CAZ v The Queen [2012] HCATrans 244 (5 October 2012)

Last Updated: 11 October 2012

[2012] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2012

B e t w e e n -

CAZ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 10.12 AM

Copyright in the High Court of Australia

MR P.E. SMITH: May it please the Court, I appear with my learned friend, MS K.M. HILLARD, for the applicant. (instructed Fisher Dore Lawyers)

MR W. SOFRONOFF, QC, Solicitor-General of the State of Queensland: I appear with my learned friend, MR J.R. JONES, for the respondent. (instructed by Director of Public Prosecutions)

FRENCH CJ: Yes, thank you, Mr Smith.

MR SMITH: Your Honours, Mr CAZ seeks an extension of time within which to file his application.

FRENCH CJ: Yes. Is that opposed, Mr Solicitor?

MR SOFRONOFF: No, your Honour.

FRENCH CJ: All right. Extension of time is granted. Yes.

MR SMITH: Thank you, your Honour. Your Honours, the special leave question in this case is whether the - - -

FRENCH CJ: Incidentally we have an amended application from you I think, is that right?

MR SMITH: That is so, your Honour. It related to whether it was an appeal against the whole or part of the judgment, and I think that is been clarified in the amended application, your Honours.

FRENCH CJ: All right. Well, the application is amended accordingly.

MR SMITH: Thank you, your Honour. The special leave question is whether the present offence of maintaining an unlawful sexual relationship in its present form in Queensland offends Chapter III of the Constitution, and the submission by the applicant is that there are a number of issues which flow from the wording of that section which deprive the applicant in this case of a fair trial including the lack of certainty about unanimity of verdict, secondly the lack of particularity and accordance of consequence of natural justice, issues concerning the standard of proof and the basis upon which someone is to be sentenced. Your Honours, in the matter we have forward for the Court’s consideration is a copy of the relevant section and your Honours may observe that this came into force in Queensland on 1 May 2003.

FRENCH CJ: Well, this his dealing with KBT, is it not, or a response to KBT?

MR SMITH: It was exactly so, your Honour, because KBT – this Court was stringent as to its directions concerning unanimity of decision and obviously enough the legislature to surmount those issues introduced this section.

FRENCH CJ: Well, now this is not an offence against the law of the Commonwealth so we are not concerned with section 80 are we?

MR SMITH: Well, I would say inferentially so, your Honour, because the District Court is still a court which exercises federal jurisdiction, albeit a State indictment was involved in this case. So, those principles discussed in Kable’s Case would come into play here so there would be - - -

FRENCH CJ: But, not through section 80.

MR SMITH: Perhaps not, your Honour, perhaps Chapter III in general terms rather than section 80, but the question - - -

FRENCH CJ: Now, can I tie down what you mean by “unanimity”? By unanimity you are not challenging the mechanism by which you can get a verdict of guilty based on a majority verdict of a jury. It is rather, as I understand it, that they are all coming to their verdict on the basis of the same findings of fact as to sexual offences, is that right?

MR SMITH: That is right.

FRENCH CJ: Has not the amendment to 229B, as it were, shifted the criterion of liability from what previously existed as interpreted in KBT into the unlawful sexual relationship as the factual question.

MR SMITH: That is right. Although, can I hasten to add – and this is where it is argued by us that there is error by Justice Fraser – his Honour focused on proof of the unlawful sexual relationship. But, subsection (3) – or subsection (2) – still requires proof as an element of an unlawful sexual act. So, that element still needs to be proved beyond reasonable doubt as part of that charge.

FRENCH CJ: More than one unlawful sexual act?

MR SMITH: That is right, which is then defined in subsection (4), your Honour, which, of course, removes this necessity of provision of particulars. Interestingly enough, subsection (10) strangely further defines unlawful sexual act as means an act that constitutes or would constitute if it were sufficiently particularised an offence of a sexual nature.

FRENCH CJ: What do you say to the statement at paragraph [47] in the judgment at page 101 of the application book?

MR SMITH: Your Honour, I understand your Honour’s point. Can I submit this, your Honour? There is an inherent contradiction between the power to deliver particulars under 573 and subsection (4) of section 229B. My argument would be that his Honour erred in paragraph [47] by thinking that the power under 573 remedied, somehow, the offence provision. Because if in a case the defence turned up and said to a trial judge, we would like particulars of the unlawful sexual act under 573, the Crown could quite rightly say, well, we refuse to give them – we do not have to because the legislature has told us we do not have to.

CRENNAN J: Your complaint was, was it not, that the particulars were too extensive?

MR SMITH: Well, your Honour, can I say this? Those particulars were never provided to the jury in this case. They were given to the trial judge. The appeal book contains the summing up of what the jury was told in this case.

CRENNAN J: There was no complaint, was there, about a failure to understand the case which was to be met – no complaint about that?

MR SMITH: There is none that I can see from the record, your Honour.

