Arthur v The Queen

[1992] HCATrans 253

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IN THE HIQ_H COURT OF AUSTRALIA

Office of the Registry

Adelaide No A4 of 1992

B e t w e e n -

ROBERT JOHN ARTHUR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Arthur 1 1/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 1 SEPTEMBER 1992, AT 2.16 PM

Copyright in the High Court of Australia

MISS M.E. SHAW:  May it please the Court, I appear with my

learned friend, MR B.F. STOKES, for the

applicant. (instructed by D.F. Stokes & Associates)

MISS A.M. VANSTONE: If the Court pleases, I appear for the

- respondent. (instructed by P.J.L. Rafe, QC,

Director of Public Prosecutions)

MISS SHAW:	An outline of argument was filed in this matter but does not appear in the appeal book, so copies
have been provided this morning into which there has been included at the beginning a special leave
question which was not included in the original
outline. In addition, books of authorities have
been lodged with the crier. The special leave question in this case, it is submitted, is - the question justifying the ground of leave in this case, it is submitted, is whether the trial judge's
role extends to taking on the prosecutor's function
of conducting the examination of a witness on the
very events upon which the jury must deliberate.
The outline sets out the factual background to the matters that are the subject of this
application; I do not propose to go through them. However, if I can take the Court to the specific
evidence which was the subject of the trial judge's intervention and is contained in the appeal book
commencing at about page 6, the prosecutor was
asking the witness, a 10-year-old girl, about the events that occurred at a house in which the
applicant resided.  He had taken the witness to the
stage where the witness, Bergeman, and two other
girls had gone into the bedroom. At page 6 line 4,
the prosecutor asked the witness:

Would you tell us what Mr Arthur said when you

three girls and him went into the bedroom.

Just tell us what he said.

The witness replied at line 7: 

I don't remember.

And the prosecutor persisted with a number of questions attempting to elicit an answer on that

topic, and at the bottom of that page, he says:

I will just ask you again. Whatever it was

that Mr Arthur said something about to you

girls when you went into the bedroom, is that

something you can't remember, or something you

are not too keen to talk about.

The response was:

Arthur MISS SHAW 1/9/92

Something I can't remember.

He then continued on to attempt to ask the witness as to what Mr Arthur did - that is at line 26:

~.	At that time what did Mr Arthur do?
A.	I have forgotten.
Q.	Did you do anything?

His Honour then intervened and commenced asking

questions, first of all at line 34, by directing

the witness specifically to:

Did anything happen about your clothes.

And the witness thereafter gave evidence of the applicant pulling down the knickers of herself and

of the girl Michelle; that appears at line 10. He

them proceeded to ask what happened after the

knickers came down. At line 20, the witness said:

He just touched us.

And then His Honour went on to say:

Where did he touch you.	Who did he touch
first?

A.	I think it was Michelle.
Q.	Did you see him touch Michelle?

The examination continued as to where that touching

occurred and that it was with a finger, where the

others were at the time. His Honour, on page 9,

obtained further details as to the location of the

touching and in particular that it was on the

vagina. And at line 20, having elicited the

evidence in relation to the child, Michelle, he

then asked this witness: 

Did he touch anyone else.

A.	Yes.
Q.	Who did he touch, apart from Michelle.
A.	Me.

The prosecutor then continued the examination asking questions on the topic of the touching and

in particular at page 10 line 5, as to:

Who touched Mr Arthur?

Arthur 3 MISS SHAW 1/9/92

The witness said:

All of us.

And then at line 12 when the witness was asked:

Just tell us how you touched him in between

the legs, if you could.

And the witness then said:

I do not want to.

His Honour intervened. There were further

questions by the prosecutor again about the

touching of Mr Arthur, which continued on to

page 11. And at page 11 line 22, His Honour then

asked questions relating to the details of what the

witness touched with Mr Arthur with. His Honour's

examination of the witness concluded at page 12

line 7, with the witness becoming distressed and

the court requiring an interruption or a break.

His Honour intervened during the course of the

cross-examination on one relevant occasion, which

appears at page 30 of the appeal book, when counsel

for the applicant asked the question at line 16:

The things that you said Mr Arthur did to you, the touching. Did that really happen?

