FMT v The Queen [2012] HCATrans 70 (9 March 2012)

Last Updated: 14 March 2012

[2012] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M63 of 2011

B e t w e e n -

FMT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 12.08 PM

Copyright in the High Court of Australia

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by Michael J Gleeson & Associates Pty)

MR G.J.C. SILBERT, SC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Boyce.

MR BOYCE: Your Honours, the point - - -

CRENNAN J: Now, we did notice that your application referred to four grounds raised before the Court of Appeal, but that your draft notice of appeal and your written submissions - - -

MR BOYCE: Only those two.

CRENNAN J: Only two.

MR BOYCE: Yes. They can be dealt with relatively briefly because the application does not raise a point of principle. The application raises the point simply of miscarriage and the grounds of that can be described relatively briefly. In this man’s trial he had evidence placed before the jury in circumstances where by and large the jury were going to be asked to decide whether they were satisfied of the charge being proven between two versions of events, the version given by the applicant in his record of interview as opposed to the version of the complainant in her VATE tape. The jury had before it evidence that over objection, namely that he bashed the applicant’s mother. The judge, when admitting the evidence - - -

CRENNAN J: That was elicited in cross-examination, was it not, in relation to credit?

MR BOYCE: In relation to credit. If I could go back. What happened is that we do not have committals in these sort of cases any more so to some extent counsel goes into the case, not completely flying blind, but they have to be careful. What we do have is an instance where the evidence is recorded and played to the jury pursuant to provisions in the Evidence Act and there is specific provision for that evidence to be amended or altered to accord with the judge’s ruling and so forth.

KIEFEL J: So an application was made to have it ruled inadmissible.

MR BOYCE: Yes, have it ruled inadmissible.

KIEFEL J: On the basis that it was evidence of propensity?

MR BOYCE: Yes, precisely.

KIEFEL J: But that is the point, is it not? I mean, its relevance was either it is propensity or her state of mind.

MR BOYCE: Precisely. The judge ruled it on the basis of state of mind, but the counsel made it abundantly clear to the judge that at that point in time the point was not going to be made that there had been - - -

CRENNAN J: Taken by the defence?

MR BOYCE: No, it was not going to be made. The judge said, “Nevertheless, I will rule it in on the basis of state of mind”. By that stage the horse, you might have thought, had bolted and that evidence could not go untouched and there was further cross-examination about it.

KIEFEL J: The mother’s evidence contradicted it in any event.

MR BOYCE: To some degree, yes.

CRENNAN J: Which Justice Neave took note of, yes.

MR BOYCE: But the point was with his Honour, when he made the ruling, said that he would give the protective direction and it was not given.

CRENNAN J: Did anybody remind him?

MR BOYCE: No, and were this the only - - -

KIEFEL J: But on – I am sorry.

MR BOYCE: Sorry. No, no, please, your Honour.

KIEFEL J: On the basis of the balance of the evidence the jury could not possibly have thought that it was propensity evidence, could they? It was only one event and there was no other evidence of violence and the mother’s evidence contradicted it. It could only relevantly have been evidence of state of mind, and there was a direction to that effect, was there not? Was it not put on that basis?

MR BOYCE: No, the judge told the jury that ultimately the evidence was relied upon by the Crown to establish a reason for delaying complaint. That is what the jury were told. Yes, the mother’s evidence did not embrace it, but that was the evidence then. It was not admittedly evidence of sexual misbehaviour in a case of alleged - - -

CRENNAN J: It is quite distinct from an uncharged act of that sort.

MR BOYCE: From that sort, of course. But a man who, as we are told, a man who is going to exercise the sort of control over a family environment that might lead to the sort of charged behaviour that came up in this particular case, would not the jury think it as plain as a pikestaff – I do not mean to deliver - - -

KIEFEL J: .....think that we have the sympathy of the jury?

MR BOYCE: A jury address - I am sorry, your Honour - as plain as a pikestaff that he was just the sort of man who would commit the offending. I am sorry if it does sound a bit like a jury address and I have slipped into it, but really that is what I was - - -

KIEFEL J: Try any method of persuasion.

MR BOYCE: But that is the concern, the effect that it had upon the jury. If that were the only thing that occurred in this trial I doubt whether we would be troubling your Honours, but it went on. We went to the following ground. In the prosecutor’s closing - - -

CRENNAN J: Just before you do, just to complete the point, at application book 107, paragraph 35 of her Honour’s reasons, her Honour notices or observes a number of matters about the evidence and the way in which the trial was run and, in particular that:

The Crown did not seek to make any link between the alleged offences and the evidence –

about domestic violence or violence to the mother.

MR BOYCE: They did not make the argument expressly that this was exactly the sort of man who would commit the sort of offending that was alleged. What they did say was this behaviour, on behalf of the applicant, explains the delay in complaint insofar as you, ladies and gentlemen of the jury, might think there is such a delay. But in the final analysis - and I cannot put this too highly, because her Honour Justice Neave, with the agreement of the other Justices, was prepared to accept at paragraph 34, at page 107 of the application book that “It would have been preferable” had his Honour given the direction.

