Orr v The Queen

[1991] HCATrans 295

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P28 of 1991

B e t w e e n -

ADRIAN JAMES ORR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J McHUGH J

Orr 1 22/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 11.44 AM

Copyright in the High Court of Australia

MR G.P. MILLER, QC:  May it please the Court, I appear with

my learned friend, MR S.M. BRENNAN, for the

applicant. (instructed by Shane Brennan)

MR G.F. SCOTT, QC:  May it please the Court, with my learned

junior, MS T.D. SWEENEY, I represent the Crown.

(instructed by the Crown Solicitor for Western

Australia)

MASON CJ: Yes, Mr Miller.

MR MILLER:  May it please Your Honours. Contrary,

Your Honours, to the apprehension of the respondent

in its statement, this application does not involve

asking this Court to substitute its view for the
view of the Court of Criminal Appeal of either the

evidence or summing up in this case.

In our submission, Your Honours, the case does

raise a point of law of general importance and it

is this: It is the reasonableness of any jury

verdict which can be shown to have been based upon

selective acceptance of one portion of an accused's confessional statement but rejection of a different portion of it in these circumstances, firstly,

where the confessional evidence is the only

evidence which implicates the accused in the

offence, and secondly, where that confessional

evidence containing multiple confessions on

multiple counts in relation to multiple offenders

is a discrete body of evidence, indivisible.

At the heart of this application then, we

would submit, is the need for jury verdicts to be

of this case. It has general

reasonable and thus safe and satisfactory. particular facts

import because, we would submit, the evidentiary

situation is by no means unique to this particular

case. Sexual assault cases involving young

children will often be presented before a jury

involving confessional evidence alone as was the
case here.	The provisions, of course, of our

Criminal Code allow for the joinder of multiple counts and multiple victims as was the case here

and juries thus, Your Honours, we would submit,

would regularly in this State, at least, if not

elsewhere, be called upon to determine cases

presented as this was.

The alleged confessional evidence is

invariably presented, as it was here, as a discrete

body of evidence taken by detectives in one session

dealing with all allegations. Your Honours, on the

face of it the verdicts of the jury in this case

were logically inconsistent and thus, we would

submit, unreasonable. The passage to which

Orr 2 22/10/91

reference is made in the outline of argument - and

may I hand up copies of - is of particular

application to this type of case, Reg v Hayes,

(1973) 5 SASR 278, the judgment of

Chief Justice Bray and Justices Wells and Sangster.

I have copied for the Court only the relevant

pages - it is at page 281 which is the second page

of the photocopies you have and it is at the foot

of the page on the right where Their Honours said:

Without purporting to be exhaustive, it

may be said that, in practice, the use of the

word "unreasonable" is apt to describe a

verdict that, in all the circumstances is

characterised exclusively or predominantly by

logical inconsistency (for example, two

verdicts on the same information that are

inconsistent) -

and our submission is, that is this case -

or manifest perverseness (where, for example,

the verdict represents a finding contrary to

an overwhelming preponderance of obviously

credible evidence) -

well, that is not this case. So, it is the first

of those limbs which, in our submission,

characterizes this case.

Your Honours, we submit that the verdicts here

were logically inconsistent simply for this reason:
the jury could not have broken up the confessional

statements of the accused, accepting those that

related to one girl but rejecting those that
related to the other. Your Honours, the trial

judge saw it that way because in the application

book at page 27 you will see that in the judgment

below of His Honour Mr Justice Wallwork there is an

extract of the trial judge's charge to the jury in

the middle of the page where His Honour put

paragraph: it - really, at the top of 27 in the second	The second general issue to which I now turn
really is the crux of this case. I think that
much has been acknowledged by both counsel.
There is no escaping it. There is a
head-to-head conflict between the police
evidence as to the admissions which the police
officers say the accused made to them on the
night of the 2 July 1990 and the defence
evidence as to those admissions. In a
nutshell, your task in this case is to decide
what admissions were made by the accused and
whether those admissions were true -

Orr 3 22/10/91

and the next passage elaborates upon that. The

point of it all, Your Honours, is: the trial judge

saw the confessional evidence as discrete and

indivisible but what has happened here is that the

jury has divided the confessional evidence.

MASON CJ: But was there not a distinction in relation to

the effect of the medical evidence as between the

two girls?

MR MILLER:  Yes, Your Honour, but the medical evidence was

this. As to the elder girl, there was evidence

consistent with somebody having interfered with her

at some time. As to the younger girl, the evidence

was, briefly stated, that no jury could be

satisfied beyond reasonable doubt that the girl had

been interfered with at all. The passages, some of which are referred to - well, there is a very brief

extract in this judgment below but, in essence,

what the doctor said under cross-examination and

re-examination was he had doubts that anybody had

interfered with that girl, and perhaps if I could

just, although you have not got the transcript with

you, just to give you with some accuracy, what was

said was this in cross-examination:

Apart from the leg of the Barbie doll -

which had allegedly been inserted -

would it be possible for a finger to have been

inserted into a child such as Toni -

that is the younger girl -

and cause bleeding, but without damage to the

hymen, if the finger was inserted perhaps an

inch or so into the child -

which was the Crown case. The answer was:

I suppose everything is possible. It would

sound a little unusual that one wouldn't have

hymenal damage. One would imagine if actually

a finger was inserted into the vagina, it

would have actually had to transcend the

hymen. If a finger was placed in the

introital area for about an inch - an inch,

you said? -

he questioned:

Yes? -

said the prosecutor:

Orr 4 22/10/91

It's possible that you may just damage the introital area without penetrating the hymen.

There were numerous other passages, Your Honour, in

which it was made clear that the doctor who was

called expressed reservations about the effect of

the evidence. May I refer to another passage:

And it would be rare indeed -

said the cross-examiner -

I suggest to you, that such a penetration

would pass the hymen without damaging it in

any way?---I would find that difficult to

understand too -

was the answer.

Yes, and as far as the baby doll that we have

looked at ..... it is suggested, was inserted -

the Crown's case is that that was inserted by
the accused some distance; at least, as I

understand the case, beyond 1 centimetre.

Would you, in your view, have thought that

with the young child the hymenal membrane
would have been damaged in that exercise?---!

would have thought that it would have been.

Yes, and you would be surprised if it was not

as you found?---Yes.

So, it is a very positive answer by the doctor who

was called by the Crown, and then there is the

other passage which is in the application book

where he finally said in re-examination he felt:

uneasy about the actual penetration of the

passage beyond the hymen without damage.

So, Your Honours, the position is that the medical

evidence was, in our submission, inconsistent

really with the confessional evidence of the

applicant that he had done these things to this

girl. One can see that the jury would have been

impressed by that evidence and could not, on that

evidence that I have referred to, have been

satisfied beyond reasonable doubt that he committed

those offences, and yet he confessed to them.

Your Honours, what is logically inconsistent about

this verdict is that notwithstanding that, they

accepted his confessions in relation to the first

nine counts because there was evidence consistent

with someone having interfered with the elder of

the two girls.

Orr	22/10/91
McHUGH J:	But the jury may have formed the view that he

made a full and voluntary confession but that he

got his facts wrong, or that there was some doubt

about it in relation to Toni.

MR MILLER:  I am glad Your Honour asked that question

because, again, if Your Honours had the transcript

and were in a position to see the detail with which

the confessions were made and - that logical

explanation, perhaps, in my submission, cannot

stand up. Now, of course, Your Honours do not have

the transcript but the confessional evidence in

relation to the younger of the two girls was

extremely detailed. May I read a few extracts:

"What about Toni?" "Three or four times."

"When did it first start with Toni?" "After

the second to last time with Kara, about

3 or 4 months ago."

"How did it start with Toni?" "I heard her

singing in bed one night. Everyone was

asleep.

