Dawson v the Queen P3/2001

[2001] HCATrans 558

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2001

B e t w e e n -

GEOFFREY MICHAEL DAWSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 11.14 AM

Copyright in the High Court of Australia

MR G.M. DAWSON appeared in person.

MR R.E. COCK, QC:   If your Honours please, together with my friend, MS J.A. GIRDHAM, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

KIRBY J:   Mr Dawson, I think you said in your written submissions at page 124 that you did not wish to say anything further in support of your application, but this is your opportunity to speak to the Court and you should not be concerned about that.  If you want to say something, you should say it.  This is your opportunity.  So do you wish to say anything in support of the written application or are you content to rely on that, or do you wish to elaborate what you put there?

MR DAWSON:   I wish to elaborate, your Honour, if that is okay.

KIRBY J:   Yes, very well.  You understand that you have a limited time of 20 minutes in which to address the Court and there will be a light that will go on and that will give you a warning that you are coming to the close.  Do you understand that?

MR DAWSON:   Yes, thank you.

KIRBY J:   Yes, very well.

MR DAWSON:   The first thing I would like to point out, your Honour, is that – and I have not given a copy to the Crown at this stage, but I had to lodge with the Court, a supplement, an appeal book supplement.

KIRBY J:   Yes, we do have a supplementary appeal book.

MR DAWSON:   The references within the appeal book actually – I mucked up the original lodgment of the appeal book and it had references to the WA Supreme Court appeal book in it.  There is a cross‑reference list there giving page numbers which reflect the contents of the book, to make it easier for those concerned to locate what I am talking about within my application.

KIRBY J:   Yes.  Well, that is a lot of material, but you tell us what you want to say in response to it.  What are the main matters that you complain of?  Just tell us in your own words.

MR DAWSON:   The first one, sir, is the admission of complaint evidence.  During the trial her Honour allowed the Crown to introduce complaint evidence in relation to uncharged acts.  Her Honour, rightly, would not admit the evidence as complaint evidence, however, the Crown wanted it admitted on the basis of two things.  The first, to display the relationship characteristics between the complainant and myself, and also to establish why there was such a long period of no complaint.  The primary issue there is that whilst the Crown was okay in putting that presentation up, the trial judge later on ruled that that particular evidence was, in fact, and directed the jury that it was actually complaint evidence.

There are additional slides and that which I referred to which tended to present to the jury that this complaint evidence could be used to establish the credibility of the complainant and also answer why there was no complaint.  The situation is somewhat more perplexing in that, as a result of all of that, the jury was able to utilise that particular evidence to establish whether or not there was a propensity for myself to actually be a person of the like that would actually conduct themselves in that manner and they were able to utilise that evidence to establish whether or not the indicted charges were – whether there was a complement between that complaint evidence and the related charges.

The first ground of appeal that I put up is that I point out that the proposed evidence did not have legitimate probative value, because what actually happened as a result, I did not get a chance to dispute whether or not that the incidents actually took place or not.  The Crown went straight into providing supporting evidence.  It used it to support the evidence of the indicted charges, as such, and as a consequence, I submit to this Court that I believe that that was highly prejudicial, bearing in mind that later on the trial judge her Honour actually moved that it was directed as being complaint evidence, as such.

It was also utilised in a direction by the trial judge that the evidence itself was consistent with the complainant’s behaviour in that, why she did not make a complaint for so long, and I dispute that, which I will come to further on.  I will refer back to that, if you do not mind.  She also said that it was – I submit to the Court that the directions given by the trial judge in this particular case, in relation to this purported complaint evidence, was inappropriate and was not balanced if it was appropriate, because in one particular case in the directions, she actually maintained that there was no requirement for corroboration of the complainant’s evidence, notwithstanding the fact that at all times I actually made a denial of at least three of the counts that were put up.  So, therefore, I was looking for a Longman direction in relation to counts 1, 4 and 5, of which I maintain never took place under any circumstances.

