Shillingsworth v The Queen

[2004] HCATrans 468

[2004] HCATrans 468

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S549 of 2003

B e t w e e n -

RICHARD FREDERICK BRIAN SHILLINGSWORTH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 10.39 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MS A. FRANCIS.  (instructed by the Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honour the Chief Justice will know that the last application involved the clean break principle in family law.  This application might be thought to raise the clean break principle in criminal law.  More generally, it involves a classic example of an accused who, in his own evidence, raises an issue as to an element of an offence and the trial judge failing to direct the jury as to that element.

GLEESON CJ:   Was he asked to?

MR ODGERS:   No, he was not.  We say that it is a classic example of the operation of the principles that were well established in Pemble and Van Den Hoek that where evidence is adduced in a trial which raises an issue regarding an element of an offence, the trial judge has an obligation to direct the jury regarding that element, notwithstanding the failure of defence counsel to raise it and, indeed, as Pemble and Van Den Hoek recognised, even if defence counsel positively asks the judge not to leave it.

GLEESON CJ:   There would have been a little tactical problem in raising this at the trial, would there not?  As I understand the way the trial was conducted, the real issue was the rape.  Now, true it is, the charge was home invasion, or whatever it is ‑ ‑ ‑

MR ODGERS:   Break, enter and commit an indictable offence.

GLEESON CJ:   The defence case on the rape was what?

MR ODGERS:   That he entered, looking for a cigarette, walked down the hallway, came to the bedroom, saw the victim lying on the bed, she screamed, he turned around and scarpered.  The prosecution case was, he came in, walked down the hallway, came to the bedroom, saw her lying on the bed next to her husband and took the opportunity, surprising as it was, to have sex with her.

GLEESON CJ:   Now, he had already been ejected from the house once before this episode, had he not?

MR ODGERS:   Ejected is perhaps putting it a bit high but he had been assisted out of the house earlier that night, yes.  He had come to the door during the night to ask for a cigarette and had been given one and then had gone back to where he was.

GLEESON CJ:   And what exactly was the issue you say should have been raised?

MR ODGERS:   What I call the clean break principle, your Honour.

GLEESON CJ:   No, it is a claim of right of some kind.

MR ODGERS:   It is, your Honour, it is more clearly ‑ ‑ ‑

GLEESON CJ:   Or a claim by Aboriginal custom to do exactly what?

MR ODGERS:   That he believed that he had consent deriving from the custom within that community to enter the house of an acquaintance for the purpose of asking for a cigarette.

GLEESON CJ:   Even if you had been turned out once before.

MR ODGERS:   “Turned out”, if that is the language your Honours used.  He had been assisted out because the owners wanted to go to bed, go to sleep.

CALLINAN J:   What time was this?

MR ODGERS:   It was in the middle of the night that the ‑ ‑ ‑

CALLINAN J:   So the custom meant he could do it at any time. 

MR ODGERS:   That was his claim.

CALLINAN J:   And notwithstanding that the front door was locked.

MR ODGERS:   Your Honour, there was some dispute about that.

CALLINAN J:   The trial judge found it when he sentenced.

MR ODGERS:   He made a number of findings and one of them was plainly an error.  He made a finding that the jury had found that Mr Shillingsworth had intended to enter to commit the sexual offence and that was plainly not the case.

GLEESON CJ:   According to this custom, does it continue to operate if, having got in, you get not a cigarette but rape?

MR ODGERS:   No, your Honour, plainly enough the custom was to enter to ask for a cigarette.  If somebody says, “Get out”, then it must be implicit that the custom is ‑ ‑ ‑

GLEESON CJ:   The custom was not to enter and rape somebody.

MR ODGERS:   No, your Honour.

GLEESON CJ:   Well, then does not, according to the custom, your conduct upon entering have any relationship to your right to be there.

MR ODGERS:   Your Honour, the point is this, that if at the time you do the break, that is you open the door and, can I say this, he admitted that he opened a screen door so, as the judge correctly told the jury, if break is satisfied simply by opening a door, he had admitted it so there was no issue about it.

CALLINAN J:   But I just need to understand this custom.  He must have known that it was likely that the occupants would have been asleep and, therefore, if he wanted a cigarette in order to take advantage of this custom he would have to wake them up and say, “Now, I’m in here, you’re asleep but get up, wake up and give me a cigarette”.

