MFA v The Queen

[2002] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S68 of 2001

B e t w e e n -

MFA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 12.38 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR P.J.D. HAMILL, for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If the Court pleases, I appear with my learned friend, MR G.E. SMITH for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   This is a very worrying case, is it not, Mr Ellis?

MR ELLIS:   Your Honour, I guess every time you have multiple counts and then you have different verdicts, one can say that those cases can raise concern.  Certainly, I think the authorities are that one needs to look very carefully at each and every one of such cases in order to determine whether or not the verdicts are explicable, whether it is and was open to the jury to reach the conclusions that they did.

The Crown says in this case, your Honours, that there are a number of strong reasons or explanations for why the jury could say to itself that they were not prepared to act on the word of the victim alone, given the absence of supporting evidence of people who were present.  Now, that relates to the first two incidents or counts 1 through to 6.

McHUGH J:   I understand that, but let me tell you the matters that concern me.  First of all, it is the use of this characterisation of “sexual incident” as corroboration, as to whether or not it is legitimate to do what the Court of Criminal Appeal has done here.  Secondly, although in Jones I was a party to the use of this expression “reasonably open” which follows from M.  Reading it again, I am not sure that I ought to have been agreeing in Jones with what we said there.  It seems to me a fairly important point, and I know that Justice Gummow is also somewhat troubled by that point.  The third thing is that in assessing the safety of the convictions, did the Court of Criminal Appeal really give any weight at all to the acquittals?  That itself seems an important point.

MR ELLIS:   Perhaps if I could address the first of those in relation to support, your Honour, or corroboration.

McHUGH J:   Yes.

MR ELLIS:   That term has been a term which has had fairly wide ramifications.  Generally speaking, in our common experiences there are many things which can support our acceptance of the version given by a person.  The extract that is contained at the application book 141, the written submissions, from Kilbourne’s Case from Lord Reid is probably on point when it says:

When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it.

The Crown would say here that the central issue - the first issue was that the victim gave evidence alleging a series of sexual - homosexual activities had taken place.  The accused gave evidence denying each and every one of those allegations, indeed, a general denial of any homosexual activity between the two at any stage.  So that was the central issue, whether or not the jury could be satisfied, bearing in mind the accused’s denial that they could act on the evidence of the victim and be satisfied beyond a reasonable doubt.

The first thing about that is that by convicting under counts 7 and 8, it is clear that they rejected the accused’s denials.  The second thing about it is that the first difference was that the person who was said to have been present and who could, therefore, one assumes, give evidence as to what occurred, was called in those two counts and did give evidence of homosexual activity.  In the first three counts Mr Bosman was present and must have been able to give evidence corroborating the boy if that was so.  He was not called.  There was a strong direction given by the judge that the jury could infer that his evidence could not have assisted the Crown case.  So that, in essence, left the jury with not just the victim but they were left with the victim minus a witness who ought to have been there assisting, but the inference was to the contrary.

It was worse in relation to counts 4 to 6 because Mr Bosman was there and Mark and Anthony Campbell were both present.  So again there were three people who should have been able to corroborate the evidence given by the victim.  Again the jury were told that they were entitled to infer that those people were not called because they could not help the Crown case.  In this case – in this incident, 7 and 8, Mr Albans did give evidence of homosexual activity.  In count 7 he gave evidence which went to the specific allegation, in terms of the touching of the penis, albeit inside or outside the clothing was still an issue.  He did not give evidence of the same type, it was inverted as it were.  Nevertheless, he was there saying there was inappropriate homosexual activity taking place.

So that on that central issue, the significance was that a person who was said to be present, for the first time was actually there giving evidence and confirming the general thrust, if not the specifics, of what the complainant was alleging.  In relation to the ninth count, Mr Albans gave evidence.  The evidence was that it was a three‑man tent in which the three men were, and Albans did not give any evidence in support of the complainant’s allegations.  Bearing in mind the size of a three‑man tent and the activity that was alleged and at that stage the history, accepting Mr Albans’ participation in the earlier caravan incidents, counts 7 and 8, the jury would have been entitled to assume that Mr Albans should have been able to give corroborative evidence, and is unlikely to have slept through it.

So that there was a significant difference in the cases.  They did not have – firstly, the person who is said to have been present was only ever called in counts 7 and 8.  That person did give general confirmation of the homosexual activity and that, as a general proposition when read in light of Lord Reid’s comment in Kilbourne, was a matter which affected the prospects of accepting what the complainant had said, and in that sense it was support; the question of support being on a continuum, I suppose, from one which has little weight to support which is significant.  The Crown says here perhaps that the support in relation to 7 was stronger perhaps than it was in relation to 8.  Nevertheless, that was an important basis upon which the jury, following the instructions on which they are given, that is that you look at each of these counts separately, you assess the evidence against the accused in each count and then you determine your verdict in relation to that count.

So it was not a case of them, for those other counts, having ruled necessarily adversely against the complainant.  They did not have to say, “We don’t believe him”.  All they had to conclude was, “Well, what he said is probably true but given the instructions we’ve been given about the standard, the absence of these people leads us to the position where we don’t feel that we can be satisfied beyond reasonable doubt.”  The Crown says if they arrive at that, which they were entitled to, when they come then to assess the evidence of that victim – complainant – in counts 7 and 8, they do not have the same credit difficulties with accepting his evidence as they might have in another case where there is no difference in the evidence, there is no basis for – perhaps in the example in Jones where, in essence, there was nothing really that one could point to that made it reasonable for the jury to have distinguished in the way in which they did.  Even in Jones there were a number of other factors which contributed to the Court’s ultimate finding that as it then was, that it was unsafe and unsatisfactory, or unreasonable and not supported by the evidence.

One of the other points is that so far as the first three counts were concerned, the accused had given evidence and had put to the complainant that he had not met the complainant until late 1996, which was after the dates alleged for the first three counts, and only included a very small portion of the dates in counts 4 to 6.  The dates in 4 to 6 ended, I think, in December 1996 which was when in fact the complainant would have turned 15.  So if the jury had an issue about, or accepted the accused in terms of when it was that he had met the complainant, that was another factor given also when added to the absence of the witnesses who were said to have been present; another reason for them to have reached the verdict, which was different for counts 1 through to 6.

So far as Mr Albans is concerned, he was only 12 years of age at the time the incidents in 7 to 8.  The jury may well have been satisfied that he was mistaken when he gave evidence as to the fellatio, we will leave it at that.  That may be especially so given that the complainant’s allegation was that both he the complainant and Mr Albans had committed fellatio upon the accused.  That positive action may have been something that the 12‑year‑old boy had repressed or certainly did not want to come forward and speak about in terms of involving himself.

The material from the complainant on counts 7 and 8 was very clear in the sense that he described the actions.  He described then the subsequent masturbation leading to ejaculation and the cleaning up from the stomach.  So that his recollection was clearer.  He was also significantly older when he had given evidence – when he was giving evidence obviously about counts 1 to 3.  He was giving evidence of incidents which had occurred at least 3 years earlier than the other ones, and at a time when he would have been aged probably, I think 12, 13 himself – maybe 13 and 14.  The Crown says when you look at those and you give to the jury the benefit which they had of actually seeing the accused, whom they rejected, that of itself is something that they would have been entitled to use.  In rejecting him on counts 7 and 8, they then had Albans as a general support, a rejection of the accused.  The Crown says they were then entitled to accept it, even though they did not do so on counts where he was not supported in any way at all.

GUMMOW J:   What do you say about 3.8 on page 135 of the application book?  The essential complaint is that ‑ ‑ ‑

MR ELLIS:   That Jones was not applied.

GUMMOW J:   That it is light on in terms of analysis

MR ELLIS:   Your Honour, if one has a look at the judgment of the Court of Criminal Appeal, his Honour, at appeal book page 118, in paragraph 31 his Honour succinctly put the defence proposition, and in the last sentence of that paragraph, line 17:

It does raise a query requiring the careful examination of the evidence of the complainant ‑ ‑ ‑

GUMMOW J:   I know, that was the promise.  The question is was it fulfilled?

MR ELLIS:   Your Honour, thereafter his Honour does go through and his Honour looks at those areas where there was in fact some consistency.  He highlighted that in paragraph 33.  He highlighted the issue of the youthfulness of MA, and he ‑ ‑ ‑

McHUGH J:   Look at paragraph 36.  His Honour says:

There is considerable force in the appellant’s submissions as to the weakness of the Crown case because of the inconsistencies –

et cetera, “lack of complaint” and he just gives the conclusion of his statement:

However, I am of the opinion that –

it was reasonably open.

MR ELLIS:   I acknowledge that, your Honour, but if one looks at the earlier paragraphs, he pointed out that he was aware of the differences between the complainant and the young lad.  He pointed out that the jury may not have regarded that as a matter of significance, the essence being the question of the touching.  In paragraph 35, he again pointed out the fact that:

The jury did not accept the appellant’s evidence –

As to count 8, the evidence still supported, as a general matter of support, that in fact a homosexual incident had occurred.  The fact also, I would have thought, that if count 7 has a specific corroboration or specific support in terms of the allegation, that is also a factor which could have been taken into account in relation to count 8.  It was not as if the young lad had said things which were entirely inconsistent in terms of their specifics.  At least in count 7 he was consistent, reasonably consistent with the allegations made.  His Honour, whilst reaching that conclusion at 37, did still – when one looks over the page – goes on to indicate that:

The judge gave the jury ample warnings.

Clearly, by their verdict on count 7, that they were satisfied that there was a sexual incident which had taken place.  He said that whilst it was not as strong for count 8, nevertheless “it was reasonably open to the jury to be satisfied” in relation to that count.

McHUGH J:   I know, but there is a lack of analysis as to why it was reasonably open.  There is no reference to M.  This was not even an ex‑temp judgment, was it?  It was a reserve judgment.

MR ELLIS:   It was reserved as I understand it, yes, your Honour.

McHUGH J:   One would have thought that there would have been a more detailed analysis as to why it was reasonably open rather than a conclusionary statement, and he kept the expression “reasonably open” in a context which may well mean that he was applying a “sufficiency of evidence” test.  It would be different if he had used the expression and immediately gave a reference to M or Jones on that point.

