Bourke v The Queen

[1988] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B60 of 1987

B e t w e e n -

TANIA MICHELLE BOURKE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J

Bourke

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JUNE 1988, AT 10.02 AM

(Continued from 28/6/88)

Copyright in the High Court of Australia

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25

MASON CJ:	Yes, Mr Hanson.
MR HANSON:	Your Honours when we adjourned I was taking the

Court through the directions to the jury which, in our submission, misquoted or misrepresented the

effect of the evidence. Could I ask Your Honours to

go to page 535? This is a summary of the evidence of Mr Thomassen, a neighbour, and commencing at the

top of the page:

Joseph Thomassen said he saw the accused a

few times in the back yard when he was

watering his garden. He said that the Hawes family were their neighbours and

Mr Thomassen said his back fence was

almost directly opposite.	So his yard shared
an almost common boundary -

et cetera.	He saw the accused and the child and
they had a dog.	He did not notice anything about
the child:

On one occasion he heard a sound or heard

something and he told you about it. You

remember he said he came back from holidays

on 2 January of this year and it was then,

to use his words, "About then things started

to liven up." He said, "Now and then you

would hear the boy crying and screaming and

together with the raised voices, a little

smack."

Your Honours, if we go to the evidence of Mr Thomassen

at 351, it is our submission plain that he did not

say that or convey that impression. The evidence

of Mr Thomassen in that regard commencing at line 5

on 351:

When did you come back from holidays?---On

2 January.

And then on that occasion after your return
was there anything that occurred?---Yes.	I

would say after we came back from our holidays

things started to liven up, you know, in that

area.

What actually were you hearing or seeing?---You

know, you could hear - now and then you could

hear the boy crying or screaming and voices -

raised voices - which is really - I wasn't too

concerned about because every child now and

then needs to be disciplined, you know, and

a little smack, probably every child gets a

smack now and then, you know.

Then what happened?---Well, some of the screaming

of the child - well, after a while it started to

concern me because I - - -

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And then he goes on.	Your Honours, that is all he
had to say at that passage about a smack.	It is

plain from that passage, surely, he is talking about

children being smacked in general, not this child

being srra.cked to his hearing.	At the top of 352, he
was asked:

So it was the screaming?--- ..... which distressed me.

You told the court that at an earlier stage, as

I understood you, you did hear - did you hear

something at an earlier stage?---Earlier this

year, yes.

Which was associated with the screaming? I

will put it another way. Apart from all the

screaming you heard was there any other sound

you heard? Only if you did?---No, I would say

I have no recollection of any other sounds,

really.

And if Your Honours would go 357, the cross-examiniation

at about line 12:

Did you ever hear any blows being delivered?

---No, no. I don't - what I have heard I can't -

I couldn't say I heard any smacking noises or

whatever.

And down to line 30 he concedes he did not hear any

blows and no slaps. So,with respect, the direction in

the middle of 535 left the jury with the impression

that Mr Thomassen had indeed heard a smack. While

we are at that passage, if Your Honours please, on 535,

could I ask you to read on past the reference to a

little smack at line 30:

He said, "The screaming continued." And he

said that it started to concern him.	Now,
you are not worried about whether it

concerned him or not. That is one way of

him saying it was screaming out of the ordinary.

He went on and explained what he meant in this

way. You know, if you smack a child at that

age they cry all right, but for a child to

start to scream, really a screeching scream,

there would have to be violence happening to the

child. He said it was a screeching scream,

a very pronounced scream. That's what you

get from that.	He said he used to hear this
once or twice a week.	It was so bad he found

it distressing and it was prolonged.

Your Honours, we have a number of	complaints about
that. In the first place, it was	surely inadmissible
evidence for a witness to express	the view that he
was concerned about what he heard	and, indeed,

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His Honour so ruled before the trial began. At

page 49 of the record there was a ruling to that
effect, discussing the evidence of another witness,
I understand, but none the less the ruling would
surely apply to any witness. At that passage, then,

His Honour repeats to the jury the witness's

expression of concern and distress. We complain

about that having been said by the witness and having

been reinforced by being brought to the attention of

the jury. But in the same passage there is a

repetition that the witness had said to the jury

that because the child was making so much noise crying

and screaming:

There would have to be violence happening

to the child.

We would object that that was clearly an inadmissible inference and connnent by the witness and the problem

was compounded when it was brought to the attention

of the jury in that passage. Could we ask

Your Honours to look at 545, a reference to the

evidence of a neighbour, a Mrs Miller at line 25: She was cross-examined, she agreed, of course,

she did not see anything. She repeated what

she heard - "It sounded like hard slaps -

hard slapping sounds." She said she would

never forget the sounds. She heard the female

voice, "Why don't you go to sleep? Get under

the bed - get under the bed." She said the

sound of the woman's voice sounded to her as if

it was uncontrollable and continued on for

five minutes. She said the child - the boy

was crying all the time, sobbing, then all

went quiet.

She said she did know where the dog slept

at night-time. She said the slapping sounds

seemed continuous. She said the slapping

continued on when the female was ranting,

raving and screaming and so on.	She said she
had described these beatings, slappings and
beltings, but you evaluate the evidence - she did not see anything, members of the jury, she
heard those sounds.

Your Honours, if we go to her cross-examination at

page 456 - perhaps I should take you back to the
page before to put it in context - about line 20

on 455:

And you heard slapping ..... ?---That's right.

During that exchange for the whole of that page, she

said it was very hard slapping that she would never

forget. Then on 456 it was put to her that the

statement that she had supplied to the police contained

no reference to slapping. That is at the top of 456.

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She claimed that it had. Her statement was read to

her at about line 4 and by line 45 she had conceded

she had not included in her statement - the one that
she had signed, of course - any reference to

slapping. She explains why at about 45:

I think at the time this was taken I was

in shock, absolute shock at this child's death. There were many things that have

been overlooked.

Your Honours, the point we want to make is this, that

the passage I read to you at 545, His Honour has

simply picked up the evidence from 456 which

consisted of counsel cross-examining, reading to her

what was in her statement and I accept, of course,

that that perhaps made it evidence, but it was

simply put to her to challenge her on credibility.

His Honour read that to the jury as if it were

evidence she had adopted at the trial. Well, perhaps

that may have been legitimate, but he omitted the

whole purpose of the exercise and the target that

was achieved by the cross-examiner in demonstrating

that her very cogent evidence about slapping was not

in the statement that she had made to the police.

So the cross-examination surely achieved some

detraction from the weight of her evidence. The highlights of her evidence were read to the jury

without this detracting factor and the complaint

is that they were not given a fair impression, a fair

representation of the total effect of her evidence.

Could I ask Your Honours to go to 531?

R.:eferr.i.ng to the evidence of Mr Hawes, a neighbour,

and at line 18:

He said he heard the smacking and so on to be

almost a daily basis, the crying and so on,

al though he didn' ,t say specifically when, in

what period; he just generally said it was

almost on a daily basis. So the effect of

his evidence is that - it is a matter for you

to evaluate that - it was a fairly frequent

occurrence.

With respect, that was not the effect of Mr Hawes'

evidence.

DEANE J:	What page was that, Mr Hanson?
MR HANSON:	That direction is at 531, the middle of 531, the

effect of the evidence of Mr Hawes and his evidence

is at 220 at line 35:

That is the first time you became aware of

that - November December period. What was

it that drew your attention to them, was there

anything unusual?---I live in an area where -

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I live in Woodridge and frequently parents

do yell at their children. I was drawn to

the attention of no. 2 unit by the manner in

which the child was being spoken to.

On page 221 he describes in some detail the screaming

at the child in an agitated and high-pitched voice.

At lines 12 to 25 describes screaming of the

child, what sort of screaming. This is a complaint that we

have raised in another context. In the next

paragraph commencing at 28 he says he did not really

take a lot of notice at the early stage.	Through
that paragraph he speaks of the two parents
participating in interrogating the child.	He

distinguishes between one episode and another and

the effect of the evidence is that he was not

concerned about the earlier episode because it was
a suburb where people scream at their children,
but it was the second one that concerned him.

