Gipp v The Queen B7/1997 [1997] HCATrans 396 (5 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B7 of 1997

B e t w e e n -

GREGORY BERNARD GIPP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 DECEMBER 1997, AT 10.33 AM

Copyright in the High Court of Australia

MR P.R. WHITFORD: May it please the Court, in this matter I appear on behalf of the applicant. (instructed by Robinson & Robinson)

MR M.J. BYRNE, QC: May it please the Court, I appear with my learned friend, MRS L.J. CLARE, for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GAUDRON J: Yes, Mr Whitford.

MR WHITFORD: Your Honours, together with the application for special leave there is an application to dispense with the time limitation under Order 69A rule 3. I had assumed that your Honours would want to deal with that, if at all, after the submissions on the application.

GAUDRON J: Yes, certainly.

MR WHITFORD: Your Honours, the basis for this application is that it is the applicant's submission that there are two aspects of the trial which constituted errors of such significance in its conduct that, either viewed alone or in the context of all the other circumstances attending the conduct of the case, that they amounted to a substantial miscarriage of justice and it is my submission that there was a failure in observing the conditions which are essential for a fair trial or that there was a feature of the trial which raised a substantial possibility that the jury may have been misled in their deliberations. Your Honours, the two errors upon which I rely are the trial judge's direction to the jury in respect of evidence of a sexual history between the applicant and the complainant - - -

GAUDRON J: But how precisely do you rely upon it, it not having been a matter of complaint at the trial or the subject of a ground of appeal in the Full Court?

MR WHITFORD: It was not a matter of complaint at trial or raised in the Full Court, but I say it is a matter of such significance that it constitutes a substantial miscarriage of justice and, accordingly, is appropriate to be dealt with on this application before this Court, notwithstanding that fact.

GAUDRON J: You say that, but our task, if leave is granted, is to determine whether the Full Court was wrong.

MR WHITFORD: Yes, your Honour, and in respect of that I say that the Full Court was charged with the duty to make an independent assessment of all of the circumstances attending the conduct of the trial.

GAUDRON J: And you say to take into account the possibility that that direction may have watered down, as it were, the task that the jury performed?

MR WHITFORD: Yes, your Honour, or indeed misled them in the task which they were to perform.

KIRBY J: I have the same problem as Justice Gaudron. In the time I have sat here for two years, it seems as though every second week we are dealing with a case of child sexual abuse complaints and I am beginning to feel I have not got away from the Court of Criminal Appeal and I am back there sitting there dealing with Court of Criminal Appeal appeals because there is some complaint or concern about the case. So I think you have to lift this case out of the ruck otherwise we just do not have the time to become a super Court of Appeal.

MR WHITFORD: I understand, your Honour.

KIRBY J: So if you can identify the things that lift it out of the ruck, well may be, but I have the same problem as Justice Gaudron has raised, when you do not raise these matters in the Court of Appeal as to whether it is really our business to be dealing with them.

MR WHITFORD: Yes, your Honour. Your Honour, the nature of the question which I say arises in this matter is that the evidence of a sexual history between the complainant and the accused is obviously propensity evidence and it is circumstantial evidence. There was a debate in this Court, perhaps commencing with Chamberlain that was resolved in Shepherd's Case in relation to appropriate directions in respect of circumstantial evidence. But, clearly, the area of sexual abuse and the evidence, particularly of a sexual history beyond the subject of the specific charges, is a vexed question as is evidenced by the matters that come before this Court both on application for special leave and on appeal.

It has been recognised that the evidence of sexual history is powerfully prejudicial and, accordingly, the test for its admission is a stringent one. But, in my submission, its admissibility must be addressed separately from how it is to be dealt with by the jury and what directions, if any, they ought have in respect of it. Because it is so powerfully prejudicial, it is my submission that a direction in the nature of the Chamberlain direction ought to be made in respect of evidence of sexual history particularly in a trial where it is a trial on the uncorroborated evidence of a complainant.

KIRBY J: Well, the Court has been saying things to that general direction in recent times, long after Chamberlain. I mean, there is a case in the latest part of the Australian Law Journal Reports that deals with this matter, KBT, I think it is.

MR WHITFORD: Yes, your Honour.

KIRBY J: But what is the matter of general significance in this case that authorises this Court to have a look at it?

McHUGH J: Well, do I gather from - sorry, I am answering your question, I suppose, but I gather from what you were just saying that one ground is as to whether or not the admissibility of this relationship evidence should be governed by the ordinary rules as to propensity evidence; that is to say, that relationship evidence of a sexual nature is not admissible unless the evidence is consistent only with the guilt of the accused.

MR WHITFORD: If accepted is the test, your Honour, and it is my submission that those words "if accepted" point to the fact, in my submission, that it ought to be the case that a jury is told that they should not rely upon that evidence as the basis for an inference of guilt, or to support a finding of guilt, unless they are satisfied beyond reasonable doubt about the fact of that history.

McHUGH J: Yes.

GAUDRON J: Then you have to take it a step further, do you not, in the context of this case, to say and really the verdict must be regarded as unsafe and unsatisfactory not in the ordinary sense, where the jury was obliged to have a doubt, but in another sense.

MR WHITFORD: Yes, in another sense. The words "unsafe and unsatisfactory" are, unfortunately, very loose and they seem to be used generally to describe any of the grounds of appeal under the common form appeal provisions and there are, in fact, four heads specifically under those common form provisions. In a case such as M's Case, which stated a test in respect of the task of the Court of Criminal Appeal on an appeal on the ground of an unsafe and unsatisfactory verdict, was really concerned with the first two of those heads; that is, where the verdict was unreasonable or incapable of support having regard to the evidence.

McHUGH J: Yes. I must say, I have always taken the view that it came out of the words "or other miscarriage of justice" in that - - -

MR WHITFORD: And that would be the head upon which I rely in respect to this argument, your Honour. I say that the conditions necessary to a fair trial - - -

GAUDRON J: We have not been favoured, though, with a copy of your notice of appeal to the Court of Appeal in Queensland, have we?

MR WHITFORD: No, it is not in the application book, your Honour. I have a copy of it. I do not have copies for the Court, unfortunately. The grounds, I can tell the Court, were stated, from memory, on the grounds that the verdict was unsafe and unsatisfactory, or against the weight of evidence. I think that that can be seen from the judgment in the Court of Criminal Appeal.

KIRBY J: Was the counsel who appeared in the Court of Appeal the same counsel as appeared at the trial?

MR WHITFORD: No, your Honour.

KIRBY J: The case that I was referring to was BRS [1997] HCA 47; 71 ALJR 1512.

MR WHITFORD: Yes, your Honour.

KIRBY J: KBT is a matter that is coming down shortly - the reasons.

MR WHITFORD: Yes, your Honour. BRS was in a slightly different category, I think, but - - -

KIRBY J: But there was a reference in that case to the dangers of propensity evidence and reasoning backwards because of general sexual complaints that, therefore, the person is guilty of the particular. But the question is, is this a good vehicle because those matters were not raised at the trial, they were not even raised in the Court of Appeal.

MR WHITFORD: They were not raised, your Honour, and so this Court does not have the benefit, as it often prefers, of the reasons of an intermediate court but, in my submission, the question is squarely raised by virtue of the express direction which was made in this case which appears at pages 74 to 75 of the application book. In this case, the trial judge told the jury expressly that they did not need to be satisfied beyond a reasonable doubt.

GAUDRON J: It is squarely raised if this is a Court of Criminal Appeal from the verdict. It is not squarely raised if the question is whether the Court of Appeal itself was in error.

MR WHITFORD: Yes, your Honour. In my submission, the nature of the matter is such that it is so apparent on the face of the record that the Court of Appeal charged, as in my submission it is, with the task of undertaking an independent review of all of the circumstances of the case - - -

KIRBY J: We have got to be a bit realistic here. I mean, I sat in a Court of Criminal Appeal and we would have seven or eight cases of this kind every day and it is a little unrealistic to ask judges to dream up points for themselves. They have got an independent check to do but they are entitled to expect on a learned and skilled legal profession. There is evidence in this case that suggests that there was a want of the sort of help that one would have expected and the question is, is this redounding to the disadvantage of the applicant.

MR WHITFORD: In my submission, it is, your Honour. I understand the difficulties that I am confronted with by virtue of the fact that it has not been raised or argued before but, in my submission, it constitutes such a substantial miscarriage of justice in that the procedures that are necessary for a fair trial have not been adhered to and that should have been apparent to the Court of Criminal Appeal. I understand, in one sense, the unrealistic nature of that submission but, in my submission, it is plain on the face of the record.