A. Well, it really did but it sort of didn't.

His Honour then intervened and asked:

What do you mean by the answer, Elissa?

And the answer, as corrected, was:

He pointed and touched us.

That intervention occurred, of course, at a time

when the witness's answer was certainly ambiguous,

but it is submitted it highlights his close

association with the evidence which he had led.

The Full Court, in approving the interventions

of the trial judge and the role that he took, used

language which was consistent with the accepted

role of a trial judge, namely to clarify ambiguity

and otherwise provide assistance to the witness.

However, it is the applicant's submission that the judgment effectively extends the trial judge's role

beyond what has previously been acceptable.	In
particular it is submitted that the judgment
extends the trial judge's role to embrace a

situation where there is potential for a witness

Arthur 4 MISS SHAW 1/9/92

not to come up to proof and the trial judge is able

to intervene and to, in effect, elicit the evidence

that makes out the prosecution's case on a

particular count.

_ The judgment of His Honour the Chief Justice

is the leading judgment in the matter with which

the other two judges concurred. On this topic it

commences at page 84 of the appeal book.

His Honour sets out the relevant history of the evidence and then refers to authorities in the area

of the trial judge's role. On page 86, in the

first sentence, His Honour the Chief Justice says

this:

Although the regular course of trial involves that the questioning of witnesses by counsel

be the norm, the judge undoubtedly has a role

to play in ensuring that the true story

emerges.

It is submitted that this is not a case where the

intervention was for the purposes of resolving an

ambiguity, or ensuring that the true meaning

emerged; rather it is a case where the prosecution

was at risk of not having a story at all from the

witnesses, and the trial judge's intervention

allows an account to emerge. To refer to the role

of the trial judge as being to ensure that the true

story emerges, it is my submission that that must

involve, to some extent, a prejudgment of the verdict, because if the true story, or indeed truth, refers to what the jury will decide to be

the truth, then that cannot justify an involvement

for that purpose. And if it means that true story
is what the prosecution will say is the truth, then

the judgment authorizes intervention by a trial

judge whenever Crown - - -

DAWSON J: But what is said there is that he has a role to

play in ensuring that the true story emerges, which

is to give the witness an opportunity to tell the

story if she will.

MISS SHAW: Yes, Your Honour, but in this case it is not

that the opportunity was denied, it was that the

witness had said, on more than one occasion, that

she did not remember - - -

DAWSON J: Yes •

MISS SHAW:  - - - and the intervention was, in effect, a

challenge to that answer. So that, what the

intervention by the trial judge involves must

necessarily be an assessment by him that the reason

for the answer, "I can't remember", is not a

Arthur 5 MISS SHAW 1/9/92

genuine loss of recall, but that the event actually

happened, and the witness_is too embarrassed - - -

DAWSON J: Well, it may be that it is evident, and we do not

know, that the witness was under some discomfort

_and the judge conceived that if he asked a question

or two, she would be relieved of that discomfort.

MISS SHAW: Well, if His Honour had asked questions, even in

the absence of the jury, investigating further

whether this was a genuine loss of memory or
whether it was due to embarrassment, that no doubt

would be an acceptable procedure, but what he has

done here, in our submission, is to leap straight

into her evidence directly and in a case where you

have a child witness in particular, it is not the

fact that he is eliciting a particular answer, it

is that he is requiring the witness to answer. And

it is no answer to say that the child came to court expecting to tell a story, because that necessarily

assumes the story that His Honour thinks the child

will tell or wants to tell. So that, it is our

submission -

DEANE J: But that is not really so is it; I mean, it is a

very special situation. If it had not been a

child, it would be obvious that it would be case

where no doubt a statement would be produced and

there would be talk of hostile witnesses or what

have you, but here you have a child who obviously
has provided information to the prosecution who is

drying up. It may be that, as the Court of

Criminal Appeal pointed out, the learned trial

judge should have stopped before he did, but can

there really be any criticism of his intervention

at the stage he intervened?

