SBA v The Queen

[2008] HCATrans 77

[2008] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2007

B e t w e e n -

SBA

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B48 of 2007

B e t w e e n -

TP

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIRBY J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 8 FEBRUARY 2008, AT 11.17 AM

Copyright in the High Court of Australia

__________________

MR J.N. CONOMOS:   If the Court pleases, I appear for the applicant, SBA.  (instructed by Lee Turnbull & Co)

MR M.J. COPLEY:   If the Court pleases, I appear for the respondent in both matters.  (instructed by Director of Public Prosecutions (Qld))

MR P.J. DAVIS, SC:   If the Court pleases, I appear with MR J.D. WAGNER for the applicant, TP.  (instructed by Legal Aid Queensland)

KIRBY J:   TP is the female applicant and SBA is the male applicant.  That is correct, is it not?

MR CONOMOS:   The submissions on behalf of the applicant, with great respect, are fairly substantial and complete but Mr Justice Jerrard delivered the leading judgment in the Court of Criminal Appeal and, as set out in the submissions, he captured the vices which were inherent in the trial judge’s conduct in his summing‑up.

KIRBY J:   There is a common point between the female and male applicant, is there not, and that is the complaint about the fact that the judge made certain statements about the husband being present as a support person and that, it is contended, gave support to the credit of the complainant beyond that which the law provides?

MR CONOMOS:    I have captured that in the summary of argument and that is common ground but over and above that the emotive words used by the judge, as captured by Mr Justice Jerrard and also at the applicant’s submissions which completely – and I use this word advisedly – distorted this trial.

KIRBY J:   I understand that submission but is there any other common point between the two applications?

MR CONOMOS:   I was not aware that the other applicant was in fact seeking special leave to appeal so I cannot help you.

KIRBY J:   I see.

MR CONOMOS:   I am instructed by Townsville solicitors whom I have never met, your Honour.  Perhaps that should be answered by other counsel.

KIRBY J:   You have not seen the other application?

MR CONOMOS:   No, not at all.

KIRBY J:   Yes, well, you can take it that that is the principal point of the application by the female applicant.

MR CONOMOS:   Yes.  I have not been privy to that, your Honour, but ours is a more expansive basis upon which we wish to ‑ ‑ ‑

KIRBY J:   Yes, we appreciate that.

MR CONOMOS:   It is quite ironic that when this jury went out at about noon when his Honour completed his summing‑up and they were brought back at 3.23 for redirections ‑ ‑ ‑

KIRBY J:   You are standing away from the microphone and I am not hearing you.

MR CONOMOS:   Can you hear me now, your Honour?

KIRBY J:   Yes, but speak up, please.

MR CONOMOS:   Yes.  Had the jury come back with a verdict before 3.23, according to the reasoning of Mr Justice Jerrard, the appeal to the Court of Criminal Appeal would have been upheld and the convictions quashed and a new trial ordered.  His Honour captures that and I will come to it in a moment in the application book.  

In the summary prepared on behalf of this applicant I have set out fully what Mr Justice Jerrard had to say about the advantage which was given to the Crown case by his Honour’s reasoning and what he had to say in regard to the activities between the two applicants and their attitude towards sexual matters in general. 

There is no doubt, as Mr Justice Jerrard indicated, that that had a profound influence on the jury, however, it is submitted that his Honour Mr Justice Jerrard placed too much emphasis upon the redirections by his Honour to the jury late in the afternoon when, in a series of dot points which one picks up in Mr Justice Jerrard’s judgment, his Honour sought to right the position which had got out of control. 

Of course, the right to ignore is often expressed by judges but each of these cases depends upon its own facts and this case was a blatant attack upon the morals and upon the activities of each of these two applicants by his Honour and there does come a time, as this Court knows, when the position cannot be righted, and this was this case.

The authorities which I have submitted in the application and of which the Court has copies, especially the case in this Court captured in RPS v The Queen (2000) 199 CLR 620, especially at page 637, even though it is obiter dicta, I have repeated it in the applicant’s summary and what that requires of the trial judge is to exercise balance in dealing with matters of this type. It is a warning and the judges of this Court, Justice Gaudron, Justices Gummow, yourself and Justice Hayne, went to great lengths to explain to intermediate courts of appeal and also to judges of first instance what is required and I repeat:

But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it.  Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

That has been a clear instruction since the year 2000 and, with great respect to the trial judge, he disregarded that exhortation, if not warning, given by this Court.  Even though he agreed to redirect, and he did to a certain extent, the time at which the redirection was given – and the summing‑up was a very long summing‑up because it had to be adjourned on the Friday because the other applicant became ill and it went over to the Monday – his Honour’s words went home with the jury on the weekend and they came back with the jury on the Monday.  Therefore, then, those strong words and that disapproval of the conduct of the two applicants was very, very vital in this case.  It could not be righted. 

