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New Zealand Supreme Court Transcripts |
Last Updated: 1 August 2013
IN THE SUPREME COURT OF NEW ZEALAND SC 67/2012 [2013] NZSC Trans 8
ASHLEY DWAYNE GUY
Appellant
v
THE QUEEN
Respondent
Hearing: 10 April 2013
Court: Elias CJ McGrath J William Young J Chambers J Glazebrook J
Appearances: R M Lithgow QC, N Levy and A J D Bamford for the
Appellant
C L Mander and M J Inwood for the Respondent
CRIMINAL APPEAL
MR LITHGOW QC:
If it pleases, I appear with Ms Levy and Mr Bamford for the appellant.
ELIAS CJ:
Thank you Mr Lithgow, Ms Levy. Mr Bamford.
MR MANDER:
I appear with my learned friend Ms Inwood for the Crown.
ELIAS CJ:
Thank you Mr Mander, Ms Inwood. Mr Lithgow.
Well if I could just start out by looking at the question on the appeal, because the question on the appeal was whether the Court of Appeal was correct in holding no substantial miscarriage of justice had occurred when – I’m not exactly sure where that came from because the Court of Appeal held that there was no miscarriage of justice. They didn't get anywhere near the proviso. And I don't know whether that was a proposition from this Court that they accepted that on the face of it there must have been a miscarriage and if we could simply move to the question of application of the proviso, or whether that was simply a choice of words which wasn’t intended to be hung on every word, if you like.
ELIAS CJ:
A slip.
WILLIAM YOUNG J:
Well I’m not sure. I think it’s really – to get home you have to show there wasn’t a substantial miscarriage of justice or alternatively persuade us that we can't be persuaded that there wasn’t. So it does conflate both the ground of appeal and the proviso.
MR LITHGOW QC:
Probably my proposition would be following, perhaps, Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145, that it’s not really a proviso issue. It’s not a, it’s not the kind of case that would allow for the application of the proviso because the underlying case itself, which is the variation given in Matenga, is absolutely dependant on witness credibility within the underlying case.
WILLIAM YOUNG J:
But concluding whether an irregularity may have had an impact on the outcome, the nature of the case, the strength of the case, the likely reason processes of the jury
can't be ignored, and that brings into play the sort of reason which prior to Matenga
was often thought of as being proviso-type reasoning.
MR LITHGOW QC:
If that was the case, of course, the concession in Matenga is that it would be for the
Crown to establish that the proviso should be applied.
ELIAS CJ:
In Sungsuwan v R [2005] NZSC 57; [2006] 1 NZLR 730, two members of the Court, one of whom is inevitably misguided, but there was another member of the Court separately, took the view that the proviso doesn't, isn’t a comfortable fit with the miscarriage ground of appeal and applies principally to Crimes Act 1961 section
385(1)(b).
MR LITHGOW QC:
Well, you can certainly see the attraction of that. I think it’s also identified perhaps fairly that that’s not really what Sungsuwan was about. It’s a, it’s an attractive proposition. It’s also a proposition which – it’s a proviso which pre-dates the general use of the proposition unfairness as the central concern of the modern appellate course and also the Bill of Rights as to minimum standards. So – and I think in Matenga His Honour Justice Blanchard accepts that if it was unfair or there wasn’t, or there was a breach of fundamental rights that it wouldn't be the kind of case where you’d look at the proviso and in the reprise of, of the material out of R v McI [1998] 1 NZLR 696 (CA) that if it related to the administration of justice, which is what the Supreme Court of England and Wales said about this type of situation, that they also wouldn't be the kind of case where you would apply the, the proviso where you would...
ELIAS CJ:
I just really wonder, though, whether it’s, this case is going to turn on application of the proviso. Don't you really have to convince us that there was a mistake which was not immaterial which could have affected the result of the trial?
MR LITHGOW QC:
Yes.
ELIAS CJ:
Or irregularity. Not necessarily a mistake.
MR LITHGOW QC:
Well it is, it is an irregularity.
ELIAS CJ:
Yes.
MR LITHGOW QC:
I don't think anyone disputes that because it’s –
ELIAS CJ:
No, that’s, that’s accepted.
MR LITHGOW QC:
- described as such in other cases, and I think the Crown accept that. They perhaps damn it with faint praise, but it is an irregularity and it is something – well, if I, if I just first of all, by way of introduction, accept that the Crown propositions that I’ve misunderstood about when he got to the police station and how clear that was, but that’s not important in this case.
ELIAS CJ:
I don't understand what you’re saying there Mr Lithgow, sorry.
MR LITHGOW QC:
Well I said one of the problems with the interview of the accused going in is that it was material that should have been cross-examined on in relation to how exactly he got to the police station, why exactly he seemed to be charged with the holding charge of assault on a female. Now we just forget about that now. It’s not relevant. Because the Crown have gone through and shown that came out in a different place in the trial.
ELIAS CJ:
I see.
MR LITHGOW QC:
The cases that I start out with, which are R v Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200 and R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5, which in my copy of my own two cases seem to be in the wrong order, but otherwise there. Those cases, if – we will be submitting if the Court accepts the importance those two cases place upon this type of admission to the jury then this is a material irregularity.
Also we will be arguing that the Crown submissions that have been filed in relation to Matenga grossly understate the propositions in Matenga because they simply suggest that in every – that we say in every case where there is a wrongful admission of such material it must be a material irregularity. Of course we don't say that because the cases we cite as the central cases don't say that either, but also that Matenga itself would go only to looking at whether this was a serious enough impact on the underlying truth or decision about the correctness of the verdict, but Matenga says a lot more than that. It says a lot about whether or not appeal Courts should apply the proviso in certain propositions, and His Honour identifies propositions such as fairness or administration of justice.
And lastly we will place a slightly additional argument in relation to one of our submissions, and that is the important piece of evidence that was within the interview of the accused of the suspect at the police station, I guess he was the accused because he’d already been arrested, and that is the proposition at the case on appeal, that Seena was asleep. This was at page 39 of the case on appeal. All the numbers I’m hopefully refer to are the electronically imposed numbers. They occasionally get cluttered in other number systems, but page 39 on the top right- hand side. At line 35 where the police officers –
ELIAS CJ:
Sorry, I’m lost. What page?
MR LITHGOW QC:
Page 39 of the case on appeal. Now this is the transcript of the interview with the accused Guy. And the police officer states in that transcript, “Seena”, that’s the complainant, “was asleep at the time and therefore you [sic] could not give any consent that allowed you to touch her. Ah, you inserted either your finger or your penis in your [sic] vagina. Explain that to me.”
Now, the –
GLAZEBROOK J:
Sorry, I think I’m still lost.
MR LITHGOW QC:
So this is line 35. Heathcote, the, is the detective talking to Guy.
GLAZEBROOK J:
All right. Thank you. Sorry.
MR LITHGOW QC:
“Seena was asleep at the time and therefore could not give any consent that allowed you the right to touch her.” Now that is a proposition of fact and law, which is none of the police officer’s business, which is, on reflection, more important than we have put it in the submissions. That would be a classic inadmissible proposition which, if it had to go in for some reason or it went in by accident and the Judge knew about it, would be accompanied by a clear direction from a Judge that the police officer’s views on the law were irrelevant to the case.
ELIAS CJ:
This was, this was the allegation that the police officer was putting to Guy.
MR LITHGOW QC:
This was the legal proposition that a person can't consent if they’re asleep.
ELIAS CJ:
Well, it’s – but the question starts at line 21, really. “I’m putting to you the allegation,”
and then there’s an aside, and he returns to it, “was asleep at the time”. Isn’t it?
MR LITHGOW QC:
Well, it –
ELIAS CJ:
Or do you say it’s a follow-up?
MR LITHGOW QC:
It’s partly that but it’s partly an unembellished proposition that there is, it’s not
possible for there to be an answer.
CHAMBERS J:
Well let’s put that to one side for a moment. Arguably the whole statement was inadmissible on the basis that Mr Guy had said he did not wish to make a statement. It didn't go in as part of the evidence. Was that a result of a ruling by the Judge or was that because the Crown accepted it wasn’t admissible?
WILLIAM YOUNG J:
There was an agreement wasn’t there?
MR LITHGOW QC:
Well there was an agreement. The, the little extra you put on it that the Crown, what the Crown actually accepted I’d have to ask Mr Bamford, but it was by the simple agreement that it would be done that way. But whether the Crown –
ELIAS CJ:
But where do we find that reference? Is that –
WILLIAM YOUNG J:
In the Court, is it in the Court – there was a late objection, wasn’t there, and then the
night before the trial there was an agreement that he evidence would be given –
MR LITHGOW QC:
In a certain way.
WILLIAM YOUNG J:
- in the way which it was. But I, I’d have to ask Mr Bamford whether that included a
Crown concession that it was inadmissible if that matters.
ELIAS CJ:
Well the Crown didn't seek to lead it -
CHAMBERS J:
The Crown didn't seek to lead it.
ELIAS CJ:
- because of the objection.
MR LITHGOW QC:
Exactly.
CHAMBERS J:
Yes. So –
MR LITHGOW QC:
If that is a sufficient answer then I won't ask Mr Bamford. But I can ask him if whether, if whether the Crown had a view as to admissibility, underlying admissibility.
ELIAS CJ:
Well it doesn't really matter what the Crown’s view was. There was objection taken which could have been resolved by the Judge but instead the Crown didn't seek to lead the evidence.
MR LITHGOW QC:
Yes.
CHAMBERS J:
So my point is that everything in this, and there are quite a few points that one might’ve thought were prejudicial to Mr Guy in this statement if you read it, there were quite a few points that of course, on the assumption we’re all making that the jury did or might well have read it, would have counted against him.
MR LITHGOW QC:
Exactly. We agree with that. But we also point to the other problem with the, which was the loss of credibility, if you put it that way, that the Judge is entitled to and had in relation to his directions about this statement because our system uses this method of, you know, little white lies when evidence is excluded or, or edited, if we pretending that there is no such evidence instead of, as some Judges do, saying to the jury, “Look, there’s lots of other material in this case but I’m in charge and I say that only what you’ve got is relevant so only consider that.” But in this case they talked that there was no significant statement and then the jury find out that there was...
WILLIAM YOUNG J:
But was it not an accurate paraphrase of what happened? Obviously it’s not – no paraphrase is ever going to be complete, but was there any inaccuracy?
MR LITHGOW QC:
Well...
WILLIAM YOUNG J:
It’s not exactly the same. I mean that’s perfectly obvious.
MR LITHGOW QC:
There’s words and statements, isn’t there? And there’s also the very necessary propositions about what it shows about willingness to engage and attitude and that kind of thing which is very important in a sex case where there’s a direct confrontation between the man and the woman as to who says what.
WILLIAM YOUNG J:
But there wasn’t. I mean in the end this isn’t a she says, he says case. This is a she says, he remains quiet case.
MR LITHGOW QC:
No.
WILLIAM YOUNG J:
It’s that throughout isn’t it?
MR LITHGOW QC:
No. It is, it is exactly a he says, she says case because she wakes up and, as the German young woman Laila Geisbuesch describes her, “He is hysterical and he said”, perhaps the time-honoured words of all men accused of doing something wrong by women, “I only did what you wanted.” Now, you –
CHAMBERS J:
Well of course there was an issue at the trial as to exactly when she woke up as well.
MR LITHGOW QC:
When she woke up. Yes. Whether she was asleep in the sense of being, you know, fully asleep because they’d all been party, drinking, and so he – she, she wakes and says, “What are”, you know, “You’re doing something bad to me,” and she’s really upset. He says, “I only did what you wanted.” So if the, the jury would have to reject the proposition that he thought that he was –
CHAMBERS J:
Well I don't think we can be categorical that he said that because some witnesses – I
think, am I right, one witness remembered him saying that –
MR LITHGOW QC:
Well there’s only two witnesses –
CHAMBERS J:
- but others...
MR LITHGOW QC:
- other than the – there’s only two –
CHAMBERS J:
Other than the complainant.
MR LITHGOW QC:
The complainant.
CHAMBERS J:
But who is it – remind me who it is who remembered him saying –
MR LITHGOW QC:
It’s Laila Geisbuesch.
CHAMBERS J:
Yes. She’s the only one who actually remembers that, isn’t she?
MR LITHGOW QC:
Well the other one of course didn't remember anything much when interviewed by the police. That’s the South African young man whose name I can't pronounce, but
purported to remember an awful lot at trial. But she had said that to the police and that was the basis of the putting it to her and she readily acknowledged that she did remember that being said. She didn't need to have the passage put to her in that case. The Crown describe that as self serving. But whatever else it makes, it makes a proposition that he thought, he thought he said that he thought he was doing what she wanted, so that would mean that the essential challenge in the case was whether there was any reasonable basis for that belief. And the Crown engaged with that and engaged with it on the basis, really, that, that he must have known that she was asleep and that she was asleep because she said she was, therefore there couldn't be a reasonable basis. But so that’s what it came down to, and that would be another category ultimate decision in the case which would be unsuitable for a resolution via the proviso.
The – therefore, just getting back in a sort of a preliminary way, if this Court accepts that this kind of material did relate directly to the subject matter of the trial as against a range of other material before juries dealt with in the cases such as private research on the internet, we would possibly in New Zealand treat that rather more seriously than perhaps it was treated, a list of questions that someone had, one of the jurors had put together.
McGRATH J:
There are two types of case, aren’t there, and that’s the other type of case. This is the –
MR LITHGOW QC:
Yes.
McGRATH J:
- case in terms of what the bundling cases I think it is that deal with material wrongly going in with the jury.
MR LITHGOW QC:
Well it’s wrongly going in with the jury that is directly to do with the case.
McGRATH J:
Yes. But that, it’s a different type of case to the cases involving, if you like,
misconduct by the jury. Whether – there is another category which we needn’t get
into. We can look at these, the cases of information wrongly coming before the jury as a special class, can't we? And focus on that.
MR LITHGOW QC:
We can. I just, perhaps –
CHAMBERS J:
Is that logical to do that, with due respect, though?
MR LITHGOW QC:
Well that’s what I just – I, I can understand that it’s very attractive as His Honour Justice McGrath says, but if the issue is, if one of the issues is that the counsel and the Judge can't deal with it, then really it doesn't matter where the jury got it from. Because a lot of material the jury have access to now, in no sense is it in the whole world improper. It just happens to be that in the way in which we run jury trials, and in the cases looked at sometimes they weren’t even told this, but in New Zealand they’d be told not to go looking for that. Stay away from that. You can look at that next week when you’ve decided this case. But in this case we deal with solely what’s before us. So in that sense –
CHAMBERS J:
I would myself think it might be a simpler test if one simply said, well, any material which is before a jury which oughtn’t to be leads to an irregularity. As to how important or material that irregularity is, is a question of judgment in each particular case. Now here what seems to me to be a possible way of looking at this case is to say, well, let’s assume for the sake of argument that this material had come before the jury but had not been directed on, and let’s suppose that it or some of it was inadmissible, would we in those circumstances regard that as an error of law requiring a new trial? What do you think of – is that a possible way of looking at it?
MR LITHGOW QC:
Well it is possible but it requires the kind of building of a hypothetical trial without all the nuances of the day. Now, how exactly it comes out in the trial where it’s not commented on or directed on, how it falls, can, can be very, can have very different problems from simply not knowing about it at all.
CHAMBERS J:
Yes. Yes, no, I think that’s a fair point.
MR LITHGOW QC:
Because not knowing about it at all means the accused himself doesn't have any sense of what’s going on and they can't revisit issues about whether or not you give evidence, can't, can't have confidence in his own trial, that what he saw is what the jury made a decision on, and that’s extremely important to the interests of a fair trial. But then we have the problem that the lawyers aren’t allowed to put in their own penny’s worth. I mean there’s, there’s no limit to what could be put in. They could put in, for example, legal aid rates, and the jury are being paid $30 a day and the lawyers are moaning because they’re only getting $150 or whatever. Now that might be enormously interesting, but hard to see how it could impact on their decision about the trial. But you’d feel a lot happier about it if the Judge knew they had it and simply said, “Well somebody’s being mischievous. I want you just to get this straight. Forget it. It’s got nothing to do with it. If you allow that to affect your thinking then you’re not being true to your oath.” So you could –
ELIAS CJ:
But as you just said a moment ago, there are a number of responses, not simply the fact that the Judge didn't have the opportunity to make a firm direction. It might have, conceivably, affected the decision of the accused not to give evidence if this material had come in. I rather thought that your earlier answer was that if the material irregularly before the jury outside the Court processes related directly to the substance, you said, I suppose the subject matter of the trial, then you have a miscarriage. Is that what you’re contending for?
MR LITHGOW QC:
I would contend for that, but that would always, that would always be a presumptive miscarriage sufficient to order a retrial. And at Thompson and Karakaya the two, well I think they’re both Supreme Court cases. I struggle to quite understand the heading on one of them. But the, that that would be correct. And that that is, as they say in Thompson, “so basic”. And they didn't even cite any cases. So, just, so obvious.
GLAZEBROOK J:
Can I just –
WILLIAM YOUNG J:
But no one says, do they, that as soon as something gets into the jury room that wasn’t proved in evidence and relates to the case the appeal must be allowed. I mean there has to be some intermediate steps to be negotiated.
MR LITHGOW QC:
Well, as you, as it’s set out in –
WILLIAM YOUNG J:
Thompson.
MR LITHGOW QC:
- Karakaya I think that they, they talk about the – I’ll get the...
