Tognolini v The Queen [2011] HCATrans 303 (28 October 2011)

Last Updated: 11 November 2011

[2011] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2011

B e t w e e n -

TERRENCE RAYMOND TOGNOLINI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 11.15 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR T. KASSIMATIS, for the applicant. (instructed by Galbally Rolfe)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MS J.M. FALLAR, for the respondent. (instructed by Director of Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Priest.

MR PRIEST: Your Honours, there is no doubt that if the conviction in this case had been based solely on the last occasion – count 4 having been based solely on the last occasion, the conviction here could not stand.

FRENCH CJ: Count 4 covered the period October to December 2006, did it not?

MR PRIEST: It did, your Honour.

FRENCH CJ: Am I right in understanding your argument is that the jury – it was not open to the jury to accept the secondary case, there was a misdirection because there was only the one episode and not three separate acts. They must have been left in doubt as to whether you had knowledge of the true age of the complainant in respect of the earlier period and that once you focus on the secondary case you do not have 47A(5) available to you.

MR PRIEST: That is it, your Honour.

FRENCH CJ: But the answer to that which is – why is not an answer to that to say that the whole count covered a period of relationship from October to December 2006 for whatever reason, the jury acquitted and that opens the door into 47A(5) because there were other sexual acts.

MR PRIEST: The answer to it is this, your Honour, that the alternative to 47A conduct was left only with respect to the last occasion. So that the alternative was not left with respect to the earlier conduct about which apparently the jury failed of satisfaction beyond reasonable doubt that he knew that she was 16. So much appears, your Honours, from the charge to the jury and it is necessary for me to take the Court briefly to the charge to make this point good. Could I take the Court, first of all, to 58 to 59 of the application book, and 58 about line 50, last paragraph on the page:

The prosecution also alleged that the accused did a number of acts on some of these occasions which separately constituted the particular offences. For example at the hotel on the one night there are three alleged acts, one of sexual penetration and two of indecent act. On the last occasion there are also three alleged acts, again one of sexual penetration and two of indecent act . . . It is also sufficient if you decide that the accused did at least three acts on one night. Occasion in this context simply means a separate event.

Of course, that direction was held to be wrong. I then need to take the Court to application book 60, last two lines, and going into 61:

If you find the accused not guilty on Count 4 then in respect of the alleged sexual acts on the last occasion before [the complainant] left the accused’s house, you may turn to consider whether you are satisfied beyond reasonable doubt that the accused is guilty of a lesser alternative, that is the specific offence of taking part in an act of sexual penetration, or the specific offence of committing an indecent act. You would only turn to consider these alternatives if you were not satisfied beyond reasonable doubt that the last alleged sexual activity before [the complainant] left the house did not involve three acts constituting either the offence of taking part in an act of sexual penetration or the offence of committing an indecent act. Because if you accepted that three sexual acts occurred on that occasion, Count 4 would still be the appropriate count for your consideration.

FRENCH CJ: But that is just putting the secondary case, is it not?

MR PRIEST: But, your Honour, the next couple of lines are important:

The prosecution here submit that for these alternatives you can consider the evidence of [the complainant] as to the last sexual acts she said took place before she left the accused’s house.

I can take the Court to other passages but the burden of the law is that the alternative is based simply on the last occasion. The alternative was not left to the jury with respect to all of the earlier conduct. It is beyond doubt, in our submission, that the conviction arose out of the last occasion.

KIEFEL J: That might well be so, but does not the direction here proceed upon the basis that the alternative becomes available and the focus upon the last act is on the assumption that the jury has found in his favour in relation to his belief about her age? Is that not why the trial judge – because once the jury finds that then the case on the three counts goes.

MR PRIEST: Your Honour, the alternative can only operate if there is a proper charge, if I can put it that way, on section 47A, that is, the charge has been properly laid and is properly exposed for the jury’s consideration. Here, notionally, what one needed to do was separate two periods, in effect, one, prior to him being told that she was 16 and one after. That is why there was the focus on the last occasion because that arose after he had been told that she was 16. His evidence was - - -

KIEFEL J: But as the Chief Justice pointed out, the principal charge was over the whole period including the last occasion.

MR PRIEST: With respect, that is exactly what the Court of Appeal held and, to some extent, that sort of reasoning is seductive but what it draws attention away from is the real way in which the alternative was exposed for the jury’s consideration. It was exposed in a way that it could not have been, if the last occasion had been the sole foundation of count 4. We follow, of course, what is put against is the presentment covered a much larger period. That ignores the reality of the way in which the case was left to the jury and the jury were left with the alternative only in relation to the last occasion.

