Pelly v The Queen [2015] HCATrans 294 (13 November 2015)

Last Updated: 17 November 2015

[2015] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2015

B e t w e e n -

RONALD DANIEL PELLY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 NOVEMBER 2015, AT 10.53 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR A.J. CULSHAW, for the applicant. (instructed by Ben Sale Solicitor)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS F.J. McDONALD, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Ms Shaw.

MS SHAW: Your Honours, the three questions worthy of special leave relate to the conduct of the prosecutor at the trial of the applicant. The first question is whether his conduct breached the accused’s right to silence. The second question is whether his conduct breached the principle in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, and the third question is whether his conduct breached the clear intent of section 13A of the Evidence Act (SA) in relation to special arrangements for witnesses.

The first question worthy of special leave is whether it is permissible for a prosecutor to allege that the accused’s evidence is a recent invention, in the present case in the time that the accused was served with the police statements where the accused has exercised his right to silence before trial, or is it a breach of his right to silence and prohibited.

FRENCH CJ: Well, is not any suggestion that an accused is lying an accusation of an invention?

MS SHAW: It is an accusation of invention, but it is not an accusation that imports an invention at a particular period in time. The important distinction is that if you accuse the witness, whether it is an accused or another person, of fabricating at a particular point in time, the necessary inference is that before that point in time, they had a different memory of events. Invention at trial – that is, if it is suggested somebody made something up, or is making something up – does not focus on any point in time that implies that before that point in time their memory or their recall was different.

FRENCH CJ: Well, I am looking at paragraph 11 of the respondent’s submissions at page 189 of the application book that:

Any allegation that an explanation of an event is invented carries with it an allegation of invention occurring after the event. This being so, all invention is, in a sense, recent where recent is taken to mean after the event –

et cetera. I am just concerned that this line of argument gets us into a kind of micromanagement of prosecutorial addresses that does not address a real problem.

MS SHAW: Your Honours, we submit that what really underlies the challenge, or the impropriety, of this attack is the fact that the only basis for the inference or the allegation of invention after the receipt of the police statements – the only basis for that, and the only reason that the prosecution could make that allegation, was because the accused had exercised his right to silence. That is in contrast, for example, to the facts in Petty’s Case, where the accused had made a statement prior to trial, and the test - - -

KEANE J: Ms Shaw, exercising the right to silence means not speaking to the police. In cases where recent invention arises, it arises in a field of discourse whereby the party against whom the suggestion is made can then rebut the suggestion by previous consistent statement. The right to silence has nothing to do with the instructions given by an accused to his lawyers or her lawyers so that they have a statement that can rebut the suggestion of recent invention. If your argument on this point were right, that whole body of learning would never have been developed because every suggestion would have trenched upon the right to silence.

MS SHAW: Your Honour, with respect, we submit that the learning is clearly applicable in any case where the accused has not exercised his right to silence right up to trial. The right to silence does not cease once you have exercised it to the police. This was made plain in this Court’s judgment in X7. It is an essential tenet of the accusatorial system that an accused - - -

KEANE J: But you are trying to suggest that the right to silence includes not giving instructions to your own solicitor as to your account of the events. The right to silence has nothing to do with the instructions people give to their own lawyers.

MS SHAW: Your Honour, that is not the suggestion, with respect. The suggestion is that what occurs or what the result must be if the prosecution have no foundation for alleging.....other than the time at which the declarations are obliged to be served and the accused has exercised his right to silence. The consequence of that would then necessarily give rise to the need for an accused to waive his privilege to introduce his consistent statements perhaps that he may have given before the service of the declarations. But, in fact, an accused is not required to give instructions before the receipt of the declarations.

The accusatorial system necessarily requires that an accused is not called upon to answer before, at any stage, even at trial that right to silence persists at trial and it cannot be used against him. So, the real complaint of the applicant here is that the right to silence that the accused has from beginning of arrest until trial is the only reason or the basis upon which the allegation of concoction or cooking up a story after the declarations is premised.

So, in essence, as this Court said in Petty’s Case, the right to silence is combined with the obligation on the Crown to serve declarations to convert it effectively into a trap for the accused because if he has exercised his right to silence from this day forth, the effect of it will be that the prosecution can use that exercise of the right to silence to put to him that at any stage prior to trial, as in this case, after receipt of declarations he cooked up a story.