There does come a point, your Honours, in these cases when in fact the matter gets so out of hand that no amount of instruction by a judicial officer can correct the situation.  This was not a one‑off thing.  This was a smorgasbord of descriptions given by his Honour as to the sexual conduct of the two applicants.  When one looks at some of the authorities in order to gain some factual help, for example, in the Queensland case of Bolic v Judd at ‑ ‑ ‑

KIRBY J:   I do not think we need to be told about the principles.  We know the principles.  It would be more help, if I can say so, for you to concentrate on the case that your client is raising which is essentially that the judge made statements to the jury for which in many particulars there was no evidence whatsoever and the question of whether the direction he thereafter gave at the request of trial counsel sufficiently corrected that.  Justice Jerrard and the other statements that he made which were not based on factual mistakes but were, as you assert, inflammatory and upsetting to the jury and the question then becomes whether Justice Jerrard is right in saying that the redirections sufficiently correct that so that no miscarriage of justice has occurred.  That is the question we have to focus on.

MR CONOMOS:   I do not dissent from that, your Honour, and I am grateful to you.  If I could take you to the application book page 238 ‑ ‑ ‑

KIRBY J:   Just perhaps identify, because we have read the written submissions, but identify by perhaps reading some of the statements what you say are the most inflammatory of the statements made by the trial judge and then we will just have to measure them against what I assume will be Mr Copely’s oral submissions that they were corrected.

MR CONOMOS:   I will go directly to the applicant’s summary of argument, if I may, your Honour.  That is at application book 251.  It is captured in paragraph 9:

“…somewhat exciting or perhaps a ‘turn on’ to have sexual intercourse with a 16 year old female, who in the photographs you might think to him it would appear an attractive 16 year old girl.”

Further down:

“It was the Crown’s submission that it was for sexual gratification on his birthday as a present to him or whatever.”

Then, over the page ‑ ‑ ‑

KIRBY J:   That was not in fact the Crown’s submission, or was it?

MR CONOMOS:   No, it was not the Crown’s submission at all.  He did say it was for sexual gratification but there was no mention of birthday, it just happened to be 4 September.  Then, over the page at 252:

“And it was in effect the gist of the submission from Crown counsel that [the applicant] was in somewhat a little bit of a difficult position to try and explain why he kept those photos if it were not for sexual gratification, and …to get himself out of that somewhat difficult situation he gave an explanation that arguably might have seemed a convenient one or the best at the time, and …in trying to get out of that somewhat difficult situation he shot himself in the foot in relation to this particular matter.”

Further down again:

“..you observed the [applicant] and you might have thought that the answers were not rushed, and that the answers to virtually every question was considered, that possibly in not one answer did he rush into an answer, that you might think – as I said and it is for you and you alone, the answers were considered”.

KIRBY J:   Next is the statement referring to the occupation or previous occupation of the present applicant as a police officer.

MR CONOMOS:   Yes, in New South Wales.  Mr Justice Jerrard picked up on this on 253 where he noted ‑ ‑ ‑

KIRBY J:   His Honour said he would have ordered a retrial if it had just remained there and what was said in the redirection, as it were, neutralised the statements that you have just referred, and there are many more statements.

MR CONOMOS:   The submission, your Honour, is, with great respect, that he had gone too far as it was.  There was another paragraph there to which I should have referred and that is when his Honour at page 253 of the application book, when he was talking about the complaint at paragraph 14, the trial judge commented to the jury that:

“she was seemingly happily married to her husband and she had received the gift of two children” and “it seems as if her husband knows warts and all of what happened.  You observed him sitting in Court as the support person behind her during her days in the witness box before you”.

KIRBY J:   That is the point that the other applicant presses.

MR CONOMOS:   Yes, exactly, your Honour.

HAYNE J:   Can I understand what the issues in this trial were, Mr Conomos, so far as your client was concerned.  It seemed to me there were only three issues alive, one, did the first incident happen and, two, in respect of each of the remaining two charges, whether there was consent, is that right?

MR CONOMOS:   Yes, they were the issues, your Honour.

HAYNE J:   Can I also understand the chronology of events.  The statements of which you complain were part of the directions given on Thursday, 7 September, were they?

MR CONOMOS:   Yes, that was part of the summing‑up, your Honour.

HAYNE J:   And the redirection occurs on Monday, 11 September, is that right?

MR CONOMOS:    In the afternoon.

HAYNE J:   In the afternoon and the jury come back on Tuesday the 12th at about 3.00 pm?

MR CONOMOS:    That is so.

HAYNE J:   Now, in a case in which the issues were as confined as they were – let us leave aside consideration of why the charge was as long as it was – what is the detriment done to your client by the judge’s instructions given the narrowness of the issues that were at stake?

MR CONOMOS:    Your Honour, with respect, the judge’s remarks completely turned the jury away from their task and turned them against this applicant.  They were so colourful, as your Honour well knows, and I say this with unfeigned respect to you, juries do not give reasons, one does not know what motivates juries and in fact comments of this type, particularly in a sexual case, are apt to inflame the considerations that a jury should put in considering whether or not they are satisfied beyond reasonable doubt as to whether the essential elements have been made out.