KIEFEL J: Your point is that it is a wrong direction, then? It is not really how the charges could have been left. It was how it was put to the jury.

MR PRIEST: I would hasten to embrace that proposition but it does not fully cover what we contend for, your Honour.

KIEFEL J: Could I ask you to clarify this? The wrong direction you referred to on page 59 at about line 10, I think that is perhaps what the respondent refers to at paragraph 23. You do not rely upon that. That is not your point?

MR PRIEST: No, our point has been put that an alternative only arises under section 47A when a count under section 47A is properly before the jury. In this case, the secondary basis upon which the Crown sought to put its case did not enliven the alternative. That really is the gravamen of our complaint. The secondary case is the one undoubtedly, in our submission, upon which the jury convicted but the secondary case was not available as a means of putting this case by the prosecution before the jury because it was related to a single occasion with three separate acts.

FRENCH CJ: We are looking here at a statutory provision, 47A(5), are we not, and whether the conditions for the return of an alternative verdict under 47A(5) have been satisfied? The condition is an acquittal of the relationship offence under 47A(1). Is that correct?

MR PRIEST: Yes, your Honour.

FRENCH CJ: Yes. Now, you are saying that the availability of that alternative verdict, absent a separate count in the presentment, is somehow qualified by the form of direction that the judge gave in this case?

MR PRIEST: That is right, your Honour, but it also involves questions of statutory interpretation, what subsection (5) actually means. So, that if one looks at subsection (5) it provides that:

If on the trial of a person charged with an offence - - -

FRENCH CJ: This is at 161, I think, of the book, is it not?

MR PRIEST: Yes, your Honour:

the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused did an act during the period –

Now, that period for the purposes of the secondary way in which the count was put was that last occasion, that one night.

FRENCH CJ: The presentment – the only period that is shown in the presentment is the period from October to December 2006, is it not?

MR PRIEST: That is right, your Honour. That is one aspect of it.

FRENCH CJ: That is the only offence with which he is charged.

MR PRIEST: But the way in which it is left is important.

KIEFEL J: That is a direction question. You are saying that it was put to the jury in a different way than the presentment charged it.

MR PRIEST: The origin of the difficulty in this case actually flowed from the trial judge’s suggestion to the prosecutor that perhaps the way in which the case was being put could be enlarged by having this secondary alternative. That is the origin of the problem. Had the case been - - -

KIEFEL J: I am sorry - do you deny that the offences, the alleged offences on the last occasion, the last evening, were unavailable to meet the offence under the principal challenge?

MR PRIEST: Yes, your Honour, because the alternative was left only in relation to the last occasion. The last occasion could not have found an offence under section 47A because there were required to be at least two other occasions.

KIEFEL J: No, but if the jury had found two other offences founded upon his belief and also found that one of the – there was an act of the specific kind which occurred on the last night, they could have relied upon that as one of the three, could they not?

MR PRIEST: If that is the way it had been left to them, but that is not the way it was left to them.

KIEFEL J: But does that not work in your favour in relation to the principal challenge?

MR PRIEST: Well, your Honour, no, it does not because the jury were invited to convict on a false basis. They are invited to say, you can look at the last occasion and if you are not satisfied of the 47A count you can convict of alternatives. But if the 47A count had been limited to the last occasion, those alternatives would not have been available. No alternatives were left for the balance of the period.

KIEFEL J: Your complaint is the focus that the direction put upon the last evening but that comes about, does it not, because for the jury it might have been seen as two discrete questions they had to address. One was the question of his belief and the other was the question of what occurred, even assuming that he had the requisite belief. I mean, there were – in a way, two cases for the jury but that is just a product of the facts of this particular case.

MR PRIEST: Well, your Honour, it is something that one might expect to arise in other cases. This is a piece of legislation that is mirrored Australia wide and, surely, this will not be an uncommon problem that arises.

KIEFEL J: An uncommon set of facts, perhaps.

MR PRIEST: One could well say, with some justification, that because of the way in which the Crown were permitted to enlarge their case and because of the way in which the trial judge directed the jury this man was robbed of an outright acquittal that he otherwise would have been entitled to. That is because there is no other construction of the evidence other than that this conviction must have arisen out of the last occasion. There is just no other construction of the evidence which is available and that is because the alternative was left only in relation to the last occasion.

