Sibanda v The Queen [2012] HCATrans 195 (17 August 2012)

Last Updated: 22 August 2012

[2012] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2011

B e t w e e n -

DESIRE SIBANDA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 10.42 AM

Copyright in the High Court of Australia

MR T. KASSIMATIS: May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the applicant. (instructed by Galbally Rolfe)

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the respondent. She will be proceeding with the respondent’s submissions. (instructed by Office of Public Prosecutions Victoria)

GUMMOW J: Yes, Mr Kassimatis.

MR KASSIMATIS: Your Honours, subject to what the Court may have to say, I shall proceed on the basis that the most recent submission raised by the respondent – namely, that in some way this Court’s decision in Getachew v The Queen undermines the error the subject of this appeal in the court below is misconceived. In my submission, the error was properly accepted in the court below and this Court ought not worry itself with anything other than the construction of 276(1) of the Criminal Procedure Act. That, of course, is a provision enacted to replace subsection (1) of what was section 568 of the Crimes Act 1958 and, in our submission, in accordance with the submission made below, effects a material change to the test for the determination of criminal appeals in this State away from that which was held by this Court in Weiss v The Queen.

GUMMOW J: Where do we see the statutory text?

MR KASSIMATIS: The statutory text - - -

GUMMOW J: The new statutory text. Is it page 193 of the application book?

MR KASSIMATIS: Yes, your Honour. Can I make this submission from the outset? The applicant in this case relies almost in toto on the statute itself. It is a matter of pure statutory construction that yields, in our submission, to the result that Weiss can no longer apply in the State of Victoria. Insofar as extrinsic materials are relevant and bear upon that question, they bolster that submission, but the submission does not depend upon them.

I have set out in the application book at pages 217 onwards the reasons for that. The primary reason, in my submission, is the shift in the onus. We have moved in this State from a provision which endorsed a two-step process originally casting the doubt upon the onus upon the appellant to show error and, upon that having been satisfied, shifting the onus to the Crown to persuade a court of appeal that no substantial miscarriage of justice had actually occurred.

That no longer is the case. This is a provision that employs a single onus from beginning to end and a single step with the onus cast upon the appellant from beginning and throughout. It cannot as a matter of law, in our submission, be that the appellant, on an appeal against the conviction, bears the onus of satisfying a court on the record that that court ought to entertain a reasonable doubt – that is, to usurp the jury’s role and to itself and for itself determine whether it, and by implication whether the jury, should have entertained a reasonable doubt.

GUMMOW J: This expression “substantial miscarriage” is lifted up, as it were.

MR KASSIMATIS: It is, and it is conceded from the outset that is the difficulty, but that expression must be read in context, and the language of the statute and the context in which that expression appears have changed. We say, in colloquial terms, the ball game has changed.

GUMMOW J: But how to your advantage?

MR KASSIMATIS: The advantage is that a court need necessarily now undertake the task that a jury undertook to determine for itself whether there has actually occurred a substantial miscarriage of justice. A court now need only determine whether an error has occurred or an irregularity that is material – that is, applying the word “substantial” in its ordinary English meaning. It is not submitted that it goes back to the old days where we replace a different formula, like having missed out on a real chance of acquittal for the statutory terms, but it is a test which sends back to the jury on a retrial the task which, under vice, courts of appeal are asked to determine for themselves.

HAYNE J: Do you accept that paragraph (b) requires not only the identification of an error or irregularity in or in relation to the trial, but also the further step of characterising that error as a substantial miscarriage?

MR KASSIMATIS: Yes, your Honour. It is a composite expression and that must be accepted.

HAYNE J: Thus not every error or irregularity will suffice.

MR KASSIMATIS: Indeed, only those which are substantial, real, material.

HAYNE J: In the context of this case, there was a factual issue for the jury, was there not, about whether the complainant was or was not asleep?

MR KASSIMATIS: There was.

HAYNE J: There was no middle ground raised, was there?

MR KASSIMATIS: Yes, there was.

HAYNE J: How?

