Libke v The Queen [2007] HCA 30

HIGH COURT OF AUSTRALIA

GLEESON CJ

KIRBY, HAYNE, CALLINAN AND HEYDON JJ

JUSTIN PATRICK LIBKE APPELLANT

AND

THE QUEEN RESPONDENT

Libke v The Queen

[2007] HCA 30

20 June 2007

B1/2007

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

B G Devereaux SC with P E Smith for the appellant (instructed by Legal Aid Queensland)

D L Meredith for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Libke v The Queen

Criminal law – Practice and procedure – Cross-examination – Appellant convicted at trial before jury of certain sexual offences against intellectually impaired person – Whether "miscarriage of justice" under s 668E(1) of Criminal Code (Q) by reason of manner in which prosecutor conducted cross-examination of appellant – Role of trial judge during the cross-examination – Application of the "proviso" in the circumstances – Requirements of Weiss v The Queen (2005) 224 CLR 300.

Criminal law – Practice and procedure – Directions to jury – Whether trial judge gave adequate directions on issue of consent as it related to cognitive capacity and intellectual impairment – Whether trial judge gave adequate directions on defence provided by s 216(4) of Criminal Code (Q) that accused had belief on reasonable grounds that person was not intellectually impaired.

Words and phrases – "cognitive capacity to give consent", "intellectually impaired person".

Criminal Code (Q), ss 24, 216, 229F, 348(1), 348(2), 349(2)(a), 668E(1).

1. GLEESON CJ. I have had the advantage of reading, in draft form, the reasons for judgment of Hayne J. I agree, for the reasons given by Hayne J, that the appeal should be dismissed. I would add two brief observations. 2. First, the argument that the conduct of the prosecutor during his cross-examination of the appellant resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. As Mullins J pointed out in the Court of Appeal, the cross-examination of the appellant extended over 44 pages of transcript. In the course of that cross-examination, counsel made certain inappropriate comments. It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant. Even so, having read the whole of the evidence of the appellant, I would not interfere with the Court of Appeal's conclusions that the conduct of the prosecutor did not make the trial unfair. 3. Secondly, I agree that, in the circumstances of this case, in order to raise for the jury's consideration the defence provided by s 216(4) of the Criminal Code (Q), it was not necessary for the appellant to go beyond saying that the complainant "seemed fine". The appellant did not have to show that he thought there was a real question about the complainant's intellectual capacity, and arrived at an answer to that question. Most of the beliefs that form the basis of our dealings with other people are more in the nature of undisturbed assumptions than conclusions based on a process of reasoning. It was for the members of the jury to decide, in the light of all the material before them, including their assessment of the appellant, and their observation of the complainant, whether the appellant's evidence that the complainant "seemed fine" established a belief by the appellant that the complainant was not intellectually impaired, and whether that belief was on reasonable grounds. The case was left to the jury on the basis that it was open to decide those issues favourably to the appellant on the basis of that limited evidence. It was not necessary, and it would probably not have been to the appellant's advantage, for the trial judge to give more elaborate directions on the point. It is not surprising that trial counsel did not seek further directions. 4. KIRBY AND CALLINAN JJ. As we approach this appeal from the Court of Appeal of the Supreme Court of Queensland[1], it concerns primarily the standard of conduct required of a prosecutor, as such conduct affects the entitlement of a person accused of criminal offences to a fair trial.