Bonython-Wright v The Queen [2014] HCATrans 47 (14 March 2014)

Last Updated: 14 March 2014

[2014] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A29 of 2013

B e t w e e n -

DAVID THOMAS BONYTHON-WRIGHT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 MARCH 2014, AT 11.01 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR T.W. COX, SC, for the applicant. (instructed by Rodney Oates Lawyers)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: I appear with MS L.J. DUNLOP appearing for the respondent. (instructed by Director of Public Prosecutions (SA))

BELL J: Yes, Ms Shaw.

MS SHAW: The applicant submits that the question of principle deserving of a grant of special leave is where a jury is.....guilt from a rejection of what is said to be the effect of the defence case, namely that all the prosecution witnesses, including initial complaint witnesses, are engaged in a criminal conspiracy to lie, is that another example of the kind of error that results in an unfair criminal trial that was the subject of the judgment of this Court in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1. The South Australian Court of Criminal Appeal held that this was a proper way of reasoning to the accused’s guilt and that it was properly endorsed by the trial judge.

Can I take the Court to the application book at page 56, and in particular at paragraph 62, to the judgment of his Honour the Chief Justice, with whom their Honours Justices Stanley and Blue agreed? At paragraph 62 in the Full Court judgment his Honour the Chief Justice set out parts of the prosecution address, in particular the submission to the jury that someone had been lying to the jury on “a grand scale” and, secondly, continuing over onto page 57, in particular:

This isn’t a fantasy. Let’s call a spade a spade. There is no grey area here, is there? Either [WP] is a liar –

who is a complainant –

[NW] is a liar –

who is a complainant –

[CB] is a liar –

who was an initial complaint witness in relation to WP –

[Ms MC] is a liar –

who was an initial complaint witness in relation to NW –

and [KA] is a liar –

who was a witness who gave evidence of having observed cannabis being smoked at the time of the alleged offending, which was disputed, and the applicant’s case in relation to [Mr A] was that he was mistaken as to the time, namely that the accused had admitted smoking cannabis at a later time. The submission is made that, in effect, the defence case was that either these five witnesses were engaged in a conspiracy:

a criminal conspiracy in fact, to pervert the course of justice by falsely accusing a wholly innocent man, or [the accused] is a hypocrite and a charlatan.

Effectively, the argument was that it was improbable that five key prosecution witnesses would all lie, and it was improbable that the two complainants and the two initial complaint witnesses, and a fifth prosecution witness would have engaged in a criminal conspiracy, and that was posed to the jury as the reasoning path to the ultimate question of guilt or innocence.

BELL J: Well, now, Ms Shaw, can I just take this up with you, your special leave questions are framed in terms of the trial judge impliedly commending a process of reasoning that you submit is illegitimate. When one looks at the reasoning of the Court of Appeal at application book 58, paragraph 68, a portion of the trial judge’s directions are extracted. You can have no complaint with that.

MS SHAW: That is so.

BELL J: Well, Ms Shaw, there is a degree of subtlety about the notion of impliedly commending an illegitimate process of reasoning. The trial judge correctly directed the jury at paragraph 68 in the Court of Appeal’s judgment, did he not?

MS SHAW: Yes, but we say that relates to a different question. In other words, the endorsement by the trial judge of this process of reasoning occurs in the application book at paragraphs 135 and in particular 136. In other words, the passage that is - - -

BELL J: I am sorry, whereabouts?

MS SHAW: If your Honours go to page 24 of the application book.

BELL J: Page 24, thank you.

MS SHAW: The endorsement by the trial judge that is approved by the Court of Appeal, which I will come back to, at paragraph - - -

BELL J: This is in the summary of the way the parties put their respective cases. That is the complaint, is it?

MS SHAW: This is in the summary of the prosecution address?

BELL J: Yes.

MS SHAW: Yes.

BELL J: Well, this was a case in which the evidence of each of the complainants was admitted in relation to the count respecting the other. Is that so?

MS SHAW: That is so.

BELL J: So that essential to the prosecution case was the contention that it was improbable that each complainant would have made allegations of a similar character.

MS SHAW: Yes, that is so.

BELL J: So that the prosecutor, in dealing with his case, was seeking to meet in advance the obvious suggestion that it may be that there had been some concoction or something of that nature.

