SBX v The Queen

[2013] HCATrans 238

[2013] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2013

B e t w e e n -

SBX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 10.04 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear with my learned friend, MR B.P. DIGHTON, for the applicant.  (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honour, the jury found the applicant guilty of count 3.  That was an offence that was unproven by any evidence. 

FRENCH CJ:   Now, this was an error which was not picked up by either counsel or by the judge.  Is that correct?

MR CALLAGHAN:   That is correct, but the jury received explicit and repeated directions as to their responsibilities in the circumstances, and I will take you to those in a moment.

FRENCH CJ:   But your basic submission is that their conviction on count 3 has tainted everything else?

MR CALLAGHAN:   That is our first and overriding submission, yes.  It is reinforced when regard is had to the conviction on count 6, which is not quite as stark an example of the jury failing in its responsibilities, but is nonetheless quite a compelling one.  I might turn to that directly.

The Court of Appeal suggested that the evidence on count 6 and 7 was not easy to follow but, in fact, the relevant timeframe for the offences was identified, the relevant acts were described and the counts were clearly particularised.  The problem began when the trial judge told the jury that count 6 related to an incident that involved both ejaculation and use of a condom.  As pleaded and ostensibly proven, count 6 involved neither.

The Court of Appeal expressed the view that his Honour had conflated count 6 with count 7.  That was, with respect, another mistake by the court.  Count 7 did not involve a condom.  If count 6 had been conflated with anything, it is with some evidence of uncharged acts that involve both a condom and ejaculation.  In any case, count 6 involved neither.

What that means is that either the jury did convict on the basis of what the judge told them count 6 was all about, in which case they convicted of an offence that was not even charged, or they were not following the judge’s directions at all on this point.  It probably does not matter, but if we had to say which was more likely, we would point to evidence that supports the latter scenario and that brings us back to count 3 because in order to convict on count 3 the jury had to ignore, we would say, at least 15 separate instructions given to them by his Honour.

The Court of Appeal summarised those directions in the summary at the top of application book page 160, but it is not as if the jury received that collapsed version as contained in that paragraph in the record.  As the court did observe, the directions were repeated and we will not take you to all of them, but just to illustrate the content and dispersal of the directions, could I ask the Court please to look at page 7 of the application book and the direction at line 33, where the jury was told to reach its verdict:

on the evidence and only on the evidence –

There was no evidence on count 3, so that direction was bypassed.  If I could take you then to page 12, line 40, where his Honour demanded satisfaction of proof “beyond a reasonable doubt” of the charge that the jury was considering.  Well, there was no such proof for count 3 and, indeed, there was no such proof for count 6 as it was put to them by his Honour.  Could I take you then to page 20?  Most of that page is actually important but, for example, could I take you to line 35, the last paragraph on that page.  Again, the jury was told to:

look at all the evidence to see if the prosecution has proved its case on each charge -

Once again, we submit that direction had to be ignored as did the direction on page 29, line 35, any “reasonable doubt about an essential element of a charge” should have led to a verdict of not guilty.  That direction was bypassed. 

The final example we give is on page 34 at line 12, a demand that a charge be “proved by the evidence relating to it”, again bypassed for the purposes of count 3, likely ignored for the purposes of count 6.  We submit that is enough to demonstrate our point but there are up to 10 more directions in the summing‑up which we submit had to be ignored by the jury to do what they did.

CRENNAN J:   Accepting the errors which you have identified – accepting that they occurred – what do you say by way of response to a point made by the respondent which can be found in 3.8 on application book 199, the point being that it was not asserted by the applicant below and nor is it asserted now that:

there was insufficient evidence, either in terms of its quantity or its quality, to justify conviction on –

the other counts.

MR CALLAGHAN:   Indeed, your Honour, if we had to summarise the error in the approach of the Court of Appeal it would be to say that they treated the exercise, as the respondent would have you treat it, as an analysis of evidence rather than as an analysis of the process.  We complain about a failure of process.  This is not a case where there is no evidence.  Our complaint is with the deliberations of the jury and what we can tell about them from the verdicts that they delivered when considered in conjunction with the absence of evidence and the directions that they received.

FRENCH CJ:   Incidentally, do you accept the common ground or concession as stated at paragraph [59] on page 164?  This is a variant, really, of the question that I think Justice Crennan just put to you.

