Arundell v The Queen

[1999] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M116 of 1998

B e t w e e n -

KEVIN PATRICK ARUNDELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 12.13 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR R.J. BOURKE for the applicant in this matter.  (instructed by Clarebrough Pica)

MR G.R. FLATMAN, QC:   May it please the Court, I appear with MS K.E. JUDD for the respondent.  (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   Yes. Mr Tehan.

MR TEHAN:   Your Honours, the special leave point in this case is whether the judicial obligation to give a Longman warning can be displaced by the wishes of an accused expressed through his or her counsel.

In our submission, the answer to that question is no.  The principle of law which is at stake in this case is fundamental to the administration of criminal justice.  If trial judges think the particular warnings be given, then they should be.  It is the considered judicial assessment of the circumstances of the case which is important.  Judges cannot be talked out of giving directions which the general law requires to be given.

GLEESON CJ:   Part of the context in which the general law operates is the adversary system.

MR TEHAN:   Yes, indeed, your Honour, and we would go so far as to say that counsel for an accused can certainly be heard on the question as to whether or not the circumstances of the case demand a Longman warning to be given.  But once the judge has decided, as he did in this case that a Longman warning should be given, then it ought be.

The submissions of counsel, as I have just said, play a part in urging whether the circumstances require a direction, but they cannot decide the question.  Yet that is exactly what happened in this case.  The error was carried through to the Court of Appeal because the majority decided that the exercise of counsel of a forensic decision to not seek a direction meant that a fair trial had been had.  That cannot, in our respectful submission, be the case.  Robust application of the criminal law does not, and ought not, in our submission, decide the question of whether directions of law be given.

We submit specifically that the majority opinion expressed at page 219 of the application book is wrong and, in particular, the judgment of Mr Justice Callaway at line 5 on page 219:

It is not as if counsel’s request to the judge not to give a Longman warning conflicted with a rule of law or prevented the jury from considering an issue that should have been left for their consideration.

It is those last words which, in our submission, are most relevant.  We submit that the decision of this Court upon the point we have identified is required in order to put to rest misconceptions regarding the obligation to give a Longman warning.  There is now a need for a clear statement by this Court that where a judge decides that there is a substantial risk that the jury will be misled into accepting the complainant’s evidence unless there is an appropriate warning as to its shortcomings, then a warning must be given.  This Court, in our submission, should say that this decision is one of law to be decided by the judge untrammelled by the forensic stance of counsel.  Whether a Longman warning be given is not a mere matter of discretion to be swayed by counsel’s views.

More importantly, as this case demonstrates, it is not a decision dependent upon whether the evidence of the complainant is corroborated or uncorroborated.  Absent corroboration, the circumstances of the case may still require a Longman direction to be given.  In our submission, this is an appropriate vehicle for the grant of special leave - - -

GLEESON CJ:   What did Mr Justice Tadgell say about this point?

MR TEHAN:   Mr Justice Tadgell said, in effect, that it did not matter that counsel had urged that the direction not be given.

GLEESON CJ:   Where do we see that?  What page?

MR TEHAN:   At page 196 of the application book at line 19:

I am of that opinion because, even if some aspects of the complainant’s evidence might derive confirmation from the applicant’s record of interview, the jury failed to receive from the learned judge a direction of a kind that was required in order, first, to warn them of the several very remarkable features of the case that demanded their particular scrutiny and, secondly, to advise them why the warning was necessary.

His Honour, in effect, found that in spite of the fact that the submissions of counsel for the applicant before the judge were said to have been made with some force, it was a matter for the judge to decide, and indeed his Honour commented that the judge would have given a Longman warning, it was a matter for him to decide untrammelled by the submissions of counsel.

GLEESON CJ:   I thought you said earlier that counsel was entitled to be heard on the point.

