RWB v The Queen [2011] HCATrans 34

[2011] HCATrans 34

[2011] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S229 of 2010

B e t w e e n -

RWB

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 3.29 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR R.J. BUTTON, SC.  (instructed by Legal Aid Commission of NSW)

MR D.U. ARNOTT, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application raises questions of general importance regarding the meaning of the terms “miscarriage of justice” and “substantial miscarriage of justice” in the common form appeal provisions.  We also contend that special leave should be granted to ensure that the applicant receives what the Court of Criminal Appeal accepted he was denied, a fair trial.  The court accepted he did not receive a fair trial but, nonetheless, concluded that the appeal should be dismissed.  Justice Simpson considered that, notwithstanding the errors made by the judge in his summing‑up and the conclusion that the applicant did not receive a fair trial, that there was no miscarriage of justice because the evidence in relation to which the comment was made had no significance.  That was the nub of the ruling.  The evidence in relation to which the judge made comment had no significance.

We accept it.  We accept that what I will call “the bottom patting incident”, about which the applicant gave evidence and which had not been put to the complainant in cross‑examination, did not in itself have any real significance in the trial, bearing in mind the fact that defence counsel ultimately did not suggest to the jury that the complainant’s father did sexually abuse her.  However, that was not determinative of whether there was a miscarriage of justice.  If a jury concludes that an accused person has lied on oath in the witness box that is likely to have an impact on the jury’s assessment of the accused’s credibility regardless of the precise topic about which he has lied.

The issue which we submit the Court of Criminal Appeal should have addressed was whether there was significance in the jury being wrongly invited to infer that the applicant was “making it up as he was going along” in his sworn testimony in an attempt to falsely direct blame to the complainant’s father.  The court failed to consider that question at all, either in respect of the issue of whether there was a miscarriage of justice or in the application of the proviso.  If that question had been asked, the answer should be that it was reasonably possible that the jury accepted the Crown Prosecutor’s argument which was substantially endorsed by the trial judge, that is, in essence, the argument that the accused lied on oath to falsely implicate another person.

Plainly enough, if the jury drew that inference, it was reasonably possible that the jury concluded that the applicant had little credibility as a witness and his denials of guilt could safely be rejected.  This raises, we say, the question of general importance whether in applying the proviso the Court of Criminal Appeal should have asked the question as formulated by the High Court in the judgment in Simic, which we have extracted for your Honours at page 141 of the application book. 

BELL J:   Just before you go to Simic, I must say, I had rather understood Justice Simpson, at page 100 of the application book at paragraph 114, to be making the point that since the bottom patting incident was of minimal significance, the jury were likely to reason the fact that the applicant had not told his counsel about it, if that was the inference they drew, was hardly a matter going to his credit.  That is as I understood the way her Honour was putting it.  If that is correct, I am not sure it is right that the court entirely overlooked the matter.

MR ODGERS:   The difficulty I have, your Honour, of course, is that it is not unambiguous what her Honour is saying, so that is one point I have.  But certainly the Crown in their submissions has put an argument not dissimilar to what your Honour has put, so that it is appropriate that I address that, in any event.  The Crown has argued that there was no risk of the jury inferring that the applicant had lied because the possibility that the complainant was sexually abused by her father rather than the applicant had been raised by the defence in cross‑examination of the complainant and in questions asked of the applicant by his counsel.  However, we need to be precise about the attack that the Crown Prosecutor made. 

He made an attack that essentially said, “When I pressed the accused in cross‑examination to come up with specific incidents of such not necessarily abuse by the father, but incidents where the mother had complained about what had happened, he had fabricated an incident, the bottom patting incident, that had never happened.”  That was the nub of the Crown Prosecutor’s argument to the jury and, substantially, I submit, the judge endorsed that argument.  So that it does not really matter whether the bottom patting incident had any significance at the end of the trial in terms of the defence case, given the defence was not alleging that the father did it, what mattered was that the jury was being asked to conclude, with the endorsement of the judge, that when he was actually asked to be specific, he fabricated an incident in order to deflect blame from himself to the father.

With respect, your Honour, I do not know whether Justice Simpson addressed that question at all as to whether or not that might have led the jury to convict in circumstances where they would not have otherwise, which, of course, is our point about Simic, but to the extent that the Crown has argued that it should be concluded that it could not have affected the verdict, we say that is a big conclusion to draw, to be confident that the jury did not reason in that way, to be confident that the jury did not accept the argument that he had lied and then used that to assess his credibility in determining whether or not they accepted or, rather, rejected his denials of guilt.

I should say at this point, another argument that has been advanced not so much in the judgment of Justice Simpson because again, with respect to her Honour, it does not emerge with any clarity, is that the Crown has placed heavy reliance on the fact that defence counsel did not suggest to the complainant that she was never sexually abused by anyone.  There is an element of that in the judgment of Justice Simpson, I accept that.  It is argued by the Crown that the possibility that she was lying or fabricating the evidence that it was the applicant and not someone else was fanciful. 

