PWD v The Queen [2011] HCATrans 32 (11 February 2011)

Last Updated: 18 February 2011

[2011] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S237 of 2010

B e t w e e n -

PWD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 2.25 PM

Copyright in the High Court of Australia

MR R.F. SUTHERLAND, SC: If your Honours please, I appear with my learned friend, MR S.A. BOUVENG, for the applicant. (instructed by Watson McNamara Watt)

MR C.K. MAXWELL, QC: If it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, this application is, in our respectful submission, exceptional in a number of respects, and of course I open with those observations because if I cannot persuade your Honours for that situation, then we are foredoomed to failure. Your Honours, this particular application for special leave raises questions of specific importance on areas of the uniform evidence law which has not been the subject of determination by this Court and hence, the jurisdictions which have now enacted those provisions have not received the guidance, notwithstanding what Justice Gummow says about deciding cases rather than giving guidance, of this Court.

Secondly, it raises matters of general application for trials of a particular genre of which, regrettably, from a social perspective, there is a multiplicity across the country. Thirdly, it raises circumstances where there is, in our respectful submission, explicit error able to be demonstrated in the Court of Criminal Appeal with regard to the approach that that court took and with regard to where it is said to have been purportedly identified as existing with the judge at first instance. Next, your Honours, it raises questions of, in our submission, a clear divergence of approach to the relevant provisions of the uniform Evidence Act between decisions in New South Wales and decisions in the Victorian Supreme Court which, of course, enacted the provisions from 1 January last year.

Last, but by no means least, it also highlights a divergence of opinion between the superior courts of Tasmania, Victoria and New South Wales as to whether the relevant principles are House v The King or Warren v Coombes and the divergence of opinion which is evident between the dissenting judgment of Justice Basten in R v Zhang in New South Wales. So for those headings, as it were, we respectfully submit that the case is exceptional.

Can I make some passing observations about Elliott, because it is frequently put as a substantial hurdle – one of many, may I say – but a substantial hurdle by this Court, in relation to applications of this kind? One would recall, of course, that what had happened in Elliott was that the National Crime Authority, as it was at that stage, had been behind prosecutions brought by the Commonwealth Crown against Mr Elliott exercising federal jurisdiction and brought in Victoria. The Crown relied upon a number of aspects of its case which were able to be determined by the Supreme Court of Victoria, because enabling legislation allowing for rulings before empanelling had been brought into play in that court but with a difference from New South Wales because at that stage, there was no right of appeal against an interlocutory ruling either by an accused person or by the Crown, and that was the state of the law in Victoria at that time that Elliott came to this Court.

It was, contrary to the present situation, the Crown who felt upset at the situation that had passed because Justice Vincent ruled that the evidence upon which the Crown so heavily relied, it would not be admissible. The precise reasons do not need to concern us, just confining it to the principle. This Court, if I can take your Honours to page 256 of the Commonwealth Law Report, said a number of things in relation to it. At the bottom of that page, your Honour, the Court comprising the Chief Justice, Sir Gerard Brennan and Justices Gummow and Kirby said:

What now falls for consideration, therefore, is whether this case, in which a question of importance has arisen from a preliminary ruling in a criminal trial, is one in which that question should be determined on appeal to this Court, assuming that an appeal lies under s 73 of the Constitution.

I pause, of course, just to remind your Honours it was a direct application because there was no appeal to the Court of Criminal Appeal in Victoria and it was federal jurisdiction. I will paraphrase the next paragraph. Their Honours referred to the special procedure allowing preliminary rulings in Victoria so as not to delay criminal trials once a jury was empanelled. They said:

The utility of such a provision is manifest, but the Legislature has prescribed this special procedure upon terms that no appeal should lie from the preliminary ruling to the Victorian Court of Appeal.

They referred to the intention to avoid fragmentation which is so oft referred to, and said this:

It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal. But the prosecution has no such right.

Their Honours went to the end of that paragraph to say this after considering the competing questions of justice:

The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution’s ability to appeal against rulings which it thinks to be incorrect.

It follows that a grant of special leave in the present case would significantly frustrate the process of the criminal trial as prescribed by the Victorian Parliament.

