Collins v The Queen [2017] HCATrans 237 (17 November 2017)

Last Updated: 17 November 2017

[2017] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B34 of 2017

B e t w e e n -

JOHN COLLINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 NOVEMBER 2017, AT 10.38 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC: If it please the Court, I appear with my learned friend, MR M.J. McCARTHY, for the applicant. (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC: If it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Thank you, Mr Callaghan. The Court would be assisted by hearing from Mr Byrne.

MR BYRNE: Your Honours, the application is resisted on the basis that there is no general point of importance that has not recently been decided by this Court and further that there are insufficient prospects of success in focusing on the individual miscarriage aspect. The appellant went to the Court of Appeal with a particular complaint – or the appellant in that court, the applicant in this Court, with a particular complaint. There, he made brief reference to the application of the proviso. He was the first to raise the possibility of the application of the proviso and the proceedings in the Court of Appeal.

The prosecution, the respondent in the Court of Appeal responded to that particular complaint. It seems to me, if I may observe, that in the record book before this Court, it is not entirely clear, but it will be without objection if I inform your Honours that there was no reference to the proviso in the respondent’s written material in the Court of Appeal.

In oral argument the appellant there, applicant here, made no reference to the proviso and the respondent Crown touched upon it only in answer to a question by the Bench, which has been reproduced by the applicant in this Court at page 71 of the application book, paragraph 14. It is my submission that the appellant went into the appeal well aware of the possibility of the application of the proviso. He chose not to pursue the argument any further than it went in the written submissions.

Now, at the outset I accept that that was no doubt at least partly, but probably substantially because of the position taken by the Crown. It is, however, in my submission, noteworthy the court, even though it did not expressly invite further submissions, did not at any stage indicate that the proviso would not be considered.

This Court has held in Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272, particularly paragraphs 46 and 48 of the plurality and paragraphs 63 to 67 in the single judgment of Justice Nettle – I think your Honour was the other member of that Court – has held that the failure of the prosecution to rely on the proviso does not preclude its engagement, of course in a proper case.

There is a further requirement – I will come to that – but just dealing with this aspect at the moment, the concession relied on here by the applicant is an express failure to rely on the proviso. In my submission, it is nonetheless nothing more than a failure. It is my submission that the holding in Lindsay cannot be effected by whether the failure to rely on the proviso was deliberate or through oversight, nor whether the subject of express statement or inferred through remaining mute.

In my submission, it then follows that the holding or the submission or suggestion in other cases that the onus is on the prosecution can be an evidential onus only, not a persuasive onus. It is put against us that the onus cannot be discharged when there is an express non-reliance on the proviso. It simply does not follow from what was held in Lindsay.

The present application does not affect that aspect of Lindsay, as I say a recent judgment of this Court, and the applicant here has not submitted that Lindsay should be overruled or revisited other than perhaps in the sense of the observation made by Justice Nettle, which is reproduced in the reply at application book 85 – 84 really, paragraph 4.

GAGELER J: What about paragraphs 6 and 7, page 85?

MR BYRNE: That is the next aspect of Lindsay which I would classify generically as the notice requirement, your Honour.

GAGELER J: We might call it procedural fairness.

MR BYRNE: Procedural fairness, indeed. The formulation of the requirement in Lindsay, which is in terms of a requirement for the court to notify the parties that the proviso could be considered is in response to the particular facts that arose in Lindsay. That is why I commenced my submissions with a brief outline of how the proviso came to the Court’s attention in this matter.

In Lindsay it is sufficiently clear that there had been no reference to the proviso in the written material by either party. It was in the course of oral argument that the possibility of the proviso was raised at that stage, the fact that there had been no earlier reference by the parties, which in my submission was determinative in the holding in Lindsay talking about the requirement on the court.

Procedural fairness required that the parties be aware of the possibility of the application, and it was the applicant here who first raised the proviso in these proceedings. I accept that when this issue is in dispute it will often be a matter of fact and degree – indeed, it was in Lindsay – but I emphasise the point that the applicant was the one who brought it into these proceedings and was well aware of the possibility of the application. It was not pursued, but that was a decision made by counsel.

I might, if I may, now move to issues around the prospects of success and the issue of an individual miscarriage of justice. Your Honours will see from our material that we contend that there was in fact an error in the judgment of Justice Burns, who gave the leading judgment on behalf of the court. We take no issue with his Honour’s conclusion as to the effect of the law which turns upon whether or not the witness had accepted the truth of the prior account as well as accepting the making of the prior account.

My contention, however, is that his Honour, and thereby the court, erred at paragraph [61] of the judgment, at page 60 of the application book. The error was in finding that Ms M’s prior testimony at the committal hearing had become part of her testimony at trial. That conclusion was informed by the finding at the end of paragraph [59] on the same page.

Your Honours will see at the end of that paragraph that his Honour considered that the passages of the cross-examination which were extracted at paragraph [20] of his judgment demonstrated three things. The third is the one that we take issue with: that the witness had accepted that those parts of her earlier account were true. He then equated that to her evidence that they represented the best recollection that she could give to the court.