MISS SHAW~ Well, Your Honour, if one of the alternative

procedures had been adopted, the same evidence may

have been elicited, but because it is adduced by

upon the footing that it is evidence adduced by the	the trial judge it then is presented to the jury
trial judge and indeed, by way of comparison, in
England when it was attempted to legislate to
introduce examination of children by examiners or
court appointed judges, the result of the debate
was that this would undermine the defendant's
rights to an adversarial cross-examination. So
that once the evidence is adduced by the trial
judge, it must impede the defence in cross-examining that evidence when it appears to
have had some association with the trial judge, who
is, in our system, supposedly, the great neutral.
And indeed, the judgment goes further and suggests
that not only is it the judge's proper role to do
this in a like situation, but that questions from
the trial judge are likely to, in once sense,

Arthur 6 MISS SHAW 1/9/92

provide reassurance which questions from counsel

might not.

In other words, if the Court looks at the

bottom of page 86, what His Honour says at line 27

_Jn the justification for the nature of this

intervention extent is this:

Questions from counsel standing at the bar
table may intensify that shyness and reticence

and produce a reluctance to tell the story.

Questions from the presiding judge may provide

the reassurance which was necessary for the

truth to emerge.

And again, in my submission, that approach is

contrary to our adversary system, and in particular
in that it is, in effect, inviting judges to

believe that they, to some extent, have the skills

of reassuring witnesses that perhaps counsel do

not, and in my submission it overlooks what is

recognized in much of the literature in relation to

child witnesses as being a very real danger in the

area of the evidence of children and that is that they are influenced by authority, and a person in

authority, and are influenced to the extent that

they feel obliged to give an answer and in

addition, they feel obliged to please the person in authority who is questioning them. And that is the

very foundation, or part of the foundation in any

event, for the existence of a warning as to the

evidence of children and the need for

corroboration.

Again, the justification for that role of the

trial judge is said to be that he might provide the

reassurance which is necessary for the truth to

emerge and, in my submission, that must depend on

an assumption about the explanation for the

embarrassment, or the explanation for the shyness

because, on that principle, if a child came to	court wanting to renege because it was a false
story, then the application of this type of principle would preclude that possibility of ever
occurring.
The area of evidence from child witnesses has been, as I have said, the subject of much
discussion and a list of articles were provided in
the supplementary list of authorities provided by
the applicant and when various reforms have been proposed as to how evidence should be elicited from
children, suggestions of screens, pre-trial
conferences, independent examiners, video-taped interviews, but in all of those proposed reforms, it is never suggested that there should be an increasing role of the trial judge, and it is

Arthur MISS SHAW 1/9/92

submitted that the reason why that is not an answer

to the difficulties that might confront a child witness in a sexual case, is precisely that his

position of authority might elicit answers first of

all that are purely a response to required
-~uestions, but more importantly take the judge out

of his neutral role in the proceedings.

The objection by counsel raised to

His Honour's conduct, at page 13 of the appeal book

and in particular at line 11, was along the lines
of that:

if Your Honour takes on that role, puts

Your Honour in the role of what the prosecutor

would ordinarily do. In my submission, that

conveys messages which are not desirable to

the jury.

And he goes on to talk about the:

difficult atmosphere within which the accused

can defend himself, including later my

cross-examination.

It is submitted that this approach of the

Full Court, and in particular the approach that the

judge might be better equipped than counsel in some

circumstances to question a witness, is at odds

with the traditional approach to the adversarial

system and I refer to Jones v National Coal Board (1957) 2 QB 55 and in particular at page 9 of the

case book, page 64 of the judgment, where

His Honour Lord Justice Denning referred to the comparative role of judges and advocates at about

point 3:

So also it is for the advocates, each in his turn, to examine the witnesses, and not for

the judge to take it on himself lest by so

doing he appear to favour one side or the

other.

And he refers to the remarks of Lord Justice

Birkett in Harris v Harris especially. Those remarks are set out in the judgment of Reg v

Pavlukoff (1953) 106 CCC 249, at page 39 of the

appeal book, and in particular at page 47 of the

case book, the remarks of Lord Justice Birkett are

these:

"The task of eliciting the truth, His Lordship

continued, was assigned to counsel by the

method of examination in chief, and perhaps

particularly by cross-examination. In
performing this task counsel might be gentle

or stern, hostile or friendly, as the occasion

Arthur MISS SHAW 1/9/92

and the circumstances warranted. But the

judge best served the administration of

justice by preserving the judicial calm and

the judicial demeanor, aloof and detached from

the arena of contention."