That ignores the fact that there is nothing odd or unusual about defence counsel suggesting that a complainant is lying or mistaken about her allegations that the accused abused her without positively asserting that she had never been abused by anybody.  After all, the defence, the accused cannot know whether she had ever been sexually abused by anybody, the defence counsel cannot know that, and to not put to her that she was never abused by anybody can hardly be treated as some kind of formal admission that she was abused by someone.  The defence can still rely on a jury having a reasonable doubt about whether she was ever sexually abused and if they are satisfied she was, then having a reasonable doubt as to who it was.

BELL J:   One difference is this, particularly in these cases of historic sexual abuse, if I can use that shorthand.  It is not uncommon to suggest that a person over an interval of many years has come to a view perhaps conscientiously held about events that never occurred.  Now, this was not the attack here.  So I think of some significance to an understanding of the reasoning of each of the justices in the Court of Criminal Appeal in relation to the ultimate conclusion on the proviso was that where there was no suggestion of that character and where the offences were said to have occurred over a lengthy period of time with a person who was known and familiar to her, that was a matter of some significance to the assessment that the individual members of the court each made.

MR ODGERS:   In my submission, ultimately it was a decision made by defence counsel how she ran her case that was the point, but that, with respect, should not affect the application of the proviso.  We know that she was inexperienced.  We know she made mistakes.  The fact that she chose to run it as she did, in the absence of any evidence on the question, should not in an significant way, I respectfully submit, affect how the proviso was to be applied.  At the end of the day this must be seen as a case of word against word.  She said he abused her.  He on oath denied it.  There is no corroboration of any kind.  He has given sworn evidence and we know that the jury has been invited to conclude that on one issue he has been shown to be telling lies.

With respect, and we say that the court did not ask this question, but if the question were to be asked, is it inevitable if the jury had not been misdirected that they would have convicted, the answer must be surely we do not know how the jury reasoned.  They may have reasoned based on a wrong conclusion that he lied on oath.  Therefore, in a word against word case, how can we be confident that the jury would have convicted if that issue had not arisen, if that misdirection had not taken place or, indeed, as we now know, if the jury knew, as we know, that in truth he had told his lawyer before the trial about the very incident that was used to infer that he lied.

So, your Honours, we say if you apply the correct test, the conclusion should certainly arguably and, we say, strongly lead to a result which would say, well, how can we be confident that a jury would inevitably have convicted if this error had not taken place?.  But the question of general importance is that the court appears not to have asked that question.  Now, I appreciate what her Honour Justice Simpson says, there is some ambiguity, but certainly in respect of the proviso there does not seem to be any ambiguity at all.  The test that is applied by her Honour is essentially the test of whether or not “I have a reasonable doubt as to guilt”.  There is no reference in her analysis to the Simic test.  Is there a reasonable possibility that the jury’s verdict may have been different if the error had not been made?

Your Honour, Weiss, with respect, has caused some confusion, particularly in the New South Wales Court of Criminal Appeal but in other jurisdictions around Australia, as to precisely what it holds.  In my submission, it is now reasonably clear that Weiss does not provide an exclusive test for the proviso.  It says you cannot apply the proviso if you have a reasonable doubt, but it is not saying that it is not appropriate to also ask whether there is a reasonable possibility that the jury’s verdict might have been different if the error had not been made.  In AK – I have not put that on the list of authorities – Justices Gummow and Hayne made that clear that Weiss is not saying that you do not ask that question about how the jury might have proceeded if the error had not been made.

In my submission, in a case of word against word without corroboration of a historical sexual abuse occurring 20 years before where the jury is asked to conclude on a relevant matter that the accused has lied, and not just lied but lied to falsely implicate another person, it simply is not possible to be confident that the jury’s verdict would have been different if that error had not taken place.  So we say general importance is, what is a miscarriage of justice, how is the proviso to be applied, and if it was applied properly in this case, it cannot be said confidently, we say, that the jury’s verdict would have been the same. 

I am not sure that there is a lot more that I have to say.  I do perhaps need to say, just in case there is some aspect of what I have just said a moment ago which has not convinced your Honours, I have said that in applying the proviso the court applied what I will call the “Weiss test” without addressing the Simic test.  I have not taken you to Simic.

BELL J:   The Simic test was a test, I think, propounded in relation to a case in which a trial judge, summing‑up to the jury incorrectly states the facts and the court articulated the principle to be applied in that instance by way of distinction to a Driscoll/Mraz type situation where you have a misdirection concerning the law.

