Hauke v The Queen S90/1995 [1996] HCATrans 123 (15 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1995

B e t w e e n -

SHANE FRANZ HAUKE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 10.06 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR K. MASON, QC, Solicitor-General for New South Wales: I appear with my learned friend, MR P.G. BERMAN, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

MR JAMES: If the Court pleases, this is a matter that requires an enlargement of time. The application was made - - -

DAWSON J: What is the length of time this was out?

MR JAMES: Just under three months, your Honour. It was a legal aid matter that was in-house in which they had to seek advice from outside counsel.

DAWSON J: This is always the explanation, is it not? Is nothing being done to correct the situation?

MR JAMES: This is better than a lot, your Honour, is all I can say.

DAWSON J: That is true, but that is not much to say, is it?

MR JAMES: It is a matter of resources and getting the material together and getting the advice of outside counsel and so forth, your Honour.

DAWSON J: Very well, proceed.

MR JAMES: If your Honour pleases. It s a matter within a very short compass and indeed, some of what has been discussed in the previous application relates, at least peripherally, to this. It concerns what a Court of Criminal Appeal should do when it has found genuinely, practically inconsistent verdicts in a particular case. It is our submission that in those circumstances the position is analogous to the situation in which the court is of the view that the evidence would not be sufficient to support the verdict that was, in fact, entered.

In this case, the practical inconsistency arises and can be seen exemplified at page 52 of the application book, lines 31 to 40:

There is no basis on such evidence -

as in the judgment of Mr Justice Levine, with whom both other members agreed, although Mr Justice Hunt published some additional reasons:

There is no basis on such evidence that would permit as a reasonable explanation a change from a situation in which the appellant was ignorant of the fact that the complainant was not consenting (to digital penetration) to becoming aware of the fact that the complainant was not consenting (to penile penetration).

GAUDRON J: But there is a perfectly sensible explanation of that in the summing up at the bottom of page 14.

MR JAMES: There may be, and that was drawn to their Honours attention in the Court of Criminal Appeal.

GAUDRON J: Which makes their finding of inconsistency somewhat strange, I would have thought.

MR JAMES: Your Honour, with respect, that finding was unanimous and it was unanimous - - -

GAUDRON J: It does not matter whether it was unanimous or not; it is in the face of the facts recounted at the bottom of page 14 which provide, I would have thought, a glaringly obvious explanation for the verdicts in the case.

MR JAMES: Your Honour has had the benefit of the summing up. The Court of Criminal Appeal has had the benefit of the transcript and the summing up, and the whole of the material at the trial. Indeed, the conclusion they reached as to - - -

DAWSON J: The jury had the summing up and not the benefit of the transcript.

MR JAMES: In New South Wales they might have had the transcript, too.

DAWSON J: They may, but they probably did not.

MR JAMES: But they certainly had the benefit of the evidence and the conclusion the jury came to in what amounted to one entire transaction - - -

GAUDRON J: That account of the facts does not dispute that it is one entire transaction, it just gives a complete explanation for the verdict.

MR JAMES: Your Honour, with respect, it does not give an explanation of the verdict, and nor does the Court of Criminal Appeal. The jury go to the jury room and the verdict is inscrutable, or the basis for it is inscrutable. However, for certain purposes the law attributes to that verdict certain characteristics, and that includes either, in the case of a guilty verdict, satisfaction beyond reasonable doubt of all elements and all necessary facts to support the verdict, and in the case of a not guilty verdict, the most one can say is that that verdict represents no satisfaction beyond reasonable doubt on at least one of the elements or at least one of the facts, but when it has been reached, the presumption of innocence remains and the accused is seen to be, and must be treated as, not guilty of the relevant charge.

Given that, when a Court of Criminal Appeal comes to deal with the question of inconsistent verdicts and reaches the factual conclusion that there are inconsistent verdicts, in our submission, it is not open for that court to say, "Well, there must have been a compromise on the not guilty verdict in some such way as taints the verdict but leaves a strong case by effectively failing to give consideration to the proposition that the acquittal certainly affects, if given its full force and effect, the way in which a jury would have to perceive the material if given in evidence again".

DAWSON J: Mr James, what should we do if we do not agree with the Court of Criminal Appeal that there was an inconsistency?

MR JAMES: That issue is not before this Court, your Honour, with respect.

DAWSON J: The issue of what we should do is.

MR JAMES: There is no cross-appeal or application for leave to cross-appeal on a factual basis. This matter raises, as a vehicle, a clean, clear issue, and the matter can be remitted to the Court of Criminal Appeal to deal with it. It is fairly inconceivable that they would change their minds as to the factual proposition that the verdicts were inconsistent practically. Really, in one sense what they have said is that the acquittal was somehow comprise tainted.

GAUDRON J: They certainly do say that, but that, I would have thought, was an impermissible method of analysis. But it does still leave - the fact that they said that actually draws into question their conclusion as to inconsistency.

MR JAMES: Your Honour, time and again people come here with an unsuitable vehicle in that it raises a question of general importance, and that question your Honour just adverted to is a question of general importance when courts of criminal appeal might reason in that fashion and thus diminish the value of an acquittal. They also have to meet the criterion that in the particular case a miscarriage has occurred.

GAUDRON J: That is your problem. On one point of view you have had a windfall.

MR JAMES: On one point of view we have had a correct decision. No one can say it is incorrect without raising the veil obscuring the deliberations of the jury.

GAUDRON J: No, one has only got to look at the Court of Criminal Appeal's reasoning.

