Stennett v The Queen

[1994] HCATrans 470

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1994

B e t w e e n -

NEIL BRYCE STENNETT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

Stennett 1 26/8/94

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1994, AT 2.45 PM

Copyright in the High Court of Australia

MR M. DAVID, OC: If the Court pleases, I appear with

MR I. SAMPSON for the applicant. (instructed by

Condello & Co)

MR R.S.L. WILD, OC: If the Court pleases, I appear for the

respondent.	(instructed by the Director of Public
Prosecutions)

MASON CJ:	Mr David.
MR DAVID:	If the Court pleases, the point upon which

special leave is sought in this matter is whether a

Court of Criminal Appeal, in entertaining an appeal

from a conviction by trial by jury, in which one of

the grounds of appeal is that the judge erred in

finding that there was a case to answer, can in

fact consider that ground by looking at the case as

it stood up until the stage that the Crown case was

finished or, to the contrary, must it be a

situation where a Court of Criminal Appeal cannot,

in fact, entertain that type of ground but must in

fact look at the whole of the evidence on the basis

of whether the verdict is unsafe and

unsatisfactory.

McHUGH J:  But your case does not get off the ground if

there was a case to go to the jury at the end of

the Crown case, does it?

MR DAVID:	No, it does not.
McHUGH J:	Do you not have to concentrate on that, to

persuade us for a start?

MR DAVID:  Yes. Well, that is the point of principle anyway

that I raise.

MASON CJ:  Perhaps you ought to turn to the question that

Justice McHugh has identified in the first instance

because we do not get to any point of principle at

all unless you overcome that initial hurdle.

MR DAVID:  Yes. If the Court pleases, that entails going to

those matters of fact which are contained in my

summary of argument. The Crown case was, in fact,

a purely circumstantial case, especially in the

area of the question of lack of consent. It was

argued before the learned trial judge that applying

the Billick and Starke test, where the case is

purely circumstantial, namely, is there

satisfaction that a reasonable person could say

that the evidence satisfies them beyond reasonable

doubt, that, in that case, there could be no such

satisfaction.

Stennett 2 26/8/94

If the Court pleases, I do not wish to repeat, but if I could go briefly through those facts which made out the Crown case at that stage accordin1 to

the learned trial judge, they were that: during

the course of an evening of revelry, the

complainant, from about 11.30 onwards, ceased to

have a memory of certain events that took place;

that at about 1 to 1.30 am in the morning she was

taken to her room in a comatose condition; that, on
objective evidence, at about 1.30, the defendant,

the applicant now, was seen to leave that room,

denied that he had had any contact with the woman.

The evidence was such that in fact it was shown

that there was evidence to go to a jury - and there

was no dispute about this, that he in fact entered

that room through a window; there was the smell of

semen in the room, but that semen was not

identified; there was semen on her underpants, but

that semen was found by way of forensic evidence to

have come from another person - - -

McHUGH J: But the witnesses not only identified the semen

by smell, but also by visual observation or

appearance, did they not?

MR DAVID:  Yes, but when it was examined, that could not be

conclusively proved.

McHUGH J: Well, I know.

MR DAVID:	The material was consistent with being semen but not necessarily so, and it was a neutral factor as
to where it came from.  It may have come from the
accused or it may not have.  The semen on the
underpants, which were fresh in the sense that
those underpants had been washed, came from
somebody else.

McHUGH J: Yes, we know that.

MR DAVID:  Now, at 2 o'clock in the morning the complainant

was found by other people to be sound asleep with

her pants down and the state of the room as it was,

as I have just described, and at that stage, that

was really what the Crown case was all about, with

the additional material that during the course of the evening the applicant had been making certain

advances towards this woman.

