PEB v The Queen

[2013] HCATrans 135

[2013] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B9 of 2013

B e t w e e n -

PEB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON THURSDAY, 6 JUNE 2013, AT 12.20 PM

Copyright in the High Court of Australia

MR D.C. SHEPHERD:   If it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC:   If the Court pleases, I appear with my learned friend, MS C.M. KELLY, for the respondent.  (instructed by Director of Public Prosecutions)

BELL J:   Thank you, Mr Shepherd.

MR SHEPHERD:   It is a preliminary question of disposition of relevant time limits within which to file the application for special leave.

BELL J:   Yes.  Mr Moynihan, is there any difficulty with dispensing with the rules?

MR MOYNIHAN:   No, your Honours.

BELL J:   Yes.

MR SHEPHERD:   Thank you, your Honour.  In this case there are two issues really bearing consideration.  The first is that there has been no real exposure of the reasons which led to the conclusions which were reached by the Court of Appeal and, secondly, what has been published, in my respectful submission, betrays that the task imposed on the Court of Appeal has not been properly undertaken.  Neither the appellant nor this Court knows why the evidence given by the applicant and his wife could not raise a reasonable doubt about the allegations made.  Similarly, no one can have any real understanding of how the evidence of the complainant in the face of a number of significant inconsistencies, which are set out in paragraph 48 of my outline and which I will not repeat here, and the attendant credibility problems, could satisfy a jury beyond a reasonable doubt that the applicant was guilty of two of the three charges which he faced.

KEANE J:   Would it be said against you that the answer lies in the advantage the jury had of seeing your client, his wife and the complainant give evidence?

MR SHEPHERD:   That was not a proposition upon which the Court of Appeal relied in coming to their conclusions.  It is a proposition, or it is a principle, which might be applied when some difficulty may attend a consideration of the verdicts that were reached, but that was not a proposition that was relied upon in this instance.  The failure to make any critical assessment of the evidence of the complainant and the evidence of the applicant and his wife is plain, in my respectful submission, in the judgment.  Beyond a brief recitation of the defence evidence in

paragraph [12] of the judgment and a reference in paragraph [24] to “in the context of the defence evidence” and later to “competing considerations”, nothing was said at all about the applicant’s evidence and that of his wife.  It is difficult ‑ ‑ ‑

BELL J:   Mr Shepherd, can I just raise this with you?  Is it right that at the trial the prosecutor in closing address offered, as it were, some suggestion that the child’s timing might be out and that the relevant incident might have occurred after the applicant’s birthday as distinct from before?  Have I got that right?

MR SHEPHERD:   No, your Honour has got that right.  There was a submission made by the prosecutor that, given the young age of the child, there is scope for the jury to think that her what otherwise seemed to be firm recollections about the date or the approximate timing of the events, was wrong, but no more than on the basis that because she was a young child.  The events that were ‑ ‑ ‑

BELL J:   I am sorry, Mr Shepherd, but the Crown case was opened on the basis that the offending conduct occurred on an overnight stay before the applicant’s birthday.

MR SHEPHERD:   Yes.

BELL J:   The applicant and his wife gave evidence and there was some support to be derived from a Sea World ticket and diary entries to cast doubt on the child having had a sleepover in the relevant period, is that right?

MR SHEPHERD:   Yes.  The complainant’s evidence was that the events had occurred prior to the surprise birthday party, which was 6 November.  The evidence of the applicant and his wife was that there was, in fact, a stay over but it occurred on 14 November, after the birthday party, and that that could not have – the events described could not have occurred on that occasion because of other circumstances, namely, the presence of the foster children and the different circumstances, in particular the presence of the complainant’s younger brother.  So even if there had been acceptance that there was a stay over on 14 November, the applicant’s evidence would have it that that was not the occasion to which the complainant was referring.

BELL J:   I think, Mr Shepherd, we might be assisted by hearing from Mr Moynihan.

MR SHEPHERD:   Thank you, your Honour.

MR MOYNIHAN:   Your Honours, can I take your Honours directly to paragraph [24] of the Chief Justice’s reasons?  Firstly, your Honours will find there – that is at page 48 of the application book – there the Chief Justice directs attention to the test from SKA v The Queen, particularly at page 409 of the judgment of Chief Justice French, Justices Gummow and Kiefel, that the task of the Court of Appeal was to make an independent assessment of the whole of the evidence to determine whether the verdicts could be supported.  Then a little bit further down in the same paragraph your Honours will find the ratio and his Honour the Chief Justice said that:

Having reviewed the evidence as required, I am satisfied these convictions are not unsafe.

BELL J:   As I understand it, Mr Moynihan, very much to the forefront in the challenge is the adequacy of the reasons to make clear the basis upon which the conclusion was reached, accepting that the court engaged, as his Honour said, in that review.  Here one does look at a case in which a positive defence case was mounted, to which as it would seem the prosecution was driven to, as it were, shifting its ground somewhat in closing address.  One would expect some review of that in the court’s reasons.

MR MOYNIHAN:   Your Honour, I was going to take your Honours to the evidence because the Chief Justice in that ratio refers to the evidence, and to give that some meaning and some context one really then has to go to what happened in paragraphs [1] through to [13] where the Chief Justice at least summarised the evidence on which the decision obviously is based.