GAUDRON J: Well it may be that is an important question, namely whether the Court of Appeal has a duty in a case such as this, where there is something that as it were rings alarm bells, to take it into account in its consideration of the issues.

KIRBY J: Well, drop the eight cases a day; they will be doing one or two. Where are the judges going to come from to do this?

MR WHITFORD: To answer your Honour Justice Gaudron's question, in my submission, it does have such a duty. In M's Case the Court was concerned with the Court of Criminal Appeal having a task of independently assessing all of the evidence and asking itself whether there were any circumstances attending the conduct of the case which left it open for doubt as to whether the verdict was safe.

McHUGH J: It does raise the problem, as Justice Kirby pointed out, it is one thing to say as in Pymble's Case that the trial judge has a duty to direct the jury on all the issues even though counsel does not raise. It is another matter to say that the Court of Criminal Appeal has got some sort of duty to hunt through the transcript looking for appeal points.

KIRBY J: Some of these trial have eight appeal books. I mean, really, there is a limit. However, you have two specifics. One is the direction on evidence which, subject to hearing Mr Byrne, I think is clearly wrong and secondly, there was the so-called withdrawal of two counts from the jury.

MR WHITFORD: Yes, your Honour. I had hoped to urge upon your Honours that that might raise a question of public importance as well but that submission, in a sense, has been overtaken by recent legislative amendments. The terms of section 563 of the Queensland Code, which is the nolle prosequi section, at the time of the trial it was expressed in terms that:

(1) A Crown law Officer may inform any court, by writing under the officer's hand, that the Crown will not further proceed upon an indictment.....then pending in the court.

And:

(3) When such information is given to the court the accused person is to be discharged from any further proceedings upon that indictment - - -

KIRBY J: But that is the whole indictment. That is not on account of the indictment, is it?

MR WHITFORD: No, your Honour, and it is my submission that to withdraw at the trial after the complainant has not come up - - -

KIRBY J: The matter is in the charge of the jury.

MR WHITFORD: The matter is in the charge of the jury and section 604 of the Queensland Code to which I referred in the written outline provides that:

If the accused person pleads any plea or pleas other than the plea of guilty.....or a plea to the jurisdiction of the court, the person is by such plea, without any further form, deemed to have demanded that the issues raised by such a plea or pleas shall be tried by a jury, and is entitled to have them tried accordingly.

So it is my submission that the Crown was confronted at the stage of the trial that it was with two choices. One was to withdraw the indictment under section 563, as it then existed, or to face a directed verdict of acquittal in respect of the two counts that were withdrawn.

KIRBY J: Was a verdict of acquittal sought by counsel at the trial?

MR WHITFORD: No, it was not, your Honour.

KIRBY J: Counsel at the trial does not appear to have been very vigilant. I see in the Crown's submissions that he is said to be very learned and experienced, well, he does not strike me as that.

MR WHITFORD: No, your Honour, and - - -

KIRBY J: He let this general evidence, so highly prejudicial and so raising the issue of propensity to go before the jury without any objection. I mean I wonder if counsel in Queensland are being told about their obligation of vigilance in these circumstances.

MR WHITFORD: Yes, your Honour. I made a submission in respect to that in the written outline, relying on Chief Justice Gleeson in Birk's case, and I do not wish to add to what was said there.

KIRBY J: You have not raised specifically a ground of incompetent counsel. I think that should not come before a court without a specific ground of appeal.

MR WHITFORD: Yes, your Honour. Just in relation to your Honour's earlier question. At the application book, at page 43, is where the withdrawal of the counsel was dealt with before the trial judge, and it is apparent that there was confusion amongst both counsel as to just how the procedure was to be adopted. As the respondent have indicated in their submissions, and that the procedure was apparently consented to by the counsel at trial, but in my submission there was no warrant for it in law, and the consequences of it were the production of such unfairness to the accused that again it is another error that is apparent on the record and - - -

GAUDRON J: It is not even a matter advanced into a draft notice of appeal, is it?

MR WHITFORD: The draft notice of appeal is really framed in terms of the requirement that your Honour has outlined a number of times, that is that you have to find error in the judgment of the Court of Appeal, rather than dealing specifically with the items upon which I rely to found the application and are the matters which I say the Court of Criminal Appeal ought to have seen, they being objective matters on the face of the record.

