Pretorius v The Queen [2009] HCATrans 152 (25 June 2009)

Last Updated: 2 July 2009

[2009] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B11 of 2009

B e t w e e n -

JOHANNES PETRUS PRETORIUS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 9.07 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant. (instructed by Boe Lawyers)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my learned junior, MS L.P.T.C. BRISICK. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases. If your Honours could go to page 104 of the application book you will see extracted, from about line 25, the pre-trial ruling. So the effect of those three paragraphs there is, subject to how the jury will be directed about it, the evidence – shall I say the three groups of evidence were inter-admissible, that is to say, evidence of complainant C admissible in relation to cases concerning A and B, and vice versa, and evidence in relation to observations of the man in the water by all three and Mr Thornton were all inter-admissible.

Now, the question that arises is, having so ruled, how is the jury to be directed in respect of that? In a sense, that is unfinished business from HML because there is a split court on how a jury is to be directed about this, subject to your Honour Justice Kiefel’s judgment in the paragraph that we refer to in our submissions. Now, if I could take your Honours to this case, if I can entice your Honours. This case also raises relatively neatly the question about the basis upon which such evidence is to be used by a jury in a case involving coincidence reasoning and some tendency reasoning, but at heart coincidence reasoning, and in a fairly neat and confined factual context.

FRENCH CJ: Well, tendency really did not get into the Act at all, did it, in the direction?

MR GAME: No, not, your Honour. Tendency is just something that one would observe as being an effect of the evidence, but it is not. It does not get in on that basis. It gets in on the basis of coincidence reasoning. Now, there is a complication in the evidence which is that the three victims are standing on the beach conducting a joint identification, joint accounts and joint descriptions to the police. We have given examples of this, but some of the aspects of identification are elevated by what they hear from others. For example, the blue bathers become blue bathers with a yellow stripe in the accounts of A and B, although it is C that brought that piece of information to the joint identification.

FRENCH CJ: The judge did caution the jury about this, did he not, about group think, as he called it?

MR GAME: No, that is true. No, he called it group talk. Your Honour, what we say is that if the evidence is admissible on this, shall I say, very limited basis, then there is not much point in having this very carefully thought out process by which the evidence is admissible and then telling the jury nothing about what it is that they are actually being asked to engage in. Now, in a practical way it would work like this. If you took the evidence of B and C, and that is the mother and her daughter, now you might say, well, there are frailties in getting them to the point at which they have correctly identified the appellant as their assailant. So what happens is, you bring into the account what is observed from the beach.

Now, this is the contentious part. Once you bring into account what is observed from the beach, what you are doing ultimately is leading to a process of reasoning whereby you say the man that came out of the water was the applicant. We can infer that the man in the water crashing onto the women was the applicant, but now how do we link that to the cases concerning A, B and C? A point comes at which you must be satisfied, in our submission, beyond reasonable doubt that the person described in respect of all three groups of incidents is the same person. Whether or not that is the applicant is the final step, and that, shall I say, using your Honour Justice Kiefel’s approach in HML, it becomes an essential intermediate fact.

Now, can I take your Honours to the application book at page 29. At the top of page 29, what the jury is hearing about there is observations from the beach. Now, what is said about observations from the beach is, you can only use that evidence “if you find it to be reliable and only if you are satisfied about it beyond reasonable doubt”. Now, it is nice to use the words “beyond reasonable doubt”, but the “it” there is not the “it” that we are concerned with. There is no question that the observations on the beach about the man in the surf is reliable, but the jury are being directed to use this, shall I say, to draw an inference that the applicant is in fact the person that assaulted both A, B and C.

I will just mention one thing about C’s evidence. She could not identify the person by facial characteristics at all and very little physical characteristics, except a hairy back and a description of the bathers. Now, if you go to the bottom of the page, in respect of those other acts seen from the beach, it is said to be that that is relevant to whether or not the contact was deliberate, but whether the contact was deliberate was not actually an issue in this case at all. This is only about the people on the observations of the person on the beach. It does not tie in how A and B on the one hand and C on the other are said to be inter-admissible.

