RJR v The Queen [2006] HCATrans 336 (16 June 2006)

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RJR v The Queen [2006] HCATrans 336 (16 June 2006)

Last Updated: 20 July 2006

[2006] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne Nos M9 and M10 of 2006

B e t w e e n -

RJR

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 2.03 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC: May it please the Court, I appear on behalf of the applicant in both matters. (instructed by Clarebrough Pica)

MR P.A. COGHLAN, QC: May it please the Court, I appear on behalf of the respondent with my learned friend, MRS C.M. QUIN. (instructed by Director of Public Prosecutions (Victoria))

CALLINAN J: Yes, Mr Holdenson.

MR HOLDENSON: With respect to the first matter, M9, the evidentiary foundation of count 7, the digital penetration of the complainant in the shower, is summarised in the judgment below at page 528, and if I might just quickly take your Honours to page 528 of the application book where your Honours will see at the head of the page, indeed the paragraph is there set out on page 528 for summary, and it reads:

The applicant washed Ms O.’s body, including her back, buttocks, breasts and vagina. Ms O. stated, “when he was rubbing the soap, his finger went inside of my vagina, around the clitoris area, and then just inside the vagina. It wasn’t – he didn’t put his finger all the way in, but I didn’t even want him touching me” (Count 7). Ms O. flinched and tightened her buttocks to stop it going any further. The applicant then rinsed himself, told Ms O. to rinse her “moosh” (which is what he called her vagina) and turned the shower off. In cross-examination Ms O. agreed she was unable to dispute the possibility of accident, with the applicant lathering her legs and inner thighs.

Now, as is apparent from that passage that is only a summary and if we could just add to that by reference to some short passages in the application book within the evidence, first within the cross-examination of the complainant at page 247 at the very head of the page, she describes how it was that she was in the shower, at 247, second line on the page, question:

You’re in the corner. He washed your front first or your back first?---He just rubbed the soap all over me . . .

You certainly remember, don’t you, that there was a point where you felt that there has been a penetration of your vagina?---Yes.

Over the page:

That was at a time when your body was being lathered?---That’s right.

You say it was only a partial penetration at most; is that right?---Yes . . .

You say that his finger partially entered your vagina?---That’s right.

But you wouldn’t be able to dispute the possibility of accident, could you, with him lathering your legs and your inner thighs?---No, I couldn’t dispute that . . .

From there on you were asked to finish off getting the soap from around your genital area; is that right?---He asked me to wash –

that area. Then finally within the re-examination at 264 at line 16 of the actual transcript – this is within re-examination by the prosecutor of the complainant:

It was – to me it was just the start of his finger went into my vagina. I couldn’t say how much of his finger went in . . .

I mean, you can feel something go in; it wasn’t just on the outside.

Over the page to 265:

What did you mean when you agreed, I think it was?---Well, I couldn’t dispute it, because how did I know? I mean, I can’t say that he deliberately put it there or that he didn’t deliberately put it there, I mean, could it’ve happened, obviously the answer’s yes, it could’ve happened.

What could have happened?---That his finger might’ve gone into my vagina while he was rubbing it with the soap . . .

I was saying that he put his finger into my vagina and I believe that he put it there deliberately, but [counsel for the accused] put it to me that could it’ve happened as he was washing me, that it just went in there. It could’ve happened, I mean, his hand was there at my vagina . . . it could’ve happened -

Now, on the assumption that it was open to the jury to find that there had been penetration, the requisite penetration for the offence of rape, the jury in order to convict had to find beyond reasonable doubt that the applicant intended to sexually penetrate. So the Crown was required to exclude beyond reasonable doubt the reasonable possibility that the penetration was not intended, that is, that it was accidental. The applicant’s contention is this, that in the light of that evidence, placed as it was before the jury, the Crown failed to exclude that reasonable possibility.

Now, as to the formulation of that possibility, could I just remind your Honours of the passage in the decision of this Court in Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 - copies were provided the other day – and if I could just take your Honours to the foot of page 509 where your Honours will see at the foot of page 509 a reference to the decision of Plomp and then indeed in the next paragraph at the foot of page 509 a reference to the decision in Barca. Each of those two quoted passages makes it clear that guilt, which in the context of this case is a finding that the act of the applicant in penetrating the complainant’s vagina was intentional, should be the only rational inference that the circumstances enable the jury to draw. That is the test in each of those cases and indeed applied by the Court in Knight.

So in having regard to the circumstances, this was a case in which there was an account given by an eyewitness, the complainant, and although there is no suggestion that the complainant could give evidence as to what was within the mind of the applicant, she was well able to describe what was done to her and the manner in which it was done to her, and her description supports the contention that the manner in which her vagina came to be penetrated by just the start of his finger – that was the evidence - just the start of his finger, was not....., not deliberate and not intended. He was lathering her with soap. It could have just slipped in there. It was only the end bit of the finger that went inside.

