Robinson v The Queen

[2000] HCATrans 533

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2000

B e t w e e n -

DENNIS NOEL ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT 10.46 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If the Court please, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honour, there was a small delay in the application for leave to appeal and I seek an extension of time in relation to that.

GLEESON CJ:   Is that opposed, Mr Ellis?

MR ELLIS:   No, your Honour.

GLEESON CJ:   Yes, you have that.

MR ODGERS:   Yes.  Your Honours, this was a curious case.  As your Honours will appreciate, at the trial there were four counts of sexual assault, indecent assault and sexual intercourse.  There were guilty verdicts on the first three counts and not guilty on the fourth.  In the Court of Criminal Appeal Justice Fitzgerald, the presiding judge, applied the principles in Jones and concluded that in circumstances where there was no corroboration on any of the counts a very long delay of, I think, 13 years - the not guilty verdict on count 4 meant that there was at least a doubt as to the general credibility of the complainant and in the absence of corroboration on the other counts that meant that they must be regarded as unsafe or unreasonable.

Justice Barr followed an entirely different process of reasoning and thought it was highly probable that the jury compromised and he, accordingly, ordered a retrial on the first three counts, and he appears to have applied the principles in MacKenzie.  Justice Smart agreed with Justice Fitzgerald that there was no compromise.  He agreed with Justice Fitzgerald that the jury agreed in having a doubt about the complainant’s account in relation to the fourth count and he said that the account was, at one stage, extraordinary.  But, he distinguished Jones on the basis that while the account on count 4 was, to say the least, he said, implausible, the accounts regarding the first three counts were not implausible.  While count 4 needed corroboration, he said, the first three did not.

We submit that that is the first error we point to.  We submit it cannot be right that the mere plausibility of the first three counts can be enough to overcome the inevitable flow-on effect of the doubt arising from

count 4 regarding the general credibility of the complainant, where there is no corroboration, as I say, of any of the counts.  I should point out that the jury were not directed in any way to take into account any doubt regarding credibility on one count in relation to other counts.  They were directed in the standard way to look at the counts separately.  That is what we say is the first error in Justice Smart’s reasoning.

The next error we point to is to be found at page 100 of the application book and if I could just ask your Honours to look at that.  Justice Smart, up to this point in his judgment, had made it clear that on his view the appeal should be dismissed, so one had a situation where Justice Fitzgerald would allow the appeal and enter verdicts of acquittal, Justice Barr would allow the appeal and order new trials, Acting Justice Smart would have dismissed the appeal entirely.  As he said there:

I am conscious of the contrary views of my brothers…..To achieve a result I withdraw my reasons for judgment and concur in the orders proposed by Barr J.

We submit that the absence of any reasons is itself an error, in the circumstances justifying a grant of special leave, but in any event, it is our submission that viewing the judgment of Justice Smart objectively the inescapable conclusion is that he followed Justice Barr simply because Justice Barr’s proposed orders were closer to those that he had proposed.

GLEESON CJ:   Now, what is wrong with that?

MR ODGERS:   We submit that a judge should ‑ ‑ ‑

GLEESON CJ:   If I might say, it seems to me, tentatively, at the moment that if there is a special leave point in this case that is it.

MR ODGERS:   Yes.

GLEESON CJ:   What is wrong with what he did there?

MR ODGERS:   We submit that this is precisely the kind of situation where section 21A(2) of the Criminal Appeal Act indicates how a judge should proceed.  On one view of it that provision was directly applicable.  On one view.  Can I take your Honours to that?

GLEESON CJ:   Yes, please.

MR ODGERS:   I do not know if your Honours have the Criminal Appeal Act.  I have extracted the relevant provision at 110 of the application book.  It is at line 25 of the application book:

If the judges present are equally divided in opinion, the decision of the court is to be in accordance with the opinion of the Chief Justice or other judge presiding.

GLEESON CJ:   But they were not equally divided in opinion.

