SKA v The Queen

[2010] HCATrans 198

[2010] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2010

B e t w e e n -

SKA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 JULY 2010, AT 11.31 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court please, I appear with MR H.K. DHANJI for the applicant.  (instructed by Crawford & Duncan)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Game.

MR GAME:   If the Court pleases.  In this case, we submit that the Court erred in how it addressed itself to the question posed for it under section 6 of the Criminal Appeal Act, and in drawing out that asserted error, we say that ‑ ‑ ‑

GUMMOW J:   You need an extension of time, do you not?

MR GAME:   Sorry, we do need an extension of time.

GUMMOW J:   Is that opposed?

MS WOODBURNE:   That is not opposed.

GUMMOW J:   Yes.

MR GAME:   We submit that in drawing out that ground, several questions of general importance do arise in respect of what is the appropriate approach for the Court to take, particularly in relation to questions of assessing the probabilities and questions of assessing credibility and demeanour.  Could I take the Court directly to page 64 of the application book where the ground is set out.  I am going to come back to the video shortly, which is dealt with on page 65 and following, but it should be noted that as we set out in our submissions, the court was actually invited to look at the video by defence counsel so the matter was not left in the air in the ways that ‑ ‑ ‑

HEYDON J:   I am not sure about that.  I thought the Court invited senior counsel for the defence to comment on the question.

MR GAME:   That is correct.

HEYDON J:   He declined to submit that the court ought to view the video.  How can you now complain that the court erred in failing to look at the video when it was not in possession of any submission that it should?

MR GAME:   At page 109 of the application book, your Honour, paragraph 13.

HEYDON J:   That is what the Chief Judge at Common Law said.  I am just concentrating on paragraph 103 on page 65.  In the absence of a submission from the appellant that the court ought to have taken a particular course where everyone was alive to the availability of that course, how can it be now submitted that the court was wrong?  The court did not reject anything that senior counsel for the appellant wanted.

MR GAME:   Your Honour, if I have read this correctly, and I have seen the transcript, but not today – the Chief Judge is saying “It is an advantage we should accept, isn’t it?”, an advantage that is to look at the video, and he says ‑ ‑ ‑

HEYDON J:   You are suggesting that what is said in paragraph 103 is simply an erroneous account by Justice Simpson of the course of events, are you?

MR GAME:   No, that is an earlier comment by counsel.  You have to read both of them.  What came first ‑ ‑ ‑

HEYDON J:   You treat what is on paragraph 13 on page 109 as a submission, or an application that the court should look at the video.

MR GAME:   Yes, your Honour.

GUMMOW J:   Do you say that happened later in the transcript?

MR GAME:   Yes, your Honour, you can see that from our submissions at – I will just double check that, but I do say that.  I will just double check that.  Yes, I do.  May I come back to the video shortly, but I ‑ ‑ ‑

HEYDON J:   Just one moment.

MR GAME:   Yes, sorry, your Honour.

HEYDON J:   I am sorry to be tedious about this.  Paragraph 103 on page 65 says:

At the outset of the hearing of the appeal Senior Counsel . . . was invited to comment –

The passage to which you drew our attention on page 109, according to the footnote, was on page 1, line 39 of the transcript.  I could be wrong about that, but what stage of the appeal was that statement made?

MR GAME:   I will just check.  They are both actually – actually, what happened was, your Honour – could I just hand this to you?  You will see that they follow one from the other so that if you take them together, in my submission, you would draw the conclusion that counsel did invite the – they follow immediately one after the other.

HEYDON J:   Do you submit that we should have regard to that?

MR GAME:   Yes, your Honour.

HEYDON J:   Well, I do not, no.  He did not submit they should be done.  Justice Simpson is correct, is she not, on paragraph 103?

MR GAME:   He said that which is set out at paragraph 103, and then that which is set out by us in paragraph 13 of our submissions came immediately after ‑ ‑ ‑

HEYDON J:   You told me before though, I thought, that there was some significant interval of time.

