Palliyaguruge v The King [2023] HCATrans 81 (9 June 2023)

Last Updated: 13 June 2023

[2023] HCATrans 81

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M71 of 2022

B e t w e e n -

DON KUSHAN PALLIYAGURUGE

Applicant

and

THE KING

Respondent

Application for special leave to appeal

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 9 JUNE 2023, AT 1.27 PM

Copyright in the High Court of Australia

EDELMAN J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.D. GURVICH, KC appears with MR P.J. SMALLWOOD for the applicant. (instructed by Paul Vale Criminal Law)

MS D.I. PIEKUSIS, KC appears with MR G.L. BUCHHORN for the respondent. (instructed by Office of Public Prosecutions (Vic))

EDELMAN J: Yes, Mr Gurvich.

MR GURVICH: Your Honours, we require an extension and we make an application for that extension of time.

EDELMAN J: Is that opposed, Ms Piekusis?

MS PIEKUSIS: It is opposed, as it is submitted there are insufficient prospects of success which would warrant a granting of an extension of time.

EDELMAN J: Mr Gurvich, we will hear your submissions and deal with it together with the merits of the application.

MR GURVICH: If the Court pleases. The Court of Appeal’s approach in this case was to ask the question, was the evidence sufficient to sustain a conviction; to ask the question, was there evidence upon which a jury might convict, and its function to undertake an independent assessment and an independent examination of the evidence was not discharged. In our submission, this is not about sufficiency of evidence but about quality. If we can take your Honours to the important passages with respect to each of the charges at application book 89, with respect to charge 1, at paragraph 72, this was part of the Court of Appeal majority’s analysis. They stated that:

At the very least, it would not be easy –

And so on, and then a few lines down:

it may have been possible in the present case –

paraphrasing, to have physically committed the offence. Then at paragraph 74, the majority concluded, towards the bottom of that paragraph, your Honours, that the complainant’s:

account of the digital penetration was not so inherently improbable that the jury was bound to doubt that –

it could have happened, and then conclude at paragraph 80 that:

For those reasons, the jury was not bound to entertain a doubt –

In a similar way, with respect to charge 2 ‑ ‑ ‑

EDELMAN J: Mr Gurvich, you accept, do you, that the jury could have rejected some of the complainant’s details as to the precise manner and precise circumstances in which it occurred, but nevertheless still accepted the gist of the complainant’s complaint on count 1?

MR GURVICH: We accept that to a point. What we say about charge 1 is that the analysis performed by the dissenting judge on that charge, Justice Kennedy, where the quality of the evidence was properly assessed, led to the necessary conclusion that it was an unsupportable, insupportable or dangerous conviction.

EDELMAN J: Count 1 had the effect of adding eight months to the sentence, is that right?

MR GURVICH: Yes, that is correct, your Honour. Just moving to charge 2 if we may, your Honours, in a similar vein at paragraph 81 the majority reasoned that:

the jury was entitled to accept the reliability of PG’s evidence in general.

And:

The jury was not bound to accept the applicant’s evidence –

And then at paragraph 84:

In short, there is no reason to doubt the jury’s verdict –

In our submission, that is an approach similar to the one adopted in Morris in the High Court, and other decisions where there was no proper assessment of the reliability and the cogency of the evidence conducted by the Court for itself. We turn now to charge 3, which was addressed mainly at paragraph 90, where the court reasoned that:

once the jury accepted the evidence of PG, as they were entitled to do and we must assume they did, they were not bound to entertain a reasonable doubt –

about penetration. And importantly:

While it would have been open to find the applicant’s evidence of the night’s events plausible and doubted the account of PG as a result, they were not bound to do so . . . and there was nothing to require the jury to have a reasonable doubt that he did so.

Penetrate her. In our submission, those passages make clear that nothing was said about a doubt that might be experienced by an appellate court, by this Court, and nothing was said about, notwithstanding that there may be evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow a verdict of guilty to stand.

EDELMAN J: It is a doubt that would be experienced by the Court having regard to the advantages that the jury possessed, particularly, here, in circumstances where the jury had obviously found the complainant to be both credible and reliable.

MR GURVICH: Yes, what we say about that is the obligation on the Court of Appeal, number one, is not discharged by simply observing that the jury was entitled to accept her evidence and act upon it. What the Court of Appeal did here was to merely find the evidence sufficient or repose on jury acceptance of it, and, really, in our submission, merely identified a pathway to guilt rather than weighing those matters which militated against guilt in order to determine where the jury ought to have entertained a reasonable doubt.

In some aspects of the decision, it is really pitched as a contest between complainant and accused, but more importantly, whilst the Court of Appeal did ask itself the question, was there a realistic possibility that the offending occurred, that question was asked and answered. What was not asked nor answered was, ought the jury have had a reasonable doubt, ought they have an ‑ ‑ ‑

GLEESON J: Mr Gurvich, this is really a question about the correct application of the principles articulated recently in Dansie, is it not?

