Little (a Pseudonym) v The Queen

[2015] HCATrans 234

[2015] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M67 of 2015

B e t w e e n -

MARK LITTLE (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 12.04 PM

Copyright in the High Court of Australia

MR C.B. BOYCE, QC:   If the Court pleases, I appear on behalf of the applicant with my learned friend, MR M.J. GLEESON.  (instructed by Michael J Gleeson & Associates Pty)

MR G.J.C. SILBERT, QC:   May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Acting Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes, Mr Boyce.

MR BOYCE:   Thank you, your Honours.  Your Honours, both the majority and the minority below made a very important observation and that is to say that, generally speaking, whatever one might think about the propriety of doing so, it is legal in the sense of one is not criminally liable for engaging in an act of sexual penetration with a 17‑year‑old if you are older than that person and perhaps significantly older. 

If that is so, then one would have thought that it is legal legitimately to attempt to persuade such a person to engage in such an act and although this term has an antiquity about it, one would assume also that it is legal to attempt to seduce such a person.  In reality, the complainant’s version of events in this case recounts a story of seduction.  There is no suggestion now of rape.

KIEFEL J:   This is rather off point, though, is it not?  This is simply a question of whether or not the complainant could be said to have been in the care, supervision or authority ‑ ‑ ‑

MR BOYCE:   Yes, I will come to that directly.  The case against the applicant now – it was not the case originally – is that the complainant was under the applicant’s authority and the sine qua non of that case is that he was the householder, that is to say, he had the power to control who came to the house – to issue instructions about that – and the power to dictate how persons in the house behaved.

KIEFEL J:   Just to interrupt you at this point, is not the real question here whether this matter is a matter for the jury or whether it should be determined as an anterior question?

MR BOYCE:   Our case, as your Honours would have picked up in the judgment of the court below, is that the trouble the court – or a trial court with this prosecution is to abuse its processes.  This case should not get to a jury, in our respectful submission, and I will come to the reason why.

GORDON J:   You do not challenge the test that is to be adopted by a trial judge in considering this question on an interlocutory level?  In other words, you had to establish, did you not, that the prosecution was foredoomed to failure?

MR BOYCE:   Yes, quite.

GORDON J:   That is a very high burden.

MR BOYCE:   Can I say this in response to what has fallen from your Honour?  In this particular case, an important observation that should be accepted, in our respectful submission, is that we know what the evidence is going to be.  This case has been fought below at both stages on the assumption that the evidence will rise no higher than what appears in the rather lengthy rehearsal of the evidence in the minority opinion which is adopted, of course, by the majority.  So, we have a difference of principle between the minority and the majority in this case as to what the test is because it is fairly clear – or abundantly clear – that the minority justice below applied what might be loosely termed the Doney test.

GORDON J:   I think we are at cross‑purposes, Mr Boyce.

MR BOYCE:   Sorry, your Honour.

GORDON J:   You do not challenge the principle that you had to establish it was foredoomed to fail?  That is number one.

MR BOYCE:   Sorry, no, I do not challenge that.

GORDON J:   The question which arises then is that whether or not someone is under the care, authority or supervision of someone is a question of fact which ultimately should go to the jury, should it not?

MR BOYCE:   No, no.  With respect, your Honour, there must be facts – and I will take your Honours to their Honours’ – the majority’s finding in the application book in a moment.  There must be facts that are known to the applicant from which it can be inferred, objectively, that he had the capacity to exploit or take advantage of his position as householder in order to procure the proscribed act. 

Now, our case is that on no torturing of the evidence as is displayed or is rehearsed in their Honours’ opinion does a case open to go to the jury exist.  Can I put it this way?  If I am correct in my assertion that the sine qua non of the finding of authority here was the fact that the applicant was the householder - and, in my respectful submission, I would have thought that that was uncontroversial ‑ ‑ ‑

KIEFEL J:   It is such a neutral term, is it not – “householder”?

MR BOYCE:   Yes.  I intended though to flesh it out.  It effectively meant two things:  power to control his own house, to issue instructions as to how to behave in it.  That was what it meant.  But what that means is that had this act taken place in a different location - your Honours, assume everything is the same, had this act taken place in a location over which the complainant had sole dominion, let us say, the complainant’s residence, the court’s processes would be abused and the prosecution would be stopped if I am correct that his position as householder was the sine qua non.  If it took place in a hotel or a motel where, for argument’s sake, there was shared dominion, this prosecution would be stopped.

GORDON J:   But it did not happen in a hotel.

MR BOYCE:   No.

