Uq v The Queen

[2020] HCATrans 42

[2020] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C13 of 2019

B e t w e e n -

UQ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 2020, AT 9.30 AM

Copyright in the High Court of Australia

MS A.E. MORRISROE:   May it please the Court, I appear on behalf of the applicant.  (instructed by Sharman Robertson Solicitors)

MR N.S. DRUMGOLD, SC:   May it please the Court, I appear with my junior, MS K.L. McCANN, on behalf of the respondent.  (instructed by Director of Public Prosecutions (ACT))

BELL J:   Yes, Ms Morrisroe.

MS MORRISROE:   Thank you, your Honours.  Your Honours, in relation to this matter, the applicant was arraigned on indictment on 16 July 2018 in the ACT Supreme Court.  The indictment contained seven counts of acts of indecency and seven counts of unlawful sexual intercourse.  Pleas of not guilty were entered in relation to each count on the indictment.  Following the arraignment, the applicant’s trial commenced before his Honour Justice Elkaim and a jury of 12. 

BELL J:   Yes.  I think, Ms Morrisroe, you can take it that we have read the materials.

MS MORRISROE:   Thank you.  In relation to the matters we determine by your Honours as to the special leave point in respect of this matter, in my submission the issue is narrow but it has broad‑reaching ramifications.  The issue is an important area of law relating to judicial directions at trial in circumstances where the issue of motive to lie has arisen as a result of the manner in which the trial has been run or the manner in which closing addresses have been put by counsel.

BELL J:   Now, here the matter was raised at the trial and the trial judge sought to address it both by a direction following the Crown Prosecutor’s address and then a more fulsome direction tailored to the issue that had arisen in the course of the summing‑up.  Your special leave question, as I understand it, seeks to have this Court give guidance about how a trial judge is to correct an error of the kind that occurred here when, in essence, the prosecutor, in closing address, invited the jury to consider why would the complainant lie.

The matter I raise with you, Ms Morrisroe, is the utility of the court attempting to give guidance about a matter which necessarily must depend on the particular facts and circumstances of the trial.  The trial judge is expected to tailor any direction taking account of the way the issues have unfolded in the trial.

MS MORRISROE:   Certainly, yes, I entirely accept what your Honour is saying in relation to that.  However, it is my submission that there are certain elements of what should be addressed that this Court could give appropriate guidance on and, specifically, it is in relation to how the jury should be directed in circumstances where motive has been raised, either in the course of the running of the trial or in the course of the closing addresses - correctly or incorrectly it has been raised. 

Should it be the case that, as it is held by the Court of Appeal in New South Wales, there must be a direction that upon rejection of any asserted motive that does not necessarily lead to the conclusion that the complainant is being truthful.  In my submission there are elements, certainly this Court cannot be proscriptive in relation to exactly what must arise in all cases, and there are facts and circumstances of each particular case that will certainly turn on themselves but, in my submission, there are matters that are essential baseline elements. 

GORDON J:   What are those elements that were missing here from the two attempts that Justice Bell has taken you to by the trial judge - the direction in general terms after the Crown closing and then again in the summing‑ up, what is missing from it?

MS MORRISROE:   In my submission it is missing a direction as to what to do if the motive to lie asserted is not accepted.  It simply says - and I will, so as to ensure I quote correctly, I will turn to turn the transcript. 

GORDON J:   This is at AB 13?

MS MORRISROE:   The first reference to it is actually AB page 8, and then the second reference in the summing‑up is at 13. 

GORDON J:   Do you rely on both of those?

MS MORRISROE:   Yes, those are the two occasions at which it is dealt with by the trial judge.

GORDON J:   Yes.

MS MORRISROE:   In my submission, in neither of those does the trial judge instruct the jury what they should do in circumstances where the motive asserted to make up the allegations, which is what was put in cross‑examination, what the jury should do at that point, in my submission it should be something that they are to place it to one side and, indeed, deal with it in the manner suggested by this Court in the manner of Palmer, which is an absence of evidence of motive is simply neutral.  It neither helps nor hinders either case, and there should have been ‑ ‑ ‑

BELL J:   I am sorry, Ms Morrisroe, but if one goes to the application book at page 55 in paragraph 92 we see an extract of the direction given in the course of the summing‑up where his Honour squarely says:

I should remind you that it’s not up to the accused to come up with an explanation for why the complainant’s evidence may be reliable.

Then his Honour goes on to remind them that the prosecution bears the onus and that the matter comes back to whether the jury accepts:

the complainants’ evidence about the critical events beyond reasonable doubt. 

That, at least in the first sentence, surely addresses the matter that you are raising. 

MS MORRISROE:   My submission is that it addresses the first part. 

EDELMAN J:  Does it go far enough?  Did defence counsel ask for a further direction beyond what was said at AB13? 

MS MORRISROE:   Defence counsel did not.  So following the prosecution closing address there was – following the closing address there was the morning tea break, the jury was sent out for the morning tea break, defence counsel raised with the trial judge his concerns that the prosecution closing address had been couched in terms of why would the complainant lie.  There was some consideration over the morning tea adjournment as to what should happen and following the morning tea adjournment but before the jury were brought back in the trial judge agreed that without criticism of the Crown Prosecutor he was willing to indicate certainly a direction as to the onus of proof, and he gave a short direction as to what the onus of proof was. 

