ABR (a pseudonym) v The King [2022] HCATrans 235 (16 December 2022)

Last Updated: 20 December 2022

[2022] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S46 of 2022

B e t w e e n -

ABR (A PSEUDONYM)

Applicant

and

THE KING

Respondent

Application for special leave to appeal

STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 3.30 PM

Copyright in the High Court of Australia
STEWARD J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR D.G. DALTON, SC appears with MS E.L. SULLIVAN for the applicant. (instructed by Karim + Nicol Lawyers)

MS H.R. ROBERTS, SC appears with MS E.S. JONES for the respondent. (instructed by Director of Public Prosecutions (NSW))

STEWARD J: Yes, Mr Dalton.

MR DALTON: Thank you, your Honours. Your Honours, firstly, I should raise that we require an extension of time in relation to this matter.

STEWARD J: What is your position, Ms Roberts?

MS ROBERTS: That is not opposed, your Honours.

STEWARD J: Thank you. Proceed, Mr Dalton.

MR DALTON: Your Honours, we also seek to rely upon a supplementary bundle, that is an application to rely upon the last two days. Do your Honours have that?

STEWARD J: Yes, we do. Any objection, Ms Roberts?

MS ROBERTS: There is no objection, your Honours.

STEWARD J: Alright. Thank you for that. Proceed.

MR DALTON: Thank you, your Honours.

Your Honours, we propose to address the special leave question 3 first, which relates to the answer cards that the trial judge allowed in the trial proceedings, and will ultimately propose ground 2. We have sought to flesh out if the Court will accept leave, or grant leave – in the circumstances, we have fleshed out proposed grounds 1 and 2, which I can come to shortly.

The proposed ground 2 in relation to the answer cards, the two subsections that the Court of Criminal Appeal erred in (i), holding that the answer card procedure was permitted under section 26 of the Evidence Act 2005 (NSW), and (ii), that the Court of Criminal Appeal erred in failing to hold that the use of the answer card procedure led to a substantial miscarriage of justice.

Our proposed ground 1, your Honours, is that the Court of Criminal Appeal erred in failing to hold that the trial judge’s comment in the summing up:

But if it never happened, why would they be upset at that point?

was impermissible, constituted a reversal of the onus of proof, and led to a substantial miscarriage of justice. Your Honours ‑ ‑ ‑

GLEESON J: Mr Dalton, just leading with that latter point, was that raised in the Court of Criminal Appeal?

MR DALTON: No, it was not, your Honour.

GLEESON J: So, you will have to identify exceptional circumstances from raising that matter.

MR DALTON: Yes, your Honour. And I note that the applicant was unrepresented in the Court of Criminal Appeal. Thirdly, the attention of the Court was drawn to that comment, but it was – that is at page 108 of the appeal book in paragraph 115.

GLEESON J: Just before you head any further, Mr Dalton, am I correct that the total effective sentence has been served by your client?

MR DALTON: That is so, your Honour. So, your Honours, the reason that we propose to deal with the special leave question 3, proposed ground 2 first is because the questions are closely connected and that is what we submit is the inadmissible use of the answer cards in the trial proceedings with the subsequent comment by the trial judge that we also submit was impermissible in the course of the summing‑up.

Your Honours, in relation to the use of the answer cards, we, in the first instance, submit that there was no relevant power to allow that to take place in the subject proceedings which is not clearly articulated in our original – or amended application and in our reply. It is dealt with. We suggest that there was not relevant power in our reply, at application book 152, in paragraph 15, and it is the second line of that page.

GLEESON J: Is this based on a proper construction of section 26 of the Evidence Act?

MR DALTON: Yes, it is.

GLEESON J: Which is set out at application book 132.

MR DALTON: Yes, it is, your Honour, at the last page of the amended application. Your Honour, you will see that section 26 permits the court’s control over questioning of witnesses and:

The court may make such orders as it considers just in relation to –

(a) the way in which witnesses are to be questioned, and

(b) the production and use of documents and things in connection with the questioning of witnesses, and

(c) the order in which parties may question a witness, and

(d) the presence and behaviour of any person in connection with the questioning of witnesses.

