Jones v The Queen

High Court of Australia|1989-07-01|Before: Toohey JJ, Neasey J

The applicant was charged on indictment in the Supreme Court of Tasmania on five counts. After a trial before Neasey J. and a jury he was convicted on three of those counts, namely, unnatural carnal knowledge of his daughter A; common assault of A during the commission of the first-mentioned offence; and indecent assault of another daughter B. The trial on these and other counts in the indictment proceeded together over the objection of counsel for the applicant.

On appeal to the Court of Criminal Appeal in Tasmania a number of grounds were argued. The Court of Criminal Appeal allowed the appeal, quashed the convictions and ordered a retrial. The applicant seeks special leave to appeal from that part of the judgment of the Court of Criminal Appeal which orders that the applicant be retried. This Court invited the parties to address themselves first to ground 14 of the applicant's proposed notice of appeal which raises a supposed failure on the part of the Court of Criminal Appeal to hear and determine grounds of appeal which were argued before it and which, if accepted, would have entitled the applicant to a verdict of acquittal to be entered pursuant to s. 402(3) of the Criminal Code Tas.

In this case the grounds of appeal to the Court of Criminal Appeal included grounds 4, 5 and 6 as follows:

That the learned Trial Judge erred in law by admitting into evidence a prior statement by [A].

That the learned Trial Judge erred in law in directing the jury as he did as to corroboration of the complainants' evidence.

That the learned Trial Judge erred in law in allowing alleged evidence of similar facts to be led by the Crown.

These grounds were supported by both written and oral submissions by counsel on behalf of the applicant and it is necessary to consider whether the Court of Criminal Appeal determined these grounds to the extent that was necessary to dispose fully of the appeal.

Ground 4 turned on ss. 81B and 81E of the Evidence Act 1910 Tas, the chief argument being that one of the conditions prescribed by those provisions for the admission of a representation contained in a document is that the person who makes the representation (in this case, the prosecutrix A) must assent to the truth of the representation. This was said to flow from s. 81E(b) which requires that the representation be "signed or initialled by [the person making the representation] or otherwise acknowledged by him as his representation". The Court of Criminal Appeal rejected this argument. The Court then referred to s. 81B(1)(c)(i) which requires that the representation be made "at a time when the facts stated in the document were fresh in the memory of the witness". The Court held that one of the representations allegedly made by A in the document was not made when it was fresh in her mind. Accordingly, the Court held that that representation was inadmissible and, on this and another ground, held that the appeal should be allowed and a new trial ordered. No doubt the Court contemplated that on the new trial the trial judge could, if objection were taken, inquire into and determine whether other representations in the document were fresh in the memory of the witness at the time when those representations were made. No such inquiry was made at the first trial because counsel for the applicant had not raised this ground of objection to the reception of the document. The Court of Criminal Appeal determined all the issues arising under ground 4.

By ground 5 the applicant sought to rely on a decision of the Victorian Full Court in Reg. v. Kehagias [1] , which held that two complainants in sexual cases whose evidence required corroboration could not corroborate each other. As there was no corroboration of either A's evidence or B's evidence save the evidence of B and A respectively, an application of Kehagias' case would have resulted in a verdict of acquittal being entered. This ground was not referred to in the Court's reasons for judgment.

There were two aspects to ground 6. The first was a matter of substance, the second a matter of procedure. The applicant had submitted that the evidence of A and B had been wrongly admitted as similar fact evidence and that their evidence lacked that striking similarity which is essential to admissibility as similar fact evidence. The procedural question was raised when the appeal was first argued before the Court of Criminal Appeal but it was argued more fully on a resumed hearing of the appeal after an interval in which this Court's judgment in Hoch v. The Queen [2] had been published. A new ground of appeal was then added to the notice of appeal in reliance on Hoch v. The Queen. By this ground, the applicant sought a quashing of his conviction because of the failure of the trial judge to conduct an inquiry on a voir dire to determine whether B and A might have concocted their allegations against the applicant. It was agreed by both counsel, and rightly, that the new ground had to be upheld and that it required that the conviction be quashed. It was agreed that the new ground did not support a verdict of acquittal but by itself would lead only to an order for a retrial.

The Court published reasons for its decision saying that the Court was

able to dispose of this appeal by the determination of two grounds only, namely:

"That the learned trial judge erred in law in that he failed to decide for the purposes of determining the admissibility of the similar fact evidence of the complainants whether there was: (a) any possibility of, or alternatively (b) a real chance of conspiracy between the complainants [A] and [B]."

"That the learned trial judge erred in law by admitting into evidence a prior statement by [A]."

