GS v The Queen S28/2002 [2002] HCATrans 556 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S28 of 2002

B e t w e e n -

GS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 11.53 AM

Copyright in the High Court of Australia

MR P.L.G. BRERETON, SC: May it please the Court, I appear for the applicant. (instructed by McDonell Milne Toltz)

MR G.E. SMITH: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Mr Brereton.

MR BRERETON: May it please the Court, there will have been a miscarriage of justice in a criminal trial if an accused person has been deprived of a real chance of an acquittal.

In this case the applicant stood trial on seven counts. His acquittal on count 2 shows in a case where the Crown case depended essentially on the complainant's evidence.

GLEESON CJ: I thought there was comprehensive evidence of admission.

MR BRERETON: None of which went in any way to a single identifiable offence.

GLEESON CJ: Right.

MR BRERETON: That is a critical point about those admissions which of course were in issue but none of them went to a single one of the seven offences. I should add while I am dealing with that proposition, your Honour, is that there was no basis for distinguishing the impact of those admissions on counts 1, 3, 4, 5 and 7 on one hand, and count 2 on the other. If they counted against him on counts 1, 3 and the others, they also counted against him on count 2.

The acquittal on count 2 shows first that he did have a real chance of an acquittal. Secondly, that the jury cannot have accepted the complainant beyond reasonable doubt on count 2, and thirdly, that his real chance of an acquittal must have been reinforced if a direction of the type contemplated by the Court of Criminal Appeal in the R v Markuleski had been given.

Against that background two questions arise. The first is whether in whether this Court's decision in Jones v The Queen is merely an analysis of the facts of the particular case or whether, as I submit, it establishes a principled approach to rationalising disparate verdicts where acquittals apparently involved doubt as to a complainant's evidence and that evidence is the only direct evidence of the offences. In our submission, the principled approach which Jones establishes is that those disparate verdicts can be rationalised if, and only if, there is some reason for supposing the complainant's evidence to be more credible on the counts which carry the conviction than those which resulted in an acquittal.

The second question which arises is whether a direction in accordance with Markuleski should have been given, especially in the light of the strong separate consideration directions which are always given in these trials, namely, the Markuleski direction being that where the jury entertains a doubt in respect of the complainant's credibility on one count that doubt must be taken into account into considering the other counts.

I appreciate that some of this territory has recently been covered by the Court in the argument in MFA a few weeks ago in which judgment is currently reserved. To the extent that it be thought that the first question which I have articulated is embraced in that then, in my submission, the appropriate course is to grant special leave pending the outcome of the decision in MFA, but at least as I read the transcript in MFA it does not deal with the second point which is the Markuleski direction and I propose to concentrate, at least initially, on that second point.

GLEESON CJ: Was this direction asked for?

MR BRERETON: No, because Markuleski had not been decided at the time of trial.

GLEESON CJ: What do you say is the direction? Where do we find it formulated?

MR BRERETON: May I take your Honours to the bundle of authorities, the second case in that bundle is R v Markuleski and the first place in which it is set out is in the judgment of the Chief Justice at paragraph 185 and following. His Honour summarises the need for such a direction - - -

GLEESON CJ: Where do we find the terms of the direction?

MR BRERETON: In general terms at 186.

it is desirable that the traditional directions as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count.

Then at 188, his Honour says:

It is not necessary to specify any precise words for such a direction. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning truthfulness or reliability . . . to one or more count that must be taken into account . . . generally.

Then at 191:

The precise terminology must remain a matter for the trial judge in all the particular circumstances . . . The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt . . . with respect to other counts.

CALLINAN J: Mr Brereton, his Honour says that that is the appropriate direction in a word-against-word case.

MR BRERETON: In my submission, that has to be understood as that phrase is generally used in this type of case, as a case in which the only direct evidence of the offences is that of the complainant.

CALLINAN J: That is really adding a gloss to what his Honour said. That is not as I would understand a word-against-word case.

GLEESON CJ: Just take one piece of evidence in this case.

MR BRERETON: Certainly.

GLEESON CJ: And that is the statement that your client made to the solicitor from Mr Nyman's office?

MR BRERETON: Yes.

