GJL v The Queen [2022] HCATrans 81 (5 May 2022)

Last Updated: 6 May 2022

[2022] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B51 of 2021

B e t w e e n -

GJL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 5 MAY 2022, AT 10.30 AM

Copyright in the High Court of Australia

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

MR S.C. HOLT, QC appears with MR J.J. UNDERWOOD for the applicant. (instructed by Mellick, Smith & Associates)

MR C.W. HEATON QC appears with MR D. NARDONE for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KEANE J: Yes, Mr Holt.

MR HOLT: May it please the Court. This application raises, in our submission, important issues concerning the effect of previous acquittals on retrials or subsequent trials. That topic, of course, in itself, is one which has a rich history in this Court, but it has not arisen in the context specifically that arises here.

What I would like to do first is to address very briefly why the facts, which were the subject of the earlier acquittals, were relevant in a trial of this kind because they are practically significant, on a day‑to‑day basis, in sexual offence cases of this kind.

There was, as the Court knows, a first trial of which there was a mix of, not unusually, acquittals and verdicts upon which the jury could not agree. Again, unsurprisingly in a case involving a single narrative of alleged sexual offending from a single witness, the facts that underpin those acquittals were, and will often be, those where the complainant’s reliability is best open to challenge.

That leads to significant potential difficulties in respect of a retrial of the kind that occurred here, on the charges upon which the jury were hung, because, on the one hand, one might say that all of those earlier facts - evidence that the complainant gives - often, as here, on a pre‑recorded basis - will be edited out. The difficulty for a defendant, as it was here, is that when one edits out those matters, one creates an artificially inflated view, potentially, of a complainant’s reliability and credibility.

The practical response is, as it was here, often the defence requests that those matters in fact be the subject of evidence, usually by the pre‑recording of all of the evidence of a complainant, but that the jury or here, a judge alone, be told that the matter was the subject of acquittals.

So, when conceived of in that way, in our respectful submission, the fact that this material came before the court at defence request, that is, the facts that underpin.....or acquittals and the fact that there was an agreement that those acquittals should be known by the trier of fact did give, contrary to Justice McMurdo’s reasons in the Court of Appeal, a proper legal context, that is, a proper relevance and basis for (a) those facts to be considered, that is that underlying evidence of the complainant to be considered; but (b) for the tricky question to be asked and answered of how the acquittals themselves were to be dealt with because, of course - as appears to be agreed at the Bar table - the fact that a defendant was acquitted means that the principle of incontrovertibility applies and a subsequent court should not go behind that acquittal in any way.

So, in our respectful submission, the issue of legal context, the issue of factual relevance of the underlying acts and the acquittals of them is in fact plain. What the learned trial judge here did sitting alone is that she discounted the value of those acquittals, effectively, to something.....and what the majority of the Court of Appeal did, in Justice McMurdo’s reasons, was effectively to say that they were legally irrelevant because they were led at the request of the defence rather than at the request of the Crown.

GORDON J: Mr Holt, can I ask you a question about the trial judge and the discounting that you allege?

MR HOLT: Of course.

GORDON J: So, as I understand it – and if one goes to application book 101 to 102, which is your application for special leave – and I understand you say that there is a move away from dealing with acquittals pre‑trial and acquittals as part of the trial, where does the unfairness.....in her Honour’s reasons for decision?

MR HOLT: The unfairness comes – and can I take the Court to a different page of the record book to show it in full? Can I take the Court to – yes, at ‑ ‑ ‑

GORDON J: If I have taken you out of order, Mr Holt, then I am happy to wait.

MR HOLT: No, not at all, your Honour. In terms of the reasons of the primary judge, the crux of her Honour’s reasoning is at page 17 of the record book at [26] and [27] of her Honour’s reasoning and, in fact, where her Honour there says at [27] that:

in undertaking an assessment of whether or not a jury’s verdict is unreasonable, regard should also be had for the fact that a verdict of not‑guilty does not, of necessity, mean the jury found the complainant dishonest or unreliable.