Could I take your Honours then to paragraph [20], which commences at page 41 of the application book. This is cross-examination in the trial, largely about the account given at the earlier committal hearing some seven years earlier. That chronology, in my submission, is important. The alleged offending, or the offending of which the applicant has been convicted, occurred, I think, in 2000. The committal hearing was in 2007 and the trial was in 2014.

GAGELER J: Are you saying there was no misdirection or are you saying that this feeds into the application of the proviso?

MR BYRNE: No, I am saying that there was no misdirection. My submission is that if leave were to be granted and this point of contention were upheld on the full hearing the appeal would inevitably be dismissed.

GAGELER J: So you are foreshadowing a notice of contention?

MR BYRNE: Yes.

GAGELER J: That is highly unusual. Go ahead.

MR BYRNE: In any event, if I may continue, your Honours will see in the second-last line of page 41 of the application book an acceptance that the witness’ memory was better in 2007 than it was in 2014. At the top of page 42 it was suggested that she had given evidence at the committal to say that the account by the complainant was to the effect that she, the complainant, thought she was raped – “I think I was raped” are the words.

There is then a passage where counsel has – the witness had said that that evidence had earlier been given at committal with the final acceptance at line 41. There is a further suggestion that the evidence went further combining the aspect of the account being “I think I have been raped” with the complainant also speaking about not remembering everything.

That was further reinforced in the next paragraph and then from that last paragraph on page 42 through to the end of the paragraph on page 43 there is a series of questions and answers which, in my submission, goes no further than to establish the witness’ state of mind as to what she, at the time, gave as a best recollection.

I accept that there is a need to read the cross-examination broadly where an answer implicitly accepts the truth of the earlier assertion it should be read that way but here where there are seven-year gaps between the offending and the committal and then a seven-year gap between the committal and the trial evidence the answers as they are said that she would say she gave a best recollection are distinct from the proposition that she gave the truth. The inference of truth may be much more readily accepted if it was more timely to the conversation to which it related, but that is not the case here.

The tenor of the answers when read as a whole are simply that she is unsure which is the truth and in those circumstances the finding by Justice Burns in the Court of Appeal at paragraph [61] as informed by the finding at the last part of [59] was an error. If I am correct in that submission, there was no misdirection and the appeal should have been dismissed in the Court of Appeal on that basis.

Nonetheless, the other aspect to be considered if this matter were to be granted special leave is the strength of the case. Now, I accept that that is a matter that this Court would need to go through in detail. It is, however, noteworthy that the complainant was unmoved regarding the essential detail notwithstanding what was described as comprehensive testing in cross-examination and notwithstanding the passage of time.

That, in my submission, is particularly significant where the issue in this trial was one of consent not of the actual conduct itself. Physical evidence - that did not go necessarily to the proof of consent but it was

consistent with the complainant’s account. For example, she spoke of the applicant using clippers to shave her pubic hair and her DNA was found on the blades of clippers found on the yacht of the applicant.

Furthermore, there was preliminary complaint and I make that submission recognising there is some dispute as to what was said to Ms M. There is no dispute as to what was said to the other two recipients of preliminary complaint evidence, Ms Johnson and Mr Haberfield.

His Honour Justice Burns considered and, with respect, in my submission, appropriately considered it was also important to recognise when considering the application of the proviso, as to determining the gravity of the miscarriage, that is, whether there had been a substantial miscarriage or not, that there was no suggestion to the complainant herself she had not testified in terms that “I had been raped” or words to that effect - the positive assertion, rather than a tentative assertion that “I think I have been raped”.

GAGELER J: As I read the proposed orders of the applicant at page 68, this Court would not be asked to consider for itself how the proviso would be applied, but rather as one alternative the matter would be remitted to the Court of Appeal to deal with that.

MR BYRNE: That is certainly - I am sorry, I did not mean to speak over your Honour.

GAGELER J: No, of course. I am just raising that for your comment.

MR BYRNE: That certainly is an order that is open to the Court. The submissions were made in case that alternative was not considered to be the appropriate one and the Court decided to deal with the matter itself.

GAGELER J: Very well, thank you.

MR BYRNE: They are my submissions, if it please the Court.

GAGELER J: Thank you, Mr Byrne. There will be a grant of special leave to appeal in this matter. What is counsel’s estimate of the time for hearing?

MR CALLAGHAN: It may be affected by the prospect of a notice of contention, but even so we would have thought no more than half a day.

GAGELER J: Mr Byrne?

MR BYRNE: I agree with that, your Honour. The notice of contention deals with a very finite matter of evidence that I have already covered today in a matter of minutes.

GAGELER J: Yes, thank you.

The Court will now adjourn to 9.30 am on Tuesday, 5 December in Canberra.

AT 10.54 AM THE MATTER WAS CONCLUDED