Curran v The Queen [2021] HCATrans 66 (12 April 2021)

Last Updated: 13 April 2021

[2021] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S186 of 2020

B e t w e e n -

GRAEME BRYAN CURRAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 12 APRIL 2021, AT 11.34 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC: May it please the Court, I appear with my learned friend, MS G.E. LEWER, for the applicant. (instructed by Carroll & O’Dea Lawyers)

MR L.A. BABB, SC: May it please the Court, I appear with my learned friends, MS M.T. ENGLAND and MS. E.L. CURRAN, for the respondent. (instructed by the Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Thank you. Mr Dhanji, is there an extension of time required?

MR DHANJI: Yes, your Honour, there is, we seek that.

KIEFEL CJ: Is there any dispute as to ‑ ‑ ‑

MR BABB: No, not opposed.

KIEFEL CJ: Thank you, you have that extension.

MR DHANJI: Thank you, your Honour.

KIEFEL CJ: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honour. Your Honours, this is an application for special leave to appeal from the decision of the Court of Criminal Appeal dismissing the applicant’s appeal against convictions recorded in the District Court. Your Honours will appreciate the applicant faced trial in the District Court before a jury on an indictment containing nine counts alleging sexual offences against the one complainant. The result of that trial was verdicts of guilty in relation to seven counts, and verdicts of acquittal in relation to two counts, they being counts 8 and 9.

He appealed to the Court of Criminal Appeal on two grounds, one relying upon aspects of the Crown Prosecutor’s address, which invited impermissible modes of reasoning, and the second on the basis that the verdicts of guilty were unreasonable within the first limb of the common form criminal appeal provision.

Your Honours, the first ground was dismissed on the basis the court found that there was no miscarriage of justice, but not on the basis that there was no irregularity at trial, but rather based upon that court’s assessment, that the irregularity in the Crown’s Prosecutor’s address did not affect the result.

In relation to the second ground, the jury was found to have acted unreasonably in relation to two out of the remaining seven counts, they being counts 3 and 4, with the net result that the applicant at the end of this process stands convicted in relation to five out of the nine counts on the initial indictment.

In our submission, this matter raises questions of general importance that warrant a grant of special leave to this Court, and that is on the basis of issues arising with respect to the proper application of the common form criminal appeal provision, and in particular, the fact that ‑ ‑ ‑

KIEFEL CJ: When you say, “questions of general principle”, do you say that this should be elevated beyond a reconsideration of the particular case?

MR DHANJI: Yes, your Honour, the reason being that there are errors, in our submission, in the approach of the Court of Criminal Appeal, in particular in coming to the conclusion that there was no miscarriage, the Court of Criminal Appeal misapplied what was said by this Court in Weiss and more recently in GBF with respect to the nature of the operation of the common form provision, that is, that any error or irregularity at trial is a miscarriage of justice within the third limb, at least, of the common form criminal appeal provision, thereby requiring that court to consider whether there has been a substantial miscarriage of justice that is the application of the proviso.

So, in short, what occurred here was that the court, having found an irregularity, at least with respect to the prosecutor’s address, determined that the effect of that was not such as to establish miscarriage, in part on the basis of what we have described in the written submissions as a limited evaluation of the potential effect of that error.

Now, the difficulty, in our submission, with that approach is simply looking at the limited effect of that error ignores, and relying, in doing so, on the presumed effectiveness of the trial judge’s directions, ignores the reality that with respect to at least two of the counts the jury returned verdicts that were unreasonable.

So to put it another way, the question might be asked, what confidence could the Court of Criminal Appeal have had with respect to the effect of the effectiveness of the jury directions in the context of a jury that returned two unreasonable verdicts? So that feeds into our proposed first and second ‑ ‑ ‑

KIEFEL CJ: But Justice Basten went to some lengths to explain why those two counts stood alone and the unreasonableness of the jury with respect to them did not infect the other – the findings of guilt with respect to the other counts.