Therefore, the accused has effectively exercised his right which the law gives him but it has enabled and is the only basis upon which he is then challenged that his account is a recent invention. The issue of what he said to his lawyer or what he said to friends arises only because that allegation is made founded solely on the fact that this person has exercised his right to silence and solely on the fact that the prosecution have fulfilled their obligation to serve declarations. There is no other foundation. That is why we - - -

KEANE J: The questions that were asked did not involve any suggestion to the effect that you have never said this before. There was no suggestion – no question to the effect that this account that your client gave had never been given by him before. That simply was not what was in issue.

MS SHAW: But, your Honour, the reason that that was not put was because the accused had exercised his right to silence and no account had been given. The jury were never directed that the accused had exercised his right to silence and was not required to give a version. Therefore, it meant that the inference that he cooked up his story after he got the declarations, in order to give to the jury an innocent version of events, necessarily implied that before he got the declarations, his memory, or his true recall, was of his guilt.

So, implicit in what occurred was the reliance on the accused’s silence, that is, he said nothing before he got the declarations. He said nothing after he got the declarations until he stepped into the witness box. So, the prosecutor, without a direction from the trial judge that this was his right to remain silent was able to say to the jury that the accused had an advantage, that is, an advantage, effectively, over the prosecution because he, in fact, remained silent.

FRENCH CJ: In this respect, you rely on the passage from the prosecutor’s address to the jury which you have extracted at paragraph 16 of your submissions, I think – 157.

MS SHAW: Yes, and at application book 205 – the extract from the.....context. So, your Honour will see at line 20 of application book 205:

Bear in mind the accused had the advantage of knowing every piece of the prosecution evidence before this trial came up; did he try to fit up a story, is that why his explanation seems a little too planned?

FRENCH CJ: But, the logic of the argument is – your argument is that the prosecutor characterises the accused’s evidence as a construct in response to the prosecution case disclosed by the statements which are delivered to him.

MS SHAW: That is so. If your Honours go back to page 202, your Honours will see that that is precisely the manner in which he takes him through this proposition, that is, he commences this passage, in particular, by:

Before this trial started you had all of the witness statements accessible to you.

Then he takes him through the different witness statements, the DNA and he knew what Monica was alleging before she came into the courtroom:

You had access to her witness statement . . .

You also knew what Dr Dayman was going to say –

and that he was going to say that you strangled her. He said he had not read it. Then, at 203, line 3 of the transcript:

Because what I suggest you have done is just make up a story to fit in with all of the prosecution evidence you knew was going to be presented.

It is being alleged that what he has done is to just make up a story to fit in with all the prosecution evidence.

KEANE J: Why cannot a prosecutor do that?

MS SHAW: Because, your Honour, it is not proper to cross-examine a witness, particularly the accused, without a foundation.

KEANE J: Why cannot you say, “Look at this document. This is the complainant’s evidence. Your evidence is tailored to fit with as much of that evidence as possible.” What is wrong with that?

MS SHAW: Your Honour, because that statement, number one, is not before the jury and - - -

KEANE J: Well, let us just say he does it by reference to her evidence.

MS SHAW: But, your Honour, because here what it means and implies is that before he got that statement, before he read that statement, his account was different and yet the accused - - -

KEANE J: Not his account. There is no suggestion that he said something different to anybody. There is no suggestion in what has been put that he has told a different story.

MS SHAW: Your Honour, not that he has told the story, but that he knows the story is different and he knows the story is different – the implication is he knows the story is different because the different story that is implied by this cross-examination is his guilt.

KEANE J: It has been put to him that he has lied and lied in a deliberate way. Is that something that cannot properly be put by a prosecutor to an accused?

MS SHAW: No, your Honour, that is not the applicant’s submission. The applicant’s submission is that this relies, firstly, on the obligation of the Crown to serve statements. It is not an advantage. It is not to be called an advantage to the accused. It is actually their obligation to serve them. Secondly, it relies on the fact that because the accused has said nothing, the prosecutor, merely because of that, has made that allegation.

If I can refer your Honours to what his Honour Justice Brennan said in Petty & Maiden in terms of the breach where in Petty & Maiden on the facts the accused had said something and the Court was concerned with whether or not the right to silence had been infringed, the difference between the majority and the minority was in reality that the accused’s earlier statement had waived his right to silence and, in my view, the statements of principle are no different.

If I can take the Court to the passages that are set out in the judgment of Petty in the judgment of his Honour Justice Gray, in particular at page 110 of the application book, the passage from the judgment of the plurality - of the majority in Petty, at paragraph 41 where, in the bolded passage, their Honours said:

Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.

