O'Hearn v The Queen [2022] HCATrans 44 (18 March 2022)

Last Updated: 23 March 2022

[2022] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S105 of 2021

B e t w e e n -

DAVID ANTHONY O’HEARN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 18 MARCH 2022, AT 2.30 PM

Copyright in the High Court of Australia

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

MR J.S. STRATTON, SC appears with MS T.R.M. HENNESSY for the applicant. (instructed by Bannisters Lawyers)

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

EDELMAN J: Yes, Mr Stratton.

MR STRATTON: Your Honours, I read the affidavit of James Jephcott Lang affirmed on 23 July 2021. Your Honours, this appeal raises for consideration significant issues concerning the Evidence Act. In particular, it raises the question of what is the proof of the conviction of a witness in cross‑examination evidence of? At trial, the Crown called the former priest, Vincent Ryan, to rebut the contention in the defence case that the complainant MB may have mistakenly identified the applicant as a person who sexually assaulted him and that there was a reasonable possibility that the person who sexually assaulted him was Vincent Ryan.

Vincent Ryan gave evidence that he had pleaded guilty to and been convicted of sexually assaulting all 27 boys he had actually sexually assaulted, but he had not sexually assaulted MB. When he was asked if he was sure he had told the police about all his victims, he responded, quote:

“I am absolutely certain about that. I know who my victims were. I told the police about them all. There is no shadow of doubt in my mind. I have told everything there was. There is no way in the world I would leave anybody out and I wouldn’t forget. Those things are imprinted in my brain. I can’t get rid of them.”

When Vincent Ryan was asked in cross‑examination if he was guilty of outstanding charges of sexually assaulting two additional boys, he denied those charges quote, “absolutely”, unquote. The Crown’s contention, which gave the testimony of Vincent Ryan its strength, was that, in effect, Vincent Ryan was a sexual molester of children, but that he was an honest one.

Section 103 of the Evidence Act permits cross‑examination of a witness about matters which could substantially affect the credibility of a witness as an exception to the credibility rule, that is, section 102 of the Evidence Act.

EDELMAN J: Mr Stratton, could I just ask you, the appeal in relation to these provisions of the Evidence Act was not argued on the basis that in light of the fresh evidence of Mr Ryan’s convictions that, irrespective of their admissibility, his evidence at trial would have taken a very different course. In other words, the focus of the appeal was solely upon the admissibility of the convictions and the extent to which that admissibility could be used in cross‑examination.

MR STRATTON: Your Honour, I agree that a concession was made. The convictions could not be used in order to determine whether or not Vincent Ryan had sexually assaulted the additional boys, if I could describe them that way. We say that concession should not have been made in the Court of Criminal Appeal.

EDELMAN J: What I am asking is not really about the concession that was made, but whether or not there was any argument that was made that, irrespective of the admissibility of the confessions or the use to which the convictions could be made in cross‑examination, that the practical effect of those convictions is that Mr Ryan’s answers to questions would have been different, and that those answers, or the different nature of them, might have revealed a substantial miscarriage of justice. That type of argument was never raised in the Court of Appeal.

MR STRATTON: Yes, that is conceded. It has been put on a different basis in this appeal, but nevertheless the argument was the effect that the fresh evidence would have had on a jury in a hypothetical retrial.

GLEESON J: Mr Stratton, was there any application for adjournment of the trial?

MR STRATTON: No. At that stage there was quite a delay of time. I cannot tell your Honour exactly how much between the time of the trial of the applicant and the trial of Vincent Ryan for the two additional boys. We might have that information in an affidavit - I will just see if we can locate it, but I think it was a distance of some years.

GLEESON J: Just another question - is the applicant still in custody?

MR STRATTON: He is not, your Honour. Your Honours, section 103 of the Evidence Act permits cross‑examination of a witness about matters which could substantially affect the credibility of a witness as an exception to the credibility rule, that is section 102. Section 103(1) states that one matter that can be taken into account in making that determination is evidence that a:

witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth –

and we say that that is particularly relevant in this case. Section 106 states:

The credibility rule does not apply to evidence that is relevant to a witness’s credibility . . . if—

. . .

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and –

with the Court’s leave. Leave is not required under certain specified situations, which include evidence which proves that the witness:

has been convicted of an offence –

section 106(2)(b), and another specified situation is proof that the witness:

has knowingly or recklessly –

lied while under a legal obligation to tell the truth, section 106(2)(e). We say both those provisions are relevant to this appeal.

EDELMAN J: Mr Stratton, how could the conviction of Mr Ryan be used in cross‑examination of him other than, relevantly, to contradict the evidence that he had given on the underlying facts concerning the conviction?

