Sherrin v The Queen

[1992] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No HS of 1991

B e t w e e n -

MICHAEL PATRICK SHERRIN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Sherrin 1 28/8/92

AT MELBOURNE ON FRIDAY, 28 AUGUST 1992, AT 12.29 PM

Copyright in the High Court of Australia

MR W.M. HODGMAN, QC:  May it please Your Honours, I appear

for the applicant with my learned friend,

MR T.L. McDERMOTT. (instructed by T.L. McDermott)

MR D.J. BUGG:  If the Court pleases, I appear with my

learned friend, MR J.N. PERKS, for the respondent.

(instructed by the Director of Public Prosecutions

(Tasmania) )

MASON CJ: Yes, Mr Hodgman.

MR HODGMAN:  May it please Your Honours, outlines of

submissions have been prepared in accordance with

the rules. I hand to Your Honours three copies of

the outlines of submissions, together with lists of

authorities and copies for the Court and, in
addition, in accordance with the directions three

copies for the use of the registry. The Crown have already received copies, if it please Your Honours.

MASON CJ:	The Court of Criminal Appeal did make an independent assessment, did it not?
MR HODGMAN:	May it please Your Honour it did, but it is in

relation to that independent assessment that, it is

respectfully submitted, there was an error of

principle, a major error in relation to the knife,

a major error in relation to the form of leading

evidence - - -

MASON CJ: What is the error of principle?

MR HODGMAN:  The error of principle, Your Honours, is that

in respect to this matter as it is carefully set

out in the, we submit, very powerful judgment of

the Chief Justice, the jury was left in what was on

any basis of the facts, and I am speaking in very
brief form, a weak case, this applicant being

convicted on his third trial in relation to this

matter; the first trial having been a

disagreement; the second trial the jury was
discharged because of the actions of a stranger in

the gallery. This is the third trial. We submit

it was a very weak case, and we submit that

His Honour the Chief Justice is quite correct when he indicates the use to which the evidence of the

presence of a knife was put, bearing in mind all

the other circumstances was such, in his opinion,

to render the conviction unsafe and unsatisfactory.

MASON CJ:  But what is the error of principle on the part of

the majority?

MR HODGMAN:  The error of principle is that whilst

His Honour Mr Justice Crawford also finds the

evidence in relation to the knife to be vague, that

Sherrin 2 28/8/92

he does not, in our respectful submission, apply

the principles laid down by this Court as to his

duty in independently reviewing the evidence in the

trial below and, in fact, the manner in which the
trial was conducted. We submit this is a blemish,

~hat there is a serious blemish here and that this -matter went to the jury on the basis that evidence had been brought before the court in circumstances

where not only, we submit, should it have not been

before the court, but having been before the court

in the circumstances in which it arose, it was used

in a manner which would be likely to mislead the

jury. In other words, we submit that we fall

within the Carr principle. We fall within the

basic submissions that I am putting to Your Honours

that there has been a very serious blemish in this

case in relation to the use of that evidence.

Perhaps if I could quickly turn - - -

MASON CJ: That does not necessarily amount to an error of

principle though.

MR HODGMAN:  We submit, with respect, that whilst it may

not, in the context of the judgment of His Honour

the Chief Justice, the dissenting judgment, we

submit it clearly did amount to an error in

principle by Their Honours Mr Justice Zeeman and

Mr Justice Crawford. Mr Justice Crawford finds

almost precisely the same criticism, we submit,
about the use of the knife as does the

Chief Justice, but then, we submit, errs in not giving effect to that determination.

Mr Justice Zeeman, however, in his judgment went

completely the other way and he held quite

affirmatively the use of the knife evidence was

appropriate.

Your Honours, perhaps if I can take as my

starting point; the first three paragraphs of the

submission of the outlines of submission are,

indeed, preliminarily, and unless the Court wishes

me to address argument we - - -

MASON CJ: No, there is no occasion to do that.

MR HODGMAN:  Thank you, You Honour. We now turn to

paragraph 4, the evidence in respect of which the examination is summarized in detail in the judgment

of Mr Justice Crawford in the Court of Criminal

Appeal application book page 113 line 34 to 116

line 45, and in the judgment of the Chief Justice

Sir Guy Green, and if I may I will turn directly to

his - - -

Sherrin 3 28/8/92

TOOHEY J: Mr Hodgman, could I just ask you this: in

paragraph 4, is "the court" referred to still the

Court of Appeal or this Court?

MR HODGMAN:  It was drafted in form "that the Court of

Criminal Appeal" but, we submit, in accordance with

the authorities in this Court, it now becomes "this

Court".