MR TEHAN:   Counsel is entitled to be heard on the question as to whether or not the circumstances of the case give rise to the need for a Longman warning.  But once the decision is made by the judge, as it was in this case, to give a Longman warning, then that is the end of the matter.  The warning must be given.  What happened in this case, the reason why this case is a suitable vehicle for the grant of special leave is that there can be no doubt that in this case the judge decided not to give a warning because counsel told him that he did not want to, that he did not want the warning given.  That brings me to the reasons why we submit this case is a suitable vehicle for the grant of special leave.

Firstly, it is apparent that the judge thought he should give a Longman warning which must mean that he had come to the view that without it the jury might be misled into accepting the complainant’s evidence without a warning as to its shortcomings.  Secondly, both the judge and counsel at times raised the narrow and wider views of Longman.  At page 13 line 11 of the application book counsel put it that:

it’s not inappropriate for Your Honour to warn the jury of the dangers of acting on evidence that occurred a long time ago.

Then the discussion turned to the issue of corroboration and the judge correctly, at page 17 of the application book at line 11, said:

I don’t have a discretion about potential miscarriage of justice.

Thirdly, we submit this is a suitable vehicle because the facts of the case obviously, in our submission, demanded that a warning be given.

GLEESON CJ:   Can I interrupt you to ask a question that puzzled me when I read this.  Apparently, what motivated counsel to try to talk the judge out of giving a Longman warning was that the judge said if he had given a warning he would have in the course of that warning pointed out that there was corroboration of the complainant’s evidence in a variety of ways.  Why would he not have pointed that out anyway?

MR TEHAN:   I suppose because he could not say that one was dealing with an uncorroborated complainant. 

GLEESON CJ:   But just in summing up the Crown case to the jury, why would he not say, “The complainant’s evidence is corroborated in a variety of ways.”?

MR TEHAN:   That is quite true, your Honour, he could well say that. 

GLEESON CJ:   Did he say that?

MR TEHAN:   No, what he did – his directions of law in this trial were very short.  They are set out at page 129.

GLEESON CJ:   But it looks as though everybody was proceeding upon the assumption that, absent a Longman warning, the judge was not going to mention the fact that the complainant’s evidence was corroborated.

MR TEHAN:   That is exactly right, your Honour.

McHUGH J:   He is not required to mention the question of corroboration.

MR TEHAN:   No.

McHUGH J:   No, or the absence of it.

MR TEHAN:   No.  Indeed, we say that is where the argument went off the rails in the trial court, because everyone looked at Longman only in terms of corroboration, which, in our submission, is quite long.  Whether or not a Longman warning should be given depends upon an assessment of the circumstances of the case.  That is a decision which must be made by the trial judge, was made by the trial judge in this case, and he was talked out of it.

McHUGH J:   If you were granted special leave, it may be one thing to say that counsel’s submissions could not deflect the judge from what he perceived to be his duty, but why should we not take that into account in determining whether we should exercise our discretion to grant special leave to appeal?  This is a case where your client, represented by senior counsel, I think, asked that the direction not be given. 

MR TEHAN:   The answer to that, perhaps, your Honour, is best given by what Chief Justice Barwick said in the case of Pemble.

McHUGH J:   Pemble is a different case.

GLEESON CJ:   We know about Pemble.  Do you have a rule in Victoria of the kind that exists in New South Wales that you cannot take a point on a criminal appeal without leave unless it was taken by trial counsel?

MR TEHAN:   No, your Honour.

GLEESON CJ:   Just as well.

MR TEHAN:   I might say in recent years the extent to which points are not taken by counsel has somewhat diminished, in view of a decision of the Court of Appeal by the name of Reg v Gallagher.

GLEESON CJ:   You mean counsel now take all points?

MR TEHAN:   We take what points we think are of substance.  The answer to your Honour’s earlier question is given by Chief Justice Barwick in Pemble, and that is that it does not matter.

GLEESON CJ:   That was the point which was being addressed by Justice Callaway in this case.  There, there was a failure to leave an issue to the jury.