MR ODGERS:   Rather than me paraphrase what he said, it is best that we go to what he did say and that is to be found in the appeal book at page 93, your Honours.  It is extracted by the Crown, the relevant passage.  In that quotation, line 21:

Q.       Did you think you were welcome to go back into the house early in the morning?

A.       Yes well I thought I might have run into someone there, you know who I could talk to, for a smoke or I talk to them any other time out on the streets you know but . . . 

Q.       Did you think you were welcome to go back into that house and wonder round early in the morning to find someone to ask for a cigarette?

A.       Yes.

Now, we say, forget what follows for the moment, he has asserted that he believed he had consent to enter that house early in the morning to ask for a cigarette.

CALLINAN J:   But at line 50, he qualifies, and says you have to be drunk to do that.  That seems to be part of the custom.  You can do it when you are drunk but not when you are sober:

All blackfella when they get drunk and walk around and look for a smoke, get it off –

and so on.

MR ODGERS:   Yes:

Walk into anybody’s house at any time of the day or night and ask for cigarettes?

A.       Yes, you know the people, go and ask them.”

CALLINAN J:   I want to identify the custom and the custom seems to be that you have to be drunk.  The custom is available only to somebody who is drunk.

MR ODGERS:   He may have had some difficulty in articulating the precise nature of the custom ‑ ‑ ‑

CALLINAN J:   Well, if you say it exists, it supports a claim of right or it may support a claim of right.

MR ODGERS:   No, your Honour, I submit that he asserted that he believed he was entitled to enter that house.  When he was asked to explain why he had that belief he expressed it in these words.

CALLINAN J:   Yes, that:

All blackfella when they get drunk -

can do it, regardless of the time.

MR ODGERS:   Yes, that is what he asserted.

CALLINAN J:   And that is what you say the trial judge should put to the jury.

MR ODGERS:   I am saying that the trial judge should have put to the jury that he asserted that he believed he was entitled to enter.

GLEESON CJ:   Mr Odgers, can I take you to page 1 of the application book.  I just am far from sure where this gets your client.  There were two alternative charges.

MR ODGERS:   Yes.

GLEESON CJ:   And, as I said earlier, the real contest was about the rape. 

MR ODGERS:   Yes.

GLEESON CJ:   Just let us assume for the moment that for some reason or other, including perhaps the claim of right you are mentioning, there might have been some doubt about whether there was break and enter here.  That would have thrown the jury directly to what the case was really about, would it not, that is charge 2, the rape.

MR ODGERS:   Absolutely.  He would have been convicted of that alternate offence, maximum penalty 14 years compared with 20 and in circumstances where the sentencing judge said it was seriously aggravated by the fact that he had broken with an intent to commit a sexual assault.

GLEESON CJ:   Does that not explain why the way the trial was conducted was that everybody concentrated on whether he had done the act of rape?

MR ODGERS:   With respect, no your Honour.  It would have been perfectly rational and sensible for trial counsel to say you cannot convict on count 1 because he has asserted that he believed he was entitled to enter - that is not a break – therefore he is not guilty of count 1.  That takes us to count 2 and let us deal with the question of whether or not there was sexual assault.

GLEESON CJ:   The problem with attributing at this level of remoteness from the trial arguments to trial counsel that trial counsel did not see fit to run is that when a trial counsel decides what arguments he is going to run and not run he has 12 faces looking at him.

MR ODGERS:   I understand that.

GLEESON CJ:   Who might not always take seriously some of the arguments that people later suggest should have been run.

MR ODGERS:   But, your Honour, the fact of the matter is he ran the argument we are putting before the Court today.  He ran it.  He just did not put it in legal language and he did not put that therefore that he should be acquitted of count 1, but he put it.  Can I take you to 89 in the appeal book, bottom of the page, from the defence address:

He says…I was in the house, I did go in and I went in looking for a smoke.  He said, that’s not unusual, people do that when they get drunk, they walk around, particularly if they know the people in the house, they might go in and ask, have you got a smoke?  He says that’s something you do -

that is, it is customary in the community.  It is something he was doing on this particular day.  He does not have to prove that case to you, so that is a reasonable possibility.  In substance, the very matter which we are seeking to ventilate today was raised by him.  It is just that he, for whatever reason, did not put it as an aspect going to the legal elements of count 1, but we say, there is no plausible, tactical reason for not doing that given the way he ran his case. 

