Crampton v The Queen

[1999] HCATrans 396

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 1999

B e t w e e n -

ALAN JAMES CRAMPTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1999, AT 11.10 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MS M.A. MARTY, for the applicant.  (instructed by MacMahon Associates)

MR R.D. ELLIS:   I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GAUDRON J:   Mr Byrne, you have some difficulty, have you not, about the point that was never taken?

MR BYRNE:   Your Honours, we accept, as my learned friend Mr Basten commenced, “This as another case of a particular kind where the point was not taken” but this is an unusual case of that kind because, in our submission, the material that is available to this Court establishes that there has been in this case a clear, a demonstrable miscarriage of justice in that the applicant has been convicted of an offence which, on the evidence, it is clearly established he did not commit.

GAUDRON J:   That assumes the correctness of the Court of Criminal Appeal earlier decision.  That may not be correct, that decision.

MR BYRNE:   Assuming the correctness of decisions such as Orsos and Page and the decision in the English case of Preece upon which we rely, it is our respectful submission that the evidence does clearly establish that he did not commit the offence of committing an act of indecency with a male person.  The distinction between the offence of committing an act of indecency with a male person and that of committing an act of indecency towards or in the presence of a male person, of course, lies at the heart of this application but it is our submission that on the evidence that is available here, putting it at its highest, the Crown may have established the offence of committing an act of indecency towards or in the presence of the male person but not the particular elements of the offence of committing an act of indecency with a male person.

Your Honours, those decisions to which reference is made, firstly the English decision of Preece and then the decisions of the Court of Criminal Appeal initially in the case of Page and then in the case of Orsos have not, so far as we are aware, been questioned.  Indeed, there was a legislative change brought about by the decision of the Court of Criminal Appeal in Page which seemed to acknowledge the correctness of that decision by including in the legislature ‑ ‑ ‑

GAUDRON J:   But why should this Court continue to grant special leave in cases where points have not been taken below?  There may even be a question of whether this Court can entertain an appeal on a point not taken below.  Now, it seems as though there is a degree of unconcern at the criminal Bar which assumes that, in due course, it can all be fixed up by the High Court.

MR BYRNE:   Your Honour, I can, perhaps, explain the background against which the matter comes before this Court.

GAUDRON J:   No, no.  I do not think you should explain the background.  I think you should direct yourself to the role of this Court.  Now, let me tell you why I put that to you, Mr Byrne.  There have been differences of opinion expressed, I think, in the Court about that.

MR BYRNE:   Yes, I appreciate that.

GAUDRON J:   This is a case where the point was simply never taken; just simply never taken. 

MR BYRNE:   I accept that.

GAUDRON J:   I think it is time we came to grips with that question whether this Court is to be some sort of stopgap for the unconcern of counsel.

MR BYRNE:   Your Honour, cases - and there are recent decisions of this Court such as Gipp v The Queen - have considered that particular point.

GAUDRON J:   That was where special leave had been granted.

MR BYRNE:   I appreciate that.

GAUDRON J:   The question now is whether special leave should be granted and there may be quite different issues.  Now, I take it you are not prepared to argue that point at this moment.

MR BYRNE:   With respect, I did not come equipped to argue - - -

GAUDRON J:   You came, as so many counsel do, on the assumption that this Court could sort it all out.

MR BYRNE:   We would submit, with respect, that this case is one which ‑ ‑ ‑

GAUDRON J:   Let me put to you something else.  Prima facie, you seem to have a good point about the absence of a warning with respect to this evidence.  Were the Court minded to grant you special leave on that point,

could you ask more than to reserve the right to argue before the Full Court that you should have special leave on the other point?

MR BYRNE:   No, your Honour.  We would be content with that if that was the view of the Court.

GAUDRON J:   Mr Ellis, we would not have wanted to hear Mr Byrne on the warning question but you may wish to ‑ ‑ ‑

MR ELLIS:   I would have some submissions on that.

GAUDRON J:   Yes, and you may also address what we have put to Mr Byrne in the course of discussion.

MR ELLIS:   Your Honours, I understand the practicality of what your Honour has just put and, obviously, it would seem to be a not unreasonable way in which the matter could be approached and then properly determined by the Full Court. 

So far as the position in regards to the directions, the Crown submission in relation to those is that, firstly, the law is clear in relation to what directions ought to be given.

GAUDRON J:   What does the law say?

MR ELLIS:   Perhaps the first thing the law says is from Crofts, in a decision of this Court, that the significance of delay in each case has to be assessed ‑ ‑ ‑

HAYNE J:   This was 20 years, was it not, something of that order?

MR ELLIS:   Yes, 20 years.

HAYNE J:   Yes.

MR ELLIS:   Your Honour, the time aspect generally on a lot of these has been quite a significant issue.

HAYNE J:   Involving school children; school children at a school for children having some measure of difficulty.

