Norman v The Queen

[2013] HCATrans 142

[2013] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S333 of 2012

B e t w e e n -

CHRISTOPHER NORMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 12.03 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MS K.J. EDWARDS.  (instructed by Legal Aid NSW)

MR L.A. BABB, SC:   I appear for the respondent, your Honour.  (instructed by Director for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application has a number of grounds.  We rely on them individually but also in combination.  The point I am making there is that the fresh evidence has significance in itself in showing a miscarriage of justice, but also feeds into the application of the proviso and the question of the relevance of the earlier gang rape of the complainant.

Can I begin with the proviso?  Your Honours would appreciate there was evidence of violent assaults by the applicant on the complainant that were admitted.  Obviously they would have been prejudicial to the applicant.  It showed that he was the sort of person who might rape his wife and the judge left them to the jury on a basis which could have allowed that reasoning by the jury and, indeed, we would say, may well have affected the verdicts in that they may have led the jury to remove any doubts that they otherwise held.  Now, the Court of Criminal Appeal accepted that the evidence ‑ ‑ ‑

FRENCH CJ:   These were two physical assaults.  Is that right?

MR ODGERS:   That is right.  At page 73 of the application book, his Honour Justice Macfarlan at paragraph 22 referred to evidence that he had “slapped” her and “kicked her after she fell to the ground”, and also a separate incident where he had grabbed her by the hair, “dragged her into a bedroom and pushed his fingers into her throat” and I think there was also evidence that he had choked her to the point of unconsciousness.  Our point is that they tended to show him in a rather bad light and, of course more importantly, would have suggested that he was a kind of person who might well do the kinds of things that the complainant alleged he did in respect of the offences charged. 

Now, the Court of Criminal Appeal accepted that that evidence was wrongly admitted and applied the proviso.  We challenge the basis upon which the proviso was applied.  At page 78 of the application book, your Honours will see that in paragraph 38 Justice Macfarlan asked the question – apart from the Weiss question which we do not challenge here, he asked the separate question whether or not there was a significant possibility that the jury would have acquitted if the evidence had not been admitted. 

Now, we say that is the wrong question for two reasons.  Firstly, the language of “significant possibility” is quite inappropriate for the proviso.  That language has been used in the context of fresh evidence, but usually in a sense of being almost interchangeable with a test of whether or not a jury was likely to acquit.  Your Honours will see at page 82 of the application book in respect of the fresh evidence ground that there is that test – in the middle of the page a reference to:

likely to have caused the jury to have entertained a reasonable doubt . . . or, if there is a practical difference ‑ ‑ ‑

FRENCH CJ:   Is it not all subsumed by the next sentence in paragraph 38?

MR ODGERS:   With respect, no, your Honour.  This goes to an issue which I am sure your Honours are sick to death of hearing the implications of Weiss, but it is appropriate I say something about that now.  In Weiss, the High Court pointed out that it is wrong for a Court of Criminal Appeal to engage in some kind of predictive exercise to try to predict what that jury or even a reasonable jury might have done if the error had not occurred.  The Court then proceeded to say that one test that has to be satisfied for the proviso is whether the appeal court itself is satisfied of guilt beyond reasonable doubt.

It has been made abundantly clear in several judgments since then that that is a necessary test but not sufficient and that there are other hurdles that have to be jumped.  That point has been made repeatedly.  In Weiss it was never spelt out clearly what those other tests that had to be jumped were, and there has been language that has been used from time to time ‑ ‑ ‑

KIEFEL J:   Is it other tests that you are suggesting - other tests additional to the central requirement of the statutory proviso?

MR ODGERS:   No, no, the requirement that there be no substantial miscarriage of justice has a number of applications so that one requirement to be satisfied of that is that the Court of Criminal Appeal is satisfied of guilt beyond reasonable doubt.  Another requirement that has been repeated many, many times is that the court has to be satisfied that a verdict of guilty was inevitable.  That is language ‑ ‑ ‑

KIEFEL J:   But these are not cumulative.  What I am suggesting is these are not cumulative.  In Weiss it was really said that in some cases it will not be appropriate to apply the proviso, but in this case, having applied the proviso, is not what the Chief Justice put to you correct?  Having applied the proviso, it does not really matter what was said in the first sentence of paragraph 38.  The question is whether the proviso is to be applied or not.  If it is, the court undertakes the assessment of the whole of the evidence and comes to its view.  That is what was found.