MS SHAW: Yes. That is certainly what was permissible. However, this address - - -

BELL J: That is very different to Palmer, Ms Shaw. We are not dealing with an impermissible line of reasoning which goes, “You, the accused, cannot point to a reason for the complainant to lie; ergo, one would accept the complainant”. Here one is saying that the prosecutor is putting a case that depends, in part, on improbability reasoning.

MS SHAW: Your Honour, if the prosecutor’s submission was limited to the two complainants and the need to rebut the possibility of concoction or collusion then that, in our respectful submission, would be correct, but that was not the prosecutor’s submission. The prosecutor’s submission was that not just the two complainants, but all the prosecution witnesses, that is, all the witnesses he called must - the defence case was not that the two complainants had concocted but that every single prosecution witness was involved in a conspiracy to pervert the course of justice. That was the defence case and that was a false version of the defence case.

The defence case certainly was that the Crown had to exclude the risk of concoction between the two complainants who knew each other, who were involved, allegedly, in one of the offences, who had gone to the police together in 2009. What we submit is by in joining in that conspiracy initial complaint witnesses who do not depose to the facts in issue and in respect of whom the accused cannot challenge because their evidence goes only to evidence of consistency of conduct and in joining another witness who went to, essentially, a relatively peripheral issue – the cannabis issue – by saying that, in fact, the defence has to show not just a conspiracy between the two complainants, but a conspiracy between all of the prosecution witnesses, but if the defence do not show that, then the accused is lying through his teeth, that suffers from both the defect that Palmer, in our respectful submission, addresses, namely, presenting the accused with a hypothesis that is called upon to answer but he has no ability answer.

In other words, the accused has no ability to establish that all of the prosecution witnesses were engaged in a conspiracy to lie. Certainly, it is proper, as your Honour has pointed out, for the Crown to pre-empt a submission that the two complainants may have conspired. But, in our respectful submission, to include all of the prosecution witnesses wrongly, rebuts concoction and more than that, sets up a case where the reasoning path to guilt, as it was put by the prosecutor more than 20 times, is a choice – a choice, therefore, between the two camps - all of the prosecution witnesses in a conspiracy or the accused is lying through his teeth.

It is that submission that was endorsed by the trial judge. The direction that your Honour has referred to at paragraph 114, page 22 of the application book, deals only with the fact that the accused does not have to show a motive to lie in relation to the separate complainants. But that was not the accused’s case. The accused’s case was certainly there was a risk of concoction, the motives were fairly light, as his Honour pointed out. The challenge here is to his Honour’s endorsement of this reasoning process of effectively misstating the defence case and then showing how he can knock it down because it is improbable.

GAGELER J: Is the argument you now put precisely the argument that was put to the Court of Criminal Appeal?

MS SHAW: Yes.

GAGELER J: That was addressed by the Chief Justice at paragraphs 68 through to 70.

MS SHAW: At application book?

GAGELER J: Application book 58 to 59.

MS SHAW: It is addressed at paragraph 65 at page 57 of the application book.

GAGELER J: I see.

MS SHAW: Page 57 at paragraph 65 where his Honour says in the last three lines:

The prosecutor’s arguments were based on the improbability of the hypothesis that the complainants and the complainants’ witnesses –

That is the critical point –

conspired together to falsely implicate the appellant, and of the alternative hypothesis, that WP and NW colluded over the fabrication of allegations and set up their false stories by complaining to different witnesses decades before they reported the appellant to the police. The arguments were quite proper. They did not in any way put an impermissible gloss on the onus of proof.

BELL J: I think the matter that Justice Gageler is raising with you is did you agitate in the Court of Appeal the proposition that the evidence of the witnesses as to complaint had been admitted on a limited basis and was being used by the prosecutor impermissibly?

MS SHAW: Your Honour, yes. In fact, it was ground 1.3 of the grounds of appeal at page 39 of the application book and the extracts from the submission are set out in the applicant’s reply, in particular at page 95 of the application book. Your Honours will see that “My attack on that” - if your Honours go to line 20 at page 95 of the application book:

My attack on that reasoning is because it wrongly can lead to giving testimonial value to those witnesses’ evidence if it’s perceived to be supported testimonially -

So the submission was specifically – and further at page 94, the complaint about the “grand conspiracy”, at line 45, that included another initial complaint witness, JW:

‘She is part of the grand conspiracy’ –

So the complaint was that this – at page 94, line 12, that this is effectively giving a testimonial capacity to witnesses whose evidence was admitted for the limited purpose of initial complaint. The way in which – if I can take your Honours to the relevant passage from the summing-up by the trial judge which endorses the prosecutor’s reasoning and occurs in circumstances where there is no antidote of a direction as to the onus of proof or a correct application of the onus of proof, nor is there a direction anywhere in the summing-up that directs the jury that they cannot convict unless they negative the accused’s evidence on oath as a reasonable possibility in accordance with –

BELL J: Well, now, Ms Shaw, were these directions, the absence of which you now complain about, the subject of any application?