KIEFEL J: Do you say that the reference to “deliberate contact” there is really suggesting tendency to the jury?

MR GAME: Exactly, your Honour. But there could be no doubt and it was not contested that what happened to A and B, and also C, but C is a more marginal case, but there was no doubt at all and nobody even contested that what occurred in relation to A, B and C was deliberate contact. The only question was whether or not the applicant was the assailant.

Now, then one goes on in the summing-up and what one is then given on the following pages at 30 to 33 are directions about the apology that the applicant made to Mr Thornton. Now, the problem with this apology which you see on those pages – this culminates at page 33:

If you accept them as having been made by [the applicant] and as true and as relating to the offences charged, it’s up to you to decide what weight you give them –

But at the best that is an abrogation of responsibility because all these admissions could do would be – because of the way in which Mr Thornton puts the questions – be admissions that the applicant was the person who had surfed onto people on the beach. Now, that actually is admissible in this case and probative, but it is probative of him being the man falling on the people in the sea in front of the beach, not in the direct sense, and that then gives weight to that inference.

What is beyond doubt in this exercise is that there is no doubt that the jury are being brought into the process of coincidence reasoning and yet nothing is said to them as to what that actually involves and nothing is said to them about the standard of proof which we say applies to that. The standard of proof is to an essential intermediate fact, but the intermediate fact is that it was one assailant in all three cases and there is no doubt at all that it is that process which carried the case forward.

Now, it may be said against me that all these things happened in a short time, and that is true, but the short time – if I can put it this way – all the short time means that, shall I say, the incidents do not have to have such a high level of specificity as they might have if it was on a different day at a different beach and so forth. The close temporal time cuts down the need for precise correlations. So the jury could engage in the exercise about the man on the beach because of the temporal factor and even although it had a different kind of context. But once you are brought into this process, you cannot avoid the process if you are going to engage in the process of saying, it must have been the person in all three. You cannot avoid the process of sorting out and obliging the jury to sort out the process by which they engage in coincidence reasoning.

FRENCH CJ: So what precisely should the judge have said to the jury in a comprehensible fashion that he did not say?

MR GAME: He should have said to the jury, “All right, you have got two trials and you have got this other body of evidence but that evidence is before you for a very particular purpose, which is identifying whether or not the assailant is in fact the applicant”.

FRENCH CJ: In each case.

MR GAME: That is in each case. “You must not use” – and I mean literally use – “as evidence against him the evidence coming from the other complainant and the evidence coming in respect of the beach unless you are satisfied beyond a reasonable doubt on the evidence before you that it is the same person in respect of all three groups of evidence”. That is a direction, in my submission, which is absolutely at the heart of a case such as this where you have inter-admissible evidence between cases. Now, what I just took you to in relation to what occurred on the beach manifestly does not assist in resolving this issue.

Then when one goes to pages 40 and 41 – I was going to say, maybe I said it before, but complainant C did not identify – yes, I did. He did not identify him at all by facial or physical features except for those two things I mention. Now, 40 and 41, top of page 40. Now, the case against the applicant depends almost entirely on the correctness of the visual identification. Then warning about identification, and at the bottom of the page:

In this case all three witnesses purported to identify the defendant who was a complete stranger to them. What time elapsed . . . Was there any material discrepancy –

Then on the following page:

The evidence of each individual witness, while important in itself, should not be regarded by you in isolation from other evidence adduced at the trial.

So it is clear enough that the jury are being left with evidence inter-admissible in each case, but they are not being told how they can use the evidence. Now, it might be said against the argument that I am putting that you can reason incrementally, that is to say, you can take a bit from here and a bit from there and then gradually arrive at a conclusion beyond reasonable doubt. But the authorities – and I am thinking here back to Sutton and Justice Brennan’s critical judgement of Justice Wells’ judgment in Sutton – in this area it does not work incrementally. Well, at least the cases appear to say that it does not work incrementally. Take A and B, if you are left in a situation where A and B – you are not carried to conviction directly on the evidence of their identification and, as I said, that had real frailties.

