OKS v The State of Western Australia

[2018] HCATrans 242

[2018] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P25 of 2018

B e t w e e n -

OKS

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 NOVEMBER 2018, AT 11.56 AM

Copyright in the High Court of Australia

MR P.D. YOVICH, SC:   May it please the Court, with my learned friend, MR S. NIGAM, I represent the applicant.  (instructed by Nigams Legal)

MS A.L. FORRESTER, SC:   If it please your Honours, I appear with MS K.C. COOK, for the respondent.  (instructed by Director of Public Prosecutions (WA))

BELL J:   Yes, Mr Yovich.

MR YOVICH:   May it please the Court.  The importance of the proviso is obvious.  It may potentially apply in any conviction appeal and equally the difficulty that the application of the proviso has occasioned to intermediate courts of appeal including that of Western Australia is apparent from the recent decisions of this Court.  It is our submission that this is an appropriate vehicle for further examination of the application of the proviso, particularly, in the factual circumstances of this case.  We also say that its misapplication has led to a miscarriage of justice and a wrongful conviction. 

The vice of the impugned direction in this case was identified by the Court of Appeal in the judgment of President at paragraphs 123 and 124 to be found at application book 110 and in the judgment of Justice of Appeal Beech at application book 124 and particularly 125, paragraphs 179 and 183. 

Their Honours, with respect, correctly identified that the impugned direction precluded the jury from engaging in a process of reasoning that was properly open to them and which may have led on its own to the acquittal of the applicant.  That being so it is our submission that that ought to have decided the matter.  It was not a case in which the proviso could properly be applied. 

In its application of the proviso, however, it is our submission that the Court of Appeal, whilst identifying the principles correctly, applied them incorrectly and one clue as to how that error was made begins with the judgment of the President at paragraph 88 on page 99 of the application book.  Having referred to the requirement of the appellate court to examine the whole of the trial record, including the fact that the jury returned a verdict of guilty and cited Weiss’ Case at paragraph 43, President Buss said at paragraph 88:

it will often be possible, where the proviso is being considered, to place some weight upon the fact that the jury returned a verdict of guilty.

I emphasise the words “often” and “some” in that quotation.  The authorities that the President cited, Cesan and Patel, were both cases, of

course, in which the High Court concluded that it was not appropriate to accord the jury at first instance’s verdict any weight. 

When the learned President came to examine the application of the proviso and, crucially at application book 112 and 113 and paragraphs 132 and following, the process of reasoning in which his Honour engaged which was adopted without further comment by the other members of the Court, is exposed.  At paragraphs 135 and 136 his Honour reasoned that the Court of Appeal could give “very significant weight” to the jury’s verdict of guilty on count 1 as an aspect of the trial record.  That phrase ‑ ‑ ‑

BELL J:   Mr Yovich, I think at this stage, we might be assisted by hearing from Ms Forrester.

MR YOVICH:   May it please your Honour.

MS FORRESTER:   If it please your Honours, the application of the proviso in this case, in the respondent’s respectful submission, was done in an entirely orthodox way.  There is no doubt that the primary judge erred in giving what was found to be a wrong decision on a matter of law.  There is no dispute as to that.  The jury must have been taken to have understood and followed the direction and the directions as a whole. 

The primary judge gave no less than seven specific directions to the jury about how they could use lies, prior inconsistent statements and other features of the complainant’s evidence in evaluating her credit.  Those directions were in addition to the ordinary directions that are standard as part of any criminal trial as to the need for the jury to be satisfied beyond reasonable doubt as to the credibility and the reliability of the complainant in relation to the count then under consideration.  The impugned direction was immediately followed by a standard direction in relation to the need for the members ‑ ‑ ‑

BELL J:   Where do we find the impugned direction?

MS FORRESTER:   Yes, your Honour, I will just locate it.  It is at page 34 of the application book, just after paragraph 20 and it is important, in my submission, that the paragraph immediately above it, starting at 10 through to line 33 be read as a whole because ‑ ‑ ‑

BELL J:   Accepting that, Ms Forrester, one has a direction to a jury in a case which depends entirely on the credibility of the complainant not to follow a process of reasoning, that because she is shown to have told a lie and it was common ground that she had, the jury might from that reason that her evidence could not be relied upon.  Now, that was a critical direction.

