Ross v The Queen [2008] HCATrans 126 (7 March 2008)

Last Updated: 11 March 2008

[2008] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B62 of 2007

B e t w e e n -

SHANE GRAHAM ROSS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 7 MARCH 2008, AT 11.34 AM

Copyright in the High Court of Australia

MR P.E. SMITH: May it please, your Honours, I appear for the applicant. (instructed by Affleck Lawton Lawyers).

MR R.G. MARTIN, SC: I appear for the respondent, your Honours. (instructed by Director of Public Prosecutions (Qld)).

KIRBY J: Yes, thank you very much. Now, you read an affidavit by the applicant’s mother, I think - this is at page 49 of the application book - explaining the time default.

MR SMITH: Yes, your Honour.

KIRBY J: Is there any problem with that, Mr Martin? Do you object to the affidavit and do you contest the extension of time?

MR MARTIN: No, I do not, your Honours.

KIRBY J: Thank you. We read the affidavit of Noelene Michelle Ross and you can assume, Mr Smith, that if otherwise you can make out a case, the Court will repair the time default.

MR SMITH: Thank you, your Honours. Your Honours, the applicant’s submission is that there were three crucial errors in this trial. It was a very serious charge, one of the most serious in the calendar in Queensland, carrying life imprisonment, and a summing-up of 15 minutes was wholly inadequate in this case, when it did not identify in the applicant’s submissions the factual issues to be considered by the jury on the question of consent and did not, importantly, summarise the defence case or the Crown case on that issue.

KIRBY J: Can I ask, do you accept that your client was represented at trial by, as it is put in the application book, very experienced counsel?

MR SMITH: Yes, I do, your Honour.

KIRBY J: Do you accept that at least it is arguable, or is a fair point for Mr Martin to put that there were forensic reasons why experienced counsel at this trial might have wished to focus the mind of the jury very specifically on the issue of consent or no consent given that there were factual indicia that gave some credence to the argument of consent; return to the house, the lying on the bed, the alleged movement of the mobile phone, what the complainant was wearing? It was a very nice, short issue, was it not?

MR SMITH: It was, except it is difficult to fathom a tactical reason as to why counsel would not want the trial judge to identify those factual issues to be considered on that question.

KIRBY J: It was put by the Court of Criminal Appeal, or they say, that the trial itself was quite brief. That is certainly true by the sort of trials we see in this Court. I think it was a day or a day and a half. Is that correct?

MR SMITH: The evidence finished, your Honour, in a day. The summing-up and addresses occurred on day two and the jury was out for the rest of day two and day three before the verdict returned, so the evidence - - -

KIRBY J: Did the counsel at the trial contest the adequacy of the judge’s summing-up?

MR SMITH: Not at all, your Honour. Indeed, counsel below for my client conceded that his Honour need not summarise the Crown case or the defence case. There was no application for redirections apart from that issue relating to knowledge of whether the complainant was asleep. So I would concede that initially I had the difficulty to contend with where my client’s previous representation made decisions, but my submission is that it is difficult to see that there was any tactical advantage in those decisions that were made in this case.

KIRBY J: Yes, but if we are focusing on whether any injustice was done and if you concede, as you properly have, that counsel at trial was very experienced, as is asserted, then the decision not to challenge or contest the adequacy of the judge’s summing-up could have been occasioned by a judgment made that that was in your client’s interest because it sharply left the jury with the issue of consent upon which your client had a few feathers to fly with.

MR SMITH: Yes, I understand your Honour’s point, but my submission in response to that is that in the circumstances of this case, the jury’s mind should have been appropriately focused by the summing-up, bearing in mind that a jury does, in my submission, pay great heed to what a trial judge tells the jury as distinct from counsel and his Honour ought to have identified the evidence relevant to whether the Crown could prove beyond reasonable doubt consent or lack thereof.

KIRBY J: That would certainly be so in a trial of any length at all, but such a short trial without objection, sharp point of contest, if we were ever to look at this issue of length of charges in criminal trials, I am not sure that this would be the case which the Court would look at. So what is your second point?

