Preston v The Queen S42/1997 [1998] HCATrans 33 (13 February 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S42 of 1997

B e t w e e n -

JOHN HAMILTON PRESTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 10.17 AM

Copyright in the High Court of Australia

MR J.C. NICHOLSON, SC: If the Court pleases, I appear for the applicant. (instructed by Marsdens)

MR A.M. BLACKMORE: I appear for the respondent. (instructed by the Office of the Director of Public Prosecutions (New South Wales)

MR NICHOLSON: Your Honours, if one looks in the criminal justice system at the jury as a tribunal of fact, it is not difficult to recognise that there are weaknesses inherent in the jury's capacity to act as a tribunal of fact. Our submission is that it is important that this Court ensure that no party be permitted to manipulate the provisions of the Evidence Act in such a way as to exploit the weaknesses inherent in the jury system and thereby undermine the efficacy of trial by jury. Our submission is that in this case the Crown was, in fact, permitted to exploit a weakness that was inherent in the jury system.

BRENNAN CJ: But the evidence was of the reason why she did not call out, is that right?

MR NICHOLSON: Yes, your Honour.

BRENNAN CJ: Now, tracing it back: that fact that she did not call out was relevant to the question of consent or no consent?

MR NICHOLSON: It was relevant to that question, yes.

BRENNAN CJ: That was the fact in issue.

MR NICHOLSON: And that was a fact in issue.

BRENNAN CJ: So, the reason for not calling out, is that not relevant to the fact in issue?

MR NICHOLSON: That was relevant to a fact in issue.

BRENNAN CJ: And this is what the evidence is.

MR NICHOLSON: That is right.

BRENNAN CJ: Where is the weakness?

MR NICHOLSON: The weakness is this, your Honour, that all evidence that is relevant does not, if one applies the screen or a filter - that fairness requires for the other party at the trial - I am thinking in particular of section 137 - does not necessarily get in. In our submission, at the trial itself there is no indication by the trial judge as to how he got to a position where he admitted the evidence. So, there has been no capacity to scrutiny or to scrutinise the way in which the trial judge reached his decision to admit the evidence.

BRENNAN CJ: Here is a person who comes into the woman's bathroom; has intercourse with her in two fashions on the floor of the bathroom; there is another male person in the house who, if summoned, might have been expected to provide some relief to the situation; and she does not call out.

MR NICHOLSON: She does not call out.

BRENNAN CJ: Now, one can only say that, unexplained, would be the very makings, I would have thought, of a defence counsel's final address, would it not have been, Mr Nicholson?

MR NICHOLSON: Her evidence - - -

BRENNAN CJ: I cannot imagine you leaving it alone, if I might say so.

MR NICHOLSON: No, but when a situation arises where there is evidence which is of a highly prejudicial nature and the prospect of it being canvassed before the jury comes to light then, quite clearly, arrangements are made as between counsel as to what they will do in the light of that evidence to accommodate or to make way for a fair trial for an accused person.

BRENNAN CJ: That arrangement could surely overcome a jury's natural reluctance to find guilt in the light of a failure to summon the one and obvious piece of assistance that there was.

MR NICHOLSON: I would have argued, your Honour, at the trial and, indeed, here that there are many woman who do not resist rape because they are scared and need really go no further than that. It is something that most women and, indeed, most men can understand and identify with. The need to canvass against a background of this lady knowing this man for 8 years, knowing him particularly well for 3 years and then being asked, "What was in your mind?---He had assaulted somebody." "Anything else?---Yes, he had shot somebody." In a sense, it could not be left as a Subramanian-type situation for the jury, particularly in the absence of any directions from the trial judge at that point in time. Everyone on the jury would have been aware that the gentleman who was standing in the dock had shot somebody - sex or gender not determined - and had assaulted somebody. Again, gender not determined.

So that it was open to the jury to come to the view that he possibly had shot a woman and that he had possibly assaulted a woman in circumstances where he was perhaps out to get his way. I mean, one cannot control the mind and that is the point that I was making in the opening, that juries being untrained in legal techniques are inclined to let the mind go wild, particularly when you have 12 of them talking, one to the other.

BRENNAN CJ: Well, they are pretty good.

MR NICHOLSON: Our submission, your Honour, is that - and I think I said this in the application book - many women come before the courts complaining of rape, have not resisted and their case is judged in the light of the evidence. Here, this one has a forensic advantage.

HAYNE J: Could such a complainant give evidence saying, "I did not resist because I was frightened?" As I understand it, you would say, "Yes." Could she go on and say, "I was frightened because I thought he would hit me."?

MR NICHOLSON: Yes.

HAYNE J: Yes. Why can she not go on to say, "I was frightened because I believed him to be a violent man to this extent: he had shot people or beaten people", or whatever?

MR NICHOLSON: Because, in the first two instances your Honour gave, the tendency is not raised. The propensity is not raised but in the latter case the propensity itself is raised, that is, "I knew that he had done this before and I felt vulnerable."

BRENNAN CJ: Mr Nicholson, would defence counsel have been prepared to say in this case, "We will accept without challenge that the reason why the prosecutrix did not call out was that she had very good reason to be scared"?

MR NICHOLSON: If he had conceded to that, in our submission, that would not have been as damaging as permitting in material that went to violence of an extreme nature, that is to say, violence of shooting.

