Patrick - a pseudonym v The Queen [2014] HCATrans 295 (12 December 2014)

Last Updated: 17 December 2014

[2014] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M51 of 2014

B e t w e e n -

LELAND KENNETH PATRICK – A PSEUDONYM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 1.50 PM

Copyright in the High Court of Australia

MR D. TERNOVSKI: If the Court pleases, I appear for the applicant, Mr Patrick. (instructed by Paul Vale Criminal Law)

MR B.F. KISSANE, SC: May it please the Court, I appear with MS S.M.K. BORG for the respondent. (instructed by Director of Public Prosecutions (Vic))

KIEFEL J: Yes, Mr Ternovski.

MR TERNOVSKI: Your Honours, my submission boils down to this. The Court of Appeal asked the wrong question and then answered that question wrongly. The asking of the wrong question is what raises the question of more public importance, and the wrong answer to the wrong question is a matter that, in my submission, should attract what is sometimes colloquially known as this Court’s visitation jurisdiction.

Your Honours, my submission is in three parts. First, I want to take your Honour to the wrong question and to do that I will first identify what I say the Court of Appeal should have done by reference to the decision of this Court in Baini, which should be in the joint bundle of authorities.

Now your Honours, in Baini, the majority of this Court, while emphasising that there is no single universally applicable test for substantial miscarriage of justice nonetheless provided some specific guidance on what, in particular, kind of case will amount to substantial miscarriage of justice. If your Honours turn to page 481 of the report, paragraph 32, the critical passage on which I rely appears about halfway down the paragraph:

But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt.

I will refer to this as the Baini – for simplicity – as the Baini test - - -

KIEFEL J: The other way of putting that is that the Court of Appeal would have to be satisfied that conviction was inevitable.

MR TERNOVSKI: Yes, those two things are - - -

KIEFEL J: But the real question here is whether or not that is really what the Court of Appeal determined.

MR TERNOVSKI: Yes. So, in my submission, the question is whether inevitable in the sense that was an acquittal open, and to answer that question the Court of Appeal was required to do that which this Court set out earlier in the same paragraph, which is:

the Court of Appeal must decide that question on the written record of the trial with “the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”.

So, in my submission, what the Court of Appeal was required to do was this – the Court of Appeal had to examine the record and determine whether the prosecution case was so strong that it was not open to the jury to entertain a reasonable doubt. That is what the Court of Appeal should have done, but the Court of Appeal, in my submission, did not do this.

BELL J: In this instance, this was a case that was dependent upon acceptance beyond reasonable doubt of the complainant’s account of each of the particular counts that were charged in the presentment. In addition to those particular counts, the complainant gave evidence of uncharged acts of sexual misconduct which were admitted without objection to place her particular allegations in context.

MR TERNOVSKI: Yes.

BELL J: Now, the admission – or that is, the statement made by the applicant – capable of being viewed as an admission, which was the subject of the complainant’s evidence, evidence that was not itself objected to - as I understand it, the complaint was the failure to direct the jury respecting the use they could make of the complainant’s evidence that she interpreted the father’s words as an admission of the history of abuse. Is that right?

MR TERNOVSKI: Yes, with the qualification that the direction should have been to disregard it because it was irrelevant.

BELL J: Indeed. Well, now, just analysing the matter, her account of her understanding that her father was admitting to a history of abuse could not establish any of the individual counts in the presentment and the judge’s directions made very clear to the jury that they had to be satisfied beyond reasonable doubt of those matters.

MR TERNOVSKI: Yes.

BELL J: So what the evidence was capable of doing was providing support for the fact that there was a history of sexual abuse. But that stood or fell on acceptance of the complainant’s evidence. In other words, this was a case that turned on the acceptance beyond reasonable doubt of the complainant’s account of the specific instances that were charged. In the background was her account that they formed part of a history of abuse, and evidence of her opinion that her father’s statement was an acknowledgement of that history of abuse. That is the background, is it not?

MR TERNOVSKI: Yes.

BELL J: Well, now, what is wrong with a conclusion that in those circumstances one would accept that her evidence established guilt beyond reasonable doubt?

MR TERNOVSKI: Well, there are two problems. One is that the Court of Appeal never undertook the exercise of examining the trial record to decide whether the evidence was sufficiently strong that it was not open to acquit. That is one problem. The other problem is that the Court of Appeal did not – what the Court of Appeal decided, and I say wrongly, but that is a subsidiary, that is a wrong answer point – what the Court of Appeal decided was that the directions were such that the jury’s interpretation of the apology would not have been affected by the receipt of the opinion.

The Court of Appeal did not decide whether the conviction itself was inevitable by examining the record. But I think, if I understand correctly what your Honour is getting to, is that it was neither here nor there because once you accept the credibility, once you accept the credibility of the witness, then it does not really matter whether you accept the interpretation of the opinion or not.