Then in order to engage in this process you must be satisfied and the jury must be satisfied beyond reasonable doubt that we are talking about the same person in each incident. We are talking about the same person in each incident. If one looks at that another way, it cannot be doubted that in the process of reasoning towards a conviction in respect of A and B, the evidence of C carried the case forwards. It carries the case forwards but that is what the jury need to be directed about, how and under what circumstances.

So too the evidence as to what occurred on the beach. It carries the evidence forward. In fact, it is the thing that carries the evidence forward through those steps. So, in our submission, this case does raise a significant question about jury directions in these circumstances. There are manifest problems with the directions given. Factually it is a very neat case and it raises in an acute and simple way the problems that arise in these circumstances.

FRENCH CJ: I suppose it raises a question about the extent to which a judge has to walk the jury through, or micro manage, as it were, the jury through the inferential process that they are asked to undertake.

MR GAME: Exactly, your Honour. Is it good enough – we have all these complicated rules about admissibility and has to satisfy this, and then it goes before the jury and you say “here it is, folks”.

FRENCH CJ: Well, I do not think the judge did that.

MR GAME: No, no. Well, you do in this respect because the thing that I am latching onto is the thing that the jury are not assisted about, which is, you are hearing evidence in different trials and you are hearing evidence which is admissible in a particular way, and that is the question.

FRENCH CJ: On your draft notice of appeal you raise, I think, the difference from the original application. You are just down to two grounds, are you not, 2 and 3?

MR GAME: Yes. Your Honour, if we got leave, the ground 2 is the way it was argued in the Court of Criminal Appeal. Ground 3 is the thing that I was saying to your Honours this morning. It was not a ground but it is a part of the argument, which is what was said to Mr Thornton.

FRENCH CJ: They were given lots of cautions about that, were they not?

MR GAME: They were given lots of cautions about that but it was left to them as consciousness of guilt in relation to the offences, and they were not told how that could be. As I said, it feeds back into this because it is admissible. It is admissible to prove that he admits being the person who assaults the women on the beach because that is how it was put to him.

FRENCH CJ: Yes, I understand.

MR GAME: Now, maybe I should come back to this bit. If we do get leave, the ground in ground 1 may be a matter to argue on that hearing, but I would wish to extend that to deal with the problem about the conditions under which the jury could make use of the evidence of the other complainants and their observations on the beach. I have this morning drafted a short document that would reflect that, but I can leave that to reply or I can hand it to your Honours now.

FRENCH CJ: Perhaps you had better do that.

MR GAME: I do not think one word of the argument would be different, but it does expand out to deal with the problem in its generality, your Honours, that is to say, that a ground underlying. So those are my submissions, if the Court pleases.

FRENCH CJ: Thank you, Mr Game. We will not need to trouble you, Mr Moynihan.

On 2 November 2008, the applicant was convicted of three counts of unlawful and indecent assault. The conduct constituting the offences involved three different women and occurred at a beach at Alexandra Head in January 2006. The Court of Appeal dismissed his appeal on 20 March 2009.

The applicant sought special leave to appeal from the judgment of the Court of Appeal on grounds relating to (1) misdirection by the trial judge in relation to the use to be made of evidence of the complainant in one count on the indictment in the trials of the other two counts and (2) the trial judge’s failure to adequately direct the jury of the dangers in using the evidence of alleged admissions made by the applicant on the basis that they were ambiguous and not directed to any particular charge on the indictment.

A draft amended notice of appeal was handed up at the close of the applicant’s argument which includes the following additional ground. “The trial judge failed to adequately direct the jury as to the use and the conditions under which the jury could make use of the evidence of the other complainants as to what happened to them in the water and what they had observed from the beach.”

In our opinion, the trial judge gave comprehensive directions which, if anything, weighed in favour of the applicant in relation to the use of the evidence of Ms K as to identification. He also gave appropriate directions in relation to the use of and possible uncertainties in connection with the applicant’s alleged admissions to a lifesaver, Mr Thornton.

In our opinion, the application lacks sufficient prospects of success to warrant the grant of special leave. Special leave will be refused.

The Court will adjourn briefly to reconstitute for the next matter.

AT 9.50 AM THE MATTER WAS CONCLUDED