MR TEHAN:   It is that matter which is important, the issue being the effect of delay upon the reliability of the complainant, and more telling, perhaps, the difficulties for the accused in properly defending himself.  The judge said nothing about these matters.  What he said is contained at page 126 of the application book at line 6:

So far as witnesses are concerned, I have no intention of commenting upon the demeanour or presentation of any such witness.  It would be a trespass by me into your role if I did.  You will decide what you make of the various witnesses called before you.  You will decide whether you consider the evidence of a particular witness wholly reliable, partly reliable, or completely unreliable.

GLEESON CJ:   Do you have a statute here of a kind that exists elsewhere that says that in certain cases judges do not have to direct a jury on the facts or remind them of the evidence?

MR TEHAN:   I am sorry, your Honour, I did not hear you.

GLEESON CJ:   Is there a statutory provision in Victoria that says the judges do not have to direct criminal juries about the evidence?

MR TEHAN:   No, your Honour, there is no statutory provision to that effect.

His Honour then went on to give a direction about the arguments and comments of counsel, and that is significant of course because there was no judicial weight – well, there was no longer a warning, in any event – but whatever counsel might have said about the issue of delay in his final address.

GLEESON CJ:   Even though he might not have used the word “corroboration”, because using that word often then requires an unfortunate explanation, did not the Crown Prosecutor point out to the jury that there was evidence that supported the evidence of the complainant?

MR TEHAN:   Yes, I believe so, your Honour.  In his final address he did point out that the applicant had made certain concessions in his record of interview.

GLEESON CJ:   And did the judge remind the jury of that?

MR TEHAN:   No, he did not.  Indeed, all he said on matters of law commences at application book page 129:

In the area of inferences and processes of reasoning, you will recall that Miss Bradford made no complaint concerning the accused man’s behaviour towards her until in 1996 she went to see Dr Dewhurst.  What do you make of that?  The position is this, you might expect a person who is subject to a sexual assault to complain about it.  Therefore, a failure to complain may be used to suggest inconsistency of conduct by the alleged victim and so go to her credit, her believability.

However, delay in complaining does not necessarily indicate that an allegation is false.  There may be good reason why a victim of sexual assault may hesitate to complain.  In addition, the relationship between abuser and victim or the age or personality of the victim may make it more or less likely that a complaint would be made, and those are matters that you should consider.

There was not any attempt by the judge in a case where some of the allegations were over 15 years old to give a direction in accordance with Longman.  Nothing was said about confirmatory evidence; nothing was said about corroboration; nothing was said about the most telling aspect of Longman, in our submission, and that is the difficulties delay creates for the defence.

GLEESON CJ:   What would have been an appropriate Longman direction?

MR TEHAN:   An appropriate Longman direction would commence with the direction that the jury should scrutinise the evidence of the complainant very closely in this case.

GLEESON CJ:   What would it have said about corroboration?

MR TEHAN:   It would have said that it is dangerous to convict on the uncorroborated evidence of the complainant, and that in this case there was evidence which was capable of amounting to corroboration in the admission by the applicant of an indecent relationship with the accused.

GLEESON CJ:   At a time when he was 33 and she was eight.

MR TEHAN:   Yes, and also, I think, an admission to various acts which he saw as being acts that should not have occurred between adult and child, such as kissing and hugging on a continuous basis, that sort of activity.  But it would have gone on to have said that the question as to whether or not those facts could amount to corroboration was, of course, a matter that the jury had to decide, and they had to bear in mind that in so far as some of the counts on the presentment of alleged penetration of the child, there had been a complete denial of any penetration by the applicant.

One of the things that emerges from the record of interview that has been placed in the application book is not only that fact but also the fact that on many occasions the applicant indicated that he either did not know what was being put to him, was unable to remember whether what was being put to him was correct, whether or not what was put to him was a possibility.  The reason for that is because he was being interviewed about these matters some 15 years after they occurred.  If the Court pleases.

GLEESON CJ:   Yes, thank you, Mr Tehan.  Mr Flatman.