GORDON J:   It happened in a house where Judge Gaynor, as the trial judge, or one of the judges who is going to consider it, said there were:

facts and circumstances known to the accused that he was a person of authority in the house ‑ ‑ ‑

MR BOYCE:   Quite.  So then we ask ourselves ‑ ‑ ‑

GORDON J:   Sorry, her Honour goes on to say:

and which could found an inference that on the day in question the accused was in a position of care, supervision or authority ‑ ‑ ‑

MR BOYCE:   Yes, precisely.  So, if my argument follows in its logical – we ask ourselves then what is it that is different or could be different about this having taken place in the applicant’s house such that the game changes and no longer is the court’s processes abused and it is appropriate for the case to go ahead.  What is then required is for the Crown to particularise – or it should be open to the jury to find, by reference to facts known to the applicant, that he could exploit or take advantage of his position as householder and on that instance – on that matter – the Crown case, in our submission, is entirely silent and I will explain how that is so.  Can I take your Honours to the application book?  The way in which this was dealt with by their Honours below in the majority ‑ ‑ ‑

GORDON J:   Just so that I am clear, Mr Boyce, the matters set out by Judge Gaynor at page 8 of the application book are matters that you say are insufficient – to what?

MR BOYCE:   To found.

GORDON J:   So even if they were all ‑ ‑ ‑

MR BOYCE:   Proven.

GORDON J:   ‑ ‑ ‑ established you would still be foredoomed to fail.

MR BOYCE:   Exactly.  Your Honour, can I put it this way?  There are a number of different ways we can formulate the test but in what manner did the fact of him being the householder make the complainant beholden to him in a manner that he could take advantage or exploit that capacity so as to procure the proscribed act? 

Can I take your Honours to the application book?  There are 13 facts or matters that are relied upon by the majority below in order to overcome the argument that was made and it is found at application book 53, paragraph 87, of the judgment of the majority below.  You will see 13 points that are sufficient – in combination so their Honours would have it – to overcome the contention that I made below, namely, that there was no case to go to the jury.   

The first point that must be made about that is point 6 on page 54 of the application book which is the second dot point.  We have reference to the lie that the complainant said to her mother.  That should be discounted because it should be taken out.  It would perhaps be a rather difficult proposition were it properly there but it should be taken out because there was no evidence that the applicant knew that.  So, that is misplaced.  It should be not considered. 

The second one, point number 8 which is the fourth dot point in application book 54, the offer of the lift - yes, your Honours, we know there was a bus stop outside the door that took the complainant home.  In any event, I am dealing with what are matters peripheral to the gravamen of her Honour’s finding at first instance which was the fact of the applicant being the householder. 

Your Honours find that effectively rehearsed at dot points 1, 4, 7, 12 and 13.  Those points taken together – really, all they say is that the applicant was the householder.  We accept that for the purposes of the argument.  He was the householder.  But it still does not tell us how it is or how it is going to be open to a jury, other than behaving or to exercise complete speculation, how he is going to take advantage of or exploit that position in order to commit the proscribed act. 

Then, of course, we have dot points 2, 3, 5, 9, 10 and 11 which again in some simply describe the fact that such a relationship clearly exists between the complainant’s boyfriend, JC, and the applicant.  Obviously enough, JC was beholden to the applicant and had he, for argument’s sake, engaged in a similar act with JC, we would not be here.  But that says nothing about the relationship that existed or could be said to exist between the applicant and the complainant.

So, on the way to reaching those two divergent opinions – sorry, before I get to that.  I am sorry, I will backtrack a moment, where I was.  On the way to reaching those two divergent opinions we find differences between the majority and the minority as to the applicable test.  The majority says that notwithstanding we know what the evidence is going to be – the Doney test ought not apply and it is some higher threshold or higher hurdle for us to clear and then go on to say rather tantalisingly towards the end of their Honours’ judgment, but this case may be taken away from the jury.

It may be that there is no case.  We know what the evidence is.  On one view of it one might be forgiven for interpreting that observation by their Honours, perhaps not the greatest vote of confidence in the conclusion that was reached.  But perhaps more importantly was the division of opinion that exists between the majority and the minority as to the interpretation of section 48(1) itself. 

Your Honours will have picked up from our submissions hopefully that his Honour Justice Priest below was clearly of the opinion that the word “authority”, as it appears in section 48(1) of the Act, could properly take its colour and meaning from those relationships that are identified or listed in section 48(4).

One can understand the wisdom of that because imagine, your Honours, some persons might think – and clearly the legislation is not attempting to proscribe this – some persons might think that any act between an aged person, for want of a better term, and a 17‑year‑old is an act contrary to authority.  There must be an imbalance of power simply by dint of the experience, world experience or life experience, by dint of the age. 

But what section 48(4) tells us, very clearly, is that we are not talking about those types of relationships.  We are talking about the type of relationship where a person is a prison warden.  Clearly, in that instance, a complainant would be beholden to such a person.  A police officer, clearly, an accused or potentially accused person would be so beholden; a teacher – yes.

GORDON J:   The list is not conclusive.

MR BOYCE:   No, it is not, but his Honour Justice Priest – I am sorry, your Honour.

GORDON J:   It may provide some indication of the sorts of relationships but, on no view is that list going to be confining in any way.  It is depending upon the facts and circumstances of the case.