Your Honour, as is captured in Justice Jerrard’s judgment, this jury sat with the non‑redirections from just after noon until about 3.59 when his Honour had finished redirecting them.

KIEFEL J:   On the other hand, though, Mr Conomos, the redirections were given after his Honour summarised the defence case so that contextually they are possibly put back in the order in which the defence case had been discussed but could I ask you this, the redirections for the most part told the jury, “Ignore the comments I have made in particular about the sexual relationship between the mother and your client, they are irrelevant.  Really, the issue that you have to focus upon is what you think about the story given by the complainant.”  Is not that the effect of the redirections?

MR CONOMOS:    Too late, your Honour, with great respect.

KIEFEL J:   That is your point?

MR CONOMOS:   Exactly.  There comes a time when a redirection of that type, which I have labelled “liberty to ignore”, I do not think I am being novel in putting that in the submission, is too late.

KIRBY J:   Just let me get the chronology.  You answered Justice Hayne, the redirection was given on the Monday, was it?

MR CONOMOS:    In the afternoon.

KIRBY J:   After the jury had had the earlier days and the weekend to ponder on what his Honour was saying to them.

MR CONOMOS:    Yes.

HAYNE J:   They had not been sent out, had they?

MR CONOMOS:    No, they had not been sent out.

HAYNE J:   They were sent out on the Monday.

MR CONOMOS:    Yes.

HAYNE J:   I assume the standard instruction was given to them that you do not start considering your verdict until you are sent out.

MR CONOMOS:    No.  That probably was given to them but in rejoinder to that, your Honour, the situation is they went home with that in their breast.  They did not start considering their verdict until they were together but that went out with them individually over the weekend and then when they were sent out at noon that stayed with them until 3.23 that afternoon when his Honour started his redirections at the request of counsel.  So, even

though your Honour Mr Justice Hayne is quite correct that they were not considering their verdict, they did not go home, as it were, with a blank mind, they would listen to what the trial judge had told them and they had taken that into account.  There is no doubt they remembered that when they came back to deliberate when they were sent out initially at noon.

Your Honours, I notice the time.  I would put with force, if I may, that the redirection was ineffective at the time that it was given and that for that reason the trial had miscarried and that it is in the interests of justice that this Court should send guidelines out again to intermediate courts of appeal and trial judges and magistrates as to what is required.  I thank your Honours.

KIRBY J:   Yes, thank you, Mr Conomos.  Mr Davis, I think we will hear from you first.

MR DAVIS:   Thank you, your Honours.

KIRBY J:   Can I just understand, you only really have the one point, do you not, about the direction concerning the husband of the complainant?

MR DAVIS:   Yes, except to complicate matters this morning I wish to raise another point which is not particularly clear on the face of the outline of argument.  It is a point of pure law and one of which I advised my learned friend late yesterday afternoon.  I understand he is in a position to argue it.  I know that does not alleviate the inconvenience to the Court but ‑ ‑ ‑

KIRBY J:   Just let us know and indicate what the point is.

MR DAVIS:   The point is this, that the trial judge was statutorily obliged in this case to give the direction to the jury mandated by section 21A(8) of the Evidence Act.  Could I take the Court to that section, please?  Could I take the Court to section 21A?

KIRBY J:   Where do we find that?

MR DAVIS:   It should be in the bundle of materials on our list.

KIRBY J:   Yes.

MR DAVIS: In our submission, the first thing to notice about 21A is that it is, in effect, a grant of power to the court. That is evident from section 21A(2). That subsection grants the Court the power to make orders in cases falling within section 21A. Could the Court please note that under section 21A(2)(d) ‑ ‑ ‑

KIRBY J:   This section is actually referred to, is it not, in the reasons of one of the judges in the Court of Appeal, I think perhaps the President?

MR DAVIS:   Yes, your Honour, it is.  It is also referred to in the judgment of Justice Jerrard and it is the judgment of Justice Jerrard to which I wish to refer the Court, but under 21A(2)(d) the court has power to make an order:

that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness –

So, section 21A is a grant of power to the trial court to make orders under 21A(2), including 21A(2)(d).  Can I then please take the Court to page 234 of the application book and in particular could the Court go, please, to paragraph [92] and this is in the judgment of Justice of Appeal Jerrard.

KIEFEL J:   Where are you, Mr Davis?

MR DAVIS:   Page 234 of the application book.

KIRBY J:   This is the application book in your client’s case, TP?

MR DAVIS:   Yes, your Honour.

KIRBY J:   Yes, paragraph [92].  Yes, what is the point?

MR DAVIS:   The point is this, in the second last line on that page your Honours will see “The arrangement” and the reference there is for the support person to be present:

was made under s 5(1) of the Criminal Law (Sexual Offences) Act 1978 (Qld), rather than under s 21A(2) of the Evidence Act 1977 (Qld).