TOOHEY J: But is that right? I mean the authorities such

as Morris and others require from the Court of

Criminal Appeal the making of an independent assessment of the evidence.

MR HODGMAN: Indeed.

TOOHEY J:  Now, once that assessment has been made are you

suggesting that then it is incumbent upon this

Court faced with an application for special leave

to itself make an independent assessment, or must

you not be able to point to some error of principle

or something in the assessment made by the court

below that warrants intervention by this Court?

MR HODGMAN: It is the latter, Your Honour.

TOOHEY J:  So you are not inviting us to make our own

assessment of the evidence are you?

MR HODGMAN:  No, but I am inviting Your Honours, when

looking at the assessment made by the Court of Criminal Appeal and the errors in principle to which submission will be directed, to consider

whether they constitute the blemish, the error or the mistake to which this Court has referred in a

number of decisions.

MASON CJ:  I take it what you are really seeking to put to

us is that, although the Court of Criminal Appeal

purported to make an independent assessment of the

evidence, they made an inadequate assessment of the

evidence.

MR HODGMAN:  I am obliged to Your Honour, thank you.

MASON CJ: And in that respect they erred.

MR HODGMAN:  Indeed, Your Honour, again I am obliged to you.

The facts are briefly stated, and if I might turn

immediately to them in the application book,

Your Honours, you will find at page 105, and they

are the commencing parts of the judgment of the

Chief Justice:

The complainant who at the material time

was aged 16 years gave evidence that on

20 July 1990 she visited friends for some

Sherrin 4 28/8/92

hours during which time she consumed three or

four cans of beer -

I think, with respect, the evidence was stubbies, but the quantum is the same -

--

and a small bottle of rum. At about

10.00 p.m. she left and made a telephone call

from a public telephone situated on the corner

of Brisbane and Elizabeth Streets in Hobart.

As she left the telephone box -

MASON CJ:  Now, Mr Hodgman, you are not going to read the

whole of this judgment are you?

MR HODGMAN:  No, Your Honour, just this page and over on to the top of the next - - -

MASON CJ: Because we have read the judgments and we are

familiar with the facts and I think that, from our

point of view, you would give us more assistance if

you identified for us what you say were the errors

in the independent examination made by the Court of

Criminal Appeal.

MR HODGMAN:  Obviously, I do not say there is any error in

the judgment of the learned Chief Justice, and I

rely specifically on what His Honour the learned

Chief Justice says at page 112, and if I may just

briefly read that part, to then compare it with

what was done by Mr Justice Crawford and

Mr Justice Zeeman, and I will be endeavouring to

submit that, in particular, Mr Justice Crawford

made a finding upon which he should have followed

the determination of the Chief Justice. The

Chief Justice said, and I am reading from line 20:

There is no doubt that there was evidence before the jury upon which it would have been

lawfully open to the jury to convict the

appellant but in evaluating the case against

the appellant I take into account the

following:

1. at no stage did the complainant give any

explicit evidence that the appellant had

physically overpowered her or that she was

forced to submit to intercourse because of the

words or conduct of the appellant. The

complainant expressly agreed that at no stage

did the appellant threaten her.

I just pause there. This is a rape conviction for

which this man has been in prison since April of

last year, in which she does not assert she was

overpowered; she does not assert that he

Sherrin 5 28/8/92

threatened her; she does not assert that consent

was obtained by force, fraud or duress.

2. Much of the complainant's evidence in chief

was elicited by leading questions including in

particular the leading rolled up question to

which I have already referred which elicited

her first indication that she had not

consented to intercourse.

That is, in· fact, set out in the passage which I

would have read if I had got to it on page 106:

"Did you at any stage consent to this man

having sex with you or to his penis remaining

inside your vagina •.• No.

Did you ever do anything that suggested to him in any way that you were agreeable to him having sex with you •.. No."

And back to page 112:

3. Once one excludes or at least substantially

discounts the significance of the evidence of

the knife the evidence we are left with does

not provide any convincing explanation of why

the complainant got into the appellant's motor

vehicle in the first place.

4. There was little corroboration of the

complainant's evidence.

I might say that Mr Justice Crawford reached

precisely the same conclusion on why the

complainant got into the appellant's car in the

first place, admittedly a 16-year-old female

person, but the fact of the matter was that she

went into that vehicle. When she was questioned

about this in evidence in-chief - this is in the

Crown evidence - you will see on page 105, and I am

reading from the Chief Justice's judgment because

it is there encapsulated, if I can read from

line 8:

The appellant got out of the car and invited the complainant to "come for a spin". The complainant said "no" whereupon the appellant

"yelled 'get in the car'". The complainant's

examination in chief continued. This is

Mr Jacobs, Crown counsel:

"And what effect did his voice have on

you? ••• It scared me.:

Did you see anything in the vehicle at about

that time? •.. I saw a knife on the dashboard.

