Jaensch v The Queen P75/2000 [2001] HCATrans 1 (15 January 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P75 of 2000

B e t w e e n -

HANS ANTON JAENSCH

Applicant

and

THE QUEEN

Respondent

Application for bail and expedition of hearing of special leave application

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO BRISBANE

ON MONDAY, 15 JANUARY 2001, AT 11.32 AM

Copyright in the High Court of Australia

MR R.K. WILLIAMSON: May it please your Honour, I appear for the applicant. (of Williamson & Co)

MS J.A. GIRDHAM: May it please your Honour, I appear for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

HIS HONOUR: Yes, go ahead, Mr Williamson.

MR WILLIAMSON: Thank you, your Honour. Your Honour, the applicant submits that each of those grounds of appeal clearly and patently has merit. Ground 1 of the proposed grounds of appeal - - -

HIS HONOUR: Mr Williamson, for present purposes why do you not proceed upon the basis that the grounds, or some of the grounds at least, are arguable. Proceed upon that assumption, which we will make for present purposes. Why is this case so exceptional that, before a grant of special leave even, your client should have bail?

MR WILLIAMSON: Well, number one, each ground of appeal, I submit, is exceptionally good. That is one - - -

HIS HONOUR: Well, your difficulty about that is that each of those grounds was unanimously rejected by the Court of Criminal Appeal.

MR WILLIAMSON: Yes. We do have, as against that, your Honour, the decision of Justice Wallwork, who granted bail and - - -

HIS HONOUR: Well, an observation by Justice Wallwork during argument that he thought the appeal was likely to succeed, but you have three judges who have given the matter full consideration and who have held that the appeal should not succeed. But for present purposes make the assumption - make the assumption for present purposes that you have an arguable application for special leave. What are the exceptional circumstances which would justify a grant of bail?

MR WILLIAMSON: There are some seven, your Honour. The first would be that bail was, in fact, granted by the Supreme Court pending the determination of the appeal to the Court of Criminal Appeal. That is definitely an unusual situation and it applies in this case. The applicant is likely to be denied parole because he does not admit guilt, and there is a decision of your Honour in Doggett v The Queen as authority for the proposition that that is a relevant consideration. The fact that the applicant's time in prison has been particularly traumatic as a result of him being attacked, as set out in his affidavit.

Next, your Honour, the applicant is likely to spend a substantial amount of time in prison before his special leave application is heard, and his Honour Justice Dawson in Peters said that one occasion when bail may be granted is where there is a risk that the sentence will have been served, or substantively served, by the time an application for special leave to appeal is heard and where the application for special leave enjoys a reasonable prospect of success. Your Honour, this is very much a Peters' situation, in my submission.

I also submit another factor which, together with the other ones that I have just referred to, creates exceptional circumstances is that if the appeal is upheld on ground 1, the only logical result would be a substituted acquittal because ground 1 argues that there was no sufficient description of an occasion the subject of count 1. In that case there was, in fact, no case to answer and there would not be a retrial on ground 1, on an appeal based on ground 1, so it is not as though my client is looking at having a retrial, and that is an important and significant factor, I submit. I also submit that even if ground 1 were to fail and that the other grounds were to succeed, that the case does appear so weak for all intents and purposes, for practical purposes there would not be a retrial even if ordered.

Of course, the last circumstance, your Honour, is the fact that the applicant has observed the conditions of his bail before conviction. There has been no problem with him when he has been out on bail. I have not deposed as to this in the affidavit. He does have a place to go to. That is not a problem. The offence of which he was convicted happened a very long time ago. The date of count 1 relates to 1983/84. So we are not talking about at all someone who is likely to be a problem in the community if released on bail.

Those are the reasons I submit, your Honour, why this is a case where exceptional circumstances are sufficiently exceptional to warrant the grant of bail before, and notwithstanding, the special leave application having been heard.

HIS HONOUR: All right. Anything further?

MR WILLIAMSON: Not from me, thank you, your Honour.

HIS HONOUR: All right. Ms Girdham, can I just raise a couple of matters with you before you begin? Is it right that the applicant was eligible for parole on 21 June 2000?

MS GIRDHAM: Your Honour, I understand that should be 2001.

HIS HONOUR: 2001. Would you just check to see whether Mr Williamson agrees with that?

