Versi v The Queen

[2014] HCATrans 81

[2014] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S296 of 2013

B e t w e e n -

PETER VERSI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 12.01 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   Your Honours, I appear with my learned friend, MR J.C. CONDE, for the applicant.  (instructed by Nyman Gibson Stewart)

MR J.H. PICKERING, SC:   I appear for the Crown.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, we need an order that compliance with rule 41.02.01 be dispensed with.

KIEFEL J:   Extension of time.  Yes.  Is there any problem?

MR PICKERING:   There is no issue.

KIEFEL J:   Yes, you have that order.

MR JACKSON:   Your Honour, may I take a moment to deal with the basic circumstances before I go to the two matters with which I wish to address orally?  The applicant was tried on four, but convicted on two, charges of sexual assault; they were called counts 2 and 3.  They differed in severity.  Count 2 carried a maximum penalty of two years’ imprisonment, count 3, 10 years.  The nature of the case in respect of those two counts appears at page 179, and your Honours will see in paragraph 6 of our submissions in‑chief.  Now, your Honours, in relation to count 2, evidence was admitted as coincidence evidence of a suggested sexual assault on another child some years before; that evidence we have summarised in paragraph 9 of the summary of argument at page 180.

KIEFEL J:   This is the stepdaughter from a previous marriage?

MR JACKSON:   Yes, your Honour.  Your Honours, the trial judge’s ruling as to the admissibility of that evidence appears at pages 196 to 199.  May I take your Honours in particular to the ultimate ruling, which is at page 199, about line 49?  Your Honours will see that his Honour said, “The evidence is admissible in respect of count 2 . . . as coincidence evidence”.  The directions as to its use to the jury are set out at page 180 in paragraph 10 of the written submissions where we have set them out in toto.

Now, your Honours, we have summarised – and this is the last introductory thing I wanted to say – we have summarised the points which we seek to make at page 181 in paragraphs 11 to 14 of our written submissions and, your Honours, the two matters with which I wish to deal orally are these.  First, did the Court of Criminal Appeal err in holding that the evidence of SD1 ‑ that is the stepdaughter from the first marriage ‑ was properly admitted and, secondly, did the Court of Criminal Appeal err in its view that the verdicts on counts 2 and 3 were not unreasonable.  There is a relationship between the two aspects, but may I come to that?

Could I deal with the question of the admissibility of the evidence?  It is clear that the SD1 evidence was tendered as coincidence evidence.  Your Honours will see that referred to in the Court of Criminal Appeal’s reasons, page 128, paragraph 126, and your Honours will also see at page 134, paragraph 136, the observation that it was not proffered as being tendency evidence.

Now, the provisions of the Evidence Act governing such evidence in criminal proceedings are particularly relevant, sections 98 and 101.  They are set out, your Honours, at page 128, and the evidence has to pass the tests set out in both those provisions, and could I refer your Honours to section 101(1), which makes it apparent that in criminal proceedings section 101 has to be satisfied as well?  May I start with section 101 and, in particular, section 101(2)?  What your Honours will see is that it says, relevantly, to put it shortly:

coincidence evidence about a defendant . . . cannot be used against the defendant unless the probative value of the evidence –

not just “outweighs” but ‑

substantially outweighs any prejudicial effect it may have on the defendant.

Now, one only gets to section 101, of course, if section 98 is prima facie satisfied, and that will occur if the barrier, if I could put it that way, in section 98(1) is overcome.  The nature of that barrier ‑ and if I could refer your Honours to the words of section 98(1) ‑ the nature of that barrier is that evidence of two events ‑ here SD1 on the one hand and count 2 on the other ‑ occurred, and that evidence:

is not admissible to prove that a person did a particular act –

here count 2 –

. . . on the basis that . . . similarities in the events or the circumstances –

that is, of SD1 and count 2, make it improbable that they “occurred coincidentally unless”, and then one sees section 98(1)(b), unless “the court thinks that the evidence” of both events will “have significant probative value”.

If I could pause at that point, your Honours, the reference to “significant probative value” must, of course, be a reference to significant probative value in relation to the charge in relation to which it is to be admitted, and that would be count 2.  But this was a case in which there was more than one count with the trial proceeding on all four counts, and the question which then arose under section 101 was whether such probative effect as SD1’s evidence had substantially outweighed the prejudicial effect that the admission of the evidence might have in relation to each of the counts.

KEANE J:   Mr Jackson, do you say that the Court of Criminal Appeal did not address that question?