MR ODGERS:   Well, your Honour, with respect, in substance they were.  As I have said, you had three different opinions.

GLEESON CJ:   No.  In some systems of justice, Mr Odgers, of which the French is an example, in a collegiate court all that issues is one collegiate opinion and, indeed, the individual members of that court take an oath that they will not reveal their individual views.  The majority, if there is a majority, prevails and one opinion with no provision for dissent issues.  Now, we have a different system, but surely what a statutory provision like this operates on is the ultimate decision rather than the process of reasoning leading up to that decision.  I would have thought that in the present case if Justice Smart had not taken the course that he took and had simply gone ahead to say, “I propose that the appeals should be dismissed” then there would have been nothing for this section to operate on because the judges were not equally divided in opinion.

MR ODGERS:   I see the force of that, your Honour.  I recognise that I am trying to use the provision not on the basis that it certainly provides guidance as to how a judge and perhaps a junior judge on an appeal should proceed.

CALLINAN J:   Your arguing by analogy, really.

MR ODGERS:   I am, primarily.  Yes, I think that it is true to say that I am retreating somewhat from the strong proposition I advanced.

GLEESON CJ:   But what you are really say is that the junior judge should have fallen in with the opinion of the presiding judge, on a three-judge court.

MR ODGERS:   I am, yes, your Honour.

GLEESON CJ:   It would be impossible for a three-judge court to be equally divided in opinion, would it not?

MR ODGERS:   Well, it depends, with respect, your Honour.  I did put the argument that you can have a pie with three segments and, in a sense - there is equality there, they are going in three different directions, and in a sense, there is equality – one third each, if I might use an analogy - but it is not a split down the middle, that is true.  Certainly, I do suggest that there is analogy and in the written submissions I ‑ ‑ ‑

GLEESON CJ:   But once you acknowledge that this section does not apply in its terms what is there in either convention or legal principle or common sense that dictates that if the junior judge has to yield to somebody he or she will yield to the presiding judge?

MR ODGERS:   Well, your Honour, initially in the written submissions I had put that there appeared to be a convention in the Court of Appeal of New South Wales and the Crown has correctly pointed out that those cases do not really establish the convention I had suggested.  I think the answer is it seems to be somewhat unclear and, indeed, I would submit that is an appropriate basis for a grant of special leave.

McHUGH J:   Well, another part of the answer is, you can please yourself to whom you will yield, which is what Justice Smart did.  He had a choice between yielding to Justice Fitzgerald or yielding to Justice Barr – I would like an opportunity to rephrase that expression at some stage – and he decided to go with Justice Barr.

MR ODGERS:   I appreciate that, your Honour.  We submit that there should be some clarification of the appropriate principles that a junior judge or, indeed, any member of a Court of Appeal should follow in circumstances such as this.  It is an issue that arises occasionally and, with respect, if there is no convention and if there is no guidance from the High Court then it is inevitable that one will see a variety of approaches taken.

CALLINAN J:   I have got a more fundamental problem, Mr Odgers, before you even get to that.  I find myself very persuasive what Acting Justice Smart said at paragraph 115 on page 99 so that even if you were to get special leave it would seem to me that you might have a great deal of difficulty in persuading a Full Court.

MR ODGERS:   Well, your Honour, that is why I began as I did because I submitted that there was an error.

CALLINAN J:   I understood that, but the facts were entirely different.  There were all sorts of different circumstances and indeed there were all sorts of bases, it seemed to me, upon which the jury could distinguish this charge from the others.

MR ODGERS:   Your Honour, if I might put a hypothetical situation.  One might contemplate two counts, two alleged sexual assaults by the same person, without corroboration.  The first count, on its face, plausible, nothing unusual about it.  The second count, “Well, he came out of a flying saucer and then he and other aliens engaged in sexual activities”.  With respect, your Honour, it would be an odd circumstance to say that the first – and the verdict was guilty on the first, not guilty on the second.  It would, with respect, be a questionable logic to say that the first stands because it was plausible.  With respect, that is the process of reasoning which Justice Smart has adopted.