-As far back as, historically, up until 1649,

Kenny is able to point to cases where questions of witnesses where put through the judge, but by 1844,

His Honour Justice Cresswell in Hezell's case,

(1844) 1 Cox CC 348 said when he was required to

lead a witness-in-chief, that he regarded it as:

improper.

In this country in Whitehorn v Queen, (1983)

152 CLR 657, and in particular at page 33 of the

case book, His Honour Justice Dawson, when dealing
with the role of a trial judge in relation to the
calling of a witness, dealt generally with the

adversary system and said, just over half-way down

the page:

A trial does not involve the pursuit of

truth by any means. The adversary system is

the means adopted and the judge's role in that

system is to hold the balance between the

contending parties without himself taking part

in their disputations. It is not an

inquisitorial role in which he seeks himself

to remedy the deficiencies in the case on

either side. When a party's case is

deficient, the ordinary consequence is that it

does not succeed.

In addition, His Honour goes on to say that:

It is no part of the function of the trial

judge to prevent -

in that case, the prosecution not succeeding

by donning the mantle of prosecution or
defence counsel.	He is not equipped to do so.

In my submission, the justification of the

Full Court, at page 87 of the appeal book, that the

questions were designed solely to give a fair

opportunity to express to the court the witness's

story, and that the questions were meticulously

framed, is no answer to the criticism that

necessarily arises from evidence being elicited

that might not otherwise have been given by the

witness.

As I have said, the criticism is that the

witness is required to answer and it is accepted

Arthur 9 MISS SHAW 1/9/92

that children are likely to comply with a direction

of that nature and indeed gives rise to an issue as

to the reliability of that evidence when it is

given in response to questions by a person in

authority. It is submitted that this does give

xise to a special leave point because of
controversy as to the place of children's evidence

in the adversarial system, in particular in sexual

abuse cases. It is submitted that it is a matter

of public importance to all courts in this country

as to whether or not there is an exception in
relation to the evidence of children that the judge

is entitled to lead the witness through her

evidence if she does not come up to proof and, if

it is an exception, then it is important that the

limits of that exception are known.

In terms of the perception by the jury of the

trial judge's conduct, I make one reference to

authority and that is again in the case of

Pavlukoff, in particular at page 57 of the case

book, where the judgment in the Court of Appeal was

that:

The Judge in Court officially and

physically occupies a position of great power

and prestige. His power and his control of

the trial plain to see in Court, are matched

by his knowledge of the law and his experience

in weighing and analyzing evidence. His

lightest word or mannerism touching the

reliability of a witness and the guilt of the accused, cannot fail to bear heavily upon the

members of the jury who naturally look up to
him (and in more ways than one) as the

embodiment of the great traditions of the law. To the jury the presiding Judge appears as the

great neutral. Anything that emanates from

him, carries for them at least all the

ear-marks of balanced justice.

So it is submitted that if there is an intervention

and an eliciting of evidence, to this extent, then

it may pote~tially effect the jury's consideration

of the witness's evidence. It is also submitted

that it is no~ only a question of whether the trial

judge's interference may have led to an injustice

because of its potential effect on the jury's

deliberation and on the defence counsel's ability

and confidence in cross-examining on behalf of his

client, but also that it may lead to an injustice

in the sense that there is an appearance of

injustice, and such an appearance was referred to

in the Privy Council decision of Adan Haji Jama

v The King (1948) AC 224 and in particular at

page 21 of the case book, when Hezell's case was

referred to in argument and again the judge had

Arthur 10 MISS SHAW 1/9/92

conducted examination of witnesses in that case.

The Privy Council said, about point 8:

The accused and their friends can hardly have

felt assured that impartial justice would be

meted out to them by a judge who was acting as

prosecutor.

And it is submitted that here the nature of the

intervention, bearing in mind that the witness had

not come up to proof at that stage, is such that it

is a case where, in our submission, the role has

gone beyond what has previously been permissible in

the adversarial system. It is submitted it is a

matter of special leave as to whether or not there

should be an exception to this rule in the case of

child witnesses, or whether or not there should be

limits on it and if so, in what circumstances it

should be allowed to operate in a particular case.

Those are my submissions, .if the Court pleases.

MASON CJ: Yes, thank you, Miss Shaw. Yes, Miss Vanstone.

