BCH v The Queen

[1993] HCATrans 299

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl31 of 1992

B e t w e e n -

BCH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Copyright in the High Court of Australia 1 8/10/93

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 11.52 AM

MR P.J. HIDDEN, OC:  May it please the Court, I appear with

my learned friend, MR C. STEIRN, for the applicant.

(instructed by Yvonne Swift and Burn)

MR R.O. BLANCH, OC:  May it please the Court, I appear with

my learned friend, MR P.J.P. POWER, for the Crown.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MR HIDDEN:  Your Honours, the applicant was tried in the

district court on four counts of homosexual

intercourse under section 78H of the

New South Wales Crimes Act.	The first and third
counts were allegations of anal intercourse.	The
second and fourth of mutual fellatio.

Your Honours, it is of some significance that the

transcript wrongly records that the applicant was

found guilty of all charges. He was not. He was

found guilty of the first, third and fourth counts,

but acquitted of the second. That matter has some

significance for a reason to which I will turn in a

moment.

This application relates to His Honour's

directions to the jury on corroboration and the way

in which the Court of Criminal Appeal dealt with

that matter. It does seem, Your Honours, from the

Court of Criminal Appeal's judgment, that the case

was conducted on the basis that there was no

corroboration. The Court notes that the Crown

prosecutor, in final address, did not suggest that

there was. My learned junior, who was counsel at

the trial, emphatically asserted that there was not, and His Honour the learned trial judge, in

summing up did not suggest that there was

corroboration expressly.

However, His Honour referred to the word,

"corroboration" on two occasions in the summing up

before he finally gave a direction. At page 43 of	the application book His Honour gave a direction
concerning the evidence of sexual acts other than those charged and, in accordance with well-
established authority, the complainant was
permitted to give evidence that the counts charged
were part of a pattern of sexual abuse.

In that context, at page 6 of the application

book, His Honour at lines 21 and 22 said:

That evidence by way of general history of the

relationship is not corroboration.

Then later, in the course of summing up, His Honour

dealt with the matter of complaint, and at page 8

line 2, His Honour again said:

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you should bear in mind that evidence of

complaint if and when made is not

corroboration because it comes from the lips

of the person complaining -

As Your Honours will recall, there was discussion

at the end of the summing up as to whether a

corroboration direction ought be given, and

His Honour ultimately elected to do so, and indeed

His Honour gave at that stage what was an agreed

direction. That is agreed between counsel. That
direction appears at page 26 of the application

book, commencing at line 3, and in effect,
Your Honours, it is lifted directly from the words

of Mr Justice Gibbs, as he then was, in Kelleher. His Honour in Kelleher, of course, was stating in short terms and in a judicial sense the effect of the common law direction of corroboration, and was

not purporting to set out everything that should be

said to a jury about the matter.

Your Honours, there was medical evidence of

injury to the area around the anus of the boy.

That was said to be consistent with anal

intercourse, and also possibly consistent with

another normal medical cause.

What occurred is that the jury having retired,

it came back and asked for a number of things, and

one of them was a transcript of the medical

evidence, which in due course was supplied.	Now,
although the corroboration direction which

His Honour had given at page 26 was by agreement,

it is significant that at that stage counsel for

the applicant at the trial, who was of course

sensitive to the atmosphere of the trial, saw fit

to renew a submission that a full common law

corroboration direction should be given. In

particular, that appears at page 31 of the book,

commencing in line 35:

Your Honour I renew my submission in

relation to the direction involving the

Queen against Baskerville that because of the porsity of the Crown case, in other words

there's really only one witness giving

evidence of what actually occurred, there is a

danger that the jury may feel that the

doctor's evidence is capable of

corroborating -

the complainant:

We respectfully submit in law that that is

simply not correct -

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Of course, Your Honours, clearly the medical

evidence was not capable of amounting to

corroboration in the common law sense. It should perhaps also be said, Your Honours, and I omitted

to say this, that when His Honour decided to give
the corroboration direction, it seems to have been

on this basis: section 405C of the New South Wales

Crimes Act now provides that the common law

direction need not be given in sexual cases, but

there remains a discretion to give a direction if

it is deemed appropriate.