MR STRATTON: That is precisely how it would be used. It would be anticipated that in a retrial, Vincent Ryan would maintain that he had not sexually assaulted the two additional boys. He would then be asked if he had been convicted of the sexual assault of those two additional boys, and it is the submission of the applicant that that conviction could be used by the jury as evidence going to his credibility, that is, that they would not accept him – the jury would be invited not to accept him as a truthful witness.

EDELMAN J: Would.....need to bring yourself within an exception to section 91?

GLEESON J: Justice Edelman, I cannot hear Mr Stratton.

MR STRATTON: I think we lost contact with your Honours just briefly, but I can hear your Honours. Can your Honours hear me?

EDELMAN J: We can hear you, and you have unfrozen now, Mr Stratton.

MR STRATTON: Thank you, I am relieved to hear that. I was taking your Honours to section 106, and it is submitted that section 106 is a modified version of the rule at common law that a witness’ answers to questions going to the credit of a witness are generally regarded as final with some exceptions including proof of a witness’ convictions.

In the present case, the applicant argued that in a retrial of the applicant, the defence would be able to cross‑examine Vincent Ryan about his denial that he had sexually assaulted the two additional complainants, and he was convicted of sexual assaulting in the judge alone trial before Judge Yehia, which took place after the applicant’s trial.

Your Honours, I am instructed that in relation to Justice Edelman’s question, the trial of the applicant took place in February 2016. Vincent Ryan’s trial took place in early 2019, and your Honours will find that at application book 147, paragraph 19.

EDELMAN J: That is what makes the evidence of the conviction fresh, but it is not necessarily what makes it admissible.

MR STRATTON: That is conceded, but it is one of the things that makes it admissible, in my submission. If Vincent Ryan maintained that he had not sexually assaulted the additional boys he could have been asked if he had been convicted of sexually assaulting them, and if he had denied that conviction, the convictions could be proved, if necessary, by a certificate under section 178 of the Evidence Act. In the Court of Criminal Appeal, the Crown relied on section 91(1) of the Evidence Act. That provision has the effect that a decision or finding:

in an Australian or overseas proceeding -

including a conviction:

is not admissible to prove the existence of a fact that was in issue in that proceeding.

The Crown argued that:

By reason of s 91 of the Evidence Act 1995 (NSW), the fresh evidence of Ryan’s convictions for –

offences relating to the two additional complainants could only be used to prove those convictions, but:

not the conduct underlying the convictions.

That is at the Crown’s response at paragraph 2, application book 175 and paragraph 22 at application book 179. Now, we say that that is enough ‑ ‑ ‑

GLEESON J: Mr Stratton, could I ask you a question about the last sentence of paragraph 7.11 of your submissions? I do not understand it. How would the tender of the evidence establish that Mr Ryan was lying, except by suggesting that he was guilty of the relevant offences?

MR STRATTON: My submission is that it is a matter going to credit, that ultimately the purpose of proving that Vincent Ryan was – and of putting before the jury the fact that he had been convicted of the sexual assault of the two additional boys would not be to prove that fact as evidence of that fact in isolation, if I can put it that way. It was an attempt – it would not be an attempt to establish guilt by way of tendency evidence, if I could put it that way.

The purpose of the tender would be in order to establish that he had given false evidence on oath in the earlier proceedings about it. In other words, to establish that he was a liar. It is conceded that the Crown could ask for and would be entitled to get a direction that that evidence could not be used in a tendency basis but could only be used as going to the credit of the witness, Vincent Ryan.

EDELMAN J: But the reason, Mr Stratton, why the evidence would.....he was a liar, as you submit, is because the conviction would be relied upon for the proof of the fact that he had committed the offences that he had denied commission of.

MR STRATTON: Yes. With respect, I agree, but in my submission, section 91 does not prohibit that. In particular, section 91(2) contemplates the possibility that there would be a situation where evidence would be introduced which would fall foul of its use under section 91(1) that could be used as evidence for an additional purpose, that is, section 91(2) states:

Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

EDELMAN J: But that may be, Mr Stratton, where, for example, it is necessary simply to prove that a person has been convicted of some offence, rather than to prove any of the underlying facts of that offence.

MR STRATTON: Well, it is submitted that at least it must involve – the applicant must be entitled to show not just that he had been convicted of an offence, but it was an offence which, on his oath, he had sworn that he had not committed. In other words, it has to at least – the applicant at least has to be entitled to prove that it is a lie.

GLEESON J: Mr Stratton, in that case, what is the scope of the exception in section 92(2) of the Evidence Act?

