TK v The Queen

[2009] HCATrans 290

[2009] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 2009

B e t w e e n -

TK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 12.13 PM

Copyright in the High Court of Australia

MR P. HAMILL, SC:   If it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the applicant.  (instructed by Warren McKeon Dickson Solicitors)

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

FRENCH CJ:   Yes, Mr Hamill.

MR HAMILL:   If I can first draw your Honours’ attention to a slight proofing error in the summary of argument at appeal book 298, your Honours will see a reference in a heading to “Grounds 1 and 2”, that should be a reference to “Grounds 1, 2 and 3”, and then on page 302 of the application book, the reference to “Ground 3” should in fact be a reference to “Ground 4”.

FRENCH CJ:   Yes, very well.

MR HAMILL:   If I can then take your Honours immediately to application book page 267 and to paragraph 136 of the judgment of the leading judgment in the Court of Criminal Appeal.  It is there that we say that her Honour fell into error and it is there where the point of general principle arises that justifies the grant of special leave in this case.

FRENCH CJ:   Which particular sentence?

MR HAMILL:   If I can take your Honours to the very last sentence on the page where her Honour said:

It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view.

BELL J:   Her Honour is there speaking of the submissions that the Court of Criminal Appeal was to infer that the jury had compromised.

MR HAMILL:   Yes, that is precisely where this case, in a way, starts and ends, and that is that because of the nature of the verdicts and the course of deliberations and what the Court of Criminal Appeal knew of the jury’s deliberation, that there was an argument that the mixed verdicts were the result of compromise between members of the jury and in disposing of that question, the Court of Criminal Appeal applied that test or took that approach, namely to cast upon the applicant an obligation of establishing unequivocal evidence of compromise.  We submit that that test, which stands as a test for compromise verdicts now in New South Wales, is a test that sets the bar far too high and is a test which is contrary to this Court’s judgment in MacKenzie v the Queen (1996) ‑ ‑ ‑

BELL J:   In the joint reasons in MacKenzie, where do you say the test is stated differently?

MR HAMILL:   Your Honour, I do not think that the joint reasons in MacKenzie purport to supply any legal formula or test, but the Court speaks in terms of possible injustice at page 368.  It speaks in terms of such submissions or grounds of appeal giving rise to a problem of justice.  That is at page 365, and the highest it is put by the joint reasons in MacKenzie, which is again at 368, is a strong suggestion of compromise.

FRENCH CJ:   In this case Justice Simpson went through each of the verdicts, did she not, and, in particular, those verdicts where there was a verdict of acquittal, or I think in one case no verdict being reached, and ascertained a basis upon which it would have been open to the jury to come to those conclusions without any element of compromise or abandonment of their oath, in effect.  I suppose the question is, in the approach she actually took – just putting to one side for a moment what you read at 136 – how did she actually err?  One looks to what appear to be plausible explanations; some of these offences did not involve actual violence.  There seems to have been a distinction drawn between apprehended violence and actual violence in some of the common assault matters, I think, and then intimidation fell into the same category as seen against a particular history in that case.

MR HAMILL:   Her Honour goes through the evidence and finds a number of bases upon which to justify the jury’s verdicts, but ultimately applies that test to it.  In circumstances where there were a number of factors at play, important factors from what one knew about the jury’s deliberation ‑ ‑ ‑

FRENCH CJ:   This is all about the apparent drama surrounding?

MR HAMILL:   Yes, and I will come to that very shortly, and the directions, perhaps more importantly, that surrounded and followed the drama, so that her Honour did not appear to, in this judgment, whilst her Honour did, in fairness, set out the various problems and dramas that arose, her Honour did not appear to apply the fact of those dramas to this question, and her Honour was looking for reasons for the difference in verdicts.

One possible reason for the difference in verdicts which gave rise to the more generalised unreasonable and unable to be supported ground, that is the jury ought to have entertained a reasonable doubt, was whether or not it may have been because the jury – or some of them – had doubts about the complainant’s credibility as a witness, and what her Honour did was to refer to – apart from the mixture of verdicts, there was also the fact that the complainant had asserted a history of intimidation within a marriage, and a specific and able to be proved or disproved aspect to that, was an allegation that the applicant had stopped her from ringing her parents in England.

BELL J:   But this is the matter that was dealt with by Justice Simpson who accepted that it would be open to conclude that in the respect the complainant was unreliable, but what was wrong with her Honour’s analysis that that did not carry with it any conclusion that the jury might not have accepted the complainant as truthful as to the matters that were the subject of the counts?  There existed credible explanation for the differing verdicts consistent with a jury doing its task.