MR DHANJI: That is so in relation to the complaint of unreasonable verdict and, there, again, we have a complaint with respect to that process because even with respect to that process, his Honour did say giving deference to the jury’s advantage, and in relation to that second aspect we say that this case manifests, in a sense, a permutation of the approach spoken of in Mackenzie v The Queen with respect to inconsistent verdicts, because, of course, in Mackenzie v The Queen, in relation to inconsistent verdicts, one has a situation where one can look at each matter individually and the premise from which Mackenzie operates is that none of the verdicts viewed individually would be unreasonable within the first limb, but rather they become unreasonable as a result of inconsistency with other verdicts.

Here, you have a permutation in the sense that – I will go back a step – and what this Court found in Mackenzie was that that result gives one an insight into the jury’s thinking which is not ordinarily available. Here, we have by a different route an insight into the jury’s thinking not ordinarily available, and that is that there has been an indication of a serious error in the process by virtue of the fact that the jury returned two verdicts which were unreasonable.

In a way it can be put in the sense of one can look at these verdicts, one can look at the trial process, one does not know what has gone wrong in that process, but the conclusion is inevitable that something has gone wrong, and knowing that something has gone wrong, makes it, in our submission, impossible to draw conclusions with respect to the first ground, the effectiveness of any directions to cure the miscarriage, and, with respect to the second ground, unreasonable verdict, confidence in relation to the verdict in relation to the remaining counts.

Now, I should just clarify, in relation to that second part, the unreasonable verdict part, we say the same result as Mackenzie does not follow, that is, verdicts of acquittal, but rather what would follow would be, at the least, orders for retrial because there is no relevant inconsistency, that is, all one knows in relation to the analysis of the process, having regard to the unreasonable verdicts, is that something has gone wrong, but we do not quite know what it is and we end up with a man convicted of a number of offences by virtue of verdicts returned by a jury, known to have acted unreasonably in relation to at least three of the counts.

In other words, we know that they acted unreasonably in relation to at least two of the counts, but we do not know quite what went on in terms of their reasoning processes with respect to the remaining counts and how that was affected by the errors leading them to convict with respect to counts 3 and 4.

If I can perhaps descend into a greater level of detail – if I can take your Honours to page 191 of the application book, your Honours will see there at about line 7 on the page, his Honour Justice Basten commences dealing with ground 1, and, again, your Honours will appreciate that his Honour dealt with two grounds in reverse order.

His Honour, at 192, paragraph 111 of the judgement, set out the first transgression in the prosecutor’s address, and I do not need your Honours to look at that in detail. At paragraph 110, we have the second transgression in the prosecutor’s address. If I can take your Honours then to page 195 ‑ ‑ ‑

KIEFEL CJ: Well, there were basically two problems with the prosecutor’s address - the reference to the accused’s motive to lie, and there was an unfounded tendency remark. That is not in dispute.

MR DHANJI: Yes.

KIEFEL CJ: It is not in dispute and all the judges were unanimous in their condemnation of the prosecutor for having taken that step. But their Honours were also unanimous that there were several careful and clear directions given by the trial judge which were consistent with that sought by defence counsel. There was no application to discharge or to seek further directions. Justice Basten pronounced himself absolutely clear in his mind about whether or not there was sufficient to found a verdict of guilty.

MR DHANJI: Yes, your Honour but can I say this. With respect to the absence of any application for a discharge, Justice Hamill dealt with the quandary that that issue raised at application book 202, paragraph 147. His Honour said:

As R A Hulme J has pointed out, the Prosecutor’s conduct placed senior counsel for Mr Curran in an invidious position.

He then goes on to deal with the detail of that.

KIEFEL CJ: I think each of the judges has, in their criticism of the prosecutor’s conduct, pointed out the invidious position that defence counsel was put in.

MR DHANJI: Yes.

KIEFEL CJ: But that is not to deny that the option of seeking a discharge was nevertheless open if it was thought that careful directions in the summing‑up and at the points at which defence counsel thought they would be most effective were made. There is nothing to doubt that the trial judge gave very careful directions. We must proceed, as you realise, Mr Dhanji, on the basis that the jury would follow the directions given by a trial judge which are clear in their effect and these were, were they not?

