Rixon v Thompson

[2009] HCATrans 335

[2009] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M57 of 2009

B e t w e e n -

COREY RIXON

Applicant

and

DETECTIVE SENIOR CONSTABLE MICHAEL THOMPSON

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2009, AT 12.08 PM

Copyright in the High Court of Australia

MR J.P. DICKINSON, SC:   If the Court pleases, I appear with MR J. LAVERY for the applicant. (instructed by Access Law)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS G.T. CANNON, for the respondent.  (instructed by Solicitor for Public Prosecutions)

CRENNAN J:   Yes, Mr Dickinson.

MR DICKINSON:   Your Honour, this application is concerned with the rule against duplicity and the ambit or scope thereof.  It now appears that there is a divergence in relation to the ambit and scope of the rule between intermediate appellate courts and if I can just sketch briefly what I say that is and I will come back to it.

CRENNAN J:   Yes, thank you.

MR DICKINSON:   In Walsh v Tattersall his Honour Justice Kirby reviewed the rule against duplicity and considered that the courts in Australia and the courts in England had diverged in the application of the rule.  He was of the view that the English view of it, as expressed in Merriman’s Case, was different to that which was applied in Australia.  The law had diverged.  There was a more relaxed, more pragmatic, more commonsense, less artificial approach in England, but not here and his Honour reviewed the authorities and said whatever the merits of that, the High Court here has always insisted on the strict application of the rule against duplicity.

The matter was then taken up in a number of jurisdictions.  It was taken up initially in Victoria by the case of Heaney where there was a considered judgment of Justice Ashley and he came down on the Merriman side.  When Rixon was decided, it was decided after Heaney and my submission is that the court in Rixon followed Heaney and applied the Merriman approach, the more relaxed, more pragmatic approach. 

BELL J:   Can I take this up with you if it is a convenient point?  Taking, if you like, the view that Justice Kirby’s judgment in Walsh v Tattersall in some respects favoured a stricter approach than that articulated in Merriman, Justice Kirby, in summarising the principles, noted that it will be in individual cases a question of fact and degree whether it is proper to characterise a case as falling within a single transaction analysis and is that not the approach that the Court of Appeal took here?  It seems to me the Court of Appeal was not engaging in an exercise of preferring Merriman over the statement of principles, which is conveniently set out in Justice Kirby’s judgment.  It said this is a finely balanced case, as one might think it is, but ‑ ‑ ‑

MR DICKINSON:   Both Merriman and Justice Kirby in Walsh v Tattersall state the rule, virtually the same rule.  Both say there are exceptions to the rule of two classes, in effect, and both say both the Merriman and the Justice Kirby approach in Walsh v Tattersall, say there are various indicia that you look at to see whether you have the single offence or whether you do not, whether you have multiple offences in the same count.

CRENNAN J:   It is accepted, even if not expressly adverted to, that the single transaction analysis is an exception.

MR DICKINSON:   Yes.  The rule broadly expressed in both Merriman and by Justice Kirby in Walsh v Tattersall is the same or very similar.  The difference is really this and I might just go to Merriman and what Lord Diplock had to say:

The rule against duplicity, viz. that only one offence should be charged in any count of an indictment ‑ ‑ ‑

CRENNAN J:   Where are you reading from, Mr Dickinson?

MR DICKINSON:   I am reading, your Honour, from the applicant’s book of authorities ‑ ‑ ‑

CRENNAN J:   Yes, just what page?

MR DICKINSON:   Page 120.

CRENNAN J:   Thank you, we have that.

MR DICKINSON:   

The rule against duplicity, viz. that only one offence should be charged in any count of an indictment, which is now incorporated in rule 4(1) of Schedule 1 to the Indictments Act 1915, has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence.

So that is what you start with.  You start with “Do the facts in this case constitute one offence”?  That is your starting point.  If you are going to be, as Justice Kirby says, in approaching that first question, if you are going to be relaxed, if you are going to be pragmatic, if you are going to have a disregard of technicality you are going to answer that first question in some cases differently than you would if you applied the Justice Kirby approach, where you apply it strictly.  You put pragmatism to one side ‑ ‑ ‑

BELL J:   Mr Dickinson, how is it suggested that the Court of Appeal said “We will put principle aside”?

MR DICKINSON:   No, not principle, your Honour, it is the application of the rule.

