Agnew v The Queen

[2022] HCATrans 138

[2022] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B78 of 2021

B e t w e e n -

PETER JAMES AGNEW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 AUGUST 2022, AT 11.30 AM

Copyright in the High Court of Australia

KEANE J:   As the Court is sitting remotely, I will announce the appearances for the parties.

MR S.C. HOLT, QC appears with MS Z.G. BRERETON for the applicant.  (instructed by Phillips Crawford Lawyers)

MR T.A. FULLER, QC appears with MR S.J. BAIN for the respondent.  (instructed by the Office of the Director of Public Prosecutions (QLD))

KEANE J:   Yes, Mr Holt.

MR HOLT:   Yes, may it please the Court.  We require an extension of time.  I am authorised by Mr Fuller to say that that is now not opposed, if the Court pleased.

KEANE J:   Thanks.  You have your extension.

MR HOLT:   May it please the Court.  This application deals with the unreasonable verdict ground that was taken below.  Could I ask the Court immediately to go to application book 49 and paragraph [54] of Justice Flanagan’s reasons writing for the court?  As his Honour, with respect, accurately puts it, the way in which the unreasonable verdict ground was put below was on the basis of:

a single matter which is said to render the guilty verdict unreasonable.

That matter was the profound unreliability said to exist by virtue of the fact that the complainant purported to have a recovered memory of the rape that was the subject of that ground of appeal 35 years after it occurred, having previously repressed it.

Having acknowledged, as his Honour did, that the unreasonable verdict ground was put on the basis of a single matter, that is, almost a Monsignor Portelli‑type point – an intellectual roadblock, as we put it – to the acceptance of the complainant’s evidence beyond reasonable doubt, regrettably and, with respect, what the Court of Appeal then did was fail to grapple with that aspect of the appeal – that singular ground – at all.  That sits, in our submission, at the heart of this application, in the sense that Mr Agnew was in truth denied an appeal in the Queensland Court of Appeal on the ground of appeal as he put it below and was squarely acknowledged by the court at paragraph [54].

What the Court then does, because paragraph 54 sits under the heading “Submissions on Ground 1” – and so again, in context of summarising the submission, sets out the evidence at paragraphs 56 and 57, which I will come back to if I need to.  Then, at paragraphs 58 and 59, summarise respectively the appellant’s position and the Crown’s position on that recovered or triggered memory point which was at the heart of the appeal.  The difficulty then occurs, in our submission, because from paragraphs 60 and following through to paragraph 67 is the entirety of what is helpfully titled “Consideration of Ground 1”.  That is where, in our submission, the Court was obliged in dealing with the ground that had been placed before it, which put repressed memory singularly at its heart to deal squarely with that question, and the Court of Appeal did not.

KEANE J:   Mr Holt, is your argument that the judges of the Court of Appeal should have said, this is a thing called repressed memory and we regard that as being necessarily – and in all cases – something about which we have to have a level of scepticism, and a level of scepticism that means whatever the other evidence in the case might be, the complainant’s evidence cannot be accepted beyond reasonable doubt.  Is that what your case is?

MR HOLT:   No, I do not make that submission because, of course, a repressed memory – one that arose from that gives rise, in our respectful submission, to – depending, of course, on the circumstances and the way the evidence came out – that is the first qualification – but, in the circumstances of this case, gave rise to a genuine and profound concern about reliability.  So what the Court of Appeal was obliged to do, in accordance with M v The Queen, was to analyse the record, including the other evidence, to determine whether it was nonetheless open for the trial judge – sitting alone as she was here – to convict Mr Agnew.  Our submission is that that was not the case.