The only basis for inferring that this account was a new invention or is otherwise suspect is because he had not raised it before.

KEANE J: But, Ms Shaw, in the cross-examination it was not suggested that he had previously been silent.

MS SHAW: Your Honour, it was suggested though that he commenced to fit a story from that point in time. That is the story - - -

FRENCH CJ: Let us suppose that he had given one exculpatory account to the police in interview before charge and then his evidence is different but still exculpatory and is a kind of response to the prosecution case, so the prosecutor asks him whether he has not – asks exactly the same series of questions here without even referring to the prior exculpatory statement to the police. In other words, what I am wondering about is whether an inference of prior silence is a necessary consequence of this line of questioning.

MS SHAW: In that case, your Honour, it is not because that was the distinction that this Court drew in Petty, that the accused had waived his right to silence by giving an account and therefore he could be tested in relation to that previous account. But here this accused has maintained his right to silence and so the nub of the applicant’s contention is that, but for the exercise of his right to silence, this allegation could not have been made.

If the accused had told the police and given exculpatory account, then the issue of whether or not it was consistent or inconsistent and why it changed obviously was available for the prosecution to explore. But here, as in the passage from his Honour Justice Brennan that I wish to refer to at paragraph 43 of the judgment of Justice Gray, was that in the bolded passage:

It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent.

So he had a right to be silent before he received the declarations and if he had a right to be silent before he received the declarations, it is wrong, in

our respectful submission, contrary to principle, to allege that because he was silent or as a result of that silence it therefore means there is an inference that he fitted up his story based on the declarations. It in essence uses his right to silence against him.

FRENCH CJ: Okay, Ms Shaw, we had better move on to your other grounds.

MS SHAW: Your Honours, in relation to the second point, in our submission, it raises whether it is permissible for the prosecutor to suggest to a jury that by discrediting a motive for a complainant to lie that was never advanced by the accused, the complainant’s evidence is by inference true.

FRENCH CJ: You say there was a false attribution to the defence of a case about the complainant’s motive to lie which was then used to attack the credibility of the defence case?

MS SHAW: That is so. As his Honour Justice Gray found, there was nothing put by the counsel for the applicant to the complainant as to any reason why she lied in her evidence. There was nothing led from the accused and, therefore, on the evidence, there was nothing raised suggesting that the accused – that the complainant – had a motive to lie in her evidence.

So what her Honour Justice Bampton appears to have done is adopted the Crown submission, in effect, that because – and her judgment is at page – her reasons are at 144 to 145 of the application book – that because the.....to the complainant - through his counsel that the complainant had a reason to hit the accused - that is, the accused’s case was that she was unhappy with the amount of money that he had offered her and she became angry and that was the reason for her conduct - the reasoning of her Honour Justice Bampton does not unpick what is the actual motive to lie that is addressed.

The only foundation that was argued before her was that because the accused put to Monica, the complainant, that she was angry about not receiving all of the money she hoped for and, therefore, attacked the accused, that that could then be attributed to the accused as a motive for the complainant to lie in the witness box and the - - -

FRENCH CJ: Thank you, Ms Shaw, I think your time is up. We have your written submissions and we have seen those. Yes, Mr Solicitor.

MR HINTON: If the Court pleases. With respect to the first of the draft grounds of appeal, it calls for this Court to apply settled principle to the facts of this case. It does not then raise a question of law of general public importance. As my learned friend identified, the relevant principle has long been settled – in fact, settled in 1991 in Petty & Maiden.

We embrace where – or where I anticipate your Honour the Chief Justice was going – and that is that a line of questioning in this case and the submission in address built upon it do not carry with them the necessary implication or inference that, had the position been different, the accused would have spoken to someone before he received the prosecution statements or before giving evidence in his trial. In other words - - -

FRENCH CJ: I wonder whether there is not - Mr Solicitor – an overarching issue, perhaps raised by the other grounds in the draft notice of appeal, arising out of what one might call, neutrally, the enthusiasm with which the prosecutor approached his task.

MR HINTON: If the Court pleases - - -

FRENCH CJ: And informing grounds 2 and 3 in particular.

MR HINTON: The overarching issue, your Honours will find, is the subject of ground 4, application book page 152, but nowhere is there a submission made with respect to it. That is one difficulty.

