DJT v The Queen

[1999] HCATrans 14

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 1998

B e t w e e n -

D.J.T.

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 12.25 PM

Copyright in the High Court of Australia

MR D. GURVICH:   May it please the Court, I appear on behalf of the applicant. 

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the respondent, with my learned friend, MR T. GYORFFY.   (instructed by the Director of Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Gurvich.

MR GURVICH:   Over time, there is the natural distortion of memories and they become wrapped in an irony and emotion, the product, in a case of this nature, of confabulation and misremembering.  This is particularly the case, your Honours, where one is dealing with children of an extremely young age when incidents are alleged to have occurred.

In this case - if I may take the witness referred to be the initial “A” – at the time of the incidents that he says happened, he was two years of age.  He gave the evidence at the trial as a 21-year-old man.  As a two year old, of course, he could not have given sworn evidence; of course, he could not have articulated - - -

GUMMOW J:   Which point does this go to in your - - -

MR GURVICH:   This is the third matter.  It is the third question, your Honours, if I may start there, at page 163.  Of course, as a young child, he could not possibly have articulated evidence in any way as set out in the transcript, and could not have given unsworn evidence because at that young age there is no understanding of the duty of speaking the truth or the capability of responding rationally to questions about facts in issue but,  somehow, your Honours, it appears that the passage of time makes that evidence admissible.

The evidence that I am referring to is of the kind set out at page 27 of the application book at line – well, the first question is relevant, being asked about questions from three years of age or earlier, and then moving down to line 10, the evidence given in response to those questions.

McHUGH J:   Yes, but it is very general evidence.  It does not necessarily mean it was given at the age of two.  The prosecutor asked a somewhat surprising question at the top of the page but - - -

MR GURVICH:   But there is the reference to “Shepparton” at about line 12 and that indicates that at that time when these parties were living in Shepparton that was at the approximate age of this witness.  It is my submission that evidence of this kind loomed large in this trial, which was aggravated by the fact that it is unclear whether those are matters which occurred in the presence of the complainant or not. 

There was no guidance given to the jury in the course of the charge as to the use of evidence of that kind.  It was left, in my submission, haphazardly, to the uninstructed intuition of the jury.

McHUGH J:   Any point taken about it?  Any direction sought in respect to it?

MR GURVICH:   Not an exception, but there was a general submission at the outset that no evidence of the children not in the presence of the complainant ought be admitted.  That was ruled favourably to the defence but, during the course of the trial, evidence was adduced about matters at times which the complainant was not present.  His Honour expressed his concern, that is, his Honour the trial judge expressed his concern about those matters at pages 64 to 65 of the application book.       This was a matter, your Honours, that was raised in the Court of Appeal and was shortly dealt with by the court at pages 151 to 152 of the application book.

GUMMOW J:   Well, 152, line 10, is it not, in particular, “The applicant’s son”?

MR GURVICH:   I am sorry, your Honour, what - - -?

GUMMOW J:   At 152, line 10?

MR GURVICH:   Yes, but also below that, line 14.

GUMMOW J:   Yes.

MR GURVICH:   It is one of the reasons, your Honours, why I provided the Court with copies of passages from Wellman’s book in a chapter entitled “Fallacies of Testimony”.  An example is provided there that evidence where good faith is unquestionable – this is at page 149 about halfway down the page, there is a fallibility which is the product of the passage of time and misremembering over time which must particularly be the case in the context of a family where there are discussions - - -

GUMMOW J:   Now, Mr Holdenson says this general evidence of violence, if one can put it that way, went in to help explain why the complainant did not make a complaint at the time.  He says that on 176.

MR GURVICH:   Yes.  In my submission, that does not overcome the objectionable nature of this evidence, that is, matters that are occurring without the knowledge of the complainant or, at least, without her presence.  It cannot, in my submission, be categorised as simply going to the background matters.  If I may turn to the first special leave question.

McHUGH J:   Yes.

MR GURVICH:   Questions of the same character and effect of the ones dealt with by this Court in Palmer’s Case were asked here in the record of interview in the application book at pages 97, 106 to 108, and 113.  Again, during the course of the trial questions of this nature were raised both in evidence in-chief and in cross-examination on behalf of each party.  During the course of the record of interview - - -

McHUGH J:   But the applicant’s counsel at no stage sought to have the relevant parts of the record of interview excluded and did not Justice Brooking take the view that counsel had taken a forensic decision to focus upon the complainant’s possible motives?  He cross-examined her at length about it and then raised the matter again in the applicant’s evidence in‑chief.

MR GURVICH:   Your Honour, once the questions had been asked during the record of interview, it may be that they ought to have been requested to be excluded but once they were admitted, the defence counsel is placed in the position where he is damned if he does and damned if he does not.  The state of the law at that time, the time of this trial which was prior to the High Court’s decision in Palmer’s Case, meant that, it is my submission, an objection to that material would have been futile.

