MAS v The State of Western Australia

[2012] HCATrans 290

[2012] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P6 of 2012

B e t w e e n -

MAS

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 NOVEMBER 2012, AT 12.52 PM

Copyright in the High Court of Australia

MR T.F. PERCY, QC:   If it please the Court, I appear with my learned friend, MR G.C.R. YIN, for the applicant.  (instructed by D.G. Price & Co)

MR B. FIANNACA, SC:   If it please the Court, I appear with my learned friend, MR L.M. FOX, for the respondent.  (instructed by Director of Public Prosecutions (WA))

CRENNAN J:   Thank you, Mr Percy.

MR PERCY:   Your Honours, the point raised by this application, as your Honours will see from the paper, is whether or not a reference to prejudice to the prosecution caused by reason of a complainant’s delay is an appropriate part of a Longman direction.  We say that is a matter of importance in its own right, but having consideration of a line of authority in the Victorian Court of Appeal, it is a matter of considerable significance, in our respectful submission, for intermediate courts of trial in this State.

Your Honour, the direction complained of in this Court and the court below is in the appeal book at page 51, and it is also referred to in the judgment of the Court of Appeal in the judgment of his Honour the Chief Justice, which is found to commence at 187 of the application book.

CRENNAN J:   Page 181?

MR PERCY:   Page 187, your Honour.

CRENNAN J:   Yes.

MR PERCY:   At that page, his Honour notes that on four occasions during the course of the Longman direction, the learned trial judge pointed out that the police, as well as the applicant “had been prejudiced in the conduct of their investigation”.  It is true that he did say that they had also been deprived of “the opportunity to investigate and bring forward matters of defence” or “exculpatory matters”, as well as incriminating matters. 

But in our submission that really does make the direction, and did make the direction far too equivocal.  This Court has on a number of occasions specified that a trial judge must speak with an unmistakably strong voice as to the difficulty of an accused person where there has been a significant delay in complaint.

CRENNAN J:   Just on looking at the direction set out at page 181 and the top of page 182, there are the references which are referred to in the Court of Appeal to:

By reason of the delay . . . the police . . . have lost the opportunity to investigate and bring forward matters of defence, exculpatory matters –

That is in the first line.  Then at about line 15, there is a similar reference to finding exculpatory matters.  How is it put that that is a reference of any sort to prejudice to the prosecution case?

MR PERCY:   I think, in our respectful submission, the difficulty all people – and the police, for that matter, have in cases such as this.  So, it is saying that the police have difficulty and that needs to be interpreted, obviously, in relation to finding incriminating evidence.  That also arises ‑ ‑ ‑

BELL J:   One has to look at it as a whole, Mr Percy, and I think the point taken by the Court of Appeal is read in context.  This was a direction drawing the jury’s attention to the fact that the police have a duty in investigating matters to look to exculpatory evidence as well as incriminating evidence and it was in that context that the reference was made to the difficulty that delay causes.  I mean, it may have been preferable not to put it in that way, but it is rather difficult when one looks, in context, to see that you really get to some conclusion about prejudice, Mr Percy. 

I mean, we are not looking at a Longman direction being in some standard form.  One looks to what was the effect in the context of this trial of the judge’s directions, conformably with Longman about the need for scrutiny having regard to delay, surely.

MR PERCY:   Of course, with respect, that must be correct, your Honour.  But, in the Victorian decisions – and we have referred to them there – particularly Taylor (No 2) it is suggested – and, again, that is followed in the decision in GVV in the Court of Appeal in Victoria.  The Court there is very critical of any suggestion that the police have been disadvantaged in any extent and that it is not appropriate, it appears following that line of authority to look to see whether there is a suggestion that the police may have been philanthropically looking for evidence of innocence as well as guilt just simply conducting an investigation, which is what, in effect, this judge was saying. 

He is saying the police are investigators.  They are there suggesting that they are doing this in an open‑handed and very fair and even‑handed fashion.  But, of course, in cases such as Taylor the Court was of the view and, indeed, having reference to what Justice Buchanan said in MWL and this is at 86 in Taylor:

I doubt that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants.

