R v Far
[2019] HCATrans 129
[2019] HCATrans 129
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B66 of 2018
B e t w e e n -
THE QUEEN
Applicant
and
FAR
Respondent
Application for special leave to appeal
KIEFEL CJ
BELL J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 9.55 AM
Copyright in the High Court of Australia
MR M.R. BYRNE, QC: May it please the Court, I appear for the applicant. (instructed by the Director of Public Prosecutions (Qld))
MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MS P. MORREAU, I appear for the respondent. (instructed by Legal Aid Queensland)
KIEFEL CJ: Yes, Mr Byrne.
MR BYRNE: Your Honours, the respondent faced a retrial in the District Court on 12 counts of a sexual nature. He had earlier been acquitted or had been acquitted at an earlier trial of two counts also of a sexual nature. That is what I have referred to in the application as the acquitted conduct. The submission is that this is not an unusual trial scenario that is faced in all jurisdictions across this country.
His counsel on the retrial made what is submitted to be a considered and rational decision to insist that the evidence of the acquitted conduct be led at the retrial. That evidence included, obviously, contradictory accounts of the conduct underlying those two previous counts. That contradictory nature gave clear potential to detract from a favourable assessment of the complainant’s credibility and reliability.
The jury were directed in the retrial twice, once at the beginning of the trial and once in the formal summing‑up, to the effect that they could not use the evidence of that conduct “against the defendant at all”. That is my emphasis on the last two words. They were directed, however, it could be used to assess the complainant’s credibility and that if it was not accepted by them that could bear on whether they accepted her evidence on the charges that were before them. Notably, they were not told they could use the reverse process of reasoning.
Counsel’s decision was, as I have submitted, rational. Of the evidence adduced at the earlier trial and acquittal on some charges, there was in reality a real risk that it would carry with it a recognition that he had not been acquitted on the charges before them. That is, that at least some of the earlier jury were satisfied of guilt beyond a reasonable doubt. By having the evidence of the earlier conduct admitted at trial in the way that it was admitted with the directions given, counsel achieved the objective of having evidence potentially damaging to the complainant’s credit and reliability before the jury without the risk of the downside of the jury knowing there had been an earlier trial.
Whilst it is not a conclusive fact to point to, I do point to the fact that there was an acquittal on the retrial of five of the 12 counts, and that is an indicator that it was arguably a successful tactic in part. Now, because there was no evidence of the earlier acquittal there could not be an express direction that there had been an acquittal and to give the defendant, the respondent here today, the full benefit of that acquittal. On appeal, the Queensland Court of Appeal acknowledged the principle that the defendant is entitled to the full benefit of the acquittal, and I certainly do not quibble that that is the case.
BELL J: Mr Byrne, can I just raise this with you: did the prosecution, in submissions to the jury, invite the jury to find that the conduct the subject of the two acquittals occurred in fact?
MR BYRNE: As I recall the address, it was not even touched upon by the prosecutor.
BELL J: So there was no question here of the prosecution denying, as it were, the respondent the benefit of the acquittals?
MR BYRNE: No.
BELL J: It was a forensic decision of defence counsel that that evidence be placed before the jury.
MR BYRNE: That is so. Might I underline the point by saying that the position of the prosecutor on the retrial was that the evidence should not be admitted.
KIEFEL CJ: And did so only at the insistence of the defence?
MR BYRNE: That is so.
BELL J: In terms of a point of principle, Mr Byrne, you contend that, in a circumstance in which the prosecution has not sought to deny the accused the benefit of an acquittal, where the evidence is before the jury wholly in consequence of the insistence of the defence and where the jury are informed that they may not use the evidence against the accused, the significance of the forensic choice of counsel was ‑ ‑ ‑
MR BYRNE: Paramount, may I submit.
BELL J: Yes. And, in that respect, you say that the decision of the Victorian Court of Appeal in, is it, Ulutuiv The Queen (2014) 41 VR 676 at paragraph [57] states the position correctly in relation to any suggestion of a failure to give the benefit of an acquittal to an accused.
MR BYRNE: That is my submission, yes.
KIEFEL CJ: We might hear from the respondent, thank you, Mr Byrne. Yes, Mr Callaghan.
MR BYRNE: If it please.
MR CALLAGHAN: We would begin with the perhaps trite observation that this is a Crown application. At footnote 3 of our argument we have cited the authorities that would have it that the discretion to grant the Crown special leave in an application of this kind is to be exercised sparingly. That principle, we say, invites close scrutiny of the questions or the points of principle which are said to arise. If you go to application book 82, where the first of those is identified, at paragraph 3 of the applicant’s outline, we submit that this question as framed does not in fact arise.