MR JACKSON:   Yes, I do.  That is what I am coming to, your Honour.  I need to go to a few paragraphs to demonstrate that negative, in effect, but the issue really, with respect, was not dealt with and the Court of Criminal Appeal’s reasons just slid off into something else, so I will come to that if I may in just a moment.  Your Honours, could I just say something about the nature of the evidence?  The trial judge at page 198, lines 15 to 42 had regarded the evidence of the two incidents as “strikingly similar” ‑ you will see that about line 29 on page 198 ‑ and the Court of Criminal Appeal at page 131, about line 22, used the phrase “so uncannily similar”.

Now, your Honours, we seek, as your Honours will have seen, to challenge that finding, but accepting it for present purposes it would mean, in our submission, that the more it might go to establish count 2 the more likely it was to give rise to prejudice in relation to the other counts on which it was not admitted, and, your Honours, it seemed, if I may say so with respect, quite naïve to think that the jury is likely to put out of its mind the evidence of SD1 when considering counts other than count 2 and, your Honours, I do not use that expression “quite naïve” as just a convenient throwaway line because, as will become apparent, that is exactly what the Court of Criminal Appeal itself did and, your Honours, again may I come to that?

Your Honours, staying with the question of admissibility, all one sees effectively in the trial judge’s reasons is the aspect I took your Honours to at page 199, and just above line 29 there appears to be no actual reasoning disclosed, and in the Court of Criminal Appeal the issue commenced to be dealt with at page 129, about line 41 and you will see, your Honours, that the issue that was raised concerning section 101.  If one goes then to the way in which that issue was disposed of, at page 130, in paragraph 128, Justice Adams referred in the first six lines to the fact that a conviction on one count could be used as indicating “a sexual interest in the complainant”.

Your Honours, in the abstract that is probably correct but, secondly, in the same paragraph, in the last six lines, he went on to say that a finding of guilt on any count “necessarily involved satisfaction” that the applicant was lying and “that his wife’s evidence was unreliable”, first of all, in respect of that offence, and then went on to say that that could be used “in considering the other counts”.  Now, I am going to come back to that, your Honour.  The proposition appears elsewhere but, in our submission, it cannot be right if, based on a guilty finding of count 2, where that guilty finding is based on the evidence, which is not admissible on another count, and is used for the purposes of that other count.

Your Honours, if one goes to paragraphs 129 and 130, a discussion of the evidence appears leading to the question of concoction of the evidence.  Could I note, your Honours, in passing in paragraph 129 at line 42 the reference to “The relevant events”, there is some discussion of what they are and, in effect, a difference between his Honour and Justice Basten, we would say simply that surely the probative value of the evidence was the sexual conduct itself, but there is not any consideration there of section 101(2) prejudice.  Then if one returns to the Court of Criminal Appeal’s reasons at paragraph 130, again, one does not see any consideration of that evidence.

Your Honours, one can pass over, for relevant purposes, paragraphs 131 and 132, and go to paragraph 133.  Paragraph 133 does deal with prejudice, but it is not dealing with coincidence evidence, it is dealing with tendency evidence, the tendency evidence being, your Honours will see, in the last three lines on page 132 and to the top of page 133.  Your Honours, could I just note in passing, in relation to the last few lines of that paragraph 133 that, notwithstanding what the judge says, those directions were in fact the subject of an appeal.  We have referred to that in our written submissions at page 184, paragraph 25, and given the reference.  Your Honours, could I go then to paragraph 134, and it is there that the coincidence evidence is discussed?

Now, your Honours will bear in mind that the Court of Criminal Appeal was dealing with the contention that the error lay in the admission of the evidence.  There are references to errors, but there is no discussion of the application of section 101.  Your Honours, if one goes to paragraph 134, and that continues, your Honours, through paragraph 134 – I am sorry, page 134 to page 136 and, in particular, paragraphs 138 to 142.  Now, there is application in that part of the reasons ‑ there is discussion, I should say, as to the application of the proviso, but nothing about section 101.  If one comes to the end of the discussion of the issue in paragraph 142 what is said is that, “Grounds two and six should be rejected”.

Now, ground 6, which you will see at page 72, was a direct challenge to the admissibility of the evidence of SD1 and the issue is issue ‑ so far as relates to section 101 ‑ is not just dealt with.  That is the first point, your Honours.  The second point relates to what your Honours will see as ground 4 of the notice of appeal at page 72.  It is a contention that the convictions on both:

Counts 2 and 3 were unreasonable and cannot be supported by the evidence.