MR ODGERS:   Can I just interrupt your Honour?  The point about the Simic situation is, under the Criminal Appeal Act you do not normally have to show a miscarriage of justice because you show one of the preceding – an error, a misdirection of law by a judge.  So if there has been a misdirection of law by a judge, you do not need to show miscarriage of justice.  So Simic was addressing that question.  But, significantly, their Honours said that if the misstatement by the judge might have resulted in the jury’s verdict – without the misstatement, the verdict might have been different.  There is not only a miscarriage of justice, but a substantial miscarriage of justice, that is the first point I would make. 

BELL J:   I think after Simic you get Glennon when the court, on an issue involving a misdirection going to the credibility of the accused in a case where it was word against word, rejected as a general proposition that in such a case one might never apply the proviso.  It just seems to me difficult, having regard to the approach that the court took here which was, I think, consistent with Weiss ‑ ‑ ‑

MR ODGERS:   It is important, I say, with respect, your Honour, no. 

BELL J:   It was not?

MR ODGERS:   If I could just briefly hand up to your Honours AK.  I am sorry about this, your Honours, I had not anticipated I would get into an argument about Weiss.  The important point, your Honour, if I might be so bold is to take your Honours to what Justices Gummow and Hayne said, particularly at page 419, where their Honours at the bottom of the page refer to the relevant statutory provision.  Then over the page at paragraph [42] they said that:

The Court of Appeal was wrong to focus only upon whether that court could conclude from the written record of the evidence properly admitted at trial that the appellant was proved beyond reasonable doubt to be guilty of the offences charged.

Then their Honours on page 422, at paragraph [52] referred to Weiss.  Then in [53] their Honours said “In Weiss” it is left out:

the court identified one circumstance in which the proviso to the common form criminal appeal statute cannot be engaged.  The court said that the proviso cannot be engaged “unless the appellate court is persuaded. that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”.  This negative proposition . . . must not be treated as if it states what suffices to show that no substantial miscarriage has occurred.

Then lastly, your Honour, paragraph [59]:

Where there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there is some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury’s verdict might have been different if the identified error had not occurred.

That is Simic, with respect, your Honour.

BELL J:   I understand that.  Firstly, I think we may be at cross purposes.  I do not understand you to be saying that their Honours misapplied Weiss when they came to it.

MR ODGERS:   I am saying that they have misunderstood Weiss.  Yes, I am submitting that.

BELL J:   All right.  If one goes back a step, as I understand Justice Simpson’s reasoning, for the reasons that I took you to I think partly at paragraph 114 ‑ ‑ ‑

MR ODGERS:   Yes, in relation to whether there was a miscarriage of justice.

BELL J:   The circumstance that the bottom patting episode was of small significance was, as I read her Honour’s judgment, such as to make it unlikely that the suggestion that the appellant had failed to inform his counsel about the matter would have assumed significance.  Now, one might draw something from that conclusion as distinct from some misdirections which might invite a different view.

MR ODGERS:   Well, I have said what I have said about that, your Honour.  I just repeat that, in my submission, it is not at all clear what her Honour is saying there.  Secondly, just because the incident itself was not significant does not mean that the jury would not infer that he had lied.  Crown invited them to draw that inference and explained why the judge endorsed that reasoning and effectively encouraged them to draw that inference.  If that is right, then it is of critical importance to his credibility that he has told lies about anything in the witness box. 

Her Honour Justice Simpson, when she actually turns to the proviso, does not ask the question, might the jury’s verdict have been different.  She just simply says, “I am satisfied of his guilt”, as do the other two members of the court.  They do not address the question.  When I say, the Simic test, in truth, the Simic test is also the traditional test which applies regardless of the nature of the miscarriage of justice, but her Honour and the other members of the court did not apply it.  There is reason, I respectfully submit, to believe that there are some members of Courts of Criminal Appeal around the country who have mistakenly understood Weiss to be precluding that test as being the operative one.  May it please the Court.

HEYDON J:   Yes, thank you, Mr Odgers.  Court will adjourn for a short time to consider the future prospect of this application.

AT 3.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.56 PM:

HEYDON J:   We need not trouble you, Mr Arnott.

Mr Odgers of senior counsel, who appeared for the applicant, submitted that there was doubt in intermediate appellate courts in this country as to the correct method of approaching the proviso in standard form.  We think that when, on the one hand, the reasoning in Weiss is taken into account and, on the other hand, a statement of Justices Gummow and Hayne in AK v Western Australia (2008) 243 ALR 409 at 423, paragraph 59, to which Mr Odgers drew attention, there is no reason for doubt to exist.

In our opinion, if special leave to appeal were granted in this case, the result achieved by the Court of Appeal would not, in fact, be altered because an examination by the court on appeal of the circumstances of the trial would not indicate any error in the conclusion arrived at.  Accordingly, the application for special leave must be dismissed.

The Court adjourns to 10.15 am on Tuesday, 1 March 2011 in Canberra.

AT 3.57 PM THE MATTER WAS CONCLUDED