So that must mean, with respect, that with respect to the wider period, where he had admitted that he had had a full-on sexual relationship which involved sexual intercourse every day, that must have meant that the jury failed of satisfaction beyond reasonable doubt with respect to his absence of belief with regard to her age. It must be right. There is just no other logical way of looking at the evidence. That means that, in effect, the count was left to them with respect to the last occasion and it could not have been. Had there been - - -

KIEFEL J: No, it just means the jury saw a distinction between his conduct within the period without belief and with belief.

MR PRIEST: Can we go back a step and look at it notionally this way? If there was a count under 47A for the wider period and there was a count under 47A for the last occasion, there would have been an acquittal in relation to the first count under 47A because of the jury’s failure to be satisfied beyond reasonable doubt with respect to his belief in the age.

As to the second count under section 47A, a submission of no case to answer would have inevitably have had to have succeeded because a 47A count could not be based on the last occasion because it was one occasion with three acts. So, one can immediately see, in our submission, the way in which this man has been robbed of an acquittal that was otherwise open to him.

FRENCH CJ: If they had not accepted his belief defence then the events of the last night, assuming that they could not separated out into a single – anything other than - into separate acts but just a single episode, that would have been available as an act of a sexual nature capable of supporting the existence of the relationship as required.

MR PRIEST: If they could not be separated out but that is what we - - -

FRENCH CJ: I am assuming – let us say they are a single episode.

MR PRIEST: That is what makes this case so unusual, your Honour. It is the fact that he must have lost in relation to the last occasion which standing alone could not have found - - -

FRENCH CJ: They were not separated out in time sufficient to support the relationship required – the criterion necessary to establish the relationship but they were, nevertheless, capable of being characterised as separate offences of a sexual nature. Is that not right?

MR PRIEST: Yes, that is right, your Honour.

FRENCH CJ: Penetration and the two indecent acts.

MR PRIEST: That is right. This has an awful aroma about it. We did put, of course, to the court below that these verdicts were inconsistent. It is

a little difficult to see how the jury could have accepted a touching based on a small piece of re-examination and, of course, special hearing and, at the same time, rejected the act of oral intercourse of which he spoke. So, when you look at this as an experienced criminal lawyer and experienced criminal judge, you immediately get the whiff of a compromise here. What is worse is that it is a compromise in a situation where the case should not have been left to the jury in the way in which it was.

So, your Honours, we submit that this is a case which should attract a grant of special leave for two principal reasons: one, in our submission, plainly there has been a miscarriage of justice. This man has been robbed of an acquittal that was otherwise open to him, and, secondly, this is legislation which is mirrored Australia wide and although the facts of this case are peculiar, they are not so peculiar that there will not be a repetition of them or something like them in other jurisdictions in the future.

FRENCH CJ: We certainly see a bit of this section or its equivalence over the years in the last four or five years, I think.

MR PRIEST: Well, that is true, your Honour. What it was designed to do, of course, why the alternatives exist, whether it is a bit as a matter of statutory drafting, was to catch those occasions where there was evidence given of sexual acts on a number of occasions and the jury thought “Well, we think this might have happened on this occasion, but we do not know about this occasion or this occasion. Therefore - - -

FRENCH CJ: You cannot get up on the three that are required.

MR PRIEST: You cannot get up on the three. Here, if the Crown had left it solely on the last occasion, they could not have got up on any of it because it could not have been left to the jury. If the Court pleases.

FRENCH CJ: Thank you very much. Yes, Mr Holdenson.

MR HOLDENSON: The conviction sustained by the applicant in this case fell within that which was permitted by or under section 47A(5) of the Act. The primary basis was properly before the jury, as in it was expressed to be on the presentment. There was an evidentiary foundation for it.

There was a verdict of not guilty with respect to that offence and that which is set out within section 47A(5), that is the terms of 47A(5) permit a jury to return a verdict of guilty with respect to an offence of indecent act in the circumstances of this case which were, insofar as the conviction sustained by the applicant were, first, there was an evidentiary foundation for the offence of indecent act; secondly, that indecent act was done at a time which fell within the period covered by the offence specified on the face of the presentment; thirdly, that act was one of the acts which had been relied upon by the Crown in proof of its case or in support of the proof of its case of the offence contrary to 47A(1) which was specified on the presentment and there is no requirement, whatsoever, that the offence contrary to section 47(1), the offence upon which the applicant sustained his conviction, had to be expressed or specified on the face of the presentment.

So, the jury having returned a verdict of not guilty with respect to the offence, the subject of a primary basis, the jury was entitled to return a verdict of guilty on the offence upon which it did return a verdict.