It is general power but it deals with the manner in which witnesses are to be questioned and does not deal with the manner in which witnesses are to give their evidence – as, for example, does section 31 of the Evidence Act in relation to the death of witnesses, or in relation to section 275B of the Criminal Procedure Act. Our reserve position in relation to this point is that if the court was minded to find that there was . . . . . section 26, then it should not ‑ ‑ ‑

STEWARD J: Mr Dalton, this is all a bit late, is not it?

MR DALTON: Your Honour, as I said, it is raised in a reply that I accept it is not squarely articulated in that process that we do ‑ ‑ ‑

STEWARD J: Paragraph 45 of your application says:

While a judge has the power to make orders in relation to the way a witness is questioned –

MR DALTON: Yes, that is so, your Honour, but I ‑ ‑ ‑

STEWARD J: And now this is your main point, is it?

MR DALTON: I beg your pardon, your Honour?

STEWARD J: Is this your main ground for this part of your application?

MR DALTON: No, it is not, your Honour. Your Honour, everything that I am citing, as I have said, with the question 3 and what is proposed to be ground 2 is because . . . . . what happens as far as the comment is concerned. Your Honours, if the Court was against us in relation to the construction of section 26 and the power issue, then we also make the submission, which is freely articulated, that the permission to use but three cards – “yes”, “no”, and “I don’t know” caused such unfairness in the circumstances of the case as would constitute a substantial miscarriage of justice.

Now, your Honours, we also note that in relation to section 275B, which the Court of Criminal Appeal also held was not applicable in the circumstances, but we do note that 275B, subject to (2) is couched in these terms:

In any criminal proceedings, a witness who has difficulty communicating is entitled to use a communication aid to assist the witness with giving evidence, but only if the witness ordinarily uses such an aid to assist him or her to communicate on a daily basis.

Which were not the circumstances herein. It is our submission that it is significant that the Parliament has seen fit to impose a condition that before a witness in such circumstances is to be permitted to use a communication aid, that this can only occur if the witness ordinarily uses such an aid to assist him or her to communicate on a daily basis. In our submission, there is no other relevant power in the Evidence Act or the Criminal Procedure Act to permit this exercise.

Your Honours, further, there are only three cards provided to the witness, being yes, no and I do not understand, which, it is submitted, significantly restricted the witness’s . . . . . answers and . . . . . act as a prompt to the witness that there are only three possible answers to a question . . . . . Significantly, in this regard, it did not include the option “I can’t remember”, and that is the complainant’s first answer to the same question that is subsequently the subject of the answers by way of the cards. That is to be found in the supplementary bundle at page 29. Your Honours, if I can just take you to that, at the top of the page the question is asked:

Is it possible that you’re wrong about you ever touching [ABR’s] penis? Let me ask it this way, did you ever touch [ABR’s] penis?

Answer:

I can’t remember.

Immediately thereafter your Honours can see down the page that the witness required a break because she became upset and thereafter a direction was given at this time by the trial judge to the jury in relation to this subject, which is found at supplementary bundle at the top of the page, and that is 34. His Honour couches it in general terms as being:

The difficulty with cross‑examining young people –

this is at line 7:

The difficulty with cross‑examining young people is that they are likely or readily to become upset, as you’ve seen. Becoming upset may be that you are becoming upset because you are telling the truth and you are being challenged and it may be that you’re not –

telling the truth. It says “tell”, but telling the truth:

and you know it, so you’re upset because you are being challenged. So the fact that a young child is upset shouldn’t be necessarily taken as indicative of anything other than that she is a young child and it’s a difficult process for her.

Which is very important when contrasted to what his Honour ultimately said to the jury which relates to the special leave question number 1 and our ground 1 which is found at appeal book 19.

STEWARD J: Can I ask, Mr Dalton, from memory, counsel for the applicant opposed the use of these cards ‑ ‑ ‑

MR DALTON: He did.

STEWARD J: It was overruled, but was he denied an opportunity to suggest that other cards be used, such as “I can’t remember”?

MR DALTON: No, he was not, your Honour.

STEWARD J: All right, thank you.

MR DALTON: Thank you, your Honour. That portion in relation to the first special leave question and our proposed ground 1, your Honours will see, starts at the bottom of page 18 of the application book and then goes over the page to 19. And, importantly, if I can, starting at the last line on page 18, it reads:

Then you have to look and say, well, is that consistent then with the way they have presented, is it consistent with the evidence from the mother, is it consistent with the evidence of each of the interviews, consistent with the way that they answered questions for you, consistent with the way that they were upset, and upset not all the time, but more particularly when being asked questions about vaginas and penises. But if it never happened, why would they be upset at that point?

We contrast the structure of that comment to the jury during the summing‑up to what his Honour said when the procedure in relation to the cards is allowed – supplementary bundle 34 – and it is important your Honours, in our submission – what his Honour thereafter immediately says, and that is:

So all of these are logical questions that you need to apply to the criticisms in order to determine whether the criticisms have merit.

GLEESON J: Mr Dalton, is there anything apart from the fact that your client was unrepresented in the Court of Appeal that you rely on to constitute exceptional circumstances for raising this new ground?

MR DALTON: Your Honour, only the significance of the comment, and the potential for a substantial miscarriage of justice that resulted as a result of this comment by the trial judge to the jury in the course of a very powerful summing‑up, following on from analogies by his Honour that were quite personal and paternal to the jury in relation to the manner in which they should treat children’s evidence, and then culminating in this rhetorical flourish:

But if it never happened, why would they be upset at that point?

So, in our submission, it would, in the circumstances – particularly with the mandate that follows immediately thereafter – satisfy the exceptional circumstances referred to by your Honour.

Your Honours, thereafter, the touching of the complainant’s penis is what we note as the key factual components of counts 4 and 5 on the indictment. When the answer cards were thereafter permitted, and without an option of “I can’t remember”, which is what she first answered to this question in relation to the touching of the applicant’s penis; and the complainant was re‑asked this question in slightly different terms – your Honours, this is in the supplementary bundle at page 36, which comes immediately after that direction that we referred your Honours to a moment ago. Your Honours will see from the top of 36, at line 6:

Did you ever touch [ABR’s] penis?

There was no verbal reply. His Honour:

Okay, and she is holding up the word “Yes” as her answer.

Shortly thereafter, at line 21, after being corrected in relation to the forming of the question, the cross‑examiner asked:

I say you never touched [ABR’s] penis. Do you agree with that or not?

There is no verbal reply and his Honour notes that:

She holds up the piece of paper with the word “No” as her answer.

So, your Honours, when she is originally asked that question she said, “I can’t remember”. Then she gets upset and then, when the cards are permitted and she is asked those questions, she says, “Yes”, in the first instance and then, “No”, in the second instance, using the cards which becomes of significance when referring to the comment made by his Honour in the summing‑up which was directly related to the point where the witnesses – being the complainant and her brother, YV – were said to become upset.

His Honour framed it – couched in the terms of the timing of when they became upset, and the timing being when they were asked questions in relation to vaginas and penises. The evidence in relation to when the complainant became upset, such as the answer cards were allowed, was in relation to a question directed to the four components of counts 4 and 5, which related to the allegation of the complainant touching the applicant’s penis. Therefore, the manner in which his Honour has couched that comment would have been taken by the jury to be directed in large part to that portion of the evidence when she originally said, “I can’t remember”, and thereafter she became upset. The three – only – cards are allowed and there is no “I can’t remember” as an option in relation to those cards.

When asked thereafter and after the jury was given a more general and appropriate direction in relation to how they should take or assess the upset of the complainant in the witness box, that they saw the evidence change by use of those cards at that point in time. It is the very subject, in our submission, of the comment that his Honour had made at application book 19 in the summing‑up, which is the subject of our complain in relation to special leave question 1 and the proposed ground 1.

