K v The Director of Public Prosecutions (Vic) M61/1996 [1997] HCATrans 69 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M61 of 1996

B e t w e e n -

K

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)

Respondent

Application for special leave to appeal

DAWSON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 10.26 AM

Copyright in the High Court of Australia

MR W.B. LINDNER: If the Court pleases, I appear on behalf of the applicant. (instructed by Giasoumi, Papasavas, Zervos)

MR G.P. FARIS, QC: If the Court pleases, I appear with my learned friend, MR D.J. LANE, on behalf of the Director. (instructed by Office of Public Prosecutions (Victoria))

DAWSON J: Mr Lindner.

MR LINDNER: I understand with the new protocol, I am to seek permission to use the initials of the applicant, and I do so seek.

DAWSON J: Yes, that is right. There is an order, is there, of any sort?

KIRBY J: We have to make a positive order extending the practice. Once it comes to us, we have to make a positive order extending the course that has been adopted below of using initials.

GUMMOW J: If you get a grant of leave. At the moment the status quo as it existed below applies here, because you are not here yet, as it were.

DAWSON J: So, if you remind me at a later stage, if necessary.

MR LINDNER: I will if necessary. I hope to make it necessary in the next 181/2 minutes.

If the Court please, the issue raised by the amended draft grounds of appeal here is the legal meaning of "latent ambiguity" and its application, particularly in sexual cases and in particularly in sexual cases which could be described as stale or ancient. The court below, it is submitted - - -

KIRBY J: The declaration point has been abandoned, is that correct?

MR LINDNER: Yes, your Honour. The only issue here is the question of whether latent ambiguity exists in this case or not. It is my submission that the court below misconceived the test in Johnson v Miller and it erred in principle by purporting to rely on the test that it apprehended Johnson v Miller stood for, specifically in the application book at page 46, lines 13 to 18.

KIRBY J: Has not this Court recently within the last few weeks visited the issue of specificity in Walsh v Tattersall?

MR LINDNER: In October of last year it did do that, your Honour.

KIRBY J: Well, why would we want to come again?

MR LINDNER: Because that was not a case of a sexual offence and, indeed, as the Court there said in Walsh v Tattersall that, in contrast to cases such as that case which involved Workers Rehabilitation and Compensation Act cases, nowhere is this risk, that is, risk of latent ambiguity more evident than in cases of alleged sexual misconduct as illustrated in S v The Queen and that quotation from your Honour Justice Kirby in Walsh v Tattersall (1996) 70 ALJR 884, at page 902. This is a different category of case and it is a far more pervasive category of case than those which raise questions of workers compensation.

Not only is it pervasive but it seems to have been agreed by the court below that the result of this particular case, namely that the Crown rely on "the first occasion" as sufficient particularisation is a technique that is commonly used and adopted, or not uncommonly adopted by the Crown in cases such as these.

DAWSON J: But the principles which apply were dealt with in S v The Queen, were they not?

MR LINDNER: They were.

DAWSON J: Why should be revisit the scene to simply restate those principles?

MR LINDNER: The principles were stated in S v The Queen, however, the boundaries of the concept latent ambiguity were not defined and are of no assistance to the Crown.

DAWSON J: It is not possible to define them comprehensively. Latent ambiguity can occur in a number of ways.

MR LINDNER: That is so. It is impossible to define them comprehensively but the Crown, in all jurisdictions in Australia, would require guidance as to what are beyond the limits of latent ambiguity.

KIRBY J: But what could you do in a case like this where a young girl makes a complaint. Of her age and of the nature of the event, she could not say, "Well, this was 5 July 1962" and therefore it has to be, if it is ever to come to trial, a certain uncertainty but it will fix the beginning and maybe with some identification, that is all that can be done.

MR LINDNER: In the appropriate case that is so but where there is latent ambiguity the facts of the case suggest that the complainant does not fix the first occasion as being one isolated incident between dates but multiple incidents. S v The Queen was a case which referred to multiple allegations between dates. In that case one had three different counts. In this case, one has single counts between dates, and between the dates of those single counts of each of those single counts one has multiple allegations. So one is being tried in terms of a composite set of allegations, any one of which might amount to the count before the jury.

It is not a situation where you have the first occasion being defined by some incident or the date or whatever - near Christmas, for example, or around Christmas - and then other occasions being outside or later than that last possible date that that allegation is made. Here we have multiple occasions between dates and this defendant is being effectively tried on multiple instances or multiple allegations under the guise of, it is submitted, a linguistic device, namely "the first occasion".

The Crown says we now only select the first occasion, we do not select the other occasions, but that is, in my submission, merely a subterfuge in order to get the case up and running, in order to have the trial heard.

KIRBY J: How do you say it could be better done, consistent with having a trial of a complaint of this character of a very young girl making a complaint years later. How else could it be pleaded? Do you say that sort of matter just cannot be tried? That would not be a very congenial conclusion.

MR LINDNER: We say that in this particular case, in any event, there are six counts on the presentment that will be tried and they can be tried and they can be tried for a simple reason, namely that there is sufficient particularisation of each of those counts.