MISS VANSTONE:  May it please the Court, the respondent

opposes the grant of special leave to appeal. In

my submission, the question of how far a trial

judge may go in intervening in the presentation of

evidence is a question that does not admit of any

but the most general statement of principle. What

the authorities deprecate, in my submission, is

illustrated by these examples: intervention that is

extensive and continuous throughout a case;

intervention which detracts from defence counsel's

ability to put his case forcefully and

adequately; and intervention which the jury may see

as the judge throwing his weight behind - - -

MASON CJ:1 This was extensive intervention, was it not, and

did it not carry the risk perhaps that the jury

might have seen the judge as identifying himself

with the evidence?

MISS VANSTONE:  In my submission, it was extensive in the

sense of it occupying several minutes and several

pages of transcript, but it was not intervention

which was repeated in the evidence of the various

witnesses in the trial. There were, of course,

three child witnesses in the trial; two of them were complainants in the sexual charges and the complaint of the applicant only relates to the

evidence of this particular child. So, in my

submission, it cannot be seen that the judge was

throwing his weight behind the Crown case.

In my submission, the circumstances which

justify a trial judge intervening vary infinitely,

and the decision as to whether the point of

Arthur 11 MISS VANSTONE 1/9/92

unfairness has been reached has to be made in the

context of the entire trial and the number and the
length of interventions and the terms of the

intervention, and indeed their circumstances.

_ If the Court pleases, the trial judge

-explained the reason for his intervention in a

report to the Court of Criminal Appeal and that is

reproduced as an annexure to the respondent's

answering statement, which is before the Court, I

think.

DEANE J: What is the statutory basis on which this was

before the Court of Criminal Appeal?

MISS VANSTONE: For the report, Your Honour?

DEANE J: Yes.

MISS VANSTONE: Under the Criminal Consolidation Act, the

Court of Criminal Appeal can make rules and under

those rules it can call for a report from the trial

judge.

DEANE J:  I see.

MISS VANSTONE: His Honour said, if I can take the Court

briefly to - - -

DEANE J: What, the Court of Criminal Appeal asked for a

report, did they?

MISS VANSTONE: Yes, they are empowered to ask, where they

see fit, for a report from the trial judge.

DEANE J: Have we before us what the Court of Criminal

Appeal said in asking for the trial judge's report?

MISS VANSTONE:	No, Your Honour.
DEANE J: Thank you.
MISS VANSTONE:	And generally that particular request would

not even be before the Court of Criminal Appeal,

just the response, but the court in its judgment

did make reference to the trial judge's report.	If
I could just take the Court briefly to the report

itself, His Honour Justice Cox said in paragraph 2

in his letter to The Clerk of Arraigns, having commented on the demeanor of the various child

witnesses, that the child:

Ellisa Bergeman was different from them in

every respect - shy, not so attentive,
probably not especially bright, and certainly

self-conscious and embarrassed -

Arthur 12 MISS VANSTONE 1/9/92

And His Honour said:

Those last features were evident from her demeanor and her silences and certain of her

answers. I thought she needed help in

bringing out whatever it was that she had come

to Court prepared to say, whether that

happened to be truthful and reliable evidence

or not.

And His Honour took a view about the way that her evidence would most likely emerge. And I think I

mentioned that the child was, in fact, 10 years old

at the time of the trial.

In my submission, once His Honour had formed

that judgment, it was not inappropriate for him to

ask the child questions about what had happened

and, as the Court of Criminal Appeal pointed out -

Miss Shaw has already referred to this passage at

page 87 of the appeal book:

The questions were meticulously framed and

gave the witness no hint of the answer which

might be expected, still less any

encouragement to tell a false story.

In my submission, an examination of His Honour's questions bears that out, that they were not leading questions, they were open questions - - -

MASON CJ: But no complaint is made in that respect.

MISS VANSTONE:  No, Your Honour, but that is important, in

my submission, when one comes to consider whether

the jury might have apprehended that His Honour had

a particular view and that that was demonstrated by

intervention. In my submission, the jury could not

draw from the manner of question any implication

that His Honour had a view about the evidence.