In our submission, it is submitted, . . . . . use of the cards as opposed to an error of law and, even if we are wrong in relation to the power argument, we say that it was inappropriate simply to allow these three cards that in their terms, in a sense, became prompts as to the answers; it was, in a sense, suggested to the complainant who was seven years at this stage that there was but three possible answers if she became upset by reference to those cards.

We note that the Parliament in New South Wales, even with the pre‑record system that had been put in place since 2015 still maintained pursuant to section 275B that communication aids are only to be used if they are used ordinarily by a witness on a daily basis. And here there was no evidence obviously, in one sense, of the witness using such cards on a daily basis but nor, more importantly, was there an ability by her by at least the written cards to be able to answer open questions; for instance, do you remember that a little while ago, in your evidence, that you said that you cannot remember in relation to that – which your Honours – in that regard, would have been very difficult for the witness to answer in those terms.

Your Honours, I note that the time bell has just come up, so, your Honours, I would like to move onto the – a little further, the proposed ground 1, which is special leave question 1. We submit that this is not the genre of upset that is being referred to in that category of contemporaneous upset associated with actual alleged events, and the authorities in relation to that in New South Wales is . . . . . and Ackerman from Western Australia, and Flannery in Victoria. It is quite different and, in our submission, there is no way capable of being able to determine when a witness gets upset in a witness box, whether that relates to the effects or the trauma that the witness is in fact suffering going through the procedure of giving evidence, or whether it in fact has something to do with the actual nature of the evidence they are giving as to the truth and/or to the falsity of that evidence.

We should bring to the Court’s attention that section 292D has been enacted since this trial was conducted. That, your Honours, was a warning, as such, to the jury that they should not use distress of a witness in the witness box to mean that a witness is necessarily not telling the truth. It is not a direction to prohibit something of the nature that his Honour said at 19 of the supplementary bundle that I have taken your Honours to – if it did not happen, why would they be distressed at that point – and it does not otherwise regulate comments of that kind.

Your Honours, these points in relation to the answer cards and, indeed, in relation to this comment made by his Honour – which is very much akin to, why would a complainant lie, from the case of Palmer – apply right across Australia. It would apply in every jurisdiction and, unfortunately, there are a significant number of trials that are brought in relation to child sexual assault allegations throughout the various jurisdictions of Australia.

Your Honours, we submit that it is such a rhetorical question, it is not only impermissible for the same reasons as for the comment such as why would he or she lie – it was dealt with Palmer v The Queen in 1998 – but it also related essentially in the course of this trial. Further, such a comment without correction now could be given by a trial judge in any trial where a complainant becomes upset during giving evidence involving allegations of sexual assault, whether that be a child or, indeed, an adult. In our submission, the findings by the Court of Criminal Appeal in that regard, in a sense, act as an imprimatur to allow comments of that kind throughout . . . . .

STEWARD J: All right. Thank you, Mr Dalton. Ms Roberts, the Court would be grateful if you could confine your submissions to the first special leave question that arises in this matter.

MS ROBERTS: Yes, thank you, your Honour. Could I just note that Mr Dalton commenced his submissions by reading out, with respect, quite quickly, proposed grounds of appeal which were framed differently from the grounds at application book 121. That was the first time that I have heard them. So, I will endeavour to respond to them, and I can respond in substance, too.

GLEESON J: Ms Roberts, just for the sake of clarity, there are two proposed grounds of appeal. The second ground – ground 2 – which was previously formulated as an error in dismissing ground of appeal 12, that is the one that concerns the answer cards. It was put on two bases to do with the construction of section 26 of the Evidence Act and the alleged miscarriage of justice. That is not the one that we want to hear you on.