MS GIRDHAM: Your Honour, he has.

HIS HONOUR: He has. Right. So it is not until June this year that the - - -

MS GIRDHAM: June of this year, your Honour, yes.

HIS HONOUR: Well, what was the head sentence? It was three years, was it?

MS GIRDHAM: The head sentence was three years. The minimum term would bring him up to 21 June of this year, given that bail had been given to him awaiting the outcome of the appeal in the Court of Criminal Appeal. So his sentence is suspended under our Sentencing Act, section 10 of the Administration of Sentencing Act. So his minimum time would expire on 21 June of this year. Two-thirds time would expire on 21 June of next year, 2002.

HIS HONOUR: Yes, thank you.

MS GIRDHAM: Your Honour, the Crown opposes bail and queries the requirement for expedition in relation to this matter. None of the issues raised by the applicant alone, in our submission, or, indeed, a combination, constitute exceptional circumstances - - -

HIS HONOUR: Why would the Crown oppose expedition? What interest does the Crown have in the matter in any way being retarded?

MS GIRDHAM: Your Honour, .....of expedition as opposed to consciously opposing the ground. I note - - -

HIS HONOUR: Well, what about if the situation is - and I understand it probably is - that the matter would not be heard until October in the normal course, at the earliest. You may not be aware - you probably are not - that there is a question mark about whether it could even get on then without an order for expedition. By that stage he would have been eligible for parole for four months, but parole would not be granted because he had not admitted his offence. Could I ask you something about that? Why does the executive, or that arm of the executive which is responsible for parole, insist upon an admission in the case of people who have arguable appeals pending?

MS GIRDHAM: Your Honour, I certainly hear what you say. Your Honour, it is not the case that the Parole Board require an admission of guilt. What is required in relation to people convicted of sexual offences is that the Parole Board consider whether or not - or their attitude to a sexual offender's programme which is run within the prison system.

HIS HONOUR: Yes, but part of the sex offender programme involves a recognition or some kind of acceptance of guilt, and that is just a formula, Ms Girdham, for a form of admission and it just seems to me to have a potential for oppression - and I do not think I am the only Judge of this Court who has said that - a potential for - - -

MS GIRDHAM: Comments to that effect were made by Justice Gaudron in the matter of Dinsdale, your Honour.

HIS HONOUR: Yes, and I think other Justices may also - one can understand the validity of that in the case of a person who does not have an arguable appeal, but if there is an arguable appeal it is rather a catch-22 situation, is it not?

MS GIRDHAM: Your Honour, I certainly take on board your Honour's comments, that the present situation is that is within the domain of the Parole Board.

HIS HONOUR: Yes, but you represent the executive. The Parole Board is part of the executive. Can you explain why there is that insistence on it in one form or another in the case of an applicant with a genuinely arguable appeal, particularly when more than one Judge of this Court has expressed concerns about it?

MS GIRDHAM: Your Honour, I do not believe the regime that exists in Western Australia is specific to this State.

HIS HONOUR: No, it is not. It is not. I have raised it in a Queensland case and it has been raised in other cases, but the fact that it is not specific to Western Australia does not necessarily make it right. Can you tell me what the justification for it is in the special circumstances to which I refer, of a genuinely arguable appeal?

MS GIRDHAM: Your Honour, as the matter exists, I am referring to the applicant in relation to this matter does not have the right of appeal until special leave is granted.

HIS HONOUR: No, that is correct, but an arguable application for special leave.

MS GIRDHAM: Your Honour, yes. So as the matter stands at present, pending a successful application to this Court, the judgment of the Court of Criminal Appeal, which is unanimous, stands, which, of course, apart from any right the applicant may have to make an application to this Court, is the end of the matter.

HIS HONOUR: Yes, all right. Ms Girdham, the other matter I wanted to raise with you at the outset was the remarks that were made by the trial judge. Her Honour said that she was redirecting at the request of defence counsel. You do not contend that that was a proper observation to make, do you?

MS GIRDHAM: I beg your pardon, your Honour?

HIS HONOUR: You do not contend that that was a proper observation for her Honour to make, do you?

MS GIRDHAM: Your Honour, it is the case that her Honour gave an explanation as to why she made those comments on the fact - - -

HIS HONOUR: But I know it is an explanation, but is it proper for her to do it in that way? Do you contend that it is?

