R v Smith (a pseudonym) [2022] HCATrans 40 (18 March 2022)

Last Updated: 23 March 2022

[2022] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2021

B e t w e e n -

THE QUEEN

Applicant

and

SMITH (A PSEUDONYM)

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 10.26 AM

Copyright in the High Court of Australia

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR N.S. DRUMGOLD, SC appears with MS K.L. McCANN for the applicant. (instructed by Director of Public Prosecutions (ACT))

MR B.W. WALKER, SC appears with MS L. HUTCHINSON for the respondent. (instructed by Kamy Saeedi Law)

KEANE J: Yes, Mr Drumgold.

MR DRUMGOLD: Your Honours, it is our submission that it is in the interest of the administration of justice generally, and in the particular circumstances of this case, that special leave to appeal be granted. The laws surrounding the consideration of a Court of Appeal are outlined in M v The Queen and have been recently affirmed by this Court in Pell v The Queen.

The law, however, remains unclear with respect to two aspects of the role of the Court of Appeal. Firstly, in a Court of Appeal conducting an independent examination of the whole of the record to ask whether the verdict was open to the court at first instance, to what extent can an appeal court consider a differently nuanced case on appeal to the case as it was conducted at first instance, and, secondly, what obligations arise in relation to procedural fairness if an appeal court does consider a differently nuanced case.

EDELMAN J: Mr Drumgold, if recklessness was truly a live issue – either explicitly or implicitly – before the Court of Appeal, then the first issue would not arise, would it?

MR DRUMGOLD: That would be so. If it were explicitly, the question – it is a broader question of what “implicitly” means – in this case, as I will get to, it was disabused as being an issue. We say this is not strictly a visitation case. Of course, the Crown submits the majority erred in a substantial way in reaching their conclusions and consequently occasioned a significant injustice in this particular case.

However, we say this case exposes a significant point of principle, which has general application. That is not to say, of course, a visitation case cannot meet the criteria of exceptionality as observed in a number of cases. However, we submit that this case presents a suitable and proper vehicle for this Court to fully consider and give proper guidance to intermediate appellate courts on the principle, and practical application of the principles of M.

The appeal in the court below was upheld by a majority of two to one. The two majority judgments relied on significantly different reasonings. So, this appeal would require an examination of both majority judgments because if either one is contrary to the law, the appeal should ultimately be upheld.

The case both at trial and on appeal was conducted, as I indicated a moment ago, by the respondent on an “all or nothing” basis, that is, if the complainant’s evidence were accepted beyond reasonable doubt, the trial judge would be satisfied of each element of the offence. It was never part of the respondent’s case, either at trial or on appeal, that the court accepted the complainant did not consent, but the Crown could not establish the requisite state of mind as to that lack of consent.

It is this basis that the respondent’s convictions were quashed by the majority using a path that we say was not in accordance with proper principle, and it is therefore, we say, in the interest of the administration of justice – both generally and in this particular case – that error be corrected ‑ ‑ ‑

KEANE J: Mr Drumgold, can I interrupt you there?

MR DRUMGOLD: Indeed.

KEANE J: I must say I have some difficulty with this proposition that the appellant’s state of mind was not in issue. A plea of not guilty means that the Crown had to prove the appellant’s state of mind - I am sorry, the respondent’s state of mind. You are not actually saying to us that in some way the respondent said, “I admit that I had the requisite state of mind” – whether it was recklessness or deliberate intent – “to do this without consent”, are you?

MR DRUMGOLD: Of course recklessness is an element of the offence but we say both – what is relevant is the way the case was run. In this case, as I will get to, the case was polarised into two aspects. The respondent’s case was that the complainant initiated sex and willingly engaged, it became awkward, and then, when it became awkward it stopped and they sat laughing for between 40 minutes and an hour. The case on the complainant’s version was that it was forced sex – that she was hitting and kicking – hitting and saying, no, no, no, while it was occurring.

As was accepted in the trial at first instance, recklessness as to consent was not even open for the court to consider. Of course, in closing, the Crown Prosecutor did run through the elements of the offence – ran through - consent and recklessness are elements of the offence.

In response to that, the respondent’s lawyer expressly disabused that – said recklessness is not an issue here. This is a case where, if you accept the Crown case, he knows that she was not consenting because she was hitting him and saying no.

I am not conflating two issues. Issue one is, what is an element of the offence. But the issue that we are raising, that was run both at first instance and on appeal, is that this was an “all or nothing” case – that is the way the case was run. That is the way the case was run on appeal also.