What the trial counsel sought was some sort of rebuke as to the incorrectness of what had been put by the Crown Prosecutor, but no specific direction was sought following the final trial directions.  That was the issue subject to the leave point in the Court of Appeal. 

GORDON J:   The intermediate courts are not inconsistent on this, are they?

MS MORRISROE:   My submission is that, should this matter not be granted special leave to appeal, there will be some inconsistency through the intermediate appellate courts in that New South Wales does have that second element which is a direction that, failing an acceptance of the motive to lie asserted, there should be a direction that that, in and of itself, does not mean that the complainant’s evidence should be accepted and it does not mean necessarily that it is truthful.  It indicates that second element in New South Wales but, in my submission, if this matter is not granted special leave, that will not be the case in the Australian Capital Territory.

GORDON J:   Is that from DOE – is that where you get that from? 

MS MORRISROE:   Yes, and South.

BELL J:   But a direction that it is not incumbent on the accused to point to an explanation for why the complainant’s evidence may be unreliable carries with it the acceptance that the evidence may be unreliable.  The suggestion of a distinction or inconsistency between the Court of Appeal of the ACT and New South Wales based on the framing of a direction designed to correct a Palmer‑type error in prosecution address may be putting it high.

MS MORRISROE:   Ultimately, I accept that it is a particularly narrow issue but, in my submission, the manner in which this Court dealt with the matter in Palmer is to indicate that certainly there is some acceptance that “Why would they lie?” is the elephant in the room in relation to a lot of trial matters, particularly in circumstances where it is an oath‑on‑oath type of case, which is almost always going to be the case in relation to sexually based matters.

The difference between the landscape of sexual assault trials now and in 1998, in my submission, is a very marked difference in that it is now very common to have a joint indictment of multiple complainants where the issues in respect of each complainant may well be different.  There may be issues of concoction; there may not be issues of concoction that arise, but the issues as to motive or motives to lie are more likely, in my submission, to arise and it would be an appropriate time for this Court to give some guidance as to how they should be dealt with.

BELL J:   Palmer remains good law for the purposes of trials that nowadays involve perhaps more than one complainant and the like.  The matter that I come back to with you is the utility of an analysis of how, in an individual case, a trial judge is to direct a jury in a circumstance in which the prosecutor has stepped over the Palmer bounds.

MS MORRISROE:   In my submission, the utility is that the baseline facts and allegations of this particular trial matter are not particularly unusual in the current climate.  They were historical offences that were being dealt with some years later.  There had been a tendency application and there was cross‑admissibility in relation to the issues. 

It is type of trial that is fairly common and one would anticipate, unfortunately will remain fairly common.  It would be, in my submission, an appropriate vehicle by which to indicate what the appropriate manner to deal with the cross‑examination of a person, a complainant, that they made up the allegations and how that relates to the motive to lie in the context of Palmer.

EDELMAN J:   There may be some cases where the explanation, or the correction such as that at AB13 that is given by a trial judge, might actually be preferred by the defence to a slightly more fulsome correction that you are advocating in circumstances where the more fulsome correction might tend to direct the jury’s mind to the very question that is being corrected.

MS MORRISROE:   I would certainly accept that.  Certainly trial directions, again, cannot be terribly proscriptive in relation to exactly what they must involve and, certainly, I am not advocating that I seek that this Court be very proscriptive.  However, in terms of what I say or I submit was left out of that direction by the trial judge at AB13 or AB8, it is simply that the motive that was asserted was X, even if you reject that motive that does not lead you to the conclusion that the complainant’s evidence was truthful.  You must scrutinise it in the ordinary way and, perhaps, some directions of that nature.

GORDON J:   That is to make explicit what is, in a sense, implicit.

MS MORRISROE:   Yes, yes, and to make it implicit in circumstances where there is an acceptance that this is a question that does logically flow for ordinary people when considering the credibility of a person.  The further matters that, as a matter of logic there is good reason as to why it is, of course, that a defendant is not required – or should not be required – to demonstrate any motive as to why a person may or may not lie – including, of course, that you cannot see into the mind of another person and have no possibility to know why it is that someone may or may not say something that is not entirely truthful.

BELL J:   Ms Morrisroe, all those things may be accepted – they flow from Palmer.

MS MORRISROE:   Yes.  Ultimately, it is my submission that this Court could give guidance as to what a full, firm and clear direction is ‑ ‑ ‑

BELL J:   Yes.

MS MORRISROE:   ‑ ‑ ‑ and how it could be better dealt with.

BELL J:   Thank you, Ms Morrisroe.

MS MORRISROE:   Thank you.

BELL J:   We do not need to hear from you, Mr Drumgold. 

The Court is of the opinion that there are insufficient prospects were special leave to be granted that any appeal would succeed.  The application is dismissed.

AT 9.45 AM THE MATTER WAS CONCLUDED