Then, if Your Honours would go to 224, at 18, he again describes the tone of the crying or he

agrees with the prosecutor the child was crying in fear or the cries suggested fear. We have already

made that complaint in another context. Further

down at line 30:

It would be very shrill, almost a pleading

sound

the cry of the child. Then on 225 we come to the

passage from which His Honour apparently drew the

direction of which we complain and it is necessary

to read from the top of the page to line 20.

Your Honours will recall that at 531 His Honour

told the jury the effect of this man's evidence

was that there had been slapping, it seems, on a

fairly frequent occurrence, almost on a daily basis.

In our submission, the proper

interpretation of that passage is that what happened

on a daily basis was perhaps this screaming and

carrying on of the child and really there were only

two specific instances of slapping accompanying

the questioning of the child.

I appreciate the passage is not terribly clear

but we do complain that it was presented to the jury

on the basis that this is what the man had to say.

It does not bear that interpretation. I am sorry, I

should ask you to go a little further, 229. Yes,

that is spelled out more specifically there.	At the
top of 229:

There were two specific occasions in 1986

to which you did pay attention? .....

Were there any other occasions in 1986 that

went beyond the ordinary, if we can use that

term?---Only those two instances that are

referred to in my evidence that I can recall during 1986.

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. . .. . in 1985 there

there was really -

nothing beyond the ordinary.

Your Honours, that completes our particulars of the

misdirections and the directions to the jury that
did not accurately represent the effect of what the

witnesses had to say. If the Court does not mind,

I would like to go back for a moment to a point I

was developing yesterday concerning inadmissible

evidence, evidence of domestic incidents, evidence

of impressions of witnesses in support of the

complaint that inadmissible evidence was led. Could

I ask Your Honours to go to 402, witness MacDonald,

an acquaintaince of the accused and her de facto.

DEANE J:  Mr Hanson, there was some evidence of the child's

screaming and so on, when it was being slapped.

MR HANSON:  There was, Your Honour.

DEANE J: And there was evidence of screaming,

without specific evidence of slapping, some of which

was explained by the witness indicating that his

position over the fence, wherever	it was, was such
he could not have heard any slapping.

MR HANSON:	Yes, Your Honour.
DEANE J:	Was there any evidence explaining the screaming
without physical maltreatment?
MR HANSON:	From the defence side, Your Honour?
DEANE J:	From anywhere .

MR HANSON:  I do not think so, Your Honour. You mean, did

anybody give evidence that the child was prone to

scream without being slapped?

DEANE J: Well, that is right, or that if he was crossed he

screamed from frustration.

MR HANSON:	There was no evidence of that at all, Your Honour, no. In fact, the evidence - I must say the evidence
was the other way, that he was a child who was not
prone to - - -
DEANE J:	Well, I noticed the medical and what the

doctors and some of the other people had said.

MR HANSON:  And the acquaintances say he was not prone to cry if he hurt himself. We have already commented on

that body of evidence. I am reminded that he was

taken to the doctor during that period, during the

last four weeks of his life, because there were

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behavioural problems,among them, not sleeping

properly and a sleeping draught, apparently, was prescribed by the paediatrician. So I think that

is as far as we can take it, Your Honour. At 402,

Mr MacDonald, an acquaintaince, at line 42, gives

evidence to this effect:

Anything you noticed about the way the child was

walking, his gait?

Well, Mr MacDonald is not a doctor, of course, but it

does not disqualify him from saying this, but this

is what he says:

I did see the child fall over. He fell over.

He rubbed his shin and then just got straight
back up again. I had occasion to throw a

ball with him. It was a round ball about

six inches in diameter and he couldn't

fetch it. I thought it was strange at the

time that he couldn't catch the ball because

in the unit we used to play with a football

and a tennis ball, and his father was training -

him -

to be a	footballer and he didn't have any
trouble	catching balls, well even a football.
It just	perturbed me that he physically couldn't
get his	hands to catch the ball.

Your Honours, surely an admissible connnent. Why the

child could not catch the ball on that day, who knows?

It is surely not permissible for Mr MacDonald to say

that he was perturbed at what he observed that day.

On the same page, a few lines above, at line 28:

Would you tell the Court what injuries you noticed on 2 February?---He had a bruise on his

left hand side of his face.

Show us about where?---About there, across his

cheekbone. It was a funny sort of a bruise.

Your Honours, just the use of that language surely

indicates everything slanted against it:

It_wa.s a funny sort_of a bruise.

It is an expression that is surely designed to make the jury sit up and listen; there is something unusual,

sorrething funny about this particular bruise. This is

the sort of thing that was put in evidence; that she

was faced with the problem of having to meet, either

by giving evidence or by submissions through her
counsel. There is another incident, a very curious

piece of evidence at 383, evidence of Miss Thomassen,

a 15-year-old_girl,who was one of the neighbours.

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At the foot of 382 we should commence, there was

an incident in the back yard:

At anv time did you see the female

that is- the accused -

separating the puppy from the child?

And she could not remember that. Then she said:

Or taking away one or the other?---Yes.

Tell us what happened there?---I was watering the back yard again and I approached the back of the fence towards the plants at the back,

and the boy was playing with the dog and I -

when I was at the back; she came outside, took

the puppy and boy inside, closed the doors

and all windows which can be seen from our

house.

How many times did you see that sort of episode?

And she goes on.

How many times did you see an episode where the

mother came out and took the boy and the

puppy inside?

Your Honours, one wonders why that evidence was put

before the jury. Is it meant to suggest that there

was something sinister going on in the unit?	How
do you meet that sort of thing in evidence? Is

she to be asked, "Why did you close the doors and

windows that day?" You can see how her counsel

attempted to meet the sinister suggestion in

cross-examination, at line 30, there is a suggestion

they have got an incinerator in the back yard that

sometimes burns in the afternoon.	I mean, that
is the sort of thing he had to resort to, to meet
that sort of sinister connotation.	And, Your Honours,

finally, at 351 - I am not sure that I have given

Your Honours this passage. We are back in the

evidence of Mr Thomassen, at about line 25 - yes, I

have read this passage bo you, when he said:

There would have to be other things happening

to the child.

That was repeated in the summing-up at 352.	I am
sorry, I have given you that reference. Well,

Your Honours, in summary, then, about these complaints

of misdirections and inadmissible evidence. It was

a circumstantial case and we would venture to submit

not a strong circumstantial case. These items of

evidence may just have made the difference with the

jury and may just have tipped the balance against her

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and if the trial had been conducted strictly

according to the rules of evidence, well, she would

have had a fair trial. Your Honours, can I pass on,

then, to another issue entirely? It is this: the

Crown made an issue before the jury of false

statements that the accused made to the police out of

court. You will see a reference to that in the

summing-up - this is the only evidence of it - the
summing-up at page 510 at the top of 510:

There are certain statements that she made

and the Crown say, "Well, you can have regard

to those." There are certain changes in her

version of events the Crown has put before

you ..

Your Honours, what happened can be gleaned from

pages 633 and 637. 633 is a statement by her counsel

in requesting redirections,and at line 38 of 633

he asserted that the Crown prosecutor, in his

address, had attempted to make much of the: So-called false denials.

The Crown Prosecutor. at 63 7 accepted, at line 5 -

although it has got Mr Zillman there, it is a misprint,

it is Mr Lakshman, the prosecutor, that is the first

entry after"His Honour"at about line 4, it should read

"Mr Lakshman';

In relation to his assertion about false

denials, I think in my address to the jury

I would refer to the matter in this way;

essentially, what had occurred was that

the accused had then changed her story -

they look at it in the context of the other

evidence and so on.

Your Honours, in our submission, if, once the Crown

had made that an issue, the judge was obliged to give

the jury the warning spelled out in BROADHURST's
case against inferring guilt merely from lies.	The

reference to BROADHURST is 1964 AC 441 and at page 457

in the middle of the page:

It is very important that a jury should be

carefully directed upon the effect of a

conclusion, if they reach it, that the
accused is lying. There is a natural tendency

for a jury to think that if an accused is

lying it must be because he is guilty, and

accordingly to convict him without more ado. It is the duty of the judge to make it clear

to them that this is not so. Save in

one respect, a case in which an accused gives

untruthful evidence is no different from one

in which he gives no evidence at all.	In
either case the burden remains on the

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prosecution to prove the guilt. But if

upon the proved facts two inferences may

be drawn about the accused's conduct or

state of mind, his untruthfulness is a

factor which the jury can properly take into

account as strengthening the inference of

guilt.