MR ELLIS:   Learning difficulties, yes.  That is so, your Honour.

HAYNE J:   And a trial where evidence was given by one of an event occurring in the presence of both and the other does not give evidence of that.

MR ELLIS:   Yes, in relation to the four counts.  Well, there were no questions asked of either complainant in relation to those other four counts and that would seem to explain the reason why the jury was unable to reach a verdict and, in fact, the Crown would say that is, in fact, indicative of the jury understanding the need for caution and, indeed, understanding what the Crown says were, in fact, the appropriate warnings.

HAYNE J:   But did the judge ever tell the jury that it was dangerous to convict on uncorroborated evidence?

MR ELLIS:   The judge never used that phrase, your Honour, but the Crown’s submission on this is that, as was the decision of the Court of Criminal Appeal, that when you take the summing up in its full context, that overall there were a number of directions which resulted, the Crown would say, in a fair understanding being imparted to the jury as to the caution with which they had to undertake their role of assessing the credibility or reliability of the complainant and that the fact that they were unable to reach a verdict in relation to four of the five counts, those four being the counts where there was this lack of one complainant giving evidence about his presence, is, the Crown says, indicative that they did, in fact, understand the need for caution.

The count upon which the conviction was found was the only count where a complainant did not state that the other complainant was present and, in that sense, the Crown says that that is quite strong evidence indicating the jury did have a proper appreciation of the difficulty of the task.  There were many things which were clear in terms.  Obviously the 20 years was clear:  the difficulty with the children being children and the learning difficulties.

HAYNE J:   That may raise the point does Longman require warnings?  Is Longman establishing a principle that if A plus B then C follows inexorably?  What is the principle in Longman?  And, can I say this to you, Longman seems to be developing a lot of lore, both at trial level and at intermediate appellate level.  Reference need be made only to the decision of the Victorian Court of Appeal in Mazzolini (1999) VSCA 150 decided 23 September 1999 to discover that Longman warnings are thought worthy of 50 or 60 pages worth of judicial exposition.

MR ELLIS:   Your Honour, certainly in New South Wales, I think, the decision in Johnston’s Case was an attempt by the current Chief Justice to, in his judgment, at least set out in a point form the appropriate procedure and the Crown would say that certainly so far as New South Wales is concerned, Johnston has, if it was necessary to do so, has clarified, in fact, the approach which trial judges ought to take.

GAUDRON J:   Was the approach followed in this case?

MR ELLIS:   The Crown says, overall, yes, your Honour.

HAYNE J:   Substantially.

MR ELLIS:   Substantial – well ‑ ‑ ‑

GAUDRON J:   It is in the vibes, in the vibes of the address, is it?

MR ELLIS:   No, your Honour, in the totality rather than the vibes.

HAYNE J:   Read as a whole in its context.

MR ELLIS:   Your Honour, I know that there is a subtle difference between “in its vibes” and “its totality” but the reality is that each case does have to be dealt with on its particular merits or particular circumstances and, in this case, there were certain particular problems and they were exampled, for instance, by the fact that three other boys were called so that the jury had before them the fact that of the 13 members of the class, effectively only five were able to be located, it appears, and three of those other boys were able to say that nothing untoward had happened.

In one sense the accused in this case was in a far better position than is often the case because at least there was that positive evidence on his behalf that nothing had been noticed.  He was able to call one of the senior teachers to say that he, in fact, had not been the sports master during the particular year so, again, that was a potential area of disadvantage to him which, in this particular case, did not, in fact, turn out to be a disadvantage.  He was able, from records, to establish that he had not taught at the school in 1977 so, again, there was another area where there was potential for difficulty but despite the length of time he was able to lead evidence on that.

The Crown submission, and in the written submissions, I think, at application book reference 119 there are extracted a number of references.  I will not take your Honours through those but at appeal book 119 the references, both to the appeal book numbers are summarised and extracted and the other aspect in relation to this case is that it was a situation of complete denial and of a denial of even any opportunity for this to have taken place and the Crown says when one looks at this particular case, that there is a lot of material which, of itself, even without a warning, would have raised in the jury’s mind the need to be careful.

The Crown says then in addition to that there are a number of directions in relation to carefully assessing the evidence.  The fact that the jury, because they needed to rely completely upon the complainant in count 1 had to be satisfied beyond reasonable doubt that he was, essentially, a reliable witness.  That was a direction which was made to them.  They were told that there was, in fact, no corroboration or support and that they, nevertheless, had to be satisfied beyond reasonable doubt.  They were reminded of the potential problems facing or hampering, potentially, the defence, both generally and specifically, and that can be found at page 17 of the summing up, point 3 through to point 8, page 17 of the summing up being application book page 30.