Now, the fact in issue in the trial was whether each act occurred at all, and that is made clear obviously at page 11 of the application book at about line 30 where the trial judge directed the jury that that was really the matter that they needed to direct their attention, and the Crown case, of course, was primarily based on the complainant’s evidence and her mother’s evidence about the complaint to her which went only to the complainant’s credibility, but also the mother gave evidence of opportunity, that is, that her recollection was that the child was going to that home on more regular occasions than that which was asserted by the defendant.

Also, the Chief Justice pointed out at paragraphs [5], [6] and [8] that the complainant was only six years old at the time these alleged incidents took place and was about 10 years old at the time of giving evidence, and her evidence was that the offending occurred near poppy’s birthday, which was 6 November, and that was given some context by further questioning and she does ultimately put it before the birthday at that point in time, although later on I think the evidence is that she was not sure about that.  So, that is why the Crown Prosecutor, as your Honour Justice Bell points out to me, probably picking up the passage at paragraph [22] of the judgment, does make the submission that she could not be proved to be wrong about those things because she was not adamant about them.

So, the Chief Justice though went on to summarise the evidence about the separate disclosures at paragraph [9], whether the foster children were present or not at paragraph [10], the issue concerning the timing of the offending in paragraph [11], which is probably the issue which your Honours are directing me to at the moment.  The Chief Justice then summarised what the defence case was at paragraph [12] concerning the diary suggesting the foster children came in mid‑October, that the complainant only slept at the house on 14 November in the relevant period, and that the only other contact was on that weekend of 11 and 12 October when the Sea World visit took place.

Then the Chief Justice identified the issues the applicant emphasised concerning particularly the complainant’s evidence as to whether the foster children were in the house at paragraph [13], and the complainant said acts occurred near the birthday party on 6 November, and the lack of opportunity for it to have happened at that time, and that is at paragraph [17].  Then the Chief Justice did weigh the evidence, particularly concerning the late disclosure and the reasons for it, at paragraph [20].  His Honour then went on ‑ ‑ ‑

BELL J:   The analysis in paragraph [20] is in the context of consideration of whether there is relevant inconsistency and the inability to agree on the verdict on count 3 with the verdicts on counts 1 and 2.

MR MOYNIHAN:   True that is, your Honour, except that it was also directed to the issue of whether the verdict was unreasonable as distinct from inconsistent.  But, then, probably more pointedly, the Chief Justice went on in paragraph [21] to weigh the evidence about, particularly the applicant’s evidence about the foster children being present, the date of the sleepover and the Sea World excursion based on, of course, the incomplete diary entries and the Crown’s response in relation to that that the child was very young and she could not be certain as to the date and the presence of the foster children.

Then weighing all of those things, his Honour then concludes at paragraph [24] whether, having regard to the complainant’s evidence – and his Honour did place some weight on the fact that there had been some consistency through her complaint, her pre‑recorded evidence and her cross‑examination – and in the context of the defence evidence that it was open to the jury to be satisfied beyond reasonable doubt as to guilt and, in

my submission, that was a finding that was open on the review of the evidence which the Chief Justice had undertaken.

BELL J:   We are looking at proof beyond reasonable doubt, and that the process of reasoning engaging with the evidence that led the court to conclude that, notwithstanding the defence case and the inconsistencies in the child’s evidence, the verdicts were open.  It is the adequacy of the reasoning, Mr Moynihan – there is reference to the evidence, but not to the court’s assessment of the significance of the evidence of the applicant and his wife and the supporting material in the diary and so forth.  One is looking at the capacity to exclude the reasonable possibility in light of that evidence.

MR MOYNIHAN:   Your Honours, one matter that has to be kept firmly in mind is that the evidence was in very short compass in this case.  When the Chief Justice is summarising it, one would not expect long reasons for that, but as I have already taken your Honour through the relevant paragraphs, they each relate to what the issues were in the trial.  The focus was certainly on whether the other foster children were at the home at the relevant time, and whether there was this opportunity for it to have occurred near to poppy’s birthday.

The Chief Justice has dealt with the evidence in relation to that and then dealt with the issue of weighing those matters in paragraphs [21] and [22], and you can come to the conclusion that the verdict could be supported, that is, it was open to the jury to accept the child’s evidence, notwithstanding and taking into account the evidence of the defendant and his wife, I should add.  I cannot take it any further than that, your Honours.  I have taken you to the reasons.

BELL J:   Yes, thank you, Mr Moynihan.  Yes, we do not need to hear further from you, Mr Shepherd.  There will be a grant of special leave in this matter.  How long, Mr Shepherd, do you estimate the matter would take?

MR SHEPHERD:   No more than half a day, your Honour.

BELL J:   Mr Moynihan, do you agree with that?

MR MOYNIHAN:   I do, your Honours.

BELL J:   Yes, very well.  There will be a grant of special leave in this matter.  The appellant’s submissions and list of authorities are to be filed and served by 11 July 2013.  The respondent’s submissions and list of authorities are to be filed and served by 1 August 2013.  The appellant’s reply is to be filed and served by 15 August 2013.  I will remind the parties of the importance that the Court places on compliance with the timetable.  The Court will now adjourn to reconstitute.

AT 12.37 PM THE MATTER WAS CONCLUDED