Doggett v The Queen

[2000] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B75 of 1999

B e t w e e n -

GRAHAM HENRY DOGGETT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2000, AT 2.42 PM

Copyright in the High Court of Australia

MR A.J. RAFTER:   May it please the Court, I appear for the applicant in this matter.  (instructed by Dearden Lawyers)

MS L.J. CLARE:   May it please the Court, I appear for the respondent in this matter.  (instructed by the Director of Public Prosecutions (Queensland))

GAUDRON J:   Yes, Mr Rafter.

MR RAFTER:   Your Honours, the applicant was convicted on an indictment charging seven sexual offences allegedly committed upon his stepdaughter.  The offences were alleged to have been committed over a period spanning October 1979 to November 1986.  He was sentenced to four and a half years imprisonment.  The ground upon which the Court of Appeal’s judgment is challenged is that the Court of Appeal was wrong to conclude that a Longman warning was not required in the circumstances of the case.  The principal reason for the submission below that a Longman warning was required was that the complaint to police was not made until 12 February 1988, some 18 years after the occurrence of count 1 and some 11 years after count 7.

The principal reason for rejecting the ground of appeal below related to the contents of a tape-recorded telephone conversation that had occurred between the applicant and the complainant, with the assistance of the police, on 6 March 1988.  There is a transcript of the tape-recording in the application book.

GUMMOW J:   Page 67.

MR RAFTER:   Yes, your Honour.

GAUDRON J:   Yes, that was certainly evidence that it was capable of constituting corroboration.

MR RAFTER:   I do not assert otherwise, your Honour, most certainly not.  However, the admissions that were made, to the extent that they were capable of being construed as such, were general in nature and did not specifically relate to the seven offences charged.  There were two of attempted rape and five of indecent dealing.

GUMMOW J:   Well, there is at least a reference at line 35 of the complainant being eight years old.

MR RAFTER:   Quite.  The relevant parts in the application book include those at about line 10 page 6 and about lines 30 to 35 on the same page.

GUMMOW J:   No, I mean in the transcript on page 67.

MR RAFTER:   I am sorry, your Honour.  Those are the extracts of the conversation in the judgment as set out by Mr Justice Pincus.  Yes, they are certainly the relevant passages.  The whole of the conversation is set out in the exhibit, where the principal areas are at pages 6 and 7 of the application book.  The application book also contains the explanations given by the applicant for those apparently incriminating statements when he gave evidence.  In short, his explanation for the statements was to the effect that he had been the subject of unwanted attention from the complainant herself, in the sense that she was somewhat precocious.  There were various instances wherein she had listened in with a glass from her bedroom into the bedroom occupied by the applicant and his wife.  She had placed her hand in his genital area on one particular occasion and his explanation in evidence in-chief was that it was those matters that he had in mind when he made the statements to the complainant when he received the telephone call, surprisingly.

GAUDRON J:   Does your argument come to this, that it was not inevitable that the jury would treat these telephone conversations as corroboration of the charges?

MR RAFTER:   That is right, your Honour.

GAUDRON J:   And therefore the Longman warning should have been