O'Brien v The Queen

[1994] HCATrans 61

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S180 of 1993

B e t w e e n -

WILLIAM FRANCIS O’BRIEN

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

BRENNAN J
DAWSON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 9.30 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:  May it please Your Honour, I appear with my learned friend, MR A.J. BLACK for the applicant.  (instructed by Diamond Peisah & Co)

MR P.C. BANNON, QC:  If the Court pleases, I appear with my learned friend, MR J.P. BOOTH, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR TOOMEY:   Your Honours, before I begin, can I apologise for the lateness of our submissions.  I say just two things: I was on holiday when we were notified that the matter was in on 13 September and when I came back, my junior went on holiday and I very much regret that it just got out of hand.  I do apologise, Your Honours.  I know how it increases your workload when they come in late and I am truly sorry.

BRENNAN J:   They have been read.

MR TOOMEY:   Your Honours, can I just say something about the context in which we mount this application.  This was a case of incest where the first act complained of occurred 16 years before complaint was made, that is when the complainant was the age of about eight, and the last act was committed about nine years before complaint, that is when the complainant was 14.  The applicant at all times denied any improper dealing with his daughter at all.  Accordingly, the credit of the complainant was central to the case - and, I might say, a case advanced on oath; not by an unsworn statement.  Since the applicant’s case was that these events had not occurred, nor had anything like these events occurred, then the central issue in the trial was whether the complainant was to be believed or was not to be believed.

There was, it is submitted, unquestionably prejudice of a high degree caused to the applicant by the lateness of the complaint.  Accordingly, the reasons for the lateness of the complaint were of considerable importance and the fact of the prejudice alone, in accordance with what this Court said in Longman’s case, 168 CLR, had to be considered.  His Honour set out as the facts in the case that which was deposed to by the complainant in her evidence in‑chief.  There had been a committal and a first trial which aborted because some inadmissible material was adduced, and that being a jury trial, the learned trial judge discharged the jury.

Can I take Your Honours to Longman and the passages on which we rely are to be found at 168 CLR 91 by Your Honours Justice Brennan and Justice Dawson with Justice Toohey where Your Honours said at line 5:

there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer.  That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (N.S.W.) and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.  The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence.  That was not sufficient.

BRENNAN J:   Mr Toomey, if special leave were granted, what would the Court do other than to reiterate that passage?

MR TOOMEY:   Your Honour, the Court would modify it to deal with the circumstance of a judge sitting alone, having regard to the requirement of section 33(3) of the Criminal Procedure Act New South Wales, that a judge take account of any warnings which are required by law to be given to a jury.

BRENNAN J:   There is nothing requiring the intervention of this Court to say that, is there?

MR TOOMEY:   Your Honour, can I say this that the question is whether it is necessary that the judge state the warning or that it is clear, we say, from the findings that the warning has been taken into account.  There are obviously questions of degree in these cases.

BRENNAN J:   But you are applying for special leave, understanding that this Court is not a Court of general appeal.

MR TOOMEY:   Of course, Your Honour.

BRENNAN J:   If the New South Wales section requires, as you say, that the judge should give himself the same directions as he would give a jury, here is an enunciation of the principle of what he should do, what more is there to be done?

MR TOOMEY:   Your Honour, it may be that indeed in respect of a judge it must be modified.

BRENNAN J:   In what way?

MR TOOMEY:   So as to make it plain that the judge must make clear that he has taken it into account.  See, we say in this case that there is nothing which indicates that the learned trial judge took the Longman warning into account, although the case was of course cited to him.

McHUGH J:   That means your real ground is a very different ground, is it not, that is the judge has failed to give proper reasons.

MR TOOMEY:   That is one of our grounds, Your Honour.

DAWSON J:   That is a difficulty, is it not, with judge alone trials because you really could not expect a judge to deliver a full-blown charge to himself, could you?

MR TOOMEY:   No, but - - -

DAWSON J:   And one really has to assume that the judge knew the law.  Or does one?  I can ask that as a question.

MR TOOMEY:   Your Honour, with great respect we would say that that is not an assumption an appellate court ought make.

McHUGH J:   Why not?  The whole hypothesis of these rules about warnings is that the collective experience of the judiciary is greater than the experience of the juries and therefore the warning is required.

MR TOOMEY:   But, if I can just deal with what Your Honour Justice Dawson said to me, in respect of corroboration in this case, although His Honour did not give himself the warning in terms, it is plain on the face of the judgment that he was fully aware of the requirement, this being a case which fell under the common law rule, that he consider the danger of convicting without corroboration.  But we say that what was laid down by this Court in Longman’s case is equally a common law rule of equal force. It was a warning required by law to be given to himself but it is nowhere apparent on the face of the judgment that he took that into account. It is tied up, indeed, with the question of the giving of reasons and, indeed, one of the other grounds upon which we rely - and this is a discrete ground - is that in the Court of Criminal Appeal Mr Justice Wood, who I might say was in the minority, and the majority did not deal with this, but His Honour said that section 33(2) requires findings of fact. I am sorry, I should read Your Honours what he said because it is important. It is at page 93 of the application book, Your Honours. The section is set out at page 92 line 17 and subsection (1) assimilates any finding of a judge to the finding of a jury. Subsection (2):

A judgment of a judge in any such case must include the principles of law applied by the judge and the findings of fact on which the judge relied

(3)  If any Act or law requires a warning to be given to a jury in any such case, the judge is to take the warning into account in dealing with the matter.

At the top of page 93 Justice Wood said:

It needs to be observed that s 33(2) requires a statement of the findings of fact on which the judge relied. It does not require a statement of any other findings, or necessarily the process of reasoning to those findings on which reliance was placed. Further, s 33(3) does not require express mention in the reasons for judgment of any relevant warning. What is required is that such warning be taken into account. Silence does not mean that a warning has been overlooked. As a matter of practice, however, it would normally be desirable for a judge to state whether he has, or has not, taken into account any warning which it might be expected would be considered by a trial Judge for possible inclusion in a summing up to a jury.

I ought say that that passage from His Honour’s judgment has been adopted and applied in a case called Reg v Visser which was decided by the Court of Criminal Appeal on 29 September, two weeks ago. So it may be taken that it is now being taken to be the law of New South Wales. In our respectful submission that is an inadequate statement of what is required by section 33.

This is a part of a statute dealing with an alternative to the time honoured constitutional right of trial by jury and it is substituting for a trial by judge, not however merely as a judge sitting as a jury, as a judge sitting as a judge.  And a judge sitting as a judge, not in a case where questions of property and money are being dealt with on the balance of probabilities, but where questions relating to the liberty of the subject are being dealt with beyond reasonable doubt.  And it is our respectful submission that that statement by Justice Wood gives an effect to the statute that we say it does not bear.  We say it is facultative, not restrictive.  It says, in effect, in subsection (2) that a judge “must include the principles of law” and must include “the findings of fact”.  It does not say that he need not give his reasons for the findings of fact.

Similarly, when subsection (3) says that the judge is to take any warning required by statute or the general law into account, it says he must take it into account.  It does not say but he need not say that he has done so.  That is the reading which has been given to the statute by the New South Wales Court of Criminal Appeal.

The majority in the court, Mr Justice Mahoney and Mr Justice Meagher, Mr Justice Mahoney giving the judgment and Mr Justice Meagher concurring, dealt with the question perhaps elliptically at page 68.  This is dealing with findings on credit.  If Your Honours look at page 68 line 15:

In considering the question before this Court, and in deciding whether it is unsafe and unsatisfactory to be satisfied beyond reasonable doubt that the daughter was honest and accurate in her allegations, it is important that the judge found her to be such.  He had the opportunity to see the witnesses giving evidence.  This is an advantage which this Court does not have and in a civil case these principles restrict, within the established principles, the ability of an appellate court to come to a different conclusion:

Then His Honour referred to Abalos, Chambers v Jobling and the Westpac case.  He went on to say:

It is not necessary to determine to precisely what extent this advantage of the trial judge operates in criminal cases.  This Court must conduct its own review of the evidence and reach its own conclusion. 

His Honour then went on to say that which is undoubted, that:

the advantage which the trial judge has is a matter to be taken into account in deciding the extent to which his decision.....is unsafe and unsatisfactory.

At page 84, the last page of his judgment, Mr Justice Mahoney said this at line 4:

Views have differed as to the extent to which a judge must record each matter in contest, discuss the evidence in relation to it, and detail his reasoning to his conclusion upon it.  I do not think that it is necessary that he pursue every point in this way.  I have suggested elsewhere that, in general, what a judgment should do is to be measured by the purpose which it is meant to achieve:

And he cites Soulemezis v Dudley (Holdings), which my learned friend has put on his list, and Public Service Board of New South Wales v Osmond, which is the case where this Court considered the extent to which reasons must be given.  But, those were civil cases and the difficulty is thrown up, we would say ‑ ‑ ‑

BRENNAN J:   There is no doubt that a judge has to give reasons for his decisions.

MR TOOMEY:   Your Honour, in the narrow sense of having to give the facts he finds and the decision which he founds on those, yes.  The question, however, is twofold: one, to what extent in a criminal trial must he give reasons for his findings of fact, and where you are dealing with a judge as opposed to a jury where the appellate court, in effect, looks at the evidence at large, in a case on appeal from a judge alone, what does the appellate court do?  Does it do the same as it does with a jury?  Does it look at the evidence at large, not knowing what the jury accepted or not knowing the reasons why it accepted it.  It may be able to deduce what the jury accepted but not knowing its reasons.  Does it put itself, in respect of a judge, in the same position as it is in that case.

Can I hand up to Your Honours copies of a South Australian decision in which there was some - it is unreported and I am afraid it is late found.  It is a case of R v Trevilyan.  We have reproduced it.  It was an unsafe and unsatisfactory appeal and we have reproduced only that part which relates to that ground.  If Your Honours go to - I am afraid the numbers have been cut out - - -

BRENNAN J:   It is page 20 at the top, is it?

MR TOOMEY:   Not on my copy, I regret, Your Honour.  May I ask Your Honour does the page which contains the subheading “Dangerous and unsafe verdict” have page 20 at the top?

BRENNAN J:   No, I do not think it does.

MR TOOMEY:   Your Honours, the third page of the photocopy deals with what was said by the learned Chief Justice of South Australia in The Queen v Murray and Mason on the question of the test to be applied by the court.  It refers to Morris - - -

BRENNAN J:   Your time has expired, Mr Toomey.

MR TOOMEY:   Can I have a moment more, Your Honour, to expound this point?

BRENNAN J:   Just to deal with this, and that is the end.

MR TOOMEY:   Thank you, Your Honour.  I am sorry, Your Honour is perfectly right.  It is page 20 on the top, about point 5:

In this State where trials by Judge alone have recently been introduced, the only case where this court has considered the findings of a Judge sitting alone to determine the criminal liability of an accused person is The Queen v. Urquhart.....In that case the Court of Criminal Appeal allowed the appeal on the basis that the evidence of the principal witness did not establish a secure foundation for the conviction of any of the charges.  In my judgment the proper approach in considering the question as to whether the verdict is dangerous or unsafe or whether it is unreasonable and cannot be supported having regard to the evidence.....and where the Judge has formed an opinion on the question of the credibility of the witnesses who have been seen and heard is that set out in the reasons given by the High Court in Uranerz v Hale -

and they cite from the judgment of Justice Gibbs -

His Honour said that an appeal court is:-

“...not entitled to reverse the finding of the Tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts, or was so improbable that no reasonable person could accept it, or that the judgment of the Tribunal disclosed that its conclusion was affected by some error of law or fact.”

Now, Your Honours, with respect, that was a civil case and that is the civil test.

BRENNAN J:   What is the point you wish to make?

MR TOOMEY:   The point we wish to make, Your Honour, is that that cannot be the test in a criminal case where an appellate court has a view, an overall independent view of the evidence, and that in South Australia that view which has been expressed is a wrong view and that that would be a ground on which Your Honours might consider special leave.  May it please Your Honours.

BRENNAN J:   We need not trouble you, Mr Bannon.

The application in this case either relies on well-established principles of the criminal law or seeks orders described as a modification of those principles for application by judges who are sitting without a jury on a criminal trial. It is unnecessary to grant special leave to appeal to restate established principles and the modification sought in reliance on section 33 of the Criminal Procedure Act 1986 (NSW)does not raise a question of sufficient public importance to warrant a grant of special leave. The correctness of the application of principles relating to a warning to be heeded in a case of long delay is a matter specific to the instant case.

For these reasons special leave should be refused.

AT 9.54 AM THE MATTER WAS ADJOURNED SINE DIE