Ohp v Tep

[2004] HCATrans 429

[2004] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2003

B e t w e e n -

OHP

Applicant

and

TEP

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 11.46 AM

Copyright in the High Court of Australia

MR P.G. GIUDICE:   I appear for the applicant, your Honours.  (instructed by the applicant)

MR S.A. WALKER:   May it please the Court, I appear for the first respondent.  (instructed by Legal Aid Western Australia).

GUMMOW J:   The Court holds a certificate from the Deputy Registrar that she has been informed by the solicitors for the second respondent that he does not wish to make any representations before the Court and will abide any order of the Court save as to costs.  Yes, Mr Giudice.

MR GIUDICE:   Your Honours, I was briefed in this matter a couple of days ago and I have looked at everything carefully and discussed the grounds with the applicant and although ‑ ‑ ‑

GUMMOW J:   Well, we understand he has a deep sense of grievance about what happened.  That may not be enough.

MR GIUDICE:   I was going to say that despite the papers not having the appearance of professionalism, they were prepared in person by the applicant, your Honour, by way of explanation.  The question of law here is as to the approach to be taken by an appeal court on an appeal against the decision of a court exercising child jurisdiction under the Family Law Act or equivalent where there is an allegation by the appellant that his counsel at the court below was incompetent.  That is the way I read the applicant’s concern. 

The second point is the approach that a court should take when considering the verdict of acquittal of a charge of sexual offence against a child who has resided with the parties during the marriage relationship.  The approach taken by the Full Court is that, first of all, a test was formulated in relation to the first question and it was this, is there a reasonable probability that in the absence of alleged incompetence by counsel the result was likely to be different. 

Now, I take no issue with the test, although there is very little authority on the question in relation to children, but the test seems to be a liberal one and one that cannot be argued against.  The court then applied this test, in my submission, with a predisposition that the husband was unlikely to have successfully obtained the residence of the children given the strength of the wife’s case and the weaknesses of his own.  The court pointed to the fact that awarding residence to the husband would have led to a separation of the siblings. 

It placed great weight, in my submission, on the court expert’s opinion, who was not cross-examined or at least not challenged at trial, and the husband’s failure to recognise the dysfunctional nature of the relationship with the step-daughter, the one who he is alleged to have abused, and the length of time that the wife was the sole caregiver.  In the light of that, that is, the strength of what was perceived of the wife’s case and the weakness of the husband’s, the court said that he would have to show that the wife lacked parenting capacity or that he was a better parent than her and that the welfare of the children, both physical and emotional, would be better served if they were in his care, your Honours. 

So having gone that far, the court then looked at each allegation of incompetence by counsel in isolation, in my submission, and determined on each occasion that that particular example would not have affected the result.  What I am saying is the question needs to be considered as to whether the court should have looked at the question in aggregate; in other words, to aggregate the alleged incidents, allegations of incompetence and consider the cumulative effect of all those instances of alleged incompetence.

GUMMOW J:   On the – it is a related point really of the conviction – what do you say about the Full Court’s treatment at page 70, paragraph 136 and 137?

MR GIUDICE:   Sorry, my delay is because the faxed copy of the papers that the applicant sent me is difficult to read.  Is that the ‑ ‑ ‑

GUMMOW J:   It is the judgment of the Full Court.

MR GIUDICE:   Is that the part where it says:

We would however, point out that the fact of his acquittal establishes no more –

GUMMOW J:   And the next paragraph:

Regardless of the truth or otherwise of [C’s] allegations against the husband, the fact of them having been made and persisted with by her throughout the trial would always have made it impossible . . . This was made particularly clear by the attitude that the girls expressed to the husband when spoken to –

et cetera.

MR GIUDICE:   Yes.  Well, firstly, in relation to the first contention, that is that the acquittal establishes no more than the prosecution was unable to prove the case beyond reasonable doubt, I would argue with that and submit that that is incorrect.