So what Justice Jerrard is there saying, with respect, is that section 5(1) of the Criminal Law (Sexual Offences) Act is a grant of power to the trial court to make an order that there be a support person. If I could then take the Court, please, to section 5 of the Criminal Law (Sexual Offences) Act 1978. What that section does is not grant a power to the court to allow the installation of a support person, what it does is it compels the court to exclude persons from the court room while particular witnesses give their evidence and then there are exceptions to the persons who must be excluded. Could your Honours please see section 5(1)(f). One of the persons who need not be excluded is:

any person whose presence will provide emotional support to the complainant –

That term “emotional support to the complainant” is essentially identical to what is in section 21A(2)(d) of the Evidence Act.  The way the Court of Appeal has interpreted the Criminal Law (Sexual Offences) Act is to say that the Criminal Law (Sexual Offences) Act grants the court a power to allow the installation of a support person and that grant of power is independent of the Evidence Act’s provision and therefore no direction under section 21A(8) of the Evidence Act need be given. 

We submit that that is a fundamental error of law because section 5 of the Criminal Law (Sexual Offences) Act does not authorise the installation of a support person.  That is section 21A of the Evidence Act.  So, we submit that the way the scheme works is this ‑ ‑ ‑

KIRBY J:   But, first of all, the husband would not have been excluded from the room, would he, because he was not a witness or was not in other ways contaminated in any of the exceptional circumstances.  There would be limitations on perhaps where the person could sit and so on but the prima facie rule of exclusion would not apply to the husband, would it?

MR DAVIS:   Yes, it would.

KIRBY J:   Why?

MR DAVIS: Because of section 5(1):

Whilst a complainant is giving evidence in any examination of witnesses or trial, the court shall cause to be excluded from the room in which it is then sitting all persons other than ‑ ‑ ‑

KIRBY J:   So, it is all persons have to be excluded?

MR DAVIS: Yes. So the starting point under section 5 is all persons are excluded except those persons listed or described in section 5(1)(a) through to (8).

KIRBY J:   So this is the Queensland equivalent of what happens in other States where witnesses give evidence of sexual offences by video in the case of children and so on?

MR DAVIS:   Yes.  There are other provisions in the Evidence Act which deal with those things but section 5, your Honour, is limited to excluding the public from the hearing so that the witness will not be embarrassed or intimidated. So, section 5 excludes everyone, except, and then there is a list of persons. One of the class of people are:

any person whose presence will provide emotional support to the complainant  ‑ ‑ ‑

KIRBY J:   You say all that does is provide a non‑exclusion, an exception to the exclusion?

MR DAVIS:   That is so, but the ‑ ‑ ‑

KIRBY J:   And for the purpose identified by Parliament, namely, to provide emotional support?

MR DAVIS:   Yes.

KIRBY J:   So where does this lead?

MR DAVIS: Where it leads is this, that the appointment of that person so the judge’s order that there be a support person is not made under section 5, it is made under section 21A of the Evidence Act.  So the way the scheme works is this, the judge makes an order under 21A of the Evidence Act that there be a ‑ ‑ ‑

KIRBY J:   Yes, we understand this but where is all this leading because you are running out of time and it will be important to get the gist of your other submissions?  What is your short submission because, at the very most, one would think that if the Court of Appeal has made a slip and assigned the wrong Act, that is a matter that would attract the proviso and this Court would not be concerned with it.

MR DAVIS:   No, because if the person is appointed under section 21A of the Evidence Act, the judge is then compelled to give a direction under 21A(8).

KIEFEL J:   Mr Davis, no order or direction was expressly made under the Evidence Act, was it?

MR DAVIS:   No, your Honour.

KIEFEL J:   So the alternative position is that the husband was present without any order to which a direction could attach.  It is rather difficult to give a direction about why a person is there under an order if they are not there under an order.  It might be that a level of informality has crept into the proceedings.

MR DAVIS: The difficulty with that, your Honour, is that if he is not there pursuant to some order under section 21A, he is unlawfully there because he ought to have been excluded under section 5.

KIEFEL J:   No, he would have been a person whose presence provides emotional support.

MR DAVIS:   In our submission, that is a reference to a person appointed a support person under section 21A.

KIEFEL J:   Could I ask you this, Mr Davis, would you be maintaining this legal objection to what occurred in the proceedings if the judge had not said what he said about the presence of the husband?

MR DAVIS:   Yes.

KIEFEL J:   Why?

MR DAVIS:   I would because my client was entitled to a direction under section 21A(8) which is quite beneficial ‑ ‑ ‑

HAYNE J:   Did he seek it at trial?  Was it sought at trial?

MR DAVIS:   No, your Honour, it was not.

KIEFEL J:   Because no order was made.

MR DAVIS: Because, in our submission, in Queensland there is a misapprehension that section 5 of the Criminal Law (Sexual Offences) Act grants a power to the court to appoint a support person, whereas in our submission it does not.

