Warner v The Queen

[1995] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A45 of 1994

B e t w e e n -

GARY JOHN WARNER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 30 MARCH 1995, AT 11.24 AM

Copyright in the High Court of Australia

MS M.E. SHAW:   If it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, for the applicant.  (instructed by Phillip A. Templeton)

MS W.J. ABRAHAM:   If the Court pleases, I appear with MR R.N. JENSEN for the respondent.  (instructed by P.J.L. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN J:   Yes, Ms Shaw.

MS SHAW:   There are two parts to the applicant’s submission for special leave.  Both raise the issue of the potential implications of a verdict of not guilty on one count of an information joining several counts.  The first special leave point raises the question of the proper direction to be given to a jury where a number of counts are joined on an information and depend upon the evidence of a single complainant.

The second part of our submission is that the majority of the Court of Criminal Appeal has erred in principle in not carrying out a proper evaluation of the nature and quality of the evidence of the complainant in order to determine whether the verdicts are unsafe and unsatisfactory.  It is our submission that his Honour Justice Prior, who delivered the majority judgment, incorrectly interpreted the verdict of not guilty on counts 1 and 2 as being unsafe on the part of the complainant as to the date of the offence.

As to our first special leave point concerning the proper directions, it is our submission that the standard direction commonly given where several counts are tried together, namely that the jury must consider each count separately, is capable of misleading a jury in its overall evaluation of the evidence, if standing alone.  That was the view taken by his Honour Chief Justice King in his dissenting judgment in the circumstances of the present case.  He says so at page 345 of book 2 of the application books at line 5.  His Honour the Chief Justice did not specifically consider the direct issue because he found the verdicts were unsafe and unsatisfactory but during the course of his finding on the issue of the satisfactory nature of the verdict, at line 6 he said:

The second factor is that the summing up was misleading as to the significance of the refutation of the girl’s evidence as to the Australia Day weekend.  In directing the jury to consider each count separately, His Honour said:

“Do not confuse or consider the evidence with regard to any one occasion in considering the evidence with regard to another occasion or the other occasions.”

And, in fact, his Honour the trial judge had twice directed the jury in that fashion.  His Honour the Chief Justice went on to say:

That direction would have tended to deflect the jury from considering the impact of the evidence refuting the allegations relating to the Australia Day weekend, upon their assessment of the reliability of the alleged victim’s evidence as to the other occasions.

It is our submission that it is well recognised that there is an obligation upon a trial judge where a number of counts are joined to direct the jury to guard against the risk of impermissible prejudice by confining their consideration of each count to the evidence admissible upon that count.

However, it is submitted that that direction standing alone fails to explain to a jury the critical distinction between evidence which goes to the proof or disproof of a particular count and evidence which can properly be used to impeach the credit of a witness on all counts.  Evidence led in relation to one count which damages the complainant’s credibility ought to be capable of being taken into account in the assessment of the complainant’s credibility in relation to all counts.

In the present case, not only was there positive proof of the complainant’s account as to the first offence, namely that it was a fabrication, but other evidence was adduced which impinged upon her credibility overall.  There was evidence of a potential motive to make false allegations, evidence of the complainant’s conduct after all of the incidents at a picnic when she was fraternising with the applicant but has denied any wish to see him ever again, her initial refutation of the truth of the allegations when she was confronted with the contents of her diary; all of these matters were capable of reflecting upon her credibility over all as a witness.

The trial judge, however, directed the jury to consider the charges and the evidence relating to each charge separately.  He then dealt with the evidence by relating it to the jury according to the chronological order in which it was given.  He did not direct the jury that if they rejected significant part of the complainant’s evidence it might cause them todoubt the remainder.  His Honour Justice Prior, who delivered the judgment of the majority, considered the argument at pages 361 and 362 of the application book and decided, in effect, that the direction contended for could have been given but obviously it was not mandatory.

It is submitted that a question of principle arises in that there is uncertainty as to the interrelationship between a number of directions which ought to be given where several counts are joined on a single information.

BRENNAN J:  In a case like this where so much depended upon the question of credibility and where the issue in relation to the January weekend in 1991 was resolved by the jury adversely to the prosecution, is it not rather unreal to think that the jury in some way left out of account their assessment of credibility of the same witness giving evidence in the whole of the case?

MS SHAW:   Your Honour, it is often said that directions are given to prevent juries from adopting the obvious approach and jurors are expected to follow directions that they are given.  So that when here the jury was specifically directed to confine their considerations to the evidence relevant to each count, in my submission it can only be inferred that they acted according to those proper directions.

BRENNAN J:   That would be a perfectly proper direction, so far as the issues of fact relating to each count are concerned.  But the problem that really underlies this is the question of the jury’s assessment of a single witness’ credibility and the jury would not have divided that view into several parts.

MS SHAW:   Unfortunately, in our submission, the directions overall gave the jury no inkling that they were entitled to take into account credibility overall in their assessment of an individual count.  And more than that, once they had completed their consideration of counts 1 and 2 and arrived at the finding of not guilty, then the directions would have, in effect, said to them, look, once you have made that decision you then put that evidence out of your mind when you go on to consider the rest of the case.  And that, of course, is a proper direction to give a jury in accordance with Kemp v The King, that a jury must put the evidence of incriminatory evidence relating to an accused out of their mind when going on to another count, that they cannot reason by a propensity, for example.  In my submission, that is why it is necessary to explain to a jury that there is a permissive and an impermissive use of a finding in relation to a not guilty on the first count.

So, to give an example here, we were left to the obvious, then the jury might be entitled to say on that basis, well, she has made these allegations on count 1, we find that they are not proved, but obviously that might support her contention when she says to Stephen Graham, “It’s happened again”, despite the fact we have found the charge not proved on count 1.

BRENNAN J:   But if you look at pages 267 and 268 one finds a reference to separate occasions on 267.  On 268 the judge is giving them directions which he prefaces by the words “Still on matters of a general nature”.  Why would not a jury have decided, not as a matter of decision of a finding but as a matter of impression and psychological workings in the first place, do we accept the prosecutrix beyond reasonable doubt.  Do we accept her beyond reasonable doubt in cases where there is something to support or something to negate what she says.  And having formed some general view of credibility, then set about examining the specific evidence in relation to each case.

MS SHAW:   That, your Honour, in my submission is not this case.

BRENNAN J:   Why not?

MS SHAW:   If you had a case where, for example, on some counts the complainant was corroborated or on other counts the complainant’s memory was defective for some reason or another, then that kind of approach might be significant.  But that is not this case, because in this case the complainant, one might say, was consistent in her ability to be definitive, to recount the details of each offence, and the only difference between the verdicts must be that the accused was able to positively refute her allegation as to count 1.  So it is not a case where one could say on the face of it, a discerning jury has been able to identify weaknesses in her evidence which are evident on one count but not on another.  It is a case where the accused positively disproved what she said on the first count and by not giving the direction contended for here, the accused has effectively been deprived of the benefit of that damage to her credibility in the jury’s assessment of the remaining counts.  Because the direction at page 268 does not go on and say, which is often the case when a direction as to the assessment of witnesses is given, that if the jury rejects part of the complainant’s evidence and consider it to be a significant part, then that might affect their confidence in the remainder of her evidence.  And, indeed, the New Zealand Court of Appeal in the case of Dean, No 2 on our list of authorities, effectively says that it is mandatory that the accused gets that direction in a case, particularly when he has shown that the complainant’s account is impossible.  That was the status of the defence case on count 1 in this particular case.

So it is our submission here that the directions wrongly confined the evidence.  The other example, of course, relates to the evidence of Stephen Graham at page 291 of the summing up where his Honour again confined the evidence of Stephen Graham to what happened in the bedroom, that is the second count, and effectively therefore prevented the jury from being permitted to use that evidence as to relationship, the termination of the pregnancy, the break-up of her relationship with Graham, on the other count.

In our submission, the difficulty that has arisen is because of the uncertainty of the relationship between a direction not to use evidence on one count in relation to proof of another, but on the other hand, the need for a direction that an accused in entitled to receive the benefit of any attack or successful damage to credit on an earlier count.  In our submission, the effect of the Court of Appeal judgment of the majority is that accused in the future will not be entitled to this particular direction, it is simply a permissive direction, in circumstances where it ought to be a mandatory direction.

The second part of our application is that his Honour Justice Prior erred in principle in his approach to the independent examination of the evidence in order to determine whether the verdicts are unsafe and unsatisfactory.  His consideration of the question appears at page 364, line 20, of book 2 and proceeds on to page 365.  At line 25 he posed the test as his determination was that he had to consider the evidence -

in order only to provide the basis for a judgment whether the jury ought to have had a reasonable doubt on all three occasions contested before them.

Then on page 365 he confines his consideration of the evidence to whether or not each count was proved, that is that there was sufficient evidence to form a basis for the count.  However, in our submission, he erred in principle in that he determined that the effect of the not guilty verdict in relation to the first count was a matter of mistake by her and he did not affect her credibility adversely in any way whatsoever.  In particular, he said, at page 365, line 20:

Plainly by these verdicts the jury found the accused’s denials unconvincing but the girl mistaken as to the occasion when there was sexual contact with her uncle at Port Elliot.

It is our submission that there was no issue of mistake that was open to his Honour.  The case was litigated upon the basis that the complainant

alleged that this incident occurred on the second night of a weekend stay at Port Elliot.  The accused put to the complainant that it did not happen on that day.  When the Crown case was put to the accused it was put to him that this incident happened on the Australia Day long weekend, the second night, and the matter was left to the jury as being a contest between the credibility of the complainant and the accused.  The verdict of not guilty, in my submission, could not in any shape or form be attributed to mistake; it could only be attributed to the refutation of her evidence because the accused was able to show, through documentary evidence, that there was another girl sleeping with the complainant that weekend.

In our submission, the only reasoning that could explain his Honour’s choice of approach is that his Honour must have thought that the jury could not reasonably have rejected the complainant’s evidence on the first count on the basis of credit and then reasonably have proceeded to convict the applicant on the remaining counts.

His Honour the Chief Justice, in our submission, expressed the position correctly in his judgment at page 344, line 12:

The positive refutation of the girl’s evidence as to that weekend is a source of grave concern as to the reliability of her evidence.

And he concluded at page 345, line 4 that:

The first factor is that the jury did not accept the alleged victim’s evidence on the first two counts, that is to say as to the events of the Australia Day weekend.

But in our submission his Honour has raised an issue which was never raised at trial and has failed to give the accused the benefit of the doubt or, indeed, any benefit at all in relation to his disproof of the complainant’s account on count 1.  That, of course, goes to the heart of his assessment of credibility and reliability because he leaves her credibility intact.  He does not take into account any of the other evidence and he does not take into account the directions that his Honour the Chief Justice considered impinged upon the jury’s evaluation of the evidence and was capable of misleading them and capable of causing them to over-evaluate the evidence.

In our submission, therefore, his Honour’s approach to the assessment of unsafe and unsatisfactory is erroneous in principle and warrants the grant of special leave.

BRENNAN J:   Thank you, Ms Shaw.  We need not trouble you, Ms Abraham.

This Court is not a court of criminal appeal.  Applications for special leave to appeal in criminal cases where the ground relied on is in substance that the verdict is unsafe or unsatisfactory are not likely to succeed.  This Court cannot and should not wish to undertake a general supervisory role of courts of criminal appeal on questions of fact.  The objection to the direction on credibility of the prosecutrix does not raise, in the circumstances of this case, a question of principle which warrants a grant of special leave.  Accordingly special leave is refused.

AT 11.43 AM THE MATTER WAS CONCLUDED