GUMMOW J:   Well, you may be right about that, but it is the next paragraphs that seem to me to be critical.

MR GIUDICE:   Yes.  As to the next paragraph, this is tied in with the allegation of incompetence.

GUMMOW J:   It is, yes.

MR GIUDICE:   The opportunity was not taken to cross-examine and examine in relation to an alleged concoction by the girl and the mother together in order to defeat the husband’s application.  You see, at the criminal trial, it was fought on the basis that the complainant made this up because she did not want the siblings to be split up.  The mother had told them that the siblings would be separated if he was to win.  The applicant’s argument is that that should have been pursued vigorously at the Family Law proceedings.  So to say that just because the allegation has been made, therefore, he had no chance, in my submission, is not really logical.  There could be another scenario and that is if the truth all came out and there was a reversal of the situation and reconciliation. 

The main consideration is the welfare of the children, of course, your Honours, that is the matter that is of paramount importance.  It is my submission that the correct test is whether on the evidence before the Court an order that a child reside with a particular parent would expose that child to unacceptable risk of sexual abuse.  As to the first contention relating to the significance of the acquittal, I refer to Justice Murphy in dissent in R v Darby (1982) 40 ALR 594 where his Honour cited previous decisions and said that:

an accused is to be taken as entirely innocent of any charge of which he was previously acquitted.

And he also cited Blackstone’s Commentaries on the Laws of England volume 4, page 361:

“If the jury therefore find the prisoner not guilty he is then forever quit and discharged of the accusation”.

Do your Honours want me to talk about that point any further?

GUMMOW J:   Well, you take your own course, Mr Giudice.

MR GIUDICE:   All right.  Well, if a jury says not guilty, then it could well mean that the Crown has not proved the case beyond reasonable doubt.  Jurors might say, “Look, we don’t know whether this occurred or not, but we are not satisfied that the charge has been proved”.  On the other hand, they might say that they find the accused not guilty.  After all, that is what they are asked to do, bring in a verdict of guilty or not guilty.  They do not bring in a verdict of not proven, as in Scotland, for example.  They are not asked to do that. 

So it is the contention of the applicant, your Honours, that if the alleged incompetence had not occurred, he would have been in a much different position and there would have been a reasonable possibility that the result was likely to be different.  The Full Court looked at each allegation of the incompetence of counsel, the failure to seek an adjournment on the trial given the late service of the expert report, which was crucial in this case.  The judge said that he placed weight on the report which was unchallenged.  At page 11 of the application book, paragraph 32, he said:

Mr de Rooster’s assessment of the parties was not seriously challenged during cross-examination.

So there is the failure to seek the adjournment and the failure to challenge the report; failure to attack the credibility of the wife and establishing his own parenting credentials; a failure to cross-examine the wife regarding when she first became aware of the alleged sexual abuse and, in particular, the fact that she claimed to have been aware of the allegations since 1998 but resumed cohabitation with him later – interestingly, the contention of the husband was that he, at first, made allegations of abuse by the wife on one of the children and it was in response to that that a notice was filed in the Family Court alleging the abuse by the husband – the failure to address the issue of perjury by the wife; the failure to attack the validity of the departmental file notes – apparently the file was at the court but was not examined by counsel – and the failure to enforce the subpoena against the father of the step-daughters.  It is the cumulative effect of all these instances of alleged incompetence which we say, your Honours, would have ‑ ‑ ‑

GUMMOW J:   Well, do you say that there could have been any curing of the finding of the primary judge as to the credibility of the husband?  That seems to have been formed on what the judge saw of this particular litigant.  It is at page 11, paragraph 34.

MR GIUDICE:   I say about that, that there is a probability that if cross‑examination had been successful in undoing what the court expert had said that his Honour may have looked upon the applicant in a different light and also that it must have been difficult for the applicant, given his

frustration with what he perceived to be counsel’s incompetence.  Perhaps that coloured his performance in the court, who knows. 

GUMMOW J:   Yes, is there anything else?

