RWO v The Queen

[2003] HCATrans 280

[2003] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S354 of 2002

B e t w e e n -

RWO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 AUGUST 2003, AT 11.37 AM

Copyright in the High Court of Australia

MR J. PAPPAS:   May it please the Court, I appear for the applicant.  (instructed by J. Pappas, Attorney)

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent with my learned friend, MS F.E. GUY.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Pappas.

MR PAPPAS:   Your Honours, this application was a little over two months out of time.

HAYNE J:   What is the attitude of the respondent, Mr Ellis?

MR ELLIS:   I do not take any issue with that.

HAYNE J:   Yes.  Well, perhaps if we come to the substance of the matter for the moment at least, Mr Pappas.

MR PAPPAS:   Your Honours, the primary judge and the Court of Criminal Appeal each accepted that because of the extraordinary delay in this matter, a delay of some 34 years now going on for 38 years, there would be an infection of the proceedings by prejudicial material, that is, the defendant would be at a disadvantage. 

Both the primary judge and the Court of Criminal Appeal, in fashioning what might be called a prescription for dealing with that infection, in essence, dealt with the symptoms, but not the disease.  I say that, your Honours, because there are some unusual features about this case, the most significant being that for a period of more than 20 years the two victims and other members of their family actively discussed amongst themselves what were said to be sexual assaults undertaken by or carried out by the applicant many years before.  Those discussions were carried on, as I say, for some 20 years before the matter ever was brought to the attention of police.

The result of that, your Honours, was that both the primary judge and the Court of Criminal Appeal accepted that there was a considerable risk of contamination of that evidence, and in each case there was an acceptance that the proper protection of the defendant, in the interests of fairness, was a severing of the indictments, in accordance with the principles in Hoch.

If one accepts that that was necessary in the interests of protecting the defendant from prejudicial reasoning, then the next step in the argument is this.  Because of the passage of years, many years, and because of the very many discussions which were had over those intervening years, and because of the disappearance of evidence which might otherwise have been available to break down by cross‑examination, or test by cross‑examination, the account of the two victims, the defendant was left in a position where he really could have no fair trial, unless he made the decision to abandon the protection of the severed indictment or the protection of the principles in Hoch.

HAYNE J:   I am sorry, I do not follow that last point.  What is the point you are making?

MR PAPPAS:   The point I am making is this, your Honour.  In the interests of a fair trial, both courts accepted that it would be necessary to sever the indictment, so that the evidence of one complainant would not be evidence in the case of the other.

HAYNE J:   Yes.

MR PAPPAS:   In order to demonstrate the contamination of their evidence and the potential for real infection of that evidence of the sort contemplated in Hoch, the only proper way and the only available way in which the defendant can do that would be to abandon the severance – that is, to reintroduce by way of cross‑examination the very material which the court, by implication, accepts would be so prejudicial as to require the severance of the indictment in the first place.  I know it is very circuitous, your Honour, but, to put it in sporting terms, he is snookered.

HAYNE J:   Yes, I understand that, but it is not clear to me yet how it is you say he is snookered.  The two complainants give rise to indictments which now will be severed.

MR PAPPAS:   Yes, apparently.

HAYNE J:   Two sets of complaints, severed trial.  What is the set of circumstances you say will ensue at trial?

MR PAPPAS:   At trial, the only conceivable way in which the defendant could expose, for the purposes of breaking down the account of those complainants, the way in which they discussed and rehearsed their evidence over 20 years before going to the police would be, in fact, to put those propositions to them, that is, to put to them that they had each in turn discussed each with the other, and, indeed, with other members of their family, who made similar complaints of sexual assault by this applicant, including I might say, your Honours, that the mother of each of the complainants and their sisters put to them that those discussions had taken place, so that the jury would be informed again of the very material which was so prejudicial as to require the severance of the indictment in the first place.

It follows, axiomatically, that if it was necessary to sever the indictment in order to protect this man from that prejudicial reasoning process, it was necessary to do it, because there was no proper direction which might be fashioned to constrain the way in which the jury might use that prejudicial material.

HAYNE J:   Now, is this a way in which the matter was put to the Court of Appeal?

MR PAPPAS:   It is, and it was put at both levels, your Honour.

HAYNE J:   Where do we find it in the Court of Appeal reasons?

MR PAPPAS:   Thank you, your Honour – at application book 57 and following.  What the Court of Criminal Appeal, in the end, said about it was that it became a matter of “forensic judgment”.  Your Honours will find that at page 59 of the application book, at about line 28.

CALLINAN J:   But is that not right, Mr Pappas?  By severing the charges, you have the option of how you are going to deal with it.  You have a choice, a choice that you would not have if the indictments were not severed.