MR ODGERS:   But, your Honours, I thought it was uncontroversial that that is not the end of the exercise.  For example, there may be – it has been accepted that if there is a fundamental flaw of some kind or a breach of procedural fairness, for example.

KIEFEL J:   That means the proviso does not apply.

MR ODGERS:   Quite.  So a mere conclusion by the court that it formed a view that there is no reasonable doubt as to guilt is not the end of the inquiry.  There are other questions that may need to be answered.  One of them is whether there has been a breach of procedural fairness.  But there is another question which we did not resolve and that is was a conviction inevitable?  We certainly did not say that that is not an appropriate question to be asked and answered in respect of the application of the proviso.  Indeed, this Court in Baini and in respect of the similar Victorian provision said that the ultimate question is whether or not it was open to acquit, which is another way of saying was a verdict of guilty inevitable.

Now, if that is an appropriate question for the exercise of the proviso in respect of the Victorian provision which requires that there be a substantial miscarriage of justice, it is very difficult to understand how it would also not be an appropriate question to be asked and answered in respect of the proviso in the common form appeal provisions, that is, has the prosecution persuaded the court that it was not open to acquit the applicant or the appellant on the evidence that was properly admitted and, indeed, we would say, in respect of fresh evidence, in the light of the fresh evidence?  So I do really strongly, your Honours, take issue with any suggestion that if you ask the Weiss question and answer it that that is the end of the application ‑ ‑ ‑

FRENCH CJ:   It does not matter much how strongly you take the issue; that is your proposition.

MR ODGERS:   There is my proposition, yes. 

FRENCH CJ:   So the gravamen of this proposition is to be found, is it, at paragraph 26 of your submissions at page 99?

MR ODGERS:   Yes, your Honour.

FRENCH CJ:   That is because of the prejudicial character of the evidence.

MR ODGERS:   Yes, your Honour, that where you have prejudicial evidence that comes in, one of the questions the court should ask in applying the proviso is did he thereby lose an opportunity to be acquitted, was it open to acquit him on the evidence that was properly before the jury, or putting it in the reverse way, was it inevitable that he would be convicted anyway?  That is, we say, the proper approach.  It is the approach which was adopted by this Court in Baini in respect of the Victorian legislation.  It, we say, is the correct approach under the common form proviso. 

We say this was a case where it was plainly open to acquit him.  It was a “word against word” case.  It turned on credibility assessments.  Bearing in mind the natural limitations on the record, it is impossible to see how an appeal court could be satisfied that it would not be open to give him the benefit of the doubt of his sworn denials of guilt.  Now, it is true that the Court of Criminal Appeal relied on the alleged admissions that he had made.  Now, of course, he denied ever admitting that he had raped his wife.  The witnesses conceded that they could not be sure of precisely what he had said.  The court itself did not see the witnesses testify, so there is an issue about the natural limitations of the record.

There was significant ambiguity in the alleged admissions.  For example, it was accepted from one of the witnesses that forcing somebody to have sex was understood to include badgering them to have sex.  We have also made the point that the admissions did not relate to any individual counts, and I would also make the point that Justice Macfarlan can be criticised at page 80 of the application book, at the top of page 80, in paragraph 44 where he focused on questions of the “veracity” of the witnesses who gave evidence of the admissions.  That was, with respect, not really the critical issue here.  The issue was how reliable was the evidence ‑ ‑ ‑

FRENCH CJ:   This is all feeding into the overwhelming ground case proposition, is it?

MR ODGERS:   Yes, your Honour.  We are challenging the overwhelming proposition, but we are saying – that that is not so much a question of general importance, but we are saying the question of general importance is if his Honour thought that – the question for overwhelming is was there a significant possibility that the jury would have acquitted, that is not the right approach because that is really a predictive analysis.  It is looking to see might this jury or a reasonable jury have done something different and was there a real likelihood of it?  That is, with respect, not the proper approach to the proviso, particularly in a “word against word” case, as this was.

Lastly, in respect of the proviso – I will move on from the proviso in a moment – his Honour did not refer to the fresh evidence because we would say that that feeds in to the application of the proviso in this case.  So you should ask, would it be open to acquit in the light of not only the absence of these assaults but also in the light of – and a “word against word” case, but in a case where there is evidence that he suffered from a psychiatric condition which may well have influenced his perception of what was happening at the time. 