It relates, as I have just said, to both counts.  The discussion of the issue commences at paragraph 152 in the Court of Criminal Appeal at page 140, and your Honours will see that a provisional conclusion is arrived at, at page 143, paragraph 156.  If your Honours look at the first five lines of paragraph 156 what your Honours will see is that they deal with the case on the basis of the evidence of the complainant, not SD1, and that that is so appears immediately from the next paragraph, but I will come to that more specifically in a moment.

If one goes to paragraph 156 however, just for the moment, what your Honours will see is that his Honour says there would be a doubt if one looked at the evidence relating to the complainant.  But his Honour goes on to deal then with the doubts being resolved by the jury’s advantage in seeing and hearing the evidence.  Your Honours, the jury saw and heard not just that evidence, but also the evidence on SD1 and, your Honours, that takes one to paragraph 157, and at paragraph 157, in the opening words, is a reference to:

the decisive matter which I have found convincing ‑

namely, “the evidence of SD1”.  Now, that led, as is apparent from paragraph 158, your Honours, at page 144, to the rejection of the evidence of the applicant and his wife on count 2, and that then led to what appears at paragraph 159, and in the second sentence and following it was said that the finding on count 2 affected the applicant’s credibility, a matter which could be used in relation to the other counts.  It was said also that it rendered the applicant’s wife’s evidence “unreliable or irrelevant” and, your Honours, could I just pause at that point?  We would submit that if that is not to use the evidence of SD1 for more than count 2, we put hypothetically, what is?

If I could endeavour to simplify it and perhaps a little more hypothetically, if one took a case where the evidence on, say, count 2 involved A plus B plus C, but the evidence on count 3 consisted of simply

A plus B, if a finding adverse to the accused on count 2 is reached, taking into account a matter not in evidence on count 3, then to use that finding, a finding adverse to the accused, whether it be as to his wife ‑ the credibility of his own evidence or his wife ‑ to use that finding on count 3, that is, a finding arrived at using what I call factor C, is to use it, in our submission, for a purpose for which it was not admitted.

Now, your Honours, there are other matters in the application to which we have referred in paragraphs 12(a), page 181, and 15 to 19, to an attack on the underlying significant probative value finding.  May I simply, in that regard, refer to our written submissions in‑chief in reply?  Your Honours, could I say this in conclusion?  We would submit this is a case where there is a serious contention, first, that the evidence of SD1 should not have been admitted and it is one where the Court of Criminal Appeal did not deal satisfactorily with the appeal and its reasons use the evidence for the purpose for which it was not admitted and we would submit it is a case meriting the grant of special leave.

KIEFEL J:   Yes, Mr Pickering.

MR PICKERING:   Thank you, your Honours.  Your Honours, it is very important to observe that there is still, in this application ‑ which was different in the Court of Criminal Appeal, but on this application ‑ no challenge to the admissibility of the tendency evidence in this particular trial.  The significance of that being that the jury were entitled if they found any of the accounts established in relation to this particular four count indictment to use that as tendency in the way that his Honour has outlined at page 130, paragraph 128 of the judgment of the Court of Criminal Appeal.  It appears from even listening to Mr Jackson today that there is no challenge that where his Honour has said:

If it were correct (and it must be) that a determination of the applicant’s guilt of any one, two, or three of the counts in the indictment established that the applicant had a sexual interest in the complainant, then that evidence could be used as supporting the Crown case on the remaining count or counts –

So the significance of that is, if you take a line of saying, well, SD1’s evidence ‑ which as coincidence evidence I accept was only relevant for count 2 ‑ but SD1’s evidence could not shape any other aspect of the trial, a trial judge would have had to shape a direction of saying, yes, you can use count 2 if it is established beyond a reasonable doubt as tendency evidence for count 1 or count 3 or count 4, but somehow because the coincidence evidence of SD1 which helped you get to the point of guilty on count 2 must somehow be put out of your mind in any consideration of the use of the tendency evidence on 1, 3 and 4.

What Justice Adams is essentially saying there is that such a direction would be wrong.  There was effectively an indirect use of SD1’s evidence in that it fed into the establishment of count 2 and established that beyond a reasonable doubt, but it was not directly relevant for count 1, 3 and 4, it was not that the coincidence evidence could not be used, but once count 2 was established and this evidence of SD1 did go to the question or whether count 2 could be established, the jury then is at a point where they have accepted beyond a reasonable doubt the allegations that make up count 2 and that can then be used in count 1, count 3 and count 4.  Now, clearly the jury ‑ ‑ ‑

KIEFEL J:   But if one accepts that it can be used in this way is not the question whether or not the Court of Criminal Appeal considered that question in relation to the provisions of the Evidence Act?

MR PICKERING:   Well, I say, your Honour, that clearly the Court of Criminal Appeal did because when your Honours look at page 129 and 130 of the application book in paragraphs 127 and 128 of the judgment your Honours can specifically see that his Honour at the bottom of page 129 is dealing with this prejudicial aspect, that “substantially outweighed” prejudicial aspect and then moves on at paragraph 128 to say, “I do not accept this submission” about 101 because the whole major aspect of any argument to say that there was this prejudicial effect was that if the jury heard about the coincidence evidence for count 2 that it would create so much prejudice for counts 1, 3 and 4 that the evidence should be excluded, but what Justice Adams is pointing out there is, well, no, you factor into that question of whether it substantially outweighs the prejudicial effect, the fact that it will have some indirect use for counts 1, 3 and 4 because of the tendency evidence, which was separately admissible, which means that once count 2 is established beyond a reasonable doubt it can be used in counts 3 and 4.

So the prejudicial effect is substantially reduced because there is some indirect use that can be made of SD1’s if it was accepted by the jury in its use of establishing count 2.  So that is where his Honour is specifically dealing with that aspect of whether the prejudice substantially outweighed the probative force.  True it is that same argument is also used when one looks at the unreasonable verdict, but it is using it there in a different way, that is, where the Court is looking at it to determine whether the verdicts were unreasonable, and Justice Adams says, well, the coincidence evidence ‑ and I have looked at it independently ‑ that satisfied me that count 2 was established, having now found count 2 established, having accepted that the tendency evidence was admissible, I now use that tendency evidence to consider count 3, now having considered count 3 in light of that tendency evidence I find count 3 to be also a reasonable verdict.

So in that context it is using it, although similar, in a different way, but looking back on it, when his Honour is dealing with the 101 question at paragraph 127 and 128 of the judgment, essentially, what his Honour is saying is that there is not as significant prejudicial impact on the other counts because of effectively this indirect use that SD1’s evidence can have on the other counts in the indictment because although the coincidence evidence was only relevant to count 2 the tendency evidence for count 2 was relevant and admissible for counts 1, 3 and 4 and, as I said, that is not challenged in this particular appeal at all.

So if the jury were entitled to use count 2 in that way clearly the Court of Criminal Appeal were entitled to use count 2 in that way to then consider the unreasonable verdicts.  But, as I said, if you look at the logic of what Justice Adams is saying, is that there is not the same significant prejudicial impact because of that interrelationship between the initial coincidence evidence to establish count 2 and then the tendency evidence of the use of count 2 and counts 1, 3 and 4, and so that was directly dealing with the question that is posed in 101(2) of the Evidence Act.  Thank you, your Honours.

KIEFEL J:   Anything in reply, Mr Jackson?

MR JACKSON:   Your Honours, our learned friend’s argument represents an analysis of what the Court of Criminal Appeal might have done but did not do, and could I say in particular this?  If one goes to page 185 and to our submissions in‑chief at paragraph 34 you will see that the point we have sought to make ‑ and this is about line 44 ‑ that:

the Court of Criminal Appeal went beyond legitimate tendency reasoning about guilt on one of a number of counts on an indictment to using –

it for other purposes, which we there identify.  Could I go back to the part relied on so much by our learned friend, and it is pages 129 and 130?  What your Honours will see is that the tendency evidence that is being spoken about in the first part of paragraph 128 is the tendency – I am sorry, I will start again – is that it indicates the possibility of “a sexual interest” of the applicant “in the complainant”.  Now, one accepts for present purposes that the conviction on a number of counts however arrived at – one of a number however arrived at is some evidence of a tendency of that nature.  But what your Honours will see is that when one gets to the remaining six lines of paragraph 128 it is then that his Honour goes further and says:

Furthermore, the guilt of the applicant in respect of count 2 . . . necessarily involved satisfaction beyond reasonable doubt –

of the two matters there referred to, and he goes on to say that ‑

the jury would be entitled to use that finding in considering the other counts.

Your Honours, that, in our submission, is something that lies at the heart of the error.

KEANE J:   Is his Honour saying anything more than the jury, having used that evidence to conclude, or to convict, on count 2, is in the position where it must necessarily have rejected the evidence of the applicant and his wife?

MR JACKSON:   On count 2.

KEANE J:   Well, and, having done so, why is it then not permissible for them to take that view of the evidence of the applicant and his wife on the other matters, having necessarily found their evidence not to be mistaken, but to be false?