Now, if the Court pleases, it was argued

before the Court of Criminal Appeal, that

therefore, the circumstantial evidence, as far as

lack of consent, was that this woman must have been

asleep and therefore incapable of giving consent at

the time that he was in the room. There was no

direct evidence of that because her evidence was

not, "I was asleep"; her evidence was that,

Stennett 26/8/94

"Throughout the course of a certain period of time,

over a number of hours, I cannot remember", and it

entailed in that period of time where she cannot

remember there was objective evidence that she was

asleep. But it was argued, that there was no
direct evidence that she was asleep, as distinct

from consenting to whatever was going on. It was

argued that the inferences to be drawn from the

fact that before he went into the room she was

asleep, and after he went into the room she was
asleep, you could safely draw the appropriate
inference under the authority of Billick and

Starke, namely satisfaction beyond reasonable

doubt. Even elevating that inference to its

highest, it was argued, as I argue now, that one

could not safely elevate it to that stage by saying
that it was necessarily so, or to the state of
proof beyond reasonable doubt that she was asleep
during that period of time he was there. And that
was the argument that was put to the learned trial
judge and, indeed, is the argument I put now as to
the basis of there being no case to answer by way

of the inferences that the Crown were seeking to

draw.

If that is so then the question, in my

submission, takes on a different character when it

comes to the Court of Criminal Appeal, because the

Court of Criminal Appeal said, in this case, they

could not look at the question of no case to answer

by merely looking at the Crown case. The Court of

Criminal Appeal in fact said - and I will not go to the passage, it is in my written outline - "We

cannot even entertain that ground of appeal; we

must look at the whole of the evidence."

Now the defendant himself, or the applicant here, then gave evidence as to him going into the

room and what happened.	That is contained in my
written submissions at page S, very briefly.	He
when she awoke for a short period of time, and then	said he went in there, certain activity took place, he did not ejaculate, but whatever happened was
he left.
If the Court pleases, it might be argued that there can be no harm in them looking at an unsafe
and an unsatisfactory argument rather than no case
to answer argument, because what he said may not
have, in fact, harmed his position as it was at the
end of the Crown case.

McHUGH J:  I must say, speaking for myself, subject to

hearing your opposition, I would feel quite

strongly that you should have been acquitted at the

close of the Crown case, and you were not, then

there has been a fundamental defect in criminal

Stennett 4 26/8/94

procedure which would constitute a miscarriage of

justice, and would require setting the verdict
aside. But it does seem to me that there was a
case to go to the jury at the end of the Crown

case.

MR DAVID:	Yes.
McHUGH J:	I mean, there is a question of desire, intention,

the fact that the victim, if I can call her that,

was deeply unconscious - had to be assisted to her

room - was found deeply asleep, with her jeans

down; with her buttocks exposed; with semen on

her; that your client had gone to the room. Those

facts seem to me to make a prima facie case that he

had had some form of sexual dealing with her, but

having regard to her condition it was open to a

jury to conclude that she did not consent.

MR DAVID:  Yes, well I do not want to give a jury address,

Your Honour and, in fact, that is what I would be

doing if I had an argument with Your Honour about

that. My submission is that on the very specific

question - there is lots of evidence that could

infer most of that, of course, but the specific

element upon which the case was really fought was

the question of consent, being, whether she was
awake during that period, during that very short

period that he was in the room.

Now, it is my submission, as I have already

submitted to the jury and to the judge, that during that very short period of time one could not safely

infer to the required degree that she was asleep

and not consenting during that specific period of

time.

MASON CJ: The period of time which lapsed from the time

when she was taken to the room in the condition,

which has been so described, and the time when the

incident is alleged to have occurred, was no more

than 2 and a half hours.

MR DAVID: Less than that, Your Honour.

MASON CJ: Less than that. Now, in those circumstances, I

would have thought that anyone would infer, from

her condition when she was taken to the room, that

she remained in an unconscious state throughout

that period of time.

MR DAVID:  Yes. With respect, my retort is - and it is very

much a factual retort - that with him in the room,
coming in through a window, in those circumstances,

without any direct evidence to the contrary, in my

submission, that would be, with the greatest of

respect, an unsafe inference, and that is what was

Stennett 26/8/94

argued and, as I say, i would be giving a jury

address, in the sense, to expand on that.

Now, if the Court pleases, the not

entertaining - and I take Your Honour

Justice McHugh's point, if I could come over that

first hurdle, I really do not have to go any

further - - -

McHUGH J:  I am only speaking for myself.

