Menk v. The Queen [2014] HCATrans 104 (16 May 2014)

Last Updated: 19 May 2014

[2014] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B4 of 2014

B e t w e e n -

ANTHONY IAN MENK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 MAY 2014, AT 11.04 AM

Copyright in the High Court of Australia

MR N.V. WESTON: May it please the Court, I appear for the applicant in this matter. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

CRENNAN J: Mr Weston.

MR WESTON: Thank you, your Honour. May the Court please, the application raises a narrow issue but, in my submission, a fundamental one and a matter of general applicability, namely, what degree a trial judge in directing a jury in a case substantially dependent upon identification evidence need not incorporate as part of his warning, in the Domican terms on matters of identification evidence, need not incorporate matters which may reasonably be seen as diminishing the reliability of the identification evidence - need not incorporate those matters because they may be “obvious to the jury”.

GAGELER J: So there is no dispute that the applicable principle was that stated in Domican?

MR WESTON: That is correct, your Honour, yes.

CRENNAN J: That is Domican v The Queen (1992) 173 CLR 555, and I think the relevant passage is to be found at 561 to 562?

MR WESTON: Your Honour, that is correct, and as I understand my learned friend’s written submissions, he accepts that is the applicable law. The case against the applicant was one which depended significantly upon the identification evidence of the complainant child. The incident seems to have been one that was of relatively short duration. The incident occurred in a darkened room at night and the principal act of identification was some words allegedly said by the applicant, “I so want to fuck you”, words which would have taken merely a second or two to have said.

GAGELER J: There was also the touch, was there not? There was also the feeling, the contact?

MR WESTON: Your Honour, that is correct. There is that evidence of the touch. The evidence about that is not as well developed as perhaps it might have been. It was not subject to any extended cross-examination by trial counsel as to the nature of the touch, that is, whether there was any similarity between that and what had occurred earlier that day in consensual acts. As was noted by Justice of Appeal Holmes in her dissenting judgment, the evidence of the touch was really more supporting evidence for the act of identification from the applicant’s statement “I so want to fuck you”. It was really supporting evidence.

There was also some other evidence which the Crown relied upon. There was some DNA evidence but it was conceded, I think, by the learned Crown Prosecutor, and certainly in the learned trial judge’s summing-up, that the DNA evidence was of really little probative weight. That can be found at pages 9 to 10 of the application book from line 20 on page 9 to line 5 on page 10. It would seem that on the evidence that the DNA material which was found on the complainant’s breast could easily be as a result of some innocent secondary transfer.

CRENNAN J: Now, we appreciate that you are relying on the dissenting judgment, but are you going to assist us by pointing to any error in the judgment of Justice Applegarth?

MR WESTON: Your Honour, I was going to refer the Court to Justice Applegarth’s statement at paragraph [46] of the judgment found at page 12 of the application book, where he concludes that:

the directions were sufficient to direct the attention of the jury to the fact that identification based on voice recognition depended on a few words being spoken to someone who was familiar with the appellant’s voice. Another judge may have framed the warning in different terms –

Then he gives an example. It is my submission that both Justice Applegarth and Justice of Appeal Muir have incorrectly applied the test in Domican, that is the test set out at pages 561 to 562, whereas part of the judge’s direction about identification evidence, it is necessary for the trial judge to isolate and identify those matters which may reasonably be seen as detracting from the reliability of the identification evidence.

The fact that the material may have been obvious and one may question whether in fact it would have been obvious to a lay jury is beside the point. Domican requires that the trial judge use the authority of his or her office in directing the jury to the specific matters as part of the identification warning.

Now, the error here, in our submission, is that both Justice of Appeal Muir and Justice Applegarth have taken the stance that the matters would have been readily apparent to a lay jury. This, in my submission, does not comply with the warning in the required direction in Domican v The Queen.

The upshot of that is this, that it would be open on the reasoning of his Honour Justice Muir and Justice Applegarth for a trial judge, in directing a jury in a criminal trial where a significant part of the Crown evidence is identification evidence to leave out or omit or fail to mention significant matters because they may appear somewhere else in the judge’s summing-up, or they may not occur to the judge as something which requires amplification because “they may be obvious”. As her Honour Justice Holmes pointed out, the fact that they may or may not be obvious is beside the point. They still need to form part of a judicial warning.

In the present case, where the evidence really came down to accepting beyond a reasonable doubt the evidence of the complainant child where she said she recognised the applicant from that brief oral statement of one or two seconds’ duration, under those circumstances, it was incumbent upon the trial judge to properly direct the jury in the terms of Domican v The Queen.

GAGELER J: So what precisely do you say the trial judge should have said?

MR WESTON: His Honour should have said, as part of the warning about the dangers of convicting on identification evidence, his Honour should have isolated the matters which tended to undermine the reliability of that evidence, particularly the very short period over which the words were spoken, the circumstances under which they were spoken – it was late at night, the child had been asleep, she woke up, the length of time that she had known the applicant before the event in question and, in my submission, reference also should have been made to the evidence-in-chief of the complainant child, where it was open for a properly instructed jury to draw the inference that the child was expressing some uncertainty about the nature of her evidence.

Now, as I submitted, under the circumstances where the evidence was in such short compass, it would seem surprising that a direction in terms of Domican v The Queen was not given. Furthermore, if I may draw this analogy, if it was not a voice identification evidence case, but one of visual identification, one would not ordinarily just say the complainant saw the accused at such and such a location – there would be strict warnings given about the circumstances under which the identification took place, the duration, and matters of that nature which may affect the reliability of the evidence.

Here, there was no reason why that could not have been done. It was not done and it is our submission that because it was not done, this lead to a miscarriage of justice. Furthermore, there is a question of general applicability here, because if the majority judgment is allowed to stand, it

means that effectively the Queensland Court of Appeal is saying that in criminal cases, a Domican direction may not, or need not be given, if matters were apparently obvious to a jury. Your Honours, unless there is anything further I can assist the Court with, they are the submissions of the applicant.

CRENNAN J: Thank you, Mr Weston. We will not trouble you, Mr Moynihan.

This application concerns a decision by the Court of Appeal of the Supreme Court of Queensland dismissing by majority the applicant’s appeal from conviction. The decision of the Court of Appeal is not attended by sufficient doubt to justify a grant of special leave to appeal. Nor does the application engage the interests of the administration of justice. Special leave to appeal is refused.

AT 11.15 AM THE MATTER WAS CONCLUDED