MR CALLAGHAN:   We accept, your Honours, that evidence was given in terms that made out a prima facie case that the offences had been committed.  We accept that it was not a case where there was no case to answer.  Yes, we accept that, but that cannot be the end of the argument.  To the extent that the Court of Appeal dismissed the appeal because of that, they, with respect, completely begged the questions which have been raised by the applicant.  The question is raised because a duty has been breached, a duty that the jury owed by reason of the oath that each of the jurors swore and, as a result of that breach, there is a principle at stake.  We submit faith in the jury system will not be maintained if such a breach is countenanced.

FRENCH CJ:   Does that mean that in any case of, say, multiple verdicts where one is shown to be unsafe or unsatisfactory having regard to the evidence, that that involves a reflection on the remaining verdicts?

MR CALLAGHAN:   No, and this is, we would submit, part of the problem.  This is not a case of inconsistent verdicts.  Yes, there were those as well in counts ‑ ‑ ‑

FRENCH CJ:   I am not putting that as an inconsistency case; I am just putting it at the level at which you – I am seeking to discern the generality, if you like, of the proposition you are putting about identification of error on one verdict leading to an inference of an approach by the jury, if you like, to the discharge of its duty in relation to the others.

MR CALLAGHAN:   When the error is to convict where there is no evidence available to do so, yes, we very much submit ‑ ‑ ‑

FRENCH CJ:   It is a bad enough error?  You say it is a matter of degree?

MR CALLAGHAN:   Yes, that is an error that is so obnoxious to the administration of justice that it must taint the process – any process undertaken by that jury and, if there was any doubt about that, you consider it in conjunction with the directions that the jury received and must have ignored in order to arrive at that conclusion and that puts our proposition, we submit, beyond doubt. 

It is completely different from a case involving inconsistent verdicts.  This is not a case where a jury is exercising the prerogative given to it by permissive directions about being able to convict on one count and not convict on another.  This is a case where a jury has breached mandatory directions about the manner in which they have to approach their task.  It is for that reason not a case, as the respondent would assert, governed by well‑settled principle.  There is no case that has been cited nor that we can find which governs the situation in which a jury has convicted in the absence of evidence; very different from so‑called irrational or inconsistent verdicts.

This is in a league of its own and the Court of Appeal, we submit, was wrong not to allow that this was the sort of defect about which complaint was being made.  The court sought to confine - for example, at paragraph [54], page 163 of the application book - the error on count 6 on the basis that it was a discrete error that did not taint the remaining verdicts. 

Well, the error in approach, we would submit, is stark.  It is not a severable – not a discrete error.  The error on count 6 cannot sensibly be considered without being considered in conjunction with the error on count 3 and then considering in turn what that meant about the process as a whole, a process that was fundamentally flawed.

You cannot sensibly dissect this process.  It was the one process.  It is not as if there was a series of separate deliberations on each count.  There was not a summing‑up on each count followed by a retirement of the jury on each count such that you could say, “Well, the process on count 15 or whatever was different from the process on count 3”.  It is the one course of deliberation. 

To say that the verdicts that were left over after the several unsatisfactory ones were identified were quite separate from the others is, as we have submitted, to completely beg the question that is actually raised and it is a question, we submit, on which the Court of Appeal did not properly engage.  You cannot, as we have submitted, dissect the curate’s egg. 

There are further clues, we would submit, to error in the approach of the Court of Appeal and we go to application book 162, paragraph [52] is where the court seemingly was reassured by their impression that the jury went about its task conscientiously.  It is impossible to be so assured by anything in the transcript and we do note that the court did not substantiate that assertion by reference to anything in particular.  In reality it can only be a reference to the fact that the jury asked some questions.  It is certainly worth having a look at one of those – if we go back to application book 161, paragraph [49] and at the end of that paragraph, line 38, there is recorded the jury’s request to have the evidence replayed relating to count 23 only. 

Now to remind you about count 23, perhaps you need to do no more than turn one page to 163 and the first line of paragraph [55] which repeats the proposition that “counts 21, 22 and 23 were all part of the one episode”.  They were so much part of the one episode that the court, the majority of the court, found that a verdict on one could not sensibly be considered without reference to the verdicts on the others. 

So we contend against that background that there is no sensible basis on which a question about 23 in isolation could be asked.  We would further contend as a general proposition that the fact the questions were asked, certainly a question of that nature, could be as much evidence of the fact that the jury was confused as that they were conscientious.  But we do not have to go that far. 

It is enough to say that the mere fact that questions were asked does not cloak the verdicts in some sort of veneer of respectability when the unvarnished inference is that this jury ignored fundamental directions and it is equally impossible, in our submission, to derive any comfort from the fact that the jury acquitted on some counts and convicted on others.  If we had their reasons for doing so, it might be worth going down that path but we do not and it is not.

