WAI v The Queen [2010] HCATrans 297 (12 November 2010)

Last Updated: 16 November 2010

[2010] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2010

B e t w e e n -

WAI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 11.24 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.A. LYNCH, for the applicant. (instructed by Best Wilson)

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with my learned friend, MS S.J. KLEMM, for the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr. Walker.

MR WALKER: Your Honours, the papers in this application present two points, but there is only one. With great respect, there is force of a kind I cannot overcome in what has been written about the Robinson point in the respondent’s submissions. It does not mean Robinson goes, but everything my learned friend has said about it, in terms of it being posed as an issue and the course of litigation, albeit criminal, is, with great respect, correct and cannot be answered. I will not try to.

It has an afterlife. It has an influence in this sense. If there be something as neatly labelled as a Robinson warning or a Robinson point, if there be, it is of course based upon a concern that appropriate directions including admonitory statements, sometimes called warnings, be given to a jury where the particular nature of the evidence in question, including the forensic course by which it has been both brought to court and then presented or tested, or not tested in court, ought to be considered by the jury given judicial experience of what I will call such cases.

Now, obviously, there is the Scylla and Charybdis of stereotyping, on the one hand, and failing to share with a jury, who are almost certainly first and only time judges, the experience of the professional judge. What Robinson, if it stands for anything discrete, stands for, is that there are cases no longer to be regarded as being dealt with by stereotyped rules, whether of common law or otherwise, where, nonetheless, the circumstances of the case which will depend upon the particular case, require a direction.

Now, I do not have a Robinson point, as such, not least because experienced counsel did not ask for such a direction and, without labouring the point, it is clear that there are good reasons why that may have been the forensic choice. It does explain, with respect, matters which we do rely upon for both, in the visitorial jurisdiction and in relation to the admittedly well-known but always important matters, of the power and duty of a criminal appellate court.

Now, in this case it is Queensland, section 668E. It is in relevantly very familiar form, and relevantly, although it may be, what shall I say, unsafe and unsatisfactory for those words to be used in the label of the reasons, see application book page 46, paragraph [42], nonetheless that captures the jurisprudence in question.

I disavow, obviously, any point in this case which suggests that we have some alteration nuanced or otherwise to effect to the law recognised and applied by their Honours in this case. Now, of course we are not suggesting there was a mispronouncement of test in terms of judicial self-direction in the Court of Appeal. However, when one considers the statutory language, relevantly, unreasonable or such that it cannot be supported in light of the evidence, having regard to the evidence, in our submission there are conclusions, all the more weighty from the judge in question and in this Court and in the Queensland Court of Appeal, which, in our submissions, show that in this case there has been a failure to, in fact, apply correctly that which the court correctly directed itself was the test.

Can I seek to make that good by reminding your Honours of what you have read both in the Court of Appeal’s reasons and in the written submissions about what I will call the disparities or inconsistencies in the complainant’s evidence. Now, the Robinson point, so-called, arose particularly because siblings were implicated by some of the versions narrated on some occasions by the complainant but their material also put before the court by the prior taping device did not include anything that came anywhere near corroboration of the matter that had been relied upon, or I should say, that was contained in those narrations by the complainant. Now, that was one of the inconsistencies - - -

HAYNE J: How old was the complainant at these times, at the time of evidence?

MR WALKER: Ten.

HAYNE J: I think still quite young.

MR WALKER: Yes, probably, it would have been, yes, about nine, your Honour, yes. There are comments made in the Court of Appeal about both age and, I should say, circumstances, which your Honours will have seen. Could I take you to the two pages that matter, pages 46 and 47. Some of these matters actually fall out on those pages. If there is a point which, we submit, should concern this Court so as to justify a grant of special leave it comes because of -, after the anxious consideration given by Justice Muir to the details of the evidence - comments such as one finds in paragraph [44], first of all.