MR PAPPAS:   Can I say this, your Honour, without wishing to slip into the colloquial too often.  It is Hobson’s choice, because what you have been given is the protection of the severance of the indictment, because the only way in which you can be immunised from that prejudicial reasoning process is to sever the indictment.

CALLINAN J:   …..wanted sympathy with your client, Mr Pappas.  The trial brought the matter to court so long afterwards.  It does seem to be a case, in any event, where your client has a recollection and does have the means of defending himself.  I know I am going beyond your argument now, getting into the merits, to some extent, but I do not think that is divorced from any consideration that we have to give the case.

MR PAPPAS:   Can I address your Honours, because it is one that has occupied my mind, true it is that this applicant, leaving aside some minor medical problems, has the ability to say, in essence, “I did not do it”.  Now that, your Honours – and I had added to the list of authorities only in the last day or so a Court of Appeal decision of England, R v B – that, in essence, was the situation in that case, where the successful appellant in that case was left in a situation where he could not appropriately answer other than to say, “Well, I did not do it”.

There had been, your Honours, an application for stay of proceedings, which was unsuccessful in that case.  There then followed a trial.  Lord Chief Justice Woolf said, and it seemed to have been accepted by the appellant’s counsel, that that trial was run in an exemplary manner and there was no criticism of any sort which could be levelled at the trial judge in terms of directions to the jury.

Still, in all, the court accepted that by virtue of the passage of years and the loss of avenues of attack upon the complainant’s evidence – and I might pause to add that the Court of Appeal said, in essence, that the complainant was a very credible witness – I can take your Honours to that passage if need be.  The court, in essence, found in the end that the man was deprived of the possibility of properly defending himself.  They adopt the submissions of his counsel, which are summarised at page 205 of the report:

Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, “I have not done it” is virtually no defence at all.

That is reflected in the judgment of the court, as encapsulated in the headnote at (2): 

Because of the delay the appellant was put in an impossible position to defend himself.

Now, in this case, to come back to your Honour’s question, the applicant has memory of some of the contextual matter.  What he has no memory of, and no ability of testing, is to what extent has the memory of these complainants been contaminated by 20 years of constant discussion and rehearsal?  The only possible way he can attack that aspect of the case is to reintroduce this prejudicial material.  That suggested forensic judgment is no judgment at all.  He cannot, in any meaningful sense, reintroduce that matter, because, by virtue of the severance of the indictment and the application of Hoch, it is so prejudicial that no proper direction could be given which would immunise him from the prejudicial use of it.

HAYNE J:   Who sought severance of the indictment?  How did that come about?

MR PAPPAS:   It has not, in fact, yet happened, your Honour.  It has been accepted at all levels; it seems that it will happen.  There was a request in writing from my instructing solicitors to the Director’s office to inquire whether propensity evidence would be relied upon, and that, I think, was answered in the negative.  So I think everyone has proceeded on the assumption – and the Court of Criminal Appeal has certainly proceeded on the assumption – that severance of the indictment would be necessary because of this contamination issue.

CALLINAN J:   You did not make an application, in fact, though, for severance?

MR PAPPAS:   Not at this stage, your Honour, because, really, events have overtaken that.  There was the application before the primary judge, then the appeal, and at this stage it seems to be accepted – and perhaps my friend is in a position to say something about that – it seems to be accepted that the Director would not seek to combine these charges in the one indictment because of these very issues.

HAYNE J:   And would you resist combination?

MR PAPPAS:   Yes, we would.

HAYNE J:   Your preferred position is that there be severance?

MR PAPPAS:   Yes.

HAYNE J:   And you now say that if there is severance, that works a disadvantage to you.  That is the difficulty I have.  Can you address that?

MR PAPPAS:   I will, your Honour.  We say we are, in fact, disadvantaged no matter which way we jump.

CALLINAN J:   So there is less disadvantage this way, because you do have a choice, although you say, on examination, it is not a very good choice.

MR PAPPAS:   It is a non‑existent choice, in reality, your Honour.  That, with great respect to the Court of Criminal Appeal, just avoided the issue.  What we have here is what I have coined a descriptive phrase for, “derivative prejudice”, because the Court of Criminal Appeal and the primary judge effectively examined a whole host of individual aspects of prejudice:  missing evidence, dead witnesses, a township that no longer exists, a home that has been taken away.  There is a whole list.  In each case, the judge and the Court of Criminal Appeal ticked off on those items of prejudice and said, well, that can be dealt with in this way, that is not unusual, witnesses die, et cetera, et cetera.

