Doggett v the Queen

Case [2001] HCA 46

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, KIRBY AND CALLINAN JJ

GRAHAM HENRY DOGGETT   APPELLANT

AND

THE QUEEN  RESPONDENT

Doggett v The Queen
[2001] HCA 46
9 August 2001
B54/2000

ORDER

1.   Appeal allowed.

2.   Order of the Supreme Court of Queensland Court of Appeal of 29 October 1999 set aside and in place thereof, order that:

(a)the appellant's appeal to that Court be allowed;

(b)the appellant's conviction on all counts be quashed; and

(c)there be a retrial.

On appeal from the Supreme Court of Queensland

Representation:

A J Rafter for the appellant (instructed by Dearden Lawyers)

L J Clare for the respondent (instructed by the Director of Public Prosecutions (Queensland))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Doggett v The Queen

Criminal law – Direction to jury – Events allegedly occurred between 1979 and 1986 – Complaints made to police in 1998 – Taped telephone conversation allegedly corroborating complaints – Whether Longman warning required – Whether case suitable for application of proviso.

Criminal Code (Q), s 668E(1A).

  1. GLEESON CJ.   In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen).  In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence.  Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal.  The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration.  Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue.  Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.

  2. The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary.  Directions are not ritualistic formularies.  Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

  3. When an accused person has…

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Doggett v the Queen [2001] HCA 46
Case
[2001] HCA 46
Decision Date

CaseChat Overview and Summary

In the case of Doggett v The Queen, the appellant, Graham Doggett, was convicted of multiple counts of sexual offences against his former step-daughter. The case revolved around the adequacy of the trial judge's warning to the jury regarding the reliability of the complainant's evidence and whether a Longman warning was required. The appeal raised three primary issues: the applicability of the Longman warning to the case, whether the rule established by Longman should be re-expressed to exclude similar cases, and whether the appeal should be dismissed if the Longman rule applied, given the absence of a substantial miscarriage of justice.

The Court of Appeal of Queensland initially dismissed the appeal, finding that a Longman warning was not necessary due to the existence of corroborative evidence in the form of a recorded telephone conversation between the appellant and the complainant. However, the High Court, on appeal, found that no Longman warning was required in this case, as the circumstances were sufficiently different. The Court concluded that the presence of corroborative evidence, in this case, a recorded admission by the appellant, made a Longman warning unnecessary. The Court held that the appellant was represented by experienced counsel who did not request a more elaborate warning, and the jury's verdicts were based on the totality of the evidence, including the corroborative recording.

The High Court found that the Court of Appeal had erred in dismissing the appeal. The Court held that the trial judge's warning did not meet the requirements established by Longman. However, the appeal was allowed on the basis that no substantial miscarriage of justice had occurred, as the jury had access to corroborative evidence. The Court quashed the appellant's convictions and ordered a retrial.

The final orders of the Court were to allow the appeal, set aside the order of the Supreme Court of Queensland Court of Appeal, quash the appellant's convictions on all counts, and order a retrial. The Court found that while the trial judge's warning was insufficient, the presence of corroborative evidence meant that the absence of a Longman warning did not result in a substantial miscarriage of justice.

Orders

Orders of the court

1. Appeal allowed.

2. Order of the Supreme Court of Queensland Court of Appeal of 29 October 1999 set aside and in place thereof, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's conviction on all counts be quashed; and

(c) there be a retrial.