MR DAVID: But, of course, if I do have to go further, if I

had got over that first hurdle and if I do have to

go further, it is my submission that there was a

difference between unsafe and unsatisfactory and no

case to answer, because the Court of Criminal

Appeal in fact took into account that the jury had rejected his evidence and therefore you have the

extra dimension which should not be present during

their considerations, "Oh, they did not think much

of him" or "They did not think much of his

explanation" and if, in my submission, the judge

made a mistake, he should not even be in that

position in the first place, whereby his evidence

could be rejected.

Now, if the Court pleases, that is the point of importance whic, in my submission, should

create leave to appeal.

MASON CJ: Yes, thank you, Mr David. Mr Wild.

MR WILD: If the Court pleases. Perhaps I could just start

by saying that the time gap, Your Honour, was half an hour, at most; it was between half past one and about 2 o'clock.

TOOHEY J: Half past one she was last seen.

MR WILD:  Yes, half past one and 2 o'clock the man was seen

to be leaving the room.	It was a very short
compass, the time, and gives even greater support

to Your Honour's point.

My learned friend's submissions in relation to the matter, in relation to the sufficiency of the

evidence, were made to the trial judge and rejected

at the no case stage, and that appears in his

reasons at page 129F. The same submissions were

made to the jury and they rejected them, it is

assumed, and they were also made to the Court of

Criminal Appeal and they rejected the submissions

also.

Now, my learned friend says that the Court of

Criminal Appeal took into account the fact that evidence was given by the applicant at his trial

Stennett 6 26/8/94

and that was said by the Court of Criminal Appeal,
at page 213, to have been obviously rejected by the

jury in so far as it included a claim by him that the woman was consenting. But in fact in dealing with the evidence that the court regarded as

sufficient to justify the jury verdict, or

justifying as an argument against it being unsafe

and unsatisfactory, the Court of Criminal Appeal

concentrated on the Crown evidence.

If the Court looks at the application book at

pages 214 and 215, which summarize the evidence

which the Court of Criminal Appeal found to have

been the acceptable evidence and evidence which

gave rise to the jury's verdict, then it is almost

entirely based on a summary of His Honour's

findings half-way through the trial of what the

evidence was and what inferences could be drawn

from it. All consistent with a view, in my

submission, that the jury verdict was an

appropriate one and a reasonable one. Or, put
another way, was not an unreasonable one and, on

the evidence, was a proper one on that basis. It

would not have mattered really what the applicant
had said. There was no missing link supplied by

him in giving evidence which advanced the Crown

case. His evidence was, exculpatory; it did not

confirm anything which needed confirmation; there

already was all the other evidence of his

activities in the room and the implications that

could be drawn from it.

So, to that extent, the evidence was fit to go

to the jury at the appropriate time, when the

no case submission was made and was proper evidence

to found the verdict.

If that be so - and it is the Crown's

submission that it is - then it really need not

concern this Court whether or not some accelerated

means of considering the case was used by the Court
of Criminal Appeal.	I take Your Honour's point
that - - -

McHUGH J: 

It is like allowing the Crown to reopen in the

accused's case. It is just a fundamental defect in
procedure, so it seems to me.

MR WILD:  I hear what Your Honour says about that. That is

not the view that the Court of Criminal Appeal has

taken in Victoria.

McHUGH J:  I know.

MR WILD: In Wood's case. There is a later case, not

referred to in my summary of submissions, in

England, where Power's case has been more

Stennett 7 26/8/94

authoritatively overruled.	I have a reference to
it somewhere in my notes.	I do not think we need

trouble the Court with it today.

It is fair to say that there has been another decision also of the Court of Criminal Appeal of

South Australia in Johnson's case which seems to be

contrary to Wood as well. So, if the Court was

satisfied there was a point of principle here,

there is some encouragement for that, I should say,

in that some of the courts take a different view to

wood. There is also the implicit statement in

Murphy's case in the New South Wales Court of

Criminal Appeal which indicates that the two

arguments went forward separately, in other words,

a no case submission.

MASON CJ: What does it indicate?

