MAW v The Queen [2008] HCATrans 335 (30 September 2008)

Last Updated: 1 October 2008

[2008] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2008

B e t w e e n -

MAW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON TUESDAY, 30 SEPTEMBER 2008, AT 9.35 AM

Copyright in the High Court of Australia

MR M.P. AMERENA: If it please the Court, I appear for the applicant with MS C.A. CUTHBERT. (instructed by O’Sullivans Law Firm)

MR W. SOFRONOFF, QC, (Solicitor-General of the State of Queensland): If the Court pleases, I appear with my learned friend MR R.G. MARTIN, SC, for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIRBY J: Yes, Mr Amerena.

MR AMERENA: The impugned statutes in this case go well beyond the statutes considered by this Court in KBT and KRM since 2003 when, in a maintaining case in Queensland, all members of the jury are not required to be satisfied the same unlawful sexual acts - in my submission, a defining characteristic of a Chapter III court has been lost. A judgment of criminal appeals is authorised by section 229B(4)(c) not only in cases where the facts have been collectively ascertained by the jury, but also in cases where they have not. In our submission, it is not possible to reconcile the impugned statutes with statements in this Court as to defining characteristics of a court and of the exercise of judicial power.

KIRBY J: Yes, I suppose the most significant change is that – I think it was in Gipp or one of those early cases - that this Court insisted that there had to be jury unanimity on the same factual premises of the prosecution and now the jury is entitled to convict or to find the accused guilty, even though they severally do so on different factual premises. But the problem I have in this case, and it is partly bound up in your late raising of the constitutional issue, is that in the facts of the case there was not – as there might in another case be – a great deal of factual difference, that the facts were in this case relatively confined and therefore that you do not have in this case, in a sense, to test the constitutional boundaries, the diversity of factual situations that could arise that would present a better occasion for the Court to look at any constitutional issue that is presented by Kable.

I say these things so that you can respond to the matter which is in part a procedural matter, the issue being raised at this very late stage, but in part goes to whether or not there is any miscarriage of justice that is demonstrated in the facts of your particular case that would invite our attention to the constitutionality of the provision.

MR AMERENA: But taking the two points in turn, first whether or not the facts of this case make it, I suppose, an appropriate vehicle, in my submission they do.

KIRBY J: Do not use that expression actually since Justice Callinan sat in the Court. We are very careful about reference to vehicles.

MR AMERENA: I see, all right. In any event, what happened here was that there was an indictment of four counts. The first count was maintaining, the second and fourth counts were rape, an allegation of so-called digital rape. They were the only ones that were sufficiently particularised. The accused was found not guilty on counts 2 and 4. But count 1 was supported by 90 or 93 – it is impossible to tell – allegations of uncharged sexual acts. So, in my submission, it does make a difference here.

Maintaining remains an offence where there must be proof of discrete episodes of specific misconduct which satisfy the legal elements, that is there must be more than one unlawful sexual act in the period and here the essence of the case on maintaining was brought by unparticularised allegations in the sense that they were not sufficiently particularised to be a separate charge of 90 to 93 uncharged acts. One can go to what was left for the jury to ascertain that and if one goes to the application book at page 28 one will see that at about line 30 the variety of matters which were left to the jury down to about line 43.

The incidences of touching, fingering and so on were never particularised. It is just that they were alleged to have happened on the evidence 90 times. The other incidents in the shower of grabbing the boobs of the complainant girl and the allegations of penile touching, one cannot be sure whether they are within the original allegations or added on to them. So what this accused faced was that welter of unparticularised allegations of uncharged acts where no particular transaction was identified.

In my submission, as the trial judge directed in terms of section 229B(4)(c) – and one can see that in the application book at page 27 at about line 49 - there is a palpable and not theoretical prospect that the jurors disagreed as to which of the uncharged acts had actually been committed by the accused, but nonetheless had judged him guilty of maintaining. In my submission, the fact that the jury acquitted the accused on the only sufficiently particularised charges of counts 2 and 4 – talking about the sexual offences, he was convicted of the count of assault – supports that contention.

I mean the whole of the statute has to be taken into account here. It is not just, in my submission, section 229B(4)(c), it is sections 229B(4)(a) and (b). They substantially remove, in my submission, if not abolish, the requirement of particularity. The first of them provides that the prosecution is not required to allege particulars of any unlawful sexual act that would be necessary if the acts were charged as a separate offence and then the second of them really goes much further; it goes into the jury room. The jury is not required to be satisfied of the particulars of any unlawful sexual act if it would have to be satisfied of if the act were charged as a separate offence.

KIRBY J: Of course, the Solicitor concedes, as he is bound to by authority, that it remains the obligation of the judge to ensure that the trial is fair, and that if there were any relevant confusion or uncertainty that you would be entitled to particulars and also to have the trial conducted in a fair manner. Now, in these circumstances, why would this Court allow you, at this very late stage, to raise a point that was not raised at trial or in the Court of Appeal and upon which we do not have the advantage and assistance of the opinions of the judges of the Court of Appeal to assist the Court in determining the Kable point?

MR AMERENA: Well, it is true that you do not have the advantage of the judges of the Court of Appeal and I accept that. But in my submission that is not necessarily a barrier to giving special leave on this - - -

KIRBY J: I accept it is not necessarily a barrier, but I think the test that is laid down in Crampton is that you have to demonstrate that an enlargement of the grounds of appeal is required by the interests of justice. That is the difficulty that is then presented to you because of the relatively clear-cut nature of the issue that was joined at the trial between the complainant and her stepfather.