He explained how he went into the bedroom:

"What did you do?" "I gave her a kiss and a

cuddle and it all started from there.

Then there is a chronicle of detailed sexual

events:

"Which finger did you put into Toni's vagina?"

"The same one, my left middle one."

"How far did you put it in?"	"About half-way,
my second knuckle."

And the allegation in relation to the doll, he said

he put a Barbie doll in:

"What part of the Barbie doll ..... "One of the

legs."

"I have two dolls here -

says the detective questioning the accused.	It was
produced.	He identified it and said he had done
it:

"I was very gentle."

They are just two or three examples.

McHUGH J: There was a video tape also, was there?

Orr	6	22/10/91
MR MILLER: There was.

McHUGH J:  To what extent was the confession recorded on the

video tape?

MR MILLER:  The confessional material was all repeated on

the video, so it was done orally and then repeated

on video. But the point of it is, Your Honours,

that the confessions were extremely detailed. I

can understand Your Honour Justice McHugh's

question had it been just broad confessions by

somebody who was just confessing to anything, but

these were so detailed and so precise and grounded

home with specificity the five counts against the

younger girl. And so there is the logical

inconsistency.

Now, there is a real error in the way in which

the Court of Criminal Appeal, in my submission,

approached the matter. It is detectable in the

reasons of His Honour Mr Justice Wallwork at

pages 30 to 31, because after reciting all the

submissions that had been made and relevant

authority, the kernel of the Court of Criminal

Appeal decision is to be found in two paragraphs,

starting at the bottom of 30:

In the present case, in my view, a

reasonable jury who had applied their mind

properly to the facts in this case, could have

accepted the medical evidence which was

consistent with sexual penetrations of the
older girl as being consistent with the confessions to offences upon that girl.

We would not quarrel with that one bit, but this is

where, in our submission, it goes wrong:

However, with respect to the alleged offences against the younger girl, the jury could have

been left with a reasonable doubt as to

whether those offences had actually occurred

because the medical evidence was to a degree

inconsistent with the offences alleged.

Now, Your Honours, the question was: Was it

inconsistent with the confessions alleged, not the

offences alleged, and it is our submission, that

the Court of Criminal Appeal totally misapprehended
the argument which was put to it and that error is

demonstrable in that passage. The whole case put

to the Court of Criminal Appeal outlined in the

judgment of His Honour was that you could not

divide the confessional evidence. By so doing, it

was an unreasonable verdict in the sense that it

was logically inconsistent. Now, the Court of

Criminal Appeal, in my submission, overlooked that

Orr 7 22/10/91

in the final decision which is contained in the

last two paragraphs with which the other two judges

agreed.

Our submission simply is this:  How can a jury

faced with one discrete body of confessional

material detailed as this was in relation to

multiple counts and multiple victims pick and

choose amongst it? How can such a verdict be

characterized by any logical consistency? The

explanation is clear. Your Honour

the Chief Justice has identified the explanation as

to why they did it but, in the interests of safe

verdicts and logically consistent verdicts this

one, in our submission, cannot stand.

In the outline of argument of the Crown it is

said that the court below did not even call upon

the Crown. That just underlines the failure of the

Court of Criminal Appeal to understand what the

case was about and it is on that basis that we

bring it before this Court.

MASON CJ:  Is this in support of an argument that we ought

to call on Mr Scott, is it?

MR MILLER:  It certainly is, Your Honour, but I only make

that point because it is part of their argument and

it underlines the fact that the Court of Criminal

Appeal did misapprehend what it was that was being

put to it, as is so clear in those passages to

which I have referred.

So, Your Honours, we submit, we are not

seeking to substitute for the court below any view
of evidence, any view of directions to the jury,

but this application is all about logically

consistent verdicts of juries which, on any view of

it, this, in our submission, was not.	May it
please the Court.