There was preceding problem to that in the way in which the Court of Appeal conducted its analysis, which is that it did not acknowledge at all, or grapple with, what was said by the appellant to be the foundational reliability problem against which the other evidence then needed to be weighed.  So the exercise that it undertook was not the exercise that the ground of appeal required ‑ ‑ ‑

EDELMAN J:   Mr Holt, is that right?  Is that right?  Paragraph . . . . . I think as you rightly say, set out what the central issue was on that ground.  Why cannot paragraphs [60] to [67] be read as responding to those issues?  In other words, as saying, despite the passage of time and any concerns about a recovered or triggered memory – which, it may be said, the evidence is somewhat unclear – all of the other facts were sufficient, in Justice Flanagan’s words:

When the complainant’s evidence is considered as a whole, it was open to the learned trial judge to be satisfied beyond reasonable doubt as to its truth and accuracy.

MR HOLT:   I do not want to, of course, fall into the trap of suggesting that judicial reasons should be read anything other than generously but, in our respectful submission, that would be an overly generous reading of those reasons.

EDELMAN J:   Mr Holt, one otherwise reads the reasons as saying this is the major issue and then ignoring it.

MR HOLT:   I make the submission with some level of regret, but that is precisely as they read, and our submission is there is actually no other way of reading them.  Paragraph [67] is no more than a conclusion premised on the ratio of M v The Queen, so it contains necessarily no analysis in that sense.  Paragraph [62] – I think it was [62], I am sorry, your Honour Justice Edelman cut out momentarily, but I think it was [62] that your Honour noted – is no more than a reference to a body of evidence which, in that context, again came only from the complainant and so was not external corroboration of anything that the complainant . . . . . not deal with.

The question of unreliability arising from – and I will come to the evidence in a moment – a 35‑year delay with what is properly, in our submission, on the evidence, described as a recovered or an unburied memory that happens all of a sudden.  So [67] says nothing about that analysis.  So, in our submission, while it would be a rare case in which to say it appears from the reasons that the Court of Appeal having identified the basis upon which an unreasonable verdict ground was put, it nonetheless failed to deal with it.  When there is nothing in the consideration portion of the judgment to indicate that it has grappled with that question at all then, in our respectful submission, it is that rare case; it is the only conclusion that could properly be drawn.

EDELMAN J:   Mr Holt, could you have any complaint if an additional sentence existed before the start of paragraph [60] which said something to the effect of:  in light of the concerns – or the ground – set out in all of the preceding paragraphs, it is – and accepting the difficulties with reliability and memory after a period of 35 years – it is necessary for the complainant’s evidence to be considered as a whole.

MR HOLT:   No, I could not – that would recognise that what the Court of Appeal was then doing – had that been in the reasons – was at least recognising the existence of what was put on the ground as being the problem and identifying the things that went after it.  Two problems with that, in our submission.  The first is the trite one, which is that that is not what the Court of Appeal did.  The second is that had it done so, then, of course, we would then be in the situation of attempting to identify whether or not that analysis was sufficient to overcome the unreliability issues.  The things would actually be analysed together; they would have been put together, and the difficulty is ‑ ‑ ‑

EDELMAN J:   Why do you say that was not what the Court of Appeal did in light of the fact that immediately following a very careful setting out of exactly what the complaint was and what the ground is, the opening sentence of paragraph 60 is:

When the complainant’s evidence is considered as a whole –

MR HOLT:   All that I can say, Justice Edelman, is that . . . is putting far too much work – that is giving those words far too much work to do in that context.  Particularly here – and this is why we respectfully submit that this is one of those rare cases where that conclusion should properly be drawn.  Particularly where, here, Justice Flanagan had so accurately put the single matter upon which the unreasonable verdict ground was advanced in paragraph 54, and then it receives not a skerrick of attention in circumstances where other matters, such as self‑corroboration – if I can put it that way – receive two or three paragraphs of reasoning within a relatively short set of reasons.

The notion that this set of reasons in fact demonstrates compliance with the requirement of M v The Queen (a), and (b), compliance with the obligation to consider the ground of appeal as it was actually put, so that Mr Agnew receives an appeal on his ground of appeal, in our submission, cannot be made out by these ‑ ‑ ‑

EDELMAN J:   So this ground is really one that is concerned with an alleged inadequacy of reasons rather than any intricacy of suppressed memories or repressed memories?