The first of these grounds was the new ground added in reliance on Hoch v. The Queen. The second was a restatement of the original ground 4. Upholding these grounds, the Court allowed the appeal and made an order for a retrial. The Court of Criminal Appeal did not express any reasons relating to the applicant's submissions on ground 5 and the substantive aspect of ground 6. The Court thus left undetermined two issues which had been raised and argued and which, if determined in favour of the applicant, would have led to a verdict of acquittal. Those issues were, first, whether the evidence of B or the evidence of A could corroborate the evidence of the other; and, secondly, whether the evidence of A in relation to the offence involving B and the evidence of B in relation to the offences involving A were evidence of similar facts. The Court thus failed to dispose fully of the appeal before it.

The Crown seeks to support the Court's order for a retrial in two ways. First, it is submitted that the Court must have considered and rejected the applicant's arguments for acquittal in reaching the conclusion which it did. But the reasons for judgment of the Court of Criminal Appeal clearly state that two grounds only were determined and those two grounds were identified precisely. The grounds which, if accepted, would have led to a verdict of acquittal were not determined. Next, the Crown submits that the grounds which the applicant raised in support of a verdict of acquittal were plainly untenable. If this were the conclusion at which the Court of Criminal Appeal had arrived, no doubt the Court would have said so. The Court did not say so.

The Crown, seeking to avoid an order remitting the matter to the Court of Criminal Appeal, invites this Court to determine for itself the grounds which were left undetermined. To accede to that submission would involve this Court in an examination of the evidence of A and B in order to decide whether the evidence of one is corroborative of the evidence of the other and whether the events to which one deposes are similar facts which may be proved to establish the events to which the other deposes. It would involve also a consideration of the correctness of Kehagias' Case and, in particular, its consistency with the judgment of this Court in Hoch v. The Queen. This Court ought not determine those questions when they have not been considered by the Court of Criminal Appeal. Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed. An appropriate exercise by this Court of its supervisory jurisdiction requires that tenable grounds of appeal, properly raised and argued in the court below, be dealt with by that court before the issues raised by those grounds are agitated in this Court. Otherwise this Court would be denied the assistance of intermediate courts and would be saddled with the decision of questions which ought properly to be decided by courts of general appeal. To dispose of this application for special leave to appeal, it is sufficient to say that the grounds of appeal which the Court of Criminal Appeal left undetermined are not plainly untenable.

The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right - and in this case we should assume but not decide that it is - it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal became known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant's appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court's judgment and to remit the matter for further hearing and determination.

The appropriate course for this Court to follow is therefore to grant special leave to appeal, to allow the appeal against that part of the judgment of the Court of Criminal Appeal which orders that the applicant be retried and remit the matter to the Court of Criminal Appeal in Tasmania to complete the hearing and determination of the appeal to that Court. The order for bail made by the Court of Criminal Appeal should be varied to require the applicant to appear for retrial at a date to be fixed by the Criminal Court at Hobart unless the Court of Criminal Appeal shall order that verdicts of acquittal be entered.

No inference should be drawn from the making of this order that this Court is inclined to favour any of the grounds upon which the applicant has sought verdicts of acquittal. What justifies the order of remittal is not that the grounds relied upon are correct but that they are not plainly untenable. The Court of Criminal Appeal is therefore free to approach these grounds untrammelled by any expression by this Court as to their correctness.

The circumstances giving rise to this application for special leave to appeal from the order of the Court of Criminal Appeal of Tasmania for a new trial are set out in the joint judgment of the Chief Justice, Brennan, Dawson and Toohey JJ. The applicant wishes to attack that order on two grounds which, if accepted, will lead to orders of acquittal. The first of those grounds is that the evidence of one complainant was not, of its nature, similar fact evidence admissible against the other complainant. The second is that the evidence of one complainant could not, as a matter of law in the circumstances of the case, constitute corroboration of the evidence of the other complainant. While the matter is not free of doubt, it appears to me that those two grounds remained live issues at the end of the hearing before the Court of Criminal Appeal. That being so, I agree that the applicant was entitled to have those two grounds expressly determined by the Court of Criminal Appeal.

I appreciate the force of the reasons which have led the other members of the Court to conclude that the matter should be remitted to the Court of Criminal Appeal so that the two above-mentioned grounds may be expressly dealt with by that court. ordinarily, I would find those reasons compelling. On balance, however, I do not agree that that course is the appropriate one in the present case. In the particular circumstances of this case, it appears to me that the interests of the administration of justice would be better served by this Court itself determining those grounds, rather than by orders which would have the effect of requiring that they be dealt with by the Court of Criminal Appeal, thus leaving open the possibility of a further application for special leave to appeal to this Court. It is now more than 18 months since the conclusion of the original trial. The complainants, who are daughters of the applicant, were 14 and 12 years of age at the time of that trial. In view of the age of the complainants, their relationship to the applicant and the nature of the alleged offences, it is of even more than ordinary importance that, if there is to be a new trial at which the complainants will be again required to give evidence, that trial take place as soon as is practicable. Accordingly, I would grant special leave to appeal and proceed with the argument of the appeal so that the two outstanding grounds can be finally disposed of.

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. Jones v The Queen [1989] HCA 16

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