What strength it adds, of course, in all the

circumstances et cetera. We contend the direction

in the first part of that passage ought to have

been given once the Crown made this an issue, as

appears from the record. The Court of Criminal Appeal

in Queensland has discussed the problem in a case

of REG V FELLOWES AND OTHERS,(1987) 2 QR 606,and

at 618 it appears from about line 30 what had

occurred was that an exculpatory statement made

out of court by one of the accused was tendered by the Crown. It contained an account that the Crown

alleged was false. If Your Honours go to line 20

on page 619, this is a corrnnentary upon what

happened in the surrnning-up. That is not our case
here, of course, it was not mentioned in the surrnning-up,

it was a dispute between counsel, but the principle

is surely the same:

The process that the jury was invited to

follow was to reject the account, conclude

that the opposite was established, conclude

that it was a deliberate lie, infer that the

reason for telling such a lie was consciousness

of guilt, and -tlrus rely upon a false account

as a factor that strengthened the Crown case.

Such a process was plainly not available in

relation to this issue. It is perhaps

desirable to repeat the well-known principles

concerning the use of proven false statements.

There is a citation there from LUCAS, but more

relevant to our present case, at the foot of the

page:

The above principles are not limited to

cases where the Crown desires to use the

making of an untrue statement as a form

of corroboration. It applies in all cases

where the making of such a statement is

sought to be used as having a direct

incriminatory effect, as is the situation

where a jury is told that it may infer that

a statement was made out of a consciousness

of guilt. In such cases directions similar

to the RV LUCAS directions should be given.

In some cases the further warning against convicting a person merely because he tells

lies should be added.

Your Honours, in our submission, this was such a

case. There is a distinction between the case where

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the Crown claims that false statement demonstrate

a consciousness of guilt and the case where the
false statements do not go that far and are merely

shown to be lies. Just by way of example, the

Crown apparently relied upon what the accused had

to say to the police in one of the records of

interview.

(Continued on page 37)

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MR HANSON (continuing): If Your Honours have the separate

folder which is labelled exhibits 5, 8 and 14 and

if you open that folder, at the foot of the first

page, you will see a question and answer.

Platz:  Have you ever told Leigh -

Leigh was the child -

you hate him?

Tania:  No, I don't think I'd say that.

Well, there was clearly evidence from neighbours who had heard her say that. Apparently the Crown picked up those sort of statements said to be false and

made it an issue before the jury. In those

circumstances the direction in BROADHURST ought to

have been given in our submission.

This matter was debated in the Court of Criminal

Appeal and without reading what Their Honours said,

could I inform Your Honours, Mr Justice Dowsett

dealt with the matter at pages 766 to 770,

Mr Justice Ryan, pages 707 to 708. Your Honours, we

have a further point and that is, that His Honour in

sunnning up made a comment that may have ;,overborne the

jury or diverted them from their task. That comment

appears at page 500, very early in the summing up, at

line 15:

I may comment on some of the facts. I

will take you to some of the evidence.

You may think that I have some view one

way or the other on the ultimate

question as to whether the accused's

guilt has been established, and if you

think that I have got some view one

way or the other, then you can give that

such weight as you think appropriate.

We would ask Your Honours to note that it is a

comment that the jury may detect that he has formed a

view as to the accused's guilt. Now it is not

uncommon for judges to mention to juries that they

may detect that he has formed some view about the

facts, but this is a rather uncommon comment, in our

submission - "you may detect that I have formed a

view about her guilt":

and if _you think that I have got some

view one way or the other, then you

can give that such weight as you

think appropriate.

Your Honours, with respect, it is a comment that

should never have been made and the Court of Criminal

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Appeal in Queensland has said so of a comment upon

the judge's view of the facts. That case is

REG V PERERA, (1986) 1 Qd R 211. The comment by

the trial judge is at page 220, lines 20 to 30.

The Court's view upon the impropriety of such a comment

is on the rest of that page. This point was taken

in the Court of Criminal Appeal. It is dealt with

by Mr Justice Dowsett at pages 713 to 716 and

Mr Justice Ryan at pages 697 to 698. Your Honours,

there are then a few miscellaneous - what we suggest

were irregularities - andin this regard we adopt

what Mr Justice Dowsett said about these points.

At page 753, that is the judgment of Mr Justice Dowsett,

at lines 20 to 60, he speaks about the Crown creating
issues which really should never have become issues

at the trial. Just to explain to Your Honours

what he is speaking about there: he talks about

evidence of climbing on the fences. The accused was

questioned about whether the boy might have fallen

off the fence or· whether he climbed on the fence.

Then evidence was led from witnesses - neighbours,

"had they ever seen the boy climbing on the fence" and,

of course, they all answered, "No". Well, that

evidence, I suppose, is designed to show the jury

that nobody ever saw him climbing on the fence and

therefore when she says, "he climbed on the fence

and might have hurt himself if he fell off", she is

telling lies. That is the only purpose that we

could conceive that such evidence was led. So,

His Honour's criticism, with respect,is quite valid;

the Crown created issues and then sought to knock

them down in order to discredit her. There is one

more passage of which we complain. I am sorry, you

dd not need to go beyond page 755, Mr Justice Dowsett's

judgment deals with it. One of tha police-officers

gave evidence, as you will see at the top of page 755, that

in his opinion, when questioned, she exhibited:

controlled, unconvincing distress.

His Honour comments upon that at lines 1 to 40. We

adopt His Honour's reasoning. And if Your Honours

would go back a few pages to page 750 -

Mr Justice Dowsett still - dealing with the evidence

of Dr Mohr, Your Honours will recall, the general

practitioner who saw the child several times, at

line 35:

The doctor was asked on a number

of occasions whether she had any

experience with "child-abuse" cases and

said "No". She was also asked on a

number of occasions about the extent to

which a medical practitioner depended

upon information provided by parents when

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treating a child, and she gave the

appropriate and expected answers. There

was a clear implication underlying this

questioning that it was not surprising
that the witness had not noticed any

signs which indicated child-abuse. This

seems to me to have been a most unfair

approach by the Crown Prosecutor.

And so he goes on. We adopt those comments.	Finally,
Your Honours, one further incident in the same
category.	Dr Brown, you will recall, a paediatrician,

at page 271 - he had the care of the child at the

hospital at one stage - at page 271 at lines 12 to 25, he

speaks of recommending:  ·

that the child stay in hospital during

the day until a social worker had spoken

with Mr Walker and the accused.

This is evidence in-chief:

What happened then?--On the

suggestion of a social worker being

involved, at that stage the accused, I

felt, wanted to know exactly when the

social worker would be coming, how long

it would be. I felt, perhaps, she was

somewhat angry that I suggested a social

worker be involved with the case.

Your Honours, we query what was the relevance of that

evidence unless it was meant to suggest there was

something sinister, that she was reacting at the

prospect of some social worker intruding into the

household and discovering something sinister about

her management of the child. If it was not designed

for that end then what on earth is it doing there-

and this is a matter that Mr Justice Dowsett deals with

and we adopt his reasoning in that regard. In any

event, the comment by the doctor was watered down

in cross-examination when he acknowledged that perhaps

her concern arose from the fact that she may have
to be delayed in waiting at the hospital to see the

social worker rather than take the child straight

home. So it is surely a harmless incident that was

presented to the jury apparently in an attempt to have

them infer something sinister. ·

Your Honours, those are the complaints we make

of an accumulation of errors by way of inadmissable

evidence. Evidence not sufficiently relevant to

justify admissability in the light of its prejudicial

effect. A misquotation of evidence misrepresenting

the effect of what a witness had had to say and

these other miscellaneous irregularities that I have

been through this morning.

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TOOHEY J:  Mr Hanson, you were going to tell us how the question

of objection to admissability of evidence was handled?

MR HANSON:  Yes, Your Honour. You will see, I think, starting

from about page 1 and running through to about

page 80, there was a debate,a long ongoing debat~

about the adrnissability of evidence and it seems

to have dealt with the evidence proposed to be
presented, witness by witness. For example, I said

before, there was an objection to witnesses saying

that they were concerned about what they heard.

The ruling in that regard is on page 49 at line 30.