Background

Background to the litigation

In the present case, the trial judge gave the jury a warning to "scrutinise [the complainant's] evidence very carefully"[36]. It is conceded that if Longman applied, such a warning fell short of what was required. The questions in this appeal are, therefore:(1)Whether the warning mandated by Longman was applicable to this case, in terms of the rule established by that decision;(2)Whether that rule should be re‑expressed to exclude a case such as the present; and (3)If the rule in Longman did apply, whether the appeal should nonetheless be dismissed on the ground that "no substantial miscarriage of justice has actually occurred"[37].[36]R v Doggett unreported, District Court of Queensland, 1 June 1999, summing up of Britton DCJ.[37]Criminal Code (Q), s 668E(1A).The facts, trial and verdicts Mr Graham Doggett ("the appellant") was tried in May 1999 upon an indictment containing seven counts alleging sexual offences against his former step‑daughter ("the complainant"). The facts, and the nature of the evidence and complaints, are set out in the reasons of Gaudron and Callinan JJ. It is sufficient for my purposes to note the following. The incidents referred to in the first and second counts were alleged to have occurred on the same occasions sometime between 10 October 1979 and 12 October 1980. Accordingly, there was a time gap of nearly twenty years between the first two alleged offences and the trial. Because the complainant's first statement to police was not made until 12 February 1998, the delay between these first incidents and notification to the authorities was about eighteen years. The second occurrence, the subject of the third count, allegedly took place some two to three months later. Accordingly, intervals of the same order are involved. The fourth and fifth counts referred to two aspects of attempted sexual penetration alleged to have occurred on a date unknown between January 1981 and January 1983. The sixth count referred to an incident alleged to have occurred on a date unknown between October 1985 and November 1986. The seventh count referred to an alleged incident during September, October or November 1986. The time intervals before the complaint to police and the applicant's trial were correspondingly shorter in respect of these last‑mentioned occurrences. It was soon after the last‑alleged incident that the complainant's mother found the complainant upset and pressed her for an explanation. The mother testified that the first complaint was made in September or October 1986. It allegedly included the accusation by the complainant that "[the appellant] used to touch me when I was little. Then he stopped, but now he's started up all over again". Notwithstanding this report to her mother, the complainant did not specifically mention in 1986 the most serious of the incidents of which she was later to complain, namely the attempted sexual penetration. She only did this in 1990. However, in cross‑examination, the complainant said that she had told a former school friend in 1987 that the appellant had touched her sexually and had attempted to have sexual intercourse with her. The school friend was called as a witness in the defence case and gave evidence to the contrary.

Evidence

Evidence Before The Court

In my opinion, no direction in accordance with Longman was required. Indeed, as an analysis of that case will show, it is not applicable to the present case. Some trial judges, if they had heard this case, might have thought it appropriate to give a direction to the jury concerning the difficulties facing the appellant in defending the charges. But such a direction would have been very different from a Longman type direction, was not required as a matter of law, and was never sought. The appeal must be dismissed.The complainant's evidence The indictment alleged that the seven offences occurred over a period of seven years between October 1979 and November 1986. In support of the first two counts in the indictment, the complainant gave evidence that, on a night when her mother was in Brisbane for a medical examination, she had got into the appellant's bed after having had a bad dream. Later, she awoke to find the appellant with his hands under her underpants rubbing her clitoris. She told him that she did not like it. She went back to sleep. Later, she awoke to find the appellant doing the same thing. The complainant told him that, if he did not stop, she would tell her mother. The appellant said that, if she told anyone, her mother and brothers would be taken away from her. In support of the third count, the complainant said that about two or three months later the appellant called her into his bedroom. He was lying on the bed, masturbating. He ejaculated onto his stomach. He took the complainant's hand and smeared it through the semen on his stomach. In support of the fourth count, the complainant said that, when she was 10 years old, she saw the appellant standing in a hallway with a towel around his waist. He asked her for a cuddle and then rubbed his hands up and down her back and over her buttocks area. He asked her to get on the floor, removed her shorts and underpants and lay on top of her. She said that she could feel something hard trying to penetrate her vagina. When she complained that it was hurting, the appellant said "that he couldn't fit". In support of the fifth count, the complainant gave evidence that the appellant then told her to go into the bedroom and lie on the bed. He got on top of her and she felt a hard object attempting to penetrate her vagina. She believed that it was his penis. The appellant got up, grabbed his towel and left the room when "we heard footsteps" coming up the verandah. She said that her brother then came into the room and asked her what the appellant had been doing in her room. In support of the sixth count, the complainant said that, when she was aged 13 or 14, she was in a swimming costume. The appellant grabbed her by the arm and with his other hand pulled at her "bikini bottoms". In support of the seventh count, the complainant said that, in 1986 when she was about 15 years old, the appellant came up behind her and pulled the back of her pants down slightly. He put his hand underneath her buttocks area and towards her front. Corroboration

Decision

Reasons for decision

GLEESON CJ GAUDRON AND CALLINAN JJ HUGH J KIRBY J
At the close of the trial judge's charge to the jury in the appellant's trial, containing the limited warning set out above[38], no application was made for an elaboration of the warning to ensure that it conformed to Longman. It was common ground that counsel who defended the appellant at his trial was experienced and competent. After a retirement of more than eight hours, the jury returned verdicts of guilty on each count. The trial judge imposed substantial sentences of imprisonment.[38]At [101] of these reasons.The decision of the Court of Appeal In the Court of Appeal of Queensland the principal complaint was about the absence of a Longman warning. This was met chiefly by reliance on a recording of a contrived telephone conversation that took place between the complainant and the appellant on 6 March 1998[39]. That conversation was apparently initiated on the suggestion of police to whom the complainant had made her accusations.[39]See the reasons of Gaudron and Callinan JJ at [33]. The recording was made without the knowledge of the appellant. No suggestion was advanced at trial, or on appeal, that the recording was illegal under federal or State law or that it should have been excluded from evidence in the trial. Indeed, it was received in evidence without objection. This appeal must therefore be approached on the footing that the recording was properly before the jury. As conceded for the appellant, the recording was capable of being construed as containing admissions by the appellant to sexually molesting the complainant when she was a young child. The Court of Appeal unanimously dismissed the appeal. Pincus JA (with whom Ambrose J agreed) concluded[40]:"[I]t is my opinion that a Longman direction would not have been appropriate. To suggest to the jury that, despite the strong support given to the complainant by the admissions [in the recorded telephone conversation], it would be dangerous to convict would have seemed to them, rightly, unconvincing. It is my view, also, that this Court is entitled to take into account that the appellant was represented by a senior counsel of very long experience, who did not make any such complaint as is presently put forward, when the trial judge had concluded his directions."[40]R v Doggett [1999] QCA 441 at [22]. McPherson JA was of a like opinion. After referring to Longman[41], his Honour said[42]:"If in this case one thing is clear from the statements in the telephone conversation between the complainant and the appellant in 1998, it is that the appellant recollected the event or events (which were alleged to have taken place between 1979 and 1986) about which she was complaining. He made no suggestion in the course of the telephone conversation that he was unable to do so. That being so, it would have been a completely mechanical application of the requirement stated in Longman, as well as potentially confusing to the jury, for the trial judge to have directed them to bear in mind that the [complainant's] recollection in 1998 of those events was, after so long a delay, now incapable of being 'tested' or independently verified."[41]Especially Longman (1989) 168 CLR 79 at 91.[42]R v Doggett [1999] QCA 441 at [26].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON AND CALLINAN JJ, HUGH J, KIRBY J

In support of the seventh count, the complainant said that, in 1986 when she was about 15 years old, the appellant came up behind her and pulled the back of her pants down slightly. He put his hand underneath her buttocks area and towards her front. Corroboration An important distinction between this case and Longman[6] is that there was no evidence corroborating the complainant's evidence in Longman. In this case, there was evidence that strongly corroborated the complainant's evidence.[6](1989) 168 CLR 79. In R v Kilbourne[7], Lord Reid pointed out:"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."[7][1973] AC 729 at 750, cited by Brennan CJ in BRS v The Queen (1997) 191 CLR 275 at 282. No special form of evidence is required to amount to corroboration. It may come from the evidence of other witnesses[8], from admissions by the accused[9] or from inferences drawn from the accused's conduct and statements[10]. Where evidence connects or tends to connect the accused with the crime charged, it corroborates the evidence of a witness directly implicating the accused in that crime because it strengthens the witness's evidence by rendering it more probable[11].[8]R v Kilbourne [1973] AC 729.[9]R v M [1995] 1 Qd R 213; R v Massey [1997] 1 Qd R 404; R v D (1998) 71 SASR 99.[10]Eade v The King (1924) 34 CLR 154 at 158.[11]R v Kilbourne [1973] AC 729 at 758; Doney v The Queen (1990) 171 CLR 207 at 211; BRS v The Queen (1997) 191 CLR 275 at 283. In determining whether evidence constitutes corroboration, the question for the judge is whether a reasonable jury could regard the evidence as "increasing the probability that the complainant's entire testimony was truthful"[12]. An admission by the accused that he or she has committed the offence is not only independent evidence of the offence but evidence corroborative of a complainant[13]. However, an admission may be corroboration even if it only refers to one element of the offence. In R v Massey[14] the Court of Appeal of Queensland held that, in a case where the accused was convicted of indecently assaulting and raping his step-daughter on several counts, an admission to her mother by the accused that he was the father of the step-daughter's child was corroborative of the step-daughter's evidence. His admission confirmed one of the elements of one of the offences – sexual intercourse. McPherson JA and Demack J said[15] that the admission "tended to confirm, and indeed established, her story that sexual intercourse had taken place, and in that way it corroborated her evidence by 'increasing the probability that [her] entire testimony was truthful'."[12]R v M [1995] 1 Qd R 213 at 221 per Davies JA.[13]R v D (1998) 71 SASR 99.[14][1997] 1 Qd R 404.[15][1997] 1 Qd R 404 at 406.