And, moreover, those are not the sort of questions

which the prosecutor, Mr McEwen, would have been

prevented from asking. And furthermore, in my

submission, there is no suggestion that, in what

came out as a result of His Honour's questioning,

there was any material beyond what was contained in

the girl's statement.

His Honour also explained the reasons for his intervention to the jury and that appears in the

summing up at pages 50 to 51 of the appeal book.

His Honour explained that normally a judge would

keep out of the interrogation of witnesses.

His Honour said, at line 12:

I thought that she was showing a difficulty in

understanding some of the questions - that

Arthur 13 MISS VANSTONE 1/9/92

there was a movement from topic to topic that

she appeared to be having some trouble in
coping with - and I also thought that she was

very embarrassed by the topics that she was

being asked questions about - that she was

reluctant to describe whatever it is she had

come to court expecting to be describing that

day.

So, in my submission, it cannot be said, having

looked at the questions themselves, the evidence

elicited and the summing up, that the judge's

intervention could have prejudiced the jury's

impartial consideration of the truthfulness and

reliability of the child's evidence.

In my submission, the Court of Criminal Appeal

thoroughly examined the issue in its judgment,

starting at appeal book page 84 and going through

to page 88, and correctly identified the dangers

inherent in undue intervention by a trial judge

and, in my submission, the court correctly held

that, in the circumstances of the trial, peculiar

circumstances as they were, the judge's

intervention could not be the subject of any proper

criticism and, most importantly, could not have

deprived the applicant of a fair trial. Those are

my submissions, if the Court pleases.

MASON CJ: Thank you, Miss Vanstone. Yes, Miss Shaw.

MISS SHAW:  The relevant section of the criminal appeal

rules is section 12, Your Honour Justice Deane, and

it is not that the Full Court actually calls for

it; it is a request from the Registrar which the

trial judge may provide or alternatively, the

Full Court can request. There is no suggestion in

this case, as I understand it, that the Full Court

actually made a request - on the papers and on my knowledge of the matter - but the trial judge may

have provided the report in response to the

Registrar's inquiry.

In the matter of Miss Vanstone's submission about the significance of this witness in the case,

it is my submission to the Court that this

particular witness provided not only evidence

supporting count 3 of the three counts on the

information, but also was relied on for

corroboration of counts 1 and 2 and gave evidence

of evidence of prior sexual conduct between her and

the applicant. So her evidence was very

significant in the totality of the trial.

DEANE J: But ultimately - I mean, put to one side the proposition that a judge should not intervene

unnecessarily or over much in the conduct of a

Arthur 14 MISS SHAW 1/9/92

trial - the question in this case must be, must it

not, has the judge's intervention raised a serious

possibility either that there has been a

miscarriage of justice because of it or that the

accused was denied a fair trial because of it?

MISS SHAW: Yes, I agree with Your Honour, and in a case where the evidence for the Crown depends on the

accounts of three children in relation to the same

incident, when they know each other and admit

discussions previously about sexual matters, when

this particular witness is unsworn, but her

evidence is to be treated as sworn evidence, and

the role she had to play in the case itself,

particularly in relation to the prior sexual

conduct that she alleged with the applicant, then

her evidence was extremely significant in the way

that His Honour elicited and the impact on the

jury. The accused in this case gave evidence on

oath and called character evidence and there was no
corroboration of the account of any of the

witnesses, apart from their own corroboration of

each other in relation to the same incident. And

there were clear inconsistencies, in some respects,

between their accounts and it was undisputed that

the opportunity that the applicant had to commit

this offence was extremely limited; it was in the order of about five minutes, because the children

had been dropped off by the mother at four o'clock,

which was her evidence, and another person came

along at five or ten past four, who saw the

children playing in the yard - he was also called

by the Crown. So that overall it was a case when

the weight that the jury gave to the evidence of

any one child could be extremely significant in the

way that they approached the case.

MASON CJ: Yes, thank you, Miss Shaw. We are not persuaded

that the Court of Criminal Appeal erred in

principle in its consideration of the case. Nor

are we persuaded that, having regard to the careful

directions given by the trial judge to the jury,

his intervention deprived the applicant of a fair

trial or resulted in a miscarriage of justice. The

application is therefore refused.

AT 2.57 PM THE MATTER WAS ADJOURNED SINE DIE

Arthur 15 1/9/92