MR SMITH: That is my first point, your Honour. The other point I should mention about the direction about consent is that the Criminal Code section 348(1) defines:

In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

His Honour did not refer at all to the words “cognitive capacity” in the summing-up - - -

KIRBY J: Was this point reserved at the trial?

MR SMITH: Not at all. None of these points were raised.

KIRBY J: Was it dealt with in the Court of Appeal?

MR SMITH: No, it was not, your Honour.

KIRBY J: You would be seeking to raise this for the first time in the final Court of the nation.

MR SMITH: Yes, that is true, your Honour.

KIRBY J: I must admit, if it was in your submissions, it is not in the forefront of them and it did not seem to be the main thing you came here to argue.

MR SMITH: No, the main thing really was - - -

KIRBY J: The main thing is your third point that there was a possibility the jury might have concluded your client made a mistake and that that was something that Pemble required the judge to direct the jury upon and the judge failed to do it.

MR SMITH: That third point comes down to this, in my submission, your Honour. Justice Keane in the Court of Appeal almost came to the position that there would need to be direct evidence from the appellant, for example, giving evidence, to allow a jury to consider mistake. Now, my submission is that - - -

KIRBY J: I am not sure his Honour said that, did he? Where do you say he said that?

MR SMITH: His Honour at page 43 of the application book from paragraphs [30] onwards commenced a discussion about section 24 of the Code. At paragraph [31] his Honour noted:

It was not suggested on the appellant’s behalf, for example, that the complainant was passively acquiescent in the appellant’s advances. That suggestion was a necessary first step towards a s 24 hypothesis. The complainant gave no evidence to support any such suggestion. For the appellant to raise now the possibility that the complainant accompanied the appellant to his bedroom and acquiesced in intercourse in a state of somnambulism so as to give the appellant the mistaken impression that she was consenting to intercourse is to engage in impermissible speculation.

Then further, paragraph [32] at about line 10:

While it is true that a jury is not bound to adopt the entirety of the case put by either side, it is not entitled to speculate about matters that are simply not raised on the evidence as a reasonable hypothesis.

Then further at [33] there was reference to these words “You wanted this” which was consistent with her being an “active participant in consensual intercourse”, although admittedly equivocal perhaps. But the impression one gauges from his Honour’s reasons, in my respectful submission, is that there almost needs to be direct evidence on this topic of mistake and, in my submission - - -

KIRBY J: That is not how I read it. His Honour merely records the fact that your client gave no evidence to support it, and that certainly makes it more difficult to provide the foundation for a defence of mistake, but I do not read what his Honour said as saying that you have to give evidence. He would know as well as anybody else the accusatorial system.

CRENNAN J: What his Honour said also has to be understood in the context of paragraph [34], that is to say, concluding that:

counsel for the appellant at trial was correct in his appreciation that no issue arose requiring a direction in respect of s 24 of the Criminal Code.

MR SMITH: I note that, your Honour. But my submission really was that because of the factual points that I have made in my written outline, it could be – and particularly in a case where it is alleged by the prosecution that the victim, as it were, is asleep – issues of mistake are starkly raised in such a case. By reason of the matters raised about the clothing, the lack of complete drunkenness, the mobile phone issue, what she told the doctor at 3.45 am in the early hours of the morning and her call to Mr Sherlock, it could be inferred that whilst she might herself not be consenting, my client did not know that.

The jury was never left that defence and, in my submission, the point which raises itself in this case is that there was sufficient evidence which raised the defence and the defence ought to have been left despite, as Justice Crennan has just mentioned, my predecessor’s concession about that point. So that really is my point about section 24 in this case, your Honour.

There were some very good points made for my client in the evidence which would lead to that inference as to mistake. My client’s case is that it is not speculative, as Justice Keane found in his judgment - - -

KIRBY J: It is even more than that your predecessor did not raise mistake. The position is your predecessor disclaimed mistake.

MR SMITH: He did disclaim mistake. That is true.