Then, a reliance on MFA v The Queen for that proposition. So, in essence, by relying on MFA v The Queen, what her Honour did was to treat the acquittal not as a statement that that offence did not occur, or as a statement of actual innocence – as Justice McMurdo found her Honour should have done if the acquittals were relevant - rather simply on the basis that the acquittal might mean one thing or might mean another.

So she treated them as decisional acquittals, which was perfectly legitimate in the context of MFA, where the question was one of inconsistent verdicts by a single decision‑maker, rather than treating them as previous acquittals with the legal consequence that Justice McMurdo found that that must have based on decisions of this Court in Washer and Storey and rather on the basis that it appears, as his Honour Justice Morrison found in dissent on the – sorry, writing on his own on the reasons without dissenting on the result of the appeal, which is that there is some lesser value to be given to an acquittal.

STEWARD J: Mr Holt, can I ask you this. For the purpose of reading those paragraphs, are these written in response to a positive submission from the defence that because of the acquittals, the complainant’s testimony should be examined more critically, or something like that?

MR HOLT: Yes.

STEWARD J: So, that positive submission was made?

MR HOLT: Yes.

STEWARD J: Thank you.

MR HOLT: I am about to say that is really at the heart of it, because the question which needs to be asked and answered is, if that evidence of things that the complainant said happened by – on which there were previous.....before the court, what was to be made of the fact of the previous acquittals and the answer, in our submission, is – and which was Justice McMurdo’s answer as well, though his Honour found it did not arise because there was no legal relevance to those underlying matters because they were asserted by the defence and not by the Crown – which is where we say the error lies – but that the use of those acquittals was to require the court to proceed on the basis that the offences for which the acquittals were entered did not occur and that that then legitimately had an effect on reliability of the complainant.

KEANE J: Now, Mr Holt, you are really submitting then that the notion of the full benefit of the acquittal means that the trial judge should have directed herself that the earlier jury had rejected or disbelieved the evidence of the complainant in relation to those particular accounts, and that that should make her more sceptical of a complainant’s evidence in relation to accounts that did not result in an acquittal?

MR HOLT: The last part of what your Honour says is correct. The mode by which one gets there necessarily involves – can I accept – a legal fiction, that is the legal fiction that an acquittal is a statement of innocence – which one knows that it is not. In fact - but which, as his Honour Justice McMurdo found, based on decisions of this Court in Washer and Storey, it must be treated as – for the purposes of compliance with the principle of finality rather than with res judicata principles.

KEANE J: Mr Holt, in the cases in this Court that you have adverted to, is there any support for the notion that the idea of full benefit of the acquittal extends to using the acquittal to suggest to the later jury – or the later trier of fact, if it is a judge – that the first jury actually disbelieved the complainant or, more generally, found the complainant an unsatisfactory witness in some way?

MR HOLT: Not in terms, your Honour, and – but the closest ‑ ‑ ‑

KEANE J: I have to say, it strikes me that it is not surprising that there is nothing to that effect in terms because it seems to me that that would be an extremely unfair result so far as the complainant is concerned.

MR HOLT: The difficulty then arises, and I can well understand why your Honour would say that as a matter of legal policy – one can well understand that to be so – the difficulty then becomes, how does one treat this category of evidence in the context of – from a complainant where acquittals have previously been entered, that is, what direction is to be given at all to a jury or self‑direction to a trial judge because ‑ ‑ ‑

GORDON J: Mr Holt, was not that a direct address by Justice Mason in Storey?

MR HOLT: Your Honour, I cannot answer that question immediately – I cannot lay my hand immediately on that.