CRENNAN J: His Honour, at paragraph [45], does deal with the point you are raising. In paragraph [45], which is relevant to what his Honour says at [47], his Honour recognises the underlying premise of section 229B and recognises that there must be a slightly different approach in the application of the common law requirement for particulars.

MR SMITH: I accept that, your Honour. I might say that in the applicant’s submissions we have noted that there are a number of protections, as it were, for children and, particularly, young children in the giving of evidence. They were referred to, in fact, in our reply - - -

CRENNAN J: Yes.

MR SMITH: - - -at appeal book 136, at lines 20 down to 32. Acknowledging, of course, that very young children – as the complainants were in this case. I think one was aged between 2 and 5 for the first maintaining count. The second child might have been slightly older, for the second. But having said all of that, your Honours, the argument by the applicant is not merely about particulars in this case, in the sense of him knowing what case he must meet. It is really as to what the jury’s findings are as to reasonable doubt in terms of an element of the offence - - -

CRENNAN J: Well, I think his Honour deals with that at paragraph [53], which is to be found at 102 of the application book.

MR SMITH: His Honour does, and that is – sorry, your Honour.

CRENNAN J: Well, relevantly for present purposes is at least the first sentence there, and then the last sentence.

MR SMITH: His Honour does, and the applicant - - -

CRENNAN J: Where is the mistake in that reasoning?

MR SMITH: The applicant’s submission as to mistake in that regard is that what that passage does not contemplate in its terms is that the unlawful sexual act is actually an element of that charge of maintaining, and as an element, the element has to be proved beyond reasonable doubt, not just the offence – well, the offence does, of course, but for an offence to be proved, so do the elements.

So, what I respectfully submit about his Honour’s finding is that his Honour ought to have gone further to consider the essential proof of the element, which is the unlawful sexual act element, which as I have submitted is the one we complain about because of the lack of particularity provided to the jury in its consideration of proof. That was really my response, your Honour Justice Crennan, to that point you just raised with me.

Your Honours, I wanted to point out to your Honours the directions actually given by the trial judge to the jury on this question which raises starkly, I would submit, the problems which exist with this section and its present terms. The summing up on the relevant element, your Honours, starts at appeal book 36, and your Honours may see that at line 11, his Honour referred to this concept of “unlawful sexual relationship”. Then importantly, his Honour from about lines 22 to the bottom of the page and 37, line 1 to 22, went through the variety of types of acts which might be a sexual offence, and his Honour said at line 20:

that really gives you a snapshot, if you like, of offences of a sexual nature and they would seem to encompass all the allegations that are alleged here –

Then his Honour went at line 45 –

So all of you must be satisfied beyond reasonable doubt –

and he repeats that there –

the law is that it is not necessary for the prosecution to particularise any unlawful sexual act in terms of specific days upon which a particular unlawful sexual act occurred –

and his Honour went down to, at page 38, line 22, and then his Honour noted at 38, line 50 –

In this case the prosecution relies on the evidence of each child of a number of alleged unlawful sexual acts to establish that the defendant maintained a sexual relationship with each child. Neither child has been able to be specific about when or under what precise circumstances those acts occurred.

Then his Honour directed them about reasonable doubt concerning - - -

FRENCH CJ: Was that not the whole rationale for bringing in originally a maintaining charge?

MR SMITH: I am sorry, your Honour, I did not pick that up.

FRENCH CJ: Was that not the whole rationale, that is, for creating the offence of maintaining a sexual relationship?

MR SMITH: The rationale originally was, your Honour, prior to 2003, bringing an offence which contemplated three or more acts, and that led to a higher penalty because that was a more serious example of sexual offending against children.

FRENCH CJ: But it was directed also at difficulties that children have in recalling particular incidents, was it not? There was a report from the DPP, I think, which then informed the original formulation of the offence.

MR SMITH: Your Honour, that may well be right. I am not sure about that.

FRENCH CJ: We discussed it in a case with a judgment we handed down not so long ago, anyway.

MR SMITH: It might be BBH your Honour may be thinking about, certainly. But, of course, as I have just indicated the original provision as introduced would carry the requirement of proof of three or more acts, which had to be particularised. There was KBT, of course, and in response to that this new provision was brought in. New South Wales, for example, still retains the three or more acts provision. Other States and territories aside from Western Australia allow one or more acts, but there still must be particulars and KBT has not been undermined. Western Australia actually removes any requirement in procedure terms for the prosecution to provide particulars, so you cannot make a 573 application in Western Australia; it is removed.

Really the complaint, your Honours, when one looks at what the jury was told if they were not given that schedule Justice Crennan referred to that was provided to the judge, some of the jurors might have been satisfied because there was a large range of acts pleaded here of quite minor offences, others of quite serious ones. The defence was not to know what the jury found, in terms of this essential element and that, of course, led on to on what basis was Mr CAZ to be sentenced upon? I mean, he was ultimately given 12 years’ imprisonment, but what happens if the jury, unbeknown to him, found more minor acts in a more serious place; he did not know.

