JL v The Queen S31/2001 [2001] HCATrans 524 (16 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S31 of 2001

B e t w e e n -

JL

Applicant

and

THE QUEEN

Respondent

McHUGH J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 OCTOBER 2001, AT 2.05 PM

Copyright in the High Court of Australia

MR R.D. ELLIS: I appear for the respondent, your Honours. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes. Perhaps the matter should be called outside three times.

KIRBY J: Mr Ellis, just whilst we are having it called, why would a person like this applicant, who does have some points of substance in his case, not be able to get some legal representation before the Court? It puts him at a great disadvantage in advocating before the Court the issues that he wishes to raise, and it does reveal the weakness of our legal system, that prisoners cannot get somebody and that they are really hostage to whether or not the Legal Aid Commission or some other body decides that theirs is a proper case.

MR ELLIS: That is certainly true, your Honour, although he was represented on his appeal to the Court of Criminal Appeal and - - -

KIRBY J: Pretty obviously somebody has taken the view, "Well, he's had his bites at the cherry and that's it", but there are some points in his case. It just leaves me with a sense of disquiet that our legal system has not somebody, a prisoners' guardian or somebody who will look at a case and come and put the best foot forward to a person who has, on any account, received an extremely long sentence, as the Court of Criminal Appeal acknowledged.

MR ELLIS: One of the difficulties, your Honour, though is as time goes by obviously things do change and if this Court or any court was right now to attempt to go back and supervise or review decisions which were made in the early 1990s, in terms of legal matters, I am sure that there would be a lot of decisions which were made which are now no longer perhaps in accord with some of the edicts of this particular Court and that there has to be a time from a financial point of view where, all else being equal, funds are exhausted, otherwise the applications can continually be made. He did make an application for special leave - - -

KIRBY J: We know. We know all that and we have seen that and I asked the question because I had a special leave application last Friday from Brisbane where the prisoner complained that he, at his trial, had had one hour with his counsel and that his solicitor visited him on eight occasions in prison, always promising to come back but always spending only three or four minutes. If these things are true, they are a shame to our legal system.

MR ELLIS: I understand what your Honour is saying.

KIRBY J: I only speak for myself but I have a sense of distaste participating in matters of that kind. However, we have all read the papers and we know what the issues are, but we have had to reach a conclusion without somebody at the Bar table advocating for a prisoner who is under an extremely severe sentence. I, at least, feel anxious about it.

MR ELLIS: Thank you, your Honour.

McHUGH J: The matter was called outside?

DEPUTY REGISTRAR: Yes, it was. No appearance.

McHUGH J: No appearance, yes. The matter having been called outside three times, there being no appearance for the applicant and we being informed there would be no oral submissions, the Court is in a position to give judgment in the matter.

The applicant seeks special leave to appeal from a decision of the New South Wales Court of Criminal Appeal. The Court dismissed the applicant's appeal against his conviction on four counts of indecent assault and one count of buggery. The complainant was the applicant's nephew, who was eight years old when the assaults were alleged to have occurred, between 1 December 1982 and 18 January 1983.

The applicant was convicted on 8 March 1995. On appeal to the Court of Criminal Appeal ("the first appeal"), the applicant alleged that evidence of a complaint was incorrectly admitted, and that the trial judge had not adequately directed the jury on the use it could make of this evidence. The Court dismissed his appeal on these grounds on 22 October 1996. Following the entry of orders by the Court, the applicant instituted another appeal to the Court of Criminal Appeal ("the second appeal"). The applicant alleged in the second appeal that the trial judge erred in admitting evidence as to incidents which were said to have occurred in 1985/1986 and 1987, subsequent to the alleged offences ("the aftermath evidence"). He also submitted that the trial judge gave inadequate directions in relation to that evidence.

On 29 September 1997, the Court of Criminal Appeal (Gleeson CJ, Sully and Dunford JJ) held that it did not have jurisdiction to entertain a further appeal. Cf Postiglione v The Queen [1997] HCA 26; (1997) 71 ALJR 875.