KIRBY J: Well, it is very hard – I do realise you have to do the best you can and you always do a very good job, if I can say so, Mr Smith, for your clients, but it is very hard to come here to the High Court and raise the issue of consent and the lack of direction on that when it was not raised either at trial or in the court below, and to raise now the issue of mistake where it was disclaimed at trial and where you can see that your client had a skilled advocate. I mean, there would be a case, no doubt, where we would look at it in some circumstances, but it really would require a pretty powerful case on the facts.

One other theory of this case is that it was not a case of mistake. It was a case of your client taking advantage of a young woman who had been his friend, who had come home to his house, collapsed on his bed, was obviously very affected by alcohol and then he took advantage of her, not being concerned about her consent, when she was in a deep alcoholic induced sleep.

MR SMITH: That was certainly the Crown case, no doubt, which, as I have mentioned earlier, was not - - -

KIRBY J: Is not the decision of the Court of Criminal Appeal in the case looked at as a matter of broad principle which this Court has to do in the way it approaches cases of this kind, sending the correct signal in contemporary Australia about the fact that you do not penetrate somebody else without consent and that if they are very intoxicated you just have to be very clear that you have that consent before you do so, because otherwise apart from everything else in circumstances of HIV and AIDS, it can be a very dangerous and life-threatening event.

MR SMITH: I certainly could not argue to the contrary, your Honour. I would not seek to support any contrary contention. My point really is on the evidence mistake was raised. My submission is that the Court of Appeal was in error in finding that it was merely speculative. In those circumstances, the defence ought to have been left to the jury. I might mention I think the complainant in her evidence conceded that she was not grossly intoxicated, she had only had about “six to seven Vodka Cruisers”.

KIRBY J: She said she was a “happy drunk” not in a worse state of inebriation, but she was definitely affected and obviously affected by alcohol on the evidence. What she did immediately after, when she woke up, screaming, pushing your client off her and then rushing outside immediately complaining to her relatives and immediately complaining to the police, it is a powerful set of circumstances negating consent, negating that she thought she had given consent at all, ever.

MR SMITH: Certainly as to her state of mind I would agree. The issue is my client’s state of mind and that is – I think it was put in cross-examination that as soon as he raised the topic of his girlfriend in the bedroom, that is when the screaming started. But I have referred to that in my written outline, your Honour. So they are the points, your Honours, that I wish to make on my client’s behalf. Thank you.

KIRBY J: Yes. The Court does not need your assistance, Mr Martin.

The applicant made three complaints about his conviction of rape. The first concerned the failure of the trial judge to give the jury directions on the meaning of “consent”. However, this was not a matter that was raised at trial, nor in the Court of Appeal. It is not a matter which would attract the attention of this Court.

Secondly, the applicant complained that the trial judge had failed to direct the jury on the issue of mistake about whether the complainant was consenting to sexual intercourse. The statutory defence of mistake is provided by the Criminal Code 1899 (Qld) section 24. However, the applicant, who was represented at trial by experienced counsel, disclaimed a defence of mistake. He sought to have the jury focus on the simple issue of consent, or no consent. There were forensic reasons for taking this course and some evidence to support it.

The Court of Appeal of Queensland correctly recognised that the judge retained certain residual duties in accordance with the instruction of this Court in Pemble v The Queen (1971) 121 CLR 107 at 117, 118. He was obliged to instruct the jury on any defences that were raised by the evidence. It is enough to say that we see no error in the approach to the Pemble question in the Court of Appeal and no reasonable prospect that such a ground would succeed, if special leave were granted.

As to the third complaint about the suggested inadequacy of the trial judge’s summing-up, which took 15 minutes, it is true that it was very brief. However, the trial itself was short. The chosen issue was the single issue of consent. We are unconvinced that this ground of appeal would succeed. Nor are we convinced that a miscarriage of justice has occurred requiring this Court’s intervention.

Therefore, although the Court would cure the time default, having regard to the affidavit of the applicant’s mother, the application is dismissed.

The Court will now adjourn.

AT 11.52 AM THE MATTER WAS CONCLUDED