Corrigan v The Queen

[1999] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 1998

B e t w e e n -

KENNETH JOHN CORRIGAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 10.53 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   May it please the Court, I appear with MR S.F. STRETTON, for the applicant.  (instructed by White Berman)

MS W.J. ABRAHAM, QC:   I appear with MS S. McDONALD, for the respondent.  instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ:   Thank you.

MR ABBOTT:   In this application, the applicant has raised three issues set out in the application book at pages 69 to 70 and I wish to speak to the second and third of those matters, the first being the status of sworn evidence of the applicant in a previous trial.  For that we rely on our written outline.  The second matter, what constitutes a Longman warning?  We put it on this basis, does mere comment amount to a Longman warning?  And the third matter, the evidence of the previous non-chargeable incident and the use that the prosecution made of evidence – that evidence and the cross‑examination of the applicant at a previous hearing in respect of that previous incident.

The special leave point which we particular emphasise in this matter is that in this case the South Australia Court of Criminal Appeal have held that what is essentially mere comment by the trial judge amounts to a Longman warning.  In other States, primarily Victoria, in terms of recent judicial pronouncement, much more would be required and we say much more is required by the case of Longman and we say that on any proper applicant of Longman what was said in this case by the learned trial judge was comment and not warning and the High Court in Longman’s Case specifically distinguished between comment, on the one hand, which required balancing, and a warning, on the other hand, which did not. 

In our submission, at application book 56 the learned Chief Justice who gave the judgment of the Court of Criminal Appeal appeared to confuse, in our respectful submission, “comment” with “warning”.  He said at line 15:

The effect of the decision of the High Court in Longman is that the nature and strength of the warning that is required, assuming that one is required in the particular circumstances of the case, will itself depend upon the circumstances of the case.  There may well be matters that require no more than an appropriate comment from the judge to remind the jury of considerations which are relevant to the evaluation of the evidence.  On the other hand, particular circumstances, or the combined effect of a number of matters, may call for a stronger warning, and in particular for a warning in the traditional terms.

In our respectful submission, a warning is not merely a stronger comment and a comment is not merely ‑ ‑ ‑

GLEESON CJ:   The next paragraph is important, is it not, and in particular what the Chief Justice said at lines 31 and following?

MR ABBOTT:   Certainly.  Yes.  I have no criticism to make that a warning should be tailored to the circumstances of the case, but if one goes to line 40 on this ‑ ‑ ‑

GLEESON CJ:   What I had in mind was the sentence saying:

The ultimate question is whether the matters requiring caution are adequately brought to the attention of the jury.

MR ABBOTT:   Yes, and I accept that he properly states the test propounded in Longman, the warning must be such as to:

avoid a perceptible risk of miscarriage of justice –

But, he went on to say, at line 40:

It must also be borne in mind that, if a warning is to be given, however that warning may be expressed it should not be unbalanced.  It is appropriate for the judge to put the warning in context.  It is appropriate for the judge, when dealing with the matters that give rise to the need for a warning, to deal at the same time with possible explanations or answers.

When one links that with what he said at line 15 it is our submission that if the circumstances of the case require a warning to be given, then it is not a question of balancing a warning with some possible explanation or answer.  If the circumstances arise requiring a warning to be given, as he found on line 1 at application book 57, then the warning has to be given and it has to be “adequate” to avoid a perceptual risk of miscarriage of justice.

McHUGH J:   But, Mr Abbott, really, when you look at what the judge did in this case, first of all, he told them that, “They would need to give special and careful scrutiny to the complainant’s evidence and to decide to what extent they could rely on it.”  He then took them to some seven topics about “Her age and her maturity”; her intoxication; her failure to make complaint as matters which the jury might think they could not accept her evidence on; the possibility that she mistakenly believed the offence had occurred because of a “fantasy or dream”, the possibility she gave false evidence to get your client into trouble or to get attention for herself and the absence of any significant support for allegation.  Then he told them, as well, that they would have to place a very high degree of reliance upon her credibility and reliability to find the case made out against your client.  What more can the trial judge really do?

MR ABBOTT:   Well, tell them what the High Court said in Longman’s Case, that is, to warn ‑ ‑ ‑

GLEESON CJ:   Yes, say something the trial counsel could pick up in his address to the jury, “The judge has told you it is dangerous to convict”.  We  know why trial counsel like judges to actually use those words but they do not have to, do they?