BRENNAN CJ: Well, "had extremely good reason to be scared."

MR NICHOLSON: If you ask me as a practitioner I would not have agreed to the second. I may have agreed to the first.

BRENNAN CJ: That is right, of course, but is that not the very point?

MR NICHOLSON: With respect, no, your Honour, because, again, the propensity or the tendency is not spelt out. The problem with what happened in Mr Preston's case is that the propensity, in addition to - I mean, there is a size difference, it would seem, from the evidence or at least something that the jury could observe - that there is this gangland-type description of a man who has shot somebody in circumstances that are not defined. We know not whether it is a man or woman.

HAYNE J: It sounds perilously like a submission that the better the reason for the victim being frightened, the less admissible the evidence, Mr Nicholson.

MR NICHOLSON: The courts have traditionally understood the care with which one must circumvent bad character and our submission is that here is an instance where a woman, knowing this man, has announced to the jury, in effect, that he is a man of bad character. While one can concede that it has some probative force - we have not shifted away from that - but it has pulled the rug out from under him. Indeed, in the directions that his Honour gave, in our submission, such little advantage as he could have salvaged from the situation was also taken away from him, and it is this: that the one thing that he possibly had remaining for him, given that she submitted, was that he had available to him - he still had available to him the issue of consent, but he also had available to him in a more - in a way that perhaps the jury may have taken more sympathy with, the fact that he did not know she was not consenting.

It is our submission that in the directions that the learned trial judge gave on that issue, he was denied the advantage, such as it was, of that. I take your Honours in particular to pages 31 and 32 of the application book. At the foot of page 31 of the application book his Honour is directing the jury that she did not yell out, scream or scratch or bite. He comes at line 15 on page 32:

and it is important in this case because the complainant said to you that she was in fear of the accused.

Then his Honour directs the jury that if she:

submits to sexual intercourse.....as a result of terror -

she -

is to be regarded as not consenting -

and then at line 29:

So, if it be, members of the jury, that you are satisfied that the complainant did the things that she admits having done -

which he enumerates, and then to line 39:

and you are satisfied that she did those things as a result of her fear, then she has not consented to do those things. Now, members of the jury, she has said that she feared for herself, that she was in fear of the accused. She said the basis of her fear was that she knew -

and I highlight that because it was really supposed to be a Subramanian proposition, not a knowledge thing -

the accused had assaulted people and had shot someone. As the learned Crown Prosecutor said, that goes not -

presumably "go" -

to prove anything other than her state of mind. Her evidence goes to prove only the basis for her belief.

In other words, the fact that she knew he had shot someone, the basis of that.

It does not go, and it would be quite improper for you to use it to go, to prove whether or not the accused knew that she was not consenting.

Now, that was the one advantage that the accused could have got out of this.

Redirections were sought and they appear on page 42:

The fact that the complainant believed that the accused had assaulted people and shot a person is not evidence that he had done any of those things, it is the basis of her fear, and it would be quite improper for you to take into account adversely to the accused, the allegations -

and I make the point that that really is putting it too high -

and that is all they are, that he had assaulted people and shot a person. The evidence was admitted only, and I repeat, only in relation to her belief going to her terror of what was occurring in the bathroom, because, as I have said, if it should be that a person submits to sexual intercourse with another person as a result of terror, the person is not to be regarded as consenting to that sexual intercourse.

Now, our argument is that he has not undone the damage that he has done here which it take away from the applicant the shred of defence that he had which was that he did not know that she was consenting. The very fact that she was compliant - I think her evidence is somewhere that she did nothing to discourage him - gave him the defence.

Then in terms of the summing up, the area where any evidence which is of real value to him, that is, in his record of interview, is dealt with on this basis: that the Crown can use the record of interview as it likes, but there is nothing said about how the defence case can take advantage of the record of interview. So, again, this either "I don't recall" or "She seemed to be willing enough to do whatever it was I was doing", that defence - or, "I didn't know that she was consenting" has again been minimised in the summing up to the jury.

HAYNE J: Her sworn evidence was, was it not, that she said several times, "I don't want to."

MR NICHOLSON: She certainly said that but in her sworn evidence - - -

HAYNE J: And the judge, at page 34 and following, dealt at some length with the need for the Crown to prove that the accused knew that she was not consenting.

MR NICHOLSON: Yes, that is true but the one thing that the accused had going for him which was, "Well, members of the jury, she was afraid", that supports the proposition that she was doing nothing and that "I didn't know". So that one thing that he had going for him has been taken.

BRENNAN CJ: What is the special leave point, Mr Nicholson?

MR NICHOLSON: The special leave point, your Honours, is this, that where there is material such as this, that it is open to the defence to use it - well, I suppose the special leave point is that there has been a miscarriage and that it is open to the defence to take advantage of material of this character to assist it in its defence.

BRENNAN CJ: So be it. It does not need a grant of special leave to establish that, does it?

MR NICHOLSON: As your Honours please. Your Honours, that is the material I wanted to put before your Honours.

BRENNAN CJ: Yes. Thank you, Mr Nicholson. We need not trouble you, Mr Blackmore.

There is no error in the decision of the Court of Criminal Appeal which might found a grant of special leave. For these reasons, special leave will be refused.

AT 10.35 AM THE MATTER WAS CONCLUDED