MR FLATMAN:   May it please the Court, it is not completely accurate, in our submission, to say that the learned trial judge had made a decision that he was going to give a Longman warning.  Indeed, the application book would suggest that he was in some sort of a dilemma in relation to that, and raised it with counsel for the applicant at the trial as to whether or not he wanted that warning, and then when ‑ ‑ ‑

GLEESON CJ:   How did counsel know that, absent a Longman warning, the trial judge would not refer to the corroborating evidence?

MR FLATMAN:   How did he know that?

GLEESON CJ:   Yes.

MR FLATMAN:   I do not know that he did know that.  I do not know that it is entirely true to say that the corroborating evidence was not referred to because the Crown Prosecutor’s argument was reproduced in the course of the charge as well, and he referred to that as being supporting evidence.

GLEESON CJ:   Is it right that a tactical decision was taken by counsel not to seek a Longman warning for the reason that he was concerned that that would highlight to the jury the corroboration?

MR FLATMAN:   That is so.  If the warning was given in the terms my learned friend put, that it was dangerous to convict in the absence of corroborating evidence, that the learned trial judge would then go to say what was capable of being corroborating evidence in this trial.  The great difficulty that he faced in relation to that is that there were some extraordinary admissions made in the record of interview.  I have set them out in the outline of argument.  I do not propose to repeat them at length to the Court, but they were extraordinary in terms of a 32-year-old man and an eight‑year‑old child, not just for the passion that he had, but for the fact that he actually did physical acts, and probably the most telling part in the record of interview was admissions by him that he produced a rope for the purposes, he thought, of intentionally tying the child’s hands.  Indeed, the rope was present in something like seven of the counts.  That was an extraordinary admission to have been made in the course of a record of interview which, if it had of been a question of a Longman warning, one would have expected that to be a matter highlighted by the trial judge.

Senior counsel for the applicant, a very experienced trial advocate - your Honours might recall the case of Jolley in which the Crown complained perhaps of the rigidity of the dangerous to convict from the perspective of the Crown, that being almost an invitation to acquit.  Equally, the other side of the coin can be just as difficult for the defence because if the jury is told that it is dangerous to convict in the absence of confirming evidence, and then the litany of confirming evidence that was available in this case was drawn to the attention of a jury, then it is almost tantamount to saying it is dangerous to convict but look at all of this evidence, it is not dangerous to convict. 

What happened, in fact, was that it came down very much to arguments between the Crown Prosecutor and defence counsel as to whether or not the Crown could prove its case beyond reasonable doubt, and to the viable arguments that could be put.  It is our submission that the applicant lost no benefit because of that at all and, in fact, gained a great deal of forensic advantage from it.  It was in fact a short trial.  It was in fact, a short charge and in fact both counsel had the opportunity to put their arguments to the fullest. 

In some ways there are two arguments for the Crown.  One is that it probably was not an appropriate case for a Longman warning because there was so much corroboration in it, and the kind of problems that you might have about delay fall by the wayside when you have admissions by the man that something took place back between the period of 1993 and 1986.  So

that the failure to complain does not become as relevant in these circumstances because quite clearly something did happen and no complaint was made.

The benefits, we say, in the forensic advantage to the defence is significant in that it is not just a failure to take exception as it was in the other cases that have been raised before the Court.  It was a deliberate decision to ask that a Longman warning not be given.  We would submit, and it was put, actually, in terms of “with some force”, and we would submit that it was part of his Honour’s discretion then to take that into account.  It also gives weight to our adversarial system that we need to have the opportunity for both sides to make those kinds of forensic decisions in the course of a trial.  An appellate court should, in our submission, be slow to seek to re‑evaluate the tactical decision made by counsel who has a full appreciation of all of the issues in the case, and had the benefit of listening to the complainant give evidence ‑ ‑ ‑

GLEESON CJ:   And a feeling for the way the trial is going.

MR FLATMAN:   And a feeling for the way the trial is going, and heard the record of interview in court.  It is our submission, certainly, there are cases where there could be a miscarriage of justice even though a concession be made by the defence, but this is not such a case.  This is a case of clear, tactical opportunity, and it is part of our system, and it would be opening a Pandora’s box, in our submission, to start allowing the tactical decision of senior counsel made in the course of a trial, to be re‑evaluated in the appeal setting. 