KIEFEL J:   You say appoint as if it is an order.  Do you mean to permit someone to remain?

MR DAVIS:   Yes.

KIEFEL J:   There may be a distinction.

KIRBY J:   If you have a point, it seems to me, if it could be raised at this late stage, to be that balances that are struck by the legislation are prima facie to exclude people and then only to permit them to give emotional support and then to limit what the judge should do, but instead of that this judge went in there and made statements about the husband’s presence, somehow showing that the complainant was to be given extra advantages, whereas that is not the scheme of the Queensland legislation; it is a quiet emotional support.  It is not to be evidence that a person has been forgiven, warts and all, for all of their sins or all of their misdemeanours or wrongs and the judge intruded that matter into the jury’s consideration when it is a quite different scheme in the parliamentary purpose of the legislation, putting the two together.

MR DAVIS:   Yes, your Honour.

HAYNE J:   Which if it were understood by the jury in the fashion indicated by the presiding judge, it would have been a direction very much in the favour of the accused for it would have suggested that the wrongdoer was the complainant.  That is why we come back to the fact that these were charges in respect of which there was a single issue on each charge which turned ultimately on what the jury made of the complainant’s evidence.

MR DAVIS:   But, your Honour, that is a credit issue, so that was an issue that the jury had before them, certainly.  The point that is made is that the presence of the support person, and with the directions that were given and without directions under section section 21A(8), was capable of bolstering the support of the complainant, as against the evidence of the other applicant upon whose evidence my client partially relied.  Going to section 21A(8), the directions that should have been given were a specific direction that the jury not draw any inference as to the defendant’s guilt from the order or direction.

KIRBY J:   Where is that?

MR DAVIS:   Section 21A(8)(b).  Importantly, a direction that:

the probative value of the evidence is not increased or decreased because of –

the presence of a person and (c) that:

the evidence is not to be given any greater or lesser weight because of –

the evidence of a person.  Now, all those things ‑ ‑ ‑

KIRBY J:   But that is only evidence given under an order or direction and as Justice Kiefel has pointed out, no order or direction was made.

MR DAVIS: Because the judge purported to act under section 5 which, in our submission, did not give him a grant of power to make the order. His Honour made an order. His Honour made an order there be a support person and that is an order which can be made under section 21A(2). So our submission is that ‑ ‑ ‑

KIRBY J:   Why would the proviso not apply to this error if a legal error were detected by this Court for the first time?

MR DAVIS:   Because this was a case involving allegations of sexual misconduct.  It was a case involving issues of credit.  There were really only two witness that was the complainant and the other applicant.  To that extent the matter is almost by definition finely balanced.  This was an issue which went directly to the jury’s assessment of the credit of the two critical witnesses because it really goes to the credit also of the other applicant to the extent that his credit was damaged by the evidence of the complainant.  It is not intended, your Honours ‑ ‑ ‑

KIRBY J:   May I ask you this, the other applicant, the male applicant, has more fish to fry in the sense that the complaint about the judge’s misdirections concerning propositions that were advanced that were not advanced and the statements that are said to be inflammatory of the jury were not part of the contentions that you are relying on in your application?

MR DAVIS:   Yes.

KIRBY J:   Is it a feasible possibility that the male applicant could be granted special leave but not the female applicant?

MR DAVIS:   No, your Honour.  I would seek leave to rely upon the submissions that have been made by our learned friend, the issues involving the summing‑up.

HAYNE J:   Why?  Why at this late stage should you be entitled to amplify the application for leave to appeal to this Court in that fashion?  There were separate trials of two persons.  You have chosen a battleground on which to fight.  Why should you enlarge it now?

MR DAVIS:   With respect, your Honour, it was a joint trial and the importance of it being a joint trial can be seen from the way the proceedings unfolded in that, for instance, the evidence of the other applicant was evidence in my client’s trial.  The cross‑examination by the applicant’s counsel impacted directly upon my client.  It would be, in our submission, inappropriate to grant special leave to one of the applicants and not the other where the issues are ‑ ‑ ‑

KIRBY J:   The male applicant sought a separate trial, is that not correct, and that was denied?

MR DAVIS:   That is so.

KIRBY J:   Yes, very well.  I think we understand your submissions.  When did you come into the case, may I ask you that?  Are you prepared to tell the Court this, Mr Davis?

MR DAVIS:   I was retained a couple of weeks ago and saw the papers a few days ago.

KIRBY J:   Yes, very well.  We will hear Mr Copley.

MR COPLEY:   Your Honours, if it is convenient, I propose to begin with the point raised this morning by my learned friend, Mr Davis, for the applicant T, and his point, if it is a good point, would be a good point not just for T but for SBA as well but my submission is that the point is not a good point, it has no validity.

The learned trial judge would only have been obliged to have given directions in the nature contemplated by section 21A(8) of the Evidence Act if the complainant was a person whose evidence was received pursuant to that provision.  To demonstrate how it was not, I will take your Honours now to section 21A(1) where your Honours will see the definition of a special witness. 

Paragraph (a) says it means “a child under 16 years”.  Well, the complainant was 28, so we can put that to one side.  Paragraph (b) says it might also be “a person who, in the court’s opinion” – and this is important because that phrase indicates that the learned trial judge would have been required to be positively satisfied of something before making an order under this section – so:

a person who, in the court’s opinion--

(i)would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or

(ii)would be likely to suffer severe or emotional trauma; or

(iii) would be likely to be so intimidated as to be disadvantaged as a witness;

if required to give evidence in accordance with the usual rules and practice of the court.

Now, no such finding was made by the learned trial judge.  He was not asked by the prosecutor to declare this woman a special witness for any of those reasons.

KIRBY J:   The judge did not do so, but there certainly was evidence in the trial that the complainant was a person who was, as it was suggested, vulnerable and retiring and subject to the supervening power of the mother and the other applicant.

MR COPLEY:   Certainly there was, your Honour, but his Honour was not asked to make a finding under this provision of the Evidence Act in order to allow her husband to be present.

KIRBY J:   I realise that and that is a good legal point, but the matter that still concerns me, Mr Copley, speaking for myself, is that a scheme of legislation which is quite carefully balanced and is designed to address the problem of a person having a support witness there is turned by the judge into a scheme whereby he gives the complainant a special credit by saying that she has been accepted by her husband who they have seen in court, that they know is the husband because of a photograph, and has been accepted as warts and all, and that, quoting the lord protector’s statement, intruded into the trial an aspect that is quite alien, it seems to me, to the scheme for special witnesses.

MR COPLEY: Yes. That is a difficulty that I am going to have to encounter in a minute but it is important that I demonstrate, given the centrality of this submission to my learned friend’s application, why the judge was not obliged in law to give these directions. I have a copy, of course, of his Honour’s ruling of the trial, as does my learned friend, Mr Davis, and I am just going to read it to your Honour, it is only five lines, and your Honours will note the startling correspondence between the terms of the ruling and the terms of section 5 of the 1978 statute. His Honour said:

whilst the complainant is giving evidence the following may stay and all others shall leave; Crown counsel and those instructing him, defence counsel and those instructing them, all officers of the Court – all officers of the Court and others whose presence is necessary or desirable for the proper conduct of the trial, a support person for the complainant who shall sit beside her.

The order was clearly made under section 5 of a 1978 statute. Nowhere in that statute – and I have provided your Honours with the complete copy of it – was there any provision which then required or mandated that the trial judge give the jury warnings or injunctions about the presence of the support person which would be found in the Evidence Act if the support person was for a special witness.

So to the extent that his Honour did not give the directions in section 21A(8), his Honour did not err, he was not obliged to.  Whether his Honour should have said the comments he made or did about warts and all and the husband’s presence, that is another thing, but on this point there was no error of law by the trial judge, there was no error of law in the Court of Appeal when the Court of Appeal said, the order was made under the 1978 statute.  So the point lately raised, which would be good for both applicants even though only now taken by one and not taken at the Court of Appeal, has no ground.

KIRBY J:   The suggestion is that the error is that section 5(1) does not positively and affirmatively provide for a person to be present as a support person. It merely permits an exclusion from the mandate of Parliament to exclude all persons in that case but you have then got to go on to make a positive order under the Evidence Act.

MR COPLEY: That point is not good. The 1978 Act only applies to complainants in sexual cases and to complainants who have been, for the relevant purposes at the moment, raped. It sets up an absolute right, section 5, that when a person complaining of rape is giving his or her evidence she or he has an entitlement to have a closed court. That is an absolute right, perhaps subject, of course, to the overriding duty to ensure a fair trial.

The Evidence Act is much broader in its scope.  Any witness for any offence, be it fraud, house break-in, sex, anything, can be a special witness automatically if he or she is under 16, but ‑ ‑ ‑

KIRBY J:   Well, I think you have made this point so far as it is a point before us and you have only got limited time.  You are not getting two replies, you are getting one.

MR COPLEY:   Okay, I know that, but can I just make this point finally.  Two regimes are existing here in Queensland.  They are running in some circumstances side by side, but if the order is made under the old Act, no direction was required, and that is what was the case here.

Now, I then need to deal with the complaints regarding the directions in the case and the Court of Appeal found that the learned trial judge, as it were, acted as an advocate for the prosecution during the course of the summing‑up.

KIRBY J:   I have to say that that is really the matter that worries me.  I mean, everybody is entitled to a fair trial in this country and this judge made statements asserting what the prosecution was contending, which it was not, and he made statements which were, on one view, inflammatory of the jury, and a case like this especially has to be conducted with prudence.

MR COPLEY:   Your Honour, the Court of Appeal condemned the summing‑up and ‑ ‑ ‑

KIRBY J:   I mean, every now and again, we have what is called our visitation jurisdiction to lay down the principles.