MR KASSIMATIS: That was the point. Before the charge in this case was delivered the judge raised squarely with counsel below whether in the light of the appellant’s evidence that the complainant was not asleep there remained a need to direct the jury of that mistaken belief in consent. Counsel, both the prosecutor and defence counsel, referred to the evidence, and it is to be seen in the judge’s charge at application book 78 and 79 and 83 and 84.

There was an evidentiary basis sufficient to enable the jury to find that the applicant had a belief that the complainant was consenting because he and her boyfriend had discussed the issue of swapping girlfriends. There was, additional to that, evidence that both the complainant and the applicant were heavily intoxicated, and that is precisely why the direction was given. This was not a case of all or nothing. The court, in our submission, to the extent that it decided the end result in this case, ought to have deferred to those better placed to determine what the issues were. This Court, perhaps more than any other in this country, has made it plain again and again and again that the forensic decisions made in the court below by those in the arena can often determine the outcome of an appeal.

HAYNE J: It has also more than once noted the importance of trial judges focusing on or determining what are, and directing the jury about, the real issues in the case, not giving a disposition on the law to general effect.

MR KASSIMATIS: Indeed. Your Honour, had this been a straight-out direction given by the judge without consultation of the parties, I would face a greater hurdle, but this was a trial judge who consulted counsel, and only after considered thought gave the direction deliberately, because he and they saw that there existed a real possibility that the jury might entertain that evidence to the accused’s benefit.

This is not a case of a trial judge – like Getachew, for example, where the sole issue was whether the complainant was penetrated – simply reading out holus-bolus passages from the charge book. This was a case where, although it might not have been at the forefront of the accused’s case

below, it remained a matter that defence counsel relied upon for the jury to have to decide, and it was a matter in respect of which the direction was given and given incorrectly.

Section 276(1) has received in this State now attention by, on my reckoning, five cases. Most recently it led the Chief Justice in The Queen v Quach, which is in our materials, to say that there was, perceived at least – I do not want to get the word wrong and verbal her Honour – seemingly divergent views about what section 276(1) means. In Sibanda, this case represents as emphatic an endorsement of the continued application of Weiss as has yet come from the Court of Appeal. In Finn there was a halfway house type approach. In Baini there is a brief reference only to section 276(1), and in The Queen v Quach – mind you, in Sharma there was an acceptance, seemingly an acceptance that the test had gone back to what it was. That case was decided on the basis of whether the accused had been deprived a fair chance at acquittal.

It is of primary importance to the administration of justice in this State and there is nothing about this case that should deter this Court, in our respectful submission, from granting it special leave. May it please the Court.

GUMMOW J: Yes, Ms Ruddle.

MS RUDDLE: Your Honours, the respondent’s primary contention in relation to this appeal is that the words “substantial miscarriage of justice” mean what they mean and that this Court has provided significant guidance on the meaning of those words before today. Specifically, there is nothing in the words of the statute to indicate that the test should be some other test, such as a material matter or any of the other phrases that my learned friend has used. But in any event, even if the Court was of the view that there was a need for some judicial consideration of section 276, it is the respondent’s position that this is not the vehicle for that consideration.

The alleged error in this case is the error identified in the case of Worsnop v The Queen. Events in this Court have overtaken this appeal because the respondent submits that in light of this Court’s decision in The Queen v Getachew, the statement in this case is not in error. The error that is said to be made in this case is the charge that can be found on page 84 of the appeal book, commencing at line 7. It is the phrase:

Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied beyond reasonable doubt that the accused was aware of the possibility that the complainant was not consenting, in which case, the fourth element would be met.

In the respondent’s submission, that is a correct statement of the law. The relevant mens rea element under section 38 of the Crimes Act is awareness, not belief, and this Court said as much at paragraph 23 of Getachew. The fact that a person has a belief that a complainant might be consenting or even probably is consenting is not sufficient. The focus in the case of The Queen v Worsnop and the focus of my learned friend’s submissions in the court below put too much stake in the question of belief, which is not the question that needs to be proved by the Crown. Belief is only relevant in circumstances where it can create a reasonable doubt about the mens rea element, which is awareness that the complainant was not or might not have been consenting.