The respondent contends this fact is consistent with responsible decision making.  We contend, we say with equal validity, that it is as consistent with deciding the verdicts by tossing coins and there is no honest way of resolving those competing contentions.  They are both exercises in pure speculation.  Had they listened to and applied the 15‑odd directions about the way they should have undertaken their task then there may well have been acquittals on every count. 

FRENCH CJ:   Now, just – sorry, relating the particular counts to your grounds of appeal and the amended draft notice at 185, ground 2i), that relates to the count 3 argument?

MR CALLAGHAN:   The count 3 argument being one that is reinforced by count 6 and the inconsistent verdicts but, yes, in broad terms, the count 3 argument.

FRENCH CJ:   Yes, and then ii) goes to the sufficiency of the reason of the Court of Appeal and then iii) picks up everything, all the other unsatisfactory features, you say, of the verdict which would include the 6 and 7 argument. 

MR CALLAGHAN:   Yes, and the 21, 22, 23 argument.

FRENCH CJ:   I just wanted to see under which heading you put each of those arguments.  Count 3 is, as it were, the stark point that you make.  Counts 6 and 7, 21, 22, 23, that all fits in to the accumulation argument.

MR CALLAGHAN:   Yes, your Honour, and the grounds are drafted really, I suppose, by reference to the provisions of the Code on the basis that one alleges that it is unreasonable and another that there was a miscarriage.  They can be two ways of saying the same thing.

FRENCH CJ:   I understand, yes. 

MR CALLAGHAN:   I think, at this stage, I would be repeating the submissions that we have already made.  There is no well‑settled principle but there is, in this case, enough of an affront to the administration of justice to warrant the attention of this Court.

FRENCH CJ:   Are you putting it as a visitation case?

MR CALLAGHAN:   Yes, yes, as that but not just that.  There is sufficient in the accumulation of errors to identify this as a case where there has been a miscarriage of justice in the circumstances.

FRENCH CJ:   Yes, thank you, Mr Callaghan.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, the error that is implicit in the jury returning the guilty verdict in count 3 is important but it is not, as the applicant submits, a case of the curate’s egg.  There have been some irregularities, some errors and I do not mean to downplay the importance of the error in returning the guilty verdict on count 3, but if the analogy of the curate’s egg is good, my response is that this is an egg with isolated spots on the shell but the substance is good. 

In order to look at what the miscarriage of justice or whether there has been one, one needs to look at the factual background and the strength or otherwise of the prosecution case.  If your Honours will bear with me for a moment.  Your Honours are aware there were a total of 23 sexual offences.  There were two complainants.  They were alleged to have taken place over a period of about three and a half years. 

The older complainant was 14 when the offending commenced.  There was a gap of about seven years between the commencement of the offending against her and when she testified at trial.  The younger girl was also 14 when the offending commenced.  The gap between that time and when she testified in a pre‑recording of her evidence at the trial was a little over two and a half years.

The allegations were numerous.  They were not limited to the counts particularised on the indictment, and it was a complex factual matrix.  There was some support for the complainants by way of supporting all prerogative evidence.  Much of it is noted in the judgment.  There was the admission to the shaving of the pubic area of the first complainant, although a benign explanation was given.  There was a photo taken of that child’s genital area – again, a potentially benign explanation was given.  The child was infected with genital herpes.  She testified that she had had sexual contact with no other person.  There was no evidence to the contrary.  There was no evidence, I accept, that the applicant was infected with herpes, nonetheless, the evidence was that it was likely to have been communicated by sexual contact.

Each of the girls’ hymens were damaged in a manner which was consistent with but, I accept, not conclusive of the activity that each said occurred, and there was, as is implicit in the indictment – or obvious from the indictment, joinder of the allegations of each child such that there was, it can be accepted, an underlying pattern or unity in the offending that could be used to consider the strength of the testimony of the individual complainants. 

In my submission, this is a case where the jury were entitled to approach their task on the basis that the complainants were honest, but their reliability was in issue.  In all of those circumstances, it is unsurprising that there was some difficulty experienced by the jury, and that there was some differing range of verdicts returned.

Can I turn to the issues of count 3?  It needs, in my submission, to be looked at in context.  If one looked at differing ends of the spectrum, if this were a rogue jury, it may be sufficient to infect the whole of the trial, but it is not.  There is, in my submission, a reasonable explanation, notwithstanding the directions which were given by the trial judge to the jury as to why they returned the verdict they did.  There is no doubt they were wrong to return the verdict. 

