The Queen v GW

[2015] HCATrans 267

[2015] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C4 of 2015

B e t w e e n -

THE QUEEN

Applicant

and

GW

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 12.51 PM

Copyright in the High Court of Australia

MR J. WHITE, SC:   If it please the Court, I appear with my learned friend, MS M.A JONES, for the applicant.  (instructed by ACT Director of Public Prosecutions)

MR S.J. ODGERS, SC:   May it please the Court, I appear for the respondent.  (instructed by Kamy Saeedi Law)

BELL J:   Yes.

MR WHITE:   Your Honours, the issue in this application is whether ‑ ‑ ‑

BELL J:   Mr White, I think in this matter we might be assisted if we heard from the respondent.

MR WHITE:   As the Court pleases.

MR ODGERS:   Dealing with the question of admissibility first, the appeal court dealt with that question at application book 55 and at paragraph 80 the court held that:

it was essential to address the correct question under section 13(3).

Now, the correct question is whether the judge was satisfied that the witness lacked the capacity to understand the obligation to give truthful evidence.

BELL J:   Yes.

MR ODGERS:   The court said at paragraph 80 that his Honour addressed a different question “in a subtle but important way”, and what his Honour said, as your Honours appreciate, was that he was not satisfied that she did have the capacity ‑ ‑ ‑

BELL J:   Yes.

MR ODGERS:   ‑ ‑ ‑ and the court said that in effect he had:

treated unsworn evidence as the “default” position.

Let me explain what that means.  On the correct analysis, if you are required to be satisfied she lacked the capacity then if you are not sure then the default position is she gives sworn evidence, because you are not sure; you are not satisfied that she lacked the capacity.  The approach that the judge took – and it was clear, with respect, from what he said, if you go to supplementary application book page 8, in that central passage the judge said:

despite the fact that the witness has indicated that she understands . . . the difference between the truth and what is not the truth, and says that she understands that she has an obligation to tell the truth today, I think that it is probably better to proceed under subsection (5) . . . because of the difficulty in truly gauging the level of her understanding . . . I am not satisfied that she has the capacity –

So what ‑ ‑ ‑

BELL J:   It is “truly gauging the level of her understanding and her age”.

MR ODGERS:   Yes.

BELL J:   His Honour is referring to a six‑year‑old child.

MR ODGERS:   Yes.

BELL J:   The prosecution and defence I think were at one in accepting that unsworn evidence was the appropriate way to go in this matter.  Certainly the prosecutor indicated that.

MR ODGERS:   Obviously, yes.

BELL J:   If one goes back to page 3, bearing in mind, Mr Odgers, that these reasons were delivered by his Honour ex tempore and in a context in which the prosecutor had submitted that the child did not have the capacity to give sworn evidence, his Honour says at supplementary application book 3 at line 31:

It seems to me that I need to go through the process in subsection (3) . . . before we get to subsection (5).

So, looked at in that context, one appreciates that had his Honour reserved and expressed himself perhaps with greater clarity, he may have put the matter differently.  But it is a little difficult, is it not, to at least see the argument that is put against you?

MR ODGERS:   Let me do it the best I can in confronting that difficulty, your Honour.  My submission is that the Court of Appeal made effectively a factual finding that his Honour did not address the correct question, that he was confronted by a situation where he knew that he had to find a particular level of lack of capacity, he concluded by saying, “Well, I’m really not sure, it’s not clear one way or the other.  She says she has the capacity.  It’s difficult to resolve.  I think it’s safer”, he said, “if I proceed to allow her to give unsworn evidence”.

The point is that the statute is unambiguous.  The statute is premised on a policy, which is that it is most desirable that people give sworn evidence, that witnesses give sworn evidence, that it is only in a very narrow situation - positively satisfied that the person lacks the capacity - that it is permissible to not be sworn, because it is desirable, as the Law Reform Commission made clear in its report.  It is desirable that witnesses be sworn.  So that what the Court of Appeal held was it appears that the judge has approached it in an erroneous manner where he is not sure I am going to give unsworn evidence.  What he should have done was reach that level of satisfaction she lacked the capacity.  He did not do that, therefore it was not done according to law.

Now, that was the analysis of the Court of Appeal.  We say there is no question of general importance here.  The Crown says, as your Honour I think put to me, that on one view of it he did reach the necessary level of satisfaction, but the Court of Appeal was not persuaded that he did.  With respect, your Honours, where is the question of general importance?  We are not disputing what the requirement is.  The Court of Appeal was not satisfied that he actually made the necessary finding.  That is challenged.  That was challenged below.  But why should this Court get involved in that, I respectfully submit?