GLEESON CJ: Did your client deny having said that?

MR BRERETON: Yes.

GLEESON CJ: Now, suppose the jury believed the solicitor, what could they take from that?

MR BRERETON: At the highest, the jury could take that on some occasion there had been - and I think the term was "molest you" - I think, the term of that alleged admission was "molest", that there had been some conduct described as molestation by the applicant towards the accused. Whether it fell within the rubric of any of the charges, it would be entirely unable to say.

GLEESON CJ: What he actually said was, "I am sick and I need help", according to the solicitor.

MR BRERETON: And I should say that that solicitor had allegedly heard this admission in 1990, had acted for the complainant in family law proceedings concerning the custody of her sister, during the 1990s, against the present applicant, but said nothing about it then. This was established at trial, had no notes. It was proven that on the occasion of the alleged admission the applicant attended at her office to uplift a file and pay her bill, and that was all hotly in issue, but - - -

GLEESON CJ: Now, there was also evidence, was not there, that he wrote a letter to the victim in which he said that he had been having a double relationship with the victim and her mother and he did not see why the victim could not have a double relationship with her boyfriend and him?

MR BRERETON: There was such a relationship or there was such a letter. It said nothing - - -

GLEESON CJ: Well, it is putting it a bit high, is not it, to say that this was a case of her word against his?

MR BRERETON: With respect, your Honour, there is nothing in that letter which points to a sexual relationship or sexual misconduct.

CALLINAN J: I think it is an irresistible inference. I disagree entirely, Mr Brereton. You would have to have scales on your eyes to believe that it related to an innocent relationship between a father and a daughter.

MR BRERETON: Even if - there is no point in labouring - - -

CALLINAN J: The difference between us?

MR BRERETON: - - - the difference between us on that, but accepting for the sake of argument that what your Honour says is right, then the question is what does it prove? All it is is relationship evidence which, if accepted, proved an improper relationship albeit, on your Honour's reading, of a sexual nature. That does not go to prove a single one of the seven counts particularised against the accused. If one took away the complainant's evidence, there was no evidence on which the applicant could have been convicted. His conviction depended substantially on her evidence. All this other evidence could do is to not corroborate what she said in terms of any individual count, but to prove - and in a very prejudicial way - an underlying relationship which was wrongful.

GLEESON CJ: But it was all corroborative evidence, was not it? It was not evidence which, standing alone, would have justified a conviction but it corroborated her evidence, did not it?

MR BRERETON: Not in respect of any individual count, your Honour, and the critical point is that if it did corroborate her evidence in that way, then how could it carry conviction on every count except count 2, and not on count 2?

GLEESON CJ: It would be equally true to say that if he had said to somebody, whose evidence was believed, "I have been having a sexual association with my daughter for many years", that does not corroborate her evidence.

MR BRERETON: It does not corroborate - - -

CALLINAN J: I think it has to corroborate a material particular, does not it, or in a material particular, in this instance, sexual relationship?

MR BRERETON: I accept that over the years it has been well and truly established that relationship evidence is admissible for the purpose of proving an underlying sexual relationship. That said, that relationship evidence is not capable of proving any one of the seven counts, but the critical point when one comes to analysing the judgments here and the need for the direction for which I contend, is that let us assume that everything your Honour has put to me in that respect is right, it does not explain why it should bring the complainant's evidence to the point of acceptance on all but one count but not on count 2. It must mean that on count 2 the jury harboured a reasonable doubt about the complainant's version, and if it harboured a doubt about her version on that count, notwithstanding all of this corroboratory material, then it ought to have been directed that it had to take into account that doubt when considering the other counts.

Now, my learned friends essentially advance two explanations for the inconsistency. First, they say, "Well, this could have been merciful verdict." In my submission, in the context of this case - that is, with the greatest respect - fanciful. There was nothing calling for mercy about this case, if the Crown case was accepted, and it would be unreasonable to attribute to the jury a merciful verdict on count 2.

The second basis, which our learned friends advance, is that, "Well, perhaps the jury simply strictly adhered to the separate consideration direction and considered each count completely separately." If that is what the jury did then that in fact accentuates the need for the Markuleski direction because it shows that the jury failed to take into account a doubt harboured on one count in respect of the others where that doubt must have related to the complainant's credibility.

