Libke v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ.,Kirby,Callinan JJ.,Hayne J.,Heydon J.
• Judgment Date: 20 June 2007
• Neutral Citation: 2007-0620 HCA A,[2007] HCA 30
• Docket Number: B1/2007
• Date: 20 June 2007

[2007] HCA 30

HIGH COURT OF AUSTRALIA

Gleeson CJ Kirby, Hayne, Callinan and Heydon JJ

B1/2007

Justin Patrick Libke

Appellant

and

The Queen

Respondent

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))

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

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’.

ORDER

Appeal dismissed.

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.

The facts

5 Mr Justin Libke (the appellant) was found guilty by a jury, and convicted, after a trial in the District Court of Queensland (Griffin DCJ) on one count of rape, two counts of unlawful carnal knowledge of an intellectually impaired person, one count of unlawful exposure of an intellectually impaired person to an indecent act, and of unlawful and indecent dealing with an intellectually impaired person. The verdicts on counts 2, 3 and 4 were lesser and alternate verdicts. The indictment alleged three counts of rape, one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person.

6 The complainant was 18 years old at the time of the events with which the Court is concerned. She is intellectually impaired. There was little or no contest about that at trial. Issue was joined, however, on the degree of impairment, and the extent to which impairment was apparent in her appearance, demeanour, speech and conduct generally.

7 The appellant was 39 years old. He met the complainant at a park where they exercised their dogs. After they introduced themselves, the appellant asked the complainant how old she was. She told him that she was 18. The appellant described her as being of Asian appearance, and speaking with an ‘Asian-type accent’, with a lisp. She seemed ‘fine’, he was later to say in evidence, ‘in regards to her mental health’.

8 They met again at the park about two weeks later. The complainant told the appellant that her mother had been born in Malaysia and that her father was from England. The complainant neither said nor implied that she was in any way intellectually impaired. Nor did she mention that she had undertaken a special education course, or that she was unable to live unsupported.

9 It was common ground that, on their second meeting at the park, when they were seated on a bench, the appellant touched the complainant's legs, put his hand in her shorts and his finger in her vagina. She agreed that she did not say ‘no’. That was the subject of count one. The complainant accepted in cross-examination that when the appellant asked her in the park, ‘Do you want to fool

around a little?’, she said ‘Yes’, but that she did not know what that meant. In a videotaped record of interview, the complainant was asked ‘What if somebody came along?’ She responded that that was what the appellant was checking for, adding:

‘… I asked him at first like what he was doing and I kind of … I refused to let him do it. He goes, “Why?” and I didn't answer him at first because I don't know why [indistinct]. I just didn't answer him because I [indistinct] know him. I don't know why [indistinct], yeah.’

10 The complainant was asked where her hands were when the appellant was touching her and she said they were by her side. She confirmed during cross-examination that she did not tell the appellant to stop or take his hands away. But when it was put to her that she responded or acted, as the appellant was touching her, as though she liked what the appellant was doing, she said ‘No’.

11 As to the circumstances surrounding this, the first charge, of digital rape, there was a dispute as to the implied invitation said to have been offered by the complainant to the appellant. Williams JA in the Court of Appeal took the view that the appellant's evidence departed from the matters put in cross-examination of the complainant. His Honour said 2:

‘Counsel for the appellant in addressing this Court placed great emphasis on a passage in the cross-examination of the complainant as to her conduct immediately after the appellant touched her on the vagina with his finger; the critical questions and answers are as follows:

“And when he did that, put his fingers down your trousers to touch your vagina, you turned to face him, didn't you? — Yes.

And you did that to allow him to touch your vagina more easily. Do you understand? You were doing that to enable him to touch you on the vagina. You tell me if you don't understand? — I understand.

What I am suggesting is you turned your legs towards him and opened them slightly so it would make it easier for him to get his fingers to your vagina. That's what happened? — Yes.”

That passage in the evidence was emphasised by defence counsel in his address, and was also referred to in the summing up. It clearly was of critical importance to the jury's deliberations. It is significant that at that

point in cross-examination counsel was apparently putting to the complainant the defence case; after the appellant touched her vagina she parted her legs to give him easier access. Though the complainant said that she understood what was being put to her, it was still a question for the jury as to the reliability of her responses to what was being put to her, and what weight, if any, should be attached to the adoption of what was put to her when considered in the light of all the evidence given at trial.

That passage in the evidence of the complainant was the focus of attention during addresses and summing up also because in his evidence the appellant told a different story. His evidence was not that after he initially touched the complainant's vagina she opened her legs to make access easier, a scenario which might suggest cognitive consent on her part. Rather his evidence was to the following effect. Whilst they were sitting on the park bench and he was rubbing her legs, she “swung her legs towards” the appellant, and when she did so “I seen her pussy”....