MR JAMES: What your Honour has done is look at the summing up and say, "Well, here is a reasonable basis to me on which the jury could have discriminated between the verdicts". The Court of Criminal Appeal have said they see no reasonable basis other than a compromise in relation to the acquittal and the conviction. As a result, having got that far in the Court of Criminal Appeal, your Honour has suggested that what should be done is to review the question of whether it was open to them, applying the practical inconsistency test as enunciated in, amongst other things, Nanette, to see whether the Crown should have another go on the guilty verdict, which would leave us in a situation, Storey/Garrett style, of trying to work out how the accused could be given the benefit of the acquittal. On your Honour's analysis, what would happen at any new trial would involve a most complex question of trying to decide how the accused could be given that benefit. Is the jury to be directed - - -

GAUDRON J: That is the prosecutor's problem, is it not?

MR JAMES: It is the defence problem, too, because is the defence to ask for a direction that the girl must be taken to be a liar on the preliminary events; is the defence to ask for some such direction as to say, "You cannot be satisfied beyond reasonable doubt that the girl is not a liar on the preliminary events", or that "You cannot take it beyond reasonable doubt to be satisfied that he did not know that she was consenting" or however?. It gets immensely complicated, and none of that entered into the calculations as to whether or not a new trial was better calculated to remedy what had occurred in this case. Section 8 of the New South Wales Criminal Appeal Act specifically enough raises that.

It is a fascinating case, in one sense, because what your Honour Justice Dawson said in King v The Queen [1986] HCA 59; (1986) 161 CLR 423 in that passage at page 433, and that was an argument in that case - reading after the citation of the cases dealing with the general discretion to grant a new trial:

However in this case the sole reason why it was said that a new trial was inappropriate was that, upon the Crown case as it was presented, the verdict brought in against King was unsafe, being inconsistent with the acquittal of Matthews, and that to order a new trial would be to allow the Crown to remedy the deficiency by presenting a new case against King - that of being an accessory before the fact to the murder of the deceased by some person other than Matthews.

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective.

Your Honours, it was not necessary in that case, and in our submission, it was not necessary in this case, for the court to, as it were, try the case for themselves on the transcript. The jury finding relating to credit as evidenced by the acquittal is a most important matter.

If the verdict against King in this case was inconsistent with the verdict in favour of Matthews, then the Crown could properly succeed against King upon a retrial only by putting a new case. It certainly ought not to be allowed to proceed in any retrial upon a basis inconsistent with the jury's verdict of acquittal of Matthews.

Here, your Honours, a retrial runs a very grave risk, a matter that was not taken into consideration by the Court of Criminal Appeal, except in that passage in Mr Justice Levine's judgment which can be found at page 53 lines 1 to 11.

Your Honours, the issue is very rarely raised so starkly as this is. He has an acquittal - or more correctly two acquittals, but one relevant acquittal in the sense of one practically inconsistent - seen as practically inconsistent, there are hypotheses as to why it might have been inconsistent, and derived by, in effect, trying to construe the transcript; but nonetheless the jury spoke with an inconsistent voice, and it sought to remedy that by permitting a new trial which, in our submission, does not give full effect to the acquittal when - - -

DAWSON J: It is going to be a difficult retrial if a retrial takes place. I see they refer to Storey's Case where the difficulties were - - -

MR JAMES: Storey and Garrett, your Honour, the difficulties are immense.

DAWSON J: I remember Storey's Case very well.

MR JAMES: It is much easier if one is dealing with an abduction at a railway station some distance in time removed and some geographical distance removed from what is going to be the relevant event at trial.

DAWSON J: Those difficulties were held not to stand in the way of a new trial.

MR JAMES: As a matter of law, yes. But when it comes to the discretion to order a new trial, although they may not stand in the way of ordering a new trial, one has to evaluate them in the context of the individual case to see whether one can give full force and effect to the acquittal.

DAWSON J: I might say that when I said the difficulties are immense, not on your side, on the side of the prosecution.

MR JAMES: In fact, your Honour, it is a very good reason why one might not order a new trial. It is not necessarily absolutely conclusive unless - - -

GAUDRON J: That is a discretionary matter to which the Court of Criminal Appeal turned its mind.

MR JAMES: That is a discretionary matter to which the Court of Criminal Appeal turned its mind, but in doing so misapprehended the force of the submission in relation to acquittals. We are here, your Honour, simply because - and indeed the written submissions make it clear that what the Court of Criminal Appeal did was to dismiss that on the basis that there had been a compromise verdict. In our submission, the Court of Criminal Appeal is not entitled to give to its speculation as to the reason for the inconsistency any weight at all and, indeed, that almost seems to be - and perhaps I should go so far as to say that is a matter, bearing in mind House, it should not have had regard to. Sambasivan is an example of that sort of matter being dealt with and not precluding an acquittal.

There are, in fact, two points we make really. One is that the miscarriage of justice in this case cannot be adequately remedied within section 8. The second point is that the discretion of the Court of Criminal Appeal miscarried. The section 8 point, as has been made plain in the argument on the special leave application in Parker v The Queen in Western Australia, is a point that is not common to all the criminal appeal statutes but it plainly is a matter that would require examination if New South Wales is to be out on its own with a different provision.

Unless I can assist the Court further, that is the basis of the application.

DAWSON J: Thank you, Mr James. We need not trouble you, Mr Solicitor.

The Court is not persuaded that there was any necessary inconsistency between the verdict of not guilty on the second count and the verdict of guilty on the third count. The Court of Criminal Appeal took a different view and ordered a new trial on the third count. The applicant contends that no new trial should have been ordered but having regard to the view taken by this Court there can, in our view, be no basis for complaint on the part of the applicant. There will be an extension of time within which to make the application but the application for special leave to appeal is refused.

MR JAMES: May it please the Court.

AT 10.22 AM THE MATTER WAS CONCLUDED