MR HAMILL:   Her Honour set out that particular problem, which I have identified from paragraphs 186 and onwards, and accepted – as your Honour puts to me – that the complainant may have been unreliable in that respect.  In respect of the particular counts, the distinctions that were being drawn, for example, between the acquittal and conviction on counts 8 and 9, were extremely fine distinctions indeed, and when examined, perhaps did not exist, and we set this out in our reply where we say that the kinds of distinctions in the complainant’s evidence which was said to give rise to a plausible reason or a reason based in logic between the verdicts simply did not exist.  This was not a case with, for example, MFA, where this Court considered and applied MacKenzie and where there was a very clear distinction between the counts.

BELL J:   Mr Hamill, in this instance, the focus, as I understand it, before the Court of Criminal Appeal, was on the differing verdicts as between counts 8 and 9, both having a similar factual basis, but Justice Simpson pointed out that in the context of sexual misconduct within a marriage, one might expect the jury to have focused on matters including the question of the applicant’s knowledge that she was not consenting.  In relation to count 8 it was, I think, that her evidence was of that classic expression, “Not tonight, I’m tired”.

MR HAMILL:   There was much more than that.

BELL J:   I accept that, but that was a significant point of distinction, was it not, to her account on count 9, that she had said, “I just don’t want to”.

MR HAMILL:   Your Honour, it was, in our submission, not just that.  The court also relied on a lack of physical resistance, but in fact the evidence on count 8 which was reread to the jury, in fact did involve an account of physical resistance, and in particular the same physical resistance, namely the moving of the hand.  That was physical resistance.  “Not tonight, I’m tired”, and then wriggling away.  So we say that there was no significant difference between the quality of the evidence and the substance of the evidence on those two counts, and yes, there was a focus in the Court of Criminal Appeal on those two counts, simply I suppose for two reasons.  One was because they were plainly the most serious counts, they also went in a way with count 7, where the jury was unable to reach a decision, and also because any distinction between them was so very fine.

BELL J:   I think Justice Simpson’s point is in the context of this type of case, one might expect the jury, consistently with the injunction from the trial judge and defence counsel, to consider each count separately, to do that, and issues of knowledge of absence of consent in the context of sexual intercourse within marriage are lively.  It just seems to me, Mr Hamill, it is a difficult argument to make good.

MR HAMILL:   Her Honour also acknowledged in her judgment that the matters upon which she relied, namely the knowledge in the applicant of a lack of consent, was in relation both to the intimidation counts which her Honour expressly said caused her more concern and the sexual assault accounts were only before the jury somewhat cryptically, or obliquely.

BELL J:   But that was not for lack of interest from the jury.  They inquired about the matter.  It was more that, perhaps surprisingly, it had not been a focus of attention in the way the Crown had conducted the matter.

MR HAMILL:   No, because the focus of attention in respect of each and every count was this, that the complainant made allegations which the applicant denied.  That was the focus of the case all the way through until defence counsel – as her Honour points out – put forward the final element of the rape charges.

BELL J:   Had not the jury at an early stage questioned an issue touching on knowledge?

MR HAMILL:   Yes, they had.  Your Honour, just going back to where I was, the arguments which I have been directing in answer to your Honour’s questions, really are arguments which go to the more general assertion of an unreasonable verdict.  The clear error of principle which exists is this raising of the bar in a case involving compromise to a suggestion of unequivocal evidence of compromise and your Honour the Chief Justice referred to the dramas.

Your Honours are plainly clearly aware of those dramas, but the problem with this deliberation and these mixed verdicts arose in a context where the jury had been given what were, in our submission, plainly erroneous directions in response to that series of dramas.  Before the jury even retired to consider its verdict, a note came saying that a juror had made up their mind.  After the summing‑up, after about a day of deliberation, a juror came forward in effect saying, “I do not want to be here any more, it is unbearable in the jury room, they will not listen to me”.  That juror was then examined, remained on the jury, and the very next morning part of the balance of the jury, in effect, accused that complaining juror of breaching some of his Honour’s directions, so that there was ‑ ‑ ‑

FRENCH CJ:   What is the logical connection between that and compromised verdicts?

MR HAMILL:   That there were problems throughout which indicated that the jury may have been placing undue pressure on one another, and when that problem, which might lead to what the Court described in Cheatle that rather than the verdicts representing a unanimity of conviction, rather they represented the misery of men shut up without food, drink or fire, so that the minority, or possibly the majority, may give way and purchase ease to themselves by sacrificing their consciences.  That is how it is logically connected.

