MBJ v The Queen

[2012] HCATrans 109

[2012] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A16 of 2011

B e t w e e n -

MBJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 12.55 PM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR S.J. DOYLE, for the applicant.  (instructed by Lempriere Abbott McLeod)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR K.G. LESSES, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Thank you.

MS SHAW:   This application raises a matter of public importance.  In relation to the jury directions required, where the prosecution rely on similar fact evidence between complainants within the same family, concoction is raised as an issue and the sexual offence that is critical to cross‑admissibility is one of 14 diverse acts in relation to a charge of persistent sexual exploitation.  The prosecution case at trial relied upon the improbability of similar lies, given the similarity between the accounts of multiple complainants in the same family in relation to violent and sexual offences.  The issue of concoction or collusion with the complainant’s mother was part of the defence case, yet no direction ‑ ‑ ‑

BELL J:   Can I just interrupt you to understand this.  As I read the respondent’s submissions, concoction was not put to the witnesses in the Crown case.  Is that the position?

MS SHAW:   That is so, your Honour.

BELL J:   And no direction was sought by trial counsel of the sort about which you now complain of a miscarriage by reason of the absence of the direction?

MS SHAW:   That is so.

BELL J:   Well, that presents some difficulty, does it not, on your concoction ground?

MS SHAW:   With respect, we submit, no, because the way in which the Crown pitched its case was based upon the improbability that these three children would all tell lies, and the learned trial judge emphasised that case in his summing‑up to the jury when he reminded the jury of the prosecution cross‑examination of the accused, at page 40, and reminded the jury of the prosecution address where the prosecution relied upon the unlikelihood of concoction.  In other words, the way in which her Honour Justice Vanstone, who delivered the judgment for the court, dealt with the issue of concoction was to acknowledge that it was an important part of the defence case.  In particular, her Honour, at application book 89, paragraph 39, referred to the appellant – this is at line 42:

when the appellant was interviewed by police, he immediately and forcefully raised the suggestion that the allegations were a result of his children’s collusion and concoction with his estranged wife.  He maintained that position when he gave evidence at trial.

So, in essence, the applicant had sought a separate trial of the counts relating to the separate complainants.  When the trial was conducted, his interview with the police was before the jury, whereas her Honour said “he immediately and forcefully raised the suggestion” of concoction and collusion and when the prosecution cross‑examined the accused, the prosecution put to the accused, “You maintain that is your case?”  Now, we say, with respect, that the reason that a concoction direction was necessary in this case is because the prosecution’s reliance on improbability of similar lies depended upon the jury first excluding the risk of concoction in accordance with a judgment of this Court in Hoch v The Queen (1988) 165 CLR 292. In our respectful submission, the importance of the decision in Hoch’s Case is that if there is a risk of concoction, then the similarities upon which the prosecution rely, and in this case which were fundamental for cross‑admissibility, are robbed of their cogency.

BELL J:   It is a difficult argument to make good when it has not been put to the witnesses that they did concoct their evidence.  What direction would be given?

MS SHAW:   Well, your Honour, the direction must address the way in which the Crown sought to persuade the jury and the judge directed the jury, they were entitled to be persuaded, that the prosecution case was that the complainants, that is, the three children, ought to be accepted because it was improbable that they had concocted their evidence.

BELL J:   Where is the particular passage you complain of in the summing‑up that you say put the case in a way that required the direction you now seek, notwithstanding that counsel did not ask for it?

MS SHAW:   Your Honour, first of all, your Honour, it is in two respects.  Insofar as the prosecution addressed the jury on this topic that is relying on the improbability of similar lies and the cross‑admissibility of the evidence, that is in the appeal book extracted at page 116 to 117 where the prosecution put to the jury that their case was that all of these children would not be lying, and the defence case essentially was, at page 117, paragraph 118 – the defence case is:

they have all lied of course to the police.  They have all lied to the lawyers preparing the case . . . They have lied to his Honour.  They have lied to me.  They have lied to each and every one of you.

So the prosecution relied upon, for cogency, the improbability of concoction.  In the summing‑up at page 40, his Honour reminded the jury of the way in which the prosecutor had presented his case, cross‑examined the complainant, at line 30, how:

he was cross‑examined about was the record of interview and how quickly after the allegation was put to him that he decided to blame [J] for having got the children, all of them, to make up a false story against him.