BELL J:   The matter I am taking up with you, Mr Dickinson, is in what I might respectfully characterise as a careful review of the authorities in this area.  The Court of Appeal concluded that these are cases involving questions of fact and degree and when I say these are cases, the court was considering sexual cases where one can break up any sexual activity into numerous suggested assaults or characterise it as one offence of indecent assault and in that context, observing that it was a matter of fact and degree, and reviewing the principles in a comprehensive way, the Court of Appeal concluded it was finely balanced, but it fell the right side of the line.  Now, what is it that you suggest is the error in that analysis?

MR DICKINSON:   The court in Rixon favoured the Merriman approach, rather than the Justice Kirby approach.  So when it came to asking itself the first fundamental question, what constitutes one offence, it had that pragmatic free from technicality approach that Lord Diplock was speaking about in Merriman and that Justice Ashley spoke about in Heaney.  That is in contradistinction to the approach that Justice Kirby says should be taken to that first question.

BELL J:   Mr Dickinson, is there some passage in the judgment of the Court of Appeal that exemplifies what you describe as the Merriman approach, as opposed to the application of the principles stated by Justice Kirby, which the court set out in detail. 

MR DICKINSON:   There is.  Your Honour, the court in Rixon considered all the cases.  At paragraph 61of Rixon ‑ ‑ ‑

BELL J:   This was the Court’s analysis of the decision of the New South Wales Court of Criminal Appeal in Khouzame.

MR DICKINSON:   Yes.  Now, if I can take your Honour to page 37, sorry, of the application book.  Justice Ashley there had considered, prior to page 37 the analysis that Justice Kirby had made in Walsh v Tattersall.  The court noted that the analysis by Justice Ashley in Heaney was that Justice Kirby’s opinion was a “singular opinion” and went on to say that Khouzame ‑ ‑ ‑

BELL J:   I am sorry what paragraph are you at, Mr Dickinson?

MR DICKINSON:   I am at page 37 of the application book, your Honour, paragraph 59.  The court then in Rixon went on to consider Khouzame & Saliba ‑ ‑ ‑

BELL J:   It is to be noted that the court in this case, after observing that in Heaney there had been the reference to Justice Kirby’s decision being that of one Justice of the Court, went on to say:

Nonetheless, it represents a most helpful analysis of what might otherwise be seen as nothing but a wilderness of single instances.

MR DICKINSON:   That is right, your Honour.  There is no doubt that they found Justice Kirby’s analysis helpful in terms of trying to find where that line is between the singular offence and where you have multiple offences.  But ultimately at pages 39 and 40 of the application book they approved of what Justice Ashley had to say in Heaney when he made reference to the statement of the rule of Lord Diplock in Merriman.  At the bottom of page 40 in paragraph 72 the court went on to say:

Ashley JA then went on to consider Walsh v Tattersall.  After referring to what might be described as the strict approach to duplicity taken by Kirby J in that case, his Honour noted that Kirby J was in a minority on that issue.

CRENNAN J:   Then the findings are summarised at line 4 and onwards at page 41:

It is sufficient to note that the authorities all seem to say that the question whether a charge encompasses a single criminal activity, or a series of separate offences, is regarded as one of fact and degree.

MR DICKINSON:   That is, without doubt, but you still have to go back to that first question - what approach do you take, what scope or what ambit do you give the rule in deciding whether it is one offence?

BELL J:   In the context of a charge such as indecent assault, it will frequently be that there are a number of physical actions which can be embraced within one charge or which can be analysed as separate acts and that is where the significance of the consideration of fact and degree in a given case comes in.  The real issue is what question of principle arises from this careful review of the authorities made by the Court of Appeal in this instance?

MR DICKINSON:   Your Honour, if I could take your Honour to page 42, paragraph 78 of the judgment in Rixon one can see exemplified here the difference, the practical difference that it makes to an outcome of a decision as to whether it is one offence or not, at least, as it was seen by the Court there, or the parties to it.  The Court said:

Once again, both parties sought to rely upon Heaney before us.  The appellant submitted that, although both duplicity and uncertainty had been rejected in that case, the facts were plainly distinguishable.

It goes on to talk about the wounds but importantly –

The respondent submitted that Heaney reflected a more pragmatic and less strict approach to duplicity than that endorsed by Kirby J in Walsh v Tattersall.

Now, that is really the point I am making.  There is a difference in the approach and in Rixon’s Case the respondent, the DPP, relied upon that difference to try and persuade the Court that it was one offence because you come to a different answer to the question, was it one offence depending on the ambit or the scope you give to the rule.  If you give it the relaxed “free of technicality” approach, as described by Justice Kirby in Walsh v Tattersall, in some cases you will come to a different answer to the question is it one offence or is it more than one offence?