GLEESON CJ:   What was the breaking and entering alleged?

MR ODGERS:   The prosecution witnesses disagreed as to what doors were closed and what were not.  There was some evidence that the front door was locked, there was evidence that the back door was not, there was evidence that the back door was closed and the screen door was closed.  The accused admitted that at the very least he opened the screen door so, as the judge correctly directed the jury, absent mental element, that is a break and the defence counsel conceded it.  Defence counsel conceded that that element was made out which plainly supports a conclusion that he did not turn his mind to this aspect of the mental element which is not entirely surprising, can I say, your Honours.  We struggled to find any clear authority on this at all.  It is surprising but, in truth, there is no clear authority that says that to commit a break you do not commit a break if you honestly believe that you have consent to enter for the purpose for which you entered.  Our claim is, and it was assumed in the Court of Criminal Appeal, it has not been contested by the Crown, that that is the law ‑ ‑ ‑

GLEESON CJ:   It would depend on the form of entry you may have put in it.

MR ODGERS:   Quite.

GLEESON CJ:   It might be one thing to say there is a custom that says I can walk through an open door at midday and it might be a different thing to say there is a custom that says I can take a jemmy to a locked window at midnight. 

MR ODGERS:   I think, your Honour, that a jury might have great difficulty in accepting that that was an honestly held belief and I think that would be the end of that.  I do not think anyone would run that but if a person asserts that he believed he was entitled or there was consent to open a door to ask for a cigarette from an acquaintance at any time of the night or day ‑ ‑ ‑

CALLINAN J:   At any time no matter what the state of the lighting in the house was?

MR ODGERS:   No matter what the standard of lighting in the house was.

CALLINAN J:   No matter where the house was, no matter what his relationship ‑ ‑ ‑

MR ODGERS:   When he is drunk ‑ ‑ ‑

CALLINAN J:   Let me finish, no matter what his relationship or otherwise was with the occupants of the house?

MR ODGERS:   They had to be acquaintances, someone you know, someone he knew.

CALLINAN J:   Was that the evidence he gave?

MR ODGERS:   At 93 I think he said - the top of 94, your Honour.

CALLINAN J:   And whether they were smokers or not.

MR ODGERS:   Whether they were smokers or not.  Presumably you would not do that unless you suspected that they had cigarettes in there.

CALLINAN J:   I see.

MR ODGERS:   This was his claim, that he was going in to seek a cigarette.  The Crown prosecutor made no serious challenge to that, nonetheless the judge sentenced him on the basis that that was not the truth, that he had gone in there with some intent.

CALLINAN J:   Is it possible that the defence counsel did not ask for any direction, is that right?

MR ODGERS:   No, there is no doubt about that.

CALLINAN J:   And is it possible that counsel did not do that because he or she thought it would have been absolutely incredible ‑ ‑ ‑

MR ODGERS:   Your Honour, it is difficult to reconcile that with 89.

CALLINAN J:   I know what you have shown me, what counsel said in his address.  It is a fairly fleeting reference.  Counsel may have said that in a particular context and did not want it underlined perhaps by the trial judge because of its sheer incredibility.

MR ODGERS:   Your Honour, that was certainly the view that the Court of Criminal Appeal took that it was incredible and, therefore, that he made a tactical decision not to run it.  I come back to what I say is the fundamental principle, that that is irrelevant, it does not matter.  The issue was there, it was raised by the evidence, obligation to put it to the jury, full stop.

GLEESON CJ:   I think, in fairness to trial counsel, there is one other thing that should be said to your comment, Mr Odgers.  It was a necessary element of the offence that he raped the woman.

MR ODGERS:   Yes.

GLEESON CJ:   So if the jury were not prepared to find beyond reasonable doubt that he raped the woman he was free.

MR ODGERS:   He walks away. 

GLEESON CJ:   If the jury were prepared to find beyond reasonable doubt that he raped the woman it was going to be a little difficult to persuade them that there was no breaking and entering because he was only there looking for a cigarette. 