MR WILD:  That court, the Court of Criminal Appeal of New

South Wales, deals with the two arguments

separately. In other words, the argument about no

case and the argument in relation to the whole of

the evidence in a case where Mr Justice Murphy gave

evidence in his own defence. So, there were two

stages at which the court considered the arguments

put on his behalf. That was the matter that was

referred by this Court back to the Court of

Criminal Appeal.

TOOHEY J: What do you say happened here, Mr Wild?

MR WILD: In this case, Your Honour?

TOOHEY J:  So far as the Court of Criminal Appeal is

concerned. In particular, did it direct its

attention to the sufficiency of the case to go to

the jury at the end of the Crown case?

MR WILD:  Implicitly, it did, Your Honour, because of the

nature of the evidence it considered at pages 214

and 215 in considering whether the verdict was

unsafe or unsatisfactory because, in fact, it deals

with the very same evidence which the trial judge

found as being sufficient to justify the case going

to the jury.

TOOHEY J: Yes, that is true. It does not go out of its way

to identify that that is what it is doing.

MR WILD:  That is true, Your Honour, and because of what

appears on the second page of the judgment, which

is the passage complained of by my learned friend -

perhaps I should refer the Court to that page -

page 209 of the application book, in the middle of

the page where the court relies on Wood there, you

will see, Your Honour.

Stennett 26/8/94

Then when Your Honours come to page 215 at the

conclusion of the argument or it is, rather, a
discussion about the evidence which the court used

to find it was open to the jury to return the

verdict - and this is about point 4 on the page.

It says:

The first and second grounds of appeal

cannot be sustained.

But it has dealt with - - -

TOOHEY J: It has to be a matter of inference, really, and I

suppose it is a matter of inference from the fact

that no reference is made to the accused's own

evidence.

MR WILD:  Yes, as supplying a missing link, as it were. And

that really is the complaint, with respect, that

might be thought to be found in a verdict of guilty

where a defendant, an accused person, has given

evidence and put himself in, as it were, and

therefore there has been a miscarriage in that

sense where he should not have been obliged to give
evidence, and I think that is Justice McHugh's

point which is a valid point, with respect. But it

does not arise in this case, with respect. The

evidence was sufficient. Ultimately, there is no

miscarriage of justice because the evidence was

sufficient to go to the jury and was found to be so

by the trial judge, the jury, obviously, and the

Court of Criminal Appeal who have examined the evidence in the way that they are supposed to,

fully.

so, the Crown submission, the respondent's

submission here is that there is no general point

that needs any further consideration by this Court.

MASON CJ:  Thank you, Mr Wild. Mr David.

MR DAVID:  One matter briefly, Your Honour. In relation to

the matter Your Honour Justice Toohey has raised:

at page 209 of the application book, the Court of

Criminal Appeal said, half-way down the page:

ground 2 of the appeal is unavailable, being

for practical purposes subsumed within

ground 1 of the appeal. It is therefore

appropriate to disregard ground 2 and proceed

to consider whether the verdicts of the jury

were unsafe or unsatisfactory.

That is my complaint, if the Court pleases.

Stennett 9 26/8/94

TOOHEY J: Yes, I see the force of that. At the same time,

when you look at the examination that follows, the

analysis is confined to the Crown evidence.

MR DAVID: Except, if Your Honour pleases - and I hope I am

not clutching at straws, but if we go to page 213:

It is clear the jury rejected at least so

much of this account as supported the

appellant's claim of consent.

Now, in my submission, that is what muddies the

waters, by throwing into the equation, into the

circumstantial case that appeared just on the Crown

case, the factor of the rejection of the

applicant's case which, in my submission, should

not have been a consideration. If the Court

pleases.

MASON CJ:  The Court will take a short adjournment in order

to determine how to deal with this matter.

AT 3.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.10 PM:

MASON CJ: The view of the Court is that there was a

sufficiency of evidence to go to the jury at the

end of the Crown case. The application for special

leave to appeal is therefore refused.

AT 3.11 PM THE MATTER WAS ADJOURNED SINE DIE

Stennett 10 26/8/94