Sherrin 6 28/8/92

Could you just describe that knife, the size

approximately please? .•• It was probably about

twenty centimeters long.

Right and what did you do then? After he said

this what did you do? ••• I was so scared that I

ended up getting in the car.

Now, at no point of time did she say that the knife

had influenced her in getting into the car.

Your Honours have read the judgment of

Mr Justice Crawford where he refers to the fact

that there was some brief cross-examination about

this by my learned junior, and I should in fairness

deal with that because it may be that the Court

might say, "Well, why was it not pursued?", to

which we would respond, "Why did not the Crown even

re-examine on the specific point?". But when

Mr McDermott was cross-examining the complainant

and the passage of evidence appears on page 26 of

the application book, right down at the bottom of

the page:

Well can you say whether you saw the knife on

the dashboard before or after he yelled at you

'to get in the car'? ... It would be after.

After? ..•• I.don't know, it could have been at

the same time.

Now, His Honour the learned Chief Justice

concludes, and if I can just quickly read the

passage please, and this, effectively, is our

submission on the question Your Honour the

Chief Justice put to me directly, of the question

of principle, the grievous principle of error that

has occurred here:

By themselves the foregoing considerations

would not be such as to persuade me that the

verdict was unsafe or unsatisfactory. However

after considering their cumulative effect

taken in conjunction with the real risk

and for the reasons I have given the jury

might have given the evidence of the knife
more weight than it deserved, I am satisfied

that the appellant's conviction should be

regarded as unsafe and unsatisfactory and that

it ought to be quashed.

In dealing with precisely the same point His Honour

Mr Justice Crawford, and perhaps I should deal

specifically with the point relating to the knife,

and you will find that on page 117, line 10,

where his comment is:

Sherrin 28/8/92

The vagueness of the complainant's

evidence concerning the knife and its effect

on her as one of the reasons for her complying

with the appellant's demand to get into the

car -

and I am with him on that point, but then he goes

on -

does not persuade me that the verdict was

unsafe and unsatisfactory nor that there was a

miscarriage of justice because of it. The

appellant's counsel put to the complainant

that the presence of the knife was one of the

reasons why she was scared. In point her

answer seems inconclusive. The appellant's

counsel did not pursue the matter. It was for

him to decide whether he did so or not. I

suspect that there was something in the manner

the questions -

and I just do not read on further. But the point I

make there if there is substance in that: Why did

the Crown not re-examine on that, because you will

see at the end of the cross-examination by

Mr McDermott? There was no re-examination by the

Crown at all. So there is a vagueness in relation

to getting into the vehicle. There is a vagueness

in her evidence Mr Justice Crawford finds in

relation to the presence of the knife and what, if

any, effect it had upon her, and it is in that

contention that we submit, as I do in

paragraph 5 - - -

MASON CJ: But the trial judge was dismissive about the

knife in his directions to the jury, was he not?

MR HODGMAN:  Mr Justice Zeeman was, yes, and we submit, with

respect, he was wrong.

MASON CJ: The trial judge I said, he was dismissive.

MR HODGMAN: In two ways, Your Honour. In one part of his

summing up you note that he says .i,tmay not matter

one way or another, but-. thert'Jje~ ma~es . the very damming statement which~; w~ · iiubirilt, · dc;,es. go to

again another issue of principle; namely, the

throwing away of the knife.	I have referred to
this specifically in paragraph 8, Your Honour.	I
apologize, Your Honour, in paragraph 11
subparagraph (c), and the passage in page 111 of
the appeal book, that is, taking it from the
Chief Justice's judgment:

On the other hand the Crown say that indicates

a guilty mind because he knew that it had been

used in this rape.

Sherrin 8 28/8/92

He knew -

that it had been used in this rape and

therefore it would be a piece of evidence

against him.

DAWSON J: was it ever established what happened to the

knife?

MR HODGMAN:  No, Your Honour. The police said that no knife

was found. The complainant's evidence was that

there was an unsheathed knife approximately

20 centimeters long on the dashboard.

DAWSON J:  But was none in the car when it was searched some

time later?

MR HODGMAN:  No, but the applicant when he gave evidence

said, yes, he had had a hunting knife which he used

when he took his children away camping which he

kept in the glove box and it was, in fact, in a

leather sheath.