MR BOYCE:   Precisely so.  But, what his Honour Justice Priest was at pains to point out was that the list makes it clear that there has to be something that can be exploited.  There has got to be a means by which the potential complainant is beholden.  There must be something so that the applicant can take advantage of it.  I might have authority over a person.  I might have authority, I might care for a person – but it might be a matter of absolute indifference to that person that I do so.  In other words, I have got nothing to play with.  I have got no leverage.  That is the important ‑ ‑ ‑

KIEFEL J:   It is essentially a question of power and that is really, par excellence, a question for the jury. 

MR BOYCE:   If there is evidence of that – I come back to my earlier submission, your Honours, and I would have thought it was relatively uncontroversial.  If this act had taken place at the complainant’s house or in a place of mutual dominion we would not be here.  There would be no prosecution.  What is it that makes it different?  How was the jury going to conclude beyond merely speculating, in this case – in the ether when we know what the evidence is – how it was that the applicant had the capacity to use his position as a householder, in particular?

We can see it with JC but we cannot see it with the applicant.  A simple point really is if the case would be stayed as an abuse of the court’s processes were this still taking place, if it was completely, factually, the same – if it took place in a different location it should be stayed in this unless the Crown can particularise, tell us how it was that the complainant was beholden.  What was it that he was able to use as leverage because we do not know?

GORDON J:   Are you stepping back from the concession you made in the Court of Appeal that it was open to the jury to find that there was this sense of empowerment?

MR BOYCE:   I did not make that – no.  I made the concession, I would have thought, your Honour, that he had ‑ ‑ ‑

GORDON J:   It is set out on page 55, in paragraph 88, of the Court of Appeal majority’s decision.

MR BOYCE:   Yes, they are my words and I do not step away from them, your Honour, I do not.  They are my words and I cannot stand here and say there was not evidence that he issued instructions and so forth that he was the householder, of course.

GORDON J:   It is a bit more than just a householder.

MR BOYCE:   No, no.

GORDON J:   It is:

empowered to issue the complainant with instructions concerning whether she attend at, or how she behaved in, the applicant’s household ‑ ‑ ‑

MR BOYCE:   Precisely.  If we go back to her Honour’s ruling at application book 8, commencing at line 5:

It was his household:  he paid the bills.  [JC] was a teenage boy who lived there with the accused’s permission who was his employee –

and so forth.  He is the householder, yes.  But unless there is some reason why – unless the complainant is beholden to him in some way because of that or it is open to a jury to conclude as much without engaging in what we would submit is rank speculation, the court should not be troubled with the prosecution.  We do submit that if – and I will not submit it again – I think I have already said it twice – if there was any material difference it is between the two locations, but there is not.  There could not be.

This man was not charged originally with this offence.  He was originally charged with rape.  This was not even an alternative.  I will be corrected if I am wrong about that because no part of the committal involved this.  The rape was withdrawn, and properly so, and then this offence came along.  We have a difference in the court below as to whether it would abuse the court’s processes for it to go ahead. 

We have a difference of opinion as to the interpretation of section 48(1) and whether section 48(4) gives it colour and meaning which would be relevant to the disposition of this matter because if we are right about – if Justice Priest is correct about that it is not an unsuitable vehicle to consider the question.  Your Honours are the Court ultimately – leaving aside the welfare of my client or what is fair for him or otherwise,

your Honours have the ultimate power to protect the processes of the courts against processes that abuse them.

KIEFEL J:   The position relating to your client is not foreclosed, of course, by the outcome of this application which relates only to an abuse of process.  He can be advised at the conclusion of the trial if the prosecution succeeds on the basis of the evidence that is placed before the jury as to whether or not it was open to the jury to conclude.

MR BOYCE:   Yes, that is right.  By that stage, he will be – I could say he will be in custody.  If that is right, that is where he will be.

KIEFEL J:   Well, matters of bail are matters of bail.

MR BOYCE:   At that stage he will be in custody.  I think I can say that.  I do not think my learned friend would disagree with that.  But we are not really here to protect him.  We are here to protect the courts’ processes.  Of course, there is another benefit that flows.  But this was enough to convince at least one judge of the court below that that was so and we contend, and we contend strongly, that there is no material difference, in particular, because their Honours – what fills one with dread, in this case, is that their Honours do say, and it is clear, they say it is possible the case will be taken to a jury.  But we know what the evidence is in this case.  Is that not to abuse the court’s processes to allow the case to go ahead in that instance when we know what the offence is?  Your Honours, I see the light.  Thank you, your Honours.

KIEFEL J:   Yes, thank you, Mr Boyce.  We do not need to trouble you, Mr Silbert.

MR SILBERT:   I am obliged to your Honours.

KIEFEL J:   The question as to whether the complainant was under the authority of the applicant is one of both fact and law.  There is insufficient reason to doubt the conclusion reached by the majority in the Court of Appeal that it cannot be said that the prosecution case in that regard is doomed to failure.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 12.26 PM THE MATTER WAS CONCLUDED