MR GAME:   I am sorry, your Honour.  I do apologise.  I made a mistake.  They were immediately one after the other, but when you take them together, that means he is saying “Yes, I do want you to look at it.  It is an advantage we should accept, yes”.

HEYDON J:   Anyway, I think we got onto this because you were going to come back to it later and you were heading off to a more general submission.

MR GAME:   I am going to come back to it because what I wanted to do is to take the Court to what her Honour actually did in considering this ground first.  You will see at page 68, we see “Were the verdicts unreasonable?”  We see a number of criticisms drawn out of the complainant’s evidence and at pages 70 and 71 two might be noted in particular.  Number (vii) – actually, it should say “2004 allegations” – and number (xii) on page 71 is the alibi point.  When you come to paragraph 112, what appears there is her Honour says:

These were, of course, all legitimate points to put to the jury.  And they were, very effectively, put to the jury.  It was within the jury’s province and function to evaluate them, individually and in conjunction with one another -

Then we come to page 72, the last line of that paragraph:

The question for this Court is whether it was open to the jury to reach that conclusion.

Now, as Justices McHugh and Brennan pointed out in M itself, that is a trap because those are terms of art which mean somewhat more than was it open to the jury to reach that conclusion.  Then her Honour says:

These were essentially jury points.  I do not propose, therefore, to comment on each point made.

Then she goes on to, shall we say, speculate about what the jury might have done.  That is not the court’s function.

GUMMOW J:   What is the relevant passage in M?

MR GAME:   The relevant passage in M is at pages 493, 494.  It is the “Where, notwithstanding” on 493 and the “But it is, we think” in 494.  May I then say, if we come back to paragraph 113 at 72, her Honour then says at point (i):

It is true that the complainant’s answers to Detective Bagnall were characterised by the speech patterns I have mentioned.

If I may divert there for a moment to page 49 of the application book.  At page 49, at paragraphs 28 and 29, her Honour made that point by drawing on material that was not before the court and so the point that she has drawn out at paragraph 113, point (i), about the speech patterns is material that was not before the court.  Then if you go back to page 73 of the application book you see that all that her Honour is doing in 114 and 116 is identifying evidence upon which there might be a case to answer because it goes no further than that in relation to the two groups of offences.  Then at paragraph 117 her Honour says:

These answers, in my opinion, were sufficient to enable the jury to conclude (if they accepted the complainant’s evidence) -

But that is not the question and the “if they accepted the complainant’s evidence” is, in effect, subsuming the whole of the function that the court has to determine in respect of where the probabilities lie.  Then her Honour deals, as I said, selectively with some of these grounds but she does not deal with the two critical ones I took you to before and how could you consider the question of whether the verdict was reasonable or unreasonable other than by first considering all of them and in combination and then turning to an assessment of the applicant’s own evidence, his wife’s and the alibi.  That function was not performed.

HEYDON J:   Can I just interrupt to take you back a couple of minutes?

MR GAME:   Yes, your Honour.

HEYDON J:   Page 49, reliance is placed on material that was excised from what went before the jury.

MR GAME:   That is correct.

HEYDON J:   Do you make a specific complaint that the appellate court took into account evidence not before the jury in determining the reasons?

MR GAME:   Yes, I do.  What happened was they got the wrong transcript.  They read it and then it was replaced with another transcript.

GUMMOW J:   You would need another ground, would you not?

MR GAME:   I would need another ground, sorry, your Honour.  Yes, I would need another ground, but it is subsumed within this ground that the court did not address itself to the proper question which was to assess the whole of the record, no more and no less.  Then when one comes to paragraph 123 on page 75:

As I have mentioned, it is not necessary to dissect every argument put on behalf of the appellant.  All were put to the jury.  Obviously, all were rejected.