MR DHANJI: They were clear in their effect but the difficulty, with respect, your Honour, is this. This Court – well, an intermediate court of appeal and, indeed, this Court will ordinarily operate on the assumption that juries will follow the directions given by trial judges. However, in this case, there is the additional insight gained as a result of the fact that the jury returned two verdicts that suggested that that might not have been the case. So, in other words, trial counsel ‑ ‑ ‑

KIEFEL CJ: Justice Basten considered that they stood alone, that they were in different categories from the balance of the counts.

MR DHANJI: Yes, your Honour, but ‑ ‑ ‑

KIEFEL CJ: I mean, they do not give you a flavour. His Honour gave very detailed reasons for why they stood in separate categories.

MR DHANJI: Yes, your Honour, that is so. They did stand in a different category and yet, despite the difficulties with those particular counts, the jury, nonetheless, returned the verdicts that they did in relation to those counts. So, if I can take your Honours, for example, to the directions given by the trial judge - they are at application book 25. At the top of that page, the trial judge said to the jury:

An example of a significant inconsistency int his case is the disclosure by the complainant of the act of fellatio on the boat at Pittwater.

His Honour goes on to, in essence, set out the basis upon which those counts were, as your Honour points out, distinguishable from other cases – the other counts. But his Honour, at about line 7, says:

A significant inconsistency that is not satisfactorily explained might adversely affect the credibility and the reliability of the witness in relation to that aspect of the evidence, and overall in considering the account given by the witness.

That was an important direction and that is one that the jury was required to heed. Of course, his Honour says at line 10:

please understand that matters such as these are all for you -

and that was appropriate having regard to his Honour’s function as a trial judge, but of course in the Court of Criminal Appeal, the court was not so limited as a result of the first limb of the appeal provision.

In looking at this matter from the standpoint of the appeal proceedings, having gained some insight into being able to examine the various verdicts returned, the question might be asked as to what did the jury do with respect to this direction. The Court of Criminal Appeal found that that inconsistency, and the significance of it, was such as to require the jury to have a reasonable doubt, yet they did not do so.

The other thing that might be said, when one goes over to page 27 of the application book, at about line 10, the jury were directed in terms of the decision of the Court of Criminal Appeal in Markuleski:

If you have a reasonable doubt about the complainant’s evidence on any charge, then you must ask whether that doubt causes you to have a reasonable doubt about the complainant’s evidence on the other counts.

Now, that is a direction that the jury were required to take into account, firstly in relation to their verdicts on counts 8 and 9, and again things might be said about that, but more particularly, that is the direction that the jury never had the opportunity to take into account in relation to counts 3 and 4, because the jury acted unreasonably in returning their verdicts with respect to those counts.

What was required in this case was not the limited exercise carried out by the Court of Criminal Appeal simply looking to the errors and directions and the usual presumption that the jury would have followed those directions, but rather an exercise dictated by this Court’s decision in Weiss, that is to look to those errors, have regard to the whole of the record, and in having regard to the whole of the record, the fact that the jury returned two verdicts which were unreasonable thereby ‑ ‑ ‑

KIEFEL CJ: Mr Dhanji, Justice Basten did consider the whole of the evidence, did he not, in relation to each of the counts in question, and in relation to those which were 1, 2, 5, 6 and 7 which were left, concluded that he entertained no reasonable doubt as to the guilt of the accused on those five charges?

MR DHANJI: Your Honour, he did.

KIEFEL CJ: Given the thoroughness of his Honour’s recitation of the evidence and the consideration of each count in light of the evidence, even if the reference to the case named Weiss is not mentioned, why would we not conclude that his Honour has undertaken that task?

MR DHANJI: Your Honour, his Honour undertook that – his Honour’s recitation of the evidence is in relation to the unreasonable verdict ground in relation to which the bar for the applicant was higher. But even then – let me do it one step at a time. So, firstly, in relation to that aspect, that exercise required by Weiss was one that required, as I say, not only recitation of the evidence in regard to the whole of the evidence, but also the verdicts. So, that is where we say the first problem arises.