Now, that picks up the sibling failure to corroborate - that is both a technical and non-technical use of that word by me - something which was presented as part of an apparently recalled event. His Honour concludes with words which, in our submission, conjure up precisely what was intended by those who enacted the precursor in the Australian colonies as well as in England and Wales of this statute and which has been recently, if I may put it this way, re-emphasised by this Court as the unavoidable aspect of duty involved in a criminal appellate scrutiny under these provisions. The words are, about line 36 or so:

evidence which had worrying inconsistencies in significant respects.

That, in my submission is a phrase which ought ordinarily convey, not only something about which a judge might warn a jury but, in our submission, also describes after the event in a Court of Criminal Appeal, a state of affairs which answers any one of the range of varying paraphrases of the statutory language with which your Honours are familiar from this Court’s jurisprudence.

When one goes then to paragraph [49] on page 47, there is nothing, as it were, vagrant about that very carefully expressed conclusion in paragraph [44]. It is followed up in paragraph [49] - I quote from the last three lines:

impossible to resist the conclusion that there was a large component of inaccuracy or exaggeration in some of his evidence.

It is clear, as your Honours will recall from the earlier analysis and exposition by his Honour that that is not a large component in a very small part of his evidence. That is a large component in rather important areas of his evidence. That, of course, is absolutely supported by the next, the third of the statements by this very experienced judge which, in our submission, should have amounted to the test being fulfilled in favour of allowing the appeal. In paragraph [50], line 22 or thereabouts on the page, the opening phrase refers to the complainant’s evidence being:

demonstrably unreliable in important respects -

“Important” means important for conveying with an appropriate degree of assurance, that is reliably, matters of fact which needed to be accepted so as to produce the overall finding beyond reasonable doubt of guilt. In our submission, there are the one, two, three statements, deliberate and, in our submission, loaded with the content which ought to have produced, if I may put it this way, without hesitation, an allowed appeal. After all, one does not decline to allow an appeal because there was something to be said for a prosecution being mounted. You do not decline to allow an appeal because it can be seen how a respectable case might be put. You certainly do not

allow an appeal by the exploded notion that these are matters of fact for the jury. In our submission - - -

HAYNE J: It is brought together, if at all, in paragraph [52], is it not?

MR WALKER: Yes, I understand, your Honour. But before I get to [52], I just wanted to dwell slightly on the opening phrase, if you will recall, in paragraph [51], not without some hesitation. Now, in our submission, that conveys in a way in which is most informative and evocative for this Court, the effect which this record had upon this experienced judge. In our submission, there has been, as it were, a slip, but only at that last point.

The last point is what is the outcome of a trial record being considered by an appellate bench under this familiar form of statute where these are the descriptions that are appropriate on the point which was fought. In our submission, the fact that in paragraph [52], for example, there are comments collected which include the “not without some support” only goes to further strengthen our submission that this is a case where there were cogent reasons assembled by Justice Muir summarised, or the subject of his conclusions on these two pages I have taken your Honours to, for having upheld the appeal.

They involve what in former times might have been called the niggling doubt. In fact, these appear to be more than mere niggles. That, in our submission, in a case involving conviction of two of three counts - I do not want to go back to the inconsistency point - but a case involving two of three counts in relation to a mother and her own child, involving the discrepant versions given by other children, in our submission, does call out for the exceptional intervention of this Court by a grant of special leave in the interests of justice in the particular case.

It is not suggested that this is a case where anything about the record or, in particular the, with respect, very careful exposition in the Court of Appeal, presents any kind of countervailing burden that ought to outweigh what might otherwise, in our submission, be seen as the dictate of criminal justice, in this case.

HAYNE J: Thank you, Mr Walker. We will not call on you, Mr Moynihan.

It is not disputed that the Court of Appeal stated the applicable principles correctly. We are not persuaded that it is in the interests of justice in the particular case that there be a grant of special leave to appeal in this matter. Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 11.38 AM THE MATTER WAS CONCLUDED