Then recognised, of course, the long history in this Court, and there are many other authorities, and I will not take the time in this particular application to take your Honours back to them other than mentioning in passing Yates v Wilson, which was very summarily dismissed by Sir Anthony Mason, and I say that with respect, because it was an attempt to interrupt the committal process, if I recall correctly, in circumstances where there was just magnificent and undue and terrible delay in the whole process of the criminal justice system.

We say a number of things in relation to Elliott. Firstly, that in Victoria – and I appreciate this appeal is not from Victoria – that situation has now drastically changed. The Crown and the accused may both now bring applications to the Victorian Court of Appeal against interlocutory rulings of the kind which neither of them could do in Elliott. There are a number of hurdles that the Parliament down there have put in the way. You need certification and, in due course, you need leave before you can get to that platform, but some of the aspects about the importance of what Parliament had determined to be the appropriate approach in Elliott no longer apply. In New South Wales, of course, the Crown, but not an accused, can challenge the admissibility of evidence in an application under section 5F of the Criminal Appeal Act.

In this particular matter, if I can just go to the broad circumstances of it, and I must move on because if I get over this hurdle, there is no use, of course, unless I can satisfy your Honours of the substance of the importance of the points, but can I just hypothesise with the present matter. The former headmaster of this school goes to trial in circumstances that are set out in the narrative of facts. The Crown seeks a ruling in advance of the trial that tendency evidence permitting evidence across the board should be cross-admissible. In front of an experienced previous criminal advocate and criminal trial judge the accused gets the benefit of the fruits of a judgment that says, “No, I am not going to admit it. If I am wrong about a significant probative value, I would either exercise a discretion or reach a judgment without getting into that debate, under section 101, and I would still exclude it. You will have separate trials, and the evidence will not be cross-admissible.”

The Crown appeals. They, if I may say this without too much of an overt criticism, after a judgment on a Friday, they do not lodge an appeal on the Monday. Seven days passes while a trial judge sits waiting to empanel a jury. Eventually, an appeal is lodged, it goes to the Court of Criminal Appeal, the trial judge goes off on circuit, the matter goes out of the list, the trial process has been fragmented at that point in time by the actions of the Crown, which it is entitled to do, pursuant to the legislation in New South Wales, but concepts of delay, concepts of fragmentation that might have applied at the time of Yates v Wilson and applied in Elliott have, in our respectful submission, a different complexion in circumstances where the Crown exercises its right to challenge the admissibility of evidence.

BELL J: It exercises that statutory right that has been conferred and that is confined to cases in which the ruling adverse to it is one found to be such as to substantially weaken the prosecution case.

MR SUTHERLAND: That is so, Justice Bell.

BELL J: One can perhaps see the purpose for a provision of that character.

MR SUTHERLAND: Absolutely.

BELL J: And one appreciates that the Court of Criminal Appeal is the body one expects to, as it were, supervise the conduct of criminal trials. The suggestion that because that mechanism has been taken, the approach conventionally taken by this Court of not readily being drawn into the supervision of criminal trials at an interlocutory stage, might still be thought to have force.

MR SUTHERLAND: Your Honour, can I be candid enough to say I am not surprised by those observations, your Honour, but we do say that it is different from a situation where, for example, at an extreme end of the scale there might be intervention during a trial under 5F and the jury is kept waiting, which of course, as your Honour well knows, does happen. This is a situation where, without running off on too big a tangent, one is dealing with offences which are said to have occurred, at the least, 19 years ago, and at the worst, 34 years ago, that were not the subject of contemporaneous complaint, which are very historical in nature, and in respect of which the trial process was stopped by virtue of the statutory right given to the Crown.

My point is simply that in weighing up the importance that should be given to fragmentation in the way that that has been interpreted, applied and utilised in this jurisdiction, it is a slightly different complexion. It certainly still has difficulties, and I recognise those, but we respectfully say that when you put it into the context, there is a difference. What I wanted to move on to say, however, about the particular situation is this.

The Court of Criminal Appeal, having ruled on the admissibility of evidence of tendency, then sends the matter back, subject to the application to this Court, to a trial judge in the District Court. The trial judge, be it Judge Flannery or a different judge, bound by the decision of the Court of Criminal Appeal, admits the evidence and the tendency evidence all goes in because that has already been determined by the Court of Criminal Appeal.