MR AMERENA: When one says it is clear cut, in my submission because of the mandates of this statute, the trial really slid into a situation where that finding for the jury became a contest between generalised assertions and generalised denials. I mean what this man has lost, in my submission, is a fair opportunity of acquittal in respect to what should be a bare minimum constitutional requirement.

KIRBY J: What is the best authority that you can invoke to support a Kable submission, given that apart from Kable and I think one decision in the Court of Appeal of Queensland the argument has not so far been crowned with many successes?

MR AMERENA: That is true. In terms of success on the Kable point I know of only two, Kable itself and Re Criminal Proceeds Compensation but, in my submission, if one goes, for instance, to the dissenting judgment of Justice Gray in K-Generation one will see there collected there the large number of observations by members of this Court which suggest that there are bare minimum requirements of the type I am agitating for here as a result of the Chapter III standards, if I could put it in that fashion.

I rely upon all of that dicta that is set out there in the dissenting judgment of Justice Gray. It is true that of course he was in dissent and it seems clear that the basis of the majority in K-Generation was to, in effect, follow the narrow focus which Justice McHugh gave to the application of the Kable principle in Fardon’s Case. So, there is a contest there at the start between what the Kable principle applies to, but it ought to be sorted out in the interests of justice, in my submission.

Now, that does not answer the earlier questions which were posed to me but if I can return to them, this accused lost a fair opportunity of being acquitted on the minimum standards, those type of standards which one sees set out in that dissenting judgment. It is also important because if this man has an arguable case to that effect it has a wider ramification. That wider ramification is, obviously, that there are other people since 2003 who may also have been denied a fair opportunity of acquittal because of these provisions.

KIRBY J: You see, the problem still lingers as to the fact that at trial where the facts are coming out you did not make these points by reference to a constitutional principle in objecting to particular evidence and specific allegations, particular issues would then be sharpened and presented to the court of trial and considered and analysed by the Court of Appeal. In effect, you are trying to jump the legal hierarchy and bring it straight up to this Court.

Now, constitutional questions can come in the original jurisdiction directly to this Court, but in a case where you are at the special leave stage, we have to ask ourselves whether the interests of justice in this particular case require this intervention when we would be tackling the issue in what is undoubtedly a very difficult argument for an applicant, given the history of the Kable jurisprudence, without the benefit of a court focused on the facts of the case. That is the problem, it seems to me, that you face in lifting what is already a difficult argument into this Court without having, as it were, laid the ground.

MR AMERENA: On these types of things it is difficult for counsel for an applicant in my position to say what the High Court is capable of. I can only point to the matters I have pointed to which indicate that if this constitutional issue is fairly arguable then there is a real prospect here that an accused person has not got a fair trial, has been punished with a term of imprisonment and will have lost his liberty. That is a substantial miscarriage of justice. If it is so – determining whether it is so, in my submission, can be done, notwithstanding the difficulties, and ought be done, not just because of the prospects of a miscarriage of justice for this man, but for the prospects of the miscarriage of justice for others.

Take it in this fashion, if we do not get a chance to ventilate this issue the administration of justice will be in a position where generally other people will go to trial under these laws. I mean, statutes that have these characteristics have spread from Queensland into Western Australia. Since April 2008 there is a similar regime in Western Australia. So there are lots of people who have been charges will be affected by these provisions. That is a good reason for the High Court, notwithstanding the difficulties which have been addressed to me from the Bench, which I more than accept, entertaining this matter now and it stems essentially from the legal and constitutional nature of the argument.

KIRBY J: Yes. Is there anything else that you want to say? I think you have said everything that you can say. You can only work with the record, and that is what the Court would have to work with, but the question is, now that this issue has been raised, whether it would not be a more suitable occasion for the Court to look at it where it has been focused at trial rather than at the third level of hearings. Anyway, I think we have been down that track.

MR AMERENA: Thank you. They are my submissions.

KIRBY J: Thank you very much, Mr Amerena. Solicitor, we do not need your assistance on this occasion. We have already had the benefit of your written submissions.

In this application the applicant was found guilty at trial, and convicted, of maintaining an unlawful sexual relationship with his 12-year-old stepdaughter. He seeks to challenge the constitutional validity of the legislation that creates the offence upon which he was convicted.

The attack on the provision, section 229B of the Criminal Code (Qld), was not ventured at trial, nor in the Court of Appeal of the Supreme Court of Queensland. However, the applicant says that the legal point can be argued on appeal to this Court if the justice of the case so requires – see Crampton v The Queen [2000] HCA 60; (2006) 206 CLR 161. So much may be accepted.

However, we are not convinced that the present would be a suitable occasion to undertake the examination that the applicant now so belatedly invites. The facts of the case were relatively clear and no apparent injustice to the applicant is demonstrated that would enliven possible constitutional concerns of the kind described in Kable v The Director of Public Prosecutions of New South Wales [1996] HCA 24; (1996) 189 CLR 51.

The respondent concedes in written submissions that the trial judge retains an overriding obligation to ensure that the trial is fair, referring to KBT v The Queen (1997) 191 CLR 417 at 429 and 431 to 432.

We are unconvinced that the applicant’s trial was unfair, least of all to the extent that would invite and sustain constitutional considerations. Nor are we convinced that the applicant has suffered a miscarriage of justice. Accordingly, special leave to appeal is refused.

AT 9.54 AM THE MATTER WAS CONCLUDED