But when it came to this issue, neither the judge at first instance nor the Court of Criminal Appeal recognised the derivative prejudice and we say, your Honours, prejudice needs to be looked at in a conjunctive, not a disjunctive, way.  That decision in the Court of Appeal in England seems to recognise that, because there was a trial in respect of which there was no complaint – there could be no complaint, apparently – and yet the court said at the end of that trial, by the passage of 30 years – considerably less than our situation – and the loss of the real chance to cross‑examine or defend, the appellant in that case had been deprived of a fair trial, because in Jago, and in other places – but most poignantly in Jago ‑ Chief Justice Mason and others said that the public has no interest in a trial which is not a fair trial.

There are passages in Jago to suggest that when it can be foreseen that the only trial that can be had would be fundamentally unfair, in a manner which cannot be cured – and this is certainly in a manner which cannot be cured – then the overriding interest in the administration of criminal justice is to stay the prosecution.

Now, that, in a nutshell, your Honours, is our point.  It is, when one starts to analyse it, quite circuitous.  There is no way of escaping from the maze.  Once you accept that the severance of the indictment is to avoid prejudice, to say that this man then has a forensic choice, in a way which does not imply fundamental and irremediable prejudice about reintroducing that matter in order to defend himself, proves the proposition.

HAYNE J:   Does it come to this?  Do I understand you to say that you are barred or prevented – practically prevented – from running a case of concoction?

MR PAPPAS:   Or contamination, yes.

HAYNE J:   Well, contamination is a coy way, it seems to me, of alleging concoction, is it not?

MR PAPPAS:   Not necessarily, your Honour.  The authorities certainly seem to make the distinction.

HAYNE J:   Well, contamination or concoction.

MR PAPPAS:   Yes.  Can I add, your Honours, something which seemed to attract the attention of the Court of Appeal in England, but which did not find favour with the Court of Appeal here and in this case.  The rule concerning corroboration in matters of this sort was abolished many years ago.

HAYNE J:   Yes, but if ever there were a case for a Longman warning, surely this is it.

MR PAPPAS:   Of course, that is so.

HAYNE J:   And, in particular, the “dangerous to convict” words so much advanced by counsel for the defendant in many cases.

MR PAPPAS:   Not quite the same as the old‑fashioned corroboration warnings, which would have still applied as late as 14 July 1981, 14 and a half or 16 and a half years after these alleged events.

HAYNE J:   I understand that.

MR PAPPAS:   Now, the result of that is if you end up with the victim, the complainant on oath, the defendant on oath, it is a situation of oath against oath.  The balance is finely struck, and the absence of that corroboration warning may or may not, at the end of the day, have made the difference.  It no longer applies.  Now, the Court of Appeal looked at that and did not, in the end, express a concluded opinion, but it spent two pages of the judgment analysing the absence of that protection, that common law protection, in the context of B’s Case. 

We say it serves no more than to point up and highlight here the very disadvantage that this applicant would be under if he is caught in this loop of prejudice, which cannot be cured by any appropriate direction.  That is why special leave ought to be extended in this case.

There is a minor point, additionally developed in the written material, your Honours, and that is this notion that the proceedings were initiated in the first instance for a collateral purpose.  There is not – I have to be clear about this, your Honours – a lot in that.  It seems that none of these women over more than 21 years had decided to go to the police and make a complaint.  The complaint originated when their recently acquired stepfather took it upon himself to go to the police, and it seems thereafter the complainants complied with the requests of police to provide statements and things of that ilk.

It seems that the motivation for going to the police was some perception that the complainant’s mother was upset because her daughter, that is, the wife of the applicant in this matter, was no longer talking to her, because these matters had been raised with him for the first time, some 34 years after the event.

So there was certainly evidence before the primary judge and the Court of Criminal Appeal that the first approach to police was motivated not by a conscious decision made reluctantly after years of suppression, as it were, of some awful secret from the past that the matter could finally be ventilated, because it had been ventilated ad nauseam for 20‑odd years

within the family.  The thing that motivated the report to the police and instigated these proceedings so long after the event was the perception by the stepfather that his wife was upset with one of her daughters not speaking.

Now, that on its own would not justify a stay.  I am not suggesting that for a moment.  What I am suggesting to your Honours is there is a point at which prejudice of the sort that has been discussed in the cases, such as Jago and other cases, together with even a small amount or a small element of abuse of process can, in combination, justify a stay, a permanent stay.  We say that is something that neither the primary judge nor the Court of Criminal Appeal considered – the way in which those matters ought to be aggregated and weighed in the balance.

HAYNE J:   Thank you, Mr Pappas.  We need not trouble you, Mr Ellis.

The principles to be applied in deciding whether there should be a permanent stay of criminal proceedings are well established.  Those principles have regard to matters including that, at the trial of this applicant, a Longman direction would have to be given.  There are, in our opinion, insufficient prospects of success of an appeal against the decision of the Court of Appeal that the primary judge’s discretion in this case was not shown to have miscarried.

Accordingly, special leave is refused.

AT 11.59 AM THE MATTER WAS CONCLUDED