That is referring to one witness only. I cannot

do any mJre than point to Your Honours to the fact

that the debate ranged over 80 pages. It did not

embrace everything that we have debated here. As

I said yesterday, Dr Atkinson seems to have come up

with this question of child abuse and counsel is
then faced with the question of what to do about it,

whether to try to ignore it or try to cross-examine it

away and he cross-examined on it. If Your Honours

would look at volume 3 -

DEANE J: In those first 80 pages are there any rulings

against your client which relate to the matters of

which you now complain?

MR HANSON:  No, Your Honours. On the question of how much

of this was objected to, Mr Justice Ryan

simply comments at the foot of page 708; he sets

out the fact that matters had been debated in the Court of Criminal Appeal which were not raised in the grounds of appeal but were argued extensively at the beginning of the trial on the question of

admissibility of certain evidence and rulings had

been made on admissibility both then and in the

course of the trial. He then goes on to speak in

response to the complaints that we have made here,

really, lines 10 to 30 on page 709. All I can

say, Your Honour, is that some objections were taken

and some were not at trial.	Some of the matters I
have raised here were debated in the Court of

Criminal Appeal and some were not. But Mr Justice Dowsett

makes the comments that really the case, as he saw it

for a retrial, stood outside the grounds of appeal

that had been taken. None the less he saw a miscarriage

of justice just from his own perusal of record.

So we have, in substance embraced - - -

DAWSON J: He saw a wrong direction of law, did not he? A

failure to give a direction?

MR HANSON:  Failure to, yes. We have in substance embraced what His Honour has to say about the trial. He has

written a very long judgment and we adopt his reasoning

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in so far as it is	consistent with the submissions
we have put here.	A contrary view was taken by the
majority of course	and I think I have told
Your Honours where	the main topics are to be found
in the judgment of	Mr Justice Ryan.

DEANE J: Mr Hanson, I do not want to delay you, but as I

read His Honour Justice Dowsett's judgment, the

critical sentence is at page 774 where,at about

line 38, His Honour says:

The statements by the learned trial

Judge of the evidence on this critical

issue, when taken in conjunction with the

undue emphasis ..... lead me to the

conclusion.

Now, I may have missed something, but that is a

matter that you simply have not referred to?

MR HANSON:  We have not referred to that particular topic -

the directions on her admissions which His Honour

debates on the preceding page - - -

DEANE J: It is the preceding three or four pages.

MR HANSON:  Yes.

DEANE J: As I say, I am not suggesting you should do anything,

I am just pointing out to you, that as I followed your

submissions you have not raised that matter?

MR HANSON:  No, that is a matter that he conunences debating

at page 771.	I do not know that we can support
that, Your Honour.	A careful reading of the

statements that she made to the police, His Honour

probably read more into them then what they bear

but I do not know that we can support a complaint

of this level about that. In fact, His Honour

acknowledges himself at the foot of page 773, at

about line 55, when he has finished dealing with

that topic: 

In other circumstances, I would pay but

trifling regard to this point.

But he uses it, perhaps, as a makeweight.

DEANE J: That answers my query.

MR HANSON:  Your Honours, the basis of the appeal is the

decision of this Court in IRELAND that there has

been an accumulation of irregularities. That is

126 CLR 321 and I do not need to say anything more

than what is in the headnote at page 322:

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An aggregate of errors in the

conduct of a trial, none of which, if

it were the only error, would afford a

justification for ordering a new trial,

may properly lead to the conclusion

that the trial as a whole has miscarried

so that there should be an order for

a new trial.

Those are our submissions.

MASON CJ: Yes, thank you, Mr Hanson. Yes, Mr Nase?

MR NASE:  Yes, may it please the Court, I have. an outline of our

submission which I hand up to the Court. Perhaps

at the outset I should indicate that the argument

before the Court of Criminal Appeal was confined

to three specifi~ ~rounds of appeal,	namely, grounds
4, 10, 14 which appear in the notice

of evidence. And,indee~ before Your Honours

of appeal at page 692 of the application book.

ground 14 seems to be abandoned and ground 10 appears

not to have been argued. Ground 4 of the

original ground of appeal was areued before the

Court of Criminal Appeal. So that before the Court

of Criminal Appeal there was no argument addressed

to the admissibility of evidence. No challenge

at all was made to the admissibility of any of the

evidence admitted on the trial. And no argument

was presented along the lines that evidence that was

marginally admissible was admitted which created

some aura of prejudice or suspicion which had the

effect of causing the trial to miscarry.

Such an aura was not apparently detected by

counsel who argued the trial before the Court of

Criminal Appeal which, of course, included Mr Zillman

who appeared at the trial. If I could endeavour

now to turn to the specific grounds of appeal that

were argued and do my best to meet them.	The
admissibility of the medical evidence I have attempted

to deal with in paragraphs 13 and 14 of the outline

of submissions. Unfortunately, my attempt to

anticipate the point to be taken was not entirely

successful. As I understand the way Mr Hanson

developed his submission, the objection to Dr Atkinson's
evidence and the other doctors who gave evidence of

the degree of force necessary to cause the iniury

which led to the child's death, that the. objection
is not to the doctor's expertise, in a technical

sense, to provide the evidence, but rather to the

label "child abuse". The objection was not to the

substance of the evidence but to the label "child abuse".

There is, I would observe, no doubt that the evidence

was admissible to negative accident which was a

B1T2/6/SR	42	29/6/88
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live issue at the trial and the fact that it was an

issue was recorded by the learned judge at page 517,

lines 48 to 52, where he notes that counsel for the

applicant before the jury made lengthy submissions

on possible causes of the injury through falling from

a fence or falling on a piece of furniture or

what have you.	So that was an issue that was pressed
at the trial.

(Continued on page 44)

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MR NASE (continuing):  The trial judge, in my submission, went

out of his way to meet any possibility of prejudice

arising from the use of labels. At page 589, lines 20

to 23, when dealing with Dr Atkinson's evidence on this

aspect, His Honour, after concluding summarizing parts

of the doctor's evidence, said:

Well, remember ..... whatever basis of that is they are not all caused - they are not all involved with abused-baby cases -

and then, importantly -

You are the ones that have to decide on your evaluation on the whole of the evidence

whether that injury to the child resulted

from abuse by a person or not.

There was also - it may be convenient for me to mention

it at this point - a powerful general direction by

His Honour to the jury to disregard expressions of

opinion or belief by various witnesses in the course of

their evidence, and that appears at page 608 of the

summing up, lines 1 to 20. He said:

The view of the policemen as to whether this

accused woman was guilty or not guilty has got

nothing whatever to do with her guilt or

innocence. It is not their opinion that

counts, it is your opinion. You are the judges

of the facts, you look at all the evidence that

is placed before you, you just disregard

whatever beliefs the police officers may have

had, whatever beliefs the neighbours may have
had, whatever beliefs anybody else may have
had as to whether she did or did not

violently apply force to the child resulting

in its death. The only possible relevance -

said His Honour, turning it against those witnesses -

of beliefs they may have had goes to the

reliability of the evidence that they are giving. or may have been biased?

DAWSON J:	What does he mean by that, that they were biased,
MR NASE:	He seems to be suggesting that that is one use the

jury could make of the evidence, which is certainly a

favourable direction to the jury as far as the defence

are concerned; but it is, in my submission, a powerful

warning towards the end of his summing up, a powerful

general warning, not to pay attention to expressions of
belief that did creep into the trial from time to time

when witnesses gave their evidence despite attempts by

counsel to confine their evidence. Again, there is

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the passage that was referred to by

Your Honour Justice Dawson during argument at

page 621, lines 8 to 12, where His Honour said:

She is not on trial for being an unfit

mother and intellectually and physically

abusing him. She is on trial for applying

force to him violently which caused his death -

and so on.	Now, that completes my submission on the use
of the label "child abuse".	There was a second

different objection, as I understood Mr Hanson, to the

medical evidence. It was claimed that evidence of what

was called the indicia of child abuse should not have

been led. It seemed to he suggested that evidence

should not have been taken from Dr Mohr or Dr Cooke, both

of whom were consulted by the applicant and the deceased

child in the critical period of time leading up to the

death of the child. It was said the Crown could not make

out a connection between the evidence of indicia, which

Your Honours will recall from the passages was evidence

of bruising in different places and evidence of multiple
bruising, evidence of malnutrition, and there were said
to be some psychological pointers that were said to amount
to the indicia of child abuse.