So that is all I can say at this stage about the proviso.  Turning to the question of the relevance of the gang rape evidence, it provided the reason for the complainant’s reluctance to engage in anal intercourse and that reason was known to the applicant.  It was relevant because ‑ ‑ ‑

KIEFEL J:   What is the relevance of that?

MR ODGERS:   I am just about to say, your Honour.  It went to the critical question of his state of mind at the time of these alleged sexual assaults.  Was he someone who was persistently requesting sex in the face of reluctance for reasons other than his own selfish gratification?  The jury may well have concluded he knew that she did not want to have anal sex.  He kept on pushing her.  That was selfish; he was doing it for selfish gratification.  The point about the gang rape evidence is that it provided an explanation and it was spelt out most clearly in the report of Dr Pickering, that it could explain why he was doing what he was doing, the fact that every time he did it he asked her ‑ ‑ ‑

KIEFEL J:   I just have difficulty understanding how this aids the defence, how this evidence is said to aid the defence.

MR ODGERS:   Perhaps I can take you to what Dr Pickering said, your Honour.  Page 106 of the application book, line 30:

Mr Norman’s account of what happened after that is that he tried a variety of things to give her “normal” sexual experiences that were different to the experience of having been sexually assaulted, to provide her with good experiences of sex that would help overcome her sexual anxieties.

Similarly at 109, your Honours will see at line 33:

This in combination with his own difficulty understanding the nature of social relationships . . . led to him trying various ploys to overcome his wife’s sexual difficulty.  Most people confronted with such a situation would have sought help externally or left the marriage and would not have attempted to play the role of “therapist” in the context of sexual difficulties within a marriage as Mr Norman did.

KIEFEL J:   I am sorry, I still do not understand from this what you say about the relevance.

MR ODGERS:   Well, I will put it in my words as simply as I can.  He knew that the reason she was reluctant was because of a traumatic, violent incident in her youth where she had been brutalised ‑ ‑ ‑

KIEFEL J:   So?

MR ODGERS:   He was encouraging her to engage in consensual, non‑traumatic, non‑violent sexual intercourse in this way to help her overcome the psychological problems that existed.  That was the logic that the evidence was relevant, how the evidence was relevant.

FRENCH CJ:   That just does not compute, Mr Odgers.

MR ODGERS:   All right, if I do not work on that one, your Honour, I will move on to the next one.

KIEFEL J:   I can understand why it would aid the prosecution, but I really do not understand how it aids the defence.

MR ODGERS:   All right, well, I put it as well as I can, your Honour.  Finally, the fresh evidence, that was from Dr Pickering.  It was undoubtedly fresh.  He only made the diagnosis of Asperger’s Syndrome after the trial.  Your Honours will see I have taken you to some of it.

FRENCH CJ:   Perhaps the answer that is put against you is that the case was run on the basis of unequivocal refusals of the particular form of sex that was being proposed.  It was not a case ‑ ‑ ‑

MR ODGERS:   Yes, I understand that.

FRENCH CJ:   You know the case against you.

MR ODGERS:   Our response is that that is just not accurate.  The defence case was it was accepted that there were occasions when she said “no” or “stop”, that was accepted by the defence.  What the defence case was was that ‑ ‑ ‑

FRENCH CJ:   What is put against you is what the prosecution case was.

MR ODGERS:   I understand that.

FRENCH CJ:   The prosecution case was one of unequivocal rejection.

MR ODGERS:   Yes, true, but that was not in fact the case accurately with respect to count 3.  We have summarised count 3, your Honours.  You will find that in the application book at page 95.  If you look at the top of page 95 in paragraph 7 - if I might just summarise it.  Essentially she says “stop”.  He says “Can we give it a try?” and “It won’t take long”.  Apparently she says nothing from that point on.

FRENCH CJ:   So this is where we get into the misread non‑verbal cues?

MR ODGERS:   Well, on her account, yes.  Even on her account – so accepting that the jury accepted every word of what she said, and we take issue with that, but even assuming that they did, this is body language.  This is silence when he asked her if we can “give it a try” and “it won’t take long”.  She says nothing.  She tries to relax.  That is body language, with respect, and so even on her version that issue arose.  But, of course, the jury were told they do not need to accept every word of the complainant’s account.  It would be surprising that a jury would accept every word of somebody’s memory of an event eight years in the past.

FRENCH CJ:   She says she said “stop”.

MR ODGERS:   She did, and the defence case was that yes, she said “stop”, she said “no”, but then he would interpret her body language as conveying consent, or she said it orally.  So that was a general response that he gave in his defence case and that was put to her in cross‑examination by his counsel, that she would indicate orally or by body language that she was consenting and, of course, once we get into that territory the relevance of the Asperger’s Syndrome becomes apparent and I do not think I need to go into that in any greater detail. 

Now, the question of general importance raised is that the test that was adopted at 82 of the application book, was it “likely” that the jury’s verdict would have been different or a “significant possibility” that it would have been different, we say that it should be the same test as what we have contended for in respect of the proviso, that is, in the light of this evidence, would it have been open to the jury to have acquitted or was it inevitable that nonetheless he would be convicted.  We say if you apply that test here there is only one answer you can give.

His Honour in holding that it was not a significant possibility of it affecting the jury, he did not consider the count separately, he did not consider the significance of the admissions as bearing on the individual

counts.  He assumed that the jury would have accepted the totality of the complainant’s account which, with respect, is an assumption you simply cannot make, indeed would be unreasonable. 

No jury is going to accept that she can remember accurately every word that is said or every movement of her body on an occasion eight years in the past.  A jury just is highly unlikely to accept that beyond reasonable doubt.  So they were making an assessment, a global assessment of the credibility of the complainant and the applicant, they could have been prejudiced by inadmissible evidence of brutality.  They are not aware of the fact he has Asperger’s Syndrome which would have significantly affected his perception of the circumstances and his perception of whether or not consent was being conveyed and, indeed, his Honour failed to even consider the relevance of the fresh evidence to the other grounds which I have put before your Honours.  I see the red light is on.

FRENCH CJ:   Thank you, Mr Odgers.  We will not need to trouble you, Mr Babb.

The applicant was convicted on 8 June 2011 of three counts of sexual intercourse with his ex‑wife without her consent and knowing that she was not consenting, contrary to s 61 of the Crimes Act 1900 (NSW). The offences were alleged to have occurred in 2002, 2004 and 2005. On his appeal against conviction, the applicant tendered psychiatric evidence to the effect that he suffered from Asperger’s Syndrome and may have misread the complainant’s non‑verbal cues and misinterpreted anything less than a clearly stated request for him to cease what he was doing during their sexual encounters.

The prosecution case relied upon the complainant’s evidence that on each occasion charged she had clearly indicated her lack of consent by unequivocal words.  If the jury accepted that evidence, as it evidently had, there was little or no room for misunderstanding or misinterpretation and the fresh evidence would have made no difference.  The conclusion so reached by the Court of Criminal Appeal was open to it.  The Court applied a correct approach.

The second ground of the application arose out of the finding by the Court of Criminal Appeal that while evidence of two physical assaults by the applicant upon the complainant were not relevant and should not have been admitted, the appeal should be dismissed because “no substantial miscarriage of justice had actually occurred” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). That judgment was made on the basis of what the Court described as a Crown case of “such overwhelming strength that there is no significant possibility that if the evidence . . . had not been admitted, the jury would have acquitted [the applicant].” As his Honour went on to say, I consider that “the evidence properly admitted at trial proved beyond reasonable doubt the appellant’s guilt of the offences upon which the jury returned its verdicts of guilty”. The Court applied the criterion required by the decisions of this Court in Weiss v The Queen (2005) 224 CLR 300 at 317 [44]; [2005] HCA 81 and Patel v The Queen (2012) 86 ALJR 954 at 974 [120]; [2012] HCA 29. The applicant essentially challenges the Court’s assessment of the evidence. No special leave question arises.

The same observation is true of the applicant’s hybrid ground that the Court of Criminal Appeal could not be satisfied that a verdict of guilty was inevitable or a verdict of acquittal not open if the inadmissible evidence had been excluded and the fresh evidence admitted.  No special leave point is otherwise disclosed on any of the grounds of the application.  Special leave will be refused.

AT 12.26 PM THE MATTER WAS CONCLUDED