DAWSON J:  But it was not in the car when the police

searched it. Is there any explanation as to why it

was not in the car?

MR HODGMAN:  No, and the vehicle on the evidence may well

have been left unattended before that detailed

search was completed, because although I did not

appear at the trial you will recall he is taken

from the scene, taken away and interviewed, then

taken back and the vehicle is fingerprinted. So

there is just no explanation for that at all.

But the crucial point is that it would also

impact, as a matter of principle - - -

DAWSON J:  But did he have an opportunity to remove the

knife?

MR HODGMAN:  One would have to say on the evidence, that

would have been open to him because he delivered

the girl back to the telephone box or her

residence. He drove off and was picked up a

couple of hours later.

DAWSON J:	But not after he was picked up by the police?
MR HODGMAN:	Not by him but maybe, and I merely say maybe,

it could have been removed by somebody else because

the vehicle was left at an all-night service

station in north Hobart. The police took him away

from the vehicle.

Sherrin 9 28/8/92

DAWSON J: But the Crown case was that after he had

delivered the girl back and before the police

intercepted him he threw the knife away?

MR HODGMAN:  The Crown may well have inferred that.

DAWSON J: That was what they were suggesting?

MR HODGMAN:  Yes, although His Honour Mr Justice Underwood

has it both ways and says, "It may be of no point

one way or the other as it does not go to the core

of the issue".

DAWSON J: And they would say that was corroboration, and

they would say his false denials were also

corroboration, but there would be no other

corroboration would there?

MR HODGMAN:  Yes, I do not believe they did argue that the

knife was corroboration. They did certainly argue,

as I understand it, that the alleged false denials

were, in fact, corroboration.

Now, Your Honours, I had got to the point, I

think, which I had covered and I am now back to

paragraph 6, that the complainant at no time gave

explicit evidence that she was physically

overpowered or that she was forced to submit to

intercourse because of the words or conduct of the

appellant. There was simply no evidence, no

evidence, explicit evidence, from the complainant

in relation to either of those matters.

MASON CJ: Yes, I think you got that point across.

MR HODGMAN:  I hope so, Your Honour. Your Honours, I have

just read the passages from page 112 and I submit

i~ is apparent the case against the appellant was

not strong, and I submit that as the Chief Justice

concluded and as did Justices Crawford and Zeeman

concluded that such considerations did not of

themselves warrant a finding that the verdict was unsafe or unsatisfactory. But the Chief Justice,

in the passage I have just read to you, emphasizes

what we submit is the fundamental point here that:

considering their cumulative effect taken in

conjunction with the real risk that ••••. the

jury might have given the evidence of the

knife more weight than it deserved.

The Chief Justice concluded that the verdict was:

unsafe and unsatisfactory and that it ought to

be quashed.

Sherrin 10 28/8/92

We submit there is a second element to that, that,

with respect, the jury may have been mislead or

misdirected by references to the knife and the

address of counsel for the Crown and in the summing

up and we submit that this constitutes, as I

~ndicate there, a blemish in the conduct of the

-trial and that, if you apply both what has been

said in Morris and the blemish example in Carr

v Reg, there has been a miscarriage of justice.

we submit the error of principle of

Justices Zeeman and Crawford was that they failed

to carry out the very independent assessment which,

we submit, the Chief Justice did carry out and upon

which he reached, we respectfully submit, the

correct conclusion. And I submit to Your Honours

that it is not dissimilar from the point made by

His Honour Mr Justice Deane about how this Court,

in effect, is taking on an almost original

jurisdiction in relation to these matters and you

are, in effect, the only point - - -

MASON CJ:	He did not say that, surely, did he?
ME,-HODGMAN:	I will read the precise passage, Your Honour. I might have given it perhaps a little bit more
than it deserved. It is in Liberato.
MASON CJ:	I know he said some bold things.
MR HODGMAN:	No, Your Honours, I may have just oversold it

slightly, but it is in Liberato, 159 CLR, and the

passage I want to refer to is, by analogy,

Your Honour, on page 521 where His Honour is

dealing with the proviso, and I am respectfully

submitting there is an analogous argument in

respect of the Court's role in the instant appeal.

He says on page 521:

There remains to be considered the

question whether the cases are proper ones for
the grant of special leave to appeal.	In my

view, they are. The merits have been fully

argued. That argument has led me to the

conclusion that the Court of Criminal Appeal

incorrectly applied the proviso to s. 353(1).

