R v The Queen

[2006] HCATrans 347

[2006] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B106 of 2005

B e t w e e n -

R

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2006, AT 4.21 PM

Copyright in the High Court of Australia

MR P.E. SMITH:   Your Honours, I appear for the applicant, may it please.  (instructed by A.W. Bale & Son)

MR C.W. HEATON:   I appear for the respondent, may it please the Court.  (instructed by the Director of Public Prosecutions (Queensland))

HAYNE J:   Yes, Mr Smith.

MR SMITH:   Your Honour, the matter is out of time.  We would need leave to appeal because of that.  At page 113 of the application book at about line 30, the reasons given for the late application for special leave are given.  In essence, after Mr R’s appeal was dismissed he engaged a private investigator to investigate these allegations of violence.  Statements were taken.  He lodged an application for a pardon in August 2004.  That was refused.  In late 2005, he was able to gain funding to come to this Court and that is why he is late.  My submission is that your Honours may wish to consider the merits of the leave applications being relevant to the time issue as well – that is really my submission.

HAYNE J:   Yes, if you go on with the substance of the application, Mr Smith. 

MR SMITH:   Thank you, your Honour.  Your Honour, the three issues the applicant wishes to raise are firstly the extent to which a trial judge in a criminal trial in Australia can read the Magistrates Court depositions and then advise the prosecution as to what evidence to lead.

HEYDON J:   This is a complaint about the conduct of the first trial judge?

MR SMITH:   No, that is part of it, your Honour, but ‑ ‑ ‑

HEYDON J:   Are you talking about the second trial at the end of the cross‑examination?

MR SMITH:   Precisely, your Honour.

HEYDON J:   Yes, I see.  Thank you.

MR SMITH:   I think the problem with any argument about the first trial is that it ended effectively so we moved onto the second trial.  After Mr Fraser, defence counsel, had cross‑examined, his Honour then pointed out to the prosecutor that paragraph 54 of the statement given by the complainant should be considered by the prosecutor which related to specific acts of violence.  The way in which that came about was that Mr Fraser had put specifically to the complainant that any violence in the household was as a result of domestic discipline.  Apparently there had been an agreement with the prosecutor that he should put that question to comply with Browne v Dunn principles.

So he put that question and his Honour then told the prosecutor to think about – and I am referring to at about page 110…..of the application book – paragraphs [53], [54] and [63] which related to specific acts of violence not only upon the complainant but on Tracy, another sister, who apparently had been beaten for smoking at school or something like that.  His Honour, after objection, ruled and a number of points can be made about this ruling.  His Honour’s ruling was the reason the evidence could be led was because defence counsel had put this proposition.  His Honour did not refer to any specific issues in the trial which rendered the evidence admissible merely ‑ ‑ ‑

HAYNE J:   Why was not the question of violence relevant to the issues of rape?

MR SMITH:   Because the defence case was at all material times no sexual contact occurred.

HAYNE J:   I understand that, but it was still for the Crown to demonstrate, was it not, that there was sexual intercourse without consent?

MR SMITH:   It certainly was, but the problem with the ruling by his Honour was he had already told the prosecutor to lead the evidence before the ruling so, in effect, procedural fairness was denied because the mind had been made up.  Secondly, his Honour in the ruling at that stage gave no consideration to whether it was prejudicial in comparison to its probative effect as to whether the evidence of acts of violence on other sisters should be led.  Your Honours, in the cases I have filed with the Court, it seems certainly intermediate appellate courts are quite firm that the prejudice of uncharged acts, in particular acts of violence in sexual cases, should be firmly considered before rulings are made.  In this instance, that was not even considered by his Honour. 

So, whilst it might be right that strictly speaking it may have been admissible to an issue not really in dispute – although, I accept, your Honour, that directions ultimately had to be given about lack of consent or consent which were given in this case - consideration should have been given to the prejudicial aspects about evidence of assaults on Tracy, a witness not even called by the prosecution in this matter.  Bearing in mind, this is right at the end of Mr Fraser’s cross-examination, and then numerous acts of violence were led after that point.

HAYNE J:   Can I just understand the position.  At the point when the cross‑examination is finished, the position before the jury is that the accused man acknowledges physical acts against the complainant ‑ ‑ ‑

MR SMITH:   They were disputed, your Honour.

HAYNE J:   No, physical acts constituting parental chastisement?

MR SMITH:   Implicit in the question, I would agree with that.

HAYNE J:   And the complainant’s version of events included, did it not, that she was in fear of the accused man?

MR SMITH:   I do not know whether she went as far as that, but certainly by inference one could reach that conclusion.  But, accepting that for the moment, your Honour, the difficulty then became the prosecutor fortified, no doubt, by his Honour’s rulings was allowed to adduce evidence of assaults on Deborah and there was no evidence the complainant knew about those assaults.  For example, Deborah gave evidence she could not play netball for some time because of a sore shoulder.  In the final address, for example, the prosecutor referred to the “reign of terror” in this household.  So even though strictly speaking, and I do not concede for one moment the Deborah or Tracy incidents are admissible, but if by some chance they were, the trial did become hijacked by the advice on evidence given by the trial judge to the prosecutor contrary to what agreement had been reached between counsel before that point.

In my submission, your Honours, the special leave question here is the extent to which a trial judge, in Queensland at least, can look at the depositions and give the advice - or in this case the error I identify in the Court of Appeal’s decision, in essence, is that the Court ought to have identified that the trial judge did not consider the prejudice associated with this evidence in light of the real issues in disputing the trial.  So really, your Honours, they were the arguments I had about the first point. 

My second point, really, was the admissibility question, but I think I have already debated that during argument today.  I think the ruling by his Honour flows on to whether the evidence of acts of violence in this case, particularly on other sisters, was admissible.  I have referred in my authorities to Attwood’s Case, Festa’s Case, Justice McHugh’s decision, specifically on that point, and the strong statements made by the New South Wales Court of Criminal Appeal in Marsh and the South Australian Court in Mustafa, which are on my authorities.

The final point really relates to the Longman direction and I have set forth the arguments concerning that in the summary of argument at

page 112 of the applicant’s summary.  In essence, the argument is that before the direction was given it was, in effect, undermined by the trial judge in that his Honour seemed to provide directions - this is about line 15 or thereabouts at page 112 – that one could forgive the complainant’s evidence in light of the delay but then the delay question really ought be directed upon favourably to an accused in terms of the Longman principle; so that is really my argument concerning that.

Your Honours, in conclusion, my submission is the trial went off the rails here and the jury was most likely, or at least this Court could not be satisfied the jury was not impermissibly inflamed against my client which commenced because the trial judge took on the role of mentor to the prosecutor in front of the jury and this is inconsistent with the concept of a fair trial.  Thank you, your Honours.

HAYNE J:   Yes, thank you, Mr Smith.  Mr Heaton, we will not trouble you.

It is not arguable that there has been a miscarriage of justice in this matter.  Special leave to appeal is refused.

The Court will adjourn to 1 August 2006 in Canberra.

AT 4.31 PM THE MATTER WAS CONCLUDED