MS GIRDHAM: Her Honour's statement would not be improper, your Honour, in the circumstances which - - -

HIS HONOUR: Is it customarily done in Western Australia?

MS GIRDHAM: Not that I am aware of, your Honour, no.

HIS HONOUR: Do you know of any other case in which it has been done?

MS GIRDHAM: Your Honour, I am not aware, and it does not appear that the Court of Criminal Appeal made any mention of a case where it has previously heard - - -

HIS HONOUR: All right. Well, in any event, you say that it is not improper but that is not a course that you would advocate, I take it.

MS GIRDHAM: Hopefully, no, your Honour.

HIS HONOUR: You would not be suggesting to any trial judge that he or she do that?

MS GIRDHAM: Your Honour, no.

HIS HONOUR: All right. Well, I am sorry, I interrupted you. Those were just two matters I wanted to raise at the outset.

MS GIRDHAM: Briefly, perhaps if I could advise your Honour, I have today spoken to the High Court Registry in Canberra who have confirmed what your Honour has said. Provided that the appeal books are lodged in this matter or are filed in this matter, and they are required to do so under the present timetable on 18 January, then this matter could, I understand, be placed on a B list and may be included in the special leave applications to be heard in this jurisdiction - rather, in Perth in October.

I am told, however, that that is by no means settled and it may be that a video link will be organised prior to October in relation to special leave applications on this jurisdiction.

HIS HONOUR: All right. Ms Girdham, for the rest you rely upon your written submissions, I take it, do you?

MS GIRDHAM: Your Honour, yes, that is the case. We rely on our written submissions. There is, it is our submission, nothing in the applicant's application that either by itself, or in combination, would constitute exceptional circumstances such as to invoke the inherent power of this Court to grant bail.

HIS HONOUR: Yes, all right. Thank you, Ms Girdham. Mr Williamson.

MR WILLIAMSON: Your Honour, the only extra thing I would like to point out is that it seems that as a result of my client getting bail in the Supreme Court he had to wait an extraordinarily long time - just over a year - for the delivery of the decision dismissing his appeal, which put him back into prison, and that is a circumstance that I meant to refer to as another circumstance which makes this - - -

HIS HONOUR: But it cuts both ways, does it not? He got the advantage of having been out of prison for a very long time, pending the giving of a decision by the Court of Criminal Appeal. He was at liberty whilst the appeal was reserved.

MR WILLIAMSON: There is no doubt about it, he was at liberty for that year, but my - - -

HIS HONOUR: I thought it was a bit less than a year. Was not the appeal heard in December 1999 and judgment given in August 2000?

MR WILLIAMSON: That might be right actually.

HIS HONOUR: I think it is. All right. Well, you have nothing further to - - -

MR WILLIAMSON: I have no further submissions.

HIS HONOUR: Mr Williamson, let me tell you at the outset I am not prepared to grant bail, but I would be prepared to order expedition. I could make an arrangement for the matter to be heard by video link to Sydney on 6 April or, of course, if the parties wanted to attend in Sydney, they could have their - Mr Williamson, if the parties wish to attend, the matter could be heard in Sydney on 6 April. I am prepared to make an order for expedition to 6 April, but it may have to be by video.

MR WILLIAMSON: Your Honour, if I can just reach over to grab my diary.

HIS HONOUR: Yes.

MR WILLIAMSON: There is no problem with that at all, your Honour.

HIS HONOUR: All right. Thank you, Mr Williamson.

This is an application for bail pending the hearing of an application for special leave to appeal against conviction of the applicant on one count of indecent dealing by him with his stepdaughter some 17 or so years ago. At the time of the commission of the offence the complainant was between 101/2 and 12 years of age. She was unable to state the date upon which the offence occurred but in evidence gave particulars of it.

The applicant was tried in June 1999 on three counts by a judge of the District Court of Western Australia with a jury. He was acquitted on two of the counts. He was sentenced to be imprisoned for a term of three years with eligibility for parole on 21 June 2001.

Following his conviction the applicant applied to the Court of Criminal Appeal of Western Australia (their Honours Kennedy, Pidgeon and Anderson JJ) for leave to appeal against conviction and sentence, but before his appeal was heard he made an application for bail. The application for bail was heard and granted by Wallwork J, who expressed the opinion that the applicant's appeal was likely to succeed.