The effect of that conclusion is, in each

case, that the applicant is presently serving

a jail sentence pursuant to a conviction or

convictions which should have been quashed by

the Court of Criminal Appeal. With due

respect to those who may see the matter

differently, I find it difficult to imagine

circumstances in which I would be persuaded
that special leave to appeal should be refused

notwithstanding that the case was one in which

Sherrin 11 28/8/92

the Court had entertained full argument

leading to such a conclusion. That is -

MASON CJ:	I do not think His Honour would agree with the description that you have given to his statement
and, in any event, His Honour is speaking for
bimself.

DAWSON J: Assenting to it.

MR HDGMAN:  I am sorry, Your Honours, if I have drawn too

long a bow because that was the last sentence I

wanted to read:

That is particularly so in the case of the

present applications in that the application

of the proviso by the Court of Criminal Appeal

was effectively an exercise of original

jurisdiction.

It is the only appeal to that lies by special leave

to this Court. Now, I am putting it to

Your Honours that the only appeal that this man,

Sherrin, has in respect to his conviction, for
which he has been in gaol since April of last year,

is to this Court because if you do not, with

respect, correct the Court of Criminal Appeal when

it fails to independently review, as you have told
it it should, I submit that you would not then say,

"Well, that is very unfortunate that an injustice

has occurred but we will have to leave the matter

there".

Now, Your Honours, unless you wish me to read

the remainder I have covered most of the points but

I do want to, if I can, again come back to

paragraph 11 of the submission and to emphasize

(a), I have made - - -

MASON CJ:  We have that firmly etched in our minds,

Mr Hodgman.

MR HODGMAN: Thank you, Your Honour. Your Honour, in all

due seriousness, I submit that (b) should not be

overlooked. It is a very important point in that

it did not bring about a re-examination by the

Crown on the question of the knife.	Now, the
bottom line is one of fairness.	If the argument is

going to be that the jury are to use the knife -

you see what Mr Jacobs did was very effective, "Did

you see something else?---Yes" - plants the thought

in the mind of the jury, "Aha, the knife might have

something to do with this".	It takes it no
further.	Even when Mr McDermott asked a couple of

questions where we get contradictory answers to

whether she saw the knife before or after he said,

"get in the car", and the use of it by the Crown is

Sherrin 12 28/8/92

exposed in Mr Justice Underwood's direction to the

jury, "On the other hand, the Crown says that

indicates a guilty mind because he knew that it had

been used in the rape." Ergo, "You can infer it

was used in the rape." A very dangerous - and this

Court has dealt with, if I can simply use by
-analogy, the use to which lies can be put. And

going back to Lonergan's case: you have got to be

very certain that that was an action which was in

fact clearly indicative of guilt and consciousness

of guilt.

Finally, which I submit in relation to

paragraph ll(d), that the evidence lacked

sufficient clarity to justify it having been left

to the jury as the evidence was insufficient to

draw the inference that the knife had some

connection with the rape in the first place.	I put
it by way of hyperbole:	"This man", says the

Crown, "must be a rapist because he had a knife in

his car." The girl does not say she gets into the

car because of the knife; the girl, having

consumed her alcohol, her rum and her stubbies,

gets into the car with a perfect stranger in the

centre of Hobart at 10 o'clock at night, goes in

the car with him to the domain, smokes a marihuana

cigarette with him, then on the Crown case, in the

confines of a small Sigma motor vehicle, in a

manner she cannot describe to the court as to

whether he tugged her pants down or slid them down,

she says, "He got them down to her knees and then

he had said sexual intercourse with her". At no

time in her evidence did she say, "Stop doing

this", at no time in her evidence did she say, "I

am objecting to what you are doing".

Now, if the case is as weak as that, and I

submit there was a paucity of corroboration, how

much of an injustice it is to the applicant that he

is convicted effectively on the basis, "Oh, well,

there was a knife in the car"?

Your Honours, I respectfully submit this is a

serious case and I conclude with paragraph 13:
with respect to the passage quoted by His Honour

Mr Justice Zeeman in the preceding paragraph only serves to emphasize the risk that the vagueness of the evidence concerning the knife may have been

given undue weight by the jury. The use suggested

by His Honour with respect would invite speculation

by the jury.

Mr Justice Zeeman says, "Yes, go ahead".

Compare that with what, we submit, were the

Chief Justice's comments, which I have read, as to

the manner in which the juxtaposition of the

complainant's evidence about the knife and her

Sherrin 13 28/8/92

evidence about why she got into the car was

obtained. We submit that the circumstances here

are so serious that there is a blemish; the

Chief Justice was right that the verdict is "unsafe

and unsatisfactory" and that the miscarriage of

~ustice can only be cured by this honourable Court

-granting special leave for the applicant to appeal.

