Sieradzan v The Queen

[1994] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S4 of 1994

B e t w e e n -

SCOTT ANTHONY SIERADZAN

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave
  to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 11.51 AM

Copyright in the High Court of Australia

MR G.J.T. CUSACK, QC:   If the Court pleases, I appear for the applicant.  I apologise to the Court in relation to the authorities.  It seems there was a mishap in relation to lodging a document.  I now have copies of the sections 405, 407 of the Crimes Act together with the cases cited.  (instructed by T. Murphy, Legal Services, Legal Aid commission of New South Wales)

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent with my learned friend, MR P.G. BERMAN, (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN J:   Yes, Mr Cusack.

MR CUSACK:   If the Court pleases.  Your Honours, in relation to this matter, first of all, I should ask - I think this appeal was out of time - I would ask for leave.

BRENNAN J:   You want an extension of time?

MR CUSACK:   An extension, Your Honour.

MR COWDERY:   That application is not opposed, Your Honour.

BRENNAN J:   Granted.  Then your time is extended.

MR CUSACK:   In this particular case, Your Honours, it was a assessment by the Court of Criminal Appeal as regards the trial, whether the verdict was unsafe and unsatisfactory.

It is the appellant’s contention that the course taken by His Honour the Acting Chief Justice, Mr Justice Kirby, was the correct one in relation to the assessment of the evidence.  This was in fact a sexual case which was ‑ there was no support for the girl’s evidence; there was a question of the lateness of the complaint; in actual fact, summed up by the trial judge that it in fact relied upon the evidence of the complainant.

It is the contention of the appellant that when assessing a case, particularly of this nature, that it is at the end of the Crown evidence ‑ is the evidence unsafe and unsatisfactory for a verdict of guilty.  In this particular case, as Your Honours will note, Mr Justice James, before considering the evidence, referred to the decision of Blade in the Court of Criminal Appeal, in effect to say, he did not give evidence - he made an unsworn statement.  It is the contention of the applicant that this was not a course to be adopted because it was irrelevant to the case whether the applicant either made a statement or gave no evidence.  The question, assessing at the end of the Crown case, was the verdict unsafe and unsatisfactory.

TOOHEY J:   Why do you put it that way, Mr Cusack?  You formulate the question as whether, at the end of the Crown case, a verdict of guilty would be unsafe or unsatisfactory.

MR CUSACK:   In this particular case I am referring to before the Court, it was irrelevant that he gave a dock statement.  The only things that apply in relation to a dock statement in New South Wales, as it then was, that section 405 and section 407 came into play, that the judge could give a direction in relation to that statement and in fact there was no comment that could be made in relation to that statement.

DAWSON J:   That is right, but that does not mean that the jury cannot consider the fact and draw conclusions from it.  It has always puzzled me that you have a prohibition against a comment but that does not mean that the fact that the evidence was not given on oath is irrelevant.

MR CUSACK:   It is my submission it is irrelevant unless there was something in that particular statement which in fact the jury could then use - the applicant had said something in that statement the jury could use in relation to his guilt.

BRENNAN J:   Did he admit intercourse?

MR CUSACK:   He admitted intercourse, Your Honour.

BRENNAN J:   Well, that is something, is it not?

DAWSON J:   The situation in New South Wales is different to that which obtained in other jurisdictions.  In Victoria, for instance, one can draw the jury’s attention to the fact that the statement from the dock is not upon oath and does not have the same status as sworn evidence.  It is referred to as evidentiary material, whatever that might mean, and they should give such weight to it as they think fit.  But it is open to have that drawn to the jury’s attention.  In New South Wales that is not possible, or was not possible, as I understand it, but it demonstrates that it is not an irrelevant circumstance.

MR CUSACK:   Your Honours, to take it in context of other jurisdictions and in fact where there are only two courses available - whether to give evidence or not call any evidence - though there is a tactical advantage, as I understand, in other States to have the last right of address.  But, Your Honour, it is the contention of the applicant that taking this into consideration, that the correct way to do it is to assess it at the end of the Crown case.  If, for tactical reasons, assessment by counsel ‑ ‑ ‑

DAWSON J:   But that cannot be right, because you look at what is said in the statement from the dock.  The presiding judge just said, “There is material in there which supports the complainant’s accusations”.