GORDON J: His Honour there said that the directions or the summing‑up had been deficient. But, to pick up what Justice Keane said, what he was saying was, in effect, that the trial judge did not give sufficient emphasis to the fact that the jury was bound to accept the verdict of acquittal on the charges, not that it led to some other conclusion that the complainant had been misbelieved. It is actually a more nuanced and more subtle approach to the way in which the direction is given, and his Honour there sets out – I think at about page 398 – that the extent to which the direction went was it was not open to them to accept a view of the facts inconsistent with the acquittal.

MR HOLT: Yes.

GORDON J: In other words, it is a very different idea and a very different way of directing the jury to deal with the previous acquittals.

MR HOLT: With respect, what one has to do is grapple with the very problem that both your Honour Justice Gordon and Justice Keane have noted with me, which is what path of reasoning in truth is a jury or a judge sitting alone permitted to embark upon when dealing with an acquittal in respect today of a case of this kind where there are multiple allegations of sexual offences, some of which have previously resulted in acquittals, because there must be a way in which those acquittals are relevant. What the authorities make absolutely clear, of course, is that that will be determined by a close analysis of why the acquittals are relevant in the particular case, why the evidence that underpins the acquittals is relevant in the particular case.

STEWARD J: Mr Holt, is there not a qualitative difference between using the principle of incontrovertibility as a shield to prevent the Crown from impugning a previous acquittal, as against what you want to do here, and using it as a sword to assert a qualitative statement about how the jury may have considered a complainant’s evidence where a person was found in a previous occasion to have been acquitted?

MR HOLT: I think the short answer to your Honour’s question is that there is no difference in principle in an acquittal in that context being used as a shield or a sword and, indeed, with respect, our submission would be that that distinction is inapt, because the incontrovertibility principle, as this Court made clear in Carroll, arises not from principles of res judicata, as it used to be thought, but from principles of finality.

If the principle of incontrovertibility is in fact that, as a matter of law, an acquittal means, as Justice McMurdo found, that the person who was acquitted is to be treated as if they did not commit that offence, then the net result is it matters not why – for whose benefit the material is before the court, what matters is that the jury is told, or the decision‑maker is self‑directed to deal with it in a legally appropriate way.

To answer both of those questions that have just come, can I ask the Court, for ease of reference, to go to page 104 of the application book? This was where, in answer to your Honour Justice Keane’s question previously, I said “not in terms”. At paragraph 32 there is reference there to:

Aicken J (with whom Stephen J agreed) –

in Storey, where Justice Aickin notes, in the passage that is quoted there, the feeling of unease about artificiality, which again is an understandable feeling, particularly noting there that it was a matter there which was dealt with, at, effectively, defence request, but at the end:

It remains, however, clear that the direction given to the jury fell short of the requirement that is should be made clear that the accused must be regarded as not guilty of abduction.

As Justice McMurdo explained, in our submission, convincingly in the course of the judgment below, which we do not challenge, his Honour made clear that the result of that principle – and it is not a bifurcated principle, it does not apply differentially in different circumstances - is that a person is to be treated as if they did not commit the offence.

So I return, I hope not repetitively, to the fundamental proposition, which is, if it is relevant – if there were to be cases, and there will be, where what a complainant said about matters upon which a defendant was acquitted in the context of a single narrative of allegations of sexual offences by a single person over time, because those are, for the purposes of the retrial, likely to be where the witness and the complainant’s evidence will lie, then the acquittals must be relevant – which is something denied by the Court of Appeal decision here and, indeed, in conflict, in our submission, with the decision of the Queensland Court of Appeal recently in FAR, where that legal relevance was noted. The difficult question, then, of what that must involve, that is, what the direction would be and the way in which the acquittal would be treated, in our respectful submission, is one which is ripe for special leave.

Justice McMurdo seems to have concluded that, if it were relevant – that is, if there were a legal context which his Honour held that there was not – .....wrong about that but the incontrovertibility principle would have required the trial judge to direct herself that those events did not occur with whatever consequences flow from that decisionally.

Now, one extreme, one could say the consequence would be a finding of perjury. That would obviously be nonsensical. But at the very least, her Honour’s reasons would then need to, and the jury would need to be directed in another case, would need to grapple with the fact that the complainant had said something which, as a matter of findings flowing
from the principle of finality, the court had to proceed on the basis did not occur and that that is a legitimate relevant forensic advantage to a defendant – as was held in FAR but which this holding by Justice McMurdo effectively denies.

GORDON J: Is that right? I thought that you accepted the analysis of Justice McMurdo but just did not like paragraph [146].

MR HOLT: That is a blunt but accurate way of putting it, with respect. If I can take the Court – just to be clear about this – to page 93 of the record book which is where those paragraphs appear. Paragraph [143] sets out his Honour’s conclusion on the incontrovertibility principle which is, as put, what must be assumed, where this principle is engaged, is that the accused did not commit that offence.

That is where it seems that his Honour disagreed with Justice Morrison’s reasoning where his Honour was writing for himself and also disagrees with the decision of the New South Wales Court of Criminal Appeal in Gilham who also took that different view which is, rather, in our respectful submission, suggesting that there is a genuine issue to be resolved in this Court that underpins those matters.

But, at the same time, what his Honour then finds at [145] is the trial judge failed to adhere to that principle. At [146] and [147], which is where we say the vice lies, his Honour says that principle only bites if the Crown seeks to use the evidence – and here there was no legal context. Our respectful submission is that must be wrong if the way in which I started these submissions is correct – that is, this kind of evidence will be relevant and admissible and, of course, here, where the Crown accepted it to be so and acknowledged that there would be that impact and so the question then squarely arises as to how the acquittals were dealt with.

On Justice McMurdo’s reasoning – if that last bit of his reasoning is wrong – the first part of his reasoning compels the conclusion that the direction was inadequate. But, ultimately, our submission is the state of the law, following FAR and this decision – and bearing in mind Gilham – is such that this is an appropriate vehicle to deal with this important issue in this important context – where it does not appear to have been dealt with previously. Those are our submissions, may it please the Court.

KEANE J: Thanks, Mr Holt. Yes, Mr Heaton.

MR HEATON: Your Honours, we respectfully submit that the scope of the principle at play here appears in the plurality decision in Washer where the judges picked up what was said, particularly by Chief Justice Barwick and Justice Gibbs, in the earlier decision of Storey. The essence of the articulation of the relevant principle that appears then – in those judgments – is that there is a well‑established principle. We say this is the scope and this is the limit of the operation of the incontrovertibility principle that is at play here:

there is a well‑established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has been previously acquitted.

Now, I am citing there from the decision of Justice Gibbs in Storey and it was picked up at paragraph 35 by the plurality in Washer. Whilst there are a number of different articulations of what the effect of an earlier acquittal means, that is, in our respectful submission, the essence of the scope of what is at play.

So, moving then onto the circumstances in this case, what is in effect being advanced is not that there has been some disadvantage occasioned as a result of a breach of that incontrovertibility principle. It is not said that the judge in any way took into account the circumstances of the acquitted charges as some sort of foundation for her conviction of the charges that she was considering in the subsequent trial. What is said is that the miscarriage arises because the defendant – the applicant in this Court – was not given an advantage that he advances flows from what he says is the extent of what it means to be considered – or having the full benefit of an earlier acquittal.

Justice McMurdo really articulated at paragraph [124] of the judgment what was advanced by the defence in having had this evidence placed before the court. In effect.....defence counsel sought to have the court conclude – or the judge in this case – was that the full benefit of the acquittal means not simply that he was entirely innocent of the charge. That might be so as a legal concept and, indeed, those words are used in various formulations of the principle in a number of the cases.

What is advanced here seeks to take the principle a step further and really amounts to an assertion that in order to give effect to the full benefit of the plea, it is necessary that the judge direct herself that the complainant was untruthful in giving the evidence of the acquitted counts. That is, in our respectful submission, venturing into territory which is not supported either in logic nor in legal principle. Whilst the evidence in this particular case ‑ ‑ ‑

KEANE J: Mr Heaton, it is also tolerably clear – given what Justice McMurdo says at [124] and then his conclusions at [145] and [146] – that his Honour is actually rejecting the use that defence counsel sought to make of the acquittals.

MR HEATON: She was right to - when it is properly understood what was actually being advanced. Can I perhaps illustrate the proposition by reference to the circumstances in FAR, where evidence was led – again by agreement – of the circumstances – evidence from the complainant was led of the circumstances of the earlier acquitted counts. But it was said that that evidence contained inconsistencies or features which impacted upon an assessment of her credibility generally.

The problem in FAR was one of the directions that were given but evidence of that nature, it can be accepted, would be properly admitted and were it accepted by the fact finder – a judge or a jury, depending on the circumstances – that the evidence given the partly acquitted counts did reveal some basis upon which the credibility or reliability of the complainant should be viewed with circumspection then there is relevance to that evidence being admitted.

But it is clear that the evidence in this particular case was admitted simply for the purpose of attempting to have the judge regard the complainant as being lacking in credibility or unreliability, untruthful, in essence, in what she said about those counts because it is said in this Court anything less fails to give the full effect – or the full benefit – of the earlier acquittals. We say that is neither what the law is nor what it should be.

The relevance in identifying, I guess – or by reference to that example in the circumstances in FAR – we submit that the relevance of the evidence is important to understand in terms of then understanding what is to be made of it. In Washer, in particular, the case was one about admissibility but the principles that are articulated, we say, equally apply. When the evidence is admitted by agreement, then it is a question of what use is to be made of the evidence once it is in.

Understanding its relationship – in terms of its probative value to an issue in the trial – is necessary and, in this particular case, we say that the judge was right to disregard the submissions made or to reject the basis upon which the defence counsel sought to have her regard the fact of the earlier acquittal.

In any event, we say that what is the full benefit of an acquittal is to be determined by reference to the circumstances in any given case. The circumstances of the judges in this particular case dealt with it in the way that they did, having regard to the circumstances of this case. We say that no point of general principle arises, that the principle is well settled, that what is sought in this application is to extend the principle into territory which is not supported by legal principle or logic and that this is not a case
that warrants a grant of special leave. Those are our submissions. Thank you, your Honours.

KEANE J: Thanks, Mr Heaton. Mr Holt, anything in reply?

MR HOLT: Just very briefly, if I may? In Washer v Western Australia in the joint judgment of Chief Justice Gleeson, Justices Heydon and Crennan, the assumptions that would be made as to the facts that underpinned an acquittal was made clear. Their Honours said at paragraph 39:

For the purposes of the law, the acquittal established that the appellant was not a party to a conspiracy with . . . supply drugs to others; nothing more, and nothing less.

That conclusion that an acquittal means something about facts that were alleged that underpinned the acquittal is at the heart of what Justice McMurdo found. Our respectful submission is that our learned friend’s submissions, as they did in writing, perhaps, respectfully – slightly oddly on a response to an application for special leave – proceed on a basis that Justice McMurdo’s conclusions as to what the incontrovertibility principle means – as his Honour expressed – then is wrong.

It does not mean, in effect, in all cases that the person must be taken not to have committed the offence that underpinned the acquittal and that, in itself, is a matter of principle. Once this evidence was in – and it was in here with the – the Crown, in fact, led the evidence – there had to be a direction on acquittals and those directions that were given were, in our respectful submission, wrong on the basis of the incontrovertibility principle as it is properly understood. May it please the Court.

KEANE J: Thanks, Mr Holt.

The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court, please.

AT 10.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.05 AM:

KEANE J: The appeal foreshadowed by this application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. There is no reason to consider that the applicant’s conviction involved a miscarriage of justice. The application is dismissed.

Adjourn the Court, please.

AT 11.05 AM THE MATTER WAS CONCLUDED