MR HOLT:   No, there are two aspects to it, your Honour, and I have obviously started with this one without coming to the second.  There are two aspects of it, in our submission.  The first is that it is not a question of inadequacy of reasons.   I would bluntly struggle to convince this Court to take this case on on that basis.  The inadequacy of reasons is such as to lead to the conclusion that there has been a genuine prospect of a substantial procedural irregularity or injustice in the sense that Mr Agnew’s actual ground of appeal as put on a singular basis was not considered.

I do not suggest if the Court simply considered this to be some arguable point about adequacy of reasons or not, that that would warrant a grant of special leave on that basis.  I would be misleading the Court to make that submission – I do not.  You would need to rise to that earlier level because that is what gives it a profound procedural unfairness flavour, in our submission, if an intermediate appellant court has in fact, on the face of the reasons, apparently not grappled with the critical point of the appeal.

The second aspect, of course, is the – and I have put them both together in combination – significant importance of the issue of repressed or recovered memory, in that sense, because the evidence in this case, in our respectful submission, was – of course, there can be some arguments about precisely what the complainant was saying, but the essence of it, in our respectful submission, is clear, which is that what happened to her, 35 years later, on the day that she expressed what she said had occurred to Mr Flint – her then partner – was one of revelation.  That stems from the words, in large measure:

“Oh my God, my boss raped me” –

In other words, there was not any suggestion that this was where she was saying, oh my God, it is time for me to tell you that my boss raped me.  It appears to be a genuine revelation in that sense.

KEANE J:   So the effect of that, Mr Holt, is that there is a basis for inviting the tribunal of fact to be sceptical about what is then said.  What there is not is some evidentiary basis for some consideration of questions of psychology or expert evidence.  There is nothing like that.  It is just there is a reason to be sceptical and, as there are in many of the historic sex cases, that there has to be some scepticism about the late complaints, and then the judge has to deal with that – if the judge is the tribunal of fact – has to deal with the issues that might be said to call into question the reliability of the evidence.  That is what happened in this case.

This is not a case where you can say to us, this is a case about repressed memory and the best scientific evidence suggests that there are these particular problems with it and there are these particular problems with assessing the reliability of a complainant and, in relation to those, this complainant did not pass the relevant tests.  Using the language of repressed memory and triggered memory and all that sort of stuff, it just does not have meaning beyond the circumstances that this is a very late complaint with a particular explanation for why it is late, and it is up to the tribunal of fact to decide, having regard to all the evidence, as to whether the complainant’s evidence is nevertheless reliable.

MR HOLT:   Thank you, your Honour.  Can I deal with that question of the evidential basis of what we have described in shorthand as repressed memory in this way?  In our submission, the way in which the evidence emerged here and the circumstances or the factual conclusion effectively which resulted from it in terms of the way in which this memory had been apparently recovered, in our submission, was one which gave rise not just to a consideration . . . . . but in fact to a profound concern about the reliability of the complainant and the capacity of her evidence to be accepted beyond reasonable doubt.  I acknowledge, of course, as your Honour Justice Keane notes, that there was no evidence called at trial to that effect. 

Nonetheless, where we are at in terms of the evidence is this:  the idea of an adult person forgetting for decades – that is, in fact not consciously remembering at all – a singular rape in a professional context as a 19 or 20‑year‑old – so we are not talking about a child and the well‑known difficulties in that regard, or multiple situations of abuse where memories of certain events might be blurred, but a singular occasion of rape – obviously there was an indecent dealing, but of the singular occasion of rape of a 19 or 20‑year‑old – decades later emerging in this, “Oh my God, my boss raped me,” and acknowledging that those memories had just come flooding back, having not previously been present, is an extraordinary circumstance, in our submission, and one which gives rise to a genuine issue of whether or not the complainant could be accepted beyond reasonable doubt.

KEANE J:   What you say no doubt justifies the view that her evidence and all the other evidence in the case should be scrutinised very carefully by the tribunal of fact.

