Cross v The Queen

[1992] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1992

B e t w e e n -

SHANE COLIN CROSS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DEANE J

McHUGH J,

Cross 1 24/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY. 24 JUNE 1992. AT 10.51 AM

Copyright in the High Court of Australia

MR_K.C. FLEMING, OC: If the Court pleases, I appear with

MR P.J. ALCORN,	in relation to this application for
the applicant.	(instructed by J.A. Hodgins,
Director, Legal	Aid Office (Queensland))

MR B.J. BUTLER: If the Court pleases, I appear with

MR P.G. CALLAGHAN, for the respondent.	(instructed
by D. Field, Solicitor to the Director	of Public
Prosecutions (Queensland))

BRENNAN J: Yes, Mr Fleming.

MR FLEMING:  I hand up submissions to Your Honours. If the

Court pleases, the question of lies is raised here

again. I will not obviously deal with the law

again, but I will refer Your Honours to the

passages. If I may go immediately to pages 40 and

41, at the bottom of page 40 and over to 41.

DEANE J:  I notice at page 45 there is an interesting

example of thought processes. Mr Nolan could not

think of the name of Shepherd's case and said he

thought it was called "Lamb".

MR FLEMING:	Your Honours, the question of lies arises here probably in the second category,
Mr Justice Clarke's judgment in Heyde, but it may
also be in terms of the first category because
Your Honours were of the view, I would submit, that
the direction in McKinney was that it really was a
matter of corroboration of the police evidence.
And so ultimately it might be no different in the
end result, it is still a matter of corroboration.

Now, what happened in this case simply was

that between the first and the second recorded

statements signed by the accused and about which

there is no dispute, there is the alleged admission

which we submit makes the other recorded statement

inculpatory. They may be neutral on one reading of

them. They may even be exculpatory, but just with

the insertion of the words that I have extracted,

and certainly His Honour also extracted at page 33

and directly referred to them, at paragraph 5 of my

summary:

"Tracey, I'll tell you the truth.	I did have
some Rohypnol when we got back to my place.	I
took one and put one in her coffee.	I didn't
want to tell."

Now, if one goes back then to the second record of

interview which is to be found at page 17, we see

that the record of interview commences with the

question:

Cross 2 24/6/92

Shane after the conclusion of the record of

interview that I took from you earlier you

informed me that you did in fact give the

Complainant Tracey Scriven Rohypnol on the

evening or morning of 20 July 1989. Is this

correct? A. Yes.

Now, that does not reflect the strength of the

supposed admission made. That admission was

recorded after the records of interview were

concluded and some time later at the police

station. They were never read back to the accused,

and at no stage did he sign the police notebook in

which they were recorded. So it was slipped in,

which one might cynically say is the last bastion

given the mechanization of interviews these days,

the last bastion of the brick or the verbal. So

one uses a verbal in that way to strengthen either
the statement taken visually, or audiovisually or

recorded to give it a totally new meaning.

The difficulty here is that that

statement - - -

BRENNAN J:  But the oral statement was then the subject of a

question and answer No 4 in the second record of

interview, was it not?

MR FLEMING: Yes. But, of course, Your Honour, when you

come to the answer in 4 it does not specifically

reflect the strength of the alleged admission made

between the record of interview. The interviewing

police officer did not come back to him and say,

"But you just told me these words". It is not

recorded at all that she saw fit to include those

words in her oral evidence, and given the fact that

at no point in time there had been any opportunity

to challenge those words.

Your Honour, that gave rise most directly to the question of lies, and then to the direction

given by His Honour at page 33. His Honour

specifically, at line 20, says:

You have before you an account of events

given by the accused. Of course he has not

given evidence on oath and so that account of

events is not an account given on oath.

May I pause then to relate that back to a

Robinson-type direction which I will come to

shortly. There was a Robinson-type direction given

as well.

I am not going to deal with it at any length

because it is basically contained in the two

records of interview.

