Hamilton (a pseudonym) v The Queen [2021] HCATrans 19 (11 February 2021)

Last Updated: 15 February 2021

[2021] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S146 of 2020

B e t w e e n -

HAMILTON (A PSEUDONYM)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 1.58 PM

Copyright in the High Court of Australia
GORDON J: Consistent with the usual practice the High Court has adopted in relation to COVID, I will announce the appearances, if I may.

MR H.K. DHANJI, SC appears with MR D. R. RANDLE for the applicant. (instructed by George Sten & Co)

MS T.L. SMITH, SC appears with MS B.K. BAKER for the respondent. (instructed by Director of Public Prosecutions (NSW))

GORDON J: Ms Smith, we thought we might hear from you if that is possible. Thank you.

MS SMITH: Your Honours, the respondent contends that there is no merit in either ground of appeal, nor is there any general question of principle that arises. The first ground of appeal concerns the proper constructions of the directions given in this unusual case. It is common ground between the parties that there is no universal rule that the absence of an anti‑tendency direction will give rise to a miscarriage of justice in every case where there are multiple complainants. The issue between the parties is whether the CCA was correct to conclude that in the circumstances of this case and in view of the cases run by the Crown and the case run by the defence and the particular directions that were given in this case, there was not a sufficiently material risk of tendency reasoning such as to give rise to a miscarriage of justice.

GORDON J: Can I ask a number of questions?

MS SMITH: Of course, your Honour.

GORDON J: It seemed to me on the review of the directions given that there was an anti‑tendency direction given in respect of the uncharged acts. There was an anti‑tendency direction given in respect of the evidence led to rebut the good character evidence that was adduced by the applicant. There was a Markuleski direction which seemed to have one aspect to it in the sense that it had a direction about separate consideration of each count on the indictment, but did not have what I will call the second limb to that direction, then a direction there be separate consideration of each count on indictment – so the first bit was fine – but failed to say to consider that count only by the reference to the evidence that applied to it. Is that not a problem?

MS SMITH: Your Honours, the Crown would submit it is not a problem in this particular case because of the subsequent directions that were given, namely in particular the Murray direction that was given. When one considers that second limb or component that your Honour has referred to in the context of this case, you can see why the defence may not have wanted it, because it had the potential to, at that point in the summing‑up, detract from the way in which they had run their case from the outset. The second limb ‑ ‑ ‑

EDELMAN J: Do you accept that this is a case where credibility was fundamental?

MS SMITH: Yes, your Honour, I do accept that.

EDELMAN J: And that the natural inclination, if one might put it that way, without an anti‑tendency direction would be for tendency evidence to be relied upon?

MS SMITH: If the jury were not given a direction which would prevent them from going down that path and, whilst it not being given explicitly in this case, the effect of the separate consideration direction that was given in combination with the Murray meant that they would not have engaged in that impermissible process of reasoning because the effect of the Murray direction was to confine them and remind them when reasoning towards guilt that they needed to actually scrutinise the evidence of a single complainant because the Crown case relied solely or substantially on the evidence of the single witness.

GORDON J: So, can I just take that matter up with you which is the Murray direction which appears, as I understand it, at application book 38 at paragraph 24. Is it the Crown contention that that form of direction given in those terms meets the failure to give what I will call the second limb of the Markuleski direction?

MS SMITH: Yes, in this particular case because you could see that in relation to the way in which the defence had run their case, which was a very unusual one in the circumstances of this kind of matter because it was the defence instigation that resulted in a joint trial. Having got a joint trial and what they wanted, they actually set about convincing the jury that they would look at the whole of the evidence and in doing so they would join the dots and, therefore, on each count would have a reasonable doubt and acquit. Their case was that this was ‑ ‑ ‑

EDELMAN J: They can run that case. They can run that case and they can also ask for an anti‑tendency direction or expect one.

GORDON J: They are not inconsistent positions, are they?

MS SMITH: Well, the Crown would say there was some potential for such a direction to undermine the case that was being run.

EDELMAN J: That is why the direction needs to be carefully crafted.

MS SMITH: The Crown would say that in this particular instance having the benefit of being involved in the trial, defence counsel having secured the direction that he wanted, in particular, the Murray direction, did not feel that there was a need for that further direction, explicit direction, and it did have, the Crown would submit, the potential to distract from the way in which he had run his case. If I can return to that missing component of the separate consideration direction, which is suggested that they have to consider each count only by reference to the evidence that applied to that count, what it would be saying is, for example, when considering the count in relation to child one, the jury would be limited to considering the evidence of child one and any evidence that directly supported it. For example, in relation to one of the child one’s counts there was the observations of the mother.

However, this additional component would potentially undermine the primacy of the defence case which was to invite the jury to consider all of the evidence when considering each count on the indictment in order to arrive at a not guilty verdict in relation to that count and every other count. So, that is the inconsistency between that second component of the separate consideration direction and this defence case that had been tactically decided to be run but then instigated a joint indictment for the purposes of and which was run very forcefully.