MR GIUDICE:   No, your Honour.

GUMMOW J:   Thank you.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The central issues then today appear to be, firstly, and I think primarily, the question of the alleged incompetence of trial counsel and, secondly, this issue of the treatment by the Full Court.

GUMMOW J:   Now, an extension of time is required.  Is that opposed?

MR WALKER:   It is not opposed.

GUMMOW J:   Very well, you have that extension Mr Giudice.

MR GIUDICE:   Thank you, your Honour.

GUMMOW J:   Yes.

MR WALKER:   And the second issue agitated before your Honours today, as I understand it, is that relating to the Full Court’s treatment of the fact of acquittal of the husband in District Court proceedings relating to alleged sexual abuse of a child.  I wonder, your Honours, if I may turn to that second issue first, it having been, I think, raised by your Honours quite directly a few moments ago with my learned friend. 

Certainly at page 70, as your Honours indicated a moment ago, at the top of page 70 within paragraph 135, the court on appeal made a statement as to the significance of the fact of that acquittal and, in my submission, there is simply nothing incorrect, with respect, about that statement.  It really consists of two components, I would submit.  Firstly, the truly non‑controversial statement that the fact of the acquittal establishes no more than the fact that the prosecution was unable to prove the case to the criminal standard, and then the second component of it is that the court went on to say:

Quite different considerations would apply in this jurisdiction –

that is, of course, the Family Law jurisdiction –

if that issue were to be tested.

Now, your Honours, it is clear enough that the applicant in his appeal before the Full Court raised this as a matter of significance and throughout his written material one finds a number of references by him to the proposition that some serious undermining of the judicial system is involved by the treatment by the court expert and certainly by the trial judge and the Full Court of this fact of acquittal.  So it was necessary, I submit, for the Full Court to make a statement about it.  The first part of it, as I have submitted, is really non-contentious and is utterly correct. 

Now, the factual scenario, of course, was that the child in relation to whom the allegation of sexual assault or indecent assault had been made was, by the time of the commencement of the trial, no longer a child in relation to whom orders were sought.  Your Honours might recall that ‑ ‑ ‑

GUMMOW J:   What was the age?

MR WALKER:   I will just find that.  I think in the vicinity of 12 or 14.  Your Honours, page 37, paragraph 9 in the Full Court:

The wife had two children of a previous relationship . . . [C], who is now 13 –

she is the child in question –

and [S], who is now 10.

So at the time of the Full Court appeal, 13.  That child, as your Honours will recall, together with her sister, neither of those girls being children of this husband, had nonetheless at the outset been the object of his applications for residence.  But at the commencement of the trial, he having fairly recently instructed his then solicitor, the position was clearly put to the trial judge that that aspect of the application was abandoned.  So at the time when his Honour the trial judge dealt with it, the child C, the one in relation to whom the allegation had been made previously and the husband had been acquitted, she is no longer directly involved in the proceedings and it was necessarily then the case that she would remain in the care and living with the wife in these proceedings. 

Now, their Honours in the last sentence in paragraph 135, page 70 made that further statement which, in my submission, is completely non‑problematic.  It is simply an observation that if the issue of the truth or otherwise of the allegations of indecent assault had been pursued in the Family Court, a different standard of proof would apply and different considerations would necessarily apply as well.  In my submission, there is no reasonable complaint that can be made about that. 

Paragraph 136 was then referred to by your Honours and, in my submission, with respect, on a plain reading of paragraph 136 their Honours in the Full Court, being, of course, judges very much within the arena of Family Court cases, are making the fairly obvious observation of fact, with respect, that the child C having made allegations against the husband – that after all is common ground, the fact that the allegations had been made – the mere fact of the making of the allegations by the child and, as their Honours observe in 136, that they had been persisted in apparently by her, those facts in themselves would have, as they fairly strongly put it “made it impossible to contemplate making a residence order” in relation to those girls. 