McHUGH J:   I do not know whether it would have been futile or not but the fact is it was a live issue.  There were quite a number of decisions around the country where there were debates about whether or not this sort of cross-examination was or was not admissible.  Why should this Court grant leave in respect of a matter that the judges of the Court of Criminal Appeal thought was the result of a forensic decision?

MR GURVICH:   Because that forensic decision could not have been taken with an awareness of later decisions where the situation was made clear.

McHUGH J:   No, but any self-respecting counsel, appearing in a case like this, would be aware of the arguments about the admissibility of this type of questioning.  Indeed, if my recollection serves me right, the question had been raised in Victoria, had it not?

MR GURVICH:   Yes, it had, in Costin’s Case.  That is correct.  But the same situation arose in Palmer where there was no objection to those questions.  It is no different to the case here.

McHUGH J:   But this is a different case than Palmer, is it not, because, here, the Court of Appeal judges took the view that if you let the record of interview in without objection, you cross-examined the complainant about it and then you led material in evidence in-chief.  It does not seem a very promising vehicle to raise this point on a special leave application.  We do not sit here as a Court of Criminal Appeal, you know.

MR GURVICH:   The reason, your Honours, is because the questions were asked in the record of interview at a time when the opportunity to remember, and under that kind of pressure, is not available to the respondent to those questions.  That is, he is left to speculate and hypothesise and that is all he could possibly do.  The fact that his Honour Mr Justice Brooking found that reasons advanced by the defendant during the course of the trial were far fetched supports that thesis, that is, he is left to speculate.  In addition, the absence of a firm and clear direction in relation to that evidence, I add to that submission.  If I may turn to the second question.

McHUGH J:   Yes.  This is the exemption point. 

MR GURVICH:   Yes, your Honour.  The Court of Appeal, in my submission, retrospectively examined the question as to whether the children would have given evidence and they decided, in my submission, that they would have, that is, the three siblings would have given evidence, or the four siblings – includes the complainant.  In my submission, that ignores the fact that the opportunity to take the exemption by four candidates for it was never given.

McHUGH J:   That may be, but the court took the view, in any event, it was a matter for the proviso, was it not?  It is very difficult.  It seems so highly improbable that any of them would have taken advantage of it, having regard to the evidence they gave at the trial and having regard, apparently, to what they had said in the depositions, that the trial judge ought to have refused the application.

MR GURVICH:   But, your Honour, that is the retrospective reasoning the Court of Appeal utilised and the trial judge did.  That ignores several matters.  There are many occasions where complaints are made and withdrawn for no apparent or no clear reason and we are all left to speculate, the fact that unlikely candidates do apply for exemptions.

McHUGH J:   Yes, I know, but I am not even sure that this particular section is designed for the benefit of the accused, you know.  It is for the benefit of the witnesses rather than for the accused.

MR GURVICH:   That is correct and that was conceded in the Court of Appeal that that is the case.  But it is a mandatory provision and if the proviso operates, it is vestigial legislation.  It ignores the fact that the candidate needs to consider the matter in a neutral way before the case commences.  They are the matters, your Honours.

McHUGH J:   Thank you very much.  We need not hear you, Mr Holdenson.

MR HOLDENSON:   If the Court pleases.

McHUGH J:   Mr Gurvich has very eloquently put forward three broad grounds to justify the grant of special leave to appeal to the applicant against his conviction on a number of counts of sexual assault.  Those grounds concern, first, the admissibility of evidence as to a possible motive for the complainant to lie.  As to that, we think that, having regard to the conduct of the applicant’s case at the trial, nothing in Palmer v The Queen (1998) 72 ALJR 254 made questions concerning the complainant’s motive inadmissible.

The second ground upon which Mr Gurvich relies is the trial judge’s failure to instruct members of the applicant’s family that they could apply for an exemption against giving evidence in the proceedings.  As to that, we agree with Justice Brooking in the Court of Appeal that, if an application for exemption had been made, which seems highly improbable, the trial judge ought to have refused it.  But, in any event, as Justice Brooking said, it was a case for the application of the proviso.

The third ground relied upon by Mr Gurvich concerned the admissibility of evidence as to the applicant’s violence against third persons.  As to that ground, we think that evidence as to the applicant’s violence was plainly relevant.  In so far as some evidence may have been admitted that should not have been admitted, the material was really on the periphery of the case.  If that evidence was inadmissible, the case was one for the proviso and certainly does not require the grant of special leave to appeal in this case.

For those reasons, the application for special leave to appeal is dismissed.

AT 12.43 PM THE MATTER WAS CONCLUDED