KIRBY J:   Yours is an unusual case, a very unusual case, in that you had admitted to serious sexual offences against your stepdaughters.

MR DAWSON:   That is correct.

KIRBY J:   That is a very unusual circumstance.  Normally, in these cases, of which we see many, there is a total denial and it is word against word, and in such cases the Longman direction is tremendously important because it is often all that the accused has to stand between him and acceptance of the complaint of the complainant.  But in your case, there was this unusual feature that you had admitted to the offences and the question is whether, in those circumstances, quite the same forensic purpose is served by the Longman warning as in the case where there is no such admission.

MR DAWSON:   If I can submit in reply to that, your Honour, that the offences that were indicted on counts 1, 4 and 5 were rather specific in that the statement given to the police in 1988 in relation to my conduct, there was no mention whatsoever of any of these particularised indicted offences.

KIRBY J:   I realise that and I take it that your contention is that because a person owns up to certain offences, should not render them vulnerable to a free kick in respect of all other offences against which a person may make complaint.

MR DAWSON:   That is my submission, sir, yes.  Following on from that, sir, I also take issue in regards to the way that the trial judge presented the information to the jury in its direction in regards to the slides themselves.  The slides themselves ‑ ‑ ‑

KIRBY J:   This is with the PowerPoint display?

MR DAWSON:   If I can just refer to the appeal book supplement on pages 141, 142, 145 and 146 ‑ ‑ ‑

KIRBY J:   They are very indistinct.

MR DAWSON:   Yes, they were darkly photocopied, so I had to try and recreate them.

KIRBY J:   I follow.  So we can ignore the darkened ones ‑ ‑ ‑

MR DAWSON:   The darker ones, yes.

KIRBY J:   ‑ ‑ ‑  and just take it that you have – unless the Crown protests, you say that what you have done is a copy.

MR DAWSON:   That is correct, sir.  If I can just point out there, that I believe that the direction which her Honour gave could have led the jury to believe that they were able to assess the evidence of the complaint in regards to consistency of behaviour right the way through, not just for the issue of which the evidence was actually led but which all the ‑ ‑ ‑

KIRBY J:   Which is the document that you are objecting to here?  You do not object to the fact that her Honour used PowerPoint.  That seems quite a sensible way in a modern circumstance, to use slides and other means to instruct the jury.

MR DAWSON:   It does cross actually both of them, sir, the “Statements of witnesses”, where it says:

Statements made elsewhere are not evidence but
Statement can be used to test the credit of the witness

and further, on 145, it says:

What a complainant say’s is not evidence of the truth of the complaint but what is said can be used in assessing the credit of the complainant

It is not the generalised – what appears on the slide.  It is that the direction that the trial judge actually gave tended to reflect, I believe at least, that it was across the board for the whole of the evidence and not just restricted to what was termed to be complaint evidence, as such, because throughout her summation, she gave direction in that she refers to the slides as recent complaint evidence, and instead of directing these particular slides in relation to that particular recent complaint evidence, it appeared that the jury could have taken account for the whole lot all the way across the board, and I have concerns for that.

Further to that, in the trial judge’s directions, the jury, I believe, and I had trouble trying to understand it, as a person that knew the facts well, but if I was sitting as a juror, I would have to say that I had difficulty in understanding, and what a complainant said to someone else on one occasion is not evidence of the truth of that complaint without further explanation.  Try as I – hard, I could not find anything throughout her Honour’s summary that actually expanded on that and that, therefore, could give some misunderstanding to how the jury was able to utilise that information.

HAYNE J:   That appears at pages 15 and 16 of her Honour’s charge, I would have thought, but perhaps not.  But let me not delay you.  You go on.