At page 41 he reminded the jury of the submissions, which I have I have taken your Honours to at page 41 at point 40 and point 50, the relying on the inconsistency and intersecting stories and secondly that:

there was no reasonable basis upon which you should think that [J], the mother, had engineered this comprehensive set of false allegations from the children.

FRENCH CJ:   He is just telling there what the Crown has said, is he not?

MS SHAW:   He is.  So, in essence, the trial judge left the jury with the submissions of the Crown as to the permissibility of relying upon the improbability of similar lies in a case where there were no directions between the counts by his Honour as to what evidence was admissible in relation to another count and what evidence was inadmissible bearing in mind that her Honour Justice Vanstone accepted that such directions ought to have been given in the sense that there was clearly – the counts of violence were not admissible in relation to the allegation of sexual exploitation, that is, the counts of violence in relation to the other complainants, there was a lack of cross‑admissibility.

Of course, the probative force of that reliance upon cross‑admissibility, that is, the jury’s entitlement to have regard to the totality of the evidence, which was the way in which the Crown asked the jury to approach it, clearly elevated the status of all of the allegations to additional probative force because of the combination and we submit that the effect of Hoch is that that cogency is only achieved if the jury, first of all, exclude concoction. We rely on the judgment of their Honours at page 296 in our materials at page 4, for example, at line 40:

That rational view –– viz. joint concoction –– is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies.  It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

BELL J:   Hoch was concerned with admissibility.

MS SHAW:   Yes.

BELL J:   Your complaint is with the sufficiency of the directions to, as it were, put the jury on guard relating to the risk of concoction in circumstances where no application for such a direction was made.  It may be, looking at it with fresh eyes, one can think that it was desirable to give such a direction, and that seems to be the view that Justice Vanstone formed, but it is not an error of law not to give a direction that is not sought relating to a matter such as concoction or the risk of it, is it?

MS SHAW:   We submit it is, your Honours, because it is a precondition to the jury being entitled to rely upon the cross‑admissibility of evidence.

FRENCH CJ:   The admissibility is an issue which is determined at the point at which the evidence is – the jury does not make decisions about admissibility.  The jury has to assess whether the evidence can be relied upon.  Does not his Honour, at page 42 in lines 30 and following, set out the contentions put in relation to the possibility of a false story by defence counsel?  In the light of the general directions given by his Honour at the beginning of his direction relating to belief, disbelief, total or partial, it is difficult to understand how the jury could have failed to appreciate that one of their tasks was to decide whether they believed or disbelieved the children, whether the children had made up a story.

MS SHAW:   Your Honour, if this case was simply a case about one complainant and the accused, then clearly the issue of having the defence case put, your Honour’s approach would be sufficient, but the difference is that in this case there were counts of sexual offences joined with counts of assault.  There were no directions at all in relation to the admissible use of the counts in relation to each other.  Her Honour found that despite the absence of any direction, there was one permissible use and that was in relation to the count of showing the child A, in the first count, pornography, which was one of the 14 counts.  That evidence relating to a sexual offence was cross‑admissible with counts relating to showing the other two children pornography.  That was the only count or only evidence that her Honour found to be cross‑admissible, despite the absence of a direction in relation to the inability for the jury to have regard to other evidence. 

Now, that particular offence relating to showing pornography was but one of the 14 types of offences in relation to count 1 and yet the jury were not given what is known as the KBT direction in accordance with KBT v The Queen (1997) 191 CLR 417 that they were required to be unanimous as to at least two of the 14 offences that comprised count 1. So unless the jury were unanimous about the pornography and unless they excluded the risk of concoction, that cross‑admissibility had no probative force.

In our respectful submission, the Victorian Court of Appeal in the judgments, for example, of R v Buckley, which we have referred to in our materials, is correct insofar as it has addressed the introduction of legislation that effectively removes Pfennig, and our legislation to section 278(2a), that removes Hoch at the point on the question of severance.  Our submission is that the principles in Hoch continue to apply in relation to whether a jury is entitled to rely on evidence that is said to show the improbability of concoction.