MR STRATTON: Did your Honour say section 92(2)?

GLEESON J: Section 92(2), what more is permitted in a civil proceeding that is not permitted in a criminal proceeding?

EDELMAN J: Mr Stratton, I mean, my understanding of section 92(2) was that the purpose of it was to substantially confine the decision in Hollington v Hewthorn so that, in civil cases, it was possible to do the very thing that you say should be able to be done in criminal cases.

MR STRATTON: Yes.

EDELMAN J: But section 92(2) is confined to a civil proceeding.

MR STRATTON: Yes. Your Honours, clearly, 92(2) does not have application to the current case, but could I put it to your Honours this way. It is difficult to see what other application section 91(2) would have if it was not to have application for a situation such as this, that is, where evidence of a prior conviction is being tendered for a purpose going to credit but not going in order to prove, by direct means, the facts of the case. In other words, it is not being relied upon as tendency evidence. It is evidence going to the credit of the prosecution witness.

My submission to your Honours is that if it did not - if the drafters of the legislation did not have a situation like this in mind, it is difficult to imagine what the purpose of section 91(2) was. Your Honours, section 91(2) of the Evidence Act states that evidence which is admissible in this part:

to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

We say that it is precisely this sort of situation that the legislature had in mind for the exception under section 91(2), that is, that it permits the use of the conviction for a purpose such as going to credit. It is conceded that by operation of section 91(1) that the evidence of Vincent Ryan’s convictions were not admissible as tendency evidence, but that they were admissible in order to prove that Vincent Ryan was lying.

The Crown has argued that the proof that Vincent Ryan’s convictions for the charges relating to the two additional complainants would not be used to establish as a fact that he had engaged in the conduct underlying the offences. It is submitted that in a retrial, if he maintained those denials, that the convictions would be admissible in order to establish that he was a liar, but no more.

It is submitted that if there was no ability to prove that the facts underlying the conviction, as the Crown asserted at paragraph 22 of the Crown submissions, application book 179, then it would a futile exercise to prove a prior conviction of a witness in cross‑examination. By way of an example, if a witness had a prior conviction for perjury, the witness could clearly be cross‑examined about that conviction as a matter going to the witness’ credibility - that is at section 103 - and if the conviction was denied, then the conviction could be proved under section 106, and both those sections in effect specifically have in mind, it is submitted, that is that sort of situation.

However, on the Crown’s argument, if there was a proof of the witness’ conviction for a perjury, that could not be used as evidence of whether the witness had lied on his oath or affirmation. In my submission, that would in effect render useless the ability given to cross‑examiners to prove a prior conviction of a witness.

In relation to ground 2, the Court of Criminal Appeal took the view that because only the fact of the convictions would be admissible, and their significance limited to the witness’ credibility generally, it would be difficult to see how the evidence of Vincent Ryan’s conviction for the sexual abuse of the two additional boys would have had any additional impact on the jury’s assessment of his credibility.

But on behalf of the applicant, what is put is this. The way that the Court of Criminal Appeal approached it would mean that the Crown would be allowed to maintain, as it did in the trial and in the appeal, and in particular in the trial, that Vincent Ryan may have been a molester of children, but was an honest one, and that was the strength of the prosecution case, and in particular, of its reliance on Vincent Ryan.

It is submitted that the fact that the applicant was not allowed to cross‑examine Vincent Ryan about his prior convictions meant the applicant was denied the opportunity in order to establish that Vincent Ryan was not only a molester of children but a dishonest witness. Those are the submissions on behalf of the applicant.

EDELMAN J: Thank you, Mr Stratton. Ms Roberts.

MS ROBERTS: Thank you, your Honours. The core of the applicant’s contention in the Court of Criminal Appeal and in this Court is that a miscarriage of justice has arisen from the absence of fresh evidence. The fresh evidence relied on is only Vincent Ryan’s convictions for four offences of indecent assault against two boys occurring at a time when Ryan was a priest.

Plainly enough, those convictions are for crimes, the elements of which involve unlawful sexual acts. They are not crimes involving elements of dishonesty, yet the applicant seeks to rely on those convictions, not to establish that Ryan was a person convicted of sexual abuse of a child or children, but to demonstrate that he is a liar or a dishonest witness.

To demonstrate this, the applicant must necessarily rely not just or only on proof of the convictions, but critically on proof of the facts that underlie those convictions. It is that particular use of the convictions which is expressly prevented by the terms of section 91, and that, in our submission, is what the New South Wales Court of Criminal Appeal correctly found. Section 91 of the Evidence Act provides that a conviction, the evidence of a decision in criminal proceedings in Australia:

is not admissible to prove the existence of a fact that was in issue –

in the criminal proceedings resulting in the conviction. Even in cases in which evidence of a conviction is admissible for a purpose other than proving the existence of a fact that was in issue, section 91(2) continues to limit the use of the evidence.

