PBR v The Queen

[2005] HCATrans 593

[2005] HCATrans 593

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2005

B e t w e e n -

PBR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 10.37 AM

Copyright in the High Court of Australia

MR N. NIARCHOS:   If your Honours please, I appear with MRB.J. SALEfor the applicant. (instructed by George Mancini & Co)

MR S.P. PALLARAS, QC:   May it please the Court, together with my learned friend, MS L.M. BOORD, I appear for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Mr Niarchos.

MR NIARCHOS:   If your Honours please.  The matters set out in the summary of argument raise three issues.  The first two are subsumed under the relevant – what the applicant argues is an issue of abuse of process and oppression in the trial.  The applicant, having been through the first trial in relation to two counts out of ten counts was then put on trial on six counts, having previously been acquitted of all charges.  The original information was severed.  There was an application ‑ ‑ ‑

GLEESON CJ:   I think we understand the detail.  The problem arose, did it not, because counsel for the applicant at trial cross‑examined the complainant about one of the counts on which the complainant had been acquitted at the first trial?

MR NIARCHOS:   Your Honour, that is the way that the judgment below reads, but with respect to their Honours below, in the arguments that are referred to by their Honours that is simply not the case.  Count 10, which was the acquitted charge in the first trial, was introduced into the second trial by defence counsel.  It came into the trial very early on in the proceedings and if I could refer your Honours to the book of materials – and it is also in the application book.

If I can take your Honours initially to the application book at page 5, that extract of evidence starting at page 5 is from one of the complainants at the second trial, who I will call D, one of the young girls involved.  This is at page 168 of the trial transcript, well before the particular complainant, K, gave her evidence.  At this page of the transcript in the cross‑examination of D, defence counsel was raising with D issues concerning an evening of 21 December 2001 - 21 December 2001 is the allegation in relation to count 10, the acquitted charge.  Now, defence counsel ‑ ‑ ‑

GLEESON CJ:   That was the last occasion.

MR NIARCHOS:   The very last occasion.  Now, this is the extent of the cross‑examination about that.  Nothing comes out of the cross‑examination in relation to anything of substance concerning that incident alleged by K to have occurred that evening.  However, in re-examination of D – and I will take your Honours to page 7 ‑ ‑ ‑

GLEESON CJ:   What is the relevant part of the cross‑examination?

MR NIARCHOS:   That is just to show that the defence counsel did not put anything to D which could have brought in count 10 at that point.

GLEESON CJ:   Yes.

MR NIARCHOS:   However, in re-examination the prosecutor, in re‑examining D, started asking her questions about the events of 21 December 2001 and asked her about the conversation that Mrs D overheard at her home between K and her mother.  K is the young girl involved in count 10.  At about line 30 on page 7 in the re‑examination of D:

Q.       And you said that you heard that conversation between your mum and [K].

A.       Yes.

Q.       Where did that conversation take place in the house . . . 

Q.       Can you remember what was said; what [K] said to your mum.

A.       That [B] tried to have sex with her.

CALLINAN J:   There was no objection.

MR NIARCHOS:   I will come to that in a moment, your Honour, but this is well before any issue is raised in the cross‑examination of K and it comes out in the prosecution case on re-examination.  That is the first mention of anything to do with a complaint by K that B had tried to have sex with her on that evening, 21 December, the acquitted charge.  If your Honours go on to page 9, the witness there is again a prosecution witness in‑chief.  This witness is the mother of the other complainant, D, the previous witness.  In the examination‑in‑chief of this witness at about line 30, the prosecutor directs the witness’s attention to 21 December 2001, again to the acquitted charge:

Q.       I want to now ask you some questions about 21 December 2001.  You were home the previous evening, 20 December.

A.       Yes.

Having directed the witness’s attention to that the prosecutor goes on to ask her questions about what had happened over the next day.  If your Honours go to page 10 of the book on the next page of examination‑in‑chief, about line 16, again the prosecutor directs the witness’s attention to a conversation with K, the complainant, in relation to the incident on 21 December, the acquitted charge:

Q.       Did you have a conversation with [K] at that stage.

A.       As soon as the police left I asked her what happened.

Q.       What did she say to you.

A.       She said that ‘[B] tried to have sex with me and that mum caught him’.

Now, that adds another element that the jury for the first time hears about an incident when the mother of K comes into the scene and sees what is described there.  That is precisely what the allegation was on the first trial, on the acquitted charge, count 10, and this comes out in examination‑in‑chief of a prosecution witness.