MR COPLEY:   You do not need to exercise it by granting special leave in this case because you visited this topic in RPS v The Queen.  The Court of Appeal in Queensland was aware of that and condemned the summing‑up.

KIRBY J:   My recollection is RPS was not as bad a case as this seems, with respect, to be.

MR COPLEY:   Can I now make this submission then, that the wrongs of the criticised directions must be judged against the firm way in which they were retracted or undone in the course of the redirections and the redirections commenced with what, when one reads it, might be even imagined to be in the atmosphere of the court room an almost humiliating correction by his Honour.  If I could take your Honours to page 260 of the application book for SBA.  In my outline at paragraph 3.4 there I have set out what his Honour said before he dealt with the redirections.  He said:

“…I have been asked to draw your attention to a number of matters and when you retire to consider your verdict you will bear these matters in mind and if something to the contrary was said earlier you will disregard what was said earlier”.

He made it very plain there that they were to ignore the summing‑up insofar as he then qualified it.  It could not have been plainer.

KIRBY J:   This is a logical submission, it is always pressed upon us, but what Mr Conomos says is that the jury have been poisoned by these statements, that it is too late, that you cannot undo the effect, that that effect has operated on their several minds over the whole weekend and whilst the judge is giving the direction and by a formula such as is used on page 260 you just cannot erase it from the mind.  That is the suggestion.  I think there is some force in that where there are multiple repeated and inflammatory statements by the judge and some which were just quite wrong.

MR COPLEY:   Your Honour, the suggestion is not borne out by the outcome.  Having received these redirections on the Monday afternoon, the jury did not convict until the following day.  That rather suggests that the jury had not been, as it were, worked into a lather or inflamed by the summing‑up on the Thursday and were anxious to convict, to show ‑ ‑ ‑

KIRBY J:   That is a fair submission, but we do not know the reasoning of the jury and another possibility is that they were left in a great quandary, that they had had this earlier inflammatory charge by a person who has sworn to hold the scales evenly and that they then took a long time to try and work it out, what they should do.

MR COPLEY:   Yes, your Honour, but you have the benefit of knowing that the summing‑up and redirections were read and considered by an intermediate appellate court.

KIRBY J:   I realise that and Justice Jerrard says, but for the redirections he would have ordered a new trial.  So the focus is, do the redirections remove, erase sufficiently the damage that is done in this trial by all of those statements, including the complete misrepresentation of what the prosecution case was on many important issues?

MR COPLEY:   Your Honour, at paragraphs 3.5 and following in my outline in SBA’s book I have set out for your Honours the impugned direction and then immediately asked you to compare it with the redirection to show your Honours how completely the learned trial judge recanted or corrected ‑ ‑ ‑

KIRBY J:   Yes, but should an accused be put in a position where they have got to rely on the adequacy of a judge recantation?  The situation should not arise.

MR COPLEY:   Well, no, it should not, your Honour, but ‑ ‑ ‑

KIRBY J:   Unless this Court says so, it will continue to arise.

MR COPLEY:   The Court of Appeal of Queensland has said now to this judge and to other trial judges, this situation should not arise, and that judgment is binding on all trial judges in Queensland.

HAYNE J:   It should not have arisen at this trial because the directions should have been much shorter and invited the attention of the jury to the real issues in the case, and there are only three.

MR COPLEY:   Be that as it may, your Honour, they were as they were and the Court of Appeal has condemned it and criticised it and then analysed it and found that there was no miscarriage of justice.  In summary, really, all I can say is that if your Honours were to grant this matter leave, you would really simply be reviewing again what the Court of Appeal has already looked at, and your Honours, we have had no ‑ ‑ ‑

KIRBY J:   That may be a fair point of criticism of the grant but, on the other hand, it is our duty as the highest Court in the nation to set the standards and if the standard here is not acceptable for the fair trial of a citizen or a non-citizen, then this Court has to say so.  If we come to the opposite view, having more time to consider it than we do today, then we perform our function just as the Court of Appeal performed its function.  But the Court of Appeal was concerned about this case, as is evident in the approach that they took, and it is just a question of whether or not this trial reached the adequate standards of fairness.

MR COPLEY:   Yes, your Honour.  I cannot make any ‑ ‑ ‑

KIRBY J:   The Crown and you as a Crown Prosecutor have, as you know, obligations as a minister of justice to assist the Court to ensure that justice is done in these matters and whilst you have properly to defend this trial, it leaves me with a sense of disquiet, I have to say to you.

MR COPLEY:   Bearing in mind your Honour’s last remark to me, I would submit that if your Honours were considering a grant of special leave in this case ‑ ‑ ‑

KIRBY J:   I only speak for myself.

MR COPLEY:   Yes.

KIRBY J:   I do not speak for the Court.

MR COPLEY:   It would be confined to a point concerning the summing‑up and the fairness or otherwise of it.  It certainly would not run to any suggested error of law concerning 21A(8) of the Evidence Act.