EDELMAN J: Mr Drumgold, could you take me to the passage where the respondent says at trial that it is not even open to the court to consider – or to the jury to consider recklessness?

MR DRUMGOLD: It is not on the application book, I understand your Honour, because it is beyond what should be an application book. It is on those items listed. But I have the comments that were made. First of all, at trial, during the closing, the Crown said:

this case boils down to two issues, (1) consent and (2) recklessness.

Defence, in response to that, said – defence specifically and unambiguously said recklessness is not one which is open on the Crown case, stating that if the Crown case were accepted it would be knowledge as to lack of consent – that is, I am sorry ‑ ‑ ‑

KEANE J: But, Mr Drumgold, what if the Crown case is not accepted in its entirety? Surely the jury is the tribunal of fact entitled to decide that neither the complainant nor the respondent were completely reliable and, having regard to whatever facts the jury find as to what happened beyond reasonable doubt, it may have been necessary for them to address the question of recklessness. How can that not be so?

MR DRUMGOLD: The question here, with respect, your Honour is how the case was run and how the appeal was run. They are the main two issues, subject to this application for leave. We have the reasons and the reasons for the trial at first instance were that the respondent’s evidence was rejected, for various reasons, and the complainant’s evidence was accepted for various reasons.

The grounds of appeal were that the judge erred in accepting the complainant’s evidence and rejecting the respondent’s evidence. Putting aside Chief Justice Murrell’s judgment, the two majority judgments – neither of which embrace that – one judge, Justice Loukas‑Karlsson found that it was open to his Honour to accept the evidence of the complainant that she did not consent.

Justice Charlesworth’s judgment is somewhat difficult and, we say, somewhat cherry-picks in that she found that it was not open to the trial at first instance to accept the complainant’s evidence that she was not consenting. However, it then accepted her evidence that of the behaviour of the respondent immediately post‑sex – that he was hitting himself in the head – so the difficulty is that the issue of recklessness was never an issue that was live on appeal. It was that the trial judge erred in not rejecting the complainant’s evidence in its entirety – and that the trial judge erred in not accepting the respondent’s evidence in its entirety. Neither of those occurred.

What occurred was a passage through the middle that was not the case on first instance – and it was not the case on appeal. The evidence of the complainant that she was not consenting was safe. However, this issue of recklessness that was never raised, never discussed in first instance and certainly not subject to argument on the Court of Appeal - the first time the issue of recklessness as a grounds for the initial judgment being unsafe was raised when we picked up the judgment and read the judgment.

That raises the second issue of the procedural fairness issue, your Honours. If your Honours say that a nuanced case – whether it is an “all or nothing” case at first instance, a Court of Appeal can still dissect it and find a case outside of the nuance that was found at first instance that there is no obligation on a Court of Appeal to raise that with the parties. That did not occur. Would your Honours like me to take you through the trial at first instance?

KEANE J: Mr Drumgold, before you do that – and you present your submissions as you see fit – might I just put this to you that one can appreciate that the prosecution is entitled to say that procedural fairness from the court – including the Court of Appeal – is not a one‑way street. There has to be a question in this case, does there not, as to whether the interests of justice do warrant the grant of special leave. Is it not the case that the fully suspended sentences that were imposed have now expired?

MR DRUMGOLD: Yes, which is why we say this is not strictly a visitation case, your Honour.

KEANE J: But in terms of the consideration of the due administration of justice, is there not a question about whether the due administration of justice is served by giving special leave to hear an appeal, the consequence of which – what would be the consequence of your side winning?

MR DRUMGOLD: There would be little consequence for the respondent in this case ‑ ‑ ‑

KEANE J: So, you are really inviting us to grant special leave so that the Court can write an essay?

MR DRUMGOLD: So, the Court can provide guidance on a point of principle in precisely the application of M. At the moment, as I outlined in the outset, there is little authority for the first question posed, to what extent can a Court of Appeal consider a case that was not run at first instance.

KEANE J: The answer to that question is a resounding no. But you are begging the question which is the very contestable one as to whether there had been, on the part of the accused, an acknowledgement to the trial judge, or to the Court of Appeal, that the accused was actually conceding that if the complainant’s version were accepted, apparently in its entirety, there was a concession that his mental state was relevantly that which is required for the commission of the offence.