KIRBY J: But we have to test your proposition by what would happen in a case where all it was was a complaint that went back many years when the complainant was very, very young.

MR LINDNER: Yes. I rely in those circumstances on the comments of Justices Gaudron and McHugh in S's Case (1989) 168 CLR in the last paragraph of that case, at page 288, where their Honours says:

In the course of argument it was stated by counsel for the Crown that it was impossible to particularise or identify any individual act as the offence the subject of any count in the indictment. Accordingly, it was said, unless the case could be left to the jury on the basis allowed by the trial judge, no case could be prosecuted. While the evidence as given by J. at the trial suggests that there may be practical difficulties in particularising or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do.

And this is what I rely on, your Honour:

Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.

KIRBY J: Well, as Justice Dawson said, there are the principles as well as they can be stated.

MR LINDNER: My submission is that they can be stated in respect of this type of incident with greater particularity.

KIRBY J: So, you are not asking for any new principles, you just say S was wrongly applied in this particular case?

MR LINDNER: No, we go further than that. We say that this is a policy - appears to be a policy that the Crown adopt, that is, alleging the first occasion when they have nothing else to hang their hat on, so to speak, when the allegations are vague, old and multiple and between dates. In those circumstances, a fair trial, it is our submission, cannot be had. In our submission, in those circumstances where the Crown adopt that procedure, commonly, or not uncommonly as the court below said at application book, page 49, such trials ought not to be conducted. There must be limits on the counts that the Crown can and ought to be able to prefer and this is one of them.

The matter of principle is that the defendant ought to know the case that he is to answer. That is fundamental and is trite. The matter in this case is that where there is an allegation of latent ambiguity it ill behoves the Crown merely to bring what I would be submitting is a linguistic device and suggest that the first occasion is somehow adequate and sufficient particularisation because, in my submission, neither is it sufficient nor is it consistent with Johnson v Miller. In Johnson v Miller, had the Court been confronted with particulars, namely the first person who came from the licensed premises was the person that is the subject of that count or charge, that would have been insufficient because the first person was not identified. It was simply not able to be identified sufficiently to raise one or other of the three potential defences that were open. The court and the defendant would still have had to have known who that person was.

What the court below has done is misconceive the test by seizing upon some of the comments by Mr Justice Dixon in Johnson v Miller in the application book, page 46, lines 10 and 18, and as justification for the adoption of this policy, that is, the policy of using the first occasion. At that page:

The latent ambiguity might have been removed by making an amendment or by giving particulars selecting one instance or person to the exclusion of the others. Doubtless it would not be easy to avoid all ambiguity, but, either by reference to the exact time when the person selected was seen to emerge or to the numerical place he occupied in the succession of people said to have been seen between the times given, it would have been possible to tie the complainant down to one instance -

Now, it is our submission that when one looks at what can be done, what could have been done in Johnson v Miller is the person that was identified as the first person could have been brought along, asked his name and his reason why he was there, et cetera, and he could have been cross-examined as to whether his reasons sufficiently were capable of attracting one of the three defences in Johnson v Miller. Had the Crown come along and said, "We are only selecting the first person as the particular", it would have been insufficient, even in Johnson v Miller, and that is the case that binds the court below.

It is in that way that it is suggested that it misconceived the test in Johnson v Miller. The short answer to your Honour Justice Kirby's question is that no trial can be had on these matters, and that was the attitude that the judge at first instance took in this matter because this is an appeal from a successful appeal by the DPP having received a ruling at first instance to the effect that there is latent ambiguity in these offences, latent ambiguity in the insufficiency of particulars on the material being the statements in the committal proceedings and the depositions.

KIRBY J: If the suggested ambiguity in the pleading - presentment - causes any injustice at the trial, it would still be open to your client, if convicted, to take that objection to the Court of Criminal Appeal or the Court of Appeal.

MR LINDNER: It would be open to him but my submission is that it is inevitable that uncertainty will flow. It is inevitable that this matter will go to the Court of Appeal if convicted. It is a matter of great public policy and perhaps it is, again, trite to say that trials that are - - -

KIRBY J: May that not be a better way to tender the issue that you are seeking to tender to this Court, in the sense that then the injustice that you say is inherent in this scheme of pleading will become very clear by reference to the facts and the conduct of the trial.

MR LINDNER: But that has already been litigated before the court below and that is why we are here. We have argued that very thing, as to whether - - -

KIRBY J: No, but at the moment it is all interlocutory, is it not?

MR LINDNER: It is, but - - -

KIRBY J: So that at this stage the issue has not been litigated with that hard evidence that tends to present an issue in a very concrete way to an appeal court?

MR LINDNER: The evidence, with respect, is hard. It is sworn evidence, at committal, and that is what it is based on. That is what the submissions were based on. That is what the defendant's chart in the application book, at page 7, is based on. It is all sworn evidence, your Honour, and it is sworn evidence that is destined to be part of the trial, it is inevitable that it will be part of the trial. It is inevitable, in my submission, that the trial will be fraught with not only unfairness - injustice - it will be fraught with uncertainty as to - - -

GUMMOW J: What is being put to you is S, for example, came up after conviction, so the matters were crystallised.