MR HOLT:   Yes.  Of course, your Honour draws unsurprisingly on the language of Longman and that was what the Court of Appeal was obliged to do here.  It was obliged to scrutinise her evidence with great care, not just because of the 35‑year delay to complaint and the 40‑year delay to trial, but because of a particular additional circumstance, of what we say properly is a recovered sudden memory of someone of an event that occurred when they were an adult then, be it a young one.

EDELMAN J:   Mr Holt, you open your written submissions in the statement of the special leave question by referring to the existence and veracity of repressed memories being one that is profoundly doubted in the scientific community.  That may indeed be so, but we have no expert evidence at all in this case from which to examine those type of propositions.  How could this case be an appropriate vehicle to examine those type of issues?

MR HOLT:   Your Honour, the literature that was referred to in our application and our learned friend’s response was also referred to before the Court of Appeal and did not get referred to at all.  I say that not in order to avoid the problem that your Honour Justice Edelman has identified, but

because I cannot pretend that there is an evidential basis in the formal sense.  It is true, even when one looks at passages from Longman itself and from Alexander v The Queen, in particular in relation to identification evidence, that this Court has, on not irregular occasions, taken account of academic literature in this respect.  Justice Edelman, I cannot put it higher than that in the context of this argument. 

Your Honours, I think I would be repeating myself if I said anything further.  Those are our submissions, unless I can assist.

KEANE J:   Thanks, Mr Holt.  Yes, Mr Fuller.

MR FULLER:   Thank you, your Honours.

Your Honour, the starting point from the respondent’s position is that there is no evidential basis to support the contention that the complainant had a repressed or recovered memory.  Your Honours have the advantage of both the application and the response that deals with the limited evidence which was before the court with respect to it and the circumstances in which it came to pass.

The issues that your Honour Justice Keane has identified deal directly with those issues that are identified in both Longman and Thorne that my learned friend has referred to in his application with respect to the scrutiny that is required.  It is clear from the court below and, indeed, with respect to the Court of Appeal, that they were scrutinising the complainant’s evidence carefully because of the issues of delay.

The circumstances in which statements were made by the complainant are covered by Justice Flanagan in his judgment and the sequence involves the initial statement in her evidence in chief where she indicates that the first statement by her was that it “all came back”.  It is then explored in a very limited fashion in cross‑examination, where, in fact, she adopts terms put to her by counsel with respect to “triggered” and “buried”.  There was a contention with respect to her response when she is asked whether she had any of those memories before, and the answer to that question is no.  The question is put in the negative, and the question that follows is those things were buried and came back.

You will note from our response that we also refer to her explanation for her delayed complaint, and it does not speak of her not remembering or recalling the events with respect to it, but just the circumstances involved at the time.  So our response – the first hurdle to overcome is the suggestion that it is both recovered and repressed, with respect to the memory.

EDELMAN J:   Mr Fuller, I think probably the first hurdle for you to overcome is that paragraphs [54] to [59] very carefully set out the basis of ground 1.  Where is that dealt with?

MR FULLER:   Your Honour, then we get to paragraph [60] that your Honour has already made reference to.  The fact is that his Honour refers to – in the paragraphs that your Honour has just referred me to – deal with the circumstances under the consideration with respect to that, because they are reviewing the evidential basis – his Honour firstly reviews the evidential basis immediately after stating what the ground of appeal was – the evidential basis that I have just stepped your Honours through, with respect to the suggestion of repressed or recovered memory and the details with respect to it – and then moves onto the consideration at paragraph [60] saying, considering the evidence as a whole against that background which we have just identified as to the basis upon which the ground is run; as to the circumstances in which she said her memory came back to her, or the circumstances in which she made, in effect, her complaint.