Again, her Honour has not assessed the material for herself and to say they were assessed by the jury is to really abrogate the function and, in my submission, what her Honour is ‑ ‑ ‑

GUMMOW J:   What is the particular paragraph in the criminal appeal statue?

MR GAME:   Section 6, your Honour.

GUMMOW J:   Yes, but ‑ ‑ ‑

MR GAME:   Section 6 says ‑ ‑ ‑

GUMMOW J:   Which particular branch of section 6?

HEYDON J:  

if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable –

That one?

MR GAME:   That is correct, “or cannot be supported, having regard to the evidence”.

GUMMOW J:   Does her Honour deal with that statutory ground in terms?

MR GAME:   No, your Honour – well, yes and no.  She cited it back in that passage I took you to at page 64.  That, in our submission, is as close as it gets, but what I am saying is that what is disclosed by this exercise is that her Honour has done no more than identify, shall I say, whether or not there is evidence that is capable of supporting the verdict in the – is there evidence upon which there is a case to answer and after that it is all put down to demeanour.  It is all put down to demeanour in circumstances where her Honour – and she also, as I said, she concluded by saying “To the extent that is relevant”.  She says something – that is at paragraph 124.  But she has not performed that function herself and that is manifestly the case because she has only picked a few for the purposes of speculating as to what the jury might have done. 

Now, if one comes back to that passage that I, shall I say, ran into trouble over a little while ago in respect of the video, but at page 67 we do say the court was invited to look at it, but we also say that the record, by virtue of the statutory provisions, the record is the sounds that the jury hears and the things that they see because of the statutory provision that makes that the evidence‑in‑chief.  At paragraph 108 this asserted disadvantage, in our submission, is a disadvantage that really plays no part in whether or not a court would or would not look at a video.  A court all the time has to look at pieces of evidence that have varying qualities and there would be a very simple way of resolving that issue which would be to determine where the probabilities lay first.

GUMMOW J:   What is the provision that constitutes the record again?

MR GAME:   The provision, the reason why it constitutes part of the record is because there is a provision in the Criminal Procedure Act which makes that transcript part of the record.  Your Honour is asking me a question as to which provision in the Criminal Appeal Act creates the record.  I think that that would come from inference by saying “by reference to the evidence”, meaning all of the evidence that was before the court, so I think that that is how you would construe what the record was before the court. 

The criminal procedure provision that makes the film evidence then becomes part of all of the evidence and for the same reason the extraneous observations her Honour made from the…..transcript, they were not part of the record.  Now then, to this, I wish to add one further aspect ‑ ‑ ‑

GUMMOW J:   Are you saying the evidence is therefore more than what was said?

MR GAME:   The evidence is more than what was said, yes.  The evidence is what was said and what was seen.

GUMMOW J:   So there is real evidence, in other words.  Is that the idea?

MR GAME:   Yes, your Honour, it is ‑ ‑ ‑

HEYDON J:   Technically, the video is the evidence and the transcript is merely an aid to understanding.

MR GAME:   That is right, yes.  Even the video is not evidence.  It is the sounds and pictures that you see.

HEYDON J:   It is the experience of looking at it.

MR GAME:   The other thing is this.  This question, whether or not you take this case, at some point this question or related questions will have to be determined because this is now the course that these videos are used and different approaches are taken in different criminal courts - of the Court of Criminal Appeal as to whether they should look at the video.  In another case called…..they did look at the video and ‑ ‑ ‑

GUMMOW J:   There is a Victorian case called El Moustafa in the Victorian Court of Appeal [2010] VSCA 40 on this subject as well. Are you familiar with that?

MR GAME:   I am not, your Honour, I am sorry.

GUMMOW J:   Delivered on 11 March 2010.  There does seem to be some concern about this question.

HEYDON J:   If you were right, it would mean that criminal appeals in Tasmania would take almost as long as the trial because the whole of the trial is videorecorded, apparently.