MR ABBOTT:   We would say that – I cannot contend that exactly any particular word must be uttered to make a Longman warning.  What I do say is that as Justice Ormiston said in Jolly’s Case at page 4 of the unreported version that we have given the Court in our book:

It may be conceded that no precise formula is required to be used by a trial judge in giving what has come to be known as a “Longman warning”, but unless there be unusual circumstances, the necessary direction ought ordinarily to express or connote that it would be “dangerous” or “unsafe” to convict on the evidence of the complainant alone –

We say that has not happened in this case and if one looks at what the trial judge said at page 13 of the application book what he said was – and it starts effectively at line 3 when he is dealing with the December 1996 incident – far from telling the jury to disregard the impermissible sections of that evidence, he says, at line 17, apropos of that incident:

What, if anything you infer from it, is entirely for you.

Then, he goes on to deliver what we submit is not a Longman warning when he says:

Obviously if you are to be satisfied about the offences and to convict, you would have to place very considerable weight on the evidence of K…..that the acts of sexual intercourse which she described each did occur.  You will need to give special and careful scrutiny to her evidence and to decide to what extent, if any, you can rely upon it.

Now, we say that misses out in a major respect.  It does not tell the jury that there are unusual circumstances requiring in this particular case a specific warning and, in our submission, what he then went on to do by reference to eight matters – true it is that some of them might be regarded as perhaps favourable to the applicant but may I take the Court to page 15 of the application book when he says at line 10:

There is little, if any, substantiation for her allegations of sexual acts by the accused in the other evidence.  Depending on your view of the evidence, there may be some slight indirect support for her allegations if you find sexual overtones proved in the actions of the accused at the 1996 birthday party, and/or from her recoil from physical contact with Klaus in the early afternoon of 8 June.

That is a reference to after the alleged events described by the complainant she refused or recoiled from contact from another man who called around that afternoon.  He then talks about that latter point but then he says at line 19:

Whether you find that there is any support or substantiation or corroboration for the evidence of the accused on this central issue of the sexual intercourse by the accused is entirely for you.

So, true it is, there are some things that might be said to be in favour of the applicant but to say as the trial judge has done at line 20 – tell the jury that there must be some “support or substantiation or corroboration for the evidence of the accused” we would say destroys the beneficial effect of anything that is done in the recitation of those eight paragraphs.  Moreover, having told the jury about whether there is any substantiation or corroboration for the evidence of the accused, he then goes on to say:

If you do not find that there is any other evidence which can support her story of the acts of sexual intercourse, it does not mean that you cannot find those acts to be proved, but you would then have to place a very high degree of reliance upon her credibility and reliability in order to be able to do so:  Again, it is entirely for you whether you are prepared to do that. 

So, we say that every time he might perhaps start to rise to the heights required by Longman he qualifies it, or at least confounds the situation, by saying something which takes away from what he says is the obligation required by Longman’s Case. 

Even if it be presumed that the learned trial judge meant to say “complainant”, I draw the Court’s attention to the fact that this is a settled copy of the trial judge’s charge.  We can see that from the top of page 8.  But it is indeed one of the mistakes that was referred to by the Court in Jolly’s Case – and I refer the Court to Jolly’s Case.  It is about, I think, some six or eight pages in where Judge of Appeal Kenny is dealing with “Ground 3:  The Longman warning”  In that case, Judge of Appeal Kenny, at the bottom of the page in which the heading, “Ground 3:  The Longman warning” occurs said:

In my opinion, these circumstances required the trial judge to charge the jury in terms calculated to afford them a full appreciation of the danger of proceeding to convict on the evidence of the complainant unless the jury scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy –

In our submission, the warning, whether one takes it as the passage at page 15 of the application book, or as a whole from pages 13 to 15, comes nowhere near it.  On the next page - and I will not read it all, but in the first four paragraphs of the next page it is clear that the trial judge in Jolly’s Case also referred to corroboration or support of the accused’s evidence and Judge of Appeal Kenny in the fourth paragraph said:

When his Honour referred to “the accused” in the last line of the first passage and in the second line of the second passage, he presumably intended to refer to “the complainant”.  The confusion cannot have assisted the jury.