MR CUSACK:   Yes, but to say, as Mr Justice James did, that, in fact, since he has not given evidence on oath and made a dock statement, then that is something which the court could take into account in relation to its assessment.

DAWSON J:   If the jury could have taken it into account ‑ and certainly the jury could have ‑ in considering whether the verdict is unsafe and unsatisfactory, why cannot the court take it into account?

MR CUSACK:   It is my respectful submission, Your Honour, that in a case in relation to a dock statement that once - the real test is at the end of the Crown case whether a verdict is unsafe; unless there is something in fact ‑ either evidence called by the accused or a statement made by the accused which enhances that particular case.

BRENNAN J:   What is there about this case that makes the verdict unsafe or unsatisfactory?

MR CUSACK:   It is my submission that ‑ and I adopt the view that Mr Justice Kirby in his assessment ‑ it is a case of a sexual nature; it was a case where, in fact, as I point out to the Court, it relied upon the complainant unsupported, and on top of that is then the assessment by the trial judge in a report to the Court of Criminal Appeal.  It does not require that court to ‑ ‑ ‑

BRENNAN J:   There is one issue before the jury:  consent or no consent.

MR CUSACK:   That is correct, Your Honour.

BRENNAN J:   The woman said no consent.

MR CUSACK:   The woman said no consent.

BRENNAN J:   No error in the directions given to the jury?

MR CUSACK:   No, Your Honour.

BRENNAN J:   And the verdict follows.

MR CUSACK:   It is my submission, in relation to that, if the assessment is coloured by a failure to give evidence in the matter ‑ ‑ ‑

BRENNAN J:   There was no comment on that by the trial judge.

MR CUSACK:   No, but I am talking about in relation to ‑ ‑ ‑

BRENNAN J:   I know what you are talking about, but I am asking you about what makes the verdict unsafe and unsatisfactory.

MR CUSACK:   Only, Your Honour, what I have pointed out to the Court, that this is a case ‑ ‑ ‑

BRENNAN J:   A sexual case where the complainant’s evidence is unsupported.

MR CUSACK:   Yes.

BRENNAN J: That is what makes it unsafe and unsatisfactory?

MR CUSACK:   In all the circumstances, Your Honour.

DAWSON J:   But that does not raise a special leave point because, even if I were to agree with Mr Justice Kirby, that does not mean that this Court should grant leave to go through the same exercise as the Court of Appeal went through, without making any error.

MR CUSACK:   The point that I am making, Your Honour, in raising the special leave point - if Mr Justice James’ view is the law, that would mean now that if a person did not give evidence, then in relation to the assessment of the evidence by a Court of Criminal Appeal, then the applicant would be penalised because he called no evidence.  His assessment, or counsel’s assessment, of the situation at the end of the Crown case ‑ and makes an election.  That is applicable to other States.

DAWSON J:   But the fact that an accused gives no evidence is not an irrelevant circumstance, depending on the particular case. I mean, Weissensteiner’s case established that recently.

MR CUSACK:   Yes, that was a circumstantial case, and as I understand it there was no evidence to rebut the circumstantial evidence led by the prosecution.  I am saying in this particular type of case that this is somewhat different to that decision.

Your Honours have my submissions in relation to the thing.  I do not think I can assist the Court - it is a short point and it is a question whether or not Your Honours agree with my submissions.

BRENNAN J:   Thank you, Mr Cusack.  We need not trouble you, Mr Cowdery.

The trial judge gave the jury appropriate directions cautioning them against accepting too readily the prosecutrix’s evidence that she had not consented to an act of intercourse with the applicant.  The jury could have been in no doubt as to the onus and standard of proof of non‑consent.  There was no error in the conduct of the trial.  There is no occasion to grant special leave to appeal to reconsider the view of the majority of the Court of Criminal Appeal that the verdict was not unsafe and unsatisfactory.  It is unnecessary to consider what was said otherwise in the Court of Criminal Appeal.

The case raises no question of principle.  Special leave should therefore be refused.

AT 12.04 PM THE MATTER WAS ADJOURNED SINE DIE