EDELMAN J: Ms Roberts, it may be that this was not the way the appeal was run, but why could it not be said that if fresh evidence were to establish that a witness – or a crucial witness – such as Mr Ryan, could not realistically, or was very unlikely realistically to have given the answers that he gave at trial, that by itself, irrespective of the admissibility of that fresh evidence, that fresh evidence could establish a miscarriage of justice?

MS ROBERTS: Your Honour, first of all, of course, that was not the way that the appeal was run. In fact, it was clear that the appeal was run on the basis that only the convictions, not the judgment, and not the underlying evidence, was fresh. The underlying allegations that gave rise to the convictions in 2019 were not, in fact, fresh evidence within the meaning of those authorities, and that was accepted, and it is so because Vincent Ryan was asked, to a very limited extent, he was asked some questions about the upcoming trial proceedings ‑ ‑ ‑

EDELMAN J: All that can be accepted, but the question is really, in light of the convictions it might be ‑ ‑ ‑

GLEESON J: Justice Edelman, I am cutting you off because I cannot see Mr Stratton.

EDELMAN J: Mr Stratton, can you hear us? We might adjourn briefly to see if we can re‑establish the connection.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.58 PM:

EDELMAN J: Mr Stratton, I think we have you back by audio link now. At the point you dropped out, I think I had just asked Ms Roberts why it could not be said that a miscarriage of justice could occur in circumstances in which the mere fact of a person’s conviction might be sufficient to say that different answers to very significant questions might have been given.

MR STRATTON: Yes, thank you, your Honour, I heard your Honour say that, and we dropped off very shortly after Ms Roberts started speaking.

EDELMAN J: Yes. Ms Roberts.

MS ROBERTS: Yes, thank you. Your Honours, first of all in these circumstances, Vincent Ryan’s evidence, or Vincent Ryan’s denial that he sexually assaulted the complainant, MB, and his denial of his memory of the complainant, MB, was not the only evidence that the Crown relied upon to refute the mistaken identity reasonable possibility case raised by the applicant at his trial.

The jury, of course, also heard evidence from the complainant, MB, who knew both priests, and his assertion in cross‑examination, more than once, that he was not mistaken about the fact that it was the applicant rather than Ryan who was his abuser, but in addition to this, the jury also heard from both of MB’s parents, who knew both priests, and who gave evidence that it was the applicant and not Ryan who came to collect the complainant once or twice a week by arrangement to ostensibly go and play squash together.

That evidence is summarised in the trial judge’s summing‑up in the application book at page 70 and paragraph 107 of the summing‑up at 71 to 72 of the application book.

Secondly, your Honour, whilst it may be the case at a notional retrial in circumstances where the 2019 convictions were in existence that the evidence or the cross‑examination of Ryan may not have proceeded in precisely the same way, it remains the case that the convictions after trial in 2019 could never establish that Vincent Ryan was lying, and that is for two reasons.

The first is the construction of section 91, which is that it is not permissible to rely upon a conviction in proof of the underlying facts in issue and the applicant’s assertion that that could be done as a stepping stone to proof that the witness, Ryan, was a liar, in the respondent’s submission, impermissibly circumvents section 91(1) and what is its purpose.

Secondly, the fact of the convictions, even if they were permitted to establish the fact, which they are not, that Vincent Ryan sexually abused a particular boy or boys who he said he did not recall, they of themselves could not establish that he was lying about that. There is more than one possibility flowing from the fact that the trial judge, in sitting alone without a jury in 2019, reached verdicts of guilty with respect to those charges and only one of those possibilities is that there was a finding that he lied.

There are other possibilities. Plainly, his denial must have been rejected. We know that that is to be the case, but he could be mistaken, he could be misremembering, there are many other explanations which, in the respondent’s submission, leads in or feeds in to the purpose of section 91, which is to prevent conclusions or findings of fact in one proceeding being imported into another proceeding as conclusions or final conclusions on those facts in issue. It is for the – sorry, your Honour.

GLEESON J: Ms Roberts, is it fair to say, as Mr Stratton did, that Mr Ryan was put forward as a sex offender, albeit an honest one?