CRENNAN J:   Well, here, after acknowledging that this case was finely balanced, the court went on then to set out the reasons why it was appropriate that this case fell within the single transaction analysis which, of course, had been recognised by Justice Ashley in Heaney.

MR DICKINSON:   And recognised by Justice Kirby as well as being one of the exceptions to the rule. 

CRENNAN J:   In other words you accept it is a question of fact and degree and this Court went through the process of considering what was relevant to finding ultimately that it was a single transaction analysis, after having recognised that it was finely balanced.

MR DICKINSON:   Again, your Honour, I come back to what I said before.  It is your approach to that question which, in some instances, will determine the answer.  The Merriman approach in a line ball case as the court said this was will give you one answer.  The Justice Kirby approach may give you a different answer.  If you are going to be practical, if you are going to be relaxed, if you are going to be pragmatic in a finely balanced case you may come down on the side of Lord Diplock in Merriman and say, “Well, it is one offence.  It is fine to charge her that way”.  But if you are going to follow Justice Kirby’s approach you will come down or you may come down in a given case and my submission is in this case you would.  You would come down on the other side.

At the moment you have the Court of Appeal in this case saying that the correct approach is, in effect, the Merriman approach.  You have the Court of Criminal Appeal in New South Wales saying no, the correct approach is that as laid out by Justice Kirby in Walsh v Tattersall.  So you have this difference.  So that is the point of principle in the case.

It is also submitted that if that not be right, if there not be a point of principle, as I have been outlining, there is another important matter as to the administration of justice which devolves from the way the Court of Appeal held in this case.  In my submission, the Court of Appeal was just plain wrong in saying that this was a single transaction.  If it did have the principle right then there has been a very erroneous application of the principle to the facts of this case.  If I can just remind your Honours of the facts of the case.  A young boy comes to the house ‑ ‑ ‑

BELL J:   At about 6.30 pm.  There are then several hours before he has returned home in the car.

MR DICKINSON:   That is right.  He gets home maybe at around about 10.30 it seems.  He arrives about six or 6.30.  There is some activity at a computer desk, which is in the lounge room.  It goes on for some time. 

BELL J:   Let us assume that the charge had particularised the single act of fondling the penis of the defendant.  The earlier activity, sometimes characterised as grooming, would have been admissible in support of the prosecution, would it not?

MR DICKINSON:   Well, it would have been arguably admissible, but counsel would have had an opportunity to make submissions as to whether it was or it was not and that was not available.  If uncharged acts were going to be led in support of a count that only alleged the masturbation, then you may have some serious debate as to what is admissible in support of that particular count.  Certainly what happened afterwards, for instance, the activity in the car you think would be highly unlikely to be admissible in furtherance of that count. So you do have those important issues of possible prejudice by rolling up these events.

But just going back to what I was saying you have some activity taking place shortly after six or 6.30 at the computer.  We do not know how long that goes for, apparently not all that long.  They move to the couch there is some more – call it fondling, caressing or the like and then you have what must be considered a break, because you have Rixon then going to his bedroom by himself.  He is doing something at the cupboards there to start

with and at some point after that he is followed in by the complainant and they end up on the bed and there is a bit more fondling.  They then go back out and this is now hours later, it seems, because the only other time they have ‑ ‑ ‑

BELL J:   These factual matters with which I think you can assume we are familiar were the reasons that the Court of Appeal characterised this as a finely balanced case, Mr Dickinson.

MR DICKINSON:   Yes.  I will not hammer the point, your Honour.  But the first two aspects of the charge – and, of course, your Honours will be aware that the legislation is a prescription against an indecent act, the way it is worded.  Here we have three.  The first two alleged require some activity by the defendant – that is the kissing, that is the fondling.  The third is really a passive, allowing the complainant to perform an act upon him, so very different in kind, in my submission.

So for that reason again, in my submission, the Court of Appeal, if they did apply the right test, have come up with the wrong answer on the facts of this case and there has been one, a miscarriage of justice in the case of Mr Rixon.  But more importantly if other courts are going to apply the law to facts in the same fashion as the Court of Appeal, in my submission, they will come up with the wrong answer and the Court of Appeal is in error in the result in its conclusion in applying the law to the facts of this case and that has ramifications in this State and elsewhere.

CRENNAN J:   Thank you, Mr Dickinson.  We will not trouble you, Mr McArdle.

We see no reason to doubt the correctness of the conclusions of the Court of Appeal of Victoria.  Moreover, the interests of justice do not require a grant of special leave to appeal.  Special leave is refused.

MR DICKINSON:   If the Court pleases.

AT 12.31 PM THE MATTER WAS CONCLUDED