The applicant now seeks special leave to appeal against the judgment of the Court of Criminal Appeal in the first appeal. The grounds are substantially the same as those that the applicant attempted to raise in the second appeal, namely:

1. That the aftermath evidence should have been excluded; and

2. That the trial judge misdirected the jury as to the use they could make of the aftermath evidence.

The applicant also seeks to re-agitate the question of the severity of his sentence on the count of buggery.

According to the Crown, the principal grounds relied upon in the present application were the subject of an earlier application for special leave in this matter, filed on or about 16 December 1997. Summaries of argument were filed on behalf of both parties and the Deputy Registrar made directions relating to the preparation of applications books. The applicant did not comply with those directions and on 16 March 1999 the Deputy Registrar issued a Certificate of Deemed Abandonment. In his affidavit in support of an extension of time, the applicant submits that the reason for the deemed abandonment of his earlier application was that he did not have the funds he needed to have the application books printed as has now occurred.

As I said, the complainant was eight years old when the offence was said to have occurred in 1982/1983. Subsequent episodes were alleged as late as 1987. The first complaint about the offences was alleged to have occurred to the mother of a girlfriend in about 1992, that is, 10 years after the original offence was alleged to have occurred.

The applicant was electronically interviewed in July 1993, in the course of which he denied the allegations. In his unsworn statement at the trial, the applicant denied that the offences had taken place.

The primary focus of the application is the aftermath evidence. The applicant submits that the trial judge erred in admitting this evidence, and made erroneous directions in relation to it. As we earlier noted, these issues were not raised in the first appeal, nor were they the subject of any request for redirection at the trial. In the second appeal, the Court of Criminal Appeal refused to deal with these issues, considering itself to be without jurisdiction in light of the orders in the first appeal having been perfected. Crampton v The Queen [2000] HCA 60; (2000) 75 ALJR 133 authorises this Court to uphold an appeal on a fresh ground or new point. However, the Crown submits that there are no exceptional circumstances in this case that would justify the raising of grounds not relied upon in the court below.

The applicant submits that the admission of the aftermath evidence created a "serious injustice" in his trial. The substance of his submission appears to be that the learned trial judge did not arrive at the correct result in conducting the balancing exercise between the probative value and the prejudicial effect of this evidence. In his submission, the trial judge did not give sufficient consideration to the remoteness of the sexual activity and the fact that it occurred subsequent to the time of the offences with which he was charged.

We think it is likely that the trial judge would have had to conduct the balancing exercise in view of the highly prejudicial nature of this type of evidence, although in the absence of any transcripts surrounding the admission of the evidence it is difficult to be sure about this.

We also think that the directions that were, in fact, given by the judge provided sufficient guidance to the jury as to the appropriate use they could make of the aftermath evidence as to guilty passion, when the directions are considered as a whole. The trial judge emphasised to a sufficient degree that the jury's acceptance of the aftermath evidence was largely contingent upon their assessment of the credibility of the complainant and his uncorroborated complaints.

We have carefully considered the applicant's arguments. But we are of the view that neither of the two principal grounds relied upon by the applicant warrant a grant of special leave to appeal because they have insufficient prospects of success. Furthermore, the failure to object to the evidence and the directions and the absence of a decision on this issue from the Court of Criminal Appeal weakens the suitability of this application as a vehicle for the determination of questions concerning the general admissibility of evidence such as was led in this case, and the directions that should be given in respect of such evidence.

Accordingly, we would refuse special leave to appeal on the grounds concerning the admission of the aftermath evidence and the directions of the trial judge concerning it.

The sentence imposed on the applicant was a very heavy one, as the Court of Criminal Appeal acknowledged. However, no relevant point of principle is involved which ought to engage the attention of this Court. Again, there is no sufficient prospect of success in an appeal against sentence.

Special leave is accordingly refused.

MR ELLIS: If the Court pleases.

AT 2.18 PM THE MATTER WAS CONCLUDED