This, with respect, is really rather by-the-by at this stage because that aspect of the application of the husband has been abandoned anyway.  But, your Honour, a complaint, as I understand it, is made by my learned friend that there is a lack of logic in this particular observation within paragraph 136.  In my respectful submission, it is not a matter of logic, it is a matter of experience, that being the life of the law, and the experience of the judges indicate that it would be “impossible”, or that could equally be read as “highly unlikely”, that a residence order would be made in the face of the making of such allegations, whether true or false. 

Your Honour, the other central issue which I turn to now very briefly is the complaint centring around allegations of incompetence by counsel.  It is my submission that the Full Court when faced with this matter, and I say with no intended disrespect to the husband, that he, representing himself in the Full Court, clearly enough, as he did in his papers in this Court, failed, I suppose, to assemble things in a particularly coherent way.  So there was a scattergun approach throughout his papers, throughout no doubt his advocacy was, however, this central issue of complaint about competency.

Their Honours, in my respectful submission, in that context dealt with that particular complaint in a particularly comprehensive and ordered way.  They noted the substance of the complaints.  They observed that there are no binding decisions apparently of a Full Court of the Family Court as to the standards to be applied when an applicant comes along, or an appellant at that stage, alleging incompetence in relation to a child custody or child residence type case.  Their Honours made reference to criminal decisions of this Court and of other courts in this country.  Their Honours turned to decisions of the Canadian Supreme Court and of the Supreme Court or the Court of Appeal of Ontario and to the Supreme Court of the United States in examining and considering the appropriate principles to be applied. 

Your Honour, in my submission, in doing all that and in formulating the principles that they thought appropriate, they acted, with respect, very

fairly to the husband because, in effect, they largely equated the position of a party making such an allegation in a child residence case to that in a criminal case.  They distinguished it from a normal civil case, an adversarial case, where a party quite simply would largely be bound by the conduct of his counsel.  They noted, on the basis of the Canadian decisions referring to child protection cases, that a much less stringent approach was taken and by analogy they expressed the view that such an approach was appropriate to Family Law Act cases involving questions of children. 

Finally they, with respect, very appropriately noted as well that the paramountcy of the best interests of the child rule which is to be found in the Family Law Act was another indicator as to why indeed such an approach should be taken.  So, your Honour, they assumed, in my submission, for the sake of the exercise that there was evidence to support the allegations of incompetence.  They examined each of them to see whether, applying those sorts of standards, in the absence of the alleged incompetence, there could have been a different result.  They said in each case the answer was no.

The complaint is made, as I understand it today, your Honours, that they failed to aggregate all of those matters and then to ask themselves, I suppose, in a way similar to the approach on refugee cases in Chan that having gone through a series of complaints and having dismissed them the point is put against me that it is necessary to aggregate all of those and, I suppose, ask yourself, “What if I am wrong?” 

Your Honour, in my submission, if that is the proposition, it has no application in a case of this kind.  Clearly what their Honours did was to look at each proposition.  They found in respect of each proposition or each complaint that there was nothing in it in the sense that if the alleged incompetence had not occurred there would have been no different result.  There is no question of general principle, we submit, arising from this.  The fact that the Full Court took note of and utilised Canadian and American decisions in formulating its principles is of interest but, we respectfully submit, there is no serious challenge made to that approach.  We submit that no prospects of success are demonstrated.  Thank you, your Honours.

GUMMOW J:   Thank you.  Anything in reply Mr Giudice?

MR GIUDICE:   No, your Honours. 

GUMMOW J:   Thank you.  We are indebted to counsel on both sides of this matter for their assistance.

The Court is of the view that there are insufficient prospects of success to merit a grant of special leave.  Accordingly, special leave is refused. 

Do you seek costs, Mr Walker?

MR WALKER:   Yes, your Honours.

GUMMOW J:   I think it must be dismissed with costs. 

The Court will now adjourn to Tuesday, 9 November 2004 at 10.15 am at Canberra.

AT 12.15 PM THE MATTER WAS CONCLUDED