The jury get directions as to how they can use it and how they cannot use it and leaving the, in my submission, clear question of prejudice about how on earth a jury is told, “You cannot use this as coincidence evidence. You cannot rationally say, ‘Gee, it is a coincidence that there are four boys from the school, or six boys from the school.’ You are not allowed to do that. Tendency must be in a different way”. Justice Beazley expressed a view about the sensible approach of juries and Judge Flannery took a different view as to the likely prejudice.

Let us assume for the sake of this argument that the jury convicts. Having convicted, does this accused have a right to go to the Court of Criminal Appeal and say the trial judge was wrong in admitting the tendency evidence? Is there an error? The Court of Criminal Appeal presumably says, “Well, no, there is no error, we have already rule on it.”

HEYDON J: No, but the Court of Criminal Appeal’s orders would necessarily, being only interlocutory in relation to an interlocutory appeal, be subject to the accused being able to take the point afresh after a trial when the appeal was as of right.

BELL J: I think it is the point that is made in Maric. The appeal is against the conviction, not against the admission.

MR SUTHERLAND: Admission of evidence, indeed. I suppose I am more putting it on the basis about what chance he would have, but that is an argument for another day. Your Honours, the position that we respectfully submit is that the exceptional circumstances which are adumbrated in broad point form apply to overcome that initial hurdle that Elliott would otherwise provide. Can I point, if I may – and I have done so in the written submissions and I do not want to simply replicate those – but to the most manifest error that we respectfully submit is glaring in the Court of Criminal Appeal. Could I take your Honours for the point of this brief exercise to the additional material and to pages 20 and 21 of those.

HEYDON J: The numbers in the middle of the bottom of the page?

MR SUTHERLAND: I am sorry, the middle of the bottom of the page. Your Honours would see that this is, in the Crown submissions, handed up to the trial judge and under the heading of the basis upon which the Crown sought to rely upon tendency, the Crown described it with a phrase which can be found in the authorities:

The pattern of behaviour, modus operandi, system or pattern and common threads

It then sets it out in the following two pages or so. The Crown then, on page 22, in its submission, said:

The acts and conduct of the accused sought to be led as tendency discloses a similar pattern of conduct by the accused.

The point that we make is that before the trial judge that was the way in which the Crown sought to justify the admission of the so-called tendency evidence. The tendency notice, which your Honours will find in the application book at pages 6 to 7, itemised the various activities which were said to demonstrate the tendencies which were described. I will do this in very short form, because I am conscious of the time, but your Honours see from (a) to (u), for example, a tendency “to give alcohol to young male students”. I pause to make the observation there was one person that made such a suggestion. He was a year 12 student. He was not a charged offence and he said he went to the room from time to time and was given alcohol and discussed the story of life, as it were.

One looks at the next “to give money to young male students”. There was one of the complainants who said, “At some stage after I left school, I got $10 in a card”. So the tendency that was identified in a number of these were one-offs rather than some actual tendency.

BELL J: I thought the tendency was the somewhat broader tendency - - -

MR SUTHERLAND: Indeed, and that is where it ultimately came to the general tendency, but the point that I was making, Justice Bell, is that there were itemised various activities which were said to give rise to the tendency or the conclusion of it. Now, it was a case in which the Crown, in written submissions, under that heading said “system or pattern”, amongst other things. Justice Beazley, in her determination – and your Honours will find the relevant portion, firstly, at paragraph 50 on page 55 of the application book – dealt with the Crown’s submission regarding alleged errors by the trial judge:

The Crown submitted that her Honour erred in making the lack of similarity between the sexual acts or the surrounding circumstances the determining factor in assessing the probative value of the evidence.

BELL J: I am sorry, which page are you on?

MR SUTHERLAND: Page 55 of the application book. I am sorry, Justice Bell, paragraph 50 of the judgment:

The Crown submitted that her Honour’s focus on the lack of modus operandi, system or pattern with common thread as the basis for exclusion, was an erroneous basis upon which to assess the probative force of the evidence. The Crown did not rely upon system or pattern for the purposes of establishing tendency.