It should also be noted that the charge in this case on the question of the fourth element starts at page 76 of the application book. It is quite detailed and goes through the element in some detail and the evidence of the elements in some detail. Specifically, two pages before the part of the charge that is the subject of the appeal at page 82, line 18, the trial judge stated:

The defence argued, Mr Tan, as I have said, that Mr Sibanda’s state of mind was that she did consent or, as Mr Edebe said, “She wanted it.” Now, if the prosecution cannot exclude this possibility beyond reasonable doubt then the fourth element of rape will not be met.

In the respondent’s submission, that is actually too favourable a charge in relation to the issue that it in fact falls into the error of making belief the relevant mens rea element and not awareness of lack of consent. But in any event, when one reads the charge as a whole and one looks at the issues that were alive in this case where there was a complainant who gave evidence that she was asleep at the time that she was penetrated and there was the accused’s version of events that there was actual express consent, that there had been kissing and other sexual activity prior to the penetration, if that version of events was accepted in any way by the jury, such to create a reasonable doubt about the complainant’s version of events, then the accused would have been acquitted by the jury.

The fact of the matter is the question in this case was consent, not belief in consent. There was no middle ground, as this Court indicated to my learned friend, of what could be called a mistaken belief in consent – the sort of belief that is the subject of the decision in The Queen v Worsnop. As such, it is the respondent’s submission that this case ought not be granted

special leave as there is no reasonable possibility of overturning the decision of the Court of Appeal. May it please the Court.

GUMMOW J: Yes, Mr Kassimatis.

MR KASSIMATIS: The respondent falls into the same trap, with respect, as did the court below. It conflates the issue of applying vice with the issue of determining whether there was a substantial error. Insofar as Getachew is said to touch upon Worsnop, your Honours have in my learned friend’s materials a copy of Getachew [2012] HCA 10; (2012) 286 ALR 196. Your Honours will recall that was a case pertaining to the sole issue at trial having been one of penetration where consent entirely was irrelevant to that case.

At paragraphs [26] and [27] this Court said only that evidence of a belief in consent or an asserted belief in consent by an accused person meant that the Crown still had to prove beyond reasonable doubt whether there was an awareness that the complainant might not be consenting. That is not the error the subject of Worsnop. Worsnop raises the situation where a jury is directed to find or accept or be satisfied that the accused person had a belief in consent and then, as Worsnop decided, nevertheless to see whether it accommodates the state of mind of awareness as to the complainant having not been consenting.

Your Honours will see there was an exchange of supplementary submissions sent by the respondents and then - - -

GUMMOW J: Is this in reply?

MR KASSIMATIS: This is in reply. It is said that Getachew now does away with Worsnop. I have set out for the Court in footnote 9 of page 3 of the supplementary submissions filed in response to the supplementary submissions filed by the appellant the model direction which now is the subject of directions by trial judges in this State in rape trials where consent and belief in consent or awareness in consent is in issue. It is, with respect to those who drafted it, incomprehensible and it has occurred; it is a product of a perceived unnecessary, incorrect tension between Getachew and Worsnop. So, if anything, it should give this Court, in our respectful submission, another reason to grant special leave, but primarily this is a case about section 276. If the Court pleases.

GUMMOW J: Thank you. We will take a short adjournment.

AT 11.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

GUMMOW J: Paragraphs (b) and (c) of section 276(1) of the Criminal Procedure Act 2009 (Vic) each use the phrase “substantial miscarriage of justice”. This is a phrase used in the common form criminal appeal statutes in what might be said to be the different context of the proviso. However, this case does not provide a suitable vehicle in which to consider the question of the construction of paragraphs (b) and (c) of section 276(1), as the applicant has no reasonable prospect of success in disturbing the actual orders which were made by the Court of Appeal. Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 11.13 AM THE MATTER WAS CONCLUDED