Perhaps the thrust of the Crown case is that whilst this was a case when you start looking at it of a 20-year delay and therefore one then sees considerable potential disadvantage, in this case there was, in fact, less disadvantage than potentially may have been by reason of the fact that records still existed, by reason of the fact that boys were still able to be brought forward and by reason of the fact that the teacher was still able to be found.

Nevertheless, as her Honour pointed out, one of the most significant factors is the memory aspect, especially dealing with young children and in relation to count 1, though, there was nothing in particular which was evidenced by the complainant which would have suggested that anyone in the class would necessarily have noticed anything.  In relation to one of the other incidents, there was a suggestion that the two boys had exited rather quickly from the room.

That may have been a matter which would have stuck in the mind of someone but that was not a count upon which a verdict was found.  So that dealing with the count 1 in this particular case, the Crown says that the Court of Criminal Appeal’s assessment, when we look at all of the various ingredients including, in fact, what it was that the accused was able to do, what it was that was his case, that is a pure denial and a disclaiming of any opportunity, add that then to the factor of the warnings which were given specifically about this complainant and about the potential problems and then look at the fact that the jury, in this case, in fact, clearly in relation to four of the counts, did take heed of appropriate warnings and were not prepared, in fact, to return a finding of guilty in relation to those counts.

The Crown says the picture that is painted from that is that this jury in this case, whether or not these warnings would necessarily have been sufficient in all cases, but this jury in this case was, in fact, sufficiently warned and the Crown says clearly did when one looks at the way in which the trial unfolded and the result, apply the appropriate caution in relation to the assessment of the complainant’s evidence.

The Crown says that, really, certainly in New South Wales – I have read the Victorian decision but I am not as familiar with it as I am the New South Wales decision of Johnston, but it is clear from the decisions in New South Wales that there is no dispute as to the law in New South Wales.  It is difficult, obviously, in terms of it being applied to specific cases because each case is different.  Each case will require a differently worded warning.  Longman does not espouse a particular warning but it does indicate or does find that a warning will need to be, firstly, considered in all cases and that in many cases it needs to be given.  The Crown says in this case it was and ‑ ‑ ‑

GAUDRON J:   Not in terms.

MR ELLIS:   But not in terms.  Certainly, not in the terms that put ‑ ‑ ‑

GAUDRON J:   What passages do you say contain the warning?

MR ELLIS:   Your Honour, they are enumerated ‑ ‑ ‑

GAUDRON J:   The ones set out in your outline of submissions.

MR ELLIS:   Yes, your Honours.  I do not think I could take it any further than that, yes.

GAUDRON J:   I see.

MR ELLIS:   Well, I could, but it would take longer.

GAUDRON J:   Yes.

MR ELLIS:   Your Honours, I think that is the thrust.  The Crown would say that this is not a case which is particularly suited as a vehicle for dealing with the question about the Longman directions.  It may be a vehicle in the sense of the section 81 point but that is a different issue again but the Crown’s submission is that there is no public interest issue sufficient to justify the granting of special leave and, on the basis that special leave was not to be granted in relation to the directions, the Crown’s submission is that it ought not to be granted in relation to the section 81.

I accept that if, in fact, the Court finds special leave on the basis of the directions issue, that it is not unreasonable to reserve the other point and on that, that it is a fairly good vehicle for that other point but the Crown’s first position is that the Court of Criminal Appeal did not err, that it is normally a matter for the Court of Criminal Appeal to determine the sufficiency of directions.  It would not normally be a matter for special leave to be granted in relation to the assessment of sufficiency and the

Crown says there is no principle which has been breached and in New South Wales, in any event, there is clarity as regards the law.  Unless there are any other matters I do not think I can take that issue any further.

GAUDRON J:   Yes, thank you, Mr Ellis.

Yes, Mr Byrne, there will be a grant of special leave to appeal on ground 3 of the draft notice of appeal in the papers.  We will refer the application for special leave to appeal, in respect of grounds 1 and 2, to the Full Court to be heard on the same day as the appeal with respect to ground 3.  The parties should be prepared to argue grounds 1 and 2 as if on appeal but they should also be prepared to argue matters relating to the power of an appellate court with respect to points not taken below.

HAYNE J:   Yes, and the power of this Court.

GAUDRON J:   And the power of this Court.

HAYNE J:   I think you may find in some of the decisions - I have in mind, particularly, decisions of Justice McHugh, that there may be a question - I stand subject to correction on this - about the power of this Court, that is, a question founded in constitutional limits.  If that point is to be taken, then there are the inevitable consequences that would follow from that, about 78B notices and the like.  Best the parties have thought about that rather than have it discovered on the day.

MR BYRNE:   I think that was AB v The Queen that his Honour Justice McHugh made that reference.

HAYNE J:   That sounds familiar, Mr Byrne, and I think you may be right.

GAUDRON J:   Thank you.

AT 11.32 AM THE MATTER WAS CONCLUDED