MR LINDNER: Yes. But in S's Case, as it was said at the very beginning of that case by Justice Dawson, as I recall, that counsel anticipated that that very thing would happen, that is that the matter would - if I could take the Court to page 272, in the second paragraph of Justice Dawson's comments:

In making his application -

that is for particulars -

counsel for the applicant identified the problems which were likely to emerge, namely, that if the evidence called by the prosecution revealed more than one offence during each of the three years in question it would not be possible to say which of the offences was the one alleged. The learned trial judge, however, declined to order particulars and did not accede to the application for an adjournment.

The situation envisaged by counsel for the applicant was that which eventuated.

It is our submission here that the situation envisaged by counsel for the applicant here will be the one that eventuates and that an unfair trial will be had.

KIRBY J: Yes, but perhaps if S had come as an interlocutory appeal the Court would not have given special leave.

MR LINDNER: Or perhaps it would.

KIRBY J: What is the reason for the restraint of courts in interlocutory appeals? The reason is that experience teaches you that when you have concrete facts they tend to give colour, light, substance and bulk to a legal submission and that we are at this stage purely at an interlocutory stage.

MR LINDNER: We are interlocutory in the sense that there is no trial; there has been no trial. I take issue with your Honour's comment that there is no concrete facts. There is sworn evidence.

KIRBY J: We have the sworn evidence on which it is acted below but the longer I sit in appeals, the more convinced I am there is great wisdom in the restraint of courts in intervening at an interlocutory stage because you do not get the whole substance that you get at a trial. When you get that substance, you can see the justice or injustice in a criminal trial, as you cannot do it so quickly here.

MR LINDNER: Yes. It cannot be said, your Honour, that every criminal trial or that every count preferred by the Crown is simply, as a matter of course, a fair count. If that were so, then there would be no concept of latent ambiguity in our criminal law, in our common law. There is such a concept and it needs to be circumscribed. In my submission, the Crown have gone well beyond the limits, and not only do they go beyond the limits of that concept by using this technique of adopting the first occasion but they use the technique for reasons which are, in my submission, subterfuge, to cloud an otherwise unfair case, to cloud a case which is going to be fraught with uncertainty, which will result in an uncertain verdict and those sorts of cases ought not to be permitted to be litigated in the first place.

KIRBY J: Did you move for a stay?

MR LINDNER: That was the result of the application, a permanent stay of proceedings, at the beginning of the - - -

KIRBY J: That was granted by the primary judge.

MR LINDNER: It was granted by the primary judge on the material which was sworn evidence before him - it was not before him, it was sworn evidence before a court and transcribed and that transcription was before him. It is my submission that where there are practical difficulties, and I concede that there are practical difficulties in cases of this type, but there comes a limit, there comes a time when those practical difficulties must prevent the Crown from saying, "Look, we are now going to prefer a charge or lay a count in relation to this matter, notwithstanding the latent ambiguity."

KIRBY J: I simply repeat to you that those practical difficulties would emerge much more clearly after a trial is had. Otherwise, you see, you get one hearing in this Court; assume you lose; you go back to trial and you may want to come up here again and visit us again and it is better for us to conserve your visits until when we really have to have them.

MR LINDNER: We did not even want to visit the court below. We were dragged there, kicking and screaming, and it is the result of the decision of the court below that has prompted this application and that application is that where the verdict is inevitable - and that is my submission, the verdict is inevitable - that it will be uncertain, that the verdict will have to be uncertain - the defendant in this case is presented with a logical impasse. He cannot know which occasion and the jury cannot know which occasion the complainant is referring to when she complains of multiple allegations of sexual abuse and says the first occasion may be on the last date of the date alleged in the presentment, in the count. That presents the defendant with an impossible situation to answer. He cannot argue autrefois acquit, he cannot autrefois convict in future and not only will the defendant be prejudiced by the unfairness of his trial but courts in the future will not be able to determine upon what allegation or upon what occasion he is being convicted.

The date of the offence in this case is vital because there is no other way of distinguishing the occasion from any of the other identical occasions. There are no circumstances - - -

KIRBY J: So, this little girl has got to go back, if she happened to take a diary and have a date. It is a little unreal, is it not?

MR LINDNER: No. If she can fix the incident by some date. Not having a date but, in my respectful submission, simply being able to fix the date more accurately than is otherwise presented at this stage. It will be an unfair trial and, in my submission, it is an appropriate case for special leave. If the Court pleases.

DAWSON J: Thank you, Mr Lindner. The Court need not trouble you, Mr Faris.

In S v The Queen the Court enunciated the principles which apply in a case such as this. This case raises no new point of principle which would warrant the grant of special leave. In addition, the proceedings are at an interlocutory stage and this Court is loath to interfere in those circumstances. Special leave is accordingly refused.

AT 10.46 AM THE MATTER WAS CONCLUDED