Hence, the ground of appeal to the court below, and in that regard, if I could quickly take your Honours to the judgment below, in particular the passage at page 535. At 535 of the application book towards the foot of the page your Honours will see paragraph number 43 which reads:

Ground 3 is that the verdict on Count 7 is unreasonable and is not supported by evidence in that there was insufficient evidence that the digital penetration of the complainant by the applicant was intentional; and that the prosecution had failed to exclude that it was accidental.

The court below, within the next two paragraphs, one of which is only a line and a half long, resolved that question in a manner adverse to the applicant. The next paragraph says there was only one person who knew and he was mute and with respect to that paragraph we respectfully raise the question as to whether or not the court below has taken into account in some sense as a makeweight the silence of the applicant, albeit he was not wholly silent because he may have been silent in court – there was a lengthy record of interview in which he denied this – and in the next paragraph:

There was an amplitude of evidence to establish it was intentional. The applicant denied it occurred. He admitted in the record of interview –

and that is it. Now, in resolving that ground of appeal in a manner adverse to the applicant, the court below did not ask the question of whether – and I am going back to Plomp and Barca – as to whether the only inference open on the facts was that the appellant intended to penetrate the vagina. So in resolving this ground of appeal in a manner adverse to the applicant, the court has, in our respectful submission, disregarded the obligation imposed upon it by the High Court in cases such as Knight, Plomp and Barca and asked itself the wrong question; secondly, taken into account the accused’s, as he then was, silence in court and in any event resolved the question wrongly with respect to the evidence or the lack of evidence with respect to intention. This is a matter to be proven beyond reasonable doubt.

There are cases in this Court in which - circumstantial cases - and whether or not the Crown have proven mens rea or intention to the requisite extent of beyond reasonable doubt have been dealt with by this Court consequent upon grants of special leave, and indeed we have identified a number of them in our outline of submissions. In the outline your Honours will see that we have cited this Court’s decisions in M, Jones, Knight and Cutter and indeed Knight and Cutter are simply mens rea cases and the sufficiency of evidence in that regard, each case being circumstantial in nature. It is for those reasons that, in our submission, there ought be a grant of special leave in this case of M9. I am now in the Court’s hands as to whether or not you wish me to proceed to M10.

CALLINAN J: Yes, proceed.

MR HOLDENSON: With respect to M10, in order to be convicted of the offence of making a threat to kill, a statutory offence contrary to section 20 of the Act, one of the elements to be proven beyond reasonable doubt is that there was a threat to kill, as distinct from a threat to cause or inflict some sort of serious injury, because that is a different statutory offence altogether.

Another element of the offence is that the maker of the threat intended to make a threat to kill. The evidentiary foundation for this making of a threat to kill, which was the subject of count 4, is to be found in the application book at page 331. If I could take your Honours to the very last line of 331, it happens to be question number 151, and the question reads:

Yep.

The answer at the head of 332 reads:

“I have to tell someone. You don’t know what it’s doing to me.” And he said, “If I go to jail, it’ll be the –

I will leave out a word –

last of ya.”

HEYDON J: Why is that not a threat to kill?

MR HOLDENSON: The answer to that question is it was not open to the jury to find that to the standard of beyond reasonable doubt, and I will indicate why: three reasons. It is a question of construction.

HEYDON J: Yes.

MR HOLDENSON: The context is all important in construing what was meant by the maker of the statement. Here we do not have much by way of context. There is not much detail. But if you do fossick around those pages you get the statement being made in this context, “If you tell someone what I’ve done to you and if I go to gaol as a consequence, that will be the last of you”. That is only one thing, context. Secondly, regard can be had to what the recipient of the statement himself - or in this case herself – says. She was there, she heard it, she knew him and indeed had known him for some 10 years. She had been his stepdaughter.

Now, that approach of “you can have regard to what the recipient says” was positively endorsed by the court below in its judgment at page 542. At page 542 of the application book your Honours will see in the middle of the page paragraph 70. Paragraph 70 was referable to the first ground concerning the threat to kill in which objection was taken by way of ground of appeal in the court below to the admissibility of the belief of the recipient as to what was meant by the applicant. It was resolved in that paragraph in a manner adverse to the applicant that the belief of the person was relevant and admissible. Well, here, if I could take your Honours back to page 332, what did she say about the threat? The next question, which was 152, asked the question:

And what do you think he meant by that?

He was gonna kill me, or he was gonna get someone to kill me or hurt me.

So the recipient herself recognised that there was a possibility that what he meant was something other than threatening to kill, in other words, a mere threat to hurt. But regard can also be had – I am still answering your Honour Justice Heydon’s question; sorry to be so long.

HEYDON J: No, that is all right. You have done two points.