Such a direction is important in two ways. It is important to the accused because it ensures that where there is a doubt raised about a complainant's credibility, effectively on one count, it is properly taken into account on the others, notwithstanding the separate consideration direction. In my submission, it is equally important to a trial. The problem raised in this case of disparate verdicts is a commonplace problem. That problem will be much reduced and the capacity of appellants to argue that a jury has not given weight to the acquittal on one count, when looking at others, will be much reduced if this direction is given, as the Court of Criminal Appeal said it should be in Markuleski.

What happens to that argument in the Court of Criminal Appeal is that commencing on application book, page 145, paragraph 77, the court set out the relevant passages from Markuleski particularly at page 148, lines 30 to 40, and although the subsequent passages in the Chief Justice's judgment were not set out, the Court of Criminal Appeal then set out similar passages in the judgment of the Chief Judge at common law.

No one suggested that a direction like or equivalent to Markuleski had been given at trial, and the Court of Criminal Appeal certainly did not suggest that. The Court of Criminal Appeal nowhere said whether such a direction should or should not have been given. At paragraph 80 of the judgment, commencing at page 149 and following to the next page - the next two pages - the Court of Criminal Appeal declined leave to argue the point on the basis that Mr Bellanto who appeared at trial, in effect, ought to have had the prescience to foresee that Markuleski would be decided some time down the track. In other words, leave was declined on the basis that the direction had not been sought at trial, notwithstanding that the case, which gave rise to the direction, had not yet been decided in the Court of Criminal Appeal.

In my submission, based on Markuleski and even based on what the Court of Criminal Appeal said in this case, such a direction was necessary. Such a direction would have removed the scope for the type of argument which is now advanced, if it were given, and such a direction was plainly not given and the basis for refusing leave to argue it was unreasonable. So that, in essence, is the second question posited in the application for leave.

Returning then to the first question, since Jones v The Queen the Court of Criminal Appeal in RAT 111 A Crim R 310, but it is noted in Markuleski at pages 96 to 97, the Court of Criminal Appeal held that where the only direct evidence of the offences was that of the complainant, if the jury acquitted on one count, it must acquit on all.

In Markuleski, of course, the court withdrew from that position, held that Jones contained no statement of principle but was directed to the facts of the case, and that it was only if upon analysis of all of the facts the different verdicts or the dispirit verdicts could not be rationalised, that it could be said that the convictions were unsafe and unsatisfactory. In my submission, the true position is that - or the true test is whether, as a matter of logic and reasonableness the Court is satisfied after considering all the relevant circumstances, that there is an acceptable explanation for the differentiation between the divergent verdicts. But where as here, the case depends on the complainant's evidence as the only direct evidence of the offences, then the question must be whether there is anything to make her evidence more credible on the convictions than on the counts on which the jury acquitted.

Jones in that way, in my submission, establishes a logical process for rationalising disparate verdicts. If the case depends on a complainant's evidence as the court - or as it was left the jury here, then logic dictates that the convictions can be reconciled with the acquittals only if there is something to give her evidence on the conviction counts more credibility than on the acquittal counts. Just to show that the case did go to the jury on that basis, at appeal book, page 133 - at the foot of 133, commencing at line 33, in the trial judge's directions to the jury:

the Crown case stands or falls upon the evidence of the complainant. Her account is fundamental -

At the foot of the page, line 50:

If you do not conclude that she was both honest and reliable as to the essential features of her account, then it would not be open to you to find the accused (sic) guilt proved beyond reasonable doubt.

The case was left to the jury as a case which depended on the complainant's evidence that they could not convict without accepting her. They did not accept her on count 2. In those circumstances, at the very least, they ought to have entertained a similar doubt on the other counts or they at least ought to have been told so. Those are my submissions.

GLEESON CJ: We do not need to hear you, Mr Smith.

No sufficient reason has been shown to doubt the correctness of the decision of the Court of Criminal Appeal to warrant a grant of special leave, and the application is refused.

AT 12.13 PM THE MATTER WAS CONCLUDED