Allen v The Queen

[1998] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S92 of 1997

B e t w e e n -

GRAEME ALLEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 1998, AT 2.45 PM

Copyright in the High Court of Australia

MR A.M. BLACKMORE:   I appear for the respondent, your Honour.  (instructed by the Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   Perhaps this matter should be called outside three times.

COURT CRIER:  No appearance, your Honour.

McHUGH J:   That was expected.  The Court was informed that there would be no oral argument proffered in support of this application and that the Court should proceed on the papers.  That being so, the Court is now in a position to give judgment.  I give judgment on behalf of the Court.

The applicant seeks special leave to appeal against convictions for carnal knowledge and assault occasioning actual bodily harm.  He contends that he was denied a fair trial and that his conviction should be set aside.  He relies on two grounds.  First, he contends that the trial judge erred in denying his counsel access to a file and clinical notes produced to the District Court by a health centre where the complainant had received therapy in respect of the sexual conduct which was the basis of the charges.  Counsel for the applicant sought access to the documents on the ground that the complainant’s allegations might have been the product of the so‑called repressed or recovered memory syndrome.  In answer to a request by counsel to inspect the documents, the trial judge is recorded as saying that at that stage he was not inclined to make the order sought but that the application could be renewed at a later stage. 

No further application for inspection was made.  At no stage of the trial did the Crown allege that the complainant had forgotten the events and later recovered her memory of them.  Furthermore, no suggestion to that effect was put to her in cross‑examination. 

In these circumstances, there is no reason to doubt the correctness of the Court of Criminal Appeal’s decision that the applicant had failed to make out this ground of appeal.  We might add that, at the request of senior counsel for the applicant, the Court of Criminal Appeal examined the documents and concluded that there had been no injustice to the applicant arising out of what had occurred at the trial.

Second, the applicant contends that a direction concerning the irrelevance of an award of victim’s compensation to the complainant made before the trial of the applicant had commenced may have led the jury to conclude that they could not consider the making of the claim for compensation on the issue of the complainant’s credibility.  It was part of the defence case that the complainant had made the allegations against the accused in order to obtain such an award.  Before giving the direction complained of, the trial judge had directed the jury that they had to take the making of the claim into account in considering the applicant’s evidence “in scrutinising it with great care”.

However, in the absence of the jury, counsel for the accused sought a further direction.  He said:

The direction I seek is that there has been a finding in favour of the complainant (R) it should not have any effect on their deliberations in the case.  They don’t take it into account one way or the other.  The fact that she’s made the application is a different matter.

When the jury returned to court his Honour said that there was one small matter that he wanted to remind them about concerning “the victim’s compensation claim and award”.  His Honour then said,

That is really of no consequence in these proceedings and I want you to just put that right out of your minds.  The result, one way or the other, is of no consequence, so please, you should just ignore that altogether and write it out of your memory and do not consider it as part of the matters you have to consider. 

The Court of Criminal Appeal rejected the contention that this direction had the effect of withdrawing the earlier part of his summing up concerning the need to scrutinise the complainant’s evidence with great care because of making the claim for compensation.  The Court of Criminal Appeal thought that, in its context and in the absence of any complaint at the trial by counsel, the direction was understood at the trial as directed only to significance of an aware of compensation and not to the making of the claim.  That is a conclusion that was reasonably open to the Court of Criminal Appeal. 

In all the circumstances, the second contention of the applicant is not one requiring or warranting the grant of special leave to appeal.  The application for special leave to appeal against the convictions is therefore refused.

AT 2.51 PM THE MATTER WAS CONCLUDED