MS FORRESTER:   Well, in my submission, your Honour, it was not entirely, because when one looks at the charge as a whole, as one must do, and particularly this part of the charge, it is between two other directions that they must use the fact that she did tell a lie to use that as a factor to:

take into account when you come to assess her credibility in relation to the alleged touching –

the subject of the counts in the indictment and it was immediately preceded by a direction that the:

fact that a person has told a lie may be a factor in your assessment of her credibility.

So, I entirely accept what your Honour has put in the context of that direction being an error and it is not disputed that it was wrong but when a jury is taken to understand and follow directions of a trial judge, they are taken to understand and follow all of them. 

The application in this case relies upon an assertion that the jury gave primacy to this particular direction above the numerous other directions that they should assess the complainant’s credibility, having regard to lies, prior inconsistent statements and other matters such as her demeanour, the detail that she gave, her delay in complaint and the usual factors that are taken into consideration in a matter such as this.

There was no dispute that that direction should not have been given.  The court then moved to consider the proviso and did not consider in the circumstances of this case that it was such an error as to produce a substantial miscarriage of justice, having reviewed all of the material that was before them, and it is in that context ‑ ‑ ‑

BELL J:   Ms Forrester, the court reviewed the evidence which relevantly was the evidence of the complainant.  It was accepted that her evidence was affected by some inconsistencies, some admitted lies - I think there was some issue about her demeanour which one can see arguments both ways but a reference I think in some of the materials to a degree of belligerence and things of that sort.  This was a case that depended very much on what the jury made of the complainant and they were directed in relation to the acknowledged fact of lies they could not reason from that to a conclusion she was unreliable.  The Court of Appeal then expresses its own satisfaction for the purposes of the precondition to the exercise of the proviso that it was satisfied beyond reasonable doubt, particularly taking into account the guilty verdict.  How, given the nature of the error, was that open?

MS FORRESTER:   Your Honours, just before I immediately address that, it is the case that the direction was just because she is said to have told a lie does not mean that one can reason, so the second line of that paragraph:

do not follow a process of reasoning to the effect that just because she has been shown to have told a lie –

and that word does have some work to do in the context of this.  But bearing that in mind the jury, having been given all of the directions that they were in relation to credit and reliability, including a Longman warning and the specific direction that they must not convict the accused of any charge unless they are satisfied beyond reasonable doubt of the complainant’s credit and reliability, the jury must also have been taken to have followed that direction and, in my submission, it would be doing the jury a disservice not to take account of that finding when considering the application of the proviso in this case.

It was not, in my submission, given primacy as a factor by the court below but it was, as my learned friend has already pointed out, a factor that was given significant weight, but significant weight in the sense that they did convict on count 1, so that they did accept her evidence beyond reasonable doubt in relation to that count, and that is a factor, in my submission, that should be given significant weight in the evaluation of the applicability of the proviso.

Your Honours, the issue in this case is whether – the real issue in this particular application is whether this is a matter that goes so fundamentally to the heart of the verdict that the proviso simply cannot apply.  This Court has considered that particular issue on a number of occasions and it is certainly the position of the respondent, or the submission of the respondent, that this case has no universal application or would not provide any guidance in terms of future application of the proviso. 

But that is very much a subsidiary point to the first point that we make, and that is that the court below was in the best position, having seen all of the material, to evaluate the applicability of the proviso and to see submissions in relation to it and to make that determination.  Unless I can assist your Honours further.

BELL J:   Yes, thank you, Ms Forrester.  Yes, Mr Yovich, we do not need to trouble you.  There will be a grant of special leave in this matter.  What is your estimate, Mr Yovich?

MR YOVICH:   I would have thought half a day, your Honour.

BELL J:   Yes, very well.  Mr Yovich and Ms Forrester, if you can arrange for those who instruct you to collect from the Registry a copy of the directions with respect to the filing of submissions.  The order of the Court is special leave is granted. 

AT 12.09 PM THE MATTER WAS CONCLUDED