That submission that that evidence ought not to have been led was coupled with a submission the evidence as

a whole presented the accused with a climate of prejudice

that was impossible for her to overcome during the course

of the trial. I pass over the point that this climate of

prejudice has only recently been detected before

this Court and was not detected when the appeal was

argued before the Court of Criminal Appeal by Mr Forno, QC

and Mr Zillman. I also pass over the fact that counsel

for the applicant placed great reliance upon this evidence

in his closing address to the jury. That reliance is

recorded by the trial judge at page 519, lines 35 to 50,

where His Honour said:

Of course there is evidence - and counsel have

addressed you at great length upon it - there

is evidence which you might think is

inconsistent with some of the evidence given

by the Crown witnesses. Counsel has referred

you to the evidence of Dr Cooke and his

examinations, and the evidence of Dr Mohr,

and also asked you to look at the evidence

of the neighbours and so on in the light of

that evidence -

that is that the evidence of Dr Cooke and Dr Mohr - and

their evidence was that they did not themselves form any

conclusion that the child was subjected to abuse

when the child was seen by them - was relied upon by the

applicant's counsel when addressing the jury as part of

a challenge to the direct evidence of the neighbours, and

BlT3/2/HS	29/6/88
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so forth.	That reliance, in my submission, demonstrates
its relevance.	Not all relevant evidence in a trial

necessarily advances the Crown case, although during the

course of the trial an attempt was made by the Crown to

link the evidence up, evidence of bruising was led from

the social acquaintances, there was an attempt to link up
the evidence relating to the volunteering of the statement
that "I'm a naughty boy" but,whether that succeeded or

not, the evidence, in my dUbmission, was admissible.

If I could advance that argument by analogy: a good

example is provided by medical evidence of an examination

of a complainant in a rape case. The Crown invariably

leads, if it is possible to do so, the results of a

medical examination of the complainant's body.

Sometimes the results may advance the Crown case

appreciably, sometimes it may not, but the relevance of
the state of the complainant's body is always a relevant
fact on a charge of rape. Here the critical period was
a period of some six weeks leading up to the child's
death. There was evidence from the applicant's circle of
acquaintances in Brisbane that there was a build-up of

tensions between herself and the man with whom she was

living, the child's father, and the child. There was

evidence of changes that were given by those witnesses.

There was evidence from the neighbours that the child was

actually subjected to violence at the hands of the
applicant.

During that period the child was, on a number of

occasions, taken to see doctors for one reason or another.

There was an injury to the ear drum- - it was the initial

reason for the first visit. The medical evidence was

inconclusive as to whether that was caused by trauma or
disease, but the Crown called all of the doctors whom the

child saw within that critical period and one would expect that if the Crown had not called Dr Mohr and Dr Cooke that

defence counsel would be wanting to know why they were

not being called when their evidence was within the trial

of use to the defence.	That concludes my submissions
on the medical evidence.

Point 11 in my outline of submissions does

successfully anticipate a criticism that was foreshadowed

in the affidavit in support of special leave. The

complaint is that certain descriptions of the child's

screams, during certain incidents, ought not to have been

given in evidence, and if I can briefly go back over the

examples given by Mr Hanson:  Mrs Miller was one

example at page 440,when she was asked to describe the

child's screams, she said:

Like pain - in pain.

So she used a simile when endeavouring to describe the

scream that she was hearing through the walls.

Mrs Hawes, at page 364, when asked to describe the voice

that she heard screaming, said:

46

B1T3/3/HS	29/6/88
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the child crying in pain -

in an effort to decribe what she was hearing. So she

used a metaphor. Mr Thomassen, at page 351, when asked

to describe the screams said, in effect, that they were:

beyond a normal cry or scream - that you

would hear from a child.

So he resorted to some sort of explanation to describe the

scream that he heard. Then the next passage was Mr Hawes,

and he gave - in a passage I intended to read but have lost

the reference to - when asked to describe the scream he gave

an analogy to an occasion when his own child was screaming
in pain and he used that analogy to attempt to describe the

scream that he was hearing.

DAWSON J:  In fact, all of this is opinion evidence, is not it,

given by the witnesses?

MR NASE:  It is the sort of opinion evidence that the Court

regularly receives on the ground of necessity.

DAWSON J: 

Of course it does, and it is really largely a matter

for the discretion of the trial judge as to whether he
receives the witnesses evidence as to anger, fear, speed,

heat, cold, whatever it might be.

MR NASE:  Yes. At the foot of point 11 in the outline of

submissions I have collected a reference to Cross, a

reference to Wigmore and to two Victorian cases where this
sort of evidence is said to be admitted on the basis of

necessity, and the impossibility of really separating

opinion from fact in giving this sort of testimony.

Now, that completes my submissions on that ground which

was a major basis, as I understand it, of what was said

to be the creation of an aura of suspicion during the

course of the trial.

The second complaint was that the evidence of the

applicant's treatment of the child on various social

occasions leading up to the child's death ought not to have

been received. This was evidence given by the circle of

people with whom the applicant and the child's father

moved. Most of the evidence of the witnesses was directed

towards establishing various aspects of the relationship

between the applicant and the child. Most of the evidence

that each of the witnesses gave had other evidentiary

purposes. To some she spoke of her unhappiness at being

pregnant, to others she spoke of her suspicion that the

child's father was having an affair with someone at his

work. She spoke to someone else about being neglected

by him and being left to look after the child, but in the

course of their evidence they were asked about their

observations of the applicant and the child on the various

social occasions that they came together.

DAWSON J:	It would be fair to say, would not it - and I have
BlT3/4/HS	29/6/88
Bourke	47

not read the whole of the evidence, so it may not be fair

to say it - but the impression I get is that it would be
fair to say that the witnesses were biased in the sense

that they had reached their own conclusions on the matter.

What do you say about that?	First of all, is there any
justification for saying that?

MR NASE:  It does involve a very careful reading of the evidence

and perhaps that is why His Honour gave the direction

that - - -

DAWSON J:  If that was, what do you say?

MR NASE:  It really does not affect the matter at all. It is

entirely -

DAWSON J:  It is a matter for cross-examination and the judge's

charge, yes.

MR NASE:  And for the jury to assess the evidence. I must

say that this is exactly the sort of evidence that a jury

is equipped to determine. Looking after children is a

very common human experience and when one has a jury one

would expect that they would be able to draw upon their

own evidence-and common sense to work their way through

the evidence that was led before them and His Honour,

as I have said, gave a very powerful direction warning the

jury to disregard any belief that they might have

discerned in the various witnesses that were called.

His Honour, in my submission, gave a number of very

careful directions to the jury on the use that the jury

should make or could make of the evidence. The first

appears at page 521, lines 20 to 34, and if I read it:

The next category of evidence is what social

acquaintances of the accused and the child of

this little family observed, the accused's

attitude towards the child in company when she

went off to the barbecues and so on. What

they observed the relationship between the

accused and the child to be there -

and then His Honour said:

You might think it is not as important as the

first category of evidence -

that is, the evidence of direct violence -

but it is part of the whole picture that the

Crown creates.

DAWSON J:	The first category was the medical evidence.
MR NASE:	I think the first category His Honour dealt with was

the evidence of the neighbours, as I recall it.

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DAWSON J:	I see, yes.
MR NASE:	The argument did not follow - it will take me a

second to check it.

DAWSON J:  I think you are probably right, yes. It is what the

neighbours observed of the accused's behaviour towards

the child, the first category.

MR NASE:  Yes, the first category was the evidence of the

neighbours, those who heard the screaming and the crying,

and so forth. That was the direct evidence of violence

to the child. So that was His Honour's first direction.

Then his next direction is at page 547 at lines 10 to 26 when His Honour said, before dealing with those witnesses:

I think it fair to say, the most the Crown can get from these witnesses is that the accused

appeared to them to be strict, overly strict

with the child. Some of them said they saw

some bruises and so on and the Crown relies

upon that. You do not disregard it, but

remember that the relevance of all this

evidence from these people, all this evidence

of the social acquaintances, the second

category, as with the next-door neighbours, is

to persuade you that the accused bore an animosity
towards the child and was in the habit of

ill-treating him at this period of time.