FRENCH CJ: All that says is that you can tick all the statutory boxes because you have a presentment which covers the period, you have an offence of a sexual nature within the period and 47A(5) gets you to the argument - of course, the argument against you cannot deny that. It is a question of whether what was in substance put to the jury in terms of the direction that they were given effectively broke it into two parts in the - - -

MR HOLDENSON: Let me deal with the direction, then. The direction was clearly erroneous insofar as it permitted or invited the jury to return a verdict of guilty on the relationship offence with respect to the events of the final night. The submission on behalf of the respondent is this, that it is irrelevant, that is, there has been no miscarriage by reason of the giving of that erroneous direction for two reasons.

First, the applicant was acquitted by the jury of that erroneous, intermediate alternative. So what occurred here at trial is indistinguishable from the case where an alternative verdict is open as a matter of law but the jury has failed to reach the requisite state of satisfaction of beyond reasonable doubt with respect to one or more of the elements of that alternative offence and hence, acquitted the accused.

But secondly, more particularly with respect to the erroneous directions, those erroneous directions could not have deflected, in any manner whatsoever, the jury from its proper task or undermined their decision-making process with respect to the offence upon which the jury did determine to convict. That is for this reason. In considering whether or not to convict on what I will call the finer alternatives, plural, that is, whether or not the applicant had on that last night committed one act of sexual penetration and/or one or two indecent acts, the jury considered the very same questions of fact which they had been required to consider, albeit wrongly, in determining whether or not to convict of the relationship offence on that wrongful secondary basis.

In that regard, the facts with respect to those three sexual acts, the one sexual penetration and the two indecent acts, said by the complainant to

have been done to her on the final night, are found by the jury immediately prior to the application of the law concerning the elements of the offence of relationship on the so-called secondary basis, that is, the jury looked to the final night, they look at the evidence with respect to those three sexual acts and have to reach a determination as to whether or not those three sexual acts or any of them have been proven beyond reasonable doubt and then, having made those findings of fact, then apply the law with respect to the so-called secondary basis, wrongfully put to the jury, wrongfully the subject of direction, and having not determined that three sexual acts were done by the applicant on that night, do two things: one, acquit on that secondary basis but without more then return a verdict or verdicts of guilty - it could only be two because if there were three they would have convicted on the secondary basis, and a verdict of not guilty, or verdicts of not guilty (plural) with respect to those three acts.

So what has occurred is in convicting of that one indecent act on the last night, the jury’s fact finding could not have been impermissibly or adversely affected by the wrongful invitation expressed by the judge to consider the so-called secondary basis.

FRENCH CJ: I might just stop you there, Mr Holdenson, and just hear you in reply on that, Mr Priest.

MR PRIEST: It is as simple as this. The respondent accepts that there was no basis for convicting on the secondary basis. That carries with it the implication there was no basis upon which the section 47A count could have been left to the jury for the last occasion. Notionally, if the case here under 47A was founded on the last occasion, it would have had to have been taken away from the jury. No other option would have been available to the trial judge properly. Once it was taken away from the jury, there was no alternative count which they could have considered. It is as simple as that.

For them to be able to convict under section 47, the indecent act, for the last occasion there was required to be a count there. There was not. They were invited to convict on a false basis and this man, with respect, has been robbed of an acquittal. If the Court pleases.

FRENCH CJ: Thank you, Mr Priest.

The applicant was charged with the offence of maintaining a sexual relationship with a child under the age of 16, contrary to section 47A(1) of the Crimes Act 1958 (Vic), an offence said to have been committed between 13 October 2006 and 12 December 2006. The applicant was acquitted of that offence but convicted of the offence of committing an indecent act with a child under the age of 16, contrary to section 47(1) of the Crimes Act.

The applicant argued unsuccessfully in the Court of Appeal that the alternative verdict, not being a separate count on the presentment, could not be supported by section 47A(5) of the Crimes Act. The applicant relied upon the fact that a secondary case of maintaining a sexual relationship which was left to the jury, confined to the last night he spent with the complainant, was not open on the evidence as there was only one sexual episode involved instead of the mandatory minimum of three sexual acts.

The relationship charge, however, covered the period from October to December 2006 and by virtue of section 47A(5) the alternative verdict was open. The erroneous direction in relation to the offence under section 47A(1) would not have affected the jury’s consideration of the alternative offence. There is, in our opinion, no reason to doubt the correctness of the decision of the Court of Appeal. Special leave will be refused.

AT 11.45 AM THE MATTER WAS CONCLUDED