FRENCH CJ: But it comes out a bit in the address in relation to the “motive to lie” issue, does it not, and also the personal courage demonstrated by the complainant’s argument; that is ground 3.

MR HINTON: I cannot argue against that, your Honour. Your Honours will see that in the court below the various grounds of appeal targeted other phrases which at times, I think, the majority said were better if they were not said. However, at page 148 of the application book, that overarching exuberance, if we want to call it that – your Honours will see under the heading “Conclusion”. Justice Bampton considers all the complaints regarding the conduct of the prosecutor here in combination and arrives at the conclusion that there would not have been a miscarriage of justice caused by that exuberance.

FRENCH CJ: If that approach, reflected in particularly the remarks dealt with in grounds 2 and 3, reflects a significant misapprehension of the role of the prosecutor, is that a matter of importance to the administration of justice which should concern this Court in any event? There was clearly a difference of view between – we have a divided judgment, of course.

MR HINTON: With respect, obviously the role of the prosecutor is of general public importance across the breadth of the country. But in my submission, in a series of cases, various aspects of it have been dealt with. You go back to Apostilides and Whitehorn about the prosecutor’s role calling witnesses. You look at Justice Heydon’s judgment in Libke about cross-examination and the prosecutor’s role. There is a litany of references throughout judgments of this Court dealing with the role of the prosecutor and, indeed, here, Justice Bampton relies upon those in the earlier part of her judgment in making general comments about the role of the prosecutor.

I refer your Honours to page 129 of the application book. You will see references and footnotes given – Libke I mentioned. I mentioned to your Honours the authority of Whitehorn and Apostilides. Under the heading “Final address”, her Honour again refers to the various well-known statements, in my submission, as to the obligations of the prosecutor.

I cannot hide behind the fact that this prosecutor became excited, but there were many complaints in the court below as to the various stages in the trial where his excitement got the better of him. They were looked at individually, as your Honours will see, by Justice Bampton, and then, as I have taken your Honours to, collectively. The question was asked, has this excitement, this exuberance given rise to a miscarriage of justice?

The answer was given – no; an answer given against the background of no complaint being made by defence counsel and the trial judge making no attempt to correct. It is quite possible that in that room, where the jury was, that excitement became so clear, so palpable, that to say anything about it would not have helped anybody.

If the Court pleases, the context in which the trial was conducted, in my submission, is a very important consideration to that overarching problem to which your Honour the Chief Justice refers. I can refer to the other three – well, two – substantive arguments if the Court wishes me to, or if the Court is concerned about the overarching problem itself, then I have made my submission.

FRENCH CJ: Do you have anything further you wanted to say on 2 and 3?

MR HINTON: I can say with respect to 2, just quickly – we set out in our written submissions at application book page 192 - and I apologise for the print - it would appear that we use a type that often copies ever smaller than it comes out on our printer – but your Honours will see at page 192, paragraph 23, cross-examination of the complainant, that cross-examination engaged in in the dying stages of the cross-examination. You will see there is there put – you may call it emotive, you may call it a reason, you may call it an explanation, whatever – for the complainant’s complaint.

When we move to what the prosecutor says, we see that he is dealing with that passage of cross-examination. She chose immediately upon, in effect, being done out of her money to lie. That has to be the logical corollary of what he has put to the complainant. Once she chooses to do that, not only does she lie immediately when she walks out into the street and meets her driver, but on the telephone, the recent complaint almost made immediately, she lies to the police, she lies, and so on, and so on, and so on.

So, the prosecutor’s submission does not offend the principle in Palmer. Rather, he is dealing with the improbability of her engaging in this charade when one considers that it commenced almost immediately. That was dealt with by the majority at application book page 147, paragraph 201 - your Honours see that last sentence:

The comments focus on the improbability of what happened between –

We embrace that. We say, with respect, that was correct. Back to the breach of section 13A(12), that, your Honours will recall, is a provision that prohibits anybody from making use of special arrangements made for the giving of evidence or enlisting those special arrangements in some way to enhance the evidence of the person for whom those arrangements are made.

Here, with respect, in the context of this trial as a whole, the submission of the prosecutor - we have set out at page 209 of the application book and appears in one line, line 29 your Honours will see, in my submission, even if that is a breach, it would not be such as to give rise to a miscarriage of justice. If it did it would readily be explained away as no substantial miscarriage of justice. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Ms Shaw.