MR DAWSON:   I further wish to point out that in relation to ground 6, that the trial judge allowed the Crown’s submission that, on the basis that the contents of the complaint were true, even on the limited basis that it was brought forward, that the Crown, in her summary – sorry, the trial judge points out that the Crown suggests that if N made up her complaints in Brisbane to the police, she must have been psychic to be able to foresee what was going to happen to her.

The reason that I draw issue with that particular thing is that it is a parallel statement in the form of “Why would the complainant lie?”, in many respects.  The situation being, is that it was actually put to me, as the defendant, and not to the court as such, so it was sort of a vague sort of a question, and that is the way that I submit it, that the Crown put it forward as a vague sort of a question on, “Why would the complainant lie?”. 

I also wish to bring to the notice of the Court that the learned trial judge failed, I believe, to give any appropriate directions to the jury in regards to the lack of complaint.  Now, there is two chronological time periods that we need to take into account.  The evidence of complaint was brought forward in regards to a period of alleged incidences which took place between 1980 and 1983.  Post‑1983 to 1988, when I brought the issue of my conduct before the authorities, there was no complaint at all by the complainant, in fact, on any of the ‑ ‑ ‑

HAYNE J:   At page 15, the trial judge told the jury something, at least, about how they should deal with that, in particular, it was for the jury to consider whether that was to be understood because she had been asked by police in Brisbane to repeat the allegations in front of you and she had not because she feared you.  That was what the jury were told.  Do you say they should have been told something more or something less?

MR DAWSON:   Something more, sir.

HAYNE J:   Yes.

MR DAWSON:   If I may continue, I will explain where I am coming from.  In 1988 I was charged in relation to the other offences, in regards to other stepdaughters, but those charges came about as a result of a complaint by me to the authorities based on my conduct.  The issue, at that point in time, is that my statement contained damaging evidence on my behalf, given to the Crown, which related to evidence against all three victims.

KIRBY J:   There was evidence, was there not ‑ ‑ ‑

MR DAWSON:   That is correct.

KIRBY J:   ‑ ‑ ‑ that you said that you were a stern disciplinarian who used your Army belt to strap your stepdaughters.

MR DAWSON:   That was alleged, sir, but I can assure you that it did not take place.

KIRBY J:   You say that, but that is for the jury, not for me, to determine.

MR DAWSON:   I can understand that.

KIRBY J:   That would be consistent with fear on the part of the complainant in the present matter.

MR DAWSON:   The way that it was presented, yes, sir.

KIRBY J:   If it were believed.

MR DAWSON:   Sorry?

KIRBY J:   If it were believed.

MR DAWSON:   If it were believed, yes, sir.  In 1988, as I said, that I actually went to prison in relation to other charges, or, sorry, to other victims.  The resultant effect of that came from the complaint that I made to the police about my conduct.  Now, in 1988 the complainant had the opportunity to deal with this complaint then.

HAYNE J:   How old was she then?

MR DAWSON:   Seventeen.

HAYNE J:   Yes.

MR DAWSON:   At that point in time, there was no complaint raised by the complainant.  In 1997, the complaint was raised once more, this time by the complainant herself.  That is why I believe that the trial judge erred in that she should have brought before information – sorry, should have given a direction in relation to the lack of complaint.  There is actually two distinct periods where there is a lack of complaint.  One, that the Crown wishes to – they have brought up in regards to the evidence which I object to, and, two, where the previous issue was brought about.

Now, whilst the jury may not have known about the issues of 1988, certainly the Crown did.  In follow on from that, I believe that the issue of recent complaint evidence should not be allowed because the issue - it was brought about because of the need to comply with section 36BD, and the preconditions of that particular section did not happen to be satisfied, in that what the complainant should have been asked to do is to bring out the situation that she was intimidated or felt that it was futile, that there was no complaint, as such, in the early stages.