MS SHAW: They were not, your Honour, but in our respectful –

BELL J: Yes, all right.

MS SHAW: Neither were they in Palmer v The Queen, and, indeed, in Palmer v The Queen the Court dealt with the summing-up where the judge had given proper directions in relation to correcting the erroneous possibility or the possibility that a jury might reason erroneously from the inability - - -

BELL J: Ms Shaw, Palmer was a very different case. What is the matter that you are directing our attention to now in the summing-up?

MS SHAW: At application book page 24 it is the concluding paragraphs of the summing-up. At paragraph 135 his Honour says:

I shall only refer briefly to the addresses of counsel.

His Honour then summarises the prosecution address in this way -

Mr Norman submitted to you that someone is telling deliberate lies, and if it is [Mr P] and [Mr W], what a lie they are telling. They must have begun it 28 years ago, that other people had joined in the lie, especially [CB] and [MC].

In that respect, his Honour is effectively putting to the jury, firstly, the two camps is an admissible approach go the resolution of the discharge of the – and the standard of proof. “Someone is telling deliberate lies”, that reflected the two camps. The second submission that he is endorsing -

They must have begun it 28 years ago, that other people had joined in the lie, especially [CB] and [MC] -

who are two of the initial complaint witnesses whose evidence was not admissible testimonially -

And then Mr Norman said if it is a lie, what a performance, what performances, we saw here in the courtroom when they gave evidence some days ago now.

BELL J: When you say the evidence of the complaint witnesses was not admissible testimonially, what you mean is it was not admissible to establish the truth of the representations constituting the complaint, as distinct from not admissible to establish the matters of fact such as that on a particular date the complainant spoke to them. Is that so?

MS SHAW: That is so.

BELL J: Yes, all right.

MS SHAW: They had a – the exception to the hearsay rule, the South Australian provision of 34M of the Evidence Act picks up the common law limited use - - -

BELL J: The point I am raising with you, Ms Shaw, is it may not be helpful to speak of the evidence not being admissible testimonially when features of it, including the date on which the conversation occurred, was admissible.

MS SHAW: Yes, I agree, testimonially in the sense that it does not speak of the facts in issue between the accused and the prosecution.

BELL J: But in this submission that the prosecutor developed, it was not being used for that purpose.

MS SHAW: In our respectful submission, it must have been because it necessarily assumes there is cross-admissibility between the prosecution witnesses in that those witnesses do confirm the evidence of the complainants as to what they say happened, not in relation to whether or not they made a report.

BELL J: Not as to the truth of the matter of what was reported, but as to the fact of report.

MS SHAW: That is so, but the unfairness is that the accused cannot answer a conspiracy that includes those witnesses and it was never his case, and to suggest that unless he does he is lying through his teeth is the impermissible reasoning process that we say calls upon him to answer something that he cannot answer and to that extent diminishes the standard of proof. It is unfair. It is an illegitimate reasoning process that wrongly

enhances the credibility of the complainant witnesses through witnesses whose evidence was not admissible to enhance their credibility.

In that sense it, we say, goes to the heart of the trial because the notion of two camps is also contrary to the choice reasoning that this Court in Murray v The Queen held was contrary to the correct application of the standard of proof. Therefore, in our submission, for the Full Court to confirm, as it did at paragraph 70, that the summing-up was quite proper in that respect, we say is an important matter warranting special leave. That is at page 59 at paragraph 70. If the Court pleases.

BELL J: Thank you. We do not need to hear from you, Mr Hinton.

The application does not raise a question of law of general importance. Nor do the interests of the administration of justice generally, or in the particular case, warrant a grant of special leave. Special leave is refused.

AT 11.23 AM THE MATTER WAS CONCLUDED