FRENCH CJ:   That is a bit more dramatic than this case.

BELL J:   In this instance, after those difficulties, the jury continued their deliberations.  Clearly there was some movement that pointed to movement beyond the shift of one person whose will was overborne, one might think, having regard to the history that Justice Simpson sets out, and in sending the note that became MFI 17, the jury pointed out that the three counts which they described as being at a point of stalemate was due to varying opinions, not conflict.

MR HAMILL:   The jury did say that, but one does not know whether that reflected the view of the whole jury.  The problem with this process, in a way, and one of the questions we say is important and would warrant the grant of special leave, is just how a Court of Criminal Appeal is to digest and use this information.  In this case, because of that accusation against the complaining juror, the complaining juror gave evidence and denied the two allegations made against him.  The foreman, who was the author of that note, and I think MFI 17, gave evidence and was unable to substantiate either of the allegations made against the complaining juror, so the extent to which one would take at face value a majority saying, “There is nothing to see here, it is all okay, there is no tension in here”, is difficult.

What we had was late one afternoon a jury saying that they were, in effect, stalemated or at stalemate, and the next morning in three counts, unanimous in respect of the first six counts, divided – we do not know the numbers, I think the judge in the Court of Criminal Appeal did – in respect of another three counts, and in the next morning that changes to seven unanimous.  So there is, as your Honour points out, movement.

The question is whether it is as a result of undue pressure, and as a result of compromise and that leads me to what does “compromise” mean, which is, in our submission, another very important point of general principle which arises very clearly from this case and which shows a divergence in approach in the New South Wales Court of Criminal Appeal. 

When your Honours look to appeal book 285, paragraph 194, the view that her Honour takes is that the suggestion of a compromised verdict is:

an accusation against all twelve members of the jury. 

Her Honour goes on to say that:

this cannot be taken –

that is, the frustration of the majority –

to implicate all other members of the jury in acting in defiance of the instructions that were given.

If your Honours look at the passage from Crisologo which is another case of her Honour Justice Simpson which is set out in our submissions in the appeal book at 301, your Honours see what we say is the correct position.  This is at page 301 at about point 30.  What her Honour was there doing was to explain that in that case there was little by way of external indicators of compromise.  One of them was the brevity of the verdict:

a relatively short time –

her Honour says at paragraph 33, line 27 –

for one or more jurors to be prevailed upon to do other than the duty ‑ ‑ ‑

That is what we would respectfully submit an assertion of compromise is.  It might be a case where a jury does some horse trading, I suppose, and actually does, as a group, fail to do its duty, but more likely it is the Cheatle scenario of undue pressure forcing a particular juror or jurors to compromise their particular position and join in a verdict which is not truly its, and whereas MacKenzie speaks of the jury being as inscrutable as a sphinx, this jury was very un‑sphinxlike.

We know a lot about this deliberation, and a lot of it, in our submission, troubling, and when the jury then comes back with verdicts that, in order to justify them, require very fine distinctions, and in our submission, as between 7 and 8, really no distinction at all, then ‑ ‑ ‑

FRENCH CJ:   Is it 7 and 8, or 8 and 9?

MR HAMILL:   I am sorry, I beg your pardon, 8 and 9, and then of course 7 where again the evidence was very similar but the jury was unable to reach a verdict.  Her Honour speaks of that a contra‑indicator of compromise.  What it really shows is that we were not just talking about one juror being out so that when a majority verdict direction was ultimately given he simply became that one man out.  This was a jury where a number of people must have had difficulties in order that there be a hung jury on seven jurors.

I have not referred to the particular directions given when those dramas unfolded and those directions were plainly wrong.  Her Honour acknowledged that they were ill advised and did not assist the jury.  It allowed for full‑scale brawls, raised voices, even raised voices given to one member of the jury in the absence of others.  My light has come on, I see.

FRENCH CJ:   We have read the submissions, yes.  Thank you.  We do not need to hear from you Ms Woodburne.

In our opinion, the decision of the Court of Criminal Appeal does not disclose error in the way in which the Court of Criminal Appeal assessed whether different verdicts in a multiple‑verdict case reflected a compromise inconsistent with the jury’s duty.  There is no error of principle otherwise disclosed on the part of the Court of Criminal Appeal in relation to the other grounds which would warrant the grant of special leave.  Special leave will be refused.

We will now adjourn to reconstitute.

AT 12.35 AM THE MATTER WAS CONCLUDED