In our submission, in this case where there was abundant corroboration, the tactical decision making – a deal of sense from the perspective of the advocate that there has been no miscarriage of justice by the trial judge, and the Court of Appeal was correct in finding that.  In fact, the very issue that counsel for the applicant at the trial chose to make that positive decision is an indication that the courts can be satisfied that there was no miscarriage of justice.  He has been afforded the opportunity and taken a very distinct decision in favour of his client.  They are the matters.

GLEESON CJ:   Yes, Mr Tehan.

McHUGH J:   What do you say - this was a case that really did not call for a Longman direction, in any event, given all the admissions that your client made?

MR TEHAN:   He made admissions to an indecent relationship.  He made admissions to what turned out to be count 3 upon the presentment, and he made admissions to producing the rope.  He denied penetration consistently; he denied the use of the rope consistently, and those admissions could be used as confirmatory evidence.  But, a Longman warning is not solely dependent upon whether or not there is confirmation of a complainant’s account.  What it is dependent upon is a judicial assessment of the circumstances of the case, including the age of the complainant, when the alleged offences occurred, the factual circumstances relating to the alleged offences, and other such matters.  In this case the allegations were absolutely bizarre.

McHUGH J:   I know they were, but so were your client’s admissions.  He said that events took place definitely short of intercourse; that they engaged in foreplay of the kind that men and women engage in.  This is with a young girl.  They had sexual encounters in his residence in the bathroom.  He would remove her clothes.  He did it on several occasions for his own sexual gratification ‑ ‑ ‑

MR TEHAN:   That is one of the reasons why, with respect, your Honour, this case is a suitable vehicle for the grant of special leave, because it is so often the case there is some admission to some sort of illegal sexual activity or indecent relationship.  That is another reason why this case ‑ ‑ ‑

McHUGH J:   But Longman was directed to a case where suddenly out of the blue an allegation is made by a woman who was very young at the time of the offences, and there is a complete denial.  That was Longman, itself.

MR TEHAN:   That was Longman, itself, but it has been applied in cases where there are admissions.  The point that I make is this:  the application of Longman is not dependent upon whether or not there are admissions or corroboration.  That could not be the claim ‑ ‑ ‑

McHUGH J:   Mr Tehan, they are extraordinary admissions.  He conceded that he had removed her clothes; told her to lie on the floor and commenced to remove his own clothes.  He could not remember whether he had stripped naked himself, but he got her to lie on top of him naked.

MR TEHAN:   That was count 3.  That was conceded in the court below.  Those matters, with respect, your Honour, cannot decide whether the applicant was entitled to a trial according to law.

GLEESON CJ:   But a trial according to law under the adversary system of justice, and if experienced trial counsel cannot say to the judge, “Please do not rub the jury’s nose in that”, it seems a fairly substantial derogation from the adversary system.

MR TEHAN:   The discussion between senior counsel and the trial judge is interesting.  Firstly it indicates that the judge had made up his mind to give

a Longman warning.  Secondly, it indicates that senior counsel for the applicant indicated that it may be appropriate to give a warning in relation to the issue of delay.  Thirdly it indicates that the judge decided not to give the warning because counsel was not asking for it to be given.  That is not, with the greatest of respects, a trial according to law.  In BRS v The Queen, your Honour Justice McHugh, at page 306, said:

Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials…..It is no answer that the directions which were given or not given gave the accused a better chance of acquittal than the directions that the law required.  A person is entitled to be tried according to law.

Our client was entitled to be tried with the Longman direction being given.  It was not, and that is why special leave should be granted.  If the Court pleases.

GLEESON CJ:   The Court is of the view that there are insufficient prospects that if special leave were granted the decision of the Court of Appeal would be reversed to warrant a grant of special leave, and the application is refused.

We will adjourn until 2 pm.

AT 12.45 PM THE MATTER WAS CONCLUDED