MR ODGERS:   No, your Honour, with respect, that is not right.  Page 89 of the appeal book, Crown prosecutor, line 12:

“You see what happened was that you got to the bedroom and you saw the lady asleep on the bed, and you decided it was a good opportunity to have sex with her so you did?”

That is redolent of him seeing the naked woman on the bed and thinking at that moment he is going to have sex with her.  It is miles away from somebody who is entering a house planning to sexually assault somebody so, with respect, your Honour, that is my point.  The Crown prosecutor really made no attempt to challenge the claim that he went in there for a cigarette and his case was, when he got in there he saw an opportunity and he took it in a drunken state.

Again, it highlights the point that he has asserted something, it has not seriously been challenged, that is his belief.  I accept that your Honours may take the view it was an implausible claim but it had been raised, it was a question for the jury and it is not for white middle-class judges to pass judgment on whether or not a claim made by a person in an Aboriginal community, which he asserts to have a particular custom, is incredible.

GLEESON CJ:   He had a white middle-class lawyer appearing for him and the white middle-class lawyer who was representing him, and I underline the word “represent”, took some arguments and did not take some other arguments.

MR ODGERS:   Absolutely, and I say your Honour, with respect, that what the High Court said on a number of occasions is that that is neither here nor there.

CALLINAN J:   I will ask you to define middle-class judge, some time too.  Do not worry about it now.

MR ODGERS:   I am not referring to your Honours, of course.  I may be referring to other judges.

GLEESON CJ:   Mr Odgers, the technology is not working as well as it should.

MR ODGERS:   Have I reached my time limit?

GLEESON CJ:   You have three minutes to go.

MR ODGERS:   Thank you, your Honour.  I am not sure that I have a great deal more to say.  There are questions which we say are raised by this case which justify a grant of special leave.  We say, in the interests of justice of the particular case, it is justified because he was convicted of a 20‑year offence when, if we are right or the jury had had a reasonable doubt about it, he would have been convicted of a 14-year offence and he was also sentenced on the basis that the offence was aggravated by that intention at the time he broke, which he denied, and where the jury made no conclusion on the matter at all.

We also say that it has broader implications for break and enter charges brought in Aboriginal communities because defence lawyers will not raise, and trial judges will not direct on claims by Aboriginals that they believe that there was implied consent based on community attitudes to

enter premises on the basis that such claims would be regarded as incredible by judges who would say, “That’s ridiculous.  I’m not going to leave that because it is an incredible claim”.

GLEESON CJ:   Your client would have needed leave under rule 4.

MR ODGERS:   Absolutely.

GLEESON CJ:   And did he get it?

MR ODGERS:   He did not.

GLEESON CJ:   So this is really an appeal against the refusal to grant leave to raise a point in the Court of Criminal Appeal that was not raised at the trial.

MR ODGERS:   It is, and we say the third aspect of justifying the grant of special leave is to resolve the question of when leave should be granted pursuant to rule 4.  Your Honour knows there is a great deal of law about that in New South Wales.  We say that the proper principle is that there must be a grant of leave if there has been a miscarriage of justice established.  We say that it is inconceivable that leave would be refused if a miscarriage of justice has been established.  We say miscarriage of justice has been established for two reasons:  one, evidence had been adduced which raised the issue no matter its plausibility, it has been raised, therefore an obligation to put it to the jury what the element was and let them decide it  We say that if that is right, and it must be right, that there is a fundamental flaw in this trial because on the element of break and enter the jury is told he has admitted it.  There was no trial on the only issue which was present on that element.  There was a trial about the rape but no trial about the break and enter.  I can see I am just about out of time. 

GLEESON CJ:   Yes, that is it.

MR ODGERS:   I think I have put the argument as strongly as I can.

GLEESON CJ:   Thank you, Mr Odgers.  We do not need to hear you, Mr Lamprati. 

This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales.  The point which the applicant seeks to raise in this Court, and had sought to raise in the Court of Criminal Appeal, is not a point that was taken at trial, and the applicant unsuccessfully sought leave to raise the point in the Court of Criminal Appeal. 

We are of the view that there are insufficient prospects of success of an appeal to this Court to warrant a grant of special leave and the application is dismissed. 

AT 11.01 AM THE MATTER WAS CONCLUDED