Then there is the passage I have already referred to at

page 608, lines 1 to 20, and the passage at page 621,

lines 8 to 12, that I have already mentioned to the Court.

Now, in the course of submission, Particular reference was made by one witness' testimony .relating to the occasion

involving an ice cream. It was said that it was no

more than a petty domestic incident. In the

Court of Criminal Appeal the majority in their judgment

acknowledged some of the evidence may have been somewhat

ambiguous or of relatively slight importance but

the court did not reach the conclusion that the evidence,

on that account, was either inadmissible or led to the

trial miscarrying and this, in my submission, was a view
the court was entitled to form and that nothing has emerged

during the argument before Your Honours to justify

this Court substituting its own view, assuming the Court

has one, for that of the Court of Criminal Appeal, and it

is perhaps of significance in this context that.no

argument was advanced to the Court of Criminal Appeal, at

the risk of repeating myself, that the trial miscarried because evidence of this sort was led which led to what

was called an aura of prejudice or suspicion against the

applicant.

Now that completes my submissions, and they are

necessarily somewhat general, upon the evidence of the

neighbours and the evidence of the circle of friends who

gave evidence as to the conduct of the applicant with the

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child on various social occasions. Following Mr Hanson's

submission, I now move to the particular criticisms of

the summing up. It would appear that, for the purposes

of this application, someone has spent some time combing

very carefully through the summing up and comparing it in

great detail with the evidence led at the trial and has

come up with some seven alleged discrepancies.

The summing up was a very long one. It extends over

124 pages of the summing up. The result of the applicant's

labours has been to reveal what is said to be seven

discrepancies. Issue was taken with almost every one

of those alleged discrepancies and the only course that I

can follow at this point is to go over them one by one. Before I do so, I could make the additional submission

that none of these matters was of sufficient significance

to warrant an application by counsel at the trial for a

redirection, nor was the point taken in any of the

documentation in applying for special leave.

The first discrepancy that was relied upon relates to

a passage in the summing up at page 581. His Honour

was summarizing evidence given by Dr Mohr and at about

line 31, in summarizing the doctor's evidence,

His Honour said:

The child, according to her, appeared tired.

He volunteered to her that he had been naughty.

She said it was because the child told her he

had been naughty that she arranged for a

paediatrician to see him.

Now, without wishing to be pedantic, the passage is a correct

summary of the evidence given by the doctor at page 302,

lines 43 to 46. The complaint is that the doctor had

given, in the course of her evidence in-chief at page 294,

lines 28 to about 38, a different explanation for

referring the child on. The doctor said:

At that stage as I felt it was, as I said before, seriously disrupting the family life,

and as well the other clinical finding that

I noted was that Leigh did appear to be very

tired. He had dark circles under his eyes

and at that stage I felt the problem was a

matter that needed to be sorted out there and

then. I hadn't elicited what I felt was any

good reason for the sleeping pattern changing,

and that's why I referred him to a specialist

who was trained as a paediatrician as well as

specialising in behavioural problems as well.

Now, the doctor, in a passage at page 302, in her answer:

Not as happy as I had seen him. He appeared

tired, he volunteered he had been naughty.

Certainly, as I said, that is why I arranged a

paediatrician that afternoon.

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So the references to"naughty': I would assume as much

endeavouring to reconcile the doctor's evidence, are

not significantly different although,perhaps,expressed

rather more ambiguously at page 302, the passage

summarized by the learned judge. In her evidence

in-chief she said because the child was tired and had

behavioural problems that was why she referred him on to

a paediatrician. At page 302,she said:

He appeared tired, he volunteered he had

been naughty -

if we equate that with the behavioural problems then her

next sentence: -

Certainly, as I said, that is why I arranged

a paediatrician that afternoon -

is not, in my submission, significantly different. The

other point that was said to be a discrepancy was the

evidence elicited by the Crown prosecutor that although the

doctor said the child volunteered he had been naughty, it

may have been that, as the doctor said at page 303:

He agreed when it was told to me that he

was naughty, he said yes, he had been naughty.

So there is a discrepancy of a sort there but,in my

submission, if there is a difference it was not a difference

that had any possible significance within the trial. The

next discrepancy appears from the learned judge's summing

up at page 580. The point here is that when His Honour

said, at page 580, at about lines35 to 40, but the doctor:

had no reason, I think, from what the
discussion was that had taken place between her
and the accused, to suspect that there was child

abuse in this case.

The point made is that the doctor, in her evidence, said

that she both examined the child and spoke to the parent

and it was on the combined sources of information that she
did not suspect that this was a child abuse case.	The

complaint was that His Honour limited the basis for not

suspecting child abuse to discussing matters with the

applicant, but without being nit-picking, His Honour did

use the words "I think" in the passage at line 38, so that

His Honour said, "she had no reason, I think"; so that

His Honour's summary was itself a qualified one and

His Honour elsewhere reminded the jury that the doctor had

examined the child.

(Continued on page 52)

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MR NASE (continuing): That was at page 580, line 10. So,

it was put before the jury, on the same page,

shortly before the passage, that on that occasion

the child had been examined by her. The alleged

discrepancy, in my submission, again is one which has absolutely no significance within the context of the trial.

The next point, where it was said there was

a discrepancy, or misdirection, is at page 574
of the surrnning up when it was said that His Honour

invited the jury to speculate that the examination

of the doctors Mohr and Cooke were limited in time.

Your Honours may recall the passage. It was a

longish passage in which His Honour discussed their

evidence. In my submission, this is not so nruch

a misstatement as there is no misstatement of fact

in the sunnning up, but it is more a complaint that

His Honour made a connnent. But, in defence of

His Honour, His Honour frankly acknowledged that

his remark,that they may not have had much time

with the child, was a corrnnent. So, the jury could

not have been misled, either as to the fact or as

to the judge's connnent. So there is, in my

submission, nothing at all in this alleged

discrepancy. It is firstly not a discrepancy; it

is a complaint that relates really to a connnent

by the judge that the jury might consider whether

the doctor concerned spent very nruch time with the

child and it was exposed to the jury by the judge

as a connnent, and His Honour also acknowledged

frankly to the jury that there was no evidence on

the point. In those circumstances there is, in my

submission, nothing in that alleged discrepancy.

The next passage I might deal with is at

page 545 and again this is not an example of a

discrepancy between any matter of fact. This

relates to a passage in Mrs Miller's testimony. "During

the course of her cross-examination she was

referred to a passage in her statement!' The first

complaint nade is that His Honour read out that

passage but in fact she, in the course of her

testimony,asserted that what was in the statement
that was read to her was true, so it became part

of her testimony. At page 456, .line 32',

when.she was cross-examined about the passage that

was put to her, she said:

Everything I have said here is true.

So the passage that was put to her became part of her testimony before the jury and the jury could

act upon it. The complaint is therefore not that

His Honour was guilty of misdirection in fact, but

that His Honour did not repeat a particular submission

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on the facts to the jury, that is, that in the

statement there was no reference to slaps. I think

that was the point, I am not quite sure, but it

was said that there was a particular submission

on the facts that was not repeated to the jury by

the learned judge. Now, that is a different

complaint from a complaint that the jury -i;·vas

misdirected in fact on the substance of the evidence

by the judge.

The next passage dealt with was at page 537. His Honour was summarizing Mr Thomassen's evidence.

Issue was taken with the complaint that there was

a misdirection of fact. The witness, in his

evidence gave evidence of three - sorry, in her

evidence, gave evidence of three episodes. Those

same three episodes were summarized by the learned

judge commencing on page 537, line 10. The first

episode was summarized between lines 10 and 55.	The
second episode was summarized between lines 58,
at the bottom of page 537 and about line 5 or 6 at
the top of page 538.	The third episode - and it

is perfectly clear that only three episodes are

being referred to - is summarized between lines 9

and about 20, or 19. So that His Honour summarized

those three episodes and that reflects her testimony
that there were three episodes on which she heard

incidents of screaming.

If I could now return to the first episode

summarized. Her evidence was that the incident

occurred over a few minutes. The complaint made

here refers to a word at about line 45 on page 537.

It is said that His Honour said:

It happened over a few months. She said

she thought that occurred in the early

afternoons -

In her testimony on the relevant page she said

that it:

happened in over a few minutes -

and she referred to it occurred in the "early

afternoon". In my submission, either His Honour
made a slip of the tongue in using the word "months"

instead of "minutes", or there was a typing mistake

in His Honour's summing up.