Instead, the complaint evidence was actually brought about to bolster her credibility without any cross‑examination from the defence in regards to the lack of complaint.  So the recent complaint should be put to one side, as such.  I further believe that the prosecution summary by the trial judge was unbalanced from my particular side.  When I go through and I read the trial summary, I find that there is a lot of direction from the trial judge towards the fact that – to give you the impression that I was guilty ‑ ‑ ‑

KIRBY J:   Well, we saw your complaint there ‑ ‑ ‑

MR DAWSON:   ‑ ‑ ‑ and that although there was a weigh‑up on my behalf of what I said, it was nowhere near as extensive as what it was for the prosecution.  I also have issue with the trial judge’s direction and reference made to the issue in regards to the mother of the complainant in that she was working full‑time and might not have noticed things that were going on.  It is actually strange that that situation should come out because even after the 1988 issue through to 1997, I actually went back to live with that same women and I continued in a family arrangement with all of the complainants for a further period of five years.

KIRBY J:   Well, can I tell you, I have been sitting in these cases now for about 17 years, and that is not at all unusual.  This is one of the problems in these cases, that people are bound together by forces that are sometimes strong but which cannot ignore the reality of sexual misconduct within a family unit.  This is a problem.  So it does not prove, one way or the other, you see.

MR DAWSON:   My issue that I was actually taking, sir, was in relation to giving the jury, if you like, a pointer that maybe that the jury might have been able to accept the information of the complainant based on the fact that the mother was working and she might not have known, because there were, even in the 1988 trial that I went to trial from, the mother actually gave evidence on my behalf, which was rather stark, to say the least.

KIRBY J:   Again, not unusual.  Mr Dawson, your time has expired, but if you had anything that you had not been able to cover that was important, you would have a few minutes if you need it.  Have you covered everything you need?

MR DAWSON:   Yes, thanks very much.

KIRBY J:   Yes, thank you.  Mr Cock, what do you say about the Longman warning?  You would appreciate the Court has been very insistent on the

importance of the warning.  What do you say about the adequacy of the Longman warning?

MR COCK:   Your Honour appreciates the Court of Criminal Appeal took the view that this was totally different to Longman because of the obvious evidence of there being continual or some sexual misconduct.

KIRBY J:   What do you say about the danger that that, in a sense, is discouragement of a person owning up to some because they then are left in a position very vulnerable to the complaint of anyone who, as it were, jumps on the bandwagon and that in such cases, a person should still have the advantages which the law provides, that if there is a long delay in that particular case, they should still be warned that that is a matter that puts the accused at a very considerable forensic disadvantage in respect of that complainant?  Do you follow my point?

MR COCK:   I think I understand your Honour’s point.  Certainly, Justice Wallwork took the view that it was distinguishable and was not required.

KIRBY J:   I realise that.  There is a bit of a tendency, I have to say, speaking only for myself, to chip away at Longman, whereas this Court, with virtual unanimity, keeps coming back and saying, this is a very important thing because lawyers and judges know that an accused is at a great disadvantage, years later, being able to defend themselves and the fact that a person admits to offences with A, B and C, does not mean that they admit to offences with D, and D may have various reasons to, as it were, jump on the bandwagon or add his or her name to the complainants.

MR COCK:   If the warning was that the jury should be cautious to scrutinise with great care and it would be dangerous to convict, it seems that ‑ ‑ ‑

KIRBY J:   It is the extra element in Longman that judges seem to be reluctant in this country to give, and that is that you fight a trial on evidence and delay puts you at a great disadvantage in evidence.  That is a matter judges know that juries might not know, or might not fully realise, and especially, I think it is Justice McHugh’s judgment in Longman makes this point and yet courts of criminal appeal and judges seem to be reluctant to conform.  We have had to deal with this, in my time in the Court, I think about five or six times.

MR COCK:   Yes.  The Court of Criminal Appeal, of course ‑ ‑ ‑

HAYNE J:   I think you are underestimating it, if I may say so.  I think it is more than five or six.

KIRBY J:   Well, why should that be so?  Why do we have to keep saying Longman rules, over and over again?