BELL J: When one – I am taking up with you the question of whether the conviction was inevitable in the sense that when one examines the record one would see that the complainant gave an account of each of the matters the subject of charge, and of a wider context - courts of appeal tend to respond to the arguments that are put to them. Would I be right in assuming that there was no argument put to the court that there was some demonstrable difficulty in or inconsistency about the evidence of the complainant?

MR TERNOVSKI: Only this – this is not in the application book, but my recollection is that the written submissions in the Court of Appeal on the issue of substantial miscarriage was simply confined to saying that if an error is made out in the circumstances of this case the Court of Appeal could not be satisfied that a conviction was inevitable.

BELL J: Well, that is the problem, is it not? There is no – to say a conviction was not inevitable is to perhaps read a little much into Baini. Baini says one looks at the record and one accepts the natural limitations that an appellate court has in doing that but, nonetheless, in circumstances where you do not suggest some inconsistency in the evidence of the complainant, or something of that character, what is - - -

MR TERNOVSKI: Why is there doubt?

BELL J: Yes.

MR TERNOVSKI: Right. Well, your Honours, the jury acquitted on some counts and they convicted on others. So, clearly, they did not accept the entirety of the complainant’s account. It is not a case where the complainant was accepted lock, stock and barrel, therefore one can say that it does not matter, the apology is neither here nor there. The complainant’s account was fully accepted. The apology – the significance of – let us suppose for the sake of argument that the jury decided on the basis of the complainant’s interpretation of the apology that the accused was referring to the offending. The question then is what impact does that have on the jury verdict? Well, it bolsters the credibility of the complainant, but it also helps to resolve any doubt that the jury might otherwise have had about the reliability.

BELL J: How does the complainant’s evidence of her interpretation of what her father said bolster her credit?

MR TERNOVSKI: Well, by reason of circular reasoning, which the jury were not warned against. But perhaps more pertinently, the question of reliability is in play, too. The jury were directed – and I can take your Honours to the relevant passages in the charge – on the dangers of memory lapsing and reconstituted memory so long after the events, your Honours. As I said, the jury did not accept the entirety of the complainant’s account.

So, in my submission, reliability was in play. The jury could, for example, accept that the complainant honestly believed the truth of the account that she was giving. If they then accept the complainant’s interpretation of the apology and that the apology was made, that removes any doubt that they might otherwise have about the reliability of her evidence. If they had otherwise doubted the reliability of that evidence – and it appears that they may have, because they acquitted on some of the counts - - -

KIEFEL J: Sorry, I do not quite follow that. How does her opinion of what the father said remove any doubt? I just do not quite see how the jury could possibly use it that way.

MR TERNOVSKI: Let us suppose, your Honours, that the jury believes that the complainant is honest, but thinks there is a reasonable doubt that the complainant might be mistaken. Then, let us suppose further that the jury takes into account, wrongly, the complainant’s interpretation of the apology. They then reason as follows – well, it may be, we have reasonable doubt that the complainant might be honest but mistaken. But we know – we accept her evidence the father apologised – and we construe that apology, taking into account what she says the apology meant, and we think she is best placed to understand it, taking that into account we conclude that the apology was referring to the abuse, therefore she was not mistaken about it, because the father apologised for it.

BELL J: This was a jury discriminating enough to convict on some counts and to acquit on others. Is that right?

MR TERNOVSKI: Yes.

BELL J: Now, the apology could never rise above an admission to having engaged in sexually inappropriate conduct with the complainant because it was in general terms. So by what process of reasoning do you say in relation to those instances in which the jury convicted they took into account acceptance of the complainant’s interpretation of the apology as an admission of general abuse?

MR TERNOVSKI: Well, in acquitting the applicant on some of the counts the jury must have doubted either the reliability or the credibility of the complainant’s evidence.

BELL J: Indeed, and followed the judge’s directions to be satisfied beyond reasonable doubt of the happening of the events charged.

MR TERNOVSKI: Yes. My understanding that the rationale that was likely to underlie much of the acquittal is contrary evidence of opportunity. So where there was evidence of – there was no opportunity the jury mostly, with the exception, I think, of one count – acquitted. So the chain of reasoning is this. We think that the – we, the jury, think that the complainant is honest but might be mistaken about the whole thing.

To resolve the doubt about her being mistaken about the abuse taking place by using the apology, because the apology, taking into account her interpretation of what it meant, amounts to an admission that the abuse did take place. Once that is there, once you accept that the abuse has taken place, the task for the jury is then to determine whether – let me just take a step back. Once you accept the apology and that the abuse has taken place, you can disregard – you reject the applicant’s account and the record of interview that nothing happened.

KIEFEL J: But her opinion about what her father said reflects only an ultimate conclusion from the jury’s perspective. So when the jury come to weigh it, as they must, given that is in the evidence and as you say they would be considering what use it would be, they have two choices. They can either accept it as correct, in which case he – the father – had something to apologise about, or they can reject it. Now, which path they are going to take must necessarily depend upon the view they have formed about her evidence otherwise. That must be the case, because it stands only as a conclusion about matters to which they have already been directed, as Justice Bell has pointed out.