In relation to the anti‑tendency direction if it was explicitly given, similarly, it would have involved telling the jury that they could not reason that because the applicant committed one or more of the offences he was more likely to have committed the others. That is, they would have been told that they cannot reason from the acceptance of the honesty and accuracy of one child’s evidence that it established a tendency on the part of the accused to commit the offences of the type charged and use that conclusion in deciding whether another complainant was honest and accurate.

Now, such a direction contemplates the jury examining the evidence of one complainant separately and finding that one complainant was telling the truth. It involves the acceptance of an individual complainant’s evidence. It is predicated on a basis that is entirely inconsistent with the case that was run by the defence and the way ‑ ‑ ‑

EDELMAN J: So, your submission, effectively, is that a corroboration type defence is entirely inconsistent with an anti‑tendency direction – sorry, a collaboration, not corroboration.

MS SMITH: Thank you, your Honour. It is not inconsistent in every instance, but it could be viewed that in this particular case given the way that it had been run, and the common motive, because all of this was ‑ the case was run on the basis that the common motive came from the mother, that it had all been orchestrated by the mother, and that is this particular case. So, it all stems from there and that is why it involves all of them.

There is not some separate component to this. It is alleged that the mother was behind it all, she has put all three of the children up to it, and therefore the anti‑tendency direction, in this particular case, had the potential to undermine such an approach, particularly where counsel had secured a very favourable direction. He had secured the Murray direction in respect of the complainant’s evidence, and if your Honours see, he even secured it to extend so far as to the mother.

EDELMAN J: What is the strongest point you say, in the application book, where there is a suggestion a forensic decision is made not to seek an anti‑tendency direction?

MS SMITH: The Crown would submit that it is set out in the findings of the majority of the Court of Criminal Appeal at paragraph 120, which is at application book 114. It is the finding that is consistent with what the Crown has outlined, and that is, at the beginning of that paragraph:

The combined effect of the Murray direction and the absence of a tendency direction ‑

So, there was something to be gained from its absence:

The combined effect of the Murray direction and the absence of a tendency direction meant that the Crown case in respect of each count was confined to having the jury being required to accept that the relevant child was honest and accurate in their evidence and to scrutinise each of their evidence carefully. In contrast, counsel for the applicant was free to, and did, invite the jury to “join the dots” and conclude that each of them (and their mother) were lying.

So, what it allowed for is the Crown case to be contained, properly contained, to a consideration of an individual complainant, and the need to scrutinise that evidence to a standard of acceptance beyond reasonable doubt of reliability, but it did not in any way impede upon the case that was being run for the defence. Namely, do not ‑ ‑ ‑

EDELMAN J: It certainly would have impeded upon that case, once the evidence of one child is accepted, would it not? Once the evidence of one child is accepted beyond reasonable doubt, then without any anti‑tendency direction, the defence case would have a real potential to collapse.

MS SMITH: Well, the Crown would say again there was work to be done with the Murray direction in that respect, because the jury was carefully told that they were to contain themselves to the individual complainant, and to scrutinise the evidence of that individual complainant in order to arrive at a conclusion beyond reasonable doubt of reliability.

EDELMAN J: Do you say that that carries with it an implication that you must not look at the evidence of other complainants when you are scrutinising the individual complainant?

MS SMITH: Yes, that is the Crown’s submission, that that is the implication that it carried with it, and therefore ‑ ‑ ‑

GORDON J: Can I ‑ sorry, just keep going ‑ ‑ ‑

MS SMITH: No, your Honour, please.

GORDON J: I was going to ask you whether we should address the second proposed ground of appeal which deals with the abdication of the trial judge’s responsibility for drafting these directions.

MS SMITH: Yes, your Honours. The second proposed ground contends that the Court of Criminal Appeal erred in failing to have regard to “the significance” of the trial judge having largely abdicated his responsibility for the directions in concluding there was no miscarriage.

The applicant’s submission is that the significance that the majority of the CCA did not recognise was that the failure of defence counsel to seek a particular direction may, yes, indicate counsels’ views as to a need for a direction, but it is normally considered – I am quoting here from the applicant’s submissions – in the unstated context that the trial judge also saw no need for the direction.

The Crown’s short response to this is that the CCA had full regard to the unorthodox and inappropriate approach by the trial judge with respect to the drafting of the summing‑up.

GORDON J: It was drafted by the Crown?

MS SMITH: It was drafted by the Crown in consultation with the defence counsel. So, it was a joint effort, so to speak, that was initiated. The judge actually sent out an initial document that had some basics in it, as I take it from the transcript, and then the Crown did some drafting in combination then with the defence looking at it and seeing where agreement was reached and identifying areas where there was not agreement in order to raise with the trial judge. That was the process that actually occurred.

The Crown says that, in particular, this particular argument or premise for this ground was not one that was advanced in the Court of Criminal Appeal. So, it is hardly surprising that the CCA did not place significance on it because it was not one that was expressly advanced in the terms that are currently being advanced before this Court.

GORDON J: Well, there is a complaint that the Court of Criminal Appeal did not give it enough weight, but it was clearly addressed in paragraph 97 of Justice Beech‑Jones’ judgment.

MS SMITH: Yes, and that is what the Crown relies upon as the strongly expressed judgments, that the task was one that the summing‑up could not be delegated. But the CCA had that at the forefront of their minds. They had that at the forefront of their minds whilst ultimately deciding what needed to be decided and that was the question of whether there was a miscarriage of justice that had arisen from the directions that were actually given.

Their Honours were acutely aware, as per Beech‑Jones, as your Honour says, at 97, Justice Adamson at 82 to 84, which is application book 104. They were acutely aware, given those observations, of the inability to draw any comfort from the trial judge’s view as to the adequacy of the summing‑ up in reaching their conclusion.

The delegation of the responsibility, or the partial delegation of the responsibilities, did not preclude their Honours from considering the failure of defence counsel to seek a direction as supporting the conclusion that they had already reached that there was no miscarriage of justice in all the circumstances.

The Crown says that they were well aware of what had occurred in this case. It is at the forefront of their mind. They were well aware they could not draw upon it in terms of getting any comfort from an independent assessment by the trial judge and therefore they focused on the task at hand, which is, we need to see, given these directions, whether there was a miscarriage of justice, the Crown would submit. So, the Crown submit that there is actually no merit to this second proposed ground of appeal.

GORDON J: Do you wish to add anything further, Ms Smith?

MS SMITH: Your Honours, I just would like to add, if you would permit me to return to the first ground briefly, if I have another minute or two, to reinforce the point that the Crown was trying to advance about the fact of the CCA’s observation at 120 about the combined effect of the directions.

The strength of the present directions was that it allowed all the evidence to be utilised in respect of a not guilty verdict. The directions expressly recognise the defence case of a motive to lie that was common to all complainants and it allowed the jury to consider all of the evidence in assessing that case.

However, if the jury rejected that as a reasonable possibility, the defence position was, nonetheless, protected, because in order to reason towards guilt the jury had been told that if they are going to reason towards guilt, they are clearly required to scrutinise the particular individual child’s evidence carefully. And it was only once they are satisfied in respect of the honesty and accuracy of that particular child that they could then return the guilty verdict.

Now, it has been put against me that that Murray direction has, at the end of it, a reference to looking to see whether there was other evidence to support, or whether it was supported by any other evidence, which is at application book 39, at line 25. The Crown submits that this part of the direction needs to be viewed in the context of the directions as a whole. It suggests that it would have been an invitation to reason, by way of tendency reasoning. The Crown says that is not so, that when you actually read the direction as a whole, in the context of what had already been said, importantly, earlier in the Murray direction at application book 38, line 15, the trial judge told the jury, importantly, child one was:

the only witness to the events that make up the counts on the indictment for her allegations, other than count 3 where her mother says she saw the accused in her bed.

And further, child five:

was the only witness to the events that he describes –

and child three was:

the only witness regarding his allegations.

Now, viewed in this immediate context, and with the statement that the Crown case relied solely or substantially on the evidence of a single witness, and having outlined those matters, the jury would have readily understood that when the judge invited them to consider whether there was supporting evidence, he was referring to direct evidence, such as the mother’s in respect of count 1, that he had already referred to. He clearly
was not referring to the unrelated evidence of the other two complainants, having told the jury, expressly, that this was a case where the Crown case relied solely or substantially on the evidence of a single witness, a single complainant for each count.

GORDON J: Thank you, Ms Smith.

MS SMITH: Thank you.

GORDON J: Now, Mr Dhanji, can we ask you one question, please.

MR DHANJI: Of course.

GORDON J: Is your ground 2 really and truly independent of ground 1?

MR DHANJI: It is related, but it is independent in the sense that there is a reasoning process which obviously ultimately leads into the determination of the concern raised by ground 1, and it is an aspect of that reasoning process, so it is certainly related.

GORDON J: Is it related, or is it part of your argument as to why there was an error in relation to ground 1?

EDELMAN J: In other words, if you were not successful on ground 1, would ground 2 add anything independently?

MR DHANJI: Independently, no, your Honour.

EDELMAN J: Is there any reason why the points that you make in relation to ground 2 cannot be made just as submissions supporting ground 1?

MR DHANJI: No, your Honour.

GORDON J: Thank you. Thank you, Mr Dhanji. There will be a grant of leave limited to ground 1 of the proposed grounds of appeal. Is the estimate one day? Less than a day?

MR DHANJI: Less than a day, your Honour.

GORDON J: But more than half a day.

MR DHANJI: Perhaps, yes, a bit more than half a day.

GORDON J: Thank you very much.

MR DHANJI: To be safe. Relatively, I have lost one ground already, so it is relatively confined.

GORDON J: I would not put it that way, Mr Dhanji. Thank you very much. You are excused.

AT 2.19 PM THE MATTER WAS ADJOURNED