But the second problem arises – that is the unreasonable verdict – simply based upon – sorry, miscarriage of justice simply based upon unreasonable verdicts. That arises as a result of his Honour’s approach to unreasonable verdicts applying M v The Queen and our contention is that the M v The Queen test requires some modification in this particular context.

If I can take your Honours to page 163 of the application book, where we see at line 19 the commencement of his Honour’s consideration of ground 2 – the unreasonable verdict ground. At paragraph 23, his Honour notes that the ground invokes the first limb. Then, in the next sentence, his Honour says:

The jury is the body responsible for making all findings of fact in a criminal trial and determining whether the prosecution has established the guilt of the accused at the high level of confidence required for a criminal conviction.

Then, critically:

Where, as in this case, the jury has been clearly and competently directed as to their task and the relevant legal principles to be applied, there will often be little basis for this Court to intervene.

As a jumping‑off point, that is ordinarily correct. However, what we have here is a jury ‑ ‑ ‑

KIEFEL CJ: Yes, Mr Dhanji, complete your submission.

MR DHANJI: Thank you, your Honour. What we have here is a case where the jury were clearly and competently directed as to the principles to be applied – presumably they had regard to the evidence – but nonetheless, despite those matters, returned two verdicts that were not open to them.
Now, in those circumstances, what confidence can one have that the clear and competent directions that surround this process were followed by this jury. With respect to our proposed ground 3, the question might ultimately be asked, what confidence can anyone have in the five verdicts of guilty returned by a jury who were nonetheless found to have acted outside what was open to them in relation to counts 3 and 4. Those are our submissions, your Honour.

KIEFEL CJ: Thank you. Mr Babb, we would be assisted by submissions limited to ground 3 and the point taken in relation to the Weiss Case which, I think, arises in context of ground 2.

MR BABB: Yes. Your Honours, erroneous statements made by a prosecutor can and, indeed, should be corrected by a trial judge. Whether or not there is an irregularity is something that needs to be assessed at the end of the summing‑up by the trial judge when the jury retires to consider their verdict.

There were clear and adequate directions here and, in those circumstances, there did not exist an irregularity when the jury was sent out. The decision of the Court of Criminal Appeal that there was no miscarriage of justice, in my submission, is clearly correct.

To take up Mr Dhanji’s point, he is suggesting that where there is a misstatement, even when corrected, there is necessarily a miscarriage of justice, or he uses the word “irregularity”, coming from the case of GBF, that a judge who is directing a jury and makes an error that is pointed out to them by counsel gives a redirection. That is not an irregularity, because you are looking at the case at the end of the summing‑up, and when the jury is sent out, taking into account everything that happens in the case.

The plurality in Libke, your Honours, made it clear that breaches of the rules for orderly conduct of a trial by a prosecutor will not amount to a miscarriage of justice without impacting on the fairness of the trial. That is paragraph 81, and they went on to say the trial prosecutor should not have made the comments he did, but their making caused no miscarriage of justice. The appellant’s complaint of miscarriage on account of the prosecutor’s conduct fails.

We do not get to Weiss and the proviso where there is no miscarriage of justice. The proviso only comes in for consideration once miscarriage has been found, and then the burden shifts to the prosecution to show that there has been no substantial miscarriage of justice.

In this case, your Honours, the most straightforward explanation for the unreasonable verdict is that the jury failed to properly recognise that they should have had a doubt about the reliability of a memory at first denied in circumstances where it was expressly sought, and they did not, however, fail to follow clear directions. The directions, and my learned friend has taken your Honours to part of the relevant directions, I would like to take your Honours to some other portions. If we could start with application book 24, there at about line 10:

What about the issue of consistency or inconsistency of an account given by a witness?

The jury are told, quite rightly:

You would recognise from your own experience that from time to time when someone is describing an event or incident or conversation they experienced the narrative or the description is not necessarily in identical terms. There might be good reasons for that.