MR TERNOVSKI: Your Honours, let us assume that the jury reasons with perfect logic, and had jury reasoned with perfect logic then of course - - -

KIEFEL J: That is why judges give directions to them about the steps in which they are to undertake their process of reasoning and how they are to attend to the evidence in relation to each matter.

MR TERNOVSKI: Well, your Honours, two answers to that. One is that I accept that if the jury reasoned with perfect reasoning, this evidence was irrelevant, as the Court of Appeal has found, but the trial judge did not think so and neither did, of course, two members of counsel on each side. So there is no reason to suppose that the jury was necessarily cognisant of the irrelevance of that evidence. Secondly, the jury were invited to reason from the whole of the evidence. The jury were invited to reason, firstly, you look at the complainant and you set aside beyond reasonable doubt of each count, and then you look at the apology.

The apology was in the mix as an admission of the abuse. The chain of reasoning that the jury might have taken is very simple. We look at the witness and we accept what she said, that the apology took place, step one. Step two, we might otherwise have doubt about what the apology meant, but we accept her view that the apology was referring to the offending. Step three, we then use that to resolve any doubt we might otherwise have about whether generally the abuse happened. Once we conclude that the abuse has happened, we reject the applicant’s account in the record of interview and then the only task left is to ascertain on a count-by-count basis - - -

KIEFEL J: I think you are attributing to the jury a far more complex process of reasoning than would normally be undertaken.

MR TERNOVSKI: Well your Honours if I am – if the process is more robust, then the answer is simply that the apology and interpretation of the apology is there in the mix. But, your Honour, this really – all of this argument really goes to the second part of my submission which is the wrong answer to the wrong question. The first part of the entire question is, in my submission, wrong, because what the Court of Appeal should have done is examined for itself the strength of the prosecution case, taking in – and the relevance of, in my submission, how this particular error might have affected this particular jury goes to whether the jury verdict can be taken into account as part of the record.

But what the Court of Appeal should have done in any event is to review the entirety of the trial record, assess the strength of the prosecution case, and determine on the basis of that strength or weakness – whether the conviction or an acquittal was open on the evidence and the Court of Appeal simply did not undertake that exercise. The Court of Appeal never asked – does not refer to the question is an acquittal open. It states a different question. The Court of Appeal never goes through the evidence, never goes to the record, never undertakes the analysis that would have been required to answer the right question - - -

KIEFEL J: Well, you mean, that does not appear from the reasons. You do not know whether they did in fact go to the record. The reasons do not disclose a detailed analysis of the record, that is what you say.

MR TERNOVSKI: Yes, well, the reasons do not disclose an attempt to assess the strength of the prosecution case in order to determine whether an acquittal was open. The reasons are entirely silent on that.

KIEFEL J: But so far as concerns the correct question, asking whether the admission of the irrelevant opinion would have made any difference to the outcome, how different is that from determining whether or not a conviction was inevitable?

MR TERNOVSKI: It is different, in my submission, because asking whether the admission of the opinion made a difference to this jury is specifically what the majority of this Court decided in Baini, at paragraph 33 at page 481 of the report, as:

speculation about what a jury, this jury, or a reasonable jury might have done but for the error.

KIEFEL J: I think you could put it in more objective terms - could not make a difference to the outcome on any view.

MR TERNOVSKI: Well, you could, your Honour, but in my submission, the correct process is this. The question of the Court of Appeal - - -

BELL J: You say the correct process is the process set out in Baini in the passage to which you have directed us.

MR TERNOVSKI: Yes, and then you may or may not - - -

BELL J: What point of principle do you submit the Court needs to settle, if any?

MR TERNOVSKI: The point of principle is this. Baini on a plain reading, in my submission, suggests that the process is as I have outlined – you ask whether the conviction is open and then as part of that you may or may not take into account the jury verdict. The Court of Appeal substituted for that question a different question which is asking whether admission of this piece of evidence could have affected the jury. That is a different question and, in my submission, that question, under the correct Baini process, is a subsidiary one that goes to whether the jury verdict can be used as part of the record. So that is the question of principle.

KIEFEL J: I think otherwise - I think as you indicated at the outset, you are applying, really, in the visitation aspect of this Court’s special leave - - -

MR TERNOVSKI: I am. These are my submissions, your Honours.

KIEFEL J: Thank you. We do not need to trouble you, Mr Kissane.

The conclusion reached by the Court of Appeal is not attended by sufficient doubt to warrant the grant of special leave and the administration of justice does not require it. Special leave is refused.

The Court adjourns to 9.30 am on Tuesday, 16 December in Canberra.

AT 2.10 PM THE MATTER WAS CONCLUDED