CB v State of Western Australia [2007] HCATrans 301 (15 June 2007)

Last Updated: 28 June 2007

[2007] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P36 of 2006

B e t w e e n -

CB

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 11.38 AM

Copyright in the High Court of Australia

MR P.G. GIUDICE: May it please the Court, I appear for the applicant. (instructed by George Giudice Law Chambers)

MR R.E. COCK, QC: May it please the Court, I appear with my learned friend, MS F.M. CLARE, for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J: Yes, Mr Giudice.

MR GIUDICE: Your Honours, in this particular appeal in the Court of Appeal the judges made a mistake on the facts and alleged that notice of alibi had been given only one working day before the trial whereas in fact it had been given one year and four days before the trial. It is my submission that that error was material and permeated through the whole appeal so that the applicant did not get an appeal on the facts and therefore it was unfair and the applicant is entitled to an appeal on the facts.

KIRBY J: As I understand it, the State does not contest that the mistake occurred but says that it was not in the end material.

MR GIUDICE: Yes. Can I refer your Honour to page 104 of the application book where, in my submission, Justice Roberts-Smith does place some importance on the fact that the alibi in his view was given late, because he said:

Had it been done earlier here, the State would have been on notice of the importance of the date to the defence and it might have been more readily accepted that there was some relevant unfairness to the appellant in the State leaving the time-frame as general as it was left. Alternatively, the State may have thought it necessary to seek to amend the particulars.

This question was not canvassed during the hearing of the Court of Appeal because it was never put to me that the alibi notice was given late.

KIRBY J: We understand your complaint and we understand that it is a fair point to make, but where does it lead? Really, in the big picture of this case it is not an important matter, it is a slip. You have tried to get every ounce of blood out of this particular stone, but it does not seem to lead anywhere.

MR GIUDICE: In relation to three of the grounds of appeal, Justice Roberts-Smith tried to get every ounce of blood out of this alleged mistake of mine, I would submit respectfully, sir. On page 120 he refers to it again in relation to grounds 4 and 5 and he says, “It is true the alibi evidence was uncontradicted”. Prior to that, on page 119, he quoted Palmer, saying:

Uncontradicted alibi evidence can of itself support a finding by an appellate court that a conviction is unsafe and unsatisfactory –

You can see there that he has placed significant weight on that. In answer to your question, your Honour, how do we know what the attitude of the judges would have been if they had not formed this view; they might have taken a completely different look at the appeal grounds. We will never know. My client is justifiably aggrieved at the fact that the appeal was decided on an error – well, at least an error of fact was involved.

KIRBY J: I can understand that your client would be aggrieved that an error was involved and I can assure you that if the error was a material error and had affected the reasoning of the Court, then that would be a matter that would attract the intervention of this Court, but it is really a very minor matter in the reasoning of Justice Roberts-Smith which goes on for 170-odd paragraphs. It just does not seem to loom large. I can understand why you latch onto it and that is a fair forensic point and I could understand that your client would feel aggrieved that a judge had made a slip. This is the final Court of the nation, we have got to conserve the cases which come to it, the cases where there are important issues of principle or injustice. Now, where is the point of principle or injustice in your case?

MR GIUDICE: The second point is that his Honour said that the alibi was challenged and it is my submission that that also is not correct because the prosecutor did not put it to the accused or to the mother of the accused or, indeed, to the grandmother of the accused that the accused was not in Perth at the particular time on Saturday morning, 15 December. She simply asked, how long does it take to get from Geraldton to Perth? Four hours. Then she has assumed that they had driven down that day. That matter was cleared up in re-examination, your Honour.

CRENNAN J: But if one looks at the application book 120, paragraph 144, about line 30, that point is dealt with.

MR GIUDICE: Yes, in the sense that his Honour is saying it was challenged. His Honour goes on to say that:

it would have been open to the jury to be satisfied the incident happened in the morning of that day –

but, in my submission, that was not open to the jury at all because the evidence was clearly that they were in Perth on the 15th. They went to Perth on 14 December, the day before 15 December. The point is that the applicant went to trial with firstly a statement of the one of the complainants that this incident occurred in December before the school holidays on a Saturday when the couch was present. Now, that limits it absolutely to Saturday, 15 December, when he was in Perth. We know that for the reasons that are outlined in the submissions, your Honour, but the school holidays commenced on Thursday, 20 December 2001 and that meant that according to the case, prior to the prerecording of the evidence of J that it had to be Saturday, 15 December 2001, and on that date the applicant was in Perth.