CHAMBERS J:
They are Court of Appeal cases, incidentally..
MR LITHGOW QC:
Why does it say Supreme Court at the top?
CHAMBERS J:
Well...
WILLIAM YOUNG J:
Supreme Court of England and Wales. I don't think it says that anymore now, does it?
CHAMBERS J:
But anyway.
MR LITHGOW QC:
They’re the Court of Criminal Appeal both of them, are they?
CHAMBERS J:
Yes.
ELIAS CJ:
Is this not a reported judgment? I know you’ve used the...
WILLIAM YOUNG J:
Citation.
ELIAS CJ:
Yes. But surely we have a requirement that you put before us the reported? Don't we have that requirement? The reported version. There may not, it may not be reported of course.
MR LITHGOW QC:
Yes. Yes, there were, there rules promulgated on that but I come to suspect that in practice it has become, on both sides, that what could be downloaded from the not was the versions that people get.
ELIAS CJ:
Well I think that’s most unsatisfactory and, indeed, you can download official reports from the net, so I don't know why this course is adopted. However, carry on. What paragraph are you referring us to?
MR LITHGOW QC:
The – in Karakaya, which is the 2005 case, the earlier one, they talked about a case called R v Davis [1976] 62 CAR 194 which was the case that doubted –
ELIAS CJ:
What paragraph?
MR LITHGOW QC:
At paragraph 18. Sorry. The case, perhaps, with a absolute proposition, perhaps at
14, that, “Once the summing up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question”, et cetera (Owen [1952] 36 CAR
16, per Lord Goddard CJ).
In principle, “once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage ... the conviction will be quashed.” (Wilson [1939] CthArbRp 181; [1957] 41 CAR 226, per Lord Goddard CJ). So that was in 1957.
Davis then, at, in 1976, provided the proposition that that may not be absolute. And then he –
GLAZEBROOK J:
You see I see that case and those cases as somewhat different, because that’s material that actually shouldn't have been before the jury under any circumstances, I would’ve thought. It’s not only – it wouldn't have been admissible in the trial at all. So I would actually be helped here – because if in fact all the jury got, which is what the Crown proposition is, is evidence that either would have been admissible anyway as such or, in the case of the complainant’s statement, was effectively not necessarily admissible being prior consistent but in fact the same as what was given and exactly the same statement as in relation to the accused interview, then what is the harm in that? So I would be assisted with, well, was – would the statement have been admissible anyway? Where were the differences? And what were the things that were lost? And one of the things that were lost were directions possibly. And then I’d like to know what those directions should have been. The second thing that you said was lost was the opportunity to reassess whether you were going to give evidence or not.
MR LITHGOW QC:
Well...
GLAZEBROOK J:
So it’s really, for me, it’s not so much the propositions of law that are interesting, it’s how they apply, particularly in this case, and I’m assuming you’ll get to that at some stage. But...
MR LITHGOW QC:
Well that is, that is –
GLAZEBROOK J:
It’s just I sometimes find it more helpful to know what the harm is before we look at, the supposed harm is or the alleged harm is, before we look at the principles. Because one can quite see in the sort of case that, however you pronounce it, Karakaya was, that there was quite prejudicial information before the jury, I would’ve thought. Or before one of the jurors.
MR LITHGOW QC:
What you’re, what Your Honour is saying is the, is simply identifying a different ways in which this appeal could be considered. Our position is that that is a second, logically a second tier consideration. That the first consideration is, if you like, the obviousness of the, of it being wrong that began with the material being found and the Court staff knowing with absolute certainty that this was bad and the Judge immediately bailing the guy and recalling counsel. And so that would be the proposition which I –
GLAZEBROOK J:
So what do you –
MR LITHGOW QC:
- suggest is enough.
GLAZEBROOK J:
Because that’s all accepted. But what do you say follows from that? That just quite clearly immediately from that you’re in proviso territory, are you? Or you say you’re not even in proviso territory? That’s what I’m having difficulty in –
MR LITHGOW QC:
Yes. It’s not even in proviso territory. We shouldn't –
GLAZEBROOK J:
So just because –
MR LITHGOW QC:
We shouldn't get into these –
GLAZEBROOK J:
So if as soon as there’s – so the proposition is as soon as there’s information found
in the jury room that was not given in evidence –
MR LITHGOW QC:
Yes.
GLAZEBROOK J:
- and that there’s a reasonable possibility –
ELIAS CJ:
Bearing on the substance.
MR LITHGOW QC:
Bearing on the substance of the case. In this case –
GLAZEBROOK J:
Well what about where it doesn't bear on the – because to me where it doesn't bear on the substance of the case but is something that might have influenced the jury, that seems even worse than matters that might bear on the substance. But...
MR LITHGOW QC:
What, are you thinking of kind of like –
GLAZEBROOK J:
The Ouija board or –
ELIAS CJ:
The fact that he was in prison.
MR LITHGOW QC:
- pressure group, pressure group material or...
GLAZEBROOK J:
Yes, exactly. Exactly. But I mean I suppose some – so I wouldn't have seen that as the distinction is what I was saying.
ELIAS CJ:
I don't think it was a distinction. I think it was that in this case that is what is alleged. But if there were prejudicial material such as the fact that the accused had been in prison on an unrelated charge, that too would be a matter on which there could be a miscarriage.
GLAZEBROOK J:
I actually –
MR LITHGOW QC:
Just to finish off, just to finish off with Justice Glazebrook, our process law does not allow a Judge to do anything about the trial post, post verdict except in (inaudible
10:36:52) the possibility of a 347, which wouldn't really be appropriate here. So it’s, goes to an appeal Court on this basis but I would suggest and do submit that the principle set out in Karakaya that the –
ELIAS CJ:
Where are the principles set out in Karakaya?
GLAZEBROOK J:
So is the principle as soon as there’s information before a jury that might bear on the case in some manner that has not been referred to in evidence, then that automatically leads to there being a new trial? Because –
MR LITHGOW QC:
Presumptively.
GLAZEBROOK J:
- the proviso can't –
MR LITHGOW QC:
Never say never. Never – lawyers never say never. But presumptively I would say yes.
WILLIAM YOUNG J:
And what would stop it? The application of the proviso?
MR LITHGOW QC:
Extreme trivia.
WILLIAM YOUNG J:
Well then it’s just a question – it is, if I may be forgiven for saying so, that the difference really is one of, is simply one of emphasis. That it’s not your contention that once something gets before the jury that shouldn’t have been new trial has to be
awarded. It’s a question of whether it is in some way or other likely to have had an
impact on the outcome of the trial.
MR LITHGOW QC:
Well if we look at paragraph 24 of Karakaya, because – perhaps I’m critical of needing a, needing a quote from a Law Lord to say something. You should be able to just say it, but they’re a lot more direct than I would ever dare but, and I think that this is the correct analysis and that if you start from that point it rather, is a rather better way of doing it than looking to, in a dainty kind of way, say, well maybe it could’ve been made admissible and it could’ve had this submission or this direction. Because 24 says, “It is easy, but superficial, to dismiss these rules as purely technical or procedural. In truth, they reflect something much more fundamental. If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law”. So to give them two split propositions. Two, so “two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law are contravened. The first is open justice,” and they put the defendant first, public second, “entitled to know of the evidential material considered by the decision making body.” So this is before you start trying to work out what could theoretically have been said about it. “So indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division.” So would it be correct that if it so happened that the Court of Appeal didn't even know this material was in there, that would, would that be considered the way we run things here? “This leads to the second principle, the entitlement”, so that would reflect in our Bill of Rights, “of both the prosecution and the defence to a fair opportunity to address all the material”. And that’s not the fair opportunity to tell us what you would’ve said if you’d known about it. It’s a decision made in the context of the trial. “Such an opportunity is essential to our concept of a fair trial.” So not just talking about doing a patch-up job or a spray paint on a scratch and saying it’s new. It goes to the whole concept of how a fair trial is. “These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them.”
McGRATH J:
I think you have to read that.
MR LITHGOW QC:
Now that’s the starting point.
McGRATH J:
I think you have – that’s – you’ve made the, that point from the Lord Chief Justice’s judgment, which I think is an oral judgment, but you’ve also got to take into account paragraph 27, don't you? Where the Lord Chief Justice refers to this material coming in after the jury had retired, “contravened the principles which prohibit the use of information, potentially relevant to the outcome of the case, privately obtained” or received “after the jury's retirement.” Those two matters that we were talking about earlier. But isn’t there a threshold here of being potentially relevant to the outcome of the case? And I think your argument is no. Is that the position that’s...
MR LITHGOW QC:
My position is that where it’s material directly related to the case, which this is. This is second tier –
McGRATH J:
Do you – what I’m putting to you is do you accept the Lord Chief Justice’s formulation, which I accept is, I think is an oral judgment, of the, there being a threshold that it has to be potentially relevant to the outcome of the case? And that’s not a very high threshold.
MR LITHGOW QC:
It’s not a very high threshold, but remember he’s talking only about material from a interest group that don't have any knowledge –
ELIAS CJ:
But why isn’t it an obvious test if you’re standard is miscarriage of justice?
GLAZEBROOK J:
See, I did think you were narrowing it too far, with respect, in terms of your proposition. I know that this is material that’s related specifically to the case, but if you have a proposition I would’ve thought you would put it on the broad sense that if there’s some potential relevance to the outcome of the case, and of course there’s going to be more relevance to the outcome of the case if it’s related to the substance of the case, than if it’s unrelated to the substance of the case. But for myself, I would be much more concerned about the type of material in that Karakaya case than, than
I would be about some trivial part of the evidence that may’ve been a slight addition
to the evidence but not particularly relevant.
MR LITHGOW QC:
Well my, my –
GLAZEBROOK J:
Because in this case it was material that could well have been admissible.
MR LITHGOW QC:
Let’s, let’s say –
GLAZEBROOK J:
Which is worse, which is not as bad, I would’ve thought, as material that was totally irrelevant such as in Karakaya, that with the – it’s not to say that your general proposition doesn't apply. It’s just I can't see why you’re restricting it in the way you seem to be doing.
MR LITHGOW QC:
Well you could argue that if it is, if it is admissible that that makes it worse.
GLAZEBROOK J:
Well you could...
MR LITHGOW QC:
Because if you’re lulled into a false sense that something that was admissible hasn’t been admitted, then if it was admissible it would normally form part of your decision- making processes in the conduct of the trial. And if just the simple fact you don't know about it is worse, in that case. Because if it’s wholly inadmissible then you, you weren’t required to turn your mind to it at all.
CHAMBERS J:
It doesn't seem to me relevant whether it’s admissible or not. The fact is it wasn’t
admitted.
MR LITHGOW QC:
Yes. Well I, I would say – I’ll give, I’ll give an example. Let’s say –
GLAZEBROOK J:
I –
ELIAS CJ:
Early in the – in fact, let’s let him answer.
1045
MR LITHGOW QC:
This is going back to Justice Glazebrook. The, the proposition that we improve the situation by putting the material under the microscope, as against saying some things are just wrong and we’re not having it, it’s, it’s fallen below the standard we will accept. One proposition might be, let’s say, the engaging and interested tourist that finds themself, that somehow engages with the jury or gets into the jury room. Now, as much as you can enquire and didn't even discuss the ins and outs of the case, but that just can't happen. It just can't be allowed to happen, to have a thirteenth person in the jury room. And so we would say that is, that creates a perception that we’re not running our trials according to the promises we make. And that would be enough. We don't need to get to the bottom of what, what he actually said to the jury or what ideas the jury formulated as a result of a person coming into the jury room. He doesn't need to be a friend of the family or a police officer. You just can't allow that kind of thing to happen. And that is the, the bottom line that I invite the Court to take, that this doesn't require a sophisticated analysis. It is so serious that we just do the trial again.
ELIAS CJ:
But as soon as you say, “It is so serious”, you do have to – you’re into an evaluation.
MR LITHGOW QC:
No, we’re – it’s – we’re dealing with the promise, the check the system makes that this will not happen, that that is what, that is what the case is about. Anyone that happens to sit at the back, listen to the case, “This is the case. Jury, you’ve now got it. Decide it solely on the evidence that you’ve heard here.” Then you find out that that hasn’t happened. Now, that is writing a cheque without concern for the fact that it is not going to be met. And so that would be a, an austere proposition but the safest one.
McGRATH J:
Does Thompson give you support for your approach?
MR LITHGOW QC:
I believe it does.
McGRATH J:
Perhaps you could take us to the principles that, the articulation of the principles there. It seemed to me it was adopting Karakaya.
MR LITHGOW QC:
Well, Thompson, because of the very short form in which they state it, in Thompson of course they did a whole lot of cases at once. But the one where it was material directly related to the evidence – remember they’ve – so remember they’ve got a lot of different cases in front of them and they’re talking about the principle in Mirza v R [2004] UKHL 2, [2004] 1 AC 1118 which is that the English are pretty reluctant to enquire into what happened in the jury room except in the most extreme of cases.
McGRATH J:
Where is the statement of principle in Thompson that is best from your point of view?
MR LITHGOW QC:
The – well, if we start from paragraph 1, “Generally speaking, if these problems become apparent during the course of the trial itself, they must be addressed and handled by the trial judge. Depending on the context he may give further directions to the jury, if necessary in severe and unequivocal language”. “It is therefore to be expected that any irregularity will have been addressed and cured during and as part of the trial itself.”
McGRATH J:
I thought, Mr Lithgow, paragraph 11 was probably getting directly to the point.
MR LITHGOW QC:
Well then it goes to 4 and 5 which gives the two exceptions, and 5 is the exception is we’ve got. “The second exception”, that is the exception that we don't look, “arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence.” And then over the page, it’s about five lines from the, above “Collective
Responsibility”, “All this is familiar territory, and no citation of authority is needed.” And the last sentence, “If extraneous material has been introduced into the decision making process, the conviction may be quashed.”
And Your Honour, sorry, referred to paragraph –
McGRATH J:
I thought that paragraph 11 was starting to get away from introduction, was starting to get to substance in terms of principle. Looking at the, just, I mean looking at the last sentence struck me when I read this.
MR LITHGOW QC:
Well, that goes –
McGRATH J:
Looking at, “the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe.” That seemed to me to be really stating the principle that in as effective a way and useful a way as it could be stated.
MR LITHGOW QC:
Well, yes.
ELIAS CJ:
Well, which isn’t as absolute as the proposition you’re putting to us, which is that if anything goes into the jury room there’s a miscarriage of justice. It has to be capable of affecting the trial.
MR LITHGOW QC:
Yes, but in this case what I’m asking you to do is to say we only need to look at that in a preliminary way. This is stuff which was excluded from the trial but is about the trial. We don't want –
CHAMBERS J:
I know. Well that’s the application of it in this case, but I don't see why you’re fighting against the proposition the Chief Justice has put to you, which is essentially that some evaluation is going to be required by the Appellate Court as to materiality.
MR LITHGOW QC:
Well I’m fighting against it, Your Honour, because the indications that Your Honour gives rhetorically perhaps are at one end of the spectrum whereas other Judges may wish to go into a detailed analysis, and if it is ultimately found to be admissible they would then carry on to even further investigation as to what the kind of directions and submissions would have been.
ELIAS CJ:
Well I think you should deal with that head on. But the first proposition is, what is the test that’s required? And I must say that it seems to me that neither Thompson nor Karakaya differ from the view expressed in Matenga. And it must be something that’s more than inconsequential or immaterial, which plainly could not have affected the result of the trial. That’s what was said in Matenga. Why can't we stick with that?
MR LITHGOW QC:
Well because, with respect, let’s have a look at Matenga because Matenga, at 14, which is the first proposition that is referred to by Justice Blanchard is quoting Justice Thomas and perhaps it’s not, perhaps it’s implied that that seems sensible, even though that was part of a minority decision, and that is that that kind of analysis would not be applicable, “where it was necessary to protect the integrity of the criminal justice system,” and that, that is a proposition that I put forward. That this situation is one that is necessary to protect the integrity of the criminal justice system. Further –
ELIAS CJ:
Well that may be an additional reason for a miscarriage, that – and indeed there are suggestions in the judgments in Sungsuwan that say that if the error amounts to denial of the right to fair trial, so you’ve got a breach of section 25(a) of the New Zealand Bill of Rights Act then that’s a miscarriage, as is if it was significant enough to cause the Appellate Court to consider the verdict to be unsafe or, or capable of affecting the verdict. So there’s –
MR LITHGOW QC:
Well, remember in these –
ELIAS CJ:
There’s capacity to look at both, but what are you saying here? Because there’s other authority on what constitutes an unfair trial that you’d have to get into.
MR LITHGOW QC:
Well I’m just dealing with Matenga as, as Your Honour thought was sufficient for the purpose, which I think it is. But so – at paragraph 14, quoting Thomas, the bit I’ve already quoted, but also, for example, “to vindicate a person's fundamental rights”, and that would be rights in relation to the way trials are conducted, that these, remember, are reasons why you wouldn't use the, the proviso analysis.
And at 26 in Matenga, “there may be cases where it would be proper to allow the appeal and order a new trial even though the Court was persuaded to the requisite degree of the appellant's guilt, for example, where there had been a significant denial of procedural fairness at trial,” and that must be this situation. A significant –
ELIAS CJ:
Sorry, is this in the context, I can't remember, is this in the context of application of the proviso?