MR GURVICH: It is about the correct application. It is, your Honour, yes.

GLEESON J: Is it anything more than that?

MR GURVICH: It is more than that in that here the Court of Appeal did indeed set out the test correctly in at least one passage, but then in applying it not only misapplied it, but expressed other manners of purporting to apply the test, but doing so wrongly, in our submission, on occasion inverting the onus of proof, and not properly assessing for itself. But – yes, your Honour, it ultimately comes down to a correct application of the test in a way that was not performed in Morris and other cases and makes it significant and important that the test is properly applied in each case. I hope that answers that question, your Honour. Returning to ‑ ‑ ‑

EDELMAN J: You do not say, Mr Gurvich, that there is anything wrong with paragraphs 64 and 65 where the Court of Appeal set out the M test and the application of it?

MR GURVICH: There is nothing at all wrong with that. That is the proper expression of the test, which simply makes it more of a stark issue as to why the test was not properly applied and ‑ ‑ ‑

EDELMAN J: Why was it not properly applied? Without focusing on any alleged verbal infelicities, why was not what the majority went on to say really just a way of explicating what they had said at paragraph 65(c)?

MR GURVICH: The analysis performed, commencing at paragraph 71, was an analysis of bases for the possibility of finding guilt, and nothing more than that. It failed to engage in the question of anything beyond the reasonable possibility of the complainant being correct, credible and believable and reliable. By failing to go beyond that question, the Court failed to properly independently assess the quality of the evidence.

EDELMAN J: But if all of the other evidence establishes that the jury could have found that the complainant was credible and reliable, then does it not follow from that that if the jury had significant advantages over the Court of Appeal that any doubts the Court of Appeal might have could be dispelled by the advantages that the jury had?

MR GURVICH: We do not take any issue with the logic of that approach that that is, of course, correct, but what occurred here, in our submission and in the Court’s analysis, was the assumption that the complainant’s evidence was credible and reliable was adopted, and then it is quite right to proceed on that assumption that the jury did assess her evidence to be credible and reliable, but the second step of, notwithstanding that assessment to assess for itself whether the Court is satisfied that the jury ought to have entertained a reasonable doubt, was not conducted.

That acknowledgment of the jury’s benefit, that your Honour Justice Edelman expressed, did not relieve the Court of assessing the capacity of the evidence to establish guilt. And, in our submission, the Court failed to assess that capacity, because if they had assessed that capacity there would have been, quite clearly, expressions within the analysis of serious unreliability issues, and serious inconsistencies and
doubts and discrepancies, to adopt and paraphrase the language in M’s Case, and that was not done. Although those matters were mentioned in earlier passages in the judgment, those matters were not addressed as part of the analysis in each of the charges as it was in Justice Kennedy’s analysis of charge 1.

If we can move to the second ground, which relates only to charge 3, if it is convenient to do that now, your Honours, here, we submit that there was an illogicality with respect to the court’s reasoning that the case did depend on satisfaction beyond reasonable doubt that the complainant’s DNA was transferred to the applicant’s penis during the act of sexual intercourse and in no other manner.

The DNA evidence quite clearly demonstrated that secondary transfer was at least a clear possibility. There was no dispute that that was an essential link in the circumstantial case. And notwithstanding, of course, the evidence in a circumstantial case must be considered in its entire context in the way that this Court made clear in Hillier and Baden-Clay, nevertheless, there was nothing about those other circumstances which was persuasive of – let alone persuasive, was satisfactory to establish that penetration had occurred, the complainant having no memory whatsoever of any penetration and complaining that she thought she was raped and little else to establish guilt on that charge. It is really at paragraph 88, application book 92, the court, in our submission, logically concluded that:

Accordingly, it is not the case that the jury had to exclude any reasonable hypothesis, consistent with innocence, by which the DNA could have found its way on to the applicant’s penis other than by him placing it in her vagina.

In our submission, that was not the case, and that other reasonable hypothesis that was advanced clearly on the evidence had to be excluded beyond reasonable doubt.

Those are the matters we wished to raise, your Honours.

EDELMAN J: Thank you, Mr Gurvich. Ms Piekusis.

MS PIEKUSIS: Thank you, your Honour. As was conceded by my learned friend, the court below correctly at application book page 88, paragraphs 64 and 65 stated the test to be applied when considering the ground of appeal. The manner in which the court has phrased its application of that test throughout their reasons is not a misapplication of the test. It is clear, when one looks at the reasons as a whole, that the court has undertaken its own independent assessment of the record. That commences with the heading “Analysis” above paragraph 63, and then the headings that relate to the individual charges of 1, 2 and 3.

The court below did not merely identify a pathway to guilt. They clearly undertook that analysis, and despite referring to – or stating it as the jury not having been bound to have entertained a reasonable doubt, they are doing no more than emphasising the essential test that was to be applied when determining whether it was open to the jury acting reasonably to be satisfied beyond reasonable doubt. Because, as was made clear by the court in Pell, there may be various ways of expressing the test set down by the majority in M. Whether it is the use of the word “must” or “ought”, “nonetheless” or “bound to have entertained a reasonable doubt”, each expression, it is submitted, amounts to the same thing.

EDELMAN J: What do you say, Ms Piekusis, about the first sentence of paragraph 88?

MS PIEKUSIS: The first sentence of paragraph 88 is merely a statement of how the jury is to treat any circumstantial case, which is not to look at it in a piecemeal approach and isolate one piece of evidence and, therefore, say, in this case, where there was an argument regarding whether the DNA found its way onto the applicant’s penis by way of transference or by way of penetration, that that in isolation of other evidence ought to be considered by reference to whether it could be excluded that that there was any reasonable hypothesis consistent with innocence by which the DNA could have found its way onto the applicant’s penis. It is really the last sentence of paragraph 88 which is the correct application of the law as it applies to circumstantial evidence, that being:

The task for the jury was to decide whether, on the whole of the evidence, there was a reasonable hypothesis consistent with the applicant’s innocence which the jury could not exclude.

EDELMAN J: Was it suggested in the Court of Appeal that the DNA evidence was a necessary link in any chain of reasoning leading to conviction, and a necessary link that would need to be proved beyond reasonable doubt?

MS PIEKUSIS: Not beyond reasonable doubt, no. It was conceded that it was, and the Court refers to that – if I may just have a moment – at paragraph 85, application book page 91. The second‑last sentence:

In the hearing in this Court, both counsel accepted that the presence of PG’s DNA on the shaft of the applicant’s penis was an essential step in reasoning to a conviction, and that without that evidence, the applicant would have had to be acquitted.

But it was not the only evidence relied upon, and the Court below, then, does refer back to paragraph 62 of its reasons, where it summarises the respondent’s analysis of the evidence that was also relied on in support of charge 3. In particular, paragraph 62(a). PG’s evidence ‑ ‑ ‑

EDELMAN J: I do not quite follow your submission on that, because, if:

That part of the DNA evidence was an ‘indispensable link in the chain of reasoning –

it is a Shepherd link, in that sense – so that it has to be:

proved beyond reasonable doubt –

How is that consistent with the first sentence of 88, where it is said that:

it is not the case that the jury had to exclude any reasonable hypothesis, consistent with innocence –

MS PIEKUSIS: Its presence is indispensable; how the DNA found its way on to the applicant’s penis was not indispensable, and indispensable to our link in the chain.

EDELMAN J: I see.

MS PIEKUSIS: That is why there is reference to that other material, which then supports the circumstantial case. Hence there being no requirement that one piece of evidence be proven beyond reasonable doubt. That, essentially, also deals with the submissions I sought to make in relation to ground 2.

EDELMAN J: Thank you, Ms Piekusis. Mr Gurvich, anything in reply?

MR GURVICH: On charge 3 my learned friend pointed out what was said at paragraph 85, and that is correct, that the presence on the shaft of the penis was an essential step in reasoning, which, in our submission, made it essential that in the reasonable hypothesis consistent with innocence, which is the one set out at paragraph 7 of application book 75, the foot of paragraph 7, that it:

did not exclude an inference consistent with innocence that was reasonably open – namely, that the applicant had not penetrated PG with his penis but had transferred her DNA to his penis from his hand while urinating.

There was nothing in paragraph 62, subparagraph (a) or otherwise, that could fill in the gap left with a reasonable doubt as to the act or fact of penetration.

EDELMAN J: But the expert evidence was that the DNA could have found its way onto the applicant’s penis in both ways. In other words, they were not mutually inconsistent.

MR GURVICH: That is right, but what could not be excluded was the secondary transfer. The act of secondary transfer could not be excluded in a similar way to that that occurred in Fitzgerald.

So, once you put to the side – which you really can – the matters in paragraph 62, because they do not go anywhere near establishing the fact of penetration, because the complainant remembers nothing or very little of what had occurred, and made a complaint of – thinking of rape but not that rape had occurred, it really does place the position squarely in the territory of a Fitzgerald-type analysis, and the Court of Appeal reasoning in paragraphs 85 and 88 simply does not flow. That is all I wish to say about that, your Honours.

EDELMAN J: The Court will adjourn briefly to consider the course it will take. Please adjourn the Court.

AT 1.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.55 PM:

EDELMAN J: There are insufficient prospects of success to warrant the
grant of special leave in this matter. In those circumstances, it would be
futile to grant an extension of time. Special leave is refused. Please
adjourn the Court.

AT 1.55 PM THE MATTER WAS CONCLUDED