIS HONOUR:   I think what you have in 6 covers better that question than the one that I have handed you in a draft form.

MR CAMPBELL:   Thank you, your Honour.  Is it of assistance if we prepare a further document and send it to the Court?

HIS HONOUR:   Well, I intend to deal with this straightaway, Mr Campbell.  I will adjourn for a short time.

MR CAMPBELL:    Thank you.

HIS HONOUR:   But the understanding would be that there would be seven grounds of appeal, 5 would become 6 and 6 would become 7, and the first of these drafts that I have given you would become a new 5.

MR CAMPBELL:    Thank you, your Honour.

HIS HONOUR:   Do you follow that, Mr Meredith?  It is clear enough, it is not?

MR MEREDITH:   That the first paragraph on that that you have handed down would become ‑ ‑ ‑

HIS HONOUR:   Yes, just ignore the second paragraph.

MR MEREDITH:   Yes, would become 5, is that so?

HIS HONOUR:   Yes, and 5 would become 6 on the draft and 6 would become 7.

MR MEREDITH:   Yes, your Honour.

HIS HONOUR:   All right.  Well, I propose to adjourn, probably very briefly, and I intend to attempt to have a video link up with Justice Kirby.  So if you gentlemen could wait for five minutes or so, but I will adjourn the matter briefly.

AT 11.31 AM THE MATTER WAS CONCLUDED