MR ELLIS:   I understand what your Honour is saying, and if that is accepted for the moment, the Crown would say though that there is no real prospect of success if this Court applies, as it undoubtedly will, the appropriate test in Jones or whatever test this Court might get from M and Jones, that if that test is properly tried, that if the evidence is properly analysed, that factors to which I drew attention at the beginning of my submissions are strong factors which show that there was a basis for the jury returning different verdicts, that regard has to be had for the jury’s benefit and that this Court – it went through the proper procedure.  Indeed, assuming the CCA did not ‑ had the Court of Criminal Appeal gone through the proper procedure, then the result would still be the same.  The Crown says, therefore, that there is no reasonable prospect, there is no principle at issue ‑ ‑ ‑

McHUGH J:   I think there may be a principle at issue, and that is to the extent to which the judges in the Court of Criminal Appeal are taking into account acquittals on other counts in looking at the unsatisfactory or otherwise nature of the verdict.  There is in these cases what I call the “visitorial jurisdiction”.  Every now and again it is important that this Court take on a case to point out that principles have to be applied and it is not sufficient just simply to state a conclusory argument.  Reasons ought to be given.  People’s liberties are involved here, and although I appreciate how busy the Court of Criminal Appeal is, this is a reserved judgment.  At the moment I am not persuaded that the judge has applied the proper tests.  Perhaps he did, but it is so compressed it is very difficult.

MR ELLIS:   Perhaps the Crown’s submissions is, acknowledging what your Honour has said, that this is not a good vehicle to do what your Honour has indicated, may be necessary to be done, and that is ‑ ‑ ‑

McHUGH J:   Jones itself, from some of the cases I read last week, seems to be the subject of some division as to what was actually decided.

MR ELLIS:   Certainly, the most recent decision, Markuleski I think it is called, has brought together – I think five Judges sat and four I think were in the majority.  It clearly was an attempt by the Court of Criminal Appeal to deal with I think a decision in a case of RAT which applied Jones in a certain way, and other decision which applied Jones in a different way.  The Crown would say that that most recent decision by the Court of Criminal Appeal in fact accurately applies Jones in the sense that Jones is authority for the proposition that cases involving inconsistent verdicts firstly require a close examination of the evidence to endeavour to ascertain whether there is a basis for differing verdicts.  Jones is also authority for the proposition that if there is no basis for differing verdicts, then the loss of credit that the complainant would suffer as a result of an acquittal on one count is a significant factor on those counts in which they ‑ ‑ ‑

McHUGH J:   Yes.  The reasoning in Jones, if I remember rightly, was hampered to some extent because we did not give special leave to appeal on one point in it.

MR ELLIS:   On the Longman issue, your Honour.

McHUGH J:   On the Longman issue, yes.

MR ELLIS:   Although that still was part of the Court’s decision I think, especially of the Chief Justice’s.

McHUGH J:   That is part of the argument, is it not, as to whether it was part of the ‑ ‑ ‑

MR ELLIS:   Certainly the Chief Justice put that as one of the strong planks, that the witness, Miss Darvall, I think her name was, by reason of the effluxion of time, was only able to say, “Look, I never remember any occasion when he did not take me home, but I’d have to say now that it is possible I caught a train”, and she only said that because of time.  It was a reasonable concession, knowing as we all do, the problems that one can have with memory.  That was a significant difficulty in that case because had she been able to positively say that, it was a complete alibi which would have inevitably led to a conviction.  So that even in Jones, it was not just this issue of acquittal on one count leading to a complete loss of credit automatically leading to a miscarriage.  It was certainly that there was a loss of credit, but when one took it with the problems associated with the delay with the failure to warn adequately on the Longman lines, and also with the fact that there was no corroboration in relation to any count and no complaint, I think were the other factors, that that led this Court to the decision it made in Jones.

Here the Crown says it is a case where there is corroboration on these two counts.  There is no corroboration but it is worse than that on the other counts.  As unusual as it is in sexual assault cases, where normally it is behind closed doors, in each of these allegations the complainant is saying that other people were present.

McHUGH J:   I think your time is up, Mr Ellis.

MR ELLIS:   Thank you, your Honour.

McHUGH J:   There will be a grant of special leave in this matter. 

Mr Byrne, I think perhaps you should look at your draft notice of appeal, having regard to some of the matters that we have mentioned here today.

GUMMOW J:   It seems to have been drafted before you came into the case.

MR BYRNE:   That may be right, I cannot remember actually.

GUMMOW J:   What is your client’s custodial position?

MR BYRNE:   He is currently on bail.  I am sorry, he was on bail during his appeal to the Court of Criminal Appeal, that is where my error emerges from, and he was returned to custody as a result of the decision of the Court of Criminal Appeal in March.  He has remained in custody since that judgment was given in March.  As my learned friend reminds me, his sentence expires approximately at the end of this year.

McHUGH J:   Thank you, Mr Byrne.  There will be a grant of special leave in this matter.

AT 1.06 PM THE MATTER WAS CONCLUDED