The question of what frames a direction to a jury will always be determined by the circumstances of the case, but the effect of the decision or otherwise of counsel is not something which should affect objectively the content of the directions. Directions are for the jury and they are calculated to avoid a miscarriage of justice. The jury does not know whether there was a tactical decision or not.
BELL J: Mr Callaghan, here, as I understand the Court of Appeal’s analysis, no application was made for a redirection. The issue became one of whether a miscarriage of justice had occurred by reason of the failure to give, as it were, the balance of the direction.
MR CALLAGHAN: Yes.
BELL J: What we are concerned with is an issue as to the correctness or otherwise of a conclusion that a trial has miscarried in consequence, on one view, of the forensic decisions made by the defence.
MR CALLAGHAN: Or in consequence, on another view, of the absence to give a direction which was calculated to avoid a miscarriage of justice. How that came to be – once the tactical decisions were made, once the evidence was in, the evidence was there and the directions had to be framed. If there is one proposition, we submit, that can be distilled from all the many authorities to which you have been referred, it is this. Perhaps in sequence, if evidence of acquitted conduct is admitted in a criminal trial and if there is a logical connection between that and the issue for determination then the jury has to be told something. What they have to be told has to be calculated by reference to the circumstances of the case.
KIEFEL CJ: Including tactical decisions?
MR CALLAGHAN: Regard can be had to it, but whether or not that is going to affect the question as to whether the directions ‑ ‑ ‑
KIEFEL CJ: You say it is only one factor?
MR CALLAGHAN: It almost ceases to be a factor once the evidence was in.
KIEFEL CJ: The direction here would have to be, you say, that the respondent was acquitted of those charges?
MR CALLAGHAN: No, the direction here ought to have been as suggested by the Court of Appeal. It has gone on, I think, as your Honour Justice Bell suggested ‑ ‑ ‑
BELL J: And dealt with the circumstance that if the jury were to consider that the complainant’s evidence of those two incidents was ‑ if they accepted her on that then they must nonetheless put that out of their minds.
MR CALLAGHAN: Yes, and that possibility is acknowledged by the applicant, the possibility that they would have accepted that evidence and used it to buttress the complainant’s credibility and thereby deprive the respondent of the full benefit of his acquittal.
BELL J: The Victorian Court of Appeal, as I read that decision in Ulutui, considered that in that event – that is, even if there were a risk that the jury might draw some inference adverse to the accused from evidence that included the conduct the subject of the acquittal – in circumstances where that evidence was before them as the result of a forensic decision by the defence, that was a forensic risk to be borne. Is that a fair way of characterising the analysis?
MR CALLAGHAN: In the circumstances of that case. Can I take you to that case ‑ ‑ ‑
BELL J: Yes.
MR CALLAGHAN: ‑ ‑ ‑ and to the top of page 687, where I think in one sentence the difference between that case and this is laid bare. It was not a case in which there was any inherent inconsistency between the prior acquittal, or the acquitted conduct, and the evidence of the offences charged. They were, in Venn diagram terms, separate circles, whereas here there is a very clear and obvious connection between the acquitted conduct and the charged conduct inasmuch as it was all from the one source, which was the complainant herself.
I would respectfully submit that the effect of Ulutui can be confined and it is really of no functional effect to what I submit are the general principles which can be distilled, and that is an example of a case which was considered very much on its own circumstances, as this one had to be, and is therefore, we submit, very much not a vehicle for special leave. This is just a case about directions which were given in particular circumstances and a Court of Appeal’s decision that they were inadequate for the purposes of avoiding a miscarriage of justice.
KIEFEL CJ: You say it was open and that views might differ on the Court of Appeal’s approach but no point of principle is shown?
MR CALLAGHAN: With respect, yes, views might differ on this point, but that is not something, we submit, with which your Honours would be concerned to the extent that you grant special leave to rehash that decision, which was one made in a finely balanced case, on any view of it. The trial judge listed a number of circumstances which made it difficult to accept the complainant’s version. There was a Black direction, there was a request for a reasonable doubt redirection, there was a split verdict – a finely balanced case, and one in which it is possible to say that a further direction, the so‑called second part of the direction, might well have made a difference. There is a reasonable possibility that a miscarriage of justice occurred because it was not given.
BELL J: Mr Callaghan, apart from the evidence relating to the 12 counts in the indictment and the evidence of these two episodes, the subject of the acquittals at the earlier trial, did the complainant give evidence of uncharged sexual misconduct?
MR CALLAGHAN: Yes, and that is discussed by his Honour in the summing‑up in terms with which no complaint could be made. It is at page 21 of the application book ‑ perhaps beginning on page 20. Yes, there was other uncharged conduct and other discreditable conduct – unrelated sexual activity.