We must not forget that there are two people here, two complainants, not just one. So, in relation to credibility and consistency, the other complainant at first denied that anything had occurred between him and the applicant. It was only after some cajoling and convincing by J that R, after several denials, agreed with J that it had occurred to him as well. At the prerecording, your Honours, the evidence was again that the incident occurred – this is from J – on a Saturday before Christmas on the couch, so therefore it had to be again 15 December. So we had the statement, we had the initial charge which was different to the indictment but not much different, then we had the dates on the indictment and we had the prerecording all pointing us in the one direction, that is, to 15 December.

The other complainant, R, he said that it was after his brother’s birthday in October before the school holidays. Now, that again had to be before 20 December 2001 and after October and during school time. So everything was pointing to the 15 December. We gave notice of alibi and then we get to trial and of course there was a technical hitch in that the reproduction of the prerecording was not satisfactory so J had to give evidence and this time he said he could not remember when it was. So we went to trial facing 15 December 2001 and during the trial we ended up with a much wider sphere, even into the next year, so that my submission is that this is a classic case where the dates hardened into elements. They were not just particulars. That is what I was arguing in the Court of Appeal and that is why I say I do not know what their Honours would have decided, the three of them, if they had not all thought mistakenly that the notice of alibi was late.

Your Honours, as to the Palmer question, it is my submission that the prosecutor went too far here. Can I refer you to the bottom of page 27 of the application book. I asked the judge to redirect on what the prosecutor had said and he asked me whether I was referring to Palmer and I said yes and he said, “Yes, all right. It’s not always consistent, is it?” And it is not, and maybe it is time for the High Court to consider this question of whether there is a distinction between cases where the defence puts up a motive on the part of a complainant to lie and in cases where it does not and whether
that opens up the right for the prosecutor to go as far as the prosecutor did in this case.

Secondly, maybe, with respect, it is time for the High Court to look again at how a judge puts it right when a prosecutor does ask impermissible questions in the nature of that referred to in Palmer. Because in Palmer, of course, there was a motive put up in that case by the defence. The motive was that the complainant was lying as a payback. But it seems to have gone from there, slowly but surely, to this distinction between cases where there is a motive suggested and where there is one that is not. That was a matter that was canvassed in Harman, also in a special leave application, when the prosecution relied on that distinction and the Chief Justice at common law. Your Honours, although refused special leave, reaffirmed that Palmer is the law despite what the Chief Justice at common law had said. You keep saying that and it seems to be that you are ignored, in my respectful submission. So maybe it is time to make a statement in that regard, your Honours.

The rest of what I want to say is all in my submissions, your Honours, unless there is anything you want to ask me.

KIRBY J: We have read those. Thank you very much, Mr Giudice. Thank you for your help.

MR GIUDICE: Thank you, sir.

KIRBY J: Yes, Mr Cock.

MR COCK: Your Honours, the alibi itself is set out in the judgment at page 88 and your Honours may have noticed at paragraph 7 in particular that it was expressed in the notice. The error, of course, appears at paragraph 57 of his Honour’s judgment that the alibi was dated 13 August 2004 and the trial in fact started 16 August 2005 and that is conceded. But particularly paragraph 7 of the notice of alibi suggested that:

the accused . . . left Geraldton at approximately 7:00am on Saturday 15 December 2001 in the company of his mother –

Now, my friend has already taken your Honours, and beg me if I do the same, to page 120 of the application book where his Honour Justice Roberts-Smith notes that, in fact, in re-examination the mother then decided “that they had driven down to Perth on 14 December”. You will see that at line 32. So there is some challenge to the notice of alibi. There is some discrepancy between the instructions apparently given to the applicant’s solicitor a year before the trial and the date of trial when the applicant’s mother in re-examination for the first time tells the court that in fact the drive from Geraldton was not on the 15th but in fact on the 14th and indeed his Honour - - -

KIRBY J: The more importance you attach to the alibi the more embarrassing is the difficulty that is created by Justice Roberts-Smith getting the date wrong.

MR COCK: I cannot deny that the alibi was a significant issue in the trial, but my point is that his Honour is correct in his analysis of the evidence, that is, that the mother gave evidence-in-chief and under cross-examination, it seems, consistent with the notice of alibi and then later on inconsistent with it. That enables one to then question, as I think the prosecutor responsibly did, the validity of the mother’s evidence. Accepting, as you can, that the family arrived in Perth on the 15th at 4.30 pm and the evidence that it is about a four or four and half hour drive from Geraldton to Perth, it leaves open all morning of the 15 December which was a window of opportunity for these two very short series of offences. So what we say is - - -

KIRBY J: This is another case that these were all young boys, were they not? The alleged victims were 12, I think, and the applicant was 15, I think, is that correct, at the time?

MR COCK: I think so, yes. He was just a little older than them, yes. Sorry, the boys were 9, your Honour.