MR COCK:   In this instance, of course, the jury was astute, it seems to us, and certainly the Court of Criminal Appeal, as to the dangers of the age of the evidence, acquitting on count 1, for example.  It is not one of those cases that sometimes comes to this Court where the Court is not in a position to know whether the jury exercised the sort of care that is required.  In this instance ‑ ‑ ‑

HAYNE J:   But the other aspect of this case which was distinctly different is that the defence to some of the counts was a defence of consent.

MR COCK:   Yes.

HAYNE J:   An acknowledgment that sexual acts had occurred, but said to be the Crown could not prove without consent.

MR COCK:   Certainly.

KIRBY J:   They were later acts, of course.

MR COCK:   Some of the later – yes.  That was a distinguishing feature, we, of course, say, from the cases of the Longman type, although, of course, the delay issue is still here.

KIRBY J:   But do you come here asserting that Longman had no part to play in respect of this case?  Do you support that notion, because that could be an important question?

MR COCK:   We say the direction is adequate.  We accept that it was not a strong Longman direction in somewhat traditional terms, but we suggest that the trial judge adequately dealt with issues concerning the difficulty in recollection.

HAYNE J:   The point of general importance, which may or may not arise in this case, a separate question, the point of general importance is that prosecutors have to be astute in cases where Longman warnings are required, or even in cases where they are arguably required, to insist from their end of the Bar table that they are given.

MR COCK:   That is certainly happening in Western Australia ‑ ‑ ‑

KIRBY J:   I strongly associate myself with what Justice Hayne has just said.

MR COCK:   That is certainly the position and there have been cases where prosecutors have, in fact, asked, despite the judge’s initial reluctance to do so, so we are certainly astute to that.  It serves us no benefit in having a case go off on a basis which is inappropriate and not consistent with legal principle.

KIRBY J:   It just comes down, in your submission, to the fact that in your contention this is a very unusual case ‑ ‑ ‑

MR COCK:   Yes, absolutely.

KIRBY J:   ‑ ‑ ‑ where there were admissions and that the nature of the directions that had to be given, had to be considered in that context, including where it was conceded that sexual conduct had taken place but after the age of majority and that, looked at as a whole, no miscarriage of justice has occurred.  That is your ‑ ‑ ‑

MR COCK:   That is our position, and I think that was the attitude of the Court of Criminal Appeal, certainly Justice Wallwork ‑ ‑ ‑

KIRBY J:   Yes, but there are some words there that lead me to think that they thought that it may be that Longman does not apply in a case where there is a complaint by somebody which is conceded by the accused.  I do not think that is what Longman says.  It should not be interpreted that way.

MR COCK:   Certainly, the thrust of the argument before the Court of Criminal Appeal was in relation to the relationship evidence, generally, rather than the Longman issue, if that is of any assistance to your Honours.

KIRBY J:   Yes, thank you.  Do you wish to say anything in reply to that, Mr Dawson?

MR DAWSON:   Yes, sir, if I may.  In Justice Wallwork’s statement on page 75, paragraph 44, one of the issues that I meant to bring up before was that his Honour said that the ground was not sustained because that juries were not likely to know what recent complaint evidence meant to lawyers and, therefore, any significance that that actually had played was sort of downplayed.  I do not know what, really, to make out of that, but on a personal basis, the situation would seem to be that there was some sort of accepted mistake, if you like, that should have been applied in that particular case.

Further, on page 77, following on from paragraph 60, Justice Wallwork does go into the situation about the Longman direction and he does appear to give me the impression, from my reading at least, that Longman does not apply in this particular case at all because of the issue that I had actually admitted to certain numbers of ‑ ‑ ‑

KIRBY J:   What is the sentence that you object to?

MR DAWSON:   Paragraph 61, about parallel with line 30, there:

The issue at the trial was whether or not the complainant had consented to sexual activities –

sorry, above that:

The applicant had admitted in a police record of interview, which interview was conducted within months of the last of the incidents charged in the indictment and he had admitted in evidence at the trial, that he had had a sexual relationship with the complainant.  The issue at the trial was whether or not the complainant had consented to sexual activities with the applicant.  Also, the applicant had denied having interfered with the complainant as a child in Brisbane and against her will anywhere.

He further goes on down, on paragraph 67, page 78:

The facts in this case are nothing like those in the Longman decision where it was alleged that there had been two counts of indecent dealing with a stepdaughter when the child was said to have been six and 10 years old and the evidence was given when the complainant was aged 32.

KIRBY J:   What do you say is the situation here?

MR DAWSON:   I do not know where the alleged counts that related to the complainant here because these situations did not take place because she was not nowhere six and 10 at the time I gave the issue to the police.

KIRBY J:   I realise that, but his Honour is dealing with Longman.  You see, the point of Longman was it was a very long delay.

MR DAWSON:   Yes.  Well, the issue – reading the two paragraphs together, it appears that Justice Wallwork has come to the conclusion that because I have admitted previously in a police record of sexual activity, that there was no requirement to give a Longman direction, and I dispute that issue, because the indicted offence – the offences are specific, whereas the police record is not.

KIRBY J:   Yes.

MR DAWSON:   And, in particular, in counts 1, 4 and 5, I deny it even take place altogether.  In counts 2 and 3, I say that sexual activity took place but it was with consent.  But as – it is applied right across the board, because of the delay from 1988 through to 1997, when the complaint was formally made to police by the complainant, then I believe the Longman direction is appropriate in this case, sir.

KIRBY J:   You say that in respect of the three counts to which you did not allege – or, rather, which you disputed, that the delay was between 1988 and 1997 ‑ ‑ ‑

MR DAWSON:   That is correct.

KIRBY J:   ‑ ‑ ‑ which was a space of 11 years ‑ ‑ ‑

MR DAWSON:   Yes, sir.

KIRBY J:   ‑ ‑ ‑ and that that attracts the Longman warning?

MR DAWSON:   That is my argument, sir.

KIRBY J:   Yes, very well.

MR DAWSON:   Thank you.

KIRBY J:   Did you ask for legal assistance to be able to present your case to this Court?

MR DAWSON:   I did, sir, and it was declined by Legal Aid.  Please understand that I have only just been released from prison myself and I am still currently under licence at this point in time.  My licence expires in October next year.

KIRBY J:   I see.  But you are not in custody at the moment?

MR DAWSON:   No, I am not, sir.

KIRBY J:   Yes, very well.  All right, the Court will adjourn briefly to consider what we do in this matter.

AT 11.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.51 AM:

KIRBY J:   The Court has considered the complaints of the applicant concerning the suggested imperfections of the directions of the trial judge to his jury.  No doubt, as in every case, different and improved directions could have been given with the benefit of appellate hindsight.

However, in the very unusual circumstances of this case, where the applicant had admitted to sexual misconduct with his stepdaughters, the Court is not convinced that any miscarriage of justice has been demonstrated by the applicant which the Court of Criminal Appeal failed to correct.  The only matter which has given us pause is the treatment by the Court of Criminal Appeal of the direction required in such cases by the decision of this Court in Longman v The Queen (1989) 168 CLR 79.

In cases in which sexual offences against young persons are alleged to have occurred, some time before any complaint about them comes to the attention of the accused, careful attention must be paid as to whether a Longman direction should be given.  Prosecutors appearing in such cases are themselves under an obligation to consider this question.  If appropriate, they should assist the judge at trial in the directions that are to be given conformably with this Court’s repeated authority.

The application for special leave to appeal is refused.

The Court will now adjourn but will reconstitute later in the day in this courtroom for a single Justice matter.

AT 11.54 AM THE MATTER WAS CONCLUDED