The importance of that particular piece of evidence is then highlighted.  If your Honours would go to the summing up of the trial judge at page 56 of the application book.

GLEESON CJ:   Now, just before you get to page 56, there is page 27 of the application book at line 20, following the numbers of the left-hand page.  Now, that is the incident that was the subject of count 10, is it not?

MR NIARCHOS:   That is so, your Honour.

GLEESON CJ:   And that is in the cross‑examination by defence counsel of K.

MR NIARCHOS:   Of K.  I will come back to that, if your Honour please, but can I just for a moment take your Honours – because I was following on from the witness, the mother of D – at page 56 of the application book – and this is where the trial judge is directing the jury, and particularly reminding them of evidence in the trial.  At line 30 his Honour the trial judge draws the jury’s attention to the evidence that emanated at trial from the mother of D.  It is the paragraph in the middle of the page there:

So that’s what she said about that in evidence, members of the jury.  [She] then recounted the events of 21 December –

et cetera, and it finishes that passage with:

She said that on inquiry [K] told her that ‘[B] tried to have sex with me and mum caught him’.

Now, at that point in the summing up his Honour was covering the evidence of the trial from a number of witnesses, including the mother of D.  That evidence that the trial judge was telling the jury there was precisely the allegation on which the accused had been acquitted at the first trial.  He tells them nothing further about that evidence specifically and what they are going to do with it.  He does not tell them that they must disregard it and regard that as not in any way to be taken into account as evidence in the trial relating to issues of credit or anything of the kind.  However, his Honour does give a very brief direction on the previous verdict of acquittal, and he does that at page 66 in the application book.

GLEESON CJ:   Can we come back to page 27 of the application book?

MR NIARCHOS:   Yes, your Honour, before we go there.

GLEESON CJ:   On page 27 of the application book a series of questions are being put by defence counsel to the witness, K, presumably for the purpose of eliciting evidence of prior inconsistent statements.

MR NIARCHOS:   That would be so.

GLEESON CJ:   That is what the cross‑examination was directed to.

MR NIARCHOS:   Yes, yes.

GLEESON CJ:   What was the trial judge supposed to do about that?  Intervene and stop it?

MR NIARCHOS:   Your Honour, the entire process here became difficult for everybody.

GLEESON CJ:   Yes, it was a complex chain of events that were the subject of the allegations.

MR NIARCHOS:   But can I say by that time, your Honour, the evidence was already in.

GLEESON CJ:   I am just asking you what, in your submission, the trial judge was supposed to have done, bearing in mind the questions that were being asked, without objection, by counsel.

MR NIARCHOS:   Well, I do find it difficult to answer your Honour, and apart from stopping the examination I cannot see how his Honour would have, or could have ‑ ‑ ‑

GLEESON CJ:   How could the trial judge fairly stop cross‑examination by defence counsel?  There were difficulties confronting both sides, but defence counsel was obviously pursuing a line that the more he could get before the jury about the various allegations that had been made in the past by the witness the better were his prospects of persuading the jury to doubt her credibility.

MR NIARCHOS:   That may be the very reason the defence counsel saw that as a reason for asking those questions.  But can I say this, your Honour, that ‑ ‑ ‑

CALLINAN J:   Wait a moment.  You say the evidence was already in.  It was in because counsel did not object to it.  He just sat down.  It was all introduced earlier by the prosecution.

MR NIARCHOS:   It was introduced by the ‑ ‑ ‑

CALLINAN J:   And there is no attempt at all to object.

MR NIARCHOS:   Your Honour, can I say ‑ ‑ ‑

CALLINAN J:   Presumably because counsel had in mind this cross‑examination.

MR NIARCHOS:   Whether or not defence counsel had in mind the cross‑examination in relation to acquitted counts at an earlier trial in cross‑examination of K in the second trial gave no basis, if your Honours please, for the prosecution tendering in evidence material and evidence from other witnesses on the charge on which the accused had been previously acquitted.