CALLINAN J:   Well, the jury thought it was a lot more than plausible.

MR ODGERS:   Well, your Honour, we do not know what the jury thought.  That is one of the difficulties in situations such as this.  It may well have been that the jury engaged in precisely the reasoning that I have just described which is to say, “We do not believe the accused.  We think that the account given on the first three counts is plausible but not the last”.  But, with respect, your Honour, Jones stands for the very important proposition that you must take into account the effect on credibility of the doubt you have on the other count and apply that to the first counts and as Jones said, in the absence of corroboration and in great delay, as there was in Jones, the inescapable, with respect, conclusion is that the other counts are unsafe.  That is all I can say to try to dissuade your Honour from the view you have expressed.

We do submit that Justice Smart erred in the approach he took in that regard and that his approach was inconsistent with what the High Court said in Jones.  We submit that there is a question about how one reconciles Jones and MacKenzie.  We submit that there is a real question that arises from this application as to how judges should resolve what appear to be clear conflicts as to what orders are to be made.  We submit that Justice Smart erred in failing to provide reasons and we submit that this Court should provide some guidance to appeal judges confronted by this, and, with respect, it cannot be good enough to simply say, “Well, do whatever you feel like.  Look, justice should be justice according to law”.

Section 21A of the Criminal Appeal Act, while it may not be directly applicable, does indicate a way of providing a consistent solution to these kinds of dilemmas.  We submit that the High Court should look at that and, if necessary, determine for itself an appropriate answer.

GLEESON CJ:   But that section is not intended to produce the result that where you have anything other than a precisely equal division on a court which would usually only arise where you have a court consisting of an

even number of members the view of the presiding judge is to prevail, it is just a way of solving a deadlock.

MR ODGERS:   Yes, I see the force of that, your Honour, and it may well be that the drafters of that provision, the legislature, did not anticipate this particular problem, but, nevertheless, it is a problem that does arise from time to time and members of appeal courts do come up with different solutions to the problem.  Sometimes a junior judge yields, sometimes presiding judge says, “Well, I think I will do this”.

GLEESON CJ:   It has never been my experience that the views of the presiding judge receive any particular deference.

MR ODGERS:   Perhaps not, although I think in one of the cases, Woolworths, it was Justice Kirby who was the presiding judge in the Court of Appeal effectively deferred – not deferred – that is probably not the right word, but chose to agree with one of the other members of the Court of Appeal in order to achieve a result.  I have submitted that – to return to the very question your Honour the Chief Justice put to me before that if one followed the reasoning through of Justice Smart, his reasoning was almost identical with that of Justice Fitzgerald until you got to the final hurdle which is the hurdle that Justice Callinan has referred to here which is – Justice Fitzgerald applied what I have called the Jones analysis and said, “Well ‑ ‑ ‑

GLEESON CJ:   Yes, but his ultimate opinion as to what the requirements of justice were in the case were much closer.  It was much closer to the opinion of Justice Barr.

MR ODGERS:   Yes, I accept that, your Honour.  Your Honours, I would be at risk of repeating myself if I said any more.

GLEESON CJ:   Thank you, Mr Odgers.  We do not need to hear you, Mr Ellis.

There were two issues which the applicant sought to raise.  In relation to the first issue, the case turned on the application to the facts of settled principles and there was ample justification for the conclusion reached by Acting Justice Smart and expressed in paragraph 115 of his reasons for judgment.  In relation to the second issue, the statutory provision pointed to by the applicant did not apply in the present case and the Court is of the view that there is no sufficient reason to doubt that the course taken by Acting Justice Smart was open to him to warrant the grant of special leave.  The application is refused.

We will adjourn to reconstitute.

AT 11.03 AM THE MATTER WAS CONCLUDED