In my submission, the account which is described in those particular paragraphs, the evidence referred to deals with her complaint evidence, and the circumstances of her complaint, and the exploration of her complaint, rather than any exploration of what her previous memory was with respect to these matters, and if, indeed, as my friend asserts, that there was a repression of it for some 35 years.  In fact, framing it differently, there was not a complaint for 35 years, but the evidence then goes to the issue of what her memory of it was – it is scant, in this case – and, in my submission, was not actually ‑ ‑ ‑

EDELMAN J:   Mr Fuller, there is a little bit of a curiosity in that in paragraph [60] there is an identification of:

the need to exercise extreme caution in using demeanour to address questions of the consistency, reliability or truthfulness –

but no reference to any caution in relation to all of the matters in the paragraphs that preceded it.

MR FULLER:   I accept that, your Honour.  If your Honour sees that the issue that is being dealt with in paragraph [60] is considering her evidence as a whole, and the second sentence:

While her Honour had the significant advantage of being able to assess each witness as they gave their evidence, her Honour identified the need to exercise extreme caution in using demeanour to address questions of the consistency –

So they are highlighting the issues that were identified in Pell with respect to the difficulties that appellate courts have with respect to grappling with issues of credibility when the finder of fact has the advantage of seeing the witness.  In my submission, that is just his Honour being cautious and identifying or flagging that issue against the background of dealing with the evidence as a whole.

The paragraphs that then follow deal with a number of matters which were seen to be supportive of the complainant’s evidence.  So when scrutinising, one of the significant issues is the other evidence which is supportive that the court can take into account, and particularly any objective features with respect to that.  There were a number of those that were identified by the trial judge in her decision and then a number of them commented upon with respect to this ground.  They included, your Honours, the issue around the acceptance of the pornography, attendance at the complainant’s home at some stage, the previous incident which was the subject of the first count upon the indictment where there was some corroborative evidence from another person who was present with respect to that and, indeed, around the issues around her resignation.

Your Honours, the delay was a substantial issue at both trial and clearly before the Court of Appeal – and the issues that attenuated with respect to that, as enunciated in decisions such as Longman and Thorne – but in this case the evidence of the complainant is not attenuated with any of those other factors which are readily identifiable with respect to issues of fragmented memories, or flashback memories, or circumstances when people have engaged in some sort of therapy which has assisted in the recollection or the recall of it.

In particular . . . . . around that point – and as already indicated, it does not appear to have been litigated at trial.  Your Honours would note that there were observations by the trial judge with respect to submissions made about the complainant’s credibility.  Most of the cross‑examination with respect to that felt her equal of more recent events than the actual events themselves.

The analysis by his Honour Justice Flanagan of the trial judge’s position, your Honours will see that starting at paragraph [20] of the judgment.  I am sorry, your Honours, paragraph [20] is dealing with the complaint.  Prior to that, after the statement of the legal principles, there is a review from paragraph [8] of all of the evidence that was obtained in the trial.  The approach of the trial judge at paragraph [44] – my apologies – with respect to that.  In particular, in paragraph [44] there is a review of the approach of the trial judge, in particular noting:

Her Honour was cognisant of the consequences of the 40‑year delay between the alleged offending and the trial –

And listed a number of matters that needed to be taken into account.  Then your Honours will see at the last line on that paragraph there is the observation her Honour makes that is then repeated in paragraph [60] by Justice Flanagan of the caution required when dealing with issues of demeanour.

The specific observations that I referred to earlier your Honours will find at paragraph [47], of the discrepancies identified within the complainant’s and appellant’s description of the lab room, the inconsistencies’ contrast with the evidence of Ms Tonks, and the inconsistency between Senior Constable Shaw’s written notes and some statements made by the complainant.  Then a review of her Honour’s findings at paragraphs [50] and [51] with respect to the strength of the corroborative evidence from Ms Tonks and the basis with respect to the rape count with respect to the issues showing sexual interest and the evidence that is referred to with respect to that, that his Honour canvasses in the consideration of ground 1.