BELL J:   I think one answer to that goes to the second ground of appeal relating to the ‑ ‑ ‑

MR ODGERS:   Directions to be ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ directions.

MR ODGERS:   All right.  Well, let me move to that, because my submission on the first ground is it is essentially a factual dispute.  The Court of Appeal came to the view that he did not reach the necessary level of satisfaction, and not a question of general importance.

BELL J:   We understand your point on that.

MR ODGERS:   Yes.  Moving to the second ground, it is correct to say that in the Court of Appeal I argued that a 165 warning should be given.  The evidence is evidence that might be unreliable.  I argued that both under 165 and also under the common law.  The Court of Appeal did not accept that submission.  What they held is to be found at application book 59.  At paragraph 99 on that page there is a reference – they rejected the argument that it is appropriate to give a 165 warning; so rejected that.  Then paragraph 100 is what was my fall‑back position which is, quite apart from 165, the court:

should have been told about the difference between sworn and unsworn evidence.

So that was the matter upon which the appeal turned and the court held that, yes, in this case the jury should have been told about the differences between sworn and unsworn evidence, and are there differences?  Of course there are differences.  One difference is that there is solemnity attached to the giving of evidence on oath.  Another is that there are sanctions that are available if a person is found to have lied on oath.  Then at paragraph 103 the court held this witness was a key witness:

The most fundamental and most difficult task that the jury had to undertake was to assess –

her reliability.  It was ‑ ‑ ‑

BELL J:   The court said in paragraph 103:

With a view to bolstering the reliability of evidence given in courts, the Evidence Act gives primacy to sworn evidence –

MR ODGERS:   Yes.

BELL J:   Now, the court did not indicate precisely the terms of the direction that it held should have been given, but it would seem from that ‑ ‑ ‑

MR ODGERS:   No, your Honour, with respect, I would say that is simply a statement that, consistently with what the Law Reform Commission proposed, which was that the default position is sworn evidence, it is desirable that all witnesses give sworn evidence.  Why?  Because there are certain characteristics of sworn evidence which might make it more reliable than unsworn evidence.  That is simply a statement of the policy behind section 13 which proceeds on the basis that if there is any doubt about it, give sworn evidence.  That was all that their Honours were referring to.

When they were talking about what needed to be said, what is, with respect, abundantly clear based from paragraph 100 which I took you to a moment ago and what is said earlier, that all that needed to be said to the jury was there are differences between sworn and unsworn evidence.  One is a difference that there is a solemnity attaching to the sworn evidence which does not apply to unsworn.

Secondly is there are sanctions which apply to sworn evidence for telling lies on oath which do not apply to unsworn evidence.  That is what they are referring to clearly - go back to 102.  They have referred to what was said in Lomman about that.  No suggestion that a judge should say any more than that, that you have this evidence, I simply point out to you and it is something you should take into account that there are those two differences between sworn and unsworn evidence, and they held that in this particular case it was necessary to tell the jury that because they would not know – the jury would not know.

BELL J:   That must apply to any case ‑ ‑ ‑

MR ODGERS:   Of course.

BELL J:   ‑ ‑ ‑ in which a child gives unsworn evidence, so that the ‑ ‑ ‑

MR ODGERS:   Yes, I think that is true, your Honour.  I think the consequence of this case will be that if requested - defence counsel will no doubt request it – that a judge would inform the jury of the differences between sworn and unsworn evidence, not suggesting that one is more reliable or less reliable, not saying that, not warning them, not doing anything other than to inform them of two facts which are relevant to their assessment of the reliability of a key witness.

BELL J:   Giving no assistance in saying how it is relevant.

MR ODGERS:   Well, your Honour, it was not incumbent on the Court of Appeal to spell out how the directions should be given.  This is not a direction like the statutory requirement in South Australia.  In South Australia there is a statutory requirement that you actually warn them and tell them to be cautious and need to scrutinise carefully unsworn evidence and the reasons why the witness was allowed to give unsworn evidence.  None of that is suggested in what is to be said to a jury.  The appeal was allowed because nothing was said.

GAGELER J:   What is it that you say is implicit in paragraph 103 about what the jury should have been told?