MR JACKSON:   Yes.  Your Honour, if I could put it this way?  There is count 2, the assumption on which your Honour is putting the question to me says the jury have found on count 2 guilt on that, and involved in that is a rejection of the evidence of the applicant and his wife.  Now, it is a question that, of course, is arrived at in the light of the evidence on that, if you have a case where the evidence – the use on count 2 is restricted and is required to be restricted to a determination of that count.  Now, what it does mean is that to use the conviction arrived at using that evidence as evidence to arrive at the same conclusion in relation to counts where that is not in evidence is one which, we would submit, is erroneous.  It would be different ‑ ‑ ‑

KEANE J:   The question ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour.

KEANE J:   Sorry.

MR JACKSON:   May I just say one other thing?  It would be different if you had a case where there was no restriction on the use of the evidence and, your Honour, one can easily imagine a case, and there have been ones that have gone to this Court, where you have, say, four charges heard together, no restriction on the use of the evidence of any of them, and looking at the whole of the evidence the jury arrives at a view of the credibility of the witnesses, resulting in conviction and necessarily rejecting the evidence of the accused.  Now, one cannot complain about that.

But if you have a different situation where you have a restriction on the use of particular evidence to one of the counts and that evidence is used in arriving at the conviction on that count then, in our submission, it is erroneous to use the fact of the conviction involving the rejection of the evidence in the way your Honour is positing in relation to the other counts, because it is to do the very thing that the restriction of the evidence, the use of the evidence to one count, was intended to prevent.  Your Honour, that is an important point, in our submission.

KEANE J:   Why is not the point that this issue arose for the Court of Criminal Appeal in addressing the question whether the verdicts of the jury on all the counts were unreasonable, or on each count was unreasonable?  In addressing that question why is not it legitimate for the Court of Criminal Appeal to reason that the jury, having necessarily rejected as deliberately false the evidence of the applicant and his wife on count 2, could take the same view of their evidence in relation to the other counts?  In other words, it is not using the evidence in respect of the other counts, it is using the rejection of the applicant’s evidence and his wife’s evidence on the other counts.

MR JACKSON:   Yes, your Honour.  It is perfectly possible, we would accept, for in a case like this, a jury to have taken the view that he was guilty on this count and guilty on both counts.  In arriving at the second conclusion, or the conclusion in relation to count 3, the jury were not to take into account the evidence of SD1.  When the matter came ‑ ‑ ‑

KEANE J:   Sure, but they can reason, can they not, that we disbelieve, we disbelieve them?

MR JACKSON:   Your Honour, a jury is perfectly entitled to disbelieve, disbelieve the applicant, to make it simpler.  If they do so, however, they have to disbelieve in a case in which there are two counts and the evidence differs.  Now, it is perfectly possible, of course, to disbelieve him in relation to one count but not in relation to the other.  When the matter comes to the Court of Criminal Appeal ‑ getting back to the question your Honour was putting to me before ‑ the Court of Criminal Appeal has to look at each of the convictions.

Now, in dealing with each of the convictions it is not right, in our submission, to do what the Court of Criminal Appeal did ‑ and you can see at paragraph 157, page 143 ‑ to say, in effect, that the significant matter, or the decisive matter, was the evidence that was only admissible on count 2.  Your Honour, sometimes these things can go by default a bit, but it is an

important question in that regard, and it is a case which does directly give rise to that issue and, in our submission, it is one where the Court of Criminal Appeal should not have arrived at the conclusion which it did.

KIEFEL J:   The Court will adjourn for a short time to consider its position.

AT 12.35 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

KIEFEL J:   This application for special leave will be referred into a Full Bench.  Argument half a day, Mr Jackson, or longer?

MR JACKSON:   Yes.  Your Honour, it may go into an afternoon, I suspect.  Could I just say one thing, and that is in relation to a question of timing?  Your Honours will appreciate – and if I can just go for a moment to the actual sentence, or result of the Court of Criminal Appeal, page 167 ‑ you will see that the result of the Court of Criminal Appeal’s decision was that the sentence in respect of count 2, or the non‑parole period in respect of count 2 is over, but in respect of the more serious conviction the non‑parole period expires on 24 December this year, and I simply mention that in relation to the possibilities of an earlier listing.

KIEFEL J:   Thank you.  That will be taken into account.  Would the parties please ensure that they obtain a copy of the timetabling for argument before they leave?  The Court will now adjourn to reconstitute.

AT 12.41 PM THE MATTER WAS CONCLUDED