KIRBY J: There is no other course available in Western Australia for handling cases of this kind and to bring the whole panoply of the criminal law to bear on the families and the people involved? I mean, one would wonder whether the criminal process is going to be the thing that is going to scar these people forever, all of them.

MR COCK: Your Honour, the prosecution emanated from the Children’s Court of Western Australia and, by election by the applicant who chose to go for a jury trial, before the District Court of Western Australia. He has that right. There are many alternative methods of resolving matters that come before the Children’s Court. There are diversionary processes available. I cannot control those, with respect, your Honour. Once the charge emanated from the police and went through the process, it was the applicant who chose to elevate it to a jury trial.

KIRBY J: Yes. Anyway, what else do you have to say about the points that Mr Giudice has made concerning the materiality of the mistake of Justice Roberts-Smith’s reasons?

MR COCK: I do not wish to say any more, your Honour. It does not, to use his words, harden into an element of the offence which I think is the submission he seeks to make out. Even if it did, I have explained to your Honour and shown the passages from which the court concluded that there was ample evidence available and ample basis upon which the jury could conclude, consistent with the family arriving in Perth at 4.30 pm on the 15 December 2001 I think it was, that the offence occurred in the morning. That is adequate, in our respectful submission. It was an issue in the trial.

KIRBY J: Yes. The Court does not need any further assistance, Mr Cock, from you. Anything in reply, Mr Giudice?

MR GIUDICE: Yes, your Honour. It goes like this. The prosecutor said, “Where were you on the 15th?” “In Perth:

“Mum and Dad’s Christmas . . .

Yes. You didn’t get there until about 4 o’clock?---In the afternoon approximately.

Yes, that’s about right, isn’t not . . .

Where does your mother live or where did she live at the time?---Glen Forrest in Perth.

How far is that to drive from where you lived at the time in Osborne Street?---About four and a half hours.

Four and a half hours?---Five hours.

Left at that, she did not go any further and say, “Well, where you on the morning?” because the fact of the matter is that she came to Perth the day before. The prosecutor did not take it that extra step to say, “Well, I put it to you, you drove down on the Saturday morning”. The notice of alibi was not before the jury and that point was not before the court in that sense at all. It is said originally that the journey to Perth was on the 15th. So on the evidence before the jury, there is just no way the jury could make that finding that it could have occurred in the morning. The only way they could convict this boy was to decide it had happened some other time. The jury trial was elected. He had a brother who was charged too.

KIRBY J: He was older, I think. The brother was older, is that not correct?

MR COCK: He was younger, sir.

KIRBY J: Was he?

MR COCK: One year.

KIRBY J: I see.

MR COCK: He was acquitted on both the charges against the boys. They were separate trials in that case. At pages 12 and 55 of the application book you will see that the trial judge told the jury that this is not necessarily a sexual case and the State did not open it that way and did not fight it that way. They are saying it could be a bullying, it could be a warped sense of fun or cruelty and, in fact, in sentencing his Honour said that he did not accept that the facts in this case were sexual matters at all. That is at page 55 when he sentenced.

The other point, finally, is this, that the Chief Justice in Western Australia and Justice Pullin agreed with Justice Roberts-Smith. Now, we do not know what they would have said if they had not made the same mistake that he did in relation - - -

KIRBY J: That is bound up in the seriousness of the mistake and its materiality. If it is a material mistake, then it is a material mistake which all members of the court have made. If it is not a material mistake, it is an immaterial mistake that the other members of the court did not pick up.

MR GIUDICE: So it could be, your Honour, could it not, that the other judges may have considered it a material matter? We will never because they simply said “I agree” in one case and in the other case “I agree with the draft reasons” and we do not know what the draft reasons were. Presumably they were the same as the final reasons, but it is - - -

KIRBY J: That is the usual formula, because they do not become the reasons of the court until they are published. That is merely saying that the other judges have received them in draft and they have read them in draft and accept them.

MR GIUDICE: Thank you for that, your Honour. So it is just not satisfactory - - -

KIRBY J: Just a bit of internal information for you, Mr Giudice. I mean, it would be a scandal if a judge slipped in a few extra paragraphs of denunciation which the other judges had not seen.

MR GIUDICE: Thank you, your Honour. On that note.

KIRBY J: Yes, thank you very much, Mr Giudice. I will ask Justice Hayne to give the reasons and pronounce the orders of the Court.

HAYNE J: The factual error in the principal reasons delivered on behalf of the Court of Appeal of Western Australia upon which the applicant fastens as suggesting want of proper consideration and determination of his appeal to that court does not support any of the conclusions which the applicant asserts. Neither that contention nor any of the other grounds asserted on behalf of the applicant would enjoy sufficient prospects of success to warrant a grant of special leave to appeal. Special leave is accordingly refused.

AT 12.01 PM THE MATTER WAS CONCLUDED