The whole context, however, makes it clear

that there were only three separate episodes.
His Honour separated the three episodes out quite

carefully for the jury and they could really not

have been in any confusion at all that there were

only three episodes to which she deposed.

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If I could move to the next complaint? That

relates to a passage at page 531. The complaint

is that His Honour left the jury with the impression

that incidents of screaming occurred quite frequently.

The complaint is that he only gave evidence about

two occasions that he considered to be out of the

ordinary and the applicant points to her testimony

at page 229, lines 1 to 10. But that, in my

submission, does not fairly surmnarize his evidence

at all - Mr Hawes' evidence at all. It is clear

that from his evidence the incidents occurred

throughout the period, but of the incidents that

occurred throughout the period there were only two

that he specifically remembered. That appears both

in-chief and in re-examination: in-chief at

page 225, lines 1 to 20. He said, at about line 3:

No, I heard the child being questioned and

slapped on a few - on several occasions, but the

only two instances that I can remember
specifically were the one instance with the
swimming pool and a later instance, but I do
remember earlier on the child being smacked, but
I didn't place too much notice on it because

I have children - people - parents do smack

their children in the area -

and so on -

You tend not to take too much notice.

And then, closer to line 20, he was asked:

If you are looking at a weekly period in the period we are concerned with, could you tell the occurrence level, whether it was once or

twice a week, or more or less?---I would say

it was almost on a daily basis.

Now, that accords with His Honour's recollection and

that is confirmed by a re-examination at page 235,

especially at line 56. The Crown prosecutor attempted

to re-examine on the point, saying:	Remember my learned friend referred to the	specific episodes that you have mentioned;
were there any other episodes apart-----

There was an objection by Mr Zillman. His Honour

said:

You have dealt with that.

The Crown prosecutor said i·

I wondered to what extent he was qualifying it,

but I will read the transcript.	I have no
further questions.

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His Honour asked some further questions to try

and clear the matter up, as he was entitled to.

Then His Honour said, at about line 55, after

dealing with the two occasions that he could specifically

identify: ·

Are they the only two occasions you heard that?

He said:

They are the two I can remember specifically.

So, in my submission, it is perfectly clear that the

effect of his evidence was that these screaming

episodes occurred throughout the relevant period

of time, but of all of the episodes there were only

two that he could specifically relate to incidents

that he could now recall. So, in my submission,

His Honour's summary·· of the evidence was quite

accurate.

The last criticism relates to a passage at

535. 'Ihis-is evidence given by Mr Josef Thomassen,

sunrrnarized by His Honour. The complaint is that,

in a passage at line 29, where His Honour said:

"Now and then you would hear the boy crying

and screaming and together with the raised

voices, a little smack."

Now, it is correct to say that the witness, in

giving his testimony, did not specifically depose

to hearing smacks. He did mention the - he did

refer to the phrase "a little smack" at page 351,

line 17, when describing the early episodes before

he started becoming concerned at prolonged screaming.

Looking at the structure of Mr Thomassen's evidence, at page 351 he refers, from lineslO to 20,

to the normal sorts of incidents that one hears
where a child is smacked and cries.	Then at line 20
he said:

Then what happened?-- Well, some of the

screaming of the child - well, after a while it

started to concern me because I-----

The Crown prosecutor attempted to confine him to

description, saying:

Describe the screaming?

And then he conrrnenced to give his evidence about

prolonged screaming.

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It is clear from that passage that the reference

to "a little smack", that the witness was not saying

that he heard a smack, but he was talking generally

about what occurs in the neighbourhood and he was

speaking about a time before he started hearing

the prolonged screaming. Now, His Honour, in his

summary, adopts the same structure. Turning

back to the surrrrnary of Mr Thomassen's evidence at

page 535, His Honour said, surrrrnarizing his evidence:

"Now and then you would hear the boy crying

and screaming and together with the raised

voices, a little smack."

And then, going on to line 30:

He said that it started to concern him. And His Honour gave the jury a warning:

Now, you arenot worried about whether it

concerned him or not. That is one way of

him saying it was screaming out of the

ordinary.	He went on and explained what
he meant in this way.	You know, if you smack

a childa:t that age they cry all right, but for

a child to start to scream, really a screeching

scream, there would have to be violence

happening to the child. He said it was a

screeching scream, a very pronounced scream.

So, His Honour has imposed the same basic structure upon the evidence. But the important point, in my

submission, is that His Honour, at two places,

put the evidence - put his summary upon an even

keel again.

Firstly, at page 535 there is a passage at

lines59 and 60 where His Honour said:

He said he couldn't recollect other noises,

just the screaming.

And at page 536, lines 50 to 55, where His Honour

said, summarizing his evidence:

He said he couldn't say on that occasion,

this is Hr. Thomassen - he heard any

smacking noises at all, in fact, he said

he couldn't remember hearing any noise.

He did not notice any noise of that sort.

So, in my submission, although His Honour in

summarizing the evidence got into his summary the

reference to "a little smack" that perhaps should

not have been there, it was clear from the structure

of the summary that that related to something

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that antedated the prolonged screaming

about which he gave evidence, and His Honour, at

two other places in the summary, referred to the

fact that the witness did not hear other noises;

that he just heard screaming. That, in my submission,

effectively cured the complaint that stemmed from

the phrase, "a little smack", which unfortunately

appears in the summary.

Those are all of the so-called discrepancies

relied upon. In my submission, in a very long

summing up, and given the nature of each of them,

they could not have possibly affected the outcome
of the trial and some comfort may be drawn from the
fact that counsel at the trial did not consider

any of the matters necessitated an application for

a redirection.

Now, if I could move to the complaint that

His Honour should have directed the jury on

consciousness of guilt, that is dealt with in

my outline of submissions at paragraphs 2, 3, 4.
The members of the Court of Criminal Appeal did

not consider a direction was necessary because of their

view that there was no significant false denial that

would attract the direction. All of Their Honours

were in agreement on that point, and put the

references.

That approach also accorded with the approach taken by the trial judge who presented to the jury

any untruths by the applicant as not possessing

any positive evidentiary value of their own. The

point about her interviews with the police is that

they contain statements that were potentially

exculpatory and statements that were potentially

inculpatory and, in my submission, the approach

that it is clear the Crown prosecutor adopted in

his submission to the jury, and based upon his

passage at page 637 where he said:

I would refer to the matter in this way;

essentially, what had occurred was that

the accused had then changed her story - they

look at it in the context of other evidence

and so on.

The submission, as I would understand it to be from

that passage, was that what was put to the jury,

that it was not a simple case where there were

exculpatory and inculpatory statements intermingled
together, that what happened was that there was
to some extent a change in her account and for

that reason the jury should accept her admissions,

except the inculpatory statements, rather than

weigh them equally with the exculpatory statements

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and then in the context of the evidence, use the

inculpatory statements to provide a measure of

confirmation of the accuracy of some of the

evidence given by the neighbours. That is to

say, in her interviews, there were places where

she denied screaming at the child and there were,

towards the end, places where she admitted screaming

and hitting the child. In my submission, the

Crown was entitled to point to her changing account,

to invite the jury to reject the exculpatory

statements and accept the inculpatory statements
and, in the context of the evidence, use it to
provide some measure of confirmation of the
accuracy of other evidence given in the trial.

In my submission, that does not involve putting

to the jury that a specific piece of evidence,

a specific lie or untruth, has, of its own

value, positive evidentiary force which would,
of course, attract the direction spoken about in
the cases referred to by Mr Hanson.

It was the view of the Court of Criminal Appeal, and of the trial judge, that there was

no specific lie of such significance that it.was

capable of being regarded as a lie which stennned
from a consciousness of guilt and for that reason

such a direction wasnot necessary.

It is perhaps significant~ to look at the

way in which the trial judge himself in the course
of his sunnning up dealt with the evidence. There are

a number of passages referred to in paragraph 3 of

my outline of submissions. There is one passage

in particular to which I would refer the Court and

that.isat page 609, lines 50 to 60. His Honour

said:

Well, membersof the jury, remember the

circumstances in which the accused was

being question -

after summarizing an interview.	Then His Honour
said:

She may have fibbed a bit. It is only a

small aspect but it has been touched upon

and dealt with by counsel, but that is what

she said in that part of the interview. - So, His Honour down played and minimized any

untrue statements by her in the record of interview.