MR DRUMGOLD: That was a concession that was made but the concession that was made is this case boiled down to an “all or nothing” case ‑ ‑ ‑

KEANE J: No, it is not. That is a concession that if the Crown case - the evidence of the complainant is accepted in its entirety, in its absolute entirety, there would be no basis in such an event for any question mark to be left over the mental element, so far as the accused is concerned. It is almost naïve, with respect, to suggest that that encompassed a concession that in any event, if the complainant’s evidence was accepted in part, then the accused was conceding that he either intended to have sex without her consent, or to have it recklessly. That seems to be almost naïve, with respect.

MR DRUMGOLD: Well, we say, of course that argument – of course, that is the way the case could have been run at first instance. Our complaint, in this circumstance, is the case having not been run at first instance in that way.

EDELMAN J: Mr Drumgold, if that is right, could you perhaps explain the first paragraph on page 17 - which is the closing submissions of the prosecution before the trial judge – where the prosecution says that the two main issues in the trial are consent and recklessness.

MR DRUMGOLD: We say, your Honour, that that conflates two issues. Of course, the Crown has to address on all the elements of the offence. In
response to that, the respondent’s defence lawyer quarrelled with that and said in fact consent is in issue but recklessness is not in issue.

EDELMAN J: That is in a passage that we do not have – where you say that the respondent has conceded one of the only two issues in the case?

MR DRUMGOLD: Indeed. It is at transcript page 229, line 21. It is on page 38. He says:

The question of recklessness is not one which was the Crown case. If the Crown case here is that she said no, she fought, she pushed, she scratched and he pretended to ignore, just ignore, it is not a question of recklessness.

That was the response.....learned Crown Prosecutor addressing ‑ ‑ ‑

EDELMAN J: But, Mr Drumgold, all that is saying is that if the Crown case is accepted – if the evidence is accepted in its entirety, there is no room left for recklessness. But as Justice Keane put to you, and as you are well aware, there are many, many criminal cases where part of a Crown case might be accepted and part might be rejected.

MR DRUMGOLD: Of course, I accept – I hear what your Honours are saying – we say that that was not the circumstance in this case. We say the only evidence open – that went to the issue of recklessness – came from the complainant herself. So, it is difficult to say we are going to reject her evidence with regard to her hitting him, but we are going to accept her evidence with regard to him hitting himself.

The basis for the recklessness – that he was reckless as to the presence of consent – came from the complainant – that immediately following the sex, when the sex stopped, he was hitting himself saying, “Is this rape?”, or something to that effect. So, we say in the nuance of this case, what has effectively occurred is there has been a cherry-picking of the complainant’s evidence to raise an issue that was never practically raised in the first instance. But that is as high as I can put it, your Honour.

KEANE J: Thanks, Mr Drumgold. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the so‑called concession, which strangely is now said to have removed recklessness as an issue on one of the fault elements at trial, that meant no such thing as the Crown has now put. Rather the advocacy was to this effect. If matters were as dramatically indicative, unambiguously of resistance as the complainant’s evidence‑in‑chief would have it, then recklessness could not be resisted.

So much is obvious, bearing in mind what the trial judge and the Court of Appeal by majority had little hesitation in finding and upholding respectively, namely that that was evidence lacking credibility, certainly leaving reasonable doubt – I would add, in spades – concerning recklessness.

On appeal, there was of course no return to the position that said that we had to deal with a Crown case going further than the learned trial judge was prepared to find – particularly with what became known, as your Honours will have read, as the protestation evidence. That, along with the other matters – with which your Honours are familiar from the papers – led not only the trial judge but in larger measure the members of the majority in the Court of Appeal to see grounds in the complainant’s own evidence and its weaknesses for the reasonable doubt that required an appeal and acquittal.

It is simply not the case that recklessness was removed as an issue, as of course the Crown well recognised from the laying of the indictment through to the last words of address at trial. Thus, for example, I draw to attention – and I do not need to dwell on it – the reference in the Court of Appeal in argument to the exchange that you will see at page 165 in, first of all, paragraph 11, and then in paragraph 12 in submission in reply.

The elements of the offence include as a fault element a state of mind in relation to the proven lack of consent and, in this case, the Crown plainly saw that as appropriately focused on matters of recklessness – though there is no point to be made about the fact that knowledge – that is deliberateness – was not the subject of specific canvassing.

It is for those reasons, in our submission, that one can see that issue was joined at trial, and repeated on appeal, whereby it was those parts of the complainant’s evidence – protestation and the like – which cast light not only on her consent – because evidence has dual purposes in such cases – but also on the manifestation of her state of mind – lack of consent – so, as it may have struck, judged through a prism of reasonableness, the accused.