MR ODGERS:   What is implicit is – I will put it in my own words – “Ladies and gentlemen, the evidence was unsworn.  I simply inform you that unsworn evidence is not given with the solemnity that applies to sworn evidence and is not subject to the sanctions that apply to perjury, telling lies, when you give sworn evidence.  You should take those matters into account when you are making an assessment of the reliability of the key prosecution witness”.

BELL J:   So it is relevant to the assessment of the reliability of the prosecution witness?

MR ODGERS:   Yes, relevant to the assessment of the liability of the key prosecution witness and, with respect, of course it is.  Of course it is relevant.  There can be no dispute that it is a relevant factor.  The only question is, is it appropriate for the judge to draw that to their attention, something which they would not otherwise be aware of?  It is not a warning.  It is not be careful.  It is not, “I warn you that this is unreliable evidence”.  It is simply informing the jury of two matters which are, on any view of it, relevant to the assessment of the reliability of the evidence; not very relevant.  It probably would not make much difference at all in the mind of a jury.

BELL J:   I wonder how many jurors might speculate otherwise that a six‑year‑old would be exposed to liability to perjury?

MR ODGERS:   I take your Honour’s point.  It is something that a judge might include in the particular circumstances it was not necessary to say anything about, but in this case the Court of Appeal noted the differences, considered that it was necessary to say something about it, a request was made for a direction, they ‑ ‑ ‑

GAGELER J:   But it was a very different direction from the one that you are saying ‑ ‑ ‑

MR ODGERS:   I appreciate that it was expressed in somewhat different terms.

GAGELER J:   I must say, I confess that I had originally read the Court of Appeal as endorsing the form of direction that counsel sought.

MR ODGERS:   No, they did not.  They did not endorse that.  They accepted my fall‑back position, which was that you just simply inform the jury of the differences between the two types of evidence, differences which are, with respect, indisputable.  Whether in a particular case it is necessary to do so, well, that is a matter of judicial discretion and a matter for a Court of Appeal to decide whether it was necessary or there was a risk of a miscarriage of justice.

But it was not incumbent on the Court of Appeal to spell out what was precisely needed to be said, because nothing had been said in this case about it, in essence.  So the point I am really come to here, your Honours, in respect of this ground we say it is not attended by sufficient doubt, that it cannot be doubted that those are relevant factors, it cannot be doubted that in an appropriate case it would be appropriate for a judge to draw that to the attention of the jury ‑ ‑ ‑

BELL J:   I think you have accepted that every case in which a child gives unsworn evidence it would be appropriate if the Court of Appeal’s approach is right.

MR ODGERS:   I think I said that earlier, but I am going to pull back a little.  I hear what your Honour has said, that there may be cases where it is unnecessary or there is no risk of the jury mis‑estimating the evidence for some reason, there is no particular concern that would justify giving a warning.  The point about a warning, of course – sorry, I take the words back.  The point about a direction is you only give it if there is a significance risk of the possibility of a miscarriage, and that will depend on the circumstances of each case.

What the Court of Appeal said was that in the circumstances of this case where everything depended on the reliability and truthfulness of the complainant in circumstances where there was a real concern that she had been manipulated by her mother – I mean, it is important you understand that he – and there were acquittals in respect of some of the counts and this was a highly contested case where you had the sworn evidence of the accused and a contention that the victim – the complainant, I am sorry – had been manipulated by the mother, which raises both questions of reliability and truthfulness where it was essential that the jury look very carefully at the evidence of the complainant – the child – in assessing her credibility, and what they were saying at paragraph 103 was that in this particular case it was important to understand the difference between sworn and unsworn evidence; that is all.

So we say that the decision was not attended by sufficient doubt and that in those circumstances your Honours would not grant special leave in respect of that, and my position on the first ground was as I articulated.  May it please the Court.

BELL J:   Thank you.  Yes, we do not need to hear from you.

MR WHITE:   If the Court pleases.

BELL J:   There will be a grant of special leave in this matter.  As parties have been informed in matters earlier today, there is some consideration of the possibility of December as a date for the hearing.  Whether that continues to be the case, I am not quite sure, but your instructors can obtain from the Registry the directions.  There is a somewhat circumscribed timetable in the event a matter is listed in December.  But if I can just get your instructors to arrange with the Registry about that, I am not quite sure what the position is now in light of the grants earlier today.  But am I right in estimating that this would be not more than a day?

MR WHITE:   Certainly.

MR ODGERS:   Yes, your Honour.

BELL J:   Yes, very well.

AT 1.09 PM THE MATTER WAS CONCLUDED