BELL J: Yes, but putting to one side the other discreditable conduct, the complainant gave evidence of uncharged acts of sexual misconduct by the respondent.
MR CALLAGHAN: Yes.
BELL J: So the directions here had to cover the use that might be made of the evidence of the uncharged acts of sexual misconduct, distinguish those uncharged acts of sexual misconduct from the two episodes which were the subject of the direction on which this application turns.
MR CALLAGHAN: His Honour purported to do that.
BELL J: Yes.
MR CALLAGHAN: It is complicated, of course, by the fact that charge 1 was a charge of maintaining ‑ where it was charged conduct although not referenced to a particular count, but the answer to all your questions, I think, is yes.
BELL J: To the extent that you rely on the statements in the authorities touching on the need to give an accused the full benefit of an acquittal, those have tended to arise in cases where the prosecution case has been conducted in a way said to trench on that principle.
MR CALLAGHAN: Certainly some of them have. Whether that is a universal ‑ ‑ ‑
BELL J: I am just wondering if you can identify a case where there has been a statement of the principle in circumstances in which the Crown has not made any use of the evidence.
MR CALLAGHAN: Can I just take issue, though, with the proposition about the Crown not making any use of the evidence?
BELL J: Yes, by all means.
MR CALLAGHAN: Perhaps that was not explicit, but the jury were, for example, told at application book 14, line 25 – this is in the summing‑up by the learned trial judge:
Your general assessment of the complainant as a witness will be relevant to all counts –
The acquitted conduct was not excised from the general assessment at that point. The general assessment of her evidence may well have involved reference to her evidence of things which were the subject of charges of which the respondent had been acquitted, and they were told it would be relevant to all counts. So it was open ‑ ‑ ‑
BELL J: Is it accepted that the prosecutor did not invite the jury to have regard to ‑ ‑ ‑
MR CALLAGHAN: It is accepted that was not specifically, but again this whole question of consistency was something which the prosecution did invoke. The prosecutor’s address was referred to in the summing‑up and the prosecutor invited the jury to consider in the Crown’s favour the fact that the complainant had been resolute in denying that she had lied in being consistent. Again, the potential was there for regard to be had to the acquitted conduct in assessing her consistency as well as her inconsistency.
BELL J: That conduct was only before the jury at the request of the defence over the indication by the prosecution that it did not propose to adduce it.
MR CALLAGHAN: Yes. To come back to your questions about the authorities and the different ways in which it might be used, I think we should perhaps look at AJS v The Queen.
BELL J: Yes.
MR CALLAGHAN: It does not directly answer your Honour’s question but that is where the statement of principle can be found, a statement of principle which does not require clarification or revisitation. As I say, the most that you will get out of this case is a chance to consider the circumstances of this case and whether what was said by the Court of Appeal in this case was sufficient or was it something about which reasonable minds might differ. We say fairly clearly in a finely balanced case that the Court of Appeal was right.
I was taking you through the special leave questions and really inviting attention to those questions and to the absence from them of anything which would provide a platform for an argument which would lead to a statement of principle. They do not arise.
BELL J: The first question asks whether the content of a direction designed to give the defendant the full benefit of a previous acquittal is properly influenced by a legitimate forensic decision.
MR CALLAGHAN: That is right, the fact that a forensic decision was noted in the Court of Appeal. It was accepted by everyone that it was a forensic decision and then we move on: what is required in the circumstances of the case and the direction to the jury?
KIEFEL CJ: I take it what you are saying is that the direction which the Court of Appeal identified as necessary, the further direction, does not stand as inconsistent with that forensic decision in any way. There is no disparity between them.
MR CALLAGHAN: No. Once the evidence is in, hypothetically if it had slipped in because the complainant blurted it out, so to speak, and for whatever reason ‑ ‑ ‑
KIEFEL CJ: You would still have to deal with it.
MR CALLAGHAN: ‑ ‑ ‑ you would still have to deal with it. Yes, all right, there might be the option to apply for a mistrial but you cannot compel a defendant to do that. It would still have to be dealt with. It would be dealt with in the way that the Court of Appeal said it should be dealt with, with a full direction giving the respondent the full benefit of the acquittals which he had secured earlier.
We can play around with the hypotheticals – what if it came in with a tactical decision, what if it came in this way, what if it came in that way? It cannot change what was actually required at the end of the trial and it cannot change elementary principles such as those discussed in Dhanhoa or TKWJ about the need to approach these things objectively and to ‑ ‑ ‑
BELL J: It is a question of what amounts to denying an accused the full benefit of an acquittal where the accused has himself sought to have that evidence placed before the jury.
MR CALLAGHAN: Yes. We say, for whatever reason, it was still agreed by all parties in this case that he was entitled to the full benefit of an acquittal. There was no dispute about that. Everyone agrees he was entitled to the full benefit, and there is so much settled principle saying he is entitled to the full benefit. Now, what is the full benefit?
BELL J: Yes, that is the issue.
MR CALLAGHAN: That is a question to be determined by reference to the circumstances of individual cases. What does the full benefit mean in this case? It was decided in this case by the Court of Appeal in a particular way. We say no point of principle arises from the way in which they decided that issue.
BELL J: I understand.
MR CALLAGHAN: I, with respect, apprehend the Court understands the respondent’s position. Unless there is anything further.
BELL J: Yes.
KIEFEL CJ: Yes, thank you. Yes, Mr Byrne.
MR BYRNE: Your Honours have been taken to Ulutui at the top of page 687 for the proposition that this is in a different situation because Ulutui was not a case in which there was any inherent inconsistency between the acquitted conduct and the charged conduct. I do just point out, of course, that the respondent here today was acquitted on five of the 12 counts, and on an unreasonable verdict ground there was no inconsistency found.
That comes, of course, from the fundamental proposition that the jury had to consider the counts individually but could take into account what I will call the flow‑on effect of credit findings, as they were directed that they could. It was always subject to that.
Whilst it is obviously accepted because it is there in black and white that at page 14 of the application book, line 25, the first sentence talks about the jury’s assessment being “relevant to all counts”. That is immediately qualified by what is generally referred to in shorthand terms as a Markuleski direction that deleterious findings of credit may flow on. Importantly, and to underline again a submission I have already made, the reverse proposition was not in the directions to the jury that they could use it to bolster and that is consistent with the usual Markuleski direction.
The concern that was held by the Court of Appeal and by Justice Boddice in giving the lead judgment, which can be found at page 79, paragraph [139], in the last sentence expresses his Honour’s and the court’s concern because the direction given possibly had the effect of:
thereby questioning or discounting the effect of those acquittals, bolstering the complainant’s credibility.
The full benefit of the acquittal must be given, which must be determined in all of the circumstances of the case, but it is not necessarily the case that any incidental finding in a later trial which is inconsistent with the acquittal brings that into doubt. I have cited in the material the passage from Chief Justice Gleeson and Justice Hayne in R v Carroll (2002) 213 CLR 635, page 651, paragraph 50. Can I just briefly read to your Honours:
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.
BELL J: Here one would not describe the complainant’s evidence of these two incidents as being, as it were, incidental; she was giving an account of a series of indecent sexual assaults on her, of which these formed a part in that series. I mean, that is perhaps a rather different point to the point being made in the joint reasons in Carroll.
MR BYRNE: Indeed, but, in my submission, an analogous point to that made in Carroll when one bears in mind the five acquitted counts on the retrial. The jury’s finding of not being satisfied beyond a reasonable doubt did not controvert the convictions, and they were matters on which the jury had to have express consideration. The passage in Carroll continues in the last sentence:
In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.
So it is not the case that the acquittal cannot come under consideration at a later trial. So the possibility – and we say it is non‑existent, or I do, I beg your pardon – that the jury had found or considered that the acquitted conduct had occurred did not matter because of the content of the directions not to use it at all.
BELL J: Mr Callaghan’s point is it has been said more than once that the grant of special leave to appeal from the quashing of a conviction below is exceptional and his essential point is that your three proposed grounds touch on the content of directions in an individual case. How would you distil the point of principle?
MR BYRNE: The point of principle – I do not have it formulated in my head correctly as a ground of appeal or a basis for the special leave but can I approach it this way. It has been recognised that special leave may be granted on a prosecution appeal where there is an error of principle. The Queensland Court of Appeal, although recognising there had been a tactical decision, did so only in passing.
It relied upon the observations of this Court requiring the full benefit of an acquittal in a case where the prosecution relied on the evidence and that puts this into a special case. This Court, since Storey, in the seventies, has had many occasions to consider the effect of a purported miscarriage of justice based on tactical considerations of counsel and it is in light of those developments that the matter is a suitable one for the consideration by this Court, particularly where there stands two different approaches in intermediate appellate courts, one from Victoria and one from this State. Thank you.
KIEFEL CJ: The Court will adjourn for a time to consider the course that it will take.
AT 10.25 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.28 AM:
KIEFEL CJ: This is an application for special leave to appeal by the Crown. We consider that no point of principle has been identified which would justify the grant of leave. Special leave is refused.
AT 10.28 AM THE MATTER WAS CONCLUDED
2
0