MR HOLDENSON: So those two things, but there is a third thing: previous circumstances or incidents. The applicant on a previous occasion had said this to her. He said, “It would be the last of you”, and on the last occasion it was said she understood it to mean it would be the end of her way of life. I will take your Honours just in a moment to the passage. Perhaps I will do it now. Could I take your Honours to questions 43 and 44 in that tape at page 313 of the application book. Can I take you to the third last line on the page, just to do it a little more quickly:

it would – it would be the last of me –

Your Honours will see that in question 44. She explains that in question 43:

What’s happened the next day? Did anything happen the next day?

He wouldn’t like - like, he just – nothing, like, physical happened. He just used – he told me that – things, like, on the phone, and he’d tell me things like, “Don’t you fuckin’ tell anyone,” and he’d use, like, “You’re a bitch. You’re a fat obese” – or stuff like that. And he’d said that if I said, you know, that I - if I told, that I’d go to jail for perjury. I don’t even know that that means, but I would go to jail for perjury. And – and things like Mum will lose her job and he’d go to jail and we’d live out in the street.

Mm.

And that if he went to jail, then I would – he’d come back. Like, it would – it would be the last of me –

So, in other words, on the last occasion he used - - -

CALLINAN J: No, you have got to look at the next page.

MR HOLDENSON: I am sorry, page 314?

CALLINAN J: Yes:

And I got really, you know, scared.

MR HOLDENSON: Yes, scared as in frightened as in threatening to hurt, which is a different statutory offence. In the outline of submissions, if we could just take your Honours to page 580 of the application book , at paragraph 38 towards the head of the page, the proposition that the last four words said by the complainant to have been used by the applicant – it will be “the last of you” - are not necessarily referable to killing or causing death was confirmed by the complainant in one of the constructions of the applicant’s threat proffered by her, namely, it meant that the applicant was going to kill her or hurt her. If it is hurt her, not this offence, falls outside section 20, different offence, section 21, which ought to have been, in my respectful submission, the offence charged.

HEYDON J: Your argument is the jury verdict was unreasonable?

MR HOLDENSON: That is right.

HEYDON J: You have been putting an argument for the jury’s consideration.

MR HOLDENSON: Why is it unreasonable: because there is a rational hypothesis consistent with innocence. In fact, if I could use the language of Knight’s Case, whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the applicant declared an intention to do something less than causing her death. The word “unreasonable” is within section 568, the statutory ground, the old “unsafe and unsatisfactory”. In our submission, in the light of those matters, notwithstanding her fright or her being scared to the extent of “I thought he would hurt me” - - -

HEYDON J: The test for us would be, do we have a reasonable doubt? Would the Full Court have a reasonable doubt, on the evidence?

MR HOLDENSON: Well, that is one way, but turning it round the other way – and if I could just take your Honours to Knight’s Case at page 503 – in the previous matter I took your Honours to 509. At 503 about point 7 on the page, third line into the paragraph:

That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the short which hit Salvo.

So that is the question which, in my submission, arises in this case. Knight was the subject of a grant of special leave and obviously an appeal which was resolved in his favour. The question, in our submission - that question at 503 of Knight can only be answered in the negative, just as the complainant herself answered it in question 152 of the VATE-tape, question 152, “I thought that he would – he was going to kill me or get
someone to kill me or hurt me”. As soon as there was recognised the possibility of “or hurt me” then that happens to be, in my submission, nothing other than the answer in a manner favourable to the applicant.

HEYDON J: So there could have been a directed verdict at the end of the Crown case?

MR HOLDENSON: Yes, there could have been, but there was not, and in this State one does not complain about a failure of a judge to accede to a submission of no case to answer. You do not complain about that on appeal; you simply complain about whether or not the verdict was unreasonable, to use the language of the statute. Could I just before concluding, however, take your Honours to the way in which this question was answered by the court below. It is in the application book on page 542 at paragraph 71, which is at the very foot of the page, third line in:

It was submitted that the words uttered did not necessarily convey an intention to kill as distinct from an intent to cause aggravation, upset or some other form of unpleasantness. I disagree. The meaning of the words was for the jury to determine according to proper principles of proof including the context of surrounding acts. The victim was a 13 year old girl. A serious sexual offence had occurred. The threat was made to prevent the victim having recourse to law. These were high stakes. It was abundantly open –

Just pausing there, nowhere in that passage, in our respectful submission, did the court below deal with the question which, in our submission, it was required to deal with. As per Knight’s Case, the court did not ask itself whether the jury acting reasonably could have rejected as a rational inference the possibility. If this was an administrative law case, the ground of appeal would be jurisdictional error. We do not have to use that language in the criminal jurisdiction. The complainant herself recognised that the applicant did not necessarily propose to kill her. That is question and answer 152 and that, in our submission - the red light is on – amounts to the answering of the question raised by Knight in a manner favourable to the applicant. If your Honours please.

CALLINAN J: We need not hear you, Mr Coghlan.

Points that the applicant would wish to argue if special leave were granted relate entirely to the facts of the case and the complexion that the jury was entitled to put upon them in a case, we would observe, which was not very strong. For that reason, special leave is refused.

AT 2.25 PM THE MATTERS WERE CONCLUDED