Her Honour went on and, in due course, agreed with the Crown. With the greatest of respect to her Honour, not only did the Crown, in fact, rely upon that, but Judge Flannery was completely correct in focusing on that because that was precisely the way the Crown approached the case before her. They put a written document before her with that heading on it and we can point to no more apparently stark illustration of error by the presiding judge, with whom the other judges agreed, in the determination that Judge Flannery had fallen into error. Your Honours, there are other aspects where we respectfully submit that there was demonstrable error. For example, at page 56, paragraph 52, on the question of innocent association, Justice Beazley said:

The question of innocent association is an issue in respect of each complainant.

I pause. That is simply, with respect, not so. The debate at first instance was whether or not innocent association would arise with respect to counts 1 to 5, which were the two boys, IB, the piano player, and MK, the fellatio boy. I took instructions at request by her Honour and indicated to the court there was not going to be any suggestion – I am sorry, I withdraw that, it was not the fellatio boy, it was the feeling the testicles after the hospital intervention – and made it quite clear to her Honour that our instructions were categorical. It was denied that any such incident took place. There was no suggestion of innocent association going to be raised in relation to that and, accordingly, the only question that her Honour needed to consider was, well, in relation to the first component in time from 1977 and 1979 when the teacher came in and sat down on the bed in an open public dormitory and it is said 30 years later, that was sexually inappropriate because the boy, in his pyjamas, in his bed with the teacher sitting on top of the bed had his backside close to the boy’s penis. That is the subject of the first count of the indictment.

Secondly, that on a later occasion, when the subsequent dux of the school, good musician, was playing a piano concerto, a duet for four hands on one keyboard with two players seated beside each other on a piano stool, that the teacher seated to the right, had his thigh rub in a fashion which, decades later, the boy says, “Well, in my view it had a sexual connotation to it.” That is count 2 in the indictment. Whether or not that was innocent association, because clearly there would be an argument that it was, her Honour was wrong to say it applied in respect to all of the complainants, it did not.

HEYDON J: Mr Sutherland, time has run out, but if you have any, as it were, king hit points you feel you have not exposed, perhaps you might briefly do so,

MR SUTHERLAND: They are always good to expose them, Justice Heydon. I have not taken the time because of the detail that we went to in the written submissions, but we respectfully submit, contrary to what the Crown puts to the Court, that the consistent approach to section 97 in the Victorian Court of Appeal and section 98 is at odds with the determination in this case and the perception in Victoria of the approach in this Court. Can I make one last point because Justice Beazley said PNJ had wrongly been relied upon, agreeing with the Crown.

PNJ – and I make the point in the submissions, but may I do so very briefly – in PNJ, the Victorian Court of Appeal in dealing with its first appeal under these provisions called in aid the observations of Justice Campbell in Ford in New South Wales to aid in the interpretation of section 98 down there. Justice Campbell was giving a ruling and making observations in a tendency case. The Court of Appeal in Victoria said, “Notwithstanding it was tendency in New South Wales, the observations are apposite to this case which we are dealing with on coincidence.” Judge Flannery recognised that it was a coincidence case and said so in her judgment – and I will just give your Honours which page it was, bottom of page 32, line 40 – her Honour said:

Although the Court of Appeal was there –

that is in Victoria –

talking about coincidence evidence, it does not seem to me that what was said there is any less applicable in this case.

There is good reason for it. The observations down there were relying upon a New South Wales tendency case. So her Honour simply said, “They rationally used it there in coincidence. Even though it is coincidence, I rationally use it here.” Her Honour Justice Beazley – and I will not take your Honours to it, it is clear in the submissions – said her Honour was wrong to rely upon PNJ. The reasoning was wrong. It was a coincidence case. It was not to be dismissed so lightly. May it please the Court.

HEYDON J: Thank you, Mr Sutherland. We need not trouble you, Mr Maxwell.

We are of opinion that the application for special leave should be dismissed. The substantive points made by Mr Sutherland will remain available to be used by the accused in the event that the trial ends in his conviction. We think there are insufficient prospects of success in an appeal based on the present application to justify the grant of leave. We also think that, assuming as Mr Sutherland submitted, there is an emerging difference between the approach in New South Wales and Victoria to the operation of sections 97 and 98 of the Evidence Act, the proceedings as they now stand are not a satisfactory vehicle to examine what the law actually is since it turns on a ruling on evidence on the strength of statements of what it is expected the witnesses will say, as distinct from the actual evidence they will, in due course, give. For those reasons, the application must be dismissed.

AT 2.51 PM THE MATTER WAS CONCLUDED