GLEESON CJ:   Mr Niarchos, the reality of it is, is it not, that this was an allegation of a history of sexual abuse.

MR NIARCHOS:   Yes, your Honour.

GLEESON CJ:   Nobody was going to get too particular about details of particular events on particular occasions.  She was alleging a history of sexual abuse.  It is understandable, and perhaps it was a good decision, that defence counsel would take the attitude that he was not going to fight the case on the particulars of some individual case.  He was going to attack the credit of the complainant and say it was all lies.

MR NIARCHOS:   Your Honour, I am not here to attack defence counsel’s forensic choices.  The application that is made is that this process of trial turned into an oppressive trial.  It was an abuse of process.  To put the applicant on trial in this way with this evidence and with these counts and include, which is the primary application that we make for special leave, including leading the same evidence of uncharged acts, as was led in the first trial at which there had been an acquittal, of multiple sexual abuse occasions against K, the same evidence had been led at the first trial as uncharged acts, of which there had been an acquittal on both counts, the same evidence was led from K in the second trial.  The applicant was put into that position.

The Court below said, “Well, you applied for severance and that’s the result of it” but in fact that was not the severance application of the accused prior to the trial.  That is the severance that was ordered on an earlier application by his Honour Judge Bishop.  The ruling and the reasons for it are not in the application book, but in fact what happened, Judge Bishop saw that the count should never have been joined in the first place.  The 10 counts have no basis for joinder and they should not have been part of one information even on the arguments of the Crown that were not arguing – the Crown was not arguing underlying unity or similar fact evidence.

They were arguing eye witness basis for joinder, which did not exist across all the counts, and Judge Bishop directed severance on a different basis to that which was applied for by the applicant.  Having got that severance, as ordered by Judge Bishop, there was a mistrial, a trial with the acquittals and then the third trial where the prosecution again led the same evidence against the applicant in relation to K as they had in the first one…..the acquittals.

So it was basically a rerun with the same evidence, same allegations once again from K.  That is why the applicant argues, and it is the basis for the substantive argument, that this was an oppressive process, that it turned into an abuse of process, to have put him through a trial on the same evidence, same allegations including the trial of the incident on which he had been already acquitted.

Your Honours, the issues raised on the question of the prior acquittal and what that means, in effect, where you are dealing with multiple uncharged acts, has not been dealt with by this Court in any way previously, or in a direct way. It was alluded to in Carroll’s Case as one of the issues concerning the proposition about the incontrovertibility of an acquittal that was not necessary to decide in that case.  Could I ask your Honours to look at Carroll 213 CLR 635, and in particular there is the joint judgment of your Honour the Chief Justice and Justice Hayne dealing with the issue of abuse of process, and in paragraph 35 on “Incontrovertibility of an acquittal”. Your Honours come to this particular question at paragraph 47 on page 650, having considered the earlier decisions in Rogers and Garrett:

Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict.  The circumstances that may constitute oppression or an abuse of process are various –

and your Honours go on on that issue.  At paragraph 50 on page 651, about halfway down the page, your Honours go on to another issue which we say is raised here.  Your Honours said:

Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision.  There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct ‑

and your Honours referred to the cases in the UK, New Zealand and Canada of Z, which is a House of Lords decision at [2000] 2 AC 483; Arp, which is the Canadian case, the Supreme Court of Canada, and Degnan, the Court of Appeal in New Zealand.  Your Honours say that they are cases of that kind, and your Honours also said:

In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.

Can I just say, your Honours, in this case it is not new conduct or conduct that has not previously been alleged as similar conduct that comes into the second trial that had not been alluded to previously.  It is the same conduct.  So there are two counts picked out of a multitude of alleged offending in the first trial, and then the same multitude, or uncharged acts, in the second trial, counts 3 and 5, another two counts out of the same series of alleged offending in the second trial, with the same evidence, and the evidence

about the first incident, count 10, in the first trial of acquittal comes into that second trial.

That process, in our submission, that the applicant submits led to an abuse of process and oppression and it became then an unfair trial.  I think my time is up, your Honour.

GLEESON CJ:   Thank you, Mr Niarchos.  We do not need to hear you, Mr Pallaras.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed. 

We will adjourn for a short time to reconstitute.

AT 10.58 AM THE MATTER WAS CONCLUDED