Your Honours, insofar as no objection was taken, in our submission, her Honour Justice Gaudron in BRS v The Queen, where no objection was taken to evidence in relation to similar fact evidence in relation to the witness W, is a good example, we say, of where, although Hoch may be irrelevant to the question of severance, it continues to apply to the question of whether or not evidence that is relied on for similarities can only be relied upon if, indeed, the risk of concoction is excluded.  Your Honours, we say that this is a critical point in relation to 278(2a) because 278(2a) of our Criminal Law Consolidation Act effectively excludes Hoch from the question of whether or not counts can be severed where there are sexual offences relating to complainants. 

The issue that we say where her Honour Justice Vanstone held in this case that the effect of section 278(2a) was to remove Hoch as having any significance at all in relation to the determination of cross‑admissibility is a matter of fundamental importance to the way in which juries are directed as to the admissibility of evidence in joint trials.  So although Hoch is concerned with admissibility on the facts of that case, whether charges should be joined, it is plain from BRS v The Queen and it is plain from R v Buckley that the fundamental premise of Hoch is the improbability of concoction, and the jury must exclude that.

In our respectful submission, the effect of the judgment of the court where there were no directions at all in relation to evidence that was not admissible between the charge counts is to, firstly, not require a KBT direction where one of the charges only is relied upon for cross‑admissibility and therefore one is not to know whether or not the jury reached their conclusion on the basis of the cross‑admissibility, but, secondly, having allowed the evidence to be admitted for the purposes of proving a relationship, which was the only basis for the admission of the

offences of assault, effectively the jury were not given any directions as to how they evaluate the reliance by the prosecution on the similarities. 

We rely, your Honours, on the statement of his Honour Appeal Justice Nettle in Buckley’s Case as to the imperative, page 28 of our materials, paragraph 52, point 30.  In that case, the judge did not explain to the jury the need for them to be satisfied.  The evidence was ‑ ‑ ‑

BELL J:   I am sorry, Mrs Shaw, you said page 28 of your materials?

MS SHAW:   Yes, of the book of materials, your Honour.  It is the last page in the book of materials.

BELL J:   Is it a paragraph that begins “Consistently”?

MS SHAW:   Yes, it is, your Honour.

BELL J:   Yes, all right.

MS SHAW:   Your Honours, Victoria’s provision, section 398A, effectively removed the way in which Pfennig applied to the admissibility of evidence in the same way that our section 278(2a) removes Hoch, but the Court held that in that case where the jury were being asked to rely upon the evidence of another complainant, at line 33:

But the judge did not explain to the jury the need for them to be satisfied that the evidence was not the result of collaboration, between KD and JG, or unconscious influence or innocent infection; and his Honour did not explain to the jury that if they were satisfied of the truth of the evidence that the way in which they were to use it was by asking themselves whether the similarities between what the applicant was alleged to have said and done to and with JG and KD were so much more than one might expect –

In other words, your Honours, we say that the Victorian Court of Appeal has continued to apply BRS v The Queen and Hoch in this context and therefore that raises a matter of special importance.  If the Court pleases.

FRENCH CJ:   Thank you, Ms Shaw.  We will not need to call on the Solicitor‑General. 

The applicant complains, first, that the trial judge did not direct the jury that they must agree on at least two of the same acts of sexual exploitation within the requisite three‑day period before they could convict him of the offence of persistent sexual exploitation under section 50 of the Criminal Law Consolidation Act 1935 (SA); that is to say, the judge did not give a direction of the type required by KBT v The Queen in relation to the offence of maintaining a sexual relationship with a child contrary to section 229B(1) of the Criminal Code (Qld).

The Court of Criminal Appeal, in our opinion, carefully analysed the judge’s directions and concluded that the possibility that different jurors based their findings of guilt on different acts could be entirely discounted.  There was no complaint at the time by counsel.  This ground of appeal, in our opinion, does not warrant the grant of special leave.

The applicant also complained of the absence of any direction as to the permissible and impermissible use of evidence of one charged act in relation to proof of another.  Again, it is significant that there was no complaint made about the direction by counsel for the defence.  The judgment was an evaluative one which it was open to the Court of Criminal Appeal to make.  The decision of the Court of Criminal Appeal in that respect is not attended with sufficient doubt to warrant a grant of special leave.  For similar reasons, the absence of a direction as to the possibility of concoction does not give rise to a special leave question.  Special leave will be refused. 

The Court will now adjourn until 1.45 pm.

AT 1.18 PM THE MATTER WAS CONCLUDED