MASON CJ: Thank you, Mr Miller. Yes, Mr Scott.
MR SCOTT:	May it please Your Honours, the starting point

really of the Crown's position on this case is

that, in our submission, the jury have accepted the

confessional material in the manner that

Your Honour Justice McHugh put to my learned

friend. They have accepted the confessions as

being freely and voluntarily made, and that was

certainly in issue at the trial, but having got to that position the jury still have not answered the ultimate question which is whether or not on that

material they are satisfied beyond reasonable doubt
of the guilt of the accused on the particular

matter.

Orr 22/10/91

Having got to that point, Your Honours, the jury then next turned to the question as to what

evidence there was that supported the confessional

material. His Honour, in fact, in the course of

his summing up went to a McKinney and Judge type

warning to the jury but then told the jury that in

this case because of the video of the confession it

was not necessary for him to tell the jury of the
warnings normally made of the McKinney and Judge

type. So the jury, no doubt, would have been

mindful of the need for them to look to the

totality of the evidence, not just the confessional

material, to decide the ultimate question as to

whether or not they were satisfied beyond

reasonable doubt.

Once they then made that distinction and said,

"Well, look, we'll accept the confessional material

but let's look to what other material, if any,
there is surrounding this case that would support
the confession that the applicant has made", they

were then in a position to make the very

distinction which, we say, they ultimately did.

And we have deliberately annexed at page 17 of the

appeal book a passage from Dr Winterton's evidence

which, we say, dramatically exposes the very

problem that arises - it is about two-thirds of the

way down the page:

And so what is your answer to my question?	I
thank you for that answer. What is your
answer to my - - -?---The answer to your
question is that it is possible that

interference with the genital tract did occur.

Including the vagina?---Including the vagina.

Yes?---I still feel somewhat uneasy about the actual penetration of the passage beyond the

hymen without damage.

Now, of course, what the doctor was there saying is

that whilst there was evidence in relation to the

older girl consistent with the confession that the

applicant had made, the medical evidence in
relation to the younger girl was, on the contrary,

quite inconsistent with the confession that the

applicant had made in relation to that child. Of

course, that gives rise to many possibilities and,
as Justice McHugh in a question of my learned

friend pointed out, one of the possibilities is

that the applicant has, in the confessional

material, said something about the younger girl

which might be exaggerated, might be his belief as

to the detail as what occurred, but may not be an

accurate recollection as to what occurred.

Orr 9 22/10/91

So the jury is looking, in our submission, for

evidence that is supportive of what the applicant

had said in the confessional material. Whether it

is detailed or not did not matter, but they start

from the proposition of accepting the confessional

material and then they say, "Well, let's look at
the question as to what evidence there is in this

case that supports the confession in relation to

each of the two victims" and, in our submission,

once they draw that distinction and approach the

case in that way - bearing in mind the way

His Honour approached it, and that is, certainly to

look at the confessional material first, bearing in

mind they need to satisfy themselves that it was

freely and voluntarily made - then the next issue

is whether or not they are satisfied beyond

reasonable doubt on each particular count on the

indictment. And, in our submission, the jury has

approached its task in just that way, dividing the

evidence up, as they have done obviously, between

the two children and, because of the medical

evidence, not being satisfied beyond reasonable

doubt that the evidence is sufficiently compelling

in relation to the younger child.

McHUGH J: Yes. I think there would have been a real

problem if they had found the accused guilty of

counts 1 to 5 and then not guilty of ..... ?

MR SCOTT:  Yes, indeed, Your Honour. It would have been a

very different proposition and I think we would not
be here arguing that there was no special leave
point if that was indeed the case because obviously

a miscarriage of justice would then have occurred.