It seems that section 405C did not apply to the first three of the charges in this matter

because of the time at which it came into force in

relation to offences under section 78H, but did

apply to the last, which was said to have been

committed after the section came into force.

His Honour said, in effect, "I must give the common

law direction in relation to the first three, so I

am going to give it in relation to all four", which is clearly a sensible approach. His Honour did not

suggest to the jury that the position was different

in relation to the fourth count.

So that it appears to have been a case where

the common law direction was given because the

common law required it, as to most counts, and was

given as a matter of discretion as to the fourth

count, although by statute a direction was not

required in respect of that count.

Substantially, Your Honours, the Court of

Criminal Appeal dismissed this ground of appeal on

the basis that no unfairness resulted to the
applicant from His Honour's omission to explain
that the medical evidence was not capable of being

corroborative. It is to be noted that His Honour said that two things were not corroboration: that

is, the evidence of the sexual history and the

evidence of complaint, but His Honour never said

that the medical evidence was not corroboration.

The difficulty with the Court of Criminal

Appeal's view, with respect, Your Honours, is this:

firstly, while it may have been the case that

counsel conducted the trial on the basis that there

was no corroboration and addressed the jury

accordingly, it seems clear from what happened that

the jury did not approach it that way. It is of no

little significance that although counsel did go to

the jury on the basis of "D you believe this boy or
do you not, that is what this case is about",

the jury apparently believed him in relation to

three of the charges but not in relation to one of

them.

4   8/10/93

I might say this, Your Honours, the second

count of which the applicant was acquitted related
to an incident in which, on the complainant's own

evidence, another boy was present in the house,

staying overnight. That boy was never called, and

that may be why the jury had a doubt about that

count.

It is also of some significance, Your Honours,

given that the jury wanted the medical evidence,

that the count of which the applicant was acquitted

was not one of anal intercourse but one of mutual

fellatio. True it is that he was also convicted of

the fourth count, which also related to mutual

fellatio, but it is of some significance that it

was a fellatio count of which he was acquitted.

So, why did they want the medical evidence?

Well, of course, Your Honours, we can never second guess juries and we will never know, but the danger

which counsel at the trial perceived at the time

they asked for it, that they wanted the medical

evidence because they thought that it could amount

to corroboration of the evidence of the

complainant, corroboration in the sense of evidence

not only consistent with his account, but tending

to implicate the accused, was a very real one.

Your Honours, that, shortly, is the complaint,

and it is our respectful submission that the way

the Court of Criminal Appeal approached the matter

was in error, and that there was a very real danger

of miscarriage here which the Court of Criminal

Appeal, with respect, missed. Special leave should

be granted if for no other reason that there has

been demonstrated here the prospect of a real

miscarriage of justice in the instant case.

The other reason why the matter is of some

importance, Your Honours, is this:	we have
referred in the outline of argument to a number of

decisions - this is at page 63 of the book at

line 29 - to a number of decisions in New South

Wales, Victoria and South Australia respectively,

dealing with cases where a corroboration direction
was not required because of a statutory provision

to that effect. That, of course, is now the case

in New South Wales and, no doubt, cases in New

South Wales where the common law direction would be

required will become rare and will eventually be

extinguished.

I do not think it is necessary to take

Your Honours to those particular cases to

which - - -

5   8/10/93

MASON CJ: It does not really become relevant to determine

the question that the legislation gives rise to,

does it?

MR HIDDEN:  I suppose not, Your Honours. The submission I

am making is this, that this was a case in which at

least one of the counts was caught by the
legislation, but His Honour chose to give a blanket

direction in any event. But the line of the

authorities in this State and elsewhere, since the

advent of this legislation, has tended to be -

well, if a judge does choose to give a

corroboration direction, he need not, and indeed

probably should not, use the old technical language

of the common law. It is undesirable, the cases say, to give the Baskerville direction. Indeed, some of the cases say it is undesirable to use the

word, "corroboration", at all. It is best to speak

of confirmation or support of the complainant's

evidence.

But the difficulty that arises is that there

still remains a very relevant distinction between

evidence which is confirmatory in the sense of

being consistent with the complainant's evidence,

and evidence which supports it in the sense of

being not only consistent with the complainant's

evidence, but pointing to the guilt of the accused.