Over the page at – I will let your Honours finish reading that - over the page at 25, his Honour comes directly to the Pittwater incident, counts 2 and 3, and as my learned friend correctly points out, he draws to the jury’s attention the fact that that is a significant inconsistency, where there was a statement or direct evidence given of oral intercourse, but no mention of it in the statement. But it is significant, your Honours. At the start of line 10:

please understand that matters such as these are all for you to consider and determine as the judges of the facts. What I am endeavouring to do here is to draw to your attention the sorts of factors which are relevant to the task –

in assessing the witnesses. So as one would not expect that they would be directed how they should use that evidence, the significance of it was highlighted by the trial judge. I will take your Honours to the next reference at application book 46, again this is in the summing‑up. This is in terms of a complaint, your Honours, and the relevant passages are over the page at application book 47, where again his Honour comes specifically to count 3, so the unreasonable verdict count:

This included the evidence of count 3, which is the offence of oral sex . . . Pittwater. You will remember, for example, that the complainant told the police initially, that there had been no oral sex.

Significantly, the judge instructs the jury:

It is up to you –

This is at line 14, as ‑ ‑ ‑

KIEFEL CJ: Mr Babb, I do not think you need to go into the directions in any detail because I do not think Mr Dhanji disputes that they were detailed and clear.

MR BABB: Yes, thank you, your Honour. One can, though, your Honour, contrast – what I was trying to show is that the jury were never told you cannot reason in this way in relation to counts 2 and 3 and that is in stark contrast to the directions that they were given in relation to the misstatements by the Crown Prosecutor. They were specifically told you cannot reason in that way:

I am directing you that you should disregard those remarks –

about motive, and that is at paragraph 116. The Crown case is only about tendency in relation to this complainant. So, they were given clear directions. My learned friend has suggested that you can have no confidence in the fact that the directions were followed. The CCA were quite correct to have confidence in those directions and find that they were clear and direct and ‑ ‑ ‑

KIEFEL CJ: Mr Babb, I do not think we need to hear any further from you.

MR BABB: Thank you, your Honour. May it please the Court.

KIEFEL CJ: Mr Dhanji, do you wish to have anything in reply?

MR DHANJI: It might be limited given that your Honour has already indicated you do not require anything further from my friend, but I will just say this, your Honour. Insofar as the contention put forward by the respondent is that there was no irregularity, that does not sit well with either what was said by the Crown Prosecutor or the judgments or the reasons given in the Court of Criminal Appeal.

The jury were, in this case, invited to engage in an impermissible mode of reasoning towards guilt. Any danger that they followed that process, of course, must lead to a miscarriage of justice. In terms of the concern that they may have followed that process, that would ordinarily, we accept, be allayed by clear directions except in the particular circumstances of this case where there is reason to have doubt that those clear directions were followed, given the approach of the jury in relation to those other matters.

Insofar as one looks to whether the Court of Criminal Appeal ought to have reached the point of applying the proviso or consideration of the
proviso, applying the test in Weiss, his Honour Justice Basten was clear that the words should not have been said. His Honour Justice Hulme went arguably further, describing the remarks as “fundamentally flawed” at application book 190, and his Honour Justice Hamil went arguably further again at page 102, stating at 145:

The “errors”, (to put it neutrally) in the Prosecutor’s address were egregious.

His Honour went on to observe:

Strict adherence to the ethical duties of propriety and restraint is essential to the proper functioning of the adversarial and accusatorial system of criminal justice.

So, one is clearly within the territory of there being irregularity within the context of what would be described as a miscarriage of justice within the third limb of the common form criminal appeal provision.

With that as a starting point, one needed to look, therefore, to not just the particular directions that were given, but to the whole of the record, and, in our submission, when one looks to the whole of the record, having regard to the verdicts returned with respect to counts 3 and 4, one could not rule out the possibility of a miscarriage of justice with respect to the remaining counts. Thank you, your Honours.

KIEFEL CJ: It is our view that there are insufficient prospects of success on an appeal to warrant the grant of special leave. Special leave is refused.

MR DHANJI: May it please the Court.

MR BABB: May it please the Court.

KIEFEL CJ: The Court will adjourn to reconstitute.

AT 12.07 PM THE MATTER WAS CONCLUDED