So, your Honours, what the applicant submits in this case and can I mention to your Honours and your Honours may have seen from the material that originally Mr CAZ was charged with particularised acts but there were hung juries on those counts. There was a retrial without any particularised acts. Your Honours may have seen he was acquitted of one count involving complainant X.

There were some directions given about the effect of the acquittal by the trial judge and we do not complain about those, but there was the retrial on these other charges. What the applicants submit, your Honour, is that the High Court in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 bears strongly on Mr CAZ’s case. Cheatle is in the authorities which had been sent down by my instructors, your Honours.

There was a discussion of the essential features of a jury trial and I rely particularly upon page 552 of the decision and, in particular, paragraphs 2 down to the first sentence after the heading “The Requirement of Unanimity: Principle”. I also rely upon page 553 - - -

FRENCH CJ: This was feeding into the way in which the guarantee under section 80 intersected with a provision of the Juries Act of South Australia in connection with a trial with an offence against the law of the Commonwealth. So what is the proposition you are seeking to extract from Cheatle that is relevant to this case?

MR SMITH: Your Honour, what I am seeking, if leave were granted for Mr CAZ, is to argue to this Court that these principles are an essential right to a fair trial in a State court.

FRENCH CJ: What is the particular principle? I thought you had already disavowed the notion that you have to have a unanimous verdict in the sense of every member of the jury assenting to it. So what is the proposition which you seek to extract from Cheatle?

MR SMITH: I think what I have disavowed, your Honour, was section 80, in particular, but what I was really submitting was that for a court to exercise proper judicial power under Chapter III and for a consequent fair trial there should be unanimity unless, of course, a statute, validly created, interferes with that. In Queensland we do, for example, have majority verdicts but there are strict safeguards involving those. For example, time periods, eight hours is the period before a majority verdict may be taken, and it can be either only 11 to one or 10 to one.

Those safeguards did not apply in this case, of course, because of the provision of 229B, your Honour. What I am really submitting is that these general principles as to unanimity, proper particularisation of counts, and I have S v The Queen in the authorities and the importance of particulars, in terms of natural justice, knowing what the jury is convicting somebody of, knowing what sentence should be imposed, they are all requirements of a valid trial and I am submitting to your Honours that the way - - -

CRENNAN J: I think we are getting back to the point that was put to you before that the Court of Appeal found that 229B does not preclude a direction in relation to the giving of sufficient particulars so that the accused person is in a position to understand the case put against him or her.

MR SMITH: I understand your Honour’s point and the finding by Justice Fraser but I would be repeating the same point that if the Crown submitted that we do not have to do this because of subsection (4) they would probably be on pretty solid grounds to object to providing the particulars because there is a contradiction in its terms between subsection (4) and section 573. The statute says they do not have to, so the question is, of course, can they be forced to and that is not - - -

CRENNAN J: That is a case for another day, I suppose.

MR SMITH: That specific factual matrix may be but that issue is, I would respectfully submit, an issue to be considered in this case in terms of whether Justice Fraser was correct in his determination at paragraph [47] on that topic.

CRENNAN J: Well, it seems a reasonable proposition that under section 229B the Queensland Court’s trying offences are still subject to the requirement to ensure that an accused person received a fair trial.

MR SMITH: Certainly there is no specific provision taking that right away. But, the applicant’s case really is that the effect of 229B achieves that unfortunately. That is really the point to be made.

FRENCH CJ: Incidentally you say 229B is invalid because of its incompatibility with Chapter III of the Constitution, is that right?

MR SMITH: That is right, your Honour.

FRENCH CJ: I mean, that is what underpins the whole argument.

MR SMITH: That is the underpinning, and it comes down to a consideration, your Honours, and I have included not only Cheatle, but Ng v The Queen [2003] HCA 20; 217 CLR 521 and AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, which cases set out those requirements of a valid and fair trial.

FRENCH CJ: Yes, all right, thank you, Mr Smith, I think your time is up.

MR SMITH: Thank you, your Honour.

FRENCH CJ: We will not need to trouble you, Mr Solicitor.

The applicant seeks special leave to appeal against a decision of the Court of Appeal of the Supreme Court of Queensland dismissing his appeal against convictions on two counts of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years contrary to section 229B of the Criminal Code (Q) (“the Code”).

He argues that section 229B of the Code is invalid in light of Chapter III of the Constitution of the Commonwealth because, in effect, it deprives a court hearing a trial of an accused, under that section, of the ability to provide procedural fairness in relation to the provision of particulars and because it authorises a jury to return a verdict where all members of the jury are not required to be satisfied about the same unlawful sexual acts underpinning the alleged relationship.

The Court of Appeal held that the section does not preclude the court directing the provision of sufficient particulars of the offence so that an accused person is in a position to answer the case against him at trial. It also held that section 229B requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. In our opinion, the decision of the Court of Appeal is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused.

We will now adjourn until 10.45 for the next matter.

AT 10.36 AM THE MATTER WAS CONCLUDED