That is at 86.  Again, that is the difficulty we have with this.  As soon as you start to introduce the question that this accused faces a great deal of difficulty, but so do the police and it happened four times in this and that is the real difficulty ‑ ‑ ‑

CRENNAN J:   Except to speak of exculpatory matters is not to focus on the forensic disadvantage to the police, but the forensic disadvantage to the accused.  True it is there is a reference to the police, but is that not right, that it is a way of referring to a forensic disadvantage to the accused?

MR PERCY:   What we say, your Honours, is that it introduces a question of balance into the direction and balance is not, in our respectful submission, part of Longman.  I think that point was taken by the Court of Appeal in Taylor at paragraph 93 where his Honour Justice of Appeal Kellam said this:

With great respect to the trial judge it appears to me that her Honour’s directions had the effect of providing a balance between the interests of the prosecution and the interests of the applicant.  The directions did not state clearly that the necessity for the warning arose because after many years’ delay the evidence of the complainant could not be tested adequately and that therefore the fairness of the trial was necessarily impaired.

The minute a judge in a Longman direction starts to balance the interests of the accused and the prosecution, the Longman direction is emasculated.

BELL J:   But, Mr Percy, Justice Kellam’s remarks were in the context of the direction that the judge gave in Taylor, and that is notably different to the direction which one finds extracted at application book 181 and 182 in this matter, where the – for my part, it is difficult to see any suggestion of balance coming in, in the sense of saying delay causes problems for the accused, it causes problems for the police in assembling the prosecution case. 

That is not really the flavour that comes out of this.  Rather it is the accused faces the forensic difficulty of contesting allegations that have occurred some time ago.  So too do the police who have a duty to properly investigate and see if there is some exculpatory evidence.  That is hardly a balancing direction.

MR PERCY:   Well, I think the normal view of the jury would be that this is an adversarial process, the defence looks for its own case, the prosecution look for prosecuting evidence and, notwithstanding that the matter was couched to some extent in those terms, the inescapable flavour, we say, of that direction of the trial judge at 181 where he said:

By reason of the delay, [the appellant] – and the police, for that matter – may have lost the opportunity to investigate and bring forward matters of defence, exculpatory matters we call them, and to test the evidence of [the complainant].

Again, as Justice Kellam said in Taylor, it is hard to think that the jury would interpret that as thinking, well, the police are out there on the hunt for matters that might assist the accused person and they have lost the opportunity of aiding him in his case.  The point that we say in this case is that the line of authority in this case, from Longman through Crampton through Doggett, indicate that this is a direction which must be unequivocally for the benefit of the accused and any attempt to water it down is unfortunate and leads to a miscarriage of justice.  What we say is that that much was appreciated obviously by the Chief Justice at 34 of his judgment in the Court of Appeal where his Honour said:

although it would have been much better if no reference had been made to prejudice to the police investigation as a consequence of delay, the risk occasioned by the references made to that matter by the trial judge were not such as to cause a miscarriage of justice.

So his Honour appreciated that the tenor of the direction to the jury was to the effect that it was a reference to prejudice to the police and that it would have been much better if that had have dealt – it was not a matter of simple preference or nuance in the direction.  It was, in his Honour the Chief Justice’s view, far better had that not been made.  What we are asking this Court to say is that if a court embarks upon that process during the course of a Longman direction, then that is inappropriate.  That will lead to a miscarriage of justice.

BELL J:   You are inviting the Court to say that on any occasion that a judge departs from a particular formulation of the Longman direction by any reference to the police without further examination, there is a miscarriage of justice?  That seems a rather large proposition.  Surely one has to look in every instance at the sufficiency of what it was the judge said in the context of this trial.  Against that, Mr Percy, you have the assessment of the Court of Appeal that this direction was a sufficient direction to comply.

MR PERCY:   I would accept what your Honour says is that there is no standard formulation of these sorts of directions.  But as the Court of Appeal has said in Victoria in both of those cases, GVV, Taylor and Taylor (No 2), is that when you transgress into this area, when you put your toe into the water at this level and saying that there is prejudice to the police, that will be an inappropriate articulation of the direction.  It needs to be unequivocal. 