Your Honour Justice Edelman has already identified that it was clearly before the court as to what the issue was to be addressed, and the argument with respect to the nature of her evidence and the Crown’s submission below is the one that I make now with respect to the whole of the evidence needed to be reviewed with respect to scrutinising her evidence carefully because of the delay that is readily identified as being an issue for a tribunal of fact to consider.  That is in fact what paragraph [60] shows that the court joined in with respect to the review of the matter.

Your Honours, the conclusion then is found at [67] that your Honour Justice Edelman has already made mention of – that is, a regard of the whole of the evidence, which obviously includes that of the complainant and the circumstances of the delay and the complaint; therefore, the court considered the ground of appeal and took it into account in making the findings that it did.

EDELMAN J:   Mr Fuller, there was evidence – I think it may have been in a victim impact statement – of the complainant referring to her atypical but exceptional memory.  Was that evidence that was given during – was there any evidence of that given during the trial?

MR FULLER:   No, it was not, your Honour.  Your Honour would note that from the court below there was in fact a ground of appeal with respect to the victim impact statement ‑ ‑ ‑

EDELMAN J:   Yes.

MR FULLER:   ‑ ‑ ‑ and an opportunity to cross‑examine with respect to it.  So I do not believe any of that information was before the court.

So our primary submission is where I commenced, that there was no evidential basis for it.  Secondly, that the court scrutinised the evidence carefully, took all of it into account with respect to making the determination and applied the correct test with respect to it.  Finally, with respect to Justice Keane’s remark that this is not a suitable vehicle for the ventilation of arguments around repressed memory or recovered memory or the further directions that may need to be required with respect to it – and, with respect, the passage that my learned friend refers to from Justice McHugh in Longman – they are clearly matters that are identifiable by judicial officers and directions given, but it certainly was not one of those cases where medical evidence may have been led.  Well, there was no medical evidence led to suggest that there was no case to go to the jury because of the unreliability of the evidence relied upon by the Crown.  Unless I can assist your Honours any further.

KEANE J:   Thank you, Mr Fuller.

MR FULLER:   Thank you, your Honours.

KEANE J:   Mr Holt, anything in reply?

MR HOLT:   Just very briefly, if I may.  Justice Edelman, that victim impact statement issue was not known to the defence at trial and was the subject of a separate ground of appeal in respect of which special leave is not taken.  There was no equivalent evidence of that kind before the jury, and so that can be put to one side.

Can I just deal with two submissions our friend made?  The first is in terms of the actual conclusion as to whether the evidence amounted to whatever label one calls it – a “repressed memory” or otherwise – his Honour Justice Flanagan, in paragraph 20, at the top of application book 42, when his Honour had summarised the evidence that our friend has taken the court to; then said:

That is,

That is by reference to the evidence:

the comments to the article triggered memories that she had not experienced before and which she had “buried”.

In our submission, that was an accurate conclusion which gives rise to the foundation for the submission that we now make.

The only other matter I wish to address is this:  our learned friend referred to a number of aspects of the reasons where Justice Flanagan referred back to the reasoning of the trial judge – and of course this Court in Dansie has confirmed that the obligation on an intermediate appellate court is the same in a judge‑alone trial as it is in a jury trial.

Pointing to the reasons is not an independent intellectual exercise, and the difficulty is, of course, that the reasons below, while they dealt with the delay question in a Longman sense, they did not deal with any question of the sudden recovery of memory issue.  Our respectful submission, ultimately, is that whatever else the reasons can be described as, they cannot be described as the intermediate appellate court exercising its M v The Queen obligation to scrutinise the evidence with great care in light of the way in which the ground was put.  May it please the Court.

KEANE J:   Thank you, Mr Holt.  The Court will retire for a moment to consider the course it will take in this matter.  Adjourn the Court, please.

AT 12.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.06 PM:

KEANE J:   This application is an inappropriate vehicle for the resolution of the issue as to recovered or repressed memory, which the applicant seeks to agitate on appeal.  The interests of justice do not otherwise warrant the grant of special leave to appeal.  The application is dismissed.

Adjourn the Court now, please, until 12.30.

AT 12.06 PM THE MATTER WAS CONCLUDED