Arundell v The Queen

[2001] HCATrans 292

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M94 of 2000

B e t w e e n -

KEVIN PATRICK ARUNDELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 AUGUST 2001, AT 2.30 PM

Copyright in the High Court of Australia

GAUDRON J:   In this matter the parties rely on their written submissions.  I should recount the background to the present application.  The applicant was convicted of a number of sexual offences involving a child who, at the relevant time, lived next door.  He presently seeks an extension of time within which to bring a second application for special leave to appeal from the decision and orders of the Supreme Court of Victoria Court of Appeal which, by majority, allowed his appeal in part but confirmed his convictions for the sexual offences to which reference has just been made.

The unusual course of making a second application for special leave to appeal to this Court is sought to be justified on the basis that counsel who appeared for the applicant in relation to his first application did not follow instructions.  So, too, in support of the merits of the application it is complained of the manner in which his counsel conducted his trial. 

Essentially the question that must be asked is whether it is arguable that the convictions recorded against the applicant involved a substantial miscarriage of justice.  That is a question that necessitates consideration of the conduct of the trial if, as in the present case, it is properly to be inferred that a particular course was taken for the purpose of obtaining a forensic advantage.  In the present case the applicant received a distinct forensic advantage in that the jury was not instructed that his record of interview was capable of corroborating the evidence of the complainant, an instruction which would otherwise have properly been given had the jury been warned with respect to delay in her complaint.

In these circumstances, Justice Gummow and I are satisfied that no miscarriage of justice was involved in the applicant’s convictions beyond that identified by the Court of Appeal.  Accordingly, we would dismiss the application for extension of time within which to bring a second application for special leave to appeal.

KIRBY J:   As the dissenting judge in the Court of Appeal of Victoria (Tadgell JA) pointed out, there are matters of concern about the circumstances in which, 21 years after the first alleged offences, the complainant first made her complaints against the applicant.  There are also concerns about the contents of such complaints.  See Reg v Arundell [1998] VSCA 102. The complainant was then still suffering from the departure of her partner; the discovery of the existence of her natural mother; and the discovery that her mother was dead and had suffered from a possible hereditary mental illness. Moreover, the accusations against the applicant appear to have been elicited, in part, by deliberately tapping the complainant’s “repressed memory”.

As the majority have pointed out, there were some forensic risks to the applicant in the provision of a “Longman warning” (see Longman v The Queen (1989) 168 CLR 79). But that shorthand phrase must not obscure the several matters with which such a warning should deal in a case of very long delay in complaint, as this was. The acknowledged existence of elements of corroboration, or confirmation, involving an inappropriate infatuation on the part of the applicant towards the complainant, then a very young girl, would not necessarily have outweighed the considerations that a proper judicial warning would have covered. In this respect this application bears some similarities to Doggett v The Queen [2001] HCA 46 at [149]‑[159], although that was a case where a redirection to give a satisfactory Longman warning was not sought.

The fact that this is a second application for special leave is not necessarily fatal to its success:  Re Sinanovic’s Application (2001) 180 ALR 448, 450‑451 at [7]. The applicant is unrepresented and in custody. He alleges a serious miscarriage of justice. He complains about the adequacy and accuracy of his legal representation at his trial and in the later appellate hearings. As well, there have been a number of cases since the earlier application, including Doggett, that have clarified and strengthened the applicable law.

The special leave point that I would allow to be argued concerns a possible extension of this Court’s authority in cases such as Pollitt v The Queen (1992) 174 CLR 558: namely the duty of a judge to bring to a jury’s notice considerations that the jury may not know but which the law’s experience teaches, where experienced counsel (as it is later said unwisely) asks the judge not to refer to that matter. In my opinion this is a point deserving of clarification. Behind the advocate who conducts a criminal case is an accused. It is the accused and not the advocate who must suffer the consequences of any serious errors of forensic judgment. That is why it is arguably the duty of courts, in some circumstances at least, to reject the advocate’s request and to give a suitable warning. I would allow that point to be explored in order to decide whether this was such a case.

I would therefore grant an extension of time and special leave to appeal, but limited to that question.

GAUDRON J:   By majority, the order of the Court is the application for extension of time within which to bring the application for special leave to appeal is dismissed.

AT 2.36 PM THE MATTER WAS CONCLUDED