MR GAME:   What would happen is there would be an obligation on counsel to identify the parts that the court should look at.  That is how that question would be resolved.  We have another question that we wish to feed into this application, which is the judge made observations about the verdict and what he said is set out at pages 120, 119, 117 and following.  I am going to have to finish up fairly quickly.  I am in ‑ ‑ ‑

GUMMOW J:   We have read that, but what is the significance of it?

MR GAME:   What is the significance of ‑ ‑ ‑

GUMMOW J:   The course that the judge took and the timing in which it was taken.

MR GAME:   He refused a certificate, which we say was erroneous, but he made observations which were before the court.  They were part of the record, but they were also tendered to the court and in those observations at page 121 he set out both his views about the probabilities and his views about the relevance of demeanour in this case and he says it ‑ ‑ ‑

GUMMOW J:   This is your proposed ground 2?

MR GAME:   Yes, your Honour.  He says at page 122 - in effect he is saying the demeanour of the applicant and his witnesses is good.  He also says that:

Personally, I found the complainant a very compelling witness -

So, in effect, if you couple this with what we submit is the request to look at the video, two parts of the relevant material, namely the video itself and the judge’s observations which could throw light on demeanour were excluded and if one comes back one step to the court assessing the probabilities for itself, the court did not do that function because having decided that there was a case to answer they said…..jury questions.

HEYDON J:   The Court of Appeal did take account of Judge Finnane’s remarks because they did refer to them on page 96.  Justice Simpson deprecated the fact that they had been made and criticised them, but ‑ ‑ ‑

MR GAME:   That was in the sentence appeal, yes, absolutely, your Honour, but ‑ ‑ ‑

HEYDON J:   In other words, she was aware of the existence of ‑ ‑ ‑

MR GAME:   Yes, they were tendered, but can I say there are two Victorian cases we have put on where their Court of Criminal Appeal regards these kinds of observations as highly helpful to the court, particularly on questions of demeanour, and they have said so in more than one case and we have given you the passages for those.  I am pretty close to out of time, but there is a different view between different courts of criminal

appeal where the same appeal provisions apply as to what you do with this material.  As I said, one of the cases we have given you called Franks, the court says “We found this highly useful” particularly in respect of the question of issues relating to questions of what I am loosely describing as “demeanour”.

This trial judge in this case, he saw the case unfold and he made these observations, and the court has really explicitly deprecated the making of them.  So when you couple together, as I say, these issues, we submit both in terms of the video, how the court dealt with the issue and the judge’s report, that combination of things does make this an appropriate case to take.

GUMMOW J:   Just slow down for a minute, Mr Game.  What is the additional ground you would want to add to the draft at page 101 that followed the exchange with Justice Heydon?

MR GAME:   Yes, your Honour.  The Court of Criminal Appeal erred in having regard to material that was not before it, namely the unedited account of the complainant’s evidence.

HEYDON J:   That was not before the jury.

MR GAME:   Sorry, that was not before the jury, yes.

GUMMOW J:   All right.  We should indicate to counsel at the moment we are disposed to give Mr Game the leave - we are disposed first to make the order extending time; secondly, to grant Mr Game the leave he seeks to supplement his draft notice of appeal at page 101 in the terms he recently explained to us; and, thirdly, we are minded to refer the application, thus constituted, for hearing by the Full Court.  Now, do you oppose that course, Ms Woodburne, namely the reference in, not the grant at this stage, but the reference in?

MS WOODBURNE:   No, I do not oppose that course.

GUMMOW J:   Thank you.  We will take that course.  How long would this case take to hear?  If you are right, it raises some important questions of conflicting views in various courts around the country.

MR GAME:   I would say a one‑day case, your Honour.

GUMMOW J:   Do you agree with that?

MS WOODBURNE:   Yes, we agree.

GUMMOW J:   Thank you.  All right, we will take that course.

AT 11.54 AM THE MATTER WAS CONCLUDED