KIRBY J: But, at the least, one would have excepted that particulars would be given of that very, very general ground and that the particulars would set out - and perhaps if you get special leave you are going to have to do that.

MR WHITFORD: Yes, your Honour.

KIRBY J: Raising the objection on the point of the direction relating to the onus of proof and raising the objection on the procedural course taken by the trial judge.

MR WHITFORD: Yes, your Honour.

KIRBY J: Perhaps other things.

MR WHITFORD: So, just to conclude, your Honours, my submission is that both the errors that I have identified, the direction in relation to how the jury was to deal with the propensity evidence and the withdrawal of the two counts in the manner in which was done and, in my submission, done contrary to law, both constitute features of the trial which, viewed objectively, manifested an unfair trial and constitute a substantial miscarriage of justice and that, accordingly, the verdicts were unsafe and unsatisfactory, and on the grounds - - -

KIRBY J: There may be a third point, and that is that where a judge allows in the evidence of a general kind in order to give a background that is necessary or is factual history, that there then descends on the judge an added duty to give very express and clear directions to the jury of the danger of propensity reasoning. That seems to have some support in BRS.

MR WHITFORD: Yes, your Honour, and in Beserick's Case in the New South Wales Court of Criminal Appeal, one of the cases to which Mr Byrne makes reference, the court said that when evidence of this kind is admitted and when it is first admitted it ought to be the subject of a very careful explanation at that time from the trial judge as to the use to which the jury can put it and then again in the summing up and I would add to that the need for a direction as to the jury to be satisfied beyond reasonable doubt as to the fact of that history because of the compelling prejudicial nature of that evidence.

KIRBY J: This accused, your client, was deaf, was he not, and he had to ask people to speak up and - - -

MR WHITFORD: He was hard of hearing. I do not know that he was deaf, but certainly hard of hearing.

KIRBY J: He might not have made - I mean, when this was all over in two hours, accusation and denial, he might not have been a person who in the circumstances made a particularly good impression. Obviously he did not.

MR WHITFORD: Yes, your Honour, and that points up the very danger of this kind of evidence, particularly where you have got a trial on the uncorroborated evidence of a complainant and it is just a contest of credit between the accused and the complainant.

KIRBY J: What was the sentence suffered by your client?

MR WHITFORD: Ten years on each of the three counts of rape and five years on the two counts of indecent assault, all to be served concurrently. So, your Honours, in my submission, in this case it does raise questions of public importance of general application and it is also my submission that the interests of the administration of justice in the particular case warrant a grant of special leave.

As I indicated, there is also an application to dispense with the time limitation in Order 69A. The basis for that application is outlined in an affidavit of Mr Gipp which is in the application book.

GAUDRON J: Unless your opponent has something to say about that, I do not think we need trouble you with that.

MR WHITFORD: May it please the Court.

GAUDRON J: Thank you, Mr Whitford. Yes, Mr Byrne.

BYRNE: May the Court please. Our primary submission is that this is not a suitable vehicle to ventilate any of the points raised by our learned friend. This Court has said on numerous occasions that it must be an exceptional case in which the grant of special leave is given where points have not been raised in the intermediate appellate court. In this case the points primarily relied upon were not raised either at trial or in the intermediate court. Reasons for that, at least in respect of the withdrawal of counts, can plainly be seen, in our respectful submission, to be a tactical decision by counsel and our learned friend has referred your Honours to page 43 of the record where that perceived tactical advantage is enunciated by counsel. In respect to the directions, may we make these points - - -

McHUGH J: But was not the prevailing doctrine in Queensland at the time that the trial judge had a power to refuse to allow the Crown to enter a nolle?

MR BYRNE: That is so.

McHUGH J: The judge does not even seem to have considered whether he should exercise the power.

MR BYRNE: That is because both counsel concurred with the course, probably, your Honour, and they also say that it was an accepted practice, albeit, perhaps, not in accordance with the Code, that individual counts could be discontinued and that has, as has been outlined, put into the Criminal Code by a recent amendment to ratify that practice.

KIRBY J: But that amendment does not seem to touch the point. The amendment seems to refer to the withdrawal of the indictment, not of a count of the indictment, unless there is something that makes it clearer.

MR BYRNE: No, the amendment which came in in July of this year to section 563 refers to not continuing:

upon any indictment, or in relation to any charge contained in any indictment -

I understand that we supplied a copy of that amended section to the Court.

GAUDRON J: But as at the relevant time, it was on the indictment.

MR BYRNE: That is so, your Honour.

GAUDRON J: Yes.

MR BYRNE: But as I say, that was - - -

McHUGH J: Can I just put to you, I appreciate the force of your point that none of these matters are raised, but you have this combination of matters. First of all, you have got evidence given in the most general terms, which was apparently admitted as relationship evidence, where the complainant says, "He was sexually molesting me and he was rubbing his penis between my legs until he ejaculated." That goes to relationship evidence. It is highly prejudicial to the accused. The jury are told they have only got to be satisfied on the probabilities about that. If they found that on the probabilities, you would not give the accused much hope after that on the main counts. You have got that problem, you have got the other problems that have been referred to, you have got the withdrawal of two counts by the prosecutor because the evidence is not going too well in respect of them, and it is a case of credit against credit. It is very disturbing, Mr Byrne.

MR BYRNE: Your Honour, may we answer that in two ways: firstly, in respect to the direction given - well, three ways, if you like: firstly, in relation to the admission of the evidence, the point was not taken, so any discretion to exclude or not to exclude has not been exercised at any stage along the appellate hierarchy. Secondly, the - - -

McHUGH J: But it is not a question of discretion, is it? Well, it may not be.

MR BYRNE: It may not be, but - there are two questions, (a) general admissibility and (b) exercise of discretion. Neither of those issues have been ventilated. In respect to the directions given by the trial judge, this trial occurred prior to this honourable Court's consideration and judgment in BRS v The Queen and that judgment, naturally, has been accepted in Queensland and applied in subsequent cases where inadequate directions have been given.

Thirdly, the ultimate direction given to the jury in respect to the evidence of the complainant can be found at page 86 of the record and this is really the last thing said by the learned trial judge to the jury before they retired. His Honour is talking about the lack of corroboration and says:

It shows that you should be careful not to convict, particularly here where there is no corroboration, unless you are absolutely satisfied of the reliability of the girl's account.

So whilst it may be true that in the direction complained of which, in context, is simply his Honour drawing a distinction between general evidence and the elements of the offence, whilst there is reference there to balance of probabilities, the jury could have been left in no doubt, we say, that unless they were satisfied absolutely, to use his Honour's term, of the reliability of the complainant, then they should acquit.

McHUGH J: As against that, if as they were specifically told, we have only got to be satisfied on the balance of probabilities that when they were in Victoria he was sexually molesting her, and in the very manner in which most of the charges were laid.

KIRBY J: Rubbing.

McHUGH J: Yes, rubbing.

MR BYRNE: Yes.

McHUGH J: Well, they have only got to find that under the balance of probabilities, it is a powerful foundation for the Crown case after that.

MR BYRNE: Whilst that is true, naturally, your Honour, this case is one where it was credit against credit and there could be no doubt that unless, on the directions, they were satisfied beyond reasonable doubt of her total credit, and that must include the prior conduct, as general as it was, and they could not convict. In those circumstances, we say that this is not a case particularly where it has not been argued anywhere along the line for the grant of special leave.

The Court of Appeal considered the matters raised before it, namely, the state of the evidence and whether that was unsafe and unsatisfactory and concluded that it was not. The two other points were not raised and we only repeat ourselves to say that. But our summary really is that this is not a suitable vehicle given the way in which the case was litigated at trial and in the Court of Appeal. Those are our submissions.

GAUDRON J: You do not have anything to say about the extension for time?

MR BYRNE: No, we do not, your Honour.

GAUDRON J: Thank you Mr Byrne.

Mr Whitford, there will be an extension of time in this matter. There will also be a grant of special leave but you will be confined to the ground in your draft notice of appeal, it being for you to make good a claim on the hearing of the appeal that in determining whether the verdict was unsafe and unsatisfactory the Court of Appeal should have had regard to, for want of a better term we can say, the nature of the trial and the way in which it was conducted. You will be obliged, I think, as a matter of fairness to the Crown, to give particulars of what you say in that regard.

MR WHITFORD: May it please the Court.

AT 11.03 AM THE MATTER WAS CONCLUDED