The appeal was heard on 6 December 1999 but judgment was not given until 11 August 2000. One can understand why the Court of Criminal Appeal did not give any priority to the determination of this appeal because the applicant was at liberty throughout this period pursuant to the grant of bail which had earlier been made.

The applicant seeks special leave to appeal to this Court. The grounds which the applicant would seek to urge in this Court are that the trial miscarried when the trial judge informed the jury, before redirecting them at the request of the applicant's counsel, that she was, in fact, doing so at the request of the defence. In giving that redirection her Honour also said that her remarks, if taken in isolation, would seem very lopsided and that they should be read in conjunction with what she had earlier told them.

Another ground that the applicant would wish to urge is that evidence was wrongly admitted at the trial under the rubric of relationship evidence. There were several aspects of this, some of which can be characterised as evidence of inappropriate behaviour by the applicant towards his stepdaughter with sexual connotations. There was some further evidence that the applicant had introduced the complainant to alcohol and cannabis and that, in the circumstances, this evidence also had a sexual connotation, a matter which the applicant vigorously contested.

There were two other grounds of appeal. One of these was that there was a significant departure between the opening by the respondent of the Crown case and the evidence of the complainant with respect to the occasion on which the offence was committed. The last ground was that the trial judge failed to explain the meaning of "corroboration" in giving a Longman direction to the jury. All of these grounds were argued in the Court of Criminal Appeal and were unanimously rejected.

The applicant accepts that an application for bail to this Court may not succeed unless special circumstances can be shown. The applicant says that the special circumstances here are that each of the grounds is strongly arguable and that there is still sufficient doubt about the admissibility of relationship evidence as to make this a matter of public interest and one in respect of which clarification should be provided by this Court: that bail was granted by the Supreme Court pending the hearing of the appeal in the Court of Criminal Appeal; that the decision of the Court of Criminal Appeal was reserved for an extraordinarily long time; that the applicant would be likely to be paroled but for the requirement that he first admit guilt, a requirement that is oppressive when he has a pending appeal; that he is at risk in prison and has already been assaulted; that by the time his application is heard he will have served a substantial part of the term of imprisonment imposed; and that if his appeal were to succeed, it is unlikely that there would be any retrial.

It would be inappropriate for me to express an opinion about the prospects of success of the application for special leave to appeal. However, I am prepared to accept that the grounds that the applicant wishes to press are arguable but, on the other hand, it is also very relevant that the Court of Criminal Appeal carefully examined all of those grounds and concluded that none of them should succeed.

With respect to the contention that the application to the Court of Criminal Appeal was not determined for a long time, it is sufficient to observe that the applicant was in no way prejudiced by this because he was at liberty whilst the decision of the court was reserved. As to his contention that he would not be likely to be paroled because he is unwilling to admit guilt whilst his appeal is pending, it is sufficient to point out that he would not become eligible for parole in any event until June this year.

I would be concerned about the matter of risk in prison but it may now be confidently expected that the authorities, having been alerted to this risk, will take precautions to ensure that the applicant is not subjected to any assaults or threats by other prisoners.

I have formed the opinion that neither alone, nor in combination, can a case of special circumstances be made out here. However, in view of the fact that there is a question of eligibility for parole arising in June of this year and to the fact that, in the ordinary course, the applicant's application for special leave would not be heard before October this year, the application for special leave should be expedited.

I accordingly order that the application for special leave be expedited to be heard either by video link or otherwise in Sydney on 6 April next. I would also direct that the parties file all material, if there is any material still to be filed, to enable the application to be heard on that date by, on or before 18 January 2001.

Now, all that means is that the application book has to be filed; is that correct?

MR WILLIAMSON: That is right, your Honour. I am still in the process of dealing with the Deputy Registrar on settling the index to that.

HIS HONOUR: All right. That should not take long, Mr Williamson, should it?

MR WILLIAMSON: Your Honour, I would ask that we have an extra two days - - -

HIS HONOUR: All right. Well, I will amend that and make that 20 January instead of the 18th. Is there anything further?

MR WILLIAMSON: Not from me, thank you, your Honour.

HIS HONOUR: Yes. Thank you, Mr Williamson. Thank you, Ms Girdham.

AT 12.01 PM THE MATTER WAS CONCLUDED