MR LITHGOW QC:
Yes. This is, this is Justice Blanchard’s analysis of –
ELIAS CJ:
But I don't think we’re at the proviso at this stage. We’re at section 385(1)(c). And for my part I think you get home on section 385(1)(c). I do not see the proviso as having application. So – but I would – and there may be different views on that and it may be necessary also to engage with the proviso, but first you have the threshold of establishing the ground under section 385(1)(c).
GLAZEBROOK J:
Well your proposition, isn’t it, that because there was material that wasn’t before the jury in evidence that was before the jury there, then presumptively there’s a new trial. But what we’re trying to understand is what the “presumptively” means. So, for instance, if we have a situation where evidence has been given at trial about somebody’s prior convictions in a proper sense and for proper reasons and then a list of those prior convictions with perhaps some additions which had nothing whatsoever to do with trivial matters that might have been added goes before the jury, well that
wasn’t given in evidence, but the exact same information was given in evidence subject to there perhaps being an addition of one minor offence. So the question is, in those circumstances, is it just anything or does it have to conceivably have had some effect on the trial?
MR LITHGOW QC:
Well –
GLAZEBROOK J:
Because your proposition –
MR LITHGOW QC:
Put that way it has to have conceivably have had some effect on the trial.
GLAZEBROOK J:
All right. So we seem to be agreed that the Matenga test is the right one.
MR LITHGOW QC:
Well I haven't gone through all the Matenga test yet because the, the – in Matenga
he says a lot of things because there’s not just effect on the trial.
GLAZEBROOK J:
Well you went on to say something about the integrity of the criminal justice system –
MR LITHGOW QC:
Well that was –
GLAZEBROOK J:
- and that that will override, but in my example, does that affect the integrity of the criminal justice system?
MR LITHGOW QC:
That variation –
GLAZEBROOK J:
You say this does, but it comes to a matter of fact then, doesn't it?
MR LITHGOW QC:
Well there’s two parts to it. Whether you could, whether you could convincingly assert to the public at large that that’s all that it was, was a written version of something that had been given orally, because it’s not just about the Court and their conviction. The, and the jury conviction. It’s somehow trying to cling onto it. There has to be an assertion to the world that the system of Judges and lawyers and juries can do what they promise, and that is ring-fence what is heard in Court and that a verdict will be delivered according to that. And if, if there’s any time in the history of the world that that is necessary it is now because everybody seems to want to get on, in on the act before and during the trial. So this is, this is the promise that the system makes. And if they can't do it, so in your case, unless they could overcome the proposition of appearance, of appearance of fairness, they, that might well, even though in itself it didn't add much, if it destroyed the appearance of fairness, that that would be enough.
The – because it all – I mean there’s lots of people involved in cases who would like
the case to be different.
GLAZEBROOK J:
Well are you going back to the absolute proposition that if anything goes before the jury –
MR LITHGOW QC:
No.
GLAZEBROOK J:
Well then what is –
MR LITHGOW QC:
Not absolute.
GLAZEBROOK J:
- what is the – what do you say then is the actual proposition?
MR LITHGOW QC:
Presumptively if anything goes in that is related to the trial –
GLAZEBROOK J:
Well, but – and what displaces the presumption?
MR LITHGOW QC:
Well it would have to be something like Your Honour’s proposition where the, the Court was able to, for various reasons, maybe the Court was still assembled, maybe everyone was still there, maybe there was a method by which the Court could assure all those involved that what had gone in added nothing. Because in that case there is –
GLAZEBROOK J:
So what has gone in has to add nothing for there to be, for it to be overlooked if you,
if that’s the right...
MR LITHGOW QC:
Well –
ELIAS CJ:
Surely it’s sufficient to say it must be something that’s capable of affecting the trial. Can't we move on from this now?
MR LITHGOW QC:
Well I’m quite happy with capable of affecting. That’s a very low threshold and that’s
sufficient.
WILLIAM YOUNG J:
Does that have to be assessed in context of the dynamic of the trial as a whole? Or are we looking at it in abstract terms? That is, is the admission, the putting before the jury of a statement from the defendant which was not admitted something which is of a kind which necessarily must be capable of affecting the trial?
MR LITHGOW QC:
Well, exactly. I think both have to be accommodated. One is the failure of system which we say we can control. That is the, the quality control aspect of Appellate Courts over the promises of the, of the criminal justice system, and that, I believe, Thompson and Karakaya absolutely support that proposition that these are fundamental concepts, and then there’s, there is a separate set of propositions that it
has something to do with the case. We have to assess it in terms of the context of the trial, and as set out in Matenga, the Court shouldn't really try and get into that too much if it’s a case which ultimately depends on the, the way in which witnesses were perceived. And that is exactly the case in this case.
ELIAS CJ:
The discussion in the cases on the dynamic of the trial as a whole seem to me to be
cases where you’re into proviso territory.
WILLIAM YOUNG J:
Well that’s really the point I want to know. Because then – I’m sure there’s a
discussion about –
ELIAS CJ:
There is.
WILLIAM YOUNG J:
- cases like Weiss v R [2005] HCA 81, (2005) 224 CLR 300 and possibly Matenga
that are deciding, and possibly the earlier cases like McI.
ELIAS CJ:
R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 has it.
WILLIAM YOUNG J:
And that’s a – yes. But there are references in some of the cases to the proposition, or they provide some support, I think, for the proposition, that if a case is very strong then it might be more difficult to establish capability of affecting the result than in a case4 where the evidence is more closely balanced.
MR LITHGOW QC:
Well –
WILLIAM YOUNG J:
Which is where the proviso reasoning in section 385(1)(c) reasoning tends to become a bit conflated.
MR LITHGOW QC:
Well this is why it says in Matenga at 29, paragraph 29, that –
ELIAS CJ:
Not on my view. And not on Andrew’s view.
CHAMBERS J:
Just, I’m right, aren’t I, that the Crown here isn’t arguing this as a proviso case.
ELIAS CJ:
No.
CHAMBERS J:
Yes. As I understand it, if you can persuade us that there was a miscarriage of justice the Crown does not seek to rely on the proviso as a defence, as it were, to a decision to grant a new trial.
ELIAS CJ:
Can you confirm that Mr Mander?
MR MANDER:
I wouldn't wish to make that concession.
ELIAS CJ:
All right. That’s fine.
WILLIAM YOUNG J:
We’ll hear from Mr Mander, but that may be because proviso reasoning can, as it were, go up in the section 385(1)(c) reasoning, and it often does in judgments of the Court of Appeal where what seemed to me to be miscarriage arguments are sometimes dealt with on the basis of what looks like proviso-style language.
ELIAS CJ:
Well I – that is –
MR LITHGOW QC:
It might –
ELIAS CJ:
- why I raised the approach taken by two Judges in Sungsuwan that the proviso clearly doesn't apply to some of the grounds under section 381, including section
381(c). And I think it may – whether you can conflate or not, there may be – I do think that that is matter that counsel are going to have tease out.
MR LITHGOW QC:
385(1)(c).
ELIAS CJ:
Well, whether –
MR LITHGOW QC:
Yes. Sorry, it’s just you said 381 I think.
ELIAS CJ:
Sorry. Yes.
MR LITHGOW QC:
385(1)(c).
ELIAS CJ:
Yes, 385(1)(c). Yes.
GLAZEBROOK J:
Just for myself, I would’ve thought that depends on the threshold under 385(1)(c).
Because if the threshold is –
ELIAS CJ:
Capable of affecting.
GLAZEBROOK J:
- capable of affecting then it may well be that that’s such a low threshold that you will always get to the proviso. And in fact for myself I’d almost prefer a very low threshold under 385(1)(c) and then look at the proviso, mainly because of the dangers of importing proviso reasoning up to admissibility.
ELIAS CJ:
I’m sorry, the point that I’m making is that if you get to 385(1)(c), that ground, there is, I think, a respectable argument that the proviso has no application. The proviso is there for decisions in error of law which may not have any real effect on the outcome.
GLAZEBROOK J:
No, I understood that. But I was saying that it might depend on the threshold you have under 385(1)(c). So if you have a very low threshold as to miscarriage –
ELIAS CJ:
Yes. Yes, I understand.
GLAZEBROOK J:
So it was just a – there is an issue there as to under which head you deal with it. Because one of the dangers of conflating the proviso reasoning and bringing it up to
385(1)(c) might be that you let too many mistakes of law in terms of admissibility go.
ELIAS CJ:
That’s (1)(b). Anyway.
GLAZEBROOK J:
Oh, well.
ELIAS CJ:
Let’s pass on.
GLAZEBROOK J:
Oh, sorry. We’re perhaps at cross-purposes. Sorry.
MR LITHGOW QC:
Well I think it’s from.
GLAZEBROOK J:
Oh, okay. Sorry, I’m...
MR LITHGOW QC:
I would invite you to accept that from counsel’s perspective there is a, there is a panorama of views on the critical issue. So I have to accommodate them all, but could I just deal with Matenga while we’ve all got it there?
So which bits we think bear on this? The first would be at page, just very, it’s grappled through on that page, 148, line 41. This is, this is a case about the application of the –
CHAMBERS J:
Could you give us the paragraph number because I’ve got –
MR LITHGOW QC:
It’s not paragraph numbered, this part. This is the submissions of counsel.
CHAMBERS J:
Oh, I’m sorry.
MR LITHGOW QC:
And remember the case of Matenga is about what would have to be described as a very strong case of sexual violation. Now, at paragraph 41 Mr Pike, this is a case dealing with the big picture of the application of provisos, the Crown has always accepted a burden of that the proviso apply, although this may not reflect the statute. This is page 148.
Now, then going on to Justice Blanchard’s decision, and I just make it clear that His Honour is going over what Justice Thomas said, but it seems to be kind of accepted, this is para 14, “the Court had a”, at line 24, “the Court had a discretion” because it may, always with proviso, “that a decision not to apply the proviso might be appropriate, even though the Court might consider that no substantial miscarriage had occurred,” that’s as against a simple miscarriage under 385(1)(c), “in a case where it was necessary to protect the integrity of the criminal justice system, for example to vindicate a person's fundamental rights”.
Now then the next passage would be paragraph 26, line 33 –
WILLIAM YOUNG J:
Well there’s a passage that the Chief Justice has been – there’s a reference in para
16 to R v Sungsuwan.
MR LITHGOW QC:
Sungsuwan, yes, that sets out the differences between the two propositions there.
WILLIAM YOUNG J:
So the two Judges are the Chief Justice and Justice Tipping.
ELIAS CJ:
Yes.
WILLIAM YOUNG J:
What do the other three Judges say?
ELIAS CJ:
They don’t deal with it.
WILLIAM YOUNG J:
So they don’t address it?
ELIAS CJ:
No.
MR LITHGOW QC:
He describes it as obiter in there.
ELIAS CJ:
Well it probably was.
WILLIAM YOUNG J:
Just going back. The passage from McI which I had in mind does, is typical of proviso type reasoning in the application of section 385(1)(c), isn’t it? The very terms of section 385(1) means – well, well it is conflating it I think.
GLAZEBROOK J:
Well I think that’s the danger, that one can too easily shift those sort of considerations back to 385(1)(c), or (b), but sometimes it’s not just a question of their having gotten something wrong as an error of law, it is a miscarriage, and one difficulty of saying that you bring all that reasoning forward is that it’s probably inappropriate at the stage of working out, maybe inappropriate, which is actually would be what you would say in fact but then you would say with something of this nature you don’t even get to the proviso.
MR LITHGOW QC:
Well I think, the very big picture, and I understand it to be, and I’m not a legal historian, and there’s a lot of references in Matenga, but my understanding has always been that the so called exchequer rule was very fussy and that if there was any fault then that was called a miscarriage and that led to overturning of the conviction. The additional problem in England, which wasn’t a problem here, is that in differing periods there was no power to order a retrial so the effects were dramatic. Therefore, when reading 385(1)(c) we’re saying if we find there’s something which the law traditionally would have called a miscarriage, not what the Sunday papers would call a miscarriage, but what the law would call a miscarriage, there are circumstances where the Court may wish to not order a retrial if no actual miscarriage, no actual, I’ve forgotten the word, no substantial miscarriage has actually occurred. Now some Courts have thought there were too many words there but I think it indicates an attempt to introduce plain English spoken language onto the previous technical rule that anything that was wrong led to the trial being – the acquittal being overturned. So it just means that the legal technicalities are in the use of the word “miscarriage” on the first version and in the second version the Court is entitled, if they think it’s appropriate, but it’s discretionary, to look at whether a substantial miscarriage has actually occurred.
WILLIAM YOUNG J:
Well can I just put – your argument gets some support from what Justice Thomas said in McI, because looking at how he cited in Matenga, he’s saying that procedural irregularities, the miscarriage, the impact on the outcome of the trial falls to be determined under the proviso.
MR LITHGOW QC:
Yes.
WILLIAM YOUNG J:
But that would mean probably that part – it’s not the approach that the Court took in
Matenga.
MR LITHGOW QC:
Well, also McI, you have to understand that Justice Thomas’ own view was that the miscarriage was insubstantial. He described it as having no more effect than a feather landing on the surface of a turgid pond. So he was bitterly opposed to the proposition that there was anything in the original miscarriage –
WILLIAM YOUNG J:
Did he dissent from that case?
MR LITHGOW QC:
– so he’s then – hmm?
WILLIAM YOUNG J:
Did he dissent?
MR LITHGOW QC:
Yes. But he’s saying here that there are cases where remembering his view there was nothing in it. There are cases where you wouldn’t use the proviso if it relates to something basic, yes?
McGRATH J:
Constitutional –
MR LITHGOW QC:
Yes.
ELIAS CJ:
Well if the trial’s a nullity for example, section 385(1)(d), isn’t it?
MR LITHGOW QC:
That’s a bit hard to understand too but –
McGRATH J:
But Justice Thomas was really thinking more of constitutional matters, is that –
MR LITHGOW QC:
Yes. He was justifying his position in the minority by saying he wasn’t saying you should always apply the proviso, he was just saying in this case there was nothing in it. That’s how he saw it, there was nothing in it. He then acknowledges that there will be cases where even if there isn’t much in it you can not ignore the – you cannot apply the proviso, but this isn’t such a case, so that’s the context to all that, as I understand it. So he’s being reasonable despite his very strong difference of opinion as to the factual make up of the case. So that – we got up to the bit that refers then to the Sungsuwan difference of opinion. I mean Matenga is quite a short case but it does gallop through an awful lot of material indicating that it is intended to be a synopsis working tool for the use of proviso and a large number of variations because the case itself is a very strong case.
CHAMBERS J:
Well why don’t we just take the last two sentences of para 30 as the applicable test
for a miscarriage of justice.
MR LITHGOW QC:
“A miscarriage is more than an inconsequential or immaterial mistake or –
CHAMBERS J:
And the previous sentence. Isn’t that what this Court said para (c) meant and this appeal is all about para (c). We’re not in proviso territory. Why don’t we just apply that?
MR LITHGOW QC:
Well Your Honour says that and I would like that to be so but the Crown won’t
concede that and the ground of appeal used the proviso words so if there were some
–
ELIAS CJ:
Well anyway –
MR LITHGOW QC:
If that was the –
ELIAS CJ:
Leaving that aside would you accept that that’s the correct approach or at any rate if you don’t you’ll have to persuade us why we should depart from Matenga. It has to be something that could have affected the result of the trial.
MR LITHGOW QC:
Yes well that would go on to using the word I think of Thompson at 31 saying, “Proceeding in that way and having identified a true miscarriage,” and I’ve punched a hole through the next word but, “something which has gone wrong and which was capable of affecting”, and that’s all.
ELIAS CJ:
Yes well that was the proposition I put to you about an hour ago.
MR LITHGOW QC:
Yes but we are having to juggle the proviso as well even though Your Honour has opined that that might not be necessary.
ELIAS CJ:
Well actually Matenga did resile from that so it’s the last word on that because we did
go on to apply the proviso.
MR LITHGOW QC:
When?
ELIAS CJ:
In Matenga.
MR LITHGOW QC:
No. He got a retrial, he was convicted at a retrial.
ELIAS CJ:
No, no, no but I mean in terms of the analysis –
CHAMBERS J:
Correct.
ELIAS CJ:
We said it’s capable of affecting the trial, did it actually and then, you know, we sort of fiddled around with the Weiss test.
CHAMBERS J:
Didn’t I, did I misunderstand what Mr Mander said though. I thought Mr Mander did concede that this is not a proviso.
ELIAS CJ:
No.
CHAMBERS J:
I’m so sorry, I misunderstood.
1120
GLAZEBROOK J:
Don’t you have to deal with the two propositions then? The first one would be whether this does create a miscarriage of justice, the second one is whether this is the type of miscarriage of justice where the proviso shouldn't be applied, and the third one is, well, if I’m wrong on that, then factually –
MR LITHGOW QC:
Don't apply it.
GLAZEBROOK J:
- the – don't apply the proviso. So there are really three propositions you need to deal with. One, and we might’ve exhausted the first one because you say yes, there was a miscarriage because there was material in front of the jury that shouldn't have been there. And you say that’s – and it was significant material and it wasn’t admitted in the trial and that’s sufficient presumptively, and that can't be overturned in this particular case because on your test it can't be. So then we move on to whether it’s the sort of case where a proviso could be applied and then factually whether it should be applied. Is that –
ELIAS CJ:
Well Matenga really decides that too. It is the type of case where the proviso should be then looked at.
GLAZEBROOK J:
Well I thought that –
MR LITHGOW QC:
Well is that what Matenga says?
GLAZEBROOK J:
I thought Mr Lithgow was saying no because this is one of those cases where the mistake was so material that the proviso shouldn't be applied because it is looking at the fundamental aspects of open justice and a fair trial. And being able to deal with the evidence that is before the Court. Have I understood that argument?
MR LITHGOW QC:
Exactly. Exactly, and also because in Matenga, we’ve done paragraph 24 and 26, but 28, there is just the proposition that the fairness of the trial must be looked at overall, but 29 is also important as His Honour said at line 28, “and, as we will mention again below, considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses.” So that’s a reason not to get to the proviso using Matenga reasoning.
And then at 31 in Matenga at line 9, “Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict.” So the result of Matenga is that the, that the Court of Appeal should not have applied the proviso.
Right. So if we... Is the Court now me to, wish me to go through the material itself and whether it should or shouldn't have been admitted, whether it was capable of being admitted legally.
The, the basic proposition in the case is that the surrounding circumstances would, and the specific circumstances as between the complainant and the accused, would have allowed him, bottom line, to have had a reasonable belief that this is what would, what would have been welcomed, consensual activity. And the fact that she reacted fiercely was –
ELIAS CJ:
Sorry, what is the proposition that you’re putting to us? I’m getting –
MR LITHGOW QC:
This is what the bottom line of the trial is that it was a –
ELIAS CJ:
I see.
MR LITHGOW QC:
- belief in consent trial.
ELIAS CJ:
Yes. Thank you.
MR LITHGOW QC:
Now the thing you don't have is the photographs, of course. The Judge’s, we’ve got copies of the Judge’s copies of the photographs. The –
CHAMBERS J:
It is true to say that penetration was a live issue.
MR LITHGOW QC:
Well, what he put forward was that he wasn’t exactly sure, you know, what happened. He agreed he was all snuggled up around her but he wasn’t prepared to concede exactly what had happened. Now, that is –
CHAMBERS J:
Well if one reads – I was just going by the Judge’s summing up.
MR LITHGOW QC:
Yes. Well that’s the way it was –
CHAMBERS J:
Which is quite clear that the Judge considered that to be a live issue.
MR LITHGOW QC:
Well, because it was put in the closing, and the reason why that was so is that her initial proposition was that he was raping her. Of course how exactly young people now use that expression may be a bit variable. But in the complainant interview she had said, at page 257 in the first answer, “I just felt something moving inside me. I don't know if it was, I don't know if him or just his pants. I got up”, and that’s one of the passages where –
McGRATH J:
Sorry, what line are you at?
MR LITHGOW QC:
It’s the top question. Sinerva, “I just felt something moving inside me. I don't know if it was, I don't know if him or just pants. I just got up.” Now, at first glance the assumption might be that that’s, “just his pants” might be mistyped, but it’s clear that the pants played a role in all of this because she describes him as pulling up his pants and what pants she’s talking about we don't know. So quite what the degree of penetration was and what penetrated her, he asserted that he just didn't know all that and so that remained a live issue. It had to be proved.
CHAMBERS J:
Do we know, incidentally, what she did write down?
MR LITHGOW QC:
At the very end where he says –
CHAMBERS J:
Yes.
MR LITHGOW QC:
- “Could you write it down?”
CHAMBERS J:
Well of course, no, it probably doesn't matter because none of us – this wasn’t in
evidence, so – but...
MR LITHGOW QC:
Yes. Could I just show Mr Bamford that? I don't know if we’ve ever discussed it.
Mr Bamford doesn't believe he’s ever seen what she actually wrote down.
CHAMBERS J:
Right. Okay.
MR LITHGOW QC:
It’s a bit of an oddment in the, in the transcript.
CHAMBERS J:
At trial did she say it was definitely his finger? I can't remember now. I know somebody, one of the eyewitnesses or asserted –
MR LITHGOW QC:
The South American eyewitness became very wide and all so specific about all the things he saw having previously said he didn't see anything at all.
CHAMBERS J:
Yes. Yes.
MR LITHGOW QC:
And that his fingers –
CHAMBERS J:
But what did she say?
MR LITHGOW QC:
And that his fingers –
CHAMBERS J:
But what did she say at trial on that?
MR BAMFORD:
I don't think she knew what it was.
GLAZEBROOK J:
That would seem to be the case from what this portion of the interview anyway.
CHAMBERS J:
Yes. I think she was sure that it was inside her but I don't think, from memory, she did say –
MR LITHGOW QC:
What it was.
CHAMBERS J:
- what it was. Anyway. All I’m saying is, strictly speaking, while of course his understanding as to whether she was consenting was the primary issue, there was still a live issue about penetration as well.
MR LITHGOW QC:
That’s – yes. What she said about it was at the case on appeal, bottom of 72, top of
73 with the ultimate proposition, “Did you know what it was that was moving inside?” “Answer: Not sure. Could be, could be his fingers or, or his penis.”
1130
McGRATH J:
All you’re really saying, Mr Lithgow, I think, when you talk about or when you respond to questions about being a live issue is that because of his limited, your client’s limited recollection of the events the basic elements of the alleged crime, the Crown were being put to proof of.
MR LITHGOW QC:
Put to proof, but also because that’s what he, he said to the police that there were – he didn't know why she’d made a fuss. Didn't seem right and he was just, couldn't remember whole bits of it.
ELIAS CJ:
Well that’s exactly what has just been put to you by Justice McGrath. That he was putting the Crown to proof.
MR LITHGOW QC:
Because of his own bewilderment.
ELIAS CJ:
State of mind. Yes.
COURT ADJOURNS:11.31 AM
COURT RESUMES: 11.51 PM
ELIAS CJ:
Yes Mr Lithgow. I think we’d be helped if you would close in on why the
Court of Appeal evaluation was wrong.
MR LITHGOW QC:
Well perhaps, just as a reference point, turn to my paragraph 35, just as a way to start all this. As the Court of Appeal said in R v Osborne [2009] NZCA 53, which was the New Zealand case on previous convictions, that if the fact that a person was in jail could be properly in evidence the Judge would need to consider directing a jury as to its available use. Now in this case the Court of Appeal didn’t deal with the question of who could have said what about the items. They simply decided that they could have each have been admissible therefore their accidental admission didn’t really matter. The – so take, for example, the – well just looking at why a fact finder could only use the material, the Judge has got to tell them what they can use it for and how it fits into the cases as they stand, how it fits for and against in relation, let’s say to the complainant’s prior consistent statement. Putting aside the propositions as to whether it was admissible, and whether it should have been admitted if it was admissible, there would normally be a direction in relation to a prior statement and your own Bench book sets out exactly how that – well suggestions as to how that would be depending on circumstances. That is because although the prior statement can be used, and I don’t want to start an argument straight away, but can be used for the truth of its contents as well as the, any consistency it may demonstrate, or inconsistency it may demonstrate, it is normal for Judges to state what its primary purpose is and to warn against the danger of repetition giving the appearance of making a case in itself stronger.
Now this has all been mucked up by the propositions in Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 as to what all this is about but the prior statement is intended to show that a degree of consistency would be its main purpose if it doesn’t say anything much different. The parties would be entitled to use that in their submissions, so in this case the parties would be entitled, the defence would be entitled to say, well, we’re saying that she suddenly lurched herself into a rejection of a person that she’d previously been snuggled up with, like a bear with a sore head, and lets fly, and having let fly in front of everybody she sticks to and evolves a narrative. Now in this case it was never suggested that whatever she evolved as a
narrative was made up simply for the purposes of the trial. It was – the proposition was that that was finding herself surrounded by other people in the backpacker’s hostel all sleeping in the lounge area on couches and that they would know that she’d made a fuss and that she would have to follow through with it. So defence are allowed to discuss all that, as to how that all fits together, it just has to be faced, it has to be faced that their position is that she has repudiated something which she’d previously given all the signals that she wanted and that the, his view that he was doing what she wanted was an available, reasonable proposition. Really you can’t understand that just on the printed word without looking at the nature of the party, and the photographs of the party, which the Judge had, that hasn’t been transmitted up here, but we have those, that were given to the jury.
ELIAS CJ:
Mr Lithgow, I really am having difficulty following the submission you’re making to us. What I invited you to do was tell us why the Court of Appeal was wrong in its evaluation. On the complainant’s evidence the Court of Appeal, it seems to me, said two things. One, that that evidence was admissible and secondly, that assuming that the jury looked at the transcript, there’s no reason to think they didn’t approach it bearing in mind the Judge’s general direction. Now what do you say about the adequacy of that treatment of the complainant’s transcript?
MR LITHGOW QC:
Well the first problem was, was it admissible and this would engage all the problems in Hart but we say that it’s not admissible –
ELIAS CJ:
Well sorry I thought your first proposition was that it’s irrelevant if it’s in – whether it’s
admissible or not? Earlier you said that?
MR LITHGOW QC:
The first point is that it’s irrelevant whether it’s admissible or not. The problem that the Court declined to deal with is – didn’t even refer to, was what was suggested in Osborne, and for that matter I think in the English cases that I’ve referred to, is that these things are normally sorted out by the Judge telling juries what to do with the material, and that’s whether it’s been properly admitted or improperly admitted or inadvertently admitted, the Judge deals with it.
ELIAS CJ:
Well then you have to deal with the second point that the Court of Appeal makes, is that the Judge did give a direction related to the evidence that the complainant had given in Court, which is sufficient, the Court of Appeal says, I’m paraphrasing and correct me if I’m wrong about this, was sufficient to deal with the transcript.
MR LITHGOW QC:
Well the general direction to not deal with the significance – there’s two problems with the general direction, as I’ve, as I previously indicated, and that is that the admission of the accused’s interview when the Judge has told the jury there isn’t one
–
ELIAS CJ:
Well I – that’s a separate –
MR LITHGOW QC:
No but that muddles the jury’s perception as to whether the Judge is just giving them a catechism or whether he’s really dealing with the matters at hand.
ELIAS CJ:
I’m asking you about the complainant’s transcript first.
MR LITHGOW QC:
Yes. Yes, but he only makes a general proposition about the fact that her evidence only comes from her.
ELIAS CJ:
Yes.
MR LITHGOW QC:
Now, the traditional –
ELIAS CJ:
What should the Judge have done if the evidence of the transcript had been admitted? What additional direction should he have given?
MR LITHGOW QC:
Well there’s firstly about the, the thing itself, that just because you’ve got a typed version of the same thing said on a different occasion doesn't make it any different from the –
ELIAS CJ:
It doesn't reinforce the evidence.
MR LITHGOW QC:
Well, it has the same limitation that it’s still only her say-so. It’s not an independent piece of evidence. That is a traditional fear or written versions. It looks, it looks like this is, this is a parallel piece of evidence.
WILLIAM YOUNG J:
But they already knew that she was cross and saying that she’d been raped because
of what had happened in the immediate aftermath of her waking up.
MR LITHGOW QC:
Yes.
WILLIAM YOUNG J:
So, I mean I for myself, I’m not – don't see the admissibility of the, or otherwise, of the statement as actually very material because the substance of her consistency was obvious before the jury. They knew that she had been extremely angry in the, and distressed, and they’d seen it on CCTV coverage. They knew that she’d been interviewed by the police. It wouldn't take a genius on the jury to realise that she must have given an account that was broadly consistent with her evidence at trial because otherwise she would have been tasked for any differences, and then she gives her evidence at trial. I mean it’s just filling in the dots isn’t it?
MR LITHGOW QC:
Well that would, that’s Your Honour saying, with respect, that we shouldn't really have this anxiety about prior statements where they are consistent. Because it doesn't matter.
WILLIAM YOUNG J:
Well perhaps we shouldn't.
MR LITHGOW QC:
But the law does. The law does.
GLAZEBROOK J:
The Law Commission’s recommended that we don't have that worry about it.
WILLIAM YOUNG J:
One of the reasons for – I know there are a number of reasons for anxiety, but one of them is simply that it would extend trials unnecessarily for the benefit that it produces.
ELIAS CJ:
But that’s only one reason.
WILLIAM YOUNG J:
Yes.
ELIAS CJ:
There is also –
CHAMBERS J:
I really can't understand –
ELIAS CJ:
- the reason that –
CHAMBERS J:
- Mr Lithgow, why you can't answer questions that are put to you very shortly. I can't see why you would disagree with the proposition the Chief Justice put to you a moment ago. It could have simply been answered, “Yes, that is the appellant’s submission.”
MR LITHGOW QC:
I’ve lost, sorry. Because Your Honours – you don't, you don't all speak with one voice.
CHAMBERS J:
I know we don't, but the Chief Justice put a proposition to you.
MR LITHGOW QC:
Yes. Can you remind me what that was sorry? I, I thought it wrote it down, but if it was admissible, how would it be approached? What was the conclusion?
ELIAS CJ:
Well, and I understood you to be saying that the Judge should have given a direction that really consistently with the, the policy behind section 35, that it doesn't add anything.
CHAMBERS J:
Correct. And so the answer to why the Court of Appeal is wrong on your submission, as I understand it, is the Court of Appeal didn't ask itself the right question about the direction needed in circumstances where, on the hypothetical, you’ve ended up with a previous consistent statement.
MR LITHGOW QC:
Right. Well yes to the Chief Justice and yes to you.
CHAMBERS J:
Yes. It’s as simple as that, it seems to me.
ELIAS CJ:
So is there anything else that you can make of this beyond the section 35 policy point? Is there an issue – might it have affected the decision of the accused not to give evidence? There’s nothing additional, is there, that she says that would have made it necessary?
MR LITHGOW QC:
No, but there’s the – well, there is the – I know that some of you are only interested in what effect you had, but as a matter of law, since our Evidence Act is now law, it should only have gone in to the, to the extent necessary, and yet the whole thing’s gone in. Whereas all that really needed to go in, as, as Justice Young summarised, is that if you want to say in reply to this cross-examination, look, you’ve told the police all that, you told them the same thing a couple of hours later, and if anyone tries to disagree with that proposition then we’ll produce the whole thing, but that is,
that is all there is to be said about it. Now that is what the Act anticipates. So it, it is always important, in my submission, that things are not done according to the –
CHAMBERS J:
Can't we simply –
MR LITHGOW QC:
- to the Act.
CHAMBERS J:
- draw an inference from the way in which the prosecutor at trial dealt with
Mr Bamford’s cross-examination of the complainant that he did not think that section
35 had been triggered and accordingly this statement should be treated by us as inadmissible evidence?
MR LITHGOW QC:
Exactly. And the Judge also. Yes.
CHAMBERS J:
So no one turned their minds as to what the implications would be if the prosecution had sought to introduce it or – and it’s all just speculating now if we were to try to do that.
MR LITHGOW QC:
Exactly. And, and impossible for counsel to make a sensible suggestion about what they would or wouldn't have done because Mr Bamford doesn't know what the Crown was going to say about it or the Judge was going to say about it because neither of those people said anything about it because they didn't know it was even there. So it goes around in circles. It creates the unfairness that it just sits there and the jury may have the traditional view that the, that the law fears that somehow or other this has been given to them as an independent piece of evidence somehow or other of some significance more than we give it.
CHAMBERS J:
Which it would have to a layperson, which is precisely why the Law Commission thought the law should be changed and Parliament agreed.
MR LITHGOW QC:
That we more or less not use these things.
CHAMBERS J:
Yes.
MR LITHGOW QC:
Yes. Whereas the Court of Appeal got into the complicated Hart analysis, which is really about a different scenario altogether, but...
ELIAS CJ:
And as has been put to you, you’d say that that’s speculative and not convincing?
MR LITHGOW QC:
That Hart itself?
ELIAS CJ:
No. I’m not inviting you to comment on that.
CHAMBERS J:
We don't need to get into Hart.
ELIAS CJ:
That the speculation about recent complaint, rebutting recent complaint was just wrong reasoning for the Court of Appeal to have adopted here.
MR LITHGOW QC:
Yes. Yes. Because the, the statement comes later than her original complaint that the defence is, is either made up or grossly exaggerated as to what she’s complaining about. And that’s – so the, the so-called statement that gives it some additional credence is made hours after her original outburst. So that doesn't really make sense. I know that Hart suggests that time is no longer important, but Hart’s a very different scenario in terms of time. But –
ELIAS CJ:
Can – so is there anything more to be said about the transcript of the complainant’s
evidence before we move on to the transcript of the accused’s statement?
MR LITHGOW QC:
Yes, now this is, this is – I don't know how many other Judges say it, but this is, in my submission, a useful direction which Judge Davidson gave on this case and I’ve heard him give on a number of occasions. This is at 239, paragraph 50. And he’s looking at the complainant, who is a powerful witness. So first of all says, you’ll all appreciate your assessment of the credibility and reliability of the evidence of the complainant, Ms Sinerva, is vital in this case. For you to convict on the charges he faces et cetera, as a jury you are perfectly entitled to rely on her evidence alone. You may think as a matter of prudence and caution that you should look at all of the other evidence in the case to see if there is evidence that tends to support or refute her account of events.
ELIAS CJ:
Are you saying that this direction may have lead the jury to treat the written statement as supporting evidence –
MR LITHGOW QC:
Yes.
ELIAS CJ:
– in the absence of a direction.
MR LITHGOW QC:
Yes as fitting into that category. Here’s something we didn’t know about before, we’re just given it, that might have been what the Judge was talking about and that would be an available view of it all.