MS ROBERTS: Understood, your Honours, thank you. The proposed ground 1 relating to this summing‑up, as has already been observed, was not argued in this way before the Court of Criminal Appeal, so it was not considered precisely in this way; that is, the fact that it raises no question of overall principle or matter of general importance in the respondent’s submission is relevant to the question of exceptional circumstances in taking into account also the expiration of time and the expiration of the total effective sentence.

Moving on to the substance of it, your Honours, we would observe that what we are able to have regard to is a transcript of the summing‑up. What is imposed on that is the punctuation of the transcript writer and then, perhaps, in terms of structure or expression, the way it was expressed today by the senior counsel for the applicant.

Those are not necessarily precisely how it was heard by the jury and in that regard it is relevant. I do not say that it prevents the ground from being raised, but it is relevant that there was no complaint made at trial when the applicant was then represented by counsel that the trial judge had said something that is now said to be an obvious difficulty and an impermissible rhetorical question.

In the respondent’s submission, the summing‑up, read as a whole, did not occasion a miscarriage of justice, because his Honour made it very clear, before and after, that it was a matter for the jury to determine whether any of these criticisms or any of these points should be taken into consideration and how, as against or for the Crown case, and as against or for whether they were satisfied beyond reasonable doubt of the reliability of the complainant. In fact, his Honour says that at application book 19. Immediately after the impugned passage, his Honour says:

In doing that you also cannot lose sight of the fact that it is for the Crown to prove the case beyond reasonable doubt. So if you get to the point where these criticisms leave you with some reasonable doubt about any of the counts or all of them, then, as Mr Nield said to you, your duty at that point is to find him not guilty.

In the additional materials, your Honours will see that at the point at which the upset arose – the upset arose a few times with the complainant. It was for that reason that there was quite a lot of discussion of the framing of the questions and ensuring that they were not confusing for a child of her age – she was nine at the time that she gave evidence – and that they permitted an answer directly. But his Honour told the jury about the passage of upset to which Mr Dalton has already taken the Court. In that passage, at the very time that the complainant was giving evidence, his Honour clearly said – and that is at page 34 of the additional materials – that becoming upset could mean – his Honour directly says it could be:

because you are telling the truth and you are being challenged and it may be that you’re not tell the truth and you know it, so you’re upset because you are being challenged. So the fact that a young child is upset shouldn’t be necessarily be taken as indicative of anything other than that she is a young child and it’s a difficult process for her.

His Honour then goes on to give examples of misunderstandings as to questions which again, in the respondent’s submission – and I will endeavour to avoid straying into the other aspect of the grounds, but it illustrates the point that his Honour was properly intending to convey, which was that it may have been difficult for the child to answer, but that just because she was having those difficulties should not be taken to mean one thing or another about her credibility or reliability in terms of the account that she was giving.

That is consistent with the new provision to which Mr Dalton took your Honours, at 292D of the Criminal Procedure Act which was not in place at the time of this trial, but is now – which is that a trial judge may give a jury a direction to explain that the presence or absence of emotional distress does not necessarily mean a person is telling the truth or not telling the truth. Essentially, in the respondent’s submission, the fact that his Honour expressly made the onus clear and in the ordinary way it is also explained to the jury that he should not be taken to be expressing an opinion one way or the other.

Later in the summing up at appeal book 34, his Honour – in the context of the question of motive to lie, his Honour gave a full direction to the jury about that, which is important – or meaningful – because the earlier impugned references to the complainant presenting as upset were in the context of the jury’s consideration of the apparent motive to lie, which was, in effect, that the complainant’s mother may have suggested the complaint to her – the false complaints to her; or, alternatively, that she was otherwise mistaken. But both of those were matters raised at the trial – mistaken or misunderstood what happened on some of the occasions.

In the summing‑up at appeal book 34, his Honour gives a direction about motive and again explains to the jury that it is not a search for a reason why the complainant may be untruthful, but a search to whether she was truthful, because it is only if you conclude that she was truthful that you could find the accused guilty, and the balance of that direction.