His Honour's general approach is perhaps indicated

by a passage at page 607, lines 2 to 41. I suppose

the passage really connnences at the bottom of page 606:

Secondly, statements that she made contain

matters which you may regard as exculpatory -

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that is matters that tend to show she did
not commit the offence and there are matters

in it that you may regard as inculpatory -

that is matters that the Crown relies on as

facts or circumstances you may conclude

assist you to the conclusion she did commit

the offence.

His Honour said:

The Crown has put all that material before you which is put there on this basis -

if you find something in the material which you

think exculpates her or tends to show she did not commit the offence, you can rely upon it. The Crown puts the whole of it before you, you

can draw inferences in favour of the accused

from the statement, you can draw inferences

against the accused from the statement. It

does rot mean you have got to accept the who le

of it. You can accept some of it, you can

reject some of it, you can look at it, you

can say, 1'We think she would not have said

that if it had not bee true", or, you can

say, "She might have said it but it might not

have been true, she might have said it because

she was upset and so on." Alternatively, you

can say, "She said these things, we think she

was just trying to extricate herself from the

problem she had but we do not accept it", or,
you can say, "Well, she said that in those

circumstances, we think that might be correct."

And when His Honour came to deal with some of the

detailed submissions, one: gets another insight into

the way in which the jury was told to use the

evidence. At page 614, lines 26 to 40, is an

example, in my submission, of the use of the

evidence that I have submitted occurred.

The argument, as I understand it, is that

because of some reliance upon a changing account

by the Crown :prosecutor an issue had been made
of untrue statements in the record of interview,
but that, in my submission, really neglects the
whole of the directions given to the jury by the

learned judge and the use that he told the jury

it could make of the evidence. It also presupposes

the question about what issue the Crown made.

In my submission, from the passage at page 637

by the Crown prosecutor, it is clear that the
issue that was made by the Crown related to
discriminating between the exculpatory parts of
the statement and the inculpatory parts of the
statement, and in the context of the evidence,
the support one could gain from the inculpatory

statements for the evidence given in the trial.

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In my submission, the warnings and approach

of His Honour were sufficient. The comment about

fibbing minimized any possible significance of the

evidence in the jury's eyes. The fibbing, if I

may put it, was not presented as having any

positive probative value of its own which might

otherwise have attracted such a direction. Now,

those are my submissions on that aspect.

(Continued on page 61)

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MR NASE (continuing): One of the final submissions related

to the comment in the sunn:ning up that the jury might,

in effect, do what they would with any view they might

imagine the trial judge had formed of the case.

If I could repeat the submissions made in

paragraphs 9 and 10 of my outline of submissions. I

do not wish to add to those submissions. There were

a number of minor matters that were raised by

Mr Hanson towards the end of his address. Reference

was made to a passage in Justice Dowsett's judgment at page 753 of the application book where the Crown

was criticized for creating issues. Now, the comment

must be made that none of these matters were argued

before the Court of Criminal Appeal, so that His Honour
did not have the benefit of any argument as to the
basis upon which particular pieces of evidence were

put in by the Crown.

Now, the purpose in leading evidence about whether

the child was steady on its feet or all of those other

matters were related to one or other issue, for example,

whether the child was steady on its feet which attracted

the learned judge's criticisms was part of the evidence

relied upon to negative "accident:'. And there is a passage

in His Honour's summing up where His Honour records

that the applicant for the appellant - sorry, counsel
for the applicant before the jury addressed lengthy

submissions on accidental causes of the injury the

child suffered and referred to falling and so forth,

and that passage appears at page 517, line 50. His Honour

refers to the fact that counsel before the jury addressed

them at some length on possible accidental causes of

the injury. So, in those circumstances, it isnot
surprising that the Crown, as part of its endeavour to
negative "accident", when other witnesses were in the

witness box, asked them questions about whether the child

was steady on its feet and so forth.

There was a comment about the police officer's

observations about the demeanour of the applicant during

the course of interviews. The evidence, in my submission,

was admissible; its weight was a matter for the jury,

and Your Honours will recall the very powerful warning

that His Honour gave the jury about not taking any account

at all of any belief they may think the police officer

held as to her guilt or innocence.

Finally, there was another minor point sought to be

made of a passage in Mr Brown's evidence where she was,

apparently, reluctant to wait to be interviewed by a

social worker when the child was first admitted to

hospital but wanted to go. One might acknowledge that

the evidence had, perhaps, little probative value but

it had some probative value, in my submission, and by itself, it having some probative value, no real point

can be made of it on behalf of the applicant.	That really
takes me to the conclusion of my submissions.

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MASON CJ: Yes, thank you, Mr Nase. Mr Hanson.

MR HANSON:  We have nothing in reply, Your Honour.

MASON CJ: Yes. Thank you, Mr Hanson. The Court will adjourn

for a short period of time to consider the course that

it will take in this matter.

AT 12.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.12 PM:

MASON CJ: What I am about to say expresses the view of a

majority of the Court. This application for special
leave to appeal seeks to establish that there was a

miscarriage of justice arising from the reception of

inadmissible evidence and evidence which, though

marginally admissible, was so highly prejudicial to
the accused that it created a powerful climate of

suspicion of guilt.

The evidence now said to be inadmissible or highly

prejudicial was received at the trial without objection

from counsel for the accused. What is more, the case of

miscarriage based on the reception of evidence which

should not have been received was not argued in the

Court of Criminal Appeal.

The very nature of the Crown case, resting as it

did on circumstantial evidence from which the jury was

invited to draw relevant inferences, involved some risk

of prejudice to the accused but that risk of prejudice

was necessarily inherent in the nature of the case and

the admissible evidence by which the Crown sought to

establish the accused's guilt. It was for the trial

judge, by giving appropriate directions, to ensure that the jury's attention was directed to the correct issues and not diverted to extraneous considerations.

In the light of the way in which the trial was

conducted and the directions actually given to the jury,

we are not persuaded that a miscarriage of justice has

been established.

One question of general principle to which specific

reference should be made arises from a comment made by

the learned trial judge at an early stage of his final

directions to the jury. His Honour said:

You may think that I have some view one way or

the other on the ultimate question as to

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whether the accused's guilt has been established,

and if you think that I have got some view one

way or the other, then you can give that such

weight as you think appropriate.

Viewed in isolation, that direction was plainly objectionable,

if and to the extent that it might be understood as inviting

or encouraging the jury to act on or to give weight to any
view they might attribute to His Honour on the ultimate

question as to whether the accused's guilt had been

established (cf RV PERERA, (1986) 1 Qd R 221, at p. 220).

His Honour's statement was, however, immediately followed

by the following remarks:

It is not my function or obligation to consider the question of -

the accused's -

guilt. It is yours. It is my function only to

tell you what the rules are and to try to assist

you by taking you to what seem to me to be some

of the important aspects of the evidence.

Subsequently, in the summing up, the learned trial judge

stressed to the jury that it was their function to decide

the case on the evidence before them. At no part of the

summing up did His Honour actually express any view about

the accused's guilt or innocence.

While this aspect of the case has caused us some

concern, we have come to the conclusion that in the
context of the whole summing up the jury would not have been
misled or diverted from the proper performance of their
function by the above-mentioned comment of the learned trial
judge. In that regard, we agree with the following comments

of Mr Justice Dowsett in his judgment in the Court of

Criminal Appeal. His Honour said:

In those circumstances, I am unable to come to the conclusion that taking the summing up as a

whole, it could leave the jury with the mistaken

opinion as to guilt or innocence as a relevant	impression that they were to treat the Judge's
factor for their consideration. In theory the
learned Judge's observation ... may be incorrect, but I do not think that it is likely to any
degree that the jury would have been misled in
such a way as to cause them to substitute
his Honour's views for their own or otherwise treat those views as relevant to their task.
In the context of the conclusions that we have already

stated we do not consider that the applicant's	submissions
give rise to any question of general principle	which would
justify the grant of special leave to appeal.	The
application is therefore refused.

AT 12.17 PM THE MATTER WAS ADJOURNED SINE DIE

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