KIRBY J:   But if we were to confine the matter to the subject of the appeal at the moment, that would not prevent the applicant, either applicant in their submissions to this Court, to place before the Court that statutory context within which the statements concerning the support persons were raised, would it?

MR COPLEY:   No, and I suppose it would not prevent the respondent from perhaps suggesting a different statutory context in which they were raised.  But what I am wishing to convey to your Honours is that the point regarding 21A(8) has no validity whatsoever and there is nothing for your Honours to be concerned about in that regard.

KIRBY J:   We do not have any formal application at the moment or any text to amend the grounds of appeal.  All we have is a reference to the section, which was also referred to by Justice Jerrard, it is suggested, incorrectly.

MR COPLEY:   The only other point I wish to make to your Honours in an effort to dissuade your Honours from granting the matter special leave is this, that as a result of this judgment in SBA and T trial judges in Queensland would be under no illusion whatsoever that they must not act as advocates for the prosecution when summing‑up a case.

KIRBY J:   You should not have to say that.

MR COPLEY:   It was effectively said in RPS and it has been said again in this case.  Thank you, your Honours.

KIRBY J:   Yes, thank you, Mr Copley.  You should go first I think, Mr Davis.

MR DAVIS:   Your Honour, there is no doubt, as my learned friend stated, that the judge did purport to act under section 5 of the Criminal Law (Sexual Offences) Act.  The fact that his Honour purported to act under that section does not mean that that section gave him a power to ‑ ‑ ‑

KIRBY J:   You are just repeating what you said earlier.  You are just repeating.  We do not have any formal application to amend the grounds of appeal.  We have no formulation of any additional ground of appeal.  Are you seeking to amend?

MR DAVIS:   Yes, I have formulated it and I overlooked putting it to the Court earlier.  I seek leave to amend the draft notice of appeal as follows, that the trial judge was obliged to instruct the jury in terms mandated by section 21A(8) of the Evidence Act (1977), that the trial judge failed to do so.  The judge’s failure to direct the jury was an error of law and/or caused a miscarriage of justice.  I seek leave to amend the draft notice of appeal on those terms, your Honour.  I have nothing else by way of reply.

KIRBY J:   Yes, Mr Conomos.

MR CONOMOS:   Only one matter in reply, your Honour.  As to the statute, it was not raised by counsel during trial nor on appeal, and I find myself in some difficulty dealing with that matter at this level.

KIRBY J:   It is now or never, Mr Conomos.  Do you embrace the argument or do you not?

MR CONOMOS:    I will embrace the argument but I am mindful that it is late, but I do embrace it.  The other point that Mr Copley raised when you mentioned that he was the Crown Prosecutor, when there was an application to discharge the jury there was nothing to stop him from consenting to that.  It was resisted by him so if he felt the judge went too far, there was his opportunity to have consented to the discharge of the jury and then the trial could have started again and been regulated correctly.  They are the submissions.

KIRBY J:   The Court will adjourn briefly to consider the course it will take in this application.

AT 12.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.26 PM:

KIRBY J:   In these two matters of SBA v The Queen and TP v The Queen I would grant special leave.  The reasons of the Court will be given by Justice Hayne.

HAYNE J:   In the application by TP, Justice Kiefel and I are not persuaded that the point which is raised in the written application and written argument concerning the comment made by the trial judge about the complainant’s husband’s presence in the court room would enjoy any prospect of success if special leave to appeal to this Court were to be granted.

On the hearing of the application counsel for the applicant TP sought to agitate two further arguments not raised in the written argument, one concerning the application of provisions of Division 4 of Part 2 of the Evidence Act 1977 (Qld) and their intersection with section 5 of the Criminal Law (Sexual Offences) Act 1978 (Qld), and the other seeking to embrace all of the arguments advanced in the application for special leave now made by the co-accused at trial, SBA.

We are not persuaded that the questions about the intersection of Division 4 of Part 2 of the Evidence Act and section 5 of the Criminal Law (Sexual Offences) Act would arise for consideration by this Court, when regard is had to the course of the trial.  It is convenient to deal with the arguments advanced by the co-accused, SBA, by going directly to that application.

The trial judge’s instructions to the jury in this matter were very long.  On the first day of instructions and when describing the prosecution case against the accused the trial judge made several statements that were wrong and should not have been made.  On the second day of instructions the trial judge summarised the defence case and then, having asked the jury to retire to consider its verdict, recalled the jury to give further directions in which the trial judge positively told the jury to disregard the errors that counsel for the accused had identified as having occurred in the course of the instructions given on the first day.

The Court of Appeal of Queensland determined that no miscarriage of justice had been occasioned by this course of events.  We are not persuaded that that conclusion of the Court of Appeal is shown to be erroneous and accordingly Justice Kiefel and I would refuse special leave to appeal in each matter.

KIRBY J:   The order of the Court is special leave is refused in each matter. 

The Court will now adjourn to reconstitute for the 10th application.

AT 12.30 PM THE MATTER WAS CONCLUDED