But they have done it the logical way around, in

our submission, which at the end of the day, we

say, puts the applicant's position here in a

completely illogical position because what the jury

has done, in our submission, is to approach the

task in exactly the way that His Honour was telling

them to do it:	"Look at the confessional material
first, decide whether it was freely and voluntarily

given in that sense so that it was usable by the

jury", but that does not answer their ultimate
question as to whether they are satisfied beyond

reasonable doubt and they have looked behind that

evidence to see if there is supporting evidence

that could justify their conclusion that he was

guilty of the particular counts in relation to the

particular victim. Then, approaching the task in

that way, they have divided the evidence up in the

way that their verdict reflects and, in the Crown's

submission, when the case is viewed in that light

there can be said to be no inconsistency in

relation to the verdicts that the jury returned.

Orr 10 22/10/91

Your Honour, that seems to be the nub of the

argument that is being put by my learned friend.

There are other matters that are raised in the application for special leave but if that seems to be nub of the appeal we are content to rest our

submissions there.

MASON CJ	Thank you, Mr Scott. Yes, Mr Miller.
MR MILLER:	Your Honours, earlier I did not read the

totality of the trial judge's charge to the jury on
this point at page 27. May I refer Your Honours to

the second paragraph where the trial judge really
saw the case as acceptance of the confessional

material as one as dictating the verdict. At

page 27, that second passage:

The way in which this case has unfolded, the issue is relatively simple. If you accept the police evidence that the accused was not

threatened in the way in which he has told

you, and that the oral interview and the video

recording were conducted in the circumstances

in which the police officers have told you,

then it would be open to you to conclude that

the admissions said to have been made by the

accused are true. It is a consequence of the

onus of proof about which I have spoken

earlier that you must of course pay close attention to the police evidence, part of

which is the video recording -

and this is the crucial paragraph:

On the other hand, if when you view the evidence as a whole you are left with a

reasonable doubt whether things did happen in

the way the police say they happened, then the

accused should be entitled to the benefit of

that doubt.

McHUGH J: That is too favourable from your point of view,

is it not? That is very favourable from your

point of view.

MR MILLER:  It is, but the case unfolded as acceptance or

rejection of the confessional material as one, and

that is the problem with this case, Your Honours.

McHUGH J: Well, is it, Mr Miller? After all, once the jury

accepted that the evidence of the confession was

correct, that the confession was freely and

voluntarily given, then the question was, "Should

the jury act on it having regard to the standard of proof required?", and the jury took the view, "No, we won't act on it unless we find other

Orr 11 22/10/91

evidence in the case which supports it".	Now,
that is what they appear to have done.

MR MILLER: There is a clear answer to that, Your Honour.

If that was the case, and they found in relation to

one of the victims that there was no evidence which

was supportive of the confessional material - - -

McHUGH J:  Not that there was no evidence, but they were not

satisfied -

MR MILLER:  They were not satisfied beyond reasonable doubt

there was such evidence. It is difficult to see

how they could have convicted the applicant on the

first nine counts simply because there was

evidence, as the trial judge stressed to the jury,

that someone at some unknown time had apparently

interfered with that girl. As the trial judge

stressed, there was no evidence which implicated

him in having done that. So, such a process of

reasoning, Your Honour, in my submission, is flawed

and is dangerous.

McHUGH J:  Not necessarily flawed, but kind to your client.

MR MILLER: Well unkind, if you put it in the converse,

because to take the view that simply because in

relation to the first girl there was evidence
consistent with someone having interfered with her,

therefore, they would accept his confessions that

he was the person responsible, was unkind if they

rejected in relation to the younger girl the

combination of confessional material and medical

evidence. That is all that can be said about it,

Your Honours.

MASON CJ:  Thank you, Mr Miller. The Court will take a

short adjournment in order to consider this matter.

AT 12.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM: 

MASON CJ: Notwithstanding the confessional evidence, having

regard to the medical evidence led by the Crown at

the trial, we are not persuaded that the Court of

Criminal Appeal erred in reaching the conclusion

that this was not a case of an inconsistent or

unreasonable verdict.

Orr 12 22/10/91

The application for special leave to appeal

is, therefore, refused.

AT 12.13 PM THE MATTER WAS ADJOURNED SINE DIE

Orr 13 22/10/91