That distinction remains of great importance, and

if courts in the future are, in a sense, going to

loosen up the language when a corroboration

direction is given, then it still remains of great

importance that the true effects of corroboration

at common law be explained, even if that word is

not used, and the distinction be maintained between

evidence which is consistent with the complainant's

account and evidence which is not only consistent

with it, but inculpatory of the accused.

It is for that reason that we submit that if

Your Honours did deal with this case, it would be

of assistance to trial judges in the future in

summing up.

Your Honours, there is perhaps one other point

that ought be made as to the merit of the instant

case, and that is this: the prospect of the jury

wrongly treating the evidence as corroborative in

the common law sense was by no means theoretical.

The possibility that the boy may have had sexual relations with someone other than the applicant was

by no means fanciful. At page 40 of the book, in

the leading judgment of Mr Justice Smart in the

Court of Criminal Appeal, His Honour noted at

line 4:

6   8/10/93

There was material that the victim was

drinking alcohol as early as 11 years of age,

smoked marijuana, was a beach boy and was

subject to little, if any, parental

discipline.

So that the very reason for the traditional common

law requirement that it be explained that

corroborative evidence is evidence implicating the

accused, appears from the material here.

Those are our submissions if the Court

pleases.

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  May it please the Court. The important matter

raised by my friend is the medical evidence, which

was obviously of some interest to the jury, and the

failure of the trial judge to explain what might be

corroboration, bearing in mind that a suspicion

might arise in the way the jury was interested in

the medical evidence.

As to that, the substantial point for special

leave is, in our submission, that it would be

necessary for this Court to intervene to provide
some instruction or advice as to the conduct of
trials. I point out to the Court that in the Court

of Criminal Appeal, the court was well aware of the

law as it is required to be explained to juries.

What the Court of Criminal Appeal did in this case was to say, "Well, we accept that it may be a wiser

course in a case where a word such as corroboration

is used", and it was used I think in this case on

three occasions by the trial judge, "that it may be

wiser in those circumstances for the court to

explain what can and cannot be corroboration". If

that had been done, of course it is conceded that a

direction would have been given by the judge that

consistency but not of corroboration of the version the medical evidence was evidence of no more than given by the complainant.

However, the Court of Criminal Appeal

recognized that, stated the correct principles, and

without going to them, they appear at pages 48 to

50 and thereabouts of the appeal book in the

judgment of Justice Smart. Those principles were

correctly stated, in our submission. His Honour

then focused upon the question, "Well, since there
was something less than perfection in the way the
jury were instructed about these matters, the
question then arises whether, on the facts of this

particular case, there is any question of a

miscarriage of justice occurring. The court then

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went in detail through the analysis of that

question.

The conclusion reached by the court in doing

that was that there was no miscarriage of justice

and therefore no reason to quash the conviction.

In performing that second function of

assessing the facts, it is our submission that
again, the Court of Criminal Appeal made no error.

They did assess the facts themselves. They did go

through the material. We do not deny the question

that is raised by my friend, because obviously this

matter was of some relevance and the fact that the
jury asked a question about it obviously was a
matter of some interest, and a matter that did
require careful consideration as to whether in the

absence of an explanation of corroboration,

something more should have occurred during the

course of the trial. Our point simply is that the

Court of Criminal Appeal recognized all of those

matters. The Court of Criminal Appeal considered

them and, on that basis, no error can be

demonstrated in the Court of Criminal Appeal, and

for that reason, special leave should be refused.

MASON CJ:	Mr Hidden?
MR HIDDEN:	We do not wish to be heard in reply,

Your Honour.

MASON CJ: This case does not raise a question of general

principle, and although the Court of Criminal

Appeal did not refer to the jury's request for the

transcript of the medical evidence, it is accepted,

as the court stated, that the trial was conducted

on the footing that there was no corroborating

evidence.

We are therefore not persuaded that the Court

of Criminal Appeal was in error in holding that

there was no miscarriage of justice.	The
application is therefore refused.

AT 12.11 PM THE MATTER WAS ADJOURNED SINE DIE

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