It needs to be entirely for the benefit of the accused.  Any suggestion that it is a balancing exercise leaves the direction to be inadequate.  I think we need to look at the fact that in Taylor v The Queen there was a direction by the judge that it would be dangerous to convict.  It was the strongest form of Longman direction. 

That sort of direction was not given in this case.  It is simply said that it should be looked at with special care.  Against a direction in Taylor that it would be dangerous to convict, the court still was of the view that the direction was inadequate because it had introduced to it the question of prejudice to the police.  We are looking for direction in this Court, balancing up against that.  The Court of Appeal in this judgment did not refer to Taylor (No 2) and it did not refer to GVV v The Queen even though those decisions had been given as at the time that the Court of Appeal delivered …..

There is a clear difference of direction between those two superior courts.  The intermediate courts who sadly are faced with giving this type of direction every day, in our respectful submission, need direction in relation to whether we simply say it is better that no reference to prejudice of police be made as to whether it is in most circumstances inappropriate.

BELL J:   You keep referring to prejudice to police without putting what it was that the judge said in context.  For my part, I do not see any portion of the Longman direction in which the jury is invited to consider the prejudice to the police is the loss of evidence that would support the prosecution case.

MR PERCY:   Paragraph 15, it says the police for that matter had a duty to find all evidence, not just inculpatory, but exculpatory.

MR BELL:   Indeed. 

MR PERCY:    So, it is saying, there is a difficulty there for the police in finding the inculpatory evidence.  But then it is balanced by saying “and exculpatory” with a view it is simply implied, if there were to be any.  That, really, in our submission, is just saying there is a prejudice to the police in finding both of those.

CRENNAN J:   But the emphasis, Mr Percy, is on the forensic disadvantage to the accused.  True, it is, there are references to the police but they are in the context of a forensic disadvantage to the accused identified being as the loss of opportunity for finding exculpatory evidence.  That is the tenor of the direction.

MR PERCY:   Our submission is that the tenor is continually insisting on that they consider the difficulty faced by the police has led this direction to be inadequate.  If it was said once in relation to police might have been able to find inculpatory or exculpatory evidence, perhaps not so bad.  But three, four times the judge says “The police have been hampered in their investigations” and that is the real ‑ ‑ ‑

BELL J:   If one looks at it, Mr Percy, one sees that in the context of drawing to the jury’s attention the forensic disadvantage that the applicant suffers, reference is made to the absence of phone records that might have assisted the defence case.  Probably jurors would not think that private individuals have access to phone records in the way that an investigative agency would. 

What the judge goes on to point out is the police had an obligation to properly investigate, including to look for exculpatory evidence.  That is the context in which the judge’s remarks are expressed.  It seems to me very different to the observations in Taylor that led to Justice Kellam’s remarks.  One must look at the directions in the context of the trial and all that was put.

MR PERCY:   I think that is so, your Honour, but of course there is no chance to examine the seats for signs of the sexual activity that was said to have taken place in the car, which was normally the premise of the police.  At line 20 at page 182 the judge was saying:

accused people and police, insofar as they’re required to carry out investigations, can have difficulties with the effluxion of time.

What we say is that is at least as strong a warning to the jury that the police have a problem with the effluxion of time and that that really, in our submission, goes quite against the thrust of the cases in this Court which say there needs to be an unmistakable voice warning of the difficulties for the accused. 

To temper that and balance that with reference to the problems that the police have, we say, warms this down and it goes beyond what the Chief Justice, with respect, says that it was far better if no reference had been made to that.  We would say in the vast majority of cases there should be no reference to that made and that should be a principle of general application, as it appears to have emerged in Victoria.  If it please, your Honours.

CRENNAN J:   We will not trouble you, Mr Fiannaca.

There are insufficient prospects of success on any appeal to warrant a grant of special leave, nor do the interests of justice in this case require a grant of special leave.  Special leave is refused.

AT 1.12 PM THE MATTER WAS CONCLUDED