The respondent submits, respectfully, that in the present case, the jury would not have been ultimately left in doubt that the Crown had to establish the truthfulness of the complainant’s account beyond reasonable doubt, and that any risk by the wording about which the complaint is made was dispelled by the further directions and the summing‑up as a whole and his Honour – that is not in the type of category of impugned or problematic observations or comments in a summing‑up such as in McKell – in which the summing‑up included suggestions to the jury of inculpatory inferences which had not been replied upon by the Crown, and comments which this Court found was such as to “gratuitously . . . belittle” defence counsel’s arguments that they were not matters of that nature. His Honour was overruled, in the respondent’s submission; the summing‑up was not unfair and did not occasion a miscarriage of justice.

This application raises only questions about fairness required in the circumstances of the applicant’s case. It raises no additional question of principle or general application. Accordingly, the respondent submits that a grant of special leave is not in the interests of justice in those circumstances.

With respect to the other grounds, I will not address your Honours as indicated. Thank you.

STEWARD J: Thank you, Ms Roberts. Anything in reply, Mr Dalton?

MR DALTON: Yes, thank you, your Honour. Your Honour, in relation to my learned friend’s submission, at appeal book 19, the subsequent direction by his Honour regarding the onus of proof and the like, in our submission, does not address the evil of the ill of the rhetorical flourish that is made by his Honour after a summation of the proper manner to assess the witness in the face of these criticisms.

His Honour has, in a sense, said, rhetorically, that is the end of the matter; that they would not get upset at that point when discussing – or they ask questions – about vaginas and penises. The specific evidence, in that regard, related to the complainant just when the answer cards were permitted and it was different – very different – to the direction that his Honour gave at that point. To ameliorate the effect of that powerful rhetorical comment at that point, his Honour should have gone on to say that it may not have been necessarily the case that they got upset because these things had, in fact, happened. Nothing of that kind has been done and it is not, in our submission, addressed by what follows thereafter.

Your Honours, my learned friend also took your Honours to a portion of the summing‑up where his Honour said, I am not expressing an opinion one way or another. In our submission, his Honour very much expresses an opinion at the complained of point of the summing‑up, at paragraph 19. As was submitted previously, this is in the context of a number of analogies in relation to the care that should be taken in dealing with the evidence of children and, in particular, the errors that they may make and problems that they may have in giving their evidence should be understood because they are children, not adults – and the very paternal and personal references that his Honour otherwise used. Then, this comment came at the end – the culmination, the crescendo – of his Honour’s address in relation to those matters.

Your Honours, we note in respect to the matters that your Honour Justice Gleeson referred to about lack of complaint by the – I think it was your Honour Justice Gleeson; it might have been your Honour Justice Steward. In relation to the lack of complaint by the counsel for the applicant at the trial in relation to this comment, we do note, your Honours, that there was a complaint, at least in respect to the fairness of the summing‑up by the applicant in the Court of Criminal Appeal.

So, the Court of Criminal Appeal, at paragraph 115, application book 108, was – their attention was drawn to this comment, albeit the argument was framed by the unrepresented applicant in a different way. Their attention was drawn to that and, in our submission, it is an egregious, unfair comment for a trial judge to make. As I said previously, with the present imprimatur of the Court of Criminal Appeal, that is a comment that could be made by trial judges in any like trial across Australia. We also note that, even though his sentence has expired, the applicant will be on a register for sexual assault offenders for the rest of his life if this is not resolved.

Thank you, your Honours.

STEWARD J: Thank you, Mr Dalton. The Court will temporarily adjourn to consider what course it should take in this matter.

Adjourn the Court.

AT 4.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.11 PM:

STEWARD J: We are not persuaded that there is any reason to doubt the correctness of the decision of the Court of Criminal Appeal of New South Wales and we consider that it is not otherwise in the interests of justice to grant leave. Special leave is accordingly refused.

The Court will adjourn until 3.30 pm on 6 February 2023. Adjourn the Court.

AT 4.12 PM THE MATTER WAS CONCLUDED