With the greatest respect, if I may, I join with that observation by her Honour, but again submit that unfortunately it is at a higher level than simply being preferable, especially when looked at in the context of what came after because what came after was an address to the jury by the learned prosecutor - I think the phrase has been used by Justice Charles, as he then, the “cry to the four winds” of consciousness of guilt, admitted behaviour by the applicant in the bed of the complainant. Time and again the prosecutor says to the jury “This is strange behaviour. This suggestion by the applicant in his record of interview that he masturbated in the complainant’s bed is strange behaviour”.

KIEFEL J: I mean there might be questions about whether the evidence was probative really, of anything, but the question is what the jury could make of it and what directions were given.

MR BOYCE: Of course, but the point is, it is submitted, your Honour, and the point that was made in the Court of Appeal is that - - -

KIEFEL J: The evidence does not logically tell the jury anything, does it, about the charges? If anything, it just seems that he is rather odd.

CRENNAN J: I mean it is completely unrelated to the offences and the complainant was away at the time, was she not, visiting her father?

MR BOYCE: Yes, but unrelated to the offences. What troubled the court, but did not get over the line with the court was the suggestion – there was DNA evidence led and evidence of semen on the mattress.

KIEFEL J: The evidence was not put forward as propensity evidence and there was a direction against that, was there not?

MR BOYCE: Yes, but - - -

KIEFEL J: At least in the sense it was said to suggest any sexual interest in the complainant.

MR BOYCE: That is true, but the applicant is told in his record of interview that he has to give his DNA in the record of interview because, for obvious reasons, there is going to be a swab, and so forth. He says in that record of interview, as the prosecutor says in closing to the jury, “Well, I have masturbated on the bed”. The prosecutor says to the jury, “Now, that is strange behaviour, is it not, saying that”?

KIEFEL J: It is a strange remark.

MR BOYCE: Indeed. “Nudge, nudge, wink - - -

KIEFEL J: The question is what does it mean to the jury?

MR BOYCE: What it means to the jury and what troubled the court was that, as in the words of her Honour Justice Neave:

the jury might have considered that the applicant’s statement in his police interview that he had masturbated in the complainant’s bed was a pre-emptive attempt to explain why his DNA might be found on the mattress. On this view, it would have been necessary for the judge to give an Edwards direction, because the applicant’s statement could have been regarded as an implied admission of guilt.

If I could just stop there, your Honours. In my respectful submission, although the court was not with me below on that point, what really the prosecutor was saying to the jury was just that. This is strange behaviour that he would say he was masturbating on the complainant’s bed in circumstances where he knew that his DNA was going to be taken and in circumstances in this case where, lo and behold there is DNA on the - - -

KIEFEL J: But the question is how could it be misused by the jury?

MR BOYCE: Well, the misuse comes this way. The prosecutor is saying to the jury he is trying to distance himself. It is an implied admission. He is trying to distance himself from the offending exactly as her Honour described. If I might put it again:

I was initially concerned that the jury might have considered that the applicant’s statement - - -

KIEFEL J: Sorry, which paragraph are you reading from?

MR BOYCE: Sorry, paragraph 50, your Honour, at application book 113, joined in, I might say, by the other members of the court:

I was initially concerned that the jury might have considered that the applicant’s statement in his police interview that he had masturbated in the complainant’s bed was a pre-emptive attempt to explain why his DNA might be found on the mattress.

As this Court has said, in Dhanhoa’s Case [2003] HCA 40; 217 CLR 1, in particular at paragraph 60 at page 18 on a similar point:

However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect

of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury “may have affected the verdict”.

KIEFEL J: But Justice Neave goes on to say that nothing said by the Crown in:

closing address invited the jury to infer the applicant’s guilt from the fact that he might have told lies in his interview.

MR BOYCE: Nothing expressly, why dwell upon it? Why would you say to the jury this is strange behaviour, ladies and gentlemen of the jury - and I am speaking now as if it were the jury? Why would it be said?

KIEFEL J: But the jury would not infer from that that it is said that he is lying or that there is some consciousness of guilt.

MR BOYCE: Attempts to distance himself from the fact that it was found. Minds might differ, but I adopt, if I may, with respect, the characterisation of such evidence that was used by Justice Charles, I think many years ago, “cry to the four winds”. If it cries to the four winds, which is much the same way as saying if there is a reasonable possibility that it may have affected the verdict, then error must be shown and, in my respectful submission, in this case, that is what occurred. Again, if it had just been that, the application for special leave would be far weaker than it is. Whatever its strength is may be a matter of difference of opinion.

Nevertheless, in closing, your Honours, the man had a trial where the jury was told he bashed his wife, without warning, and they were, in effect, told by the prosecutor that he was lying to establish or to distance himself from evidence, again without warning. In my respectful submission there has been a miscarriage and unfortunately their Honours below, whilst troubled by the grounds, were in error not to find that there had been a miscarriage. Unless there is anything further, your Honours, those are the submissions.

CRENNAN J: We do not need to call on you, Mr Silbert.

There is no reason to doubt the correctness of the conclusions reached in the decision of the Court of Appeal below, nor do the interests of justice require the grant of special leave. Special leave to appeal is refused.

AT 12.25 PM THE MATTER WAS CONCLUDED