May it please Your Honours.

MASON CJ: Yes, thank you, Mr Hodgman. We will cogitate

over this matter during the adjournment and we will

resume at 2.15.

AT 12.57 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Bugg?

MR BUGG:  Yes, thank you. I pass up to Your Honours an

outline of submissions. ·

MASON CJ:	We are not concerned with a and b.
MR BUGG:	No, those matters are now no longer raised. These

dealt with the matters, Your Honours, which were
contained in the affidavit in support of the

application for special leave.

MASON CJ:  You have to meet the case presented by Mr Hodgman that an inadequate examination was conducted by the Court of Criminal Appeal.

MR BUGG: Yes. Your Honour, it is the respondent's

submission that the Court of Criminal Appeal

undertook an appropriate examination of all the

evidentiary material from the trial process. In

one sense, that submission is supported by the

applicant's outline of submissions which invites

this Court to consider the evidence as summarized

by His Honour Mr Justice Crawford in his judgment

in paragraph 4 of the outline of submission and, of

course, the criticism is made that His Honour

Mr Justice Crawford and Mr Justice Zeeman did not

give an adequate consideration to all the material

and, in particular, refers to the knife and the

evidence concerning the presence of a knife in the

motor vehicle.

Sherrin 14 28/8/92

Your Honours, in relation to that aspect of my

learned friend's submissions, the evidence
concerning the knife was only by way of reference

by the complainant in her evidence-in-chief, it was elucidated upon under cross-examination, and as far as the references to it in closing addresses and in

-summing up it is my submission that His Honour the

trial judge - - -

TOOHEY J: Just before you go to the summing up, Mr Bugg,

you say it arose in the course of
examination-in-chief, but it is not right to say it

arose spontaneously from the evidence of the

prosecutrix, is it? Her attention was directed to

the knife or, at any rate, to the presence of

something in the car.

MR BUGG:  Yes, it was not directed in a leading sense at

all, in my submission, Your Honour. You will see

from the application book that in fact there were a

number of matters adverted to by the complainant as

to objects in the car which are identifiable: one

of them being the knife, another being a toy which

had become dislodged from the rear vision mirror in

the car, and the other one, of course, the quantity

of cannabis which was used, in due course, to roll

the cannabis cigarette.

TOOHEY J: But are you saying that those matters go, as it

were, to identifying the vehicle in which the

complainant found herself?

MR BUGG: Certainly, in so far as the latter two are

concerned, and so far as the knife is concerned,

the jury, in my submission, having heard the

evidence of the complainant in-chief and under

cross-examination, and then the evidence of the

applicant as to the absence of the knife from the

vehicle at a later time and giving no explanation

to its disappearance from the vehicle, was entitled
to draw the inference which it did - which it could

have done which, first of all, was that the

complainant was apprehensive and frightened by the

demeanour of the applicant and, in addition, that,

coupled with her viewing the knife in the motor

vehicle, would have added to her apprehension.	It
is not suggested that the presence of the knife forced her to enter the vehicle or in some way

overcame her resolve in the circumstances in which

she found herself.

TOOHEY J: That is, perhaps, part of the problem, that the

matter is. touched on and then left in the air with

a significant later attached to it, and I do not

think it is any answer to say, "Well, she could

have been cross-examined", I mean, that would have

Sherrin 15 28/8/92

only been inviting trouble from the defendant, the

accused's point of view.

MR BUGG:  I understand that to this extent, Your Honour, and

that is that certainly there was no

cross-examination beyond the point shown,

-obviously, in the transcript, and when His Honour

Mr Justice Crawford was making that comment in his

judgment, in my submission, that was a response as

to the state at which that evidence was left made

on behalf of the applicant. He said, "Well, look,

you left it at that point", but when you look at

what, if I can now take you to what His Honour said

in his summing up, in my submission, that explains

the significance of the knife and presented it

clearly and evenly to the jury in the terms in

which it was dealt with by the Crown and, in

particular, the final paragraph of His Honour's

summing up which is contained on page 111 of the

application book where he says:

"Well you will see of course that the knife

and its disappearance by itself doesn't prove

anything. It doesn't go to the core of the

matter. But it's a factor that you can put

into your mind when you're considering the

core, namely, the evidence of the complainant,

and the evidence of the accused."

Now, he does not give it, in my submission, the

prominence which my learned friend sought to
suggest this morning in making submissions to you.

In fact, that closing comment by His Honour put the issue of the knife in its proper perspective in so

far as that trial was concerned.

TOOHEY J: But what relevance does the knife have? I mean,

you can understand something like an object hanging

from the rear vision mirror or something like that

which might go to identify this vehicle as opposed

elicits the response, "Yes, I will frightened when to others, you can understand evidence which	I saw the knife and I got into the car" - that is
unobjectionable - but this seems to hang somewhere
in the air between the two.

MR BUGG:	Your Honour, there is an unsheathed knife, on the evidence of the complainant, in the motor vehicle. An attack is made upon the complainant as to her
submission to the applicant, not only immediately
upon entering the vehicle but also throughout,
obviously, the activities that followed the journey
in the vehicle to the Queen's Domain, and the jury, in my submission, was entitled to take the presence
of the knife in the vehicle into account in
assessing the credibility of the witnesses, the
state of mind which the complainant deposed to, and

Sherrin 16 28/8/92

that is that she was fearful, she was

apprehensive - - -

DAWSON J: But it points the other way, does it not? I

mean, you do not get into a vehicle where you see a

-Knife because you are frightened of the knife.

Here is a man sitting at the wheel of the car; she was just a little distance from her friend's place,

and she enters the car in which the danger is
present. It is difficult to see how the jury could

draw the conclusion that the knife had anything to

do with her getting into the car.

MR BUGG:  She is on her own in a public street; she is 16;

she has been consuming alcohol and she is shouted

out in the terms that she described to the court

and said that at the same time that that shout was

delivered towards her she saw the knife in the
vehicle and she got in the vehicle as commanded by
the applicant. To say that she is not going to

enter the vehicle because the person in it has,

within reach or access, a knife is speculative in

the opposite direction in which, in my submission,

the jury was entitled to draw an inference, and

that is that he is a person who is aggressive,

shouting at her, and he has a weapon within reach.

But when the jury was given, in my submission,

the appropriate direction in relation to the use to

which it should make of that evidence, particularly

in light of the subsequent evidence as to the

disappearance of the knife - but I just remind

Your Honours of the evidence of the complainant at

page 11, and this was in dispute at the trial, the

applicant gave contrary evidence, but she said at

page 11 of the transcript, page 3 of the

ppplication book, line 5:

And came back to the phone box. And did it

stop there? ••.•• Yes.

And what did the person in the vehicle

do? ••.•. Got out of the car and said "come for

a spin".

Did you make any reply to that? ••••. I said,

"no".

What did that person say then? ••••. He then

yelled at me "get in the car".

So at that stage, on the complainant's account, the applicant is outside the car telling her in

aggressive and demanding terms to get inside the

car. It is not a situation where the complainant

could make a getaway on foot to the friend's house.

The distance to the friend's house was not some

Sherrin 17 28/8/92

matter of a few yards, Your Honour, and the jury

would have been familiar with the geography of the

location. But she says:

I was so scared that I ended up getting in the

car.

And one is examining a jury's assessment of this

witness, a 16-year-old, who, on the night in
question, had been drinking and is confronted by an

adult in aggressive terms in a public street where

there are no other persons or vehicles in close

proximity. So in that sense, the knife certainly

at that point of the evidence, did not assume the

same prominence obviously as it did under

cross-examination. But, in my submission, the

prominence that it is suggested this knife took

within the trial process should be viewed in light

of what His Honour the trial judge said and the

Crown counsel in closing address.

TOOHEY J:  Mr Bugg, is the extract on page 111 to which you

took us the entirety of the direction so far as it

relates to the knife?

MR BUGG:  Yes, it is, Your Honour. The question of the

disappearance of the knife which Your Honour

Mr Justice Dawson raised this morning was that the

motor vehicle, once the applicant was removed from

it by the police, was locked and later unlocked and

searched and the knife was not in it; and the

applicant's evidence at trial was to the effect

that the knife was still in the car when he was

removed from it by the police, and therefore there

was an issue as to the removal of the knife from

the vehicle. And that is the evidence to which

His Honour the trial judge adverted half-way

through that principal paragraph of his charge to
the jury on page 111.

But, Your Honours, in relation to the question of the complainant's account of what occurred, it

was suggested this morning that she made no

resistance to the applicant and did not refuse

or - - -

MASON CJ: Well, no resistance - she did not make any

resistance, did she, except to indicate, according

to her evidence, lack of consent and objection?

MR BUGG:  She indicated lack of consent. She was crying,

shaking and trying to push the applicant away, at

page 7 of the application book. The passage

describing her demeanour whilst this attack was

taking place occurs over pages 5 to 7 of the

application book, starting at line 15 on page 5.

All these aspects of the complainant's account were

Sherrin 18 28/8/92

considered in detail by all the judges on appeal.

The majority judges, Justices Crawford and Zeeman,

not only considered the evidence, examined it, but

also assessed it, and in particular, His Honour

Mr Justice Zeeman went on to consider that evidence

in light of certain submissions which had been made

before the Court of Criminal Appeal. And, in my

submission, the examination of the evidentiary

material was complete, thorough and in accordance

with the requirements spelt out by this Court in

Horris' case and others since.

Your Honours, I can take you to the specific

passages of the judgments, but they are in the

appeal book - - -

MASON CJ: we have read the judgments.

MR BUGG:  The question of an assessment of the quality of

the evidence of the complainant, in my submission,
is an issue which, to some extent, is raised in the

applicant's written submissions and is a matter

which, in my submission, the majority judges in the

Court of Criminal Appeal were entitled to leave in

the sense that the jury had the opportunity of

seeing both the complainant and the applicant give
evidence, and there was ample evidence for the jury

to conclude that the applicant was untruthful in his responses in relation to the approach to the

complainant, his conduct with her in the vehicle,
and in addition, of course, his conduct subsequent

to his apprehension by the police. And there was
throughout the cross-examination of the applicant,

in my submission, ample material for the jury to

make its assessment of the quality of his responses

and the credibility of those responses and reach a

conclusion adverse to the applicant which, in my

s~bmission, is not and should be seen to be any way

flawed by the evidence about the knife,

particularly in light of the clear direction which

His Honour gave the jury in his summing up.	They
are my submissions in response, if Your Honours please.

MASON CJ: Thank you, Mr Bugg. Yes, Mr Hodgman.

MR HODGMAN:  I will be very brief, Your Honours. It is

trite law that evidence of commission of another

crime is very rarely, and in only very special
circumstances, introduced in a trial. Equally, I

submit, there is nothing more prejudicial to an

accused facing a trial of rape to have the Crown

float a suggestion that this was a particularly

aggravated rape by referring to a knife which

Mr Jacobs quite directly drew her attention to, and

then leaving it up in the air. And I submit, with

respect, that the words of His Honour

Sherrin 19 28/8/92

Mr Justice Underwood in dealing with this matter on

page 111 where he puts the Crown proposition in

these words at line 42:  ·

On the other hand the Crown say that that

=	indicates a guilty mind because he knew that
it had been used in this rape.

The Crown was saying that the accused, the

applicant, knew that he had used the knife in the

rape. And not even the complainant asserted that.

Then it goes on:

and therefore it would be a piece of evidence

against him.

And it is respectfully submitted that it is

encapsulated in paragraph ll(d) that the evidence

lacked sufficient clarity to justify it having been

left to the jury as the evidence was insufficient
to draw the inference that the knife has some

connection with the rape in the first place.

With respect, Your Honour Mr Justice Toohey

encapsulated the second-last point I wish to make,

and that is this: it is not good enough for the

Crown to say effectively by inference, "Oh well,

this matter should have been pursued by counsel for

the applicant at the trial." What an extraordinary

situation that is. My learned friend,

Mr McDermott, did put a couple of questions, but

note the Crown did not re-examine.

Finally, as to the weakness of the prosecution case, this is an unusual matter for this honourable

Court, because in the first trial on this

indictment as the record shows, the jury could not reach a verdict. Secondly, I respectfully submit,

that when you look at the adequacy of the

independent examination one must come down very

firmly on the side of the carefully reasoned and

persuasive judgment of His Honour the

Chief Justice. With great respect, he got the

point. He seized it as a crucial point upon which

he said he was satisfied that the appellant's

conviction should be regarded as unsafe and

unsatisfactory. If it please the Court.

MASON CJ:  Thank you, Mr Hodgman. The Court will take a

short adjournment to consider this matter.

AT 2.34 PM SHORT ADJOURNMENT

Sherrin	20	28/8/92
UPON RESUMING AT 2.36 PM:

MASON CJ: Notwithstanding everything that has been put in

~upport of this application by Mr Hodgman, the

Court is not persuaded that there was any error of

principle on the part of the Court of Criminal

Appeal, or that that Court failed to make an independent assessment of the evidence. In the

circumstances, no special leave point has been made

out and the application is refused.

AT 2.37 PM THE MATTER WAS ADJOURNED SINE DIE

Sherrin 21 28/8/92