MS SHAW: Your Honours, in our respectful submission, what is important in this case as compared, for example, to what the Court was addressing in Libke is that the matters that are the subject of our point at grounds 2 and 3 were arguments that were put that invited the jury to follow an impermissible path of reasoning.

So by setting up a straw man in relation to motive, the jury were – the prosecution initiated a jury considering the fact that the complainant did not have a motive to lie and thereby wrongly and in contravention of Palmer invited the jury to enhance her credibility..... His Honour in his summing-up did not direct the jury in relation to the use or non-use they could make of motive evidence at all, so this path of reasoning – impermissible path of reasoning was left for their consideration.

KEANE J: Did not the jury have to decide whether the complainant or the accused was lying about the events that occurred in the hotel room because it was not a case where someone could have been mistaken?

MS SHAW: Or the jury could have decided that they were not sure where the truth lies. That was another option. But the issue of motive, the importance of Palmer’s Case is that it is not a basis upon which they can make the choice between the accused and the complainant. They are not entitled to take into account the fact that the accused is unable to come up with a plausible motive for the complainant to lie. That is prohibited.

KEANE J: But the accused put a motive – the accused put a motive that she was angry at him for dudding her on the extra money.

MS SHAW: Your Honour, that was his motive for or his explanation for why he was defending himself at the time of the offences, at the time of the events. So there were two charges: one of rape and one of assault causing harm. His defence in relation to the second charge was that there was dispute over money, she got angry and attacked him and that is why he ejected her from the motel room.

That motive for ejecting her is irrelevant, we submit, and cannot be injected into a case for the defence that the defence case was she had a motive to lie in her evidence because she did not get enough money, and to transpose and attribute that to the defence when the defence certainly chose not to and did not put it forward, and for only one reason, and that was to debunk it and demonstrate that in this case in fact there was no motive that the accused could show for the complainant to lie. That, in our respectful submission, brings into the jury’s consideration impermissibly the absence of the motive to lie.

The second point, of course, is a breach of a statutory provision. The prosecution was prohibited and the accused’s fair trial required that the jury not take into account that the complainant was giving evidence behind a screen. Rather than that, not only did the prosecutor argue to the jury that the screen was a symbol of her courage and that it demonstrated that her terror in relation to the events of the night were, if you like, brought into her evidence - - -

KEANE J: He did not actually say the screen was a symbol of her courage, did he?

MS SHAW: No, your Honour, I accept they were not the words he said, but he used the screen to focus on the presumption of guilt that she – relying on, if you like, assuming guilt that she is courageous because she is a woman who has been raped and here she is with the accused within a few metres of her barely concealed by a screen. That was the gist of it.

So, however it is described, it is using the screen in a way to comment on her credibility, and that is a breach of the statute. His Honour reminded the jury of that submission when he summarised the prosecution arguments and his Honour reminded the jury to have regard to all the prosecution arguments and there was not one of them that his Honour considered should be rejected. Even the final - - -

FRENCH CJ: But he did give a direction, did he not, in connection with 13A?

MS SHAW: He did give a direction, but then he reminded the jury of the prosecutor’s submission. In other words - - -

FRENCH CJ: But they were correctly warned - Justice Bampton says not to draw any inference adverse to the accused from the fact the complainant gave her evidence while there was a one-way screen placed between her and the accused and not to allow the use of the screen to influence the weight to be given to her evidence.

MS SHAW: That is so, but he also, in effect, reminded them that they were entitled to have regard to her courage in giving evidence. So, in essence - - -

FRENCH CJ: That is a different issue, it seems to me - the question of reference to her courage and whether that is some kind of bootstrap argument in relation to her credibility.

MS SHAW: It might well be bootstrap, but to invite the jury to reason, based on that bootstrap approach, about the trial judge directing them - - -

FRENCH CJ: What I am saying is the complaint is really not about the screen; it is about the logic.

MS SHAW: It is about the logic, but it is also about breaching the legislation which prohibits any comment by the prosecutor or anybody in effect in relation to the screen other than to direct the jury not to take it into account.

FRENCH CJ: Thank you, Ms Shaw.

MS SHAW: Thank you, your Honour.

FRENCH CJ: The Court is of the view that notwithstanding the complaints about the prosecutorial approach, which were dealt with by the Court of Appeal in this case, the prospects of success are not such as to warrant the grant of special leave. Special leave will be refused.

The Court will now adjourn to reconstitute.

AT 11.32 AM THE MATTER WAS CONCLUDED