Cross 3 24/6/92

Then it is the passage connnencing at line 40 and

going over to page 34 that we submit is

particularly damaging. There was not even an

attempt to deal in any way with it in terms of

Lucas if it is a question of corroboration, or

Broadhurst if it is just a question of assessing

credibility, and it is compounded by the fact that

further, there is no direction given to the jury in

terms of McKinney. His Honour made no reference

whatsoever to any law at that point in time.

BRENNAN J: What were the issues that the jury had to

decide? Were they not whether or not this

prosecutrix had been under a substantial amount of

intoxication by Rohypnol?

MR FLEMING: Yes, Your Honour.

BRENNAN J: And if so, whether the Rohypnol had been

administered by the accused?

MR FLEMING:  Yes.

BRENNAN J: Well now, the pharmacological evidence

established that there was a heavy sedation of her

by Rohypnol, and the remaining question was, "How

did she get it?"

MR FLEMING:  Yes.

BRENNAN J: And the options were that he gave it to her or

that she took it herself?

MR FLEMING:  Yes.

BRENNAN J: At first he denied having given it to her, and

then he admitted that he had given some Rohypnol to

her?

MR FLEMING: That is right, yes, Your Honour.	that the amount of Rohypnol found in her blood I concede	55 hours after indicates that she had, in fact,
received massive doses. There is no doubt about
that. I also have to concede that she gave
evidence herself that she did not take the
Rohypnol. So there was that conflict of evidence
that the jury had.

BRENNAN J: Well, what directions does a judge have to give

in those circumstances?

MR FLEMING:  Your Honour, he still ought to have directed in

terms of both Lucas and McKinney.

BRENNAN J:  Why can he not just say, "That is the case. You

go and make up your minds, reasonable doubt."

Cross 24/6/92

MR FLEMING: Because, Your Honour, we would submit that

Lucas says that lies, for example, could only be

used in certain circumstances if they comply with

those four particular characteristics that we dealt

with previously.

BRENNAN J: Used as corroboration?

MR FLEMING:  As corroboration.

BRENNAN J: What was to be corroborated here?

MR FLEMING:  The girl's evidence. She was a complainant in

a rape case.

BRENNAN J: And there was the admission of having given a

Rohypnol in a record of interview that was

unchallenged?

MR FLEMING:  Yes. But, Your Honour, the subtle distinction

between the admission and the subsequent record of

interview is that in the record of interview he

said yes, he gave her one; in the admission he

says, yes, he put one in her coffee and did not

want to tell about it. And we submit that there

should have been a direction, a McKinney-type

direction in respect of the admission taken between

the records of interview.

BRENNAN J: This is turning a requirement of summing up into

a kind of maze through which trial judges have to

pick their way in case the jury happens to conceive

of a possible course of reasoning which will lead

them into one or other legal area.

MR FLEMING:  Your Honour, that might be so, but such is the

complexity of the law in these areas where you seek

to use evidence corroboratively, and it is

certainly still an area which causes considerable
difficulties.

BRENNAN J: Should we make them worse than they are?
MR FLEMING:	No, Your Honour, we ought to make them better

than they are, and Lucas would go a long way to

making them better. If juries were directed that

they ought to find those four principles before

they can use lies.

DEANE J: What did your client say in his statement about

the alleged conversation between the two records of

interview?

MR FLEMING:  There was cross-examination. He did not give

evidence at all, and the cross-examination,

Your Honours, is found at pages 7 and 8.

Your Honours, if it is a question of corroboration,

Cross 5 24/6/92

then, of course, the Chamberlain or the Shepherd

direction ought to have been given. That was requested, as Your Honour has pointed out, by

asking that the "Lamb" direction be given, but that

was refused by His Honour under the circumstances.

In addition, the Court of Criminal Appeal here said

that there was no injustice done. They used the

proviso as well, saying there was plenty of other

evidence upon which they could have convicted, for

example, the quantity of Rohypnol, the evidence of
the complainant herself and the evidence of the
doctors.

The direction in respect of Robinson is to be found set out in paragraph 15 of my outline.

DEANE J:  I see counsel did, in effect, ask for a

McKinney-style direction.

MR FLEMING:  Yes, and His Honour chose not to do that.

His Honour, in his summing up, compared the

evidence to be given by a witness such as a doctor

or perhaps both doctors may have no interest one

way or the other:

You may think their evidence is completely

impartial •.... on the other hand, you may think

a person in such a position as the accused may

also have a very great interest in the outcome

of the proceedings. You may also think the

complainant girl may have some interest in the

outcome of the proceedings.

Then His Honour continues on. That is weighted

very much against an accused in terms of the

Robinson-type principle.

Your Honours, we would submit finally that the

Court of Criminal Appeal really looked at the

issues in isolation. They, on the one hand, looked

at the Lucas point, and then went on to look at the	McKinney point. But we submit that given the
critical nature of that statement to both points
there should have been very strong directions given to the jury, and indeed, there were absolutely no directions given to the jury on those issues. We
would submit accordingly that it is a matter which
Your Honours would allow special leave upon.

DEANE J: One problem you have is that notwithstanding that

you have put it in terms of principle, it is very

difficult to see there is any real question of

principle here.

MR FLEMING:  Your Honours, I suppose what we are saying is

that there is an amalgam of Lucas and McKinney, and

that should be dealt with. Then, in terms of

Cross 6 24/6/92

justice, if you add in the very strong direction

about an accused having an interest in the outcome

and the very critical nature of the evidence, as
His Honour pointed out, it ought to be dealt with.

Your· Honour, I can put it no higher than to say it

ought to be in principle an amalgam of Lucas. Now,

Lucas has not been dealt with by this Court, and

McKinney now, given this sort of circumstance arising.

has been, but we would submit that

Hopefully, with the advent of mechanical means of

taking records of interview, the McKinney direction
will not be required very often, but this seems to
highlight one situation which can, in fact, cause

great difficulty for an accused. Therefore,

McKinney should go a little further and it should

be dealt with in conjunction with Lucas.	I cannot
put it any higher than that, Your Honours.

DEANE J: Except if you look at the judgment of

Justice Ambrose at page 57, His Honour said:

It was really conceded on behalf of the

appellant in this case that, in the

circumstances, having regard to the nature and

structure of the Crown case and the conditions

under which the interviews were conducted, it

could not be said that a warning of the sort

dealt with in McKinney was required.

MR FLEMING: Certainly I have problems with that, but

nevertheless, as a matter of principle, it is open

still. There was a phone call to a solicitor at

the end of the first record of interview. I should

refer Your Honours to that at page 15. This record

of interview as page 11 shows was taken at the

Norwood CIB office in Adelaide. The accused had moved to Adelaide and the police from Queensland

went down to interview him there.	So it was taken
in the CIB at Adelaide.	We see at question 41,
and in question 40, and then there was a suspension

of the record of interview and Cross phones his

solicitor and then there is a resumption of the

record of interview. It may be that which led to

the comments made by His Honour. Then that record

of. interview is concluded. He for some reason

allegedly says what he said between the first and

second record of interviews; then the second

record of interview which is certainly made

inculpatory, if one takes into account the alleged

statement made between them, is then taken. Thank

you, Your Honours.

Cross	24/6/92
BRENNAN J:	The Court will adjourn briefly to consider what

course it should take.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

BRENNAN J:  We need not trouble you, Mr Butler.

Having regard to the issues falling for the

jury's determination, and to the unchallenged
evidence in the Crown case, we do not think that
the case is one which warrants the grant of special
leave to challenge the jury's verdict. In those

circumstances, special leave will be refused.

AT 11.25 AM THE MATTER WAS ADJOURNED SINE DIE

Cross 24/6/92