ELIAS CJ:
So they needed to be reminded that if it were to come in that that emanated also from the complainant and was not supporting evidence of the type the Judge was referring to.
MR LITHGOW QC:
Yes, that’s not what he’s talking about.
ELIAS CJ:
Yes. Right is there anything more to be said about the, of the transcript about the
complainant before we move on to the accused’s transcript?
MR LITHGOW QC:
Well you’ll excuse me if I’ve forgotten whether I’ve made it absolutely clear we don’t
think it was admissible anyway and we think that is important.
ELIAS CJ:
No, you have made that point.
MR LITHGOW QC:
It is important when we look at integrity of the system et cetera and basically who’s running this trial. Now if we then look at the accused’s statement. The proposition there is that the, the Judge has moulded his approach to what the Crown and the defence have done in relation to the accused’s statement which is to give a brief synopsis quoting word for word from a short part of it recorded in the police officer’s notebook. Now I think Ms Levy found the sections in the Court of Appeal decision where it actually records what was done about that, because Mr Bamford was at the Court of Appeal and we can get that reference, and that the Crown had never proposed to play the whole lot. So that would be at page 20, paragraph 23. Mr Bamford indicated he proposed to object to the use of the transcript. Yes apparently counsel actually recorded what had – yes, to the Court of Appeal what had been agreed because we don’t seem to have that. Now that wasn’t the –
GLAZEBROOK J:
So what was said to be agreed was what was agreed?
MR LITHGOW QC:
What was agreed, yes. That it had been –
GLAZEBROOK J:
Sorry, what I’m meaning there, there wasn’t anything further in that statement that
hasn’t been recorded in the judgment?
MR LITHGOW QC:
Your Honour’s asking the memorandum to the Court of Appeal only related to this
issue we’re now talking about at 28.
GLAZEBROOK J:
All I’m really saying is should we have that memorandum?
MR LITHGOW QC:
Yes, do we need to get that. Thank you. It’s probably only a phone call away anyway but it doesn’t appear that we do.
ELIAS CJ:
Well do we need it? I mean the Court of Appeal has recorded the position as being that there was an agreement between counsel. Is there anything more to be said than that? Does it matter that it came, that the Court of Appeal is basing that on a memorandum that we don’t have? Is there anything additional in the memorandum that we need?
MR LITHGOW QC:
Well Mr Bamford doesn’t think there is.
ELIAS CJ:
All right, thank you.
MR LITHGOW QC:
But it’s not very far away if –
CHAMBERS J:
Isn’t the simple proposition on this issue that if you compare what was led in evidence on this topic from Detective Heathcote at 162 of the case, lines 9 to 18, which is an absolutely flat bat account, “I gave him his rights. He chose not to make a statement in accordance with those rights.” There is a fundamental difference between that and then reading this transcript where it goes on and on about asking questions, “And I don’t want to make a statement,” et cetera, there is a fundamental difference in flavour that one gets from those nine lines of transcript compared with the pages of, of the Court transcript, compared with the pages of the video interview. Isn’t that the simple point? It’s a fundamental difference of flavour.
MR LITHGOW QC:
Yes and flavour is a critical ingredient of sex cases of this type where there’s a difference of opinion as to who said what. It’s attitude and the whole issue of someone being questioned in Court and someone else not answering fully, all these things are important. These cases are won and lost by millimetres, not by miles. So did Your Honour – I’m sorry Justice McGrath –
McGRATH J:
No I’m just waiting for your next point Mr Lithgow.
MR LITHGOW QC:
So exactly what His Honour said but more so in this type of case.
ELIAS CJ:
So the prejudice is in the flavour, was there any direction that might have been given if this was admitted or is that all too speculative, you don’t –
MR LITHGOW QC:
Well there is directions that could be given but the first problem was the directions
that were given now look insincere, that’s the problem.
ELIAS CJ:
What that he doesn’t have to give –
MR LITHGOW QC:
That he didn’t give a statement, he doesn’t have to, and all this kind of thing, it turns
out that –
ELIAS CJ:
Can you just take us to that please? Just give me the reference, don’t take time on it
perhaps, in the summing up?
MR LITHGOW QC:
At 237 at 41, it would be quite unfair to hold against him in any way at all the fact that he has not made some kind of detailed commentary or statement about the events. In fact, as you’ve heard, he was told he wasn’t obliged to say anything, he’s perfectly entitled under the law to exercise that right. Here he said very little but of course he
was entitled to that position. And then he says, the little bit he did say is quite important. And then over the –
WILLIAM YOUNG J:
So it’s not that different from what he would have said if the statement had gone in. He may have commented on propositions advanced by detectives to be treated as questions not as statements with independent weight.
MR LITHGOW QC:
Well that is critical importance. That’s something I mentioned at the very beginning and yet is not lost on Your Honour but that this proposition of the police officer, that there was no way she could consent, would have to be commented on by a Judge, even if it was permitted. In the ordinary course if the interview was admitted it normally probably wouldn't have been played beyond his assertion that he didn't want to say anything. It would just be finished there. Most Judges, if push came to shove, would not be keen on allowing this meandering extra backwards and forwards, because as we said, it creates –
ELIAS CJ:
Well it may well have because it goes on so long. It may have caused the appellant to reconsider whether he gave evidence because, I suppose, it is capable of indicating some evasion. On the page. Whereas the brief statement that came in after negotiation could not have conveyed that.
MR LITHGOW QC:
Yes. No, he has expressed at the scene that he thought he was doing what she wanted and that her allegation that she was being raped was bewildering to him and he gave a general conduct of bewilderment, but had that, had he known that that statement go in, as it was, the whole meandering length of it and his counsel, they, they may well, as Your Honour has indicated, had to reassess whether he would make himself available for cross-examination even if he couldn't add anything to the evidence-in-chief. But he would’ve been able to add to the evidence-in-chief and would’ve been entitled to give an account of the party on his own terms as, as building the proposition that he had an honest and reasonable belief that, that she was consenting to this. So even though he wouldn't have to find a memory of the precise details of the geography of the whole thing, he could still have given evidence quite credibly. But...
ELIAS CJ:
All right. Is there anything further by way of prejudice in this going in that you want to flag? Or anything you want to say about the Court of Appeal’s treatment of it.
MR LITHGOW QC:
Well, the Court of Appeal, with respect, focused on admissibility or conceptual admissibility and then followed by a kind that doesn't add much. Our submission is that they’re both wrong. Well, three things are wrong. Admissibility doesn't answer the question. It wasn’t admissible, and even if it was admissible they’ve got it wrong about essential consistency. And they have forgotten the role of the players rather than the assessors of legal technical distinctions, the people actually responsible for running a fair trial, namely the Judge and the counsel.
ELIAS CJ:
All right. So that – your submission is that the Court of Appeal treatment of this is not convincing for the reasons you’ve developed. That’s really all there is to be said, isn’t there, about the case?
MR LITHGOW QC:
Yes. Well one of the mysteries of this Supreme Court universe is whether we’re actually appealing the Court of Appeal decision or we’re using that as a useful reference to see how we’ll consider the situation as a problem to be solved and to the extent it’s useful we use it, to the extent it’s not useful we don't.
ELIAS CJ:
Well we always look at the reasons.
MR LITHGOW QC:
Yes, but –
ELIAS CJ:
Because if they convince it’s all over.
MR LITHGOW QC:
Yes, but we’re not appealing, in that sense, the Court of Appeal decision. We’re asserting to this Court that the circumstances that occurred in this trial are a
miscarriage of justice of the type that does not, is not appropriate for the proviso. Now, one of the –
WILLIAM YOUNG J:
Sorry, so I understand it, is that because of the structure around section 385 is that this is effectively another first appeal? That you’re really appealing the jury, the verdict?
MR LITHGOW QC:
No, I just said that’s one of the mysteries of the universe as to whether we are, whether this is an appeal against the Court of Appeal or whether this is an appeal looking at the original problem. Because normally we just look at the original problem and in this case my submission is that’s the better way to do it. But if the Court of Appeal were demonstrably wrong because they didn't consider enough things and those things they did consider, with respect, they got wrong.
Now, the proposition that it shouldn't go to a proviso consideration is a proposition we made based on Matenga and we say that is because this is very much a personalities and jury issue and is not suitable for a, for a appeal Court to reach their own conclusion, but if they did they would have to look at all of the evidence and you don't have the photographs but we do and they’re available here for you. And I would like to give them to you.
ELIAS CJ:
Well it’s a bit – no. I suppose your submission really is that this went to the two critical accounts or two of the critical accounts in the trial: that of the complainant and that of the accused. And there can be no question if they shouldn't have been admitted and they were material of applying the proviso.
MR LITHGOW QC:
Yes. Because the Crown say it’s a strong case, as they are wont to do, but strong/weak is not really the kind of issue in these kind of cases. It was a consent case. Compared to Matenga, for example, it was a weak case. Matenga would be described as a strong case, and so that is a useful contrast of the kind of circumstances in which it’s appropriate to use the, to use the proviso.
ELIAS CJ:
Does that, does that conclude your submissions, Mr Lithgow?
MR LITHGOW QC:
If you, if you get to the proviso then we seek to put, ensure that you have the exhibits as well.
CHAMBERS J:
I think we should have those photos.
ELIAS CJ:
Yes.
CHAMBERS J:
Because it was father difficult to follow some of the evidence without –
ELIAS CJ:
Yes. Yes, thank you.
CHAMBERS J:
- having the photographs.
ELIAS CJ:
Perhaps you can hand those up later and you might ascertain from Mr Mander whether those are the full set.
MR LITHGOW QC:
We know – these are photocopied from the Judges’ set and I can just go through very briefly who’s who because they weren’t, they were opposed by the Crown so they weren’t in a booklet.
ELIAS CJ:
I’m sorry? Wait.
CHAMBERS J:
They came in.
ELIAS CJ:
They came in? Oh, I see, the Crown –
CHAMBERS J:
It was a dispute about –
MR LITHGOW QC:
Yes, so there was no problem –
CHAMBERS J:
- as to how many photographs should come in.
ELIAS CJ:
Well, you’re going to tell us who’s who. But can't this be something that counsel can
give us a labelled set?
MR LITHGOW QC:
Well they weren’t labelled in the –
ELIAS CJ:
No, I’m just talking about – perhaps Mr Mander can't.
MR MANDER:
Well, Ma'am –
ELIAS CJ:
Do you have a problem with this Mr Mander?
MR MANDER:
Those photographs were produced at trial and traversed in the evidence and the identification of the people in it is traversed in the evidence. I don't see why my learned friend has to take Your Honours through.
ELIAS CJ:
Well it’s just that they’re not labelled and it might be difficult for us to pick up from the evidence who’s who.
CHAMBERS J:
There are only about four people we need to know who they are, aren’t there?
ELIAS CJ:
Are there?
MR MANDER:
Just in the transcript there’s reference at the bottom right-hand corner. I didn't have any difficulty following it in preparation for this.
ELIAS CJ:
I see. All right. We’ll take them in then.
MR LITHGOW QC:
Well just very briefly, if you look at page 17, bottom right, and page 18, top left? 17, bottom right, there’s, there’s a handwritten notation there. That is the that is the complainant and the accused together but not on that night. These are, these photographs, many of them were taken by the complainant’s camera and they are, they – in the modern, in the modern use of cellphones and cameras these are a small proportion of the total number of photographs, but, for example, the – and the complainant, for example, is the person top right in page 7. Top right page 7, the – and she, you can usually identify her because of a particular ring that she is wearing. So she’s also, for example, page 18, bottom left, if you keep them in portrait style rather than landscape, page 19, top right, and in fact she’s all of the, all of them in that page, and she’s all of them on page, she’s the blonde in all of them at page 20. And that may also enable –
ELIAS CJ:
I think we’ve got it.
MR LITHGOW QC:
Yes. I think that may also enable you to put a context to the proposition that she was seen with the, with the accused’s hand in her crutch and appeared to have no objection to an outsider, but the person who gave that evidence was the person who decided to give an awful lot more evidence than he’d ever told the police. That was the South American young man. So he may have cut free and loose.
ELIAS CJ:
Thank you.
Yes Mr Mander.
MR MANDER:
Yes, may it please the Court, the Crown in no way seeks to dispute the importance or, of the principle of open justice and fair opportunity to address. And the introduction of extraneous material into a jury room contravenes those principles. That was recognised by the Court of Appeal in this case when it commented that such an occurrence raises a powerful argument that a trial has miscarried. And the English Court of Appeal in R v Marshall and Crump [2007] EWCA Crim 35 at tab 5 of the Crown’s bundle in paragraph 9 notes and observes that, “When this kind of thing happens it is a matter of considerable concern. On the face of it, it is an irregularity which is very likely to lead to a conviction being held to be unsafe.”
But equally the English Court of Appeal noted at paragraph 10, a passage which has already been referred to this morning, towards the end of that paragraph, “The jury's use of material which is not known to the judge or to any of the participants in the trial is something which cannot be addressed. That said, the question for this court must always be whether the verdicts which have been returned are in the particular case before it unsafe.”
And similarly in the case of Thompson in the appellant’s bundle at tab 2, there is the observation made to similar effect at paragraph 11, “I If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe. If the material does not affect the safety of the conviction, the appeal will fail.”
And the English approach, in my submission, reflects the approach that is taken in the New Zealand jurisdiction applying Matenga. A similar approach is taken in Australia, and that is referred to in the Crown’s written submissions.
It’s trite to observe that a fair trial is absolute, that in the absence of a fair trial a substantial miscarriage of justice will have occurred. But again, an assessment of the fairness of the trial is to be made in relation to the trial overall, and this Court in Condon made that observation and, indeed, if I can quote from that, from this Court’s
judgment, “A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall v R [2002] UKPC 19, [2002] 1 WLR 2237, which was referred to with approval in Howse v R [2005] UKPC 30, [2006] 1 NZLR 433. He said that it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or so irremediable’ that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe. In Howse it was said that this approach is one of general application.”
Another formulation of the standard to be applied is whether the, “irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.” And that was this Court citing with approval Justice Dean’s observations in the High Court of Australia in Jago v The District Court of New South Wales (1989) 168
CLR 23. That’s at Condon at paragraph 77.
So an examination, in my submission, is required as to whether the irregularities or the prejudicial occurrences that may have occurred in this trial either rendered the trial unfair such that the character of a fair trial was completely lost or whether those irregularities or prejudicial occurrences were capable of affecting the result of the trial, a miscarriage of justice, and if they were, whether the potentially adverse effect of the miscarriage actually occurred, which is the proviso. And in my submission this requires an assessment of the erroneously accessed material and its potential effect within the context of the trial overall.
In my submission it is that analysis which of course is an application of Matenga in the context of this case which gives rise to some ambiguity as to whether or not one is examining whether a miscarriage of justice occurred or whether the proviso is the appropriate focus of attention. One can easily conclude that the access by a jury to substantial pieces of information which go to the very stuff of the trial, go to the very evidence that has been given at trial, may potentially have an adverse effect.
CHAMBERS J:
On that issue, Mr Mander, I appreciate that Matenga may say different things at different parts of the reasons, but if one looks at paras 30 and 31 of Matenga, do you accept that a workable test would be applying the last two sentences of 30 as the test
for miscarriage under 385(1)(c) and that one then goes on as to how the proviso is to be applied, ones turn to para 31. Do you accept that or are there other passages of Matenga which you would say, insofar as there may be slight differences of language, should be preferred?
MR MANDER:
I hesitate to commit myself to any particular formula of words. Taking, for instance, the last sentences in paragraph 30...
CHAMBERS J:
Well, that – I can understand your hesitation there because there are dangers in trying to write in any words to what the legislature has done, but it does seem to me, at least at this stage, that’s a reasonably workable test, if we were to take those passages. But...
MR MANDER:
If one takes as the descriptions, “inconsequential or immaterial mistake or irregularity”, was it inconsequential that this material got, got into the jury –
CHAMBERS J:
I – again, well that’s the evaluation that would be required. What I’m trying to find out from you, and different people may have different views on that, what I’m trying to find out from you is, insofar as we go beyond the words of the statute itself, do you think that is a helpful summary of the sorts of things you should be looking at under
385(1)(c) as opposed to the proviso?
MR MANDER:
I think they are. But –
WILLIAM YOUNG J:
Can I just raise that? Just dealing with this and dealing with – because it’s the language that appears in Matenga at paragraph 16 where there’s a reference to what Justice Tipping said in Sungsuwan. Now, paras 30 and 31 refer to the test in terms which don't set a very high threshold, perhaps. The Court can, “disregard those irregularities which plainly could not, either singly or collectively, have affected the result of the trial”. And then the second line of 31, “capable of affecting the result”.
Now, in para 16 there’s a reference to Justice Tipping saying that there isn’t a miscarriage of justice, and of course he’s applying a composite test. He’s not really worrying about where the proviso fits in. What has gone – there is a requirement that what has gone wrong must have led to a real risk of an unsafe verdict. So what happens if there’s – can we postulate an irregularity which is capable of affecting the result of a trial but in respect of which there’s no real risk of an unsafe verdict? And if we can postulate that, is that a miscarriage issue or a proviso issue, or are we, have we in fact gone down a wrong path and we should just treat the issue as turning on whether there’s a substantial miscarriage of justice, which I think is really what the Chief Justice and Justice Tipping were talking about in Sungsuwan. Can you postulate that intermediate – I mean maybe there isn’t an intermediate gap.
CHAMBERS J:
Well if – isn’t a possible difficulty with that proposition though that the Court doesn't
actually say it agrees with –
WILLIAM YOUNG J:
No. Of course –
ELIAS CJ:
No.
CHAMBERS J:
- what was said there. They were referred to that and they go on to describe it. It does seem to me slightly odd that one doesn't turn to, where, having considered all these matters including Sungsuwan and others, the test is then set out in 30 and 31.
WILLIAM YOUNG J:
Yes but it does go on in 31, after the second line, to say that having decided it’s capable “the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred.” So the language of reality or real does appear there, and it may have been picked up from Justice Tipping.
Now, what I’m trying to tease out is, is there a gap between an irregularity which has the capacity to affect the trial and an irregularity which carries a real risk of an adverse effect? And if so, where does it fit in?
ELIAS CJ:
Isn’t it capacity to affect that is adopted in Matenga in 30?
WILLIAM YOUNG J:
But then in 31 it says –
ELIAS CJ:
But 31 is about the application of the proviso.
CHAMBERS J:
Of the proviso.
WILLIAM YOUNG J:
Yes but it’s not –
GLAZEBROOK J:
So it’s not totally clear actually -
WILLIAM YOUNG J:
No.
GLAZEBROOK J:
- because it says first of all you look at something that’s capable and only if it’s capable does it become a miscarriage of justice. Then you see whether the capability has actually occurred.
CHAMBERS J:
Correct. Under the proviso.
GLAZEBROOK J:
It’s one way of reading 30.
ELIAS CJ:
Well there’s another threshold, of course, though, and that is that there must be
something that’s able to be described as an irregularity or unfairness. So – and for
my part I read 30 and 31 as being quite consistent with capacity to affect the trial and then application of the proviso. Does the Appellate Court – is it affirmatively satisfied that the verdicts were correct?
WILLIAM YOUNG J:
Say it’s not satisfied that the verdict is correct in the sense that it’s a jury issue but is satisfied that there is no real risk of the verdict having been affected by the irregularity. That’s the gap I’m really trying to focus on.
ELIAS CJ:
Well I don't see how it could but affirmatively satisfied of, that the verdicts are correct in those circumstances.
WILLIAM YOUNG J:
Well it can't be.
GLAZEBROOK J:
Well, unless –
WILLIAM YOUNG J:
No, that’s the proposition. I’m accepting that if the test for the proviso is that it can only be applied if the Court of Appeal is satisfied that the verdict is correct, what do you do with the case which I’m postulating?
ELIAS CJ:
You send it back for retrial.
WILLIAM YOUNG J:
But we’re – even though you’re not satisfied – you’re satisfied that there was no real
risk –
ELIAS CJ:
Well I don't –
WILLIAM YOUNG J:
- that the verdict was affected by that?
ELIAS CJ:
Well, I –
WILLIAM YOUNG J:
See the problem is that there are a series of different formulations that carry different nuances.
ELIAS CJ:
Well only if you started off in the Court of Appeal on this. Did you in Matenga? I
don't know.
McGRATH J:
I did.
ELIAS CJ:
Well, sorry, what is the answer?
GLAZEBROOK J:
But isn’t the point – so this would be something that would be capable of affecting –
ELIAS CJ:
It’s an irregularity.
GLAZEBROOK J:
Well it’s difficult to see how it could be capable of affecting without then going to the
proviso isn’t it? So where is the gap?
WILLIAM YOUNG J:
Well, say the Court – I mean you, we have in 31, having been –
GLAZEBROOK J:
Oh, you mean in the particular circumstances –
WILLIAM YOUNG J:
No.
GLAZEBROOK J:
- of the case it was incapable, or...
WILLIAM YOUNG J:
No, no, no. No, what I’m saying – I’m just trying to tease out the difference between
capable and real risk.
ELIAS CJ:
Well I think real risk has been supplanted by the Court in Matenga.
WILLIAM YOUNG J:
That assumes that the –
ELIAS CJ:
It’s gone to capable. An irregularity capable of affecting.
GLAZEBROOK J:
In the particular circumstances of the case or just more generally? Because that was again the –
ELIAS CJ:
Generally. Generally. And then 31 is concerned with the proviso. Which –
GLAZEBROOK J:
Well the first part of 31 isn’t the proviso though, is it? Because that’s the capability
test.
WILLIAM YOUNG J:
And it does, then, under proviso, it says, “is then to consider whether that potentially
adverse effect on the result may actually, that is, in reality, have occurred.”
ELIAS CJ:
I’m sorry, the – are you talking about, sorry counsel.
GLAZEBROOK J:
Yes, I’m just trying to understand –
ELIAS CJ:
The first sentence in 31, a true miscarriage. The next clause is in apposition to a true miscarriage.
WILLIAM YOUNG J:
Yes, absolutely.
ELIAS CJ:
And then you go on to the proviso.
WILLIAM YOUNG J:
Absolutely. But in applying the proviso, is there only one test? Satisfied that the defendant was guilty?
ELIAS CJ:
Yes.
WILLIAM YOUNG J:
Or can you also say no miscarriage of justice because while theoretically capable of affecting the result there was no real risk of an impact?
ELIAS CJ:
No.
WILLIAM YOUNG J:
No. And that’s – so that’s, I suspect, the emphasis question, about which there may be different views.
1250
MR MANDER:
Just to go back to Justice Chambers’ original question regarding if there was any language that I would be more comfortable with, and it’s not that – and the one I’m going to point to is not, is not either of the passages Your Honour referred me to, but paragraph 16, and again Justice Tipping’s description in Sungsuwan, his, under – the second part of paragraph 110, “Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.”
That, to me, does represent something of a fusion of the proviso and the miscarriage in that you couldn't apply the proviso if there remains, if there remains the possibility that a different verdict would have resulted. So if the, if the appeal Court cannot conclude that, that it was inevitable that the person would be found guilty but for the, but for the irregularity, obviously the proviso can't apply. So I find it very difficult.
Perhaps in terms of an example in this case, if, if it was, if, if, if a passage of the appellant’s statement was identified as being prejudicial to him. The example that’s been given is propositions put to the, to the appellant and the absence of a direction that those propositions are not evidence. So there’s a, there’s, there’s an irregularity is something that you can point to as being in error. Do you then look at that in terms of that is something that is capable of causing a miscarriage because the jury didn't have the benefit of the direction but which the proviso can apply to, because, standing back, notwithstanding the direction being given, it was inevitable that on the, on the totality of the evidence that this person was going to be convicted. So that might be a situation where you do identify a miscarriage that is something that is capable of constituting a miscarriage but to which the proviso could apply.
And that, that may be the situation in this case because there might be passages that one can identify in the material that when to the jury which didn't have the benefit of a direction or didn't, that counsel did not have the benefit to comment upon, but which, when you stand back and look at the case as a whole, you can confidently conclude that it wouldn't have made any difference. Now, does that mean you’ve applied the proviso –
ELIAS CJ:
Yes.
CHAMBERS J:
It does.
MR MANDER:
- or does that mean that you have, you have concluded that it was inconsequential?
CHAMBERS J:
It just – how can you say in this case really, Mr Mander, that seeing all this additional
evidence in a completely unexplained way isn’t a material mistake or irregularity? It
seems to me we are so clearly in proviso territory if we’re anywhere. It, it’s just – I find it hard to comprehend this isn’t a material irregularity. A whole lot of evidence has come in and the jury get it and it’s –
MR MANDER:
I acknowledge at first blush, on the face of it - the Court of Appeal made the same observation. How, how can the conviction stand in light of this material that got before the jury unbeknown to counsel?
CHAMBERS J:
I’m really answering your proposition of which camp are we in? And it seems to me,
I’ve got to tell you, that if we’re anywhere we’re in the proviso camp. But –
MR MANDER:
And that must mean because applying the proviso you conclude that, notwithstanding those material errors –
CHAMBERS J:
I’m not saying I would apply the proviso. I’m saying that’s where I think you are. Just
speaking for myself.
ELIAS CJ:
You have to convince us that the verdict was inevitable, don't you?
GLAZEBROOK J:
Well if that’s the test under the proviso, but that’s the problem, isn’t it? If you don't have a two prong test under the proviso of inevitability or that the Court is satisfied beyond reasonable doubt then there becomes difficulty in any sort of he said, she said case in ever applying the proviso.
ELIAS CJ:
Well I’m sorry, I am adopting Matenga which says it’s for the Appellate Court to decide that the verdict was inevitable. I’m not trying to speculate what the jury would have decided if that’s the point.
GLAZEBROOK J:
But it depends what that means. Because if the verdict is inevitable means that the
Court itself is satisfied beyond reasonable doubt –
ELIAS CJ:
Yes.
GLAZEBROOK J:
- then you could never apply the proviso in a sex case.
WILLIAM YOUNG J:
This sort of case.
ELIAS CJ:
Yes. Well that, I think, may well be so if the irregularity goes to the question of the reasonable belief.
WILLIAM YOUNG J:
It may, it is maybe a subtle issue as to whether, what “capable of affecting the result” means. It may mean that, it may be that in Matenga it is construed as meaning, carries a real risk of affecting the result.
GLAZEBROOK J:
In the particular circumstances of the case as against theoretically. But that’s one of the difficulties of trying to work out where the boundaries are between the two concepts.
ELIAS CJ:
It seems to me dancing on pins really. I don't know. I don't see the difficulties in
Matenga, but however. So...
MR LITHGOW QC:
In my submission I seek to argue that what went wrong in this trial was not capable of affecting the result and I seek to argue that, if it was, I still seek to argue that conviction is inevitable on the totality of the evidence.
COURT ADJOURNS:12.58 PM
COURT RESUMES: 2.17 PM
ELIAS CJ:
Yes, thank you, Mr Mander.
MR MANDER:
I take the Court to the appellant’s interview, the transcript of the interview, which was inadvertently, or which inadvertently found its way into the jury room. In the Crown’s submission, that transcript did not reveal anything prejudicial to the appellant which was not already before the jury, or at least did not disclose anything which was so prejudicial as being capable of affecting the result of the trial, and in my submission it is important to appreciate what the appellant had said and what was already in evidence.
Firstly, what he said to Constable Phipps at page 158. This was the officer that first spoke to the appellant, and he recorded in his notebook what were described as bullet points of what the appellant had said had happened which the appellant subsequently read over and signed.
“Got the flag out of my van, curled up on the couch together in TV room, woke up half asleep then got smack in head, foreign chick going nuts at me,” and I’ve got the name, “Serena”, “Wearing real short skirt, good night out having fun, woke up to a smack in the head. I was asleep. It’s not just tonight. Been hanging out together. Thought her and I were friends.”
Now that, of course, had to be compared at trial with what the appellant is said to have said immediately upon the complainant waking and complaining, and that was the evidence of the witness, Geisbuesch, at page 117, starting at line 5. Question put, “Isn’t it correct that Ash at some stage during that exchange said, ‘I only did what you wanted.’” Answer, “Yes.” Question, “So you accept that he said that?” “Yes.” “Did he also say that, ‘You can’t describe what I did as the word rape or that word’?” “Yes.”
And the other piece of evidence is the evidence of Detective Heathcote at page 162 which is the summary of the interview that he conducted.
ELIAS CJ:
Sorry, 162?
MR MANDER:
162, Ma’am.
ELIAS CJ:
Yes.
MR MANDER:
Commencing at line 9. “Mr Guy told me,” he gave his details, advised him of his rights. About line 14, “He told me that he was not in a position where he could make a clear statement so he didn’t want to make any comment about it. I asked what he meant by not being in a position to make a clear statement and he repeated that he could not make an honest, clear statement to me. I asked why not, and he answered, ‘’Cos I don’t remember.’ He then reiterated that he didn’t want to make a statement.”
So the question arises, in my submission, as to how the contents of the transcript prejudiced the appellant having regard to the defence that was advanced at trial, given what was already in evidence. The appellant always had to reconcile his statement, “Only did what you wanted,” heard by a witness, and what he told Constable Phipps, that he woke to being hit. The transcript –
ELIAS CJ:
Sorry, why do you say that required reconciliation? I mean, are they inconsistent?
I’ve missed something so...
MR MANDER:
Well, in my submission his description to Constable Phipps is that he woke up to a smack in the head, that he was asleep. “Woke up,” line 9, “Woke up to a smack in the head. I was asleep.” Earlier in the passage, “Woke up half asleep when got smack in the head.”
GLAZEBROOK J:
Which pages are we referring to now, sorry?
MR MANDER:
Page 158, Ma’am.
GLAZEBROOK J:
158.
CHAMBERS J:
We don’t know for certain that he said the words that were attributed to him. For instance, the complainant did not recall him saying those words.
MR MANDER:
The only evidence is from that one witness.
CHAMBERS J:
Yes.
MR MANDER:
But in any case, that was the state of the evidence, and in my submission the transcript didn’t alter the way in which the defence was presented and didn’t impact on the way in which the defence was presented. What he says –
ELIAS CJ:
Sorry – no, carry on. I just want to take you back to why the inconsistency you’ve
identified, but go on.
WILLIAM YOUNG J:
Well, he remembers the first time and he doesn’t remember the – he remembers in, in the statement that’s attributed to him by the witness but he has no relevant memory when he’s first interviewed. That’s the difference, isn’t it?
GLAZEBROOK J:
Well, it could also be that he impliedly admitted that something that had happened when he – in the first statement, but consensual, and that he didn’t remember at all later.
MR MANDER:
Well, there’s certainly that, that he has no clear recollection of what occurred but he can’t remember and he doesn’t want to say anything because he doesn’t have a clear recollection of what happened. So that’s one aspect of it. Yet he, he does give
an account to Constable Phipps that he was woke up half asleep, got the smack in
the head, woke up to a smack in the head. “I was asleep.”
1425
ELIAS CJ:
Well, but I’m just saying that if you’re trying to say that there’s something necessarily inconsistent with the exchange with what he’s reported to have said at some stage during that exchange, that’s clearly after he’s awake, so I don't see that it’s inconsistent that he says he was asleep.
MR MANDER:
No. But – that’s correct. But, but what was also in evidence and which the defence referred to throughout the trial and, indeed, had to in order to, in order to advance a reasonable belief, was the witness’ relaying to the Court that she heard him say, “I only did what you wanted.” So they are two, two – in my submission –
ELIAS CJ:
Well only in terms of the memory. It only goes to this issue of consistency as to what he remembered, isn’t it? Doesn't it? I don't see – I thought you were making a point about there being an inconsistency with him saying that he was asleep and this reported exchange. And I’m simply drawing to your attention that the exchange was after he had clearly woken up.
MR MANDER:
I accept that, obviously, Ma'am.
ELIAS CJ:
Yes. And it’s not clear what he, what time he’s referring to. It’s all very vague. Yes.
CHAMBERS J:
What about the fact, Mr Mander, that this statement in effect led to the jury reading the complainant’s account not once, as everyone believed at trial, but in fact three times? They also saw her prior consistent statement, not admissible. We argued about that .they also get, for a third time, her account here. And of course there’s nothing explained to them by the Judge about the fact that a proposition put which isn’t accepted is not admissible, does not constitute evidence against the accused.
MR MANDER:
No, I, I acknowledge that. However, apart from the repetition element, it would have to be the repetition element that created sufficient prejudice to conclude that it was capable of affecting the outcome of the trial. Her – obviously what was relayed to her by the, what was relayed to the appellant by the officer was the appellant’s [sic] complaint, which, of course, went into evidence and there was evidence of. Similarly there was reference in the transcript to the officer putting to the appellant the, a summary of the witness’s accounts. And again they have given that evidence. So, again, the only issue that arises, in my submission, is whether the repetition of those accounts in the transcript has such a prejudicial effect as to be capable of affecting the outcome of the trial. And it’s a, it’s a small point, but it’s a footnote, of course juries these days get the, get the –
WILLIAM YOUNG J:
Transcript.
MR MANDER:
- get the notes of evidence. So it’s – her account is there to be read many, many times. It would only be the consistency element from one point in time and another point in time. It’s not the fact that they’re just getting one account and one account only.
CHAMBERS J:
Yes. Well of course the consistency element was regarded as an extremely important part of all sex offence cases till it was, recent complaint evidence was abolished. But what about the fact on the DNA? Now, I know there’s evidence about the DNA but that comes in from a request at a later time, doesn't it? Here he’s asked about –
WILLIAM YOUNG J:
No he was, I think it’s – the précis record that he was asked for DNA, refused it, later formally requested, provided it.
MR MANDER:
Yes, the DNA, the subject of the DNA was, was covered in evidence and, indeed, was the subject of direction by the Judge at page 237 of the case on appeal. Top of the, top of that page. That had come out in evidence.
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CHAMBERS J:
Why, as a matter of interest, was that led, that he was asked for it if he had a right not to give it?
MR MANDER:
I don’t know why it was led.
ELIAS CJ:
Do you know where it was led?
MR MANDER:
Yes, Ma’am.
WILLIAM YOUNG J:
Isn’t it in the – isn’t it Detective Heathcote’s evidence?
MR MANDER:
Yes, I believe it is.
GLAZEBROOK J:
Sorry, it’s not important. It was just if you had the page number to hand it would have
been...
MR MANDER:
I thought I did have the page number, Ma’am. Case on appeal, page 183, bottom of the page, last question and over into page 184.
WILLIAM YOUNG J:
Just one slightly off the wall point, the case seems to have started on the
15th of December and the Judge summed up on the 19th. Was it already a five-day case? It seems quite a – or did something happen? Was there some deferment or...
MR MANDER:
I confess I haven’t picked that up, Sir. Mr Bamford might be able... It was a
weekend apparently, Sir.
WILLIAM YOUNG J:
The weekend in the middle. Okay, thank you.
MR MANDER:
In the transcript, in answer to these matters that were raised, the appellant is consistent with what he told Constable Phipps, that he awoke to being hit, that he, “Thought we were friends,” referring to the complainant. So the appellant is saying nothing more in the transcript in explanation than what was already in evidence, and in my submission what is complained of on appeal, that the transcript reveals the appellant is being evasive, does not come out on a reading of the transcript. What he said is not inconsistent with the abbreviated summary of the exchange between the officer and the appellant which was led, and indeed the appellant demonstrated a willingness to provide information where he could recall it. He was consistent about not being able to remember what had occurred and he didn’t want to make a statement because he wasn’t sure. Intoxication was a subject that was also referred to in the transcript but in my submission that was not prejudicial to the appellant. It was not in dispute at trial that the appellant was affected by alcohol during the night. In fact, it was something which was relied upon, both in terms of his state of not being able to have a particularly detailed recollection of what had occurred and indeed an overview as to how all these matters had transpired. It’s perhaps best illustrated by the Judge’s summing up of the relevance, “Intoxication”, at page 237, paragraph 41, and indeed was something that was referred to in the defence closing at page 225, towards the top of the page, “Because that’s what he said to the police. He said he didn’t have a clear recollection. Isn’t it possible that he didn’t have a clear recollection because not only was he affected by alcohol but he’d been asleep for a while, something that had happened.” So in my submission the reference in the transcript to his alcohol intake did not – there’s a reference to him perhaps having taken marijuana, but again that’s referred to, or there’s a reference in general to the possibility of recreational drugs having been consumed by people at the party.
CHAMBERS J:
Just remind me incidentally what was the room at the time of the incident? Dark? Was the room dark or were the lights on?
MR MANDER:
Soft lights is perhaps the –
CHAMBERS J:
Soft lights, was it? Yes.
MR MANDER:
– best way of describing it.
CHAMBERS J:
Thank you.
MR MANDER:
Lamps on. Indeed, just while on that page, pages 224 and 225, in some respects the essence of the defence is summarised there, perhaps commencing in the last paragraph, commencing with the sentence, “She has confronted this man, he looks dazed, he looks a bit confused,” and that’s the account that was given by Nico, and it continues on, “Isn’t it possible he did, in fact ended up going into a sort of drowsy state, sleeping for a while, because that’s what he said to the police? He said he didn’t have a clear recollection.” A bit further on, “Maybe he’d fumbled around, touched her again. It’s a human experience that you can probably relate to. That explains his response to the police when he was asked whether he wanted to make a statement, ‘No, I don’t want to make a statement because I don’t remember,’ and the critical issue is that he doesn’t remember what happened that,” presumably “that night”. “His explanation to her being confronted with this alleged rape or interference is, ‘No, I didn’t do that.’ Again, it’s perhaps a natural reaction when someone is accusing you of rape. That’s the absolute natural response, but he says, ‘I only did what you wanted me to.’ Now, now those are interesting words.”
When one looks at that as being a summary of the defence and one examines the transcript, it’s my submission that there’s nothing in the transcript which undermines that defence presented at trial, or prejudices the appellant in the presentation of his defence.
It was never in dispute that the appellant made a statement. In fact, he made two, and these were addressed by defence as I have alluded to. So this was not a case, in my submission, of an accused not having made a statement and the defence premised on that situation, yet, in reality, the situation being quite different and the jury having access to a statement. While what was presented –
CHAMBERS J:
Well, you say he made two. He didn’t really make two. He made one. The second one he said right from the word go he didn’t want to make a statement.
MR MANDER:
Well, in my submission, what was in evidence and what was summarised –
CHAMBERS J:
Yes, well, I really in some ways question, what relevance did it have what
Detective Heathcote said?
MR MANDER:
Well, page 162 –
CHAMBERS J:
Yes.
MR MANDER:
– is the evidence of that.
CHAMBERS J:
What relevance did it have? He exercised his rights. Why did we even need to know that he’d been offered the chance to make a statement unless the defence were alleging that he hadn’t?
GLAZEBROOK J:
His explanation for not making the statement though was actually a statement in itself because his explanation for not making the statement was that he didn’t remember, and that in itself is a statement that’s relevant.
CHAMBERS J:
So you must not give a reason when you exercise your rights?
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GLAZEBROOK J:
Well, no, not necessarily because I don’t think he was saying, “I’m not exercising my rights.” He was explaining that he didn't remember what had happened. So if he hadn’t said, “I’m not making a statement,” he was really saying, “I don't remember.”
ELIAS CJ:
And presumably that’s referred to by defence counsel in his address as the explanation why he hasn’t given evidence.
MR MANDER:
Indeed.
GLAZEBROOK J:
And he may not remember because there was also an issue as to whether he didn't remember because he was asleep and the only thing that he remembered then was when he woke. So, so hence the suggestion of an accidental brushing against.
MR MANDER:
And the hypothesis that was put forward by the defence in the closing which I, I’ve referred Your Honours to. That this somehow all happened in a state of semi- consciousness affected by alcohol on the couch and it’s understandable that he doesn't really, he can't really contribute to, to the context. And of course in my submission that, that’s one of the reasons why this is, this is of a he said, she says type situation, of which of course Matenga was, was an example.
So in my submission there was nothing in the transcript that was inconsistent with either what was in the evidence or the, the defence that was presented at trial. And in my submission it is entirely artificial to suggest that a different decision would have been made about the accused giving, the appellant giving evidence had he known that the transcript of his interview with the officer was in the jury room.
So just, just to perhaps summarise, the defence was that he was unable to respond to these allegations, he was unable to provide any comprehensive response because of tiredness and alcohol which produced a general state of bewilderment on his part, and those were matters that were emphasised by the defence. The transcript is wholly consistent, in my submission, with that defence. And that, indeed, was what was canvassed by the trial Judge in summing up. And indeed the learned trial Judge emphasised that no negative or prejudicial implication should be taken from that at page 236. It’s the – sorry, page 237. It’s the paragraph I’ve already referred Your Honours to. That paragraph 40, commencing paragraph 40 for context. The Judge refers to the, to the thumbnail sketch of the events that the appellant had provided later at the police station. When more formally interviewed he told
Detective Heathcote that he had no clear recollection of the events and he didn't want to say anything further.
And there the caution to the jury, “It would be quite unfair and wrong to hold against him in any way at all that he hasn’t made some kind of detailed commentary. What he has said is very little, but of course he is perfectly entitled to that. You may well think that the very little of what he said is quite important. He said that they were together on the couch. He certainly was affected by alcohol. Please read nothing negative whatsoever into the fact that he did not give some kind of detailed account of what had happened.” And in my submission that warning or caution to the jury was equally applicable to the transcript and would have been understood, in my submission, by the jury accordingly. Because, indeed, what his, what is recounted by the Judge is not being able to provide a detailed account is indeed what the transcript exhibits.
CHAMBERS J:
Well I wonder about that. I think the jury would have been extremely puzzled, having heard everything the Judge said, then to have found sitting in their room with an exhibit stamp on it a transcript of an interview which they’d been told had never, in effect, hadn’t taken place.
WILLIAM YOUNG J:
Were they – they were told – we were taken by Mr Lithgow to what the Judge said but...
MR MANDER:
Well, but, but the –
CHAMBERS J:
That he’d – we were, we’ve just been reading it.
WILLIAM YOUNG J:
Just a thumbnail sketch.
MR MANDER:
There was a reference to the Judge to the fact that he was at the – he, he was, later at the police station he was more formally interviewed. Which is what the Judge has told them.
WILLIAM YOUNG J:
He didn't make any kind of detailed commentary or statement about the events. But its – sorry, what the Judge said is equally applicable, is it not, to the written statement as to the précis. Or am I wrong on that?
MR MANDER:
Well that’s my submission. In terms of the, the, the questions that the jury might have about, “Well, where’s this come from? We haven't heard anything.” I mean, that is, that’s part of the, the landscape of this, this matter. The question, in my submission, is, well, would it have prejudiced the appellant? And my submission is that notwithstanding that irregularity, something that should not have happened, if one examines the transcript in the context of this trial, one can safely conclude it would not have had an effect, it would not have been capable of altering the result.
If, if I may now turn to the, the transcript of the complainant –
CHAMBERS J:
You wouldn't go so far, however, as to say, had the error been discovered while they were deliberating that it would have been permissible for the trial Judge to say, “Oh well, it doesn't matter.” Of course the trial Judge would have had to have done or considered a number of steps, wouldn't he?
MR MANDER:
No doubt. No doubt. And some of the other cases are examples of that, where the information has been discovered during the course of the deliberation and there have been directions given. Or in some cases no directions given.
CHAMBERS J:
Well, this is a case where directions would have to have been given. Do you accept that?
MR MANDER:
Certainly directions would have mitigated the situation. The question that arises in my submission, with respect, is in the absence of that type of remedial step, whether or not once can still conclude that he transcript or the transcripts didn't render this man’s trial unfair and weren’t capable of affecting the result.
Turning to the effect of the complainant’s interview transcript going to the jury, in my submission that event did not result in a miscarriage and didn't result or didn't render the appellant’s trial unfair. I acknowledge that the fact that the statement may have been admissible under section 35(2) of the Evidence Act is not a complete answer to the issue and it doesn’t provide the complete answer to whether or not because of that occurrence the appellant was denied a fair trial.
What is important is an examination of whether or not the statement, transcript rather, and the contents of the transcript rendered the trial unfair, was capable of affecting the result. In my submission, it was not because while it attested to consistency the evidence certainly didn’t go, the transcript did not go any further than the evidence that she gave at trial, so there’s no danger of any further information or material being provided to the jury, and that when one examines the nature of the defence, which was that the complainant had manufactured her complaint, she’d reacted so as to put on a scene, that she was prone to overreact, she was prone to being emotional, all matters that were canvassed in evidence in cross-examination of the complainant, and that in fact she created this scene because she was in a relationship and that’s why she did what she did, and the fact that we now know there was a trial, the jury know that she’s come and given evidence and gave emotional evidence and presented in a distressed way, the question arises whether or not the intervening statement that she gave to the police and the consistency of her conduct in doing so really added to her veracity and really prejudiced in any material way or consequential way the appellant in that defence.
There was evidence that the complainant was dealt with by the police throughout the morning of the 15th of February. Both Officers Heathcote and Kaveney refer to dealing with the complainant. For the record, Heathcote at pages 102 to 103, and Kaveney at page 108.
What needs to be examined, of course, is whether or not the lost opportunity to cross-examine the complainant or indeed the officer about the taking of the statement or the contents of the transcript or being able to address on those topics
rendered the trial unfair. In my submission, it did not because in my submission the defence case was very clear as to the motivations of the complainant and it would have been very apparent to the jury that she had followed through with her initial distressed complaint by giving evidence at trial and therefore quite obviously had given an account of what she said had happened to her to the police previous to that.
ELIAS CJ:
But why is that an answer to the risk which is implicit in the policy behind, one of the policies behind section 35, that the statement itself might be treated as somehow independent confirmation of the complainant’s evidence?
MR MANDER:
Well, only insofar as one has to assess how much, whether that realistically, I know what the theory is, but realistically in the context of this case, added to the Crown case and detracted from the defence case and, in my submission, objectively examining the circumstances of this trial and examining what the jury knew about this complainant and what she said has happened to her and the fact that she’s come back to the country and given evidence, does the fact that she’s made a previous consistent statement and we can read that previous consistent statement, does that really undermine the defence case as presented at trial?
WILLIAM YOUNG J:
In a sense it’s the reverse of the Court of Appeal thinking because there was no challenge to the consistency of her evidence, consistency of her conduct or what she was saying. She was saying it was rape from the outset, she’s extremely upset and angry, she’s upset and angry, distressed when she’s interviewed. The fact that she’s still cross about it is apparent from her evidence and the fact that she’s come here from the UK to give evidence.
MR MANDER:
Indeed, and Justice Chambers, you asked the question this morning, why didn’t the
prosecutor seek to introduce this statement, and in my submission –
WILLIAM YOUNG J:
Didn’t need to?
MR MANDER:
Why? What – how –
ELIAS CJ:
No, but the whole question of consistency in our law is immaterial. It’s irrelevant, and it’s recognised to be prejudicial to put emphasis on it except in those cases where there is some particular reason for why consistency rebuts recent invention. So it just – saying that there is no harm because it was consistent seems to me to confound section 35.
MR MANDER:
Well, I’m not submitting because it is consistent. I’m submitting that in the context of this case the fact that it was consistent didn’t actually add anything to the Crown case.
ELIAS CJ:
Because you say the fact that she’d come along to give evidence was consistent. I
find it a little bit difficult to grasp this argument.
GLAZEBROOK J:
It may be an issue of working out, if you’re working out whether it’s admissible or not, if that is relevant, it may be an issue of working out the extent of the ability to bring in prior consistent statements when there’s a challenge to the veracity of an account, which there was here, because it has been, Hart, I think, has been interpreted as saying whenever you challenge the veracity of an account, which clearly was challenged here, then prior consistent statements become admissible subject to section 8 overkill, and what you were saying, I think, is here it would have been section – if not section 8 overkill at least not necessarily to bring in that other statement for that purpose.
MR MANDER:
Yes, and indeed the Crown is in danger of contradicting itself in the Court of Appeal. I have to acknowledge that.
GLAZEBROOK J:
But, of course, you would also say that there was a direction about not –
MR MANDER:
Yes.
GLAZEBROOK J:
– taking something from the complainant’s mouth as being independently
corroborative of her account.
MR MANDER:
Yes. There’s certainly that there was that direction. But, again, as I say at the risk of taking a contradictory stance to what the Crown submitted in the Court of Appeal, this wasn’t – what was – one looked at the circumstances of the taking of the previous consistent statement. What was it about it that actually assisted, that actually triggered section 35(2), it was a statement made to the policeman, on the morning, and the expectation would be the complainant would give an account to the policeman about what she’s not given in evidence. It wasn’t a case like in Matenga where it was another civilian who she spoke to at some previous occasion at a time of distress. But essentially, the Crown’s submission is that even if it is acknowledged that it does provide some consistency to the complainant’s account, when looked at the trial as a whole can one conclude that, because of that fact, it affected the trial, it affected the outcome of the trial? And my submission is that the, given the factors in play in this trial, the nature of the defence, it didn’t have that type of impact.
CHAMBERS J:
It’s not just the question of whether it had that impact thought, because Matenga says there are two things that have to be considered before you can apply the proviso. One is the test as to what the Appellate Court thinks would, is the, whether they can be sure of guilt themselves. But the second is it has to have been a fair trial. And is it a fair trial if the jury are considering pieces of evidence or non- evidence, but material that's directly referable to the circumstances of the trial, which neither Judge nor counsel nor accused know they’re looking at.
MR MANDER:
I acknowledge that. It must still be capable of being described as a fair trial. And the examination that, in my submission needs to be undertaken, is what would the defence – given they’ve lost that opportunity, what would the defence have done with it, how would they have, if it had come in, what would of their response been to it?
ELIAS CJ:
But, you know, this is –
CHAMBERS J:
Well, I’m not sure that the right test –
ELIAS CJ:
Well...
CHAMBERS J:
– if it had come in.
ELIAS CJ:
Well, this is why we have natural justice, so that we don’t, rules, so that we don’t actually get driven to speculating about what the outcome would have been. And here’s a case where the defence has flagged that it’s going to object to the admission of the accused’s statement, don’t get a chance to actually argue that, and also would have been well able to challenge the admission of this other statement, haven't been heard on that.
MR MANDER:
Well, those are factors –
ELIAS CJ:
Yes.
MR MANDER:
– but one is always taken back –
ELIAS CJ:
Yes.
MR MANDER:
I’m sorry if I’m repeating myself.
ELIAS CJ:
Yes.
MR MANDER:
But one is always taken back to having acknowledged those things.
ELIAS CJ:
Yes.
CHAMBERS J:
But isn’t the true –
McGRATH J:
Isn’t the – sorry – isn’t the approach that comes out of Karakaya and perhaps even more in Thompson, that the harm occurs if the jury has material adverse to the defendant with where there’s been no proper opportunity to deal, rather than looking at the matters in terms of actual probable cause and effect? I’m looking at paragraph
11, which I took Mr Lithgow to, Thompson, and I suppose 27 would be another one in the other case, Karakaya. So you're really urging us to take a, looking at the cause and effect sort of situation, but I’m not sure that that's really what the test that’s been formulated is.
ELIAS CJ:
Although, presumably, you would re-formulate it by saying that there was nothing adverse to the defendant.
GLAZEBROOK J:
Or you’d say nothing adverse to the defendant that was not already well in evidence in Court.
WILLIAM YOUNG J:
Additionally adverse.
GLAZEBROOK J:
Additionally adverse.
ELIAS CJ:
Mmm.
CHAMBERS J:
I think it’s your counterfactual that may be wrong, with respect. It’s not what would the defence have done if this evidence was in. Isn’t the true counterfactual, if we’d found out about the mistake at trial, what would have happened? Now we know –
WILLIAM YOUNG J:
Or alternatively, if the Court Taker had simply removed these exhibits from the exhibits that went into the jury room, because that's where the irregularity occurs. I mean, the counterfactual may be simply the jury never saw them.
CHAMBERS J:
Oh, well, then, well, then there’s no problem.
ELIAS CJ:
Then we don’t have an irregularity.
WILLIAM YOUNG J:
Yes, but that's the counterfactual –
CHAMBERS J:
But –
WILLIAM YOUNG J:
– that's the difference between what happened, post the irregularity.
ELIAS CJ:
I think it’s a good idea to avoid that counterfactual, yes.
CHAMBERS J:
Well, the point I was going to make is –
ELIAS CJ:
Yes.
CHAMBERS J:
– the defence either would have said, would have argued that, “This is so important and it’s such a mistake that we just must have a new trial.” At the very least, it seems to me, the Judge would have demanded them back, given firm instructions as
to what was to happen. Now, as it turns out, the first of those possibilities isn’t available now, except in the sense that a new trial can be ordered – rather, the second of those simply isn’t available. So aren’t we just thrown back, if we’d found out about this at trial, the second possibility of how to deal with is, which would have been available, is not now available, so aren’t we just forced back on the only other alternative that the trial Judge would have faced at trial?
GLAZEBROOK J:
The other possibility, just to put in the other one, and is that it would have been found that those were admissible and –
CHAMBERS J:
They couldn't have been added after the jury had been –
GLAZEBROOK J:
I suppose that's true.
CHAMBERS J:
– after the jury had gone out.
GLAZEBROOK J:
Although you may have been able to have extra directions on them in some way, but
I think that's probably true.
MR MANDER:
At the risk of avoiding Your Honour’s proposition, but the scenario now is the application of section 385, and –
CHAMBERS J:
But it shouldn't operate in a way different from what potential outcomes would have been had we found out about the irregularity during the course of deliberation, should it?
MR MANDER:
Well, it could, because it could be a question of degree. As I said previously, as a matter of mitigation, the trial Judge may have given, would have been able to have given directions. It wouldn't necessarily have stopped an appeal, so the point would
still have been taken. So a Court would still have had to have examined the scenario, albeit the Crown, in attempting to defend the conviction, would have the benefit of pointing to the directions. The Crown doesn’t have the ability to point to the directions here, but I, in my submissions, submit that the Crown is still able, notwithstanding the absence of any directions, of any ability on the part of the Court to manage or to mitigate what is the irregularity at trial, and in fact that's what is examined, or at least why this is traversed in the Australian decision of R v Brown [2012] QCA 155, which is, the relevant passage is set out at paragraph 34, page 10, of the Crown’s submissions, which is tab 4 of the Crown’s bundle. I appreciate this is the Queensland Court of Appeal here. But at paragraph 25 it refers to the case of Martin v R [2010] VSCA 153, (2010) 28 VR 579, and it, and it discusses the regular – irregularities discovered in the course of trial and the irregularities discovered after verdict. It’s relevant in both contexts to consider that to reveal the irregularities relevant to the issues before the jury was prejudicial to the accused and, if it was, then the extent of the prejudice. Then it focuses upon irregularities discovered after verdict. Referring to Chief Justice Gleeson and in R v Marsland NSWSC 60263/90,
17 July 1991, the test was the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, that the jury would not have returned the same verdict if the irregularity had not occurred. Now, that’s obviously in an Australian context, but I make reference to it because in respect of the proposition, Your Honour Justice Chambers has put to me, in my submission it doesn’t change the exercise which is required of an appellate Court.
If I can just finally make reference to the directions that were given by the trial Judge which have already been referred to in the course of this hearing, but for the sake of completeness, paragraphs 46 and 47 of His Honour’s summing up at page 239 of the case on appeal the trial Judge made reference both to the previous – or the complaint which is part of the incident itself but also which has some importance in relation to the submission contained in the appellant’s written submissions about this issue of demeanour which was captured in the transcript, and that is the evidence of the CCTV footage which was played at trial and which also captured the complainant’s demeanour, her upset, her distress, after the incident.
At paragraph 47, His Honour emphasised, “You need to bear in mind of course, that it is not evidence truly independent of her. In other words, it comes from her. Bear in mind that just because she said, ‘You raped me,’ does not mean to say that it is true.” That formula is akin to the type of formula that appears to be used by trial Judges.
Attempting to try and find some regulation direction in this regard, it was difficult to locate. What the Crown did find was an example set out in a case of W v R [2010] NZCA 561. That made reference to a Judge correctly directing the jury about the use that could be made of a previous consistent statement. The direction that was given was, “When you heard the first of those statements, that’s a reference to the previous complaints, you’ll recall that I told you that when someone repeats something, that does not make it true. I emphasise that the reason you were hearing about that in this case because there was a suggestion here that the complainant amplified the story, made it up.” So it’s that formula just because someone repeats something, it doesn’t make it true. That’s the language that was used by the trial Judge here. It’s my submission that that caution would have been obvious – would have obviously been applicable to the previous statement or the transcript of the complainant’s account clearly was sourced from her. It was clearly her account. Just because she said that on a previous occasion, the jury would have appreciated it would not have made it true, and clearly it was not “truly independent” of her.
In my submission, paragraphs 50 and 51 of the Judge’s summing up, particularly in the context, and if read as a whole, the intervening paragraphs where the respective cases of the defence and the Crown are put, and in particular the defence case about her behaviour being contrived or engineered or a put-on performance, that her reaction was staged, put on to make up her false complaint, in my submission what clearly the Judge is directing the jury to do is to cast around and look for supporting evidence which clearly would have been, having regard to his earlier directions, supporting evidence that was independent of the complainant. That would have been re-emphasised when the Judge, at paragraph 51 immediately afterwards, refers to what the Crown and the defence assert as being other evidence, but repeats the defence submission the accused submits that, “These are quite equivocal pieces of evidence not lending support for her account, which remains unsupported. It is submitted on behalf of the accused that she has made up the story, come to believe in it herself, to save face in front of others from engaging in the kind of behaviour with the accused that she did.” So again, in the context of actually what they should be looking at, the trial Judge is re-emphasising what’s wrong or what the defence is alleging is the motivation and reason for her complaint and for her upset, and again, in my submission, it would be illogical for a jury not to have thought of the transcript containing the complainant’s complaint as not being applicable to that caution, that warning.
Perhaps just finally, in my submission the Crown case was a very strong one in this case. Now, that, of course, cannot trump the need for the trial to have been fair. But all the evidence supported the complainant’s evidence that she was not awake at the time that this incident happened. The appellant certainly didn't put forward any evidence that she was awake. There’s not a single piece of evidence from – obviously not from the appellant or anyone to suggest that when she said she was asleep she was other than asleep. Being asleep, of course, she cannot consent and this wasn’t a –
CHAMBERS J:
But there was some other evidence that could conceivably have meant that she
wasn’t asleep. That was the evidence relating to where her legs ended up.
MR MANDER:
There certainly was evidence about the positioning of her legs, but I don’t recall any suggestion – and how the appellant may have positioned himself in relation to the complainant.
CHAMBERS J:
I see.
MR MANDER:
But there certainly was no contest, or certainly there was nothing put forward that she was other than asleep. It was suggested to witnesses, “You couldn't tell.” All her evidence was to the effect that, from what they could tell and they accepted, “Well, you know, she wasn’t moving.” So in the limitations of what any eyewitness can say, the defence was a theory. It was nothing more than a theory. It was a proposition that was put which, in my submission, was not tenable on the evidence, and even when the defence case is taken at its highest, that somehow there was some behaviour by the complainant previously which apparently provided some reasonable basis for the appellant to do what he did, if one examines what that relies upon, in my submission it simply cannot constitute a reasonable belief in consent.
And it’s probably exemplified by the very cross-examination of the complainant at pages 83 through 85. Bottom, last question page 83. The defence case is put to the complainant. “When you say you woke up it’s the point you realise you’ve gone too far”, it’s inherent contradiction, “with Mr Guy. He’s been given the wrong message by
you.” Answer, “No.” “You realised that when you woke up everyone else was going to see the two of you being intimate lying on a couch together.” Answer, “No.” “Everyone else knew that, that you were in a relationship with someone else.” Answer, “I was seeing somebody else. I wasn’t in a relationship.” “You needed to make a scene. You needed to make it look like Mr Guy’s presence was absolutely unwanted and that’s why you yelled out, ‘You’re raping me.’” Answer, “No.” “You’ve convinced yourself now that he was penetrating you. That’s probably never happened, hasn’t happened.” “Yes, it did.”
And then a little bit over the page, page 185, line 13. Question, “Your reaction when you say he did this, he did, is an extreme one because you have a tendency to overreact to small things like the bathroom issue and you were making a scene again in the TV lounge.”
Now, in my submission, there was evidence or reference to some dancing and possibly a touching by the appellant of the complainant in the area of her crotch which was the subject of a lot of evidence. But again, that’s in the context of the social event that was going on that night, a lot of drinking, a lot of so-called dirty dancing, a lot of posing, taking of photographs, amongst all the people present that night, and the submission that the single act of interaction between the appellant and the complainant could possibly provide a reasonable basis that this sleeping woman was consenting really had little chance of being accepted by a jury, in my submission.
So I do stress this is not a case of a complainant making an allegation and an accused person saying, “I didn’t do it,” or, “The person consented.” This is a person saying, “I can’t remember,” and really no realistic challenge to the fact that the complainant was asleep at the time and reacted in a perfectly understandable way to be penetrated, or her genitalia being penetrated and immediately and suddenly awakening from that experience.
Unless I can assist the Court further...
ELIAS CJ:
No, thank you, Mr Mander. Yes, Mr Lithgow.
MR LITHGOW QC:
Does the Court wish to take a break at 3.30?
ELIAS CJ:
No, thank you.
MR LITHGOW QC:
Dealing with just one simple thing first. I think it was Justice McGrath was wondering if Karakaya was an oral decision but it was an appeal that was decided the
2nd of the 2nd and the reasons were given the 16th of the 2nd, so –
McGRATH J:
Thank you.
MR LITHGOW QC:
– presumably not. This sleep business hasn’t really been examined because the law says that you cannot consent while you are asleep, but the case appears to have been dealt with by everybody on the basis that you could, however, have a reasonable belief in consent. Now that’s never been examined by this Court and is extremely complicated. The Canadian Supreme Court found it extremely difficult because if to be taken literally it would mean that to kiss your life partner before they woke up would be an indecent assault because it covers not only sexual violations but any indecent assault. It would make Sleeping Beauty an example of an indecent assault. So it has – it needs a lot of thought.
So I’ve left it on the basis, and I think it’s better, with my submission, to leave it on the basis that the Court dealt with it and the Crown evolved their submissions around it that it would be a reasonable belief in consent situation.
But, of course, one proposition in all that, the Crown have made it here seem very cut and dried and that it’s just a theory because he says he can’t remember. He actually said she woke him up by her hitting him. So that would be one piece of evidence, I’m not going to go through it all, but one piece of evidence which would indicate that there was a difference of evidence on that issue. So how much she was awake, how much she was asleep, how much was alcohol, how much was not, was all available for a jury determination.
CHAMBERS J:
It actually gives rise that to a potential further issue, which I’m not sure the Judge mentioned, which is the first issue being are you sure that he penetrated her with his finger, the second being are you sure it was intentional, that that would be the way in which his being asleep would be factored in. But I don’t think anyone approached it on that basis.
MR LITHGOW QC:
Yes. The defence approached it on the basis it was all a bit of a mess that might occur if you were amorously wrapped around each other after a night of fun and alcohol and you’d gone and got something to cover you both, one of you had gone and got something to cover you both, and she was draped all around you. But that would be all jury stuff.
GLAZEBROOK J:
But it was really put on the basis by the defence that it was a mistake when she thought that she had been penetrated, I think, rather than that he might have, because he may have brushed against her by mistake.
MR LITHGOW QC:
Yep, or maybe if something’s jolted her or else something’s jolted her and made her react, either, “Oh, dear, look what I’ve got myself into,” or some – either a mental thing or a physical thing that happened just in the stir-up of them being wrapped around each other on the couch.
GLAZEBROOK J:
But that seems to have been the way the address was put.
MR LITHGOW QC:
Yeah, and that would survive the extent to which we understand the law relating to sleep at the moment because it’s never really been confronted by our Courts and I don’t think this is really a case to do it, but while we’re just dealing with that issue the
– in – can I just check something with Ms Levy because I might be getting two cases confused between Matenga and the sleep case.
1530
Now then there’s the question of the Crown acknowledging that their submissions in the Court of Appeal are different from the submission that they made here. It goes a little bit deeper than that. Our submission here was that the previous consistent
statement was not admissible. Second proposition is that if it was admissible, it only needed a tiny slither. The Crown’s submissions were, in this Court, that the whole statement needed to go in. In fact, they went further and said, “Well, you're lucky you didn’t play the DVD.” So at their paragraph 71 their proposition was the admission of the entire account was accordingly necessary to respond to the claim of recent invention. So it’s not simply a change of plan from the Court of Appeal but a change of plan from the submissions they filed. So you should note that their submissions, that end at 71 but start at about, that start at 61 and now resiled from. Now, for counsel to resile from submissions is entirely appropriate in the circumstances and, good, we’ve all got to responsible to how it evolves. But it does show the problem that if people don’t know what’s going on they cannot mould their submissions nor the Judge mould their directions to real situations. Because if the Crown can’t decide which square to land on, after all this time, and even between the time of filing these submissions and delivering them, you can see that this is all not so simple.
The propositions that Justice McGrath referred to, if I have it correctly, then the first proposition was paragraph 11 of Thompson, and that’s, if on examination this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no proper opportunity to deal, the conviction is likely to be unsafe, and that’s Thompson’s view of the meaning of Karakaya. Now there is the following sentence which says, “If the material does not affect the safety of the conviction, the appeal will fail.” That is perfectly suitable for our purpose, if the meaning of that first sentence is that this kind of evidence creates a situation likely to be unsafe, and that the final sentence is in contrast to other sorts of situations, it doesn’t have that risk, then that is sufficient for the purpose. Another reference was given to 27, I think, in Karakaya, but I don’t think, with respect, it takes it any further, but if, did Your Honour want me to look at that as well? Was it 27 –
McGRATH J:
Yes.
MR LITHGOW QC:
– that's applying these principles to the present case, the material obtained by the juror from the Internet, and the expression is, “Potentially relevant to the outcome of the case,” is that the section that Your Honour meant?
McGRATH J:
I think you’ve addressed the matter along the lines that was hypothetically putting to
Mr Mander.
MR LITHGOW QC:
I may not have the correct second paragraph, I’m certain that –
McGRATH J:
No, you do.
MR LITHGOW QC:
Thank you, right. The proposition that the Judge’s direction somehow covered the concept that by saying that just because somebody says something you don’t have to believe them, also covers the situation that repeats are not any different, because the Judge I don’t believe, I can’t find any proposition where the Judge dealt with repeated propositions, which is the very issue with introducing stand-alone prior consistent statements. So, in my submission, the correct proposition is that, opined by some members of this Court, and that is that – I think Justice Chambers – that is that a jury must have been scratching their heads as to how all this fitted together, how these directions could possibly fit together with these random documents that they’ve seen, which seem official enough, because they’ve got exhibit stamps on them and that kind of thing. They’d had no reason to doubt that they were supposed to be there, but, “What on earth had the Judge told us that fits with all this?”
My central submission is that – and Your Honours were dealing with the interplay of paragraph 30 of Matenga down to halfway down paragraph 31 of Matenga. But the whole of 31 is also important, because His Honour Justice Blanchard is trying to give all the variations succinctly. And after he dealt with capable of affecting the result, and then dealing with on a result may actually, that is, in reality have occurred, he goes on to say the Court may exercise its discretion only if having reviewed all the admissible evidence it considers that, notwithstanding there’s been a miscarriage, a guilty verdict was inevitable in the sense of being the only reasonably possible verdict on that evidence. But then paragraph goes on to deal with the other types of problems, “Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable, the Court must feel sure of the guilt of the accused,” and then a different variation, “Before applying the proviso, the Court must also be satisfied that the trial was fair and that thus there was
no breach of the rights guaranteed to the accused by the Bill of Rights Act.” And I add to that the propositions that Matenga previously referred to as to the protective role that the Court takes by not exercising the discretion to apply the proviso by saying, this is simply not good enough, we’ve got all these rules. Everyone at the trial end understood in a flash that this is bad, the Court of Appeal’s analysis was wrong, we’ve thrashed this out for five hours here and there’s still mysteries, let’s just revert to first principles. It is a bad mistake, it directly affects the material in the trial, the parties didn’t have the opportunity to say what they wanted to say about it, it affected rights and decisions, and the Judge lost control of those aspects of the case that are meant to be his business, and the proviso simply not available. So those would be our submissions.
Is there any other matter the Court wanted me to deal with?
ELIAS CJ:
No, thank you. Thank you, counsel, we’ll reserve our decision in this matter. The appellant’s still on bail, I take, is he, Mr Lithgow?
MR LITHGOW QC:
No, the appellant’s in custody because the Court declined to deal with bail, they said
only the Supreme Court should decide that, so...
ELIAS CJ:
So he’s serving his sentence?
MR LITHGOW QC:
He’s serving his sentence. He’d have to apply to this Court for bail.
ELIAS CJ:
Right, thank you for that indication.
MR LITHGOW QC:
Sorry, following the Court of Appeal decision.
ELIAS CJ:
Yes.
COURT ADJOURNS:3.40 PM
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