Hence the notion, which became central at trial and was pursued on appeal, of what could be taken from the notion of sexual intercourse becoming, on our client’s perception, awkward, and what it and the multifarious related circumstances of the undoubted sexual behaviour and intercourse would have conveyed to somebody in our client’s position.

That goes and goes only to his state of mind as an element of the offence and on the Crown’s, with respect, understandable advancement of the prosecution case, that went obviously to recklessness, or to put it another way, one simply cannot compartmentalise the issue of consent from the issue of recklessness when there was such a spectrum of evidence, some accepted and some not – I stress, some not – concerning the issue of consent, which was precisely of a kind which involved the outward manifestation of a state of mind. It is for those reasons that there is nothing in the point that recklessness somehow was removed as an issue.

The next matter is this. Added to the question that Justice Keane has asked my learned friend concerning the interests of the administration of justice – bearing in mind that, as we understand it, it is not proposed that upon any restored conviction there would be any further penalty – one asks, however, whether it is realistic even to see it coming to that point given that the relief sought, as one might accept that procedural fairness ground, is that the case be remitted to the Court of Appeal to be reargued, our appeal to be reargued.

It can hardly be said that on that re‑argument the implications for the issue of necessary element of recklessness, of the way in which the trial judge found unsatisfactory aspects of the complainant’s evidence going to consent, could not be fully canvassed. In other words, the argument that the Crown, in our submission, wrongly says was not in play in the Court of Appeal, if remitted, this case would undoubtedly include advancement of that appeal, and could one possibly imagine the Crown saying that it is in the interests of justice that such an argument going to the actual state of satisfaction on an essential element of the offence ought not to be permitted to be argued in the Court of Appeal.

That would be unthinkable in terms of the administration of criminal justice because, and this is my final point, one thing is clear, this is not a Baden‑Clay Case. This.....a diametrically‑opposed, logically impossible and, as a matter of morals, very disturbing attempt to reverse a course on the part of the accused. This is not “I have never met the woman, but if I did, she consented”, or anything like it.

At trial it was run on the basis, our dealings with each other, anterior and during the alleged events and afterwards were such as either – with no onus on us, of course – to show there was consent, or to prevent the making out of the necessary fault element of knowledge or recklessness, given the ambiguity, the lack of manifestation, lack of consent if there had been no consent.

It is for those reasons, in our submission, that this is not a case appropriate for a grant of special leave.

EDELMAN J: Mr Walker, does your submission basically reduce to the fact that a grant of special leave would ultimately only involve this Court considering whether or not procedural fairness was afforded in the Court of Appeal in relation to one of the two only elements of the offence relevant to the question on the ground of appeal concerning unreasonableness, and with the consequence only that if the Court were to allow the appeal, it would then just be remitted to the Court of Appeal to rehear exactly the same issues again?

MR WALKER: Yes, that is our submission, and there has not been a syllable suggestive of why, on the merits of that matter, the Crown has a case different from the way in which the case was put at trial and on appeal. There can be no doubt that elements of the offence – which include but are not confined to consent – were in play in the Court of Appeal. Yes, is the answer.

KEANE J: Mr Drumgold, do you accept that if the matter were remitted to the Court of Appeal following a successful appeal, it would be open to Mr Walker’s client to argue on the footing that the conclusions reached by the majority in the case below were correct and open?

MR DRUMGOLD: It is difficult to answer that question without hearing the arguments, your Honour. I will pause to just say it was accepted by the Court of Appeal by two to one that recklessness was not canvassed at trial at first instance. That is on Chief Justice Murrell’s judgment at 7 and Justice Charlesworth mentioned it at 250.

The question of whether or not it would be open to address the issue of recklessness on the evidence – I could not speculate on that because in theory it would be. The merits of it are a different thing, without me saying any submissions to that effect. I do, however - I cannot quarrel with my friend’s submissions about the value of this case as having visited error in this particular matter. This is purely a principle appeal.

KEANE J: Anything further in reply?

MR DRUMGOLD: Nothing further, thank you, your Honours.

KEANE J: Thanks, Mr Drumgold. The Court will adjourn briefly to consider the course it will take.

AT 10.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

KEANE J: The determination of the appeal foreshadowed by this application would turn upon a consideration of the particular circumstances of the trial and the appeal, not upon any issue of general principle of sufficient importance to warrant the grant of special leave to appeal. In addition, a grant of special leave is not warranted by considerations concerning the due administration of justice. The application for special leave is dismissed.

Adjourn the Court, please.

AT 11.01 AM THE MATTER WAS CONCLUDED