We would say that is at least the same situation here that the jury can have derived little, if any, assistance particularly on the Longman aspect from what was on any view a confusing direction from the learned trial judge.  So, in our submission, for this Court not to intervene in this case would allow, in our respectful submission, South Australia to be out of step with other steps and also permit a miscarriage of judge.  In our submission, in the other States ‑ ‑ ‑

McHUGH J:   The Crown was refused leave in Jolly’s Case and it was refused leave – I gave the reasons for refusing leave – is because we took the view it did not lay down any principles at all.  It was a warning that was required in the particular circumstances of that case, and that is what Longman says.

MR ABBOTT:   Yes.  I assume that one of the reasons why your Honour refused leave is because the Court got it right in Jolly’s Case.

McHUGH J:   No, because it raised no question of general principle.

MR ABBOTT:   Yes.  Well, we would say that this case does raise a point of general principle in that if this decision of our Court of Criminal Appeal is to stand then we say what is essentially mere comment is confused or at least equated with warning.  As the Court said in Longman at page 90, four lines from the bottom of the report:

It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence.  Of course, any comment must be fairly balanced.  For example, any comment ‑ ‑ ‑

McHUGH J:   Yes, but Longman was a case where the events had taken place something like 20 years before and what seems to be happening, in practice, is that Longman is now being used almost to reinstate the very warning that the legislation abolished.  It is coming very close to that.

MR ABBOTT:   I agree that in Longman’s Case the unusual feature was said to be delay and as the Court said at line 6 on page 91:

But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them –

and they went on to say it was delay.  In this case there were unusual features and we pray in aid two unusual features because although delay was not present the unusual features were the previous incident of December 1996 and more importantly the substantial cross-examination of the applicant in respect of it which, to use the words of President Winneke in the case of Robertson in our application book:

although not directly probative of the charges, was potentially seductive to a jury and prejudicial to the accused.

We also submit that all the other unsatisfactory features set out in our application book in the “Brief statement of facts” at pages 71 to 73 show a degree of unusualness in this case which raises, in our submission, unusual features within the meaning of Longman’s Case, but, in any event, we say we are on better ground than perhaps might otherwise be the case because the Court of Criminal Appeal recognised the need for a warning, not just comment, to be made in this case.  So, we say, effectively, it is a fortiori. 

Dealing with those unusual features, and in particular the December incident, in that case it is our submission that in relation to that evidence the trial judge failed to properly distinguish for the jury’s benefit in dealing with the incident so much of it as was admissible in terms of proving guilty passion, or going towards the issue of guilty passion, because that is the basis on which it was let in, and giving any direction or warning to the jury in relation to the cross-examination of the application, a cross-examination with effectively destroyed his character.

Could I just take the Court to the application book 52 where, at line 15, the Chief Justice in the Court of Criminal Appeal after saying that he had summarised the directions that the judge had given, said:

It would have been better if the judge had given the jury a specific warning not be influenced by any adverse view of the appellant that they might form upon the basis of his behaviour that night.

That is, in December 1996.  So, we say that given that a warning – it would have been better to give a warning in relation to that – how much more was the need for there to be a strong warning on the basis of Longman that it was dangerous to convict in the unusual circumstances of this case on the sole evidence of the complainant.  We submit that when you contrast what the learned trial judge did that the combination of his treatment in the charge to the jury of that incident and the cross-examination of the applicant upon it, coupled with his failure to give a proper Longman warning has led to a miscarriage of justice and we refer the Court to application book at page 13, line 15, where after dealing with the December 1996 incident, the trial judge said – this is just before the passage which the Court of Appeal said was a warning:

What, if anything you infer from it, is entirely for you.

That is, in our submission, obviously incorrect because they were not entitled to infer that he was of bad character or had any propensity and although it is true that he said at the top of the page that there were some limited uses that could be made, he did not tell them what uses could not be made of that evidence. 

So, we say that the combination of those directions, and indeed the endorsement of them by the Court of Criminal Appeal, sets a dangerously low level for what is a Longman warning and so far as the standard is concerned in South Australia.  So, your Honours, we say that given that the warning was necessary and given that a warning was necessary in relation to the December 1996 incident and the cross‑examination of it, how much more necessary was there a need for what was described as the traditional or conventional Longman warning to be given.  If the Court pleases.

GLEESON CJ:   Thank you.  We do not need to hear you, Ms Abraham.

In this matter the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal to warrant the grant of special leave and the application is refused.

We will now adjourn for a short time to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED