Hobson v The Queen S143/1994 [1995] HCATrans 187 (2 June 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S143 of 1994

B e t w e e n -

SHANE DAVID SAUL HOBSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 10.52 AM

Copyright in the High Court of Australia

MR M.L. SIDES, QC: May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant. (instructed by Christopher Tosevic)

MR R. KELEMAN: May it please the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J: Mr Sides.

MR SIDES: Your Honours, the majority of this Court in S v The Queen found that the proceedings in that case were fundamentally flawed because of the latent ambiguity arising from the lack of particularity. What the Court did not really go on and indicate was the degree of particularity required to remove the evil of the latent ambiguity. Justice Dawson, at page 274, said that it could be done "by reference to other distinguishing features". Justice Toohey said that you had to identify the occasion and that could be done otherwise than by date.

Clearly, the evil that was struck at was the latent ambiguity and, clearly, the particulars that must be supplied must be of such a quality as to remove that latent ambiguity. The issue is important because it relates to whether or not an accused secures a fair trial in that he is given sufficient information for the preparation of the case to meet the case that is made out against him. It is clear, we would respectfully submit, that it is not sufficient simply to supply some particulars. With respect, it would be our submission that the focus too frequently is upon supplying some particulars in an attempt to satisfy what the Court laid down in S v The Queen without looking at the quality of those particulars and whether the quality of them removes the latent ambiguity.

It is our respectful submission that special leave should be granted in this case because it demonstrates the perception that seems to be common that any particulars will satisfy the requirements laid down in S v The Queen without looking at the fundamental problem that was really addressed in that case, namely, to remove the latent ambiguity to secure a fair trial. It would be our submission that what is required is further guidance.

TOOHEY J: I sometimes wonder whether more is not derived from S v The Queen than is fairly to be derived because in that case the problem was that there was an indictment charging two offences and an overlap in dates, so that unless the particular incident was identified with some specificity it really could not be said that the Crown had met the onus of proving that the accused had committed the offence within the period charged. That is true, the Court speaks in more general language than that. But that was the particular problem in S v The Queen, which does not usually arise.

MR SIDES: Yes, and the additional problem in S v The Queen was that the way it was summed up to the jury left open to them to select any event that was described in evidence as the event that was the subject of the charge. With respect, the Court in that case pointed to a number of problems that caused them disquiet in connection with the latent ambiguity; some of them that we would describe as fairly technical, others of considerable substance. Examples of the technical type of problem was that uncertainty created that makes it difficult to determine questions of admissibility of evidence, of summing up and sentence, and I refer the Court to Justice Dawson at pages 274 to 275 and Justices Gaudron and McHugh at page 285.

Now, the degree of particularity here in the instant case may have meant that the Court was able to decide questions of admissibility. The judge was put in a position where he could have summed up properly and a sentence could have been imposed on the facts. Similarly, it would be clear if there were any doubt if a question of autrefois acquit or convict were to arise in a subsequent charge, it may well be argued that a problem would not be presented in this case. It could also be argued that there would be no problem in determining that the jury were unanimous in their verdict as it related to each of the specific events that were put to the jury as relating to the charge. But the Court in S v The Queen identified other problems that arise with latent ambiguity and it is our respectful submission that they are problems that are both fundamental and of substance in terms of securing a fair trial.

TOOHEY J: But do you say, Mr Sides, that in this case there was not evidence of particular incidents upon which the Crown relied and which would, if proved, or if the jury were satisfied beyond reasonable doubt had occurred, would warrant a conviction?

MR SIDES: There were events particularised or specified in the evidence, and we deal with those at paragraph 2.4 of our written submissions where each of the children gave evidence of participating in a certain activity. I think in one case it was reading a book in the bedroom and the accused came in and told that child to go to his room. On another occasion, the child was outside playing tips with his brother and was told by the applicant to go to the applicant's bedroom. And I think in relation to the girl, the incident identified was that she was outside playing with another child and was told by the applicant to go to the applicant's bedroom. So, the jury, clearly, on the way it was summed up, convicted in relation to those incidents, although in relation to the complainant, Michael, there were two incidents. There was one in the bedroom and one being on the trampoline.

The point that we seek to make is that while we can identify the particular incident upon which the jury must have been unanimous, and his Honour could easily identify that when it came to impose sentence, and if the applicant was subsequently charged, one would anticipate, assuming that there was only one such incident as they describe, there would be no problems in relation to a plea of autrefois convict. But so far as the preparation of the trial is concerned and knowing what he was to meet, we would respectfully submit that the fundamental flaw remained from the latent ambiguity.

DEANE J: Mr Sides, what is the history in terms of pre-trial applications for further particulars or - - -

MR SIDES: There were none.

DEANE J: None?

MR SIDES: There were none, your Honours, as I understand it.

DEANE J: And there was no relevant request for correction of directions or further directions?

MR SIDES: No, no relevant ones, your Honour.

DEANE J: That aspect of the application does assume considerable significance in this category of case once you reach this Court.

MR SIDES: With respect, we would submit that although the facts are slightly different than S v The Queen there remains the fundamental flaw. When you are talking about - and it may well have been that counsel for the applicant considered the particulars sufficient and complying with S v The Queen and that - - -

TOOHEY J: What were the terms of the indictment, Mr Sides? We do not seem to have it, as is often the case. Very often it is the case that the indictment proves to be of some importance.

MR SIDES: Reading from the transcript of the trial, rather than the terms of the indictment, the terms were for: "That he, on a day between 6 September 1988 and 4 May 1989, at Carlingford in the State of New South Wales, did have sexual intercourse with Dee Liston, she then being under the age of 10 years, namely 7 or 8 years" and it was in similar terms except it was homosexual intercourse in relation to the two boys.

TOOHEY J: It was really the date or period that I was looking for.

MR SIDES: It is an 8-month period.

TOOHEY J: In each case, you mean?

MR SIDES: Yes. It was the entire period that each of the complainants were at the Dalmar Children's Home and throughout the entire 8-month period that they were there and accommodated, I think it was in Norman Cottage. The applicant was employed there and worked in Norman Cottage and had supervisory responsibilities in relation to the children. But, of course, as he said in his evidence, he had rostered days off and, on some occasions, he went on his rostered days off to visit his father. So, it is not precisely the same situation as a parent who would normally, one would expect, be with the children all the time.

The difficulty that arises, with respect, in relation to such a general description, in terms of what must have been, with respect, virtually everyday events of a child being in a bedroom reading a book and asked to go to the applicant's bedroom, of the child playing outside, of a child playing tips, of a child playing on a trampoline, what is there about those factors that distinguishes that particular act when it comes to the point of the preparation of the defence? We would respectfully submit that this is where the problem arises when people focus on just giving some particulars without understanding why it is the particulars are being supplied and, with respect, the majority in the court below misunderstood that.

If your Honours go to page 67 of the application book starting at line 10, Justice Carruthers, with whom Justice Hunter agreed, said:

It is not, perhaps, surprising that no specific re-direction was sought by trial counsel because of the way in which this trial was conducted. The defence was conducted on the basis that each of the three children, for some reason best known to themselves, had fabricated these allegations against the appellant and were prepared to perjure themselves in furtherance of this fabrication. The case was conducted, therefore, on what is sometimes colloquially referred to as an "all or nothing basis". All the allegations were generally denied as they had been to the police and no specific challenge was made to the evidence in relation to the particular occasions specified by the complainants.

We would rhetorically ask, how could the applicant do any more than a general denial? His case was "The children were never alone in my room."

If one starts from the position of the presumption of innocence, as we would respectfully submit one must do, then how does a general description of events that were given in this case assist that person? It really, effectively, if one looks at it in the terms of the passage that I have just read to your Honours, almost tantamount to casting the burden upon the accused. There is an assumption - - -

TOOHEY J: I am not sure where this is taking you. The ground of appeal, if special leave were granted, is in terms of miscarriage of justice. It does not seem to fasten onto the direction by the trial judge.

MR SIDES: No, because the trial judge appreciated, with respect, the very difficulty that I am addressing which the appellate court did not.

TOOHEY J: Yes. But that is why I ask you where is this going? You are not suggesting that the indictment was bad, are you?

MR SIDES: No, the indictment was not bad but at the end of the day, with the lack of particulars or specificity, the latent ambiguity remained and the applicant was in a position where he could not properly prepare his defence. All he had and all he could do and all he did was a general denial and that was one of the problems that the majority of the Court in S v The Queen referred to, that in such cases an accused person is reduced to a general denial and he is precluded from specific defences that might be better defences such as alibi.

TOOHEY J: But what is to happen in that situation?

MR SIDES: It may well be that if in the given case no greater particularity can be given, then the case should not be prosecuted because the bottom line is that if the accused cannot be given sufficient detail and particularity to be able to prepare his or her defence in order to secure a fair trial, then if that cannot happen, then the matter should not proceed.

TOOHEY J: By "proceed", you mean it should not go to the jury?

MR SIDES: It should not go to trial.

TOOHEY J: Well, if it does go to trial, are you suggesting there should be a motion to strike out the indictment?

MR SIDES: That would be a procedural mechanism that would be available to an accused.

TOOHEY J: I can see the force of everything you are saying but there are mechanisms, in particular, the trial judge's direction, I suppose, that really try to cope with this situation.

MR SIDES: But if the flaw is as fundamental as we would put it, it could not be corrected by direction, we would respectfully submit.

TOOHEY J: What does the trial judge do in that situation, an indictment having been filed, the matter having gone to trial, there having been no application to withhold the matter from the jury? What more can be done?

MR SIDES: If, at the end of the evidence, it becomes clear that the particularity has not been sufficient, there is no more than a general denial, then it may be that he should direct a verdict and it may be that the trial judge may not know until the end of the evidence or all of the evidence whether the particularity that has been supplied is sufficient or not. It may be in a given case that there would be material that the accused could call upon to show, for example, there was no trampoline.

McHUGH J: This is a problem, you see. If you had raised the issue in pre-trial proceedings all these issues could have been dealt with but, as has been pointed out, no issue is raised until you get into the appellate structure. It is a frequent problem. You have a murder case. You do not know when the deceased died. He or she may have died within a 3 or 4 or 6-month period. One would like to be able to give further particulars but, in all the circumstances, there is no miscarriage of justice. That is the critical question: was there a miscarriage of justice by reason of the failure of particularity?

Now, when you stand by, you do not give the Crown an opportunity to build the matter up in some way; take no objection and then come along to an appellate court. So far as I am concerned, I would be extremely reluctant to grant special leave to appeal.

MR SIDES: The submission I would put is this, that what has grown up is a misconception of what was laid down in S v The Queen.

McHUGH J: The point should be taken by counsel in the pre-trial proceedings.

MR SIDES: That misconception may well explain why the point was not taken here and we would respectfully submit that the latent ambiguity was not removed; the fundamental flaw remains and the miscarriage of justice remains. So, the fact that the point was not taken is, with respect, not an answer.

McHUGH J: But you do not know whether there is a miscarriage of justice in this particular case. All we have now is appellate counsel saying that, in a different context, they may have been able to do certain things. Well, there was no application to do any of those things.

MR SIDES: No, but there may not have been any application because of the misconception of trial counsel. I do not think there is anything I can usefully add, your Honours.

DEANE J: Thank you, Mr Sides. The Court need not trouble you, Mr Keleman.

Notwithstanding the argument advanced by Mr Sides, QC, who appears for the applicant, the Court is not persuaded that an appeal in this case would give rise to any really arguable issue of general principle. Accordingly, in a context where there was no pre-trial application for further particulars and no relevant objection to the trial judge's directions or request for further directions, it would be inappropriate to grant special leave to appeal to enable this Court to re-examine the application of general principle to the particular circumstances of this case. Accordingly, the application for special leave to appeal is refused.

MR SIDES: If the Court pleases.

MR KELEMAN: May it please the Court.

AT 11.11 AM THE MATTER WAS CONCLUDED