MS ROBERTS: Those words were not the words used in the trial, but it is fair to say that the Crown relied on his assertion that he did not know the complainant, MB, and that that was part of the reason that despite him being plainly a prolific child sex offender, he said that he did not know that complainant and did not abuse that particular complainant, but that was in conjunction with the other evidence at the trial, including the parents of MB, that they also knew both priests and were able to distinguish between them and were clear that it was the applicant and not Father Ryan who had come to collect their son to play squash and to talk to him about his problems.

So, it is the case that the Court of Criminal Appeal held, correctly in our submission, that in circumstances in which the applicant was asserting that there was a possibility that one of the complainants at the trial had mistaken him for Ryan, the fact – Ryan’s prior convictions, his many convictions for sexually abusing children, were relevant to his credibility, but that is the limit that the use to which those convictions may be put, or the purpose for which they may be used.

The limited purpose for which the 2019 convictions could be used is the reason why the Court of Criminal Appeal was correct to hold that there was no miscarriage of justice in the circumstances of the applicant’s case. The fresh evidence of the 2019 convictions, the applicant submits should be available to show that Ryan lied or was mistaken about his evidence that he remembered all the boys he had offended against, but the applicant could not show that Ryan lied without first showing that he engaged in particular conduct against additional particular complainants who Ryan said he did not remember, and those were the facts in issue in the 2019 proceedings.

So, even at a future trial with different cross‑examination, to return to your Honour Justice Edelman’s question, that proposition could not be put. That is, the convictions themselves could not be relied upon to make good that proposition, and the evidence that underlay those allegations, the evidence that was called in the 2019 trial, was accepted and held not to be fresh evidence.

There was no way, consistent with the proper construction and application of section 91, for that contention to be made good. For those reasons, the child sex abuse convictions cannot be used, and could not be used, and still cannot be used to prove that Ryan is a dishonest witness or a liar, but only prove that he is a convicted paedophile, and in Ryan’s case, that fact was already well and truly established and was well and truly before the jury in the applicant’s 2016 trial.

So, for those reasons, the Court of Criminal Appeal correctly concluded that the absence of the fresh evidence did not lead to a miscarriage of justice. For those reasons, your Honours, it is submitted that special leave to appeal should be refused.

EDELMAN J: Thank you, Ms Roberts. Mr Stratton, any reply?

MR STRATTON: Yes, thank you, your Honour. We say that the relevant fresh evidence was the fact that the convictions, not the other evidence - that the Crown put to your Honours two reasons for the assertion that the new evidence would not constitute fresh evidence in the relevant sense.

The first was the argument that section 91 does not apply because it could only be used in this case relating to facts in issue. But on the Crown’s contention that would mean effectively that section 106 would be a dead letter that it would never be able to use, for example, a prior conviction of a witness for perjury as evidence to be put forward to a jury to persuade the jury that that witness was a liar.

The second reason which the Crown gave to your Honours in oral submissions was that in effect that if it was proved – if the conviction was proved, that it left open the possibility – there was a possibility that Vincent Ryan had forgotten or was mistaken in his evidence, rather than was a liar.

Your Honours, from the point of view of the applicant it does not really matter much whether it be the case that it is proved that he is a liar or that through his lack of memory he is a completely unreliable witness. That would have been, it is submitted, sufficient to leave doubts about the credibility of Vincent Ryan which would have left open, it is submitted, the reasonable prospect or at least a possibility of a jury finding him not guilty.

It is submitted that the approach which the Court of Criminal Appeal took which the Crown suggested that your Honours would accept was summed up in paragraph 41 of the Court of Criminal Appeal judgment where the court said it was difficult to see how the evidence of Vincent Ryan’s:

convictions for the sexual abuse of two more boys would have had any significant impact upon the jury’s assessment of his credibility.

That was the ultimate conclusion of the Court of Criminal Appeal, but it was addressing, it is submitted, the wrong point. The point was that if it was established that Vincent Ryan was untruthful or completely unreliable in his recollection of sexually assaulting the two additional boys, then that would be a matter which could potentially very much affect the jury’s assessment of the evidence of Vincent Ryan, and that is the Crown case. As a result, it is submitted that in rejecting the appeal the Court of Criminal Appeal was in error. Your Honours, those are the matters in reply.

EDELMAN J: Thank you, Mr Stratton. The Court will adjourn for a short time to consider the course that it will take.

AT 3.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.14 PM:

EDELMAN J: On the proposed grounds upon which special leave to appeal is sought concerning section 91 of the Evidence Act 1995 (NSW), the decision of the New South Wales Court of Appeal is not attended by any doubt. The application for special leave to appeal is refused.

The Court will now adjourn until 10.00 am on Tuesday, 5 April.

AT 3.15 PM THE MATTER WAS CONCLUDED