They were told, however, by the trial judge, pursuant to his obligation under section 620 of the Criminal Code that there was evidence that supported count 3.  They were addressed by the prosecutor and by senior counsel for the defence, not my learned friend today, variously in turns that either suggested there was evidence or at least failed to point out that there was none.  The jury had earlier been directed to acquit on count 13, as there had been no evidence to support that.  In my submission, it is unsurprising that they accepted that there was evidence to support count 3.

FRENCH CJ:   What is the hypothesis that they confused the statement of the particulars with evidence?

MR BYRNE:   What is the hypothesis for that?

FRENCH CJ:   Yes, for the mistake.

MR BYRNE:   The hypothesis is that they accepted that the incident that had been related by the complainant had occurred.  They had clearly not searched for the particular evidence on count 3.  If they had, they could not have convicted.  But they had been told that there was evidence.  Now, it is my submission that it is one thing to say that they – I am not trying to excuse what they did in count 3.  That is inexcusable.  It was conceded in the Court of Appeal.  But it is another thing to say that that error, when the nature of it is properly understood, taints the whole of the trial process. 

In my submission, the court must look at the fact that the jury did search the evidence.  They acquitted on a number of counts with obvious reason.  They were hung on count 19.  There was the decision of the Court of Appeal that certain verdicts were unreasonable, but there was also the recognition by the Court of Appeal that counts 8 and 20 were rationally explicable and by the time of oral argument in the Court of Appeal, the applicant had not pursued an argument to the effect that the convictions on count 10 when compared with the acquittal on count 9 and the conviction on count 12 when compared with the acquittal on count 11 were unreasonable.

In the written submissions, although not repeated today, issue seems to be taken with the question which was asked at – and I am referring to the applicant’s outline at paragraph 3.17 to a footnote of the question that was asked.  Can I read to your Honours from the Court of Appeal record book - and my learned friend appreciates that I intended to do this – the whole of the question?  Question – and I quote “1 - (count 9) - Please clarify specific nature of rape charge (count 9), i.e digital, oral or penile penetration; 2 - or are we finding on rape in general?”

In relation to count 9 there was, as is reflected in the summing‑up of the trial judge, an allegation of “oral sex” occurring.  Whether that be different to oral penetration or not was a jury question.  There was no suggestion of digital penetration but there were in other counts.  It was, in my submission, an entirely reasonable question for the jury to be asking and showed that they were searching through the transcripts, at least in counts other than count 3, to perform their duty.  It is, with respect, not understood why a question specifically derived – aimed, I should say, at count 23 was unreasonable even though count 23 may have formed part of the one incident.

Her Honour the President in the Court of Appeal noted that the review of the whole of the transcript – I am sorry, of the transcript, I should say, suggests that the jury went about their task conscientiously.  That cannot, in my respectful submission, simply be attributed to the one question which was used as an exemplar in the course of argument today.  In my submission, the Court can see from that which is revealed by the verdicts and the record this was not a jury which was simply intent on convicting regardless of the weight of the evidence.  They were directed to consider the counts separately.  They were also directed that a doubt on one count should result in a consideration on whether it would cause them to have a doubt on the others.

FRENCH CJ:   How long was the jury out?

MR BYRNE:   Effectively 24 hours, very late on one day, and came back perhaps 25 hours later.  Now, that period that I am quoting of 24 hours includes a period where they went home overnight.  This is not a case where either by the conviction on count 3 or the accumulation of what is said to be the errors are such as to vitiate the whole trial and stamp it with indelible imprint of injustice. 

One of the issues in the case that has been cited in Cesan where the trial judge was seen to sleep - it is said by affidavit material in the Court of Appeal there - with some great regularity through the trial was said to be that the court – the High Court, in any event, and with respect to your Honour the Chief Justice in paragraph 4 of the judgment, noted that the:

failure of that kind in the judge’s duty may have imponderable effects upon the outcome of the trial which cannot be assessed by an appellate court.

This Court can in this particular matter because it is not a question of the unknown.  That which occurred is in fact known and the jury has acted properly, in my submission. 

In terms of the Court of Appeal exposing its reasoning and the accumulation of errors can I inform the Court that in my outline at application book 201, paragraph 3.13 there is a formatting issue?  Paragraph d) should appear below the line commencing, “The Court also found”.  Of course, the summing‑up did not contain the concession of the applicant in the Court of Appeal.  That is a formatting issue and I apologise.

Not every error, either singularly or in combination necessarily results in the miscarriage of justice.  It is a matter of fact and degree.  There must be accepted, and I do accept from the verdict of the Court of Appeal that there were unreasonable verdicts, by the majority that is, and that there were errors in the trial concerning counts 3 and 6 but it is also conceded below and, as I understood it, conceded here, that there was sufficient evidence on the counts on which the jury convicted.

FRENCH CJ:   What do you say about the counts 6 and 7 point?  The Court of Appeal dealt with that on the basis that the judge misstated the evidence.

MR CALLAGHAN:   The judge did and a retrial was ordered on count 6.  With respect to my learned friend, we are somewhat in contention as to whether the court conflated counts 6 and 7 or conflated count 6 with an uncharged act.  In my respectful submission, it matters little.  There was material misdirection and a retrial has been ordered on count 6.

FRENCH CJ:   But in terms of the implications of that for the other verdicts?

MR CALLAGHAN:   My learned friend submits that the jury either followed the directions of what the trial judge said and therefore convicted on something that was not particularised nor in fact in the evidence or that they did not follow the trial judge at all.  Perhaps the third option is that they in fact had followed the evidence and convicted on that.  Nonetheless, the order of the Court of Appeal ordering a retrial was proper in the circumstances where it was unknown, but if one is in this Court to assert that there was such a fundamental flaw in the process of the trial, one must look at what the other option is and that is that the jury did in fact follow the evidence itself and convict on the basis of the evidence itself.

My submission is that this is a case in which the principles are well enough established.  Recently, this Court - and I apologise if I mispronounce it - Baini re‑established that many of the principles about which we have spoken, both myself and my learned friend from the Bar table, are and remain good law.  It is not a matter which requires the visitation of the High Court and there has been no miscarriage of justice.  They are my submissions.

FRENCH CJ:   Yes, thank you.  Yes, Mr Callaghan.

MR CALLAGHAN:   It can be no answer to the applicant’s complaint that either the judge or the Crown Prosecutor could be blamed for the jury’s breach of duty.  It can only be if that was the case that further directions were ignored as well and by those I take you to application book page 8, line 20 in which the jury were reminded that the summing‑up and comments by the lawyers were not evidence to application book 53, line 30 in which they were told that it was their view of the facts which “predominate” and if there was a failure to:

refer to evidence which you consider to be important . . . your views predominate.

Further references all, I suppose, summarised at 109, line 10 in which as the judge said and reminded them that he had said it a number of times that the questions of fact were for them alone.  So they knew their responsibilities and those were responsibilities which were not met. 

Of course, if it was the case that they were led into error by anything said by the Crown Prosecutor then that is of even greater concern because if led into error by him, if doing – if acting in accordance with his submissions and without regard to the evidence, that creates even greater concern about convictions obtained, perhaps, by undue regard being had to the authority of the Crown Prosecutor’s office.  So to the extent that the involvement of others might account for the jury’s mistakes, it really only affords further proof that they were not true to their rights.  Thank you.

FRENCH CJ:   Thank you, Mr Callaghan.

The applicant was charged with 23 counts of sexual offences against the two teenage daughters of his de facto wife in the period from 2005 to 2008.  He was found guilty by a District Court jury on 16 of those counts.  The trial judge had directed a verdict of acquittal on one.  The jury acquitted the applicant of six counts and was unable to reach a verdict on another.  The Court of Appeal of the Supreme Court of Queensland allowed his appeal against conviction in respect of five of the counts, on four of which it entered verdicts of acquittal.  It directed a retrial on the remaining count.

The applicant seeks special leave to appeal in respect of all the convictions primarily on the basis that the jury, having convicted on one count, count 3, in circumstances in which, as is common ground, there was no evidence at all to support the charge, there was a failure of process which gives rise to a reasonable possibility that none of the guilty verdicts were properly arrived at.  As the respondent pointed out, however, the verdict on the relevant count was attributable to an error made by the prosecutor in his address, not corrected by the appellant’s counsel and not picked up by the trial judge in his directions to the jury.  In these circumstances, in our opinion, the prospects of success of an appeal on the first ground are insufficient to warrant the grant of special leave. 

The remaining grounds relate to the sufficiency of the reasons of the Court of Appeal in rejecting the challenge to all verdicts and the accumulation of unsatisfactory features reflected in some of the other verdicts.  That accumulation was said to be generally indicative of a miscarriage of justice on all counts.  The various convictions under challenge and the sufficiency of the evidence in relation to them were carefully considered in the Court of Appeal.  Neither the second nor the third grounds of the application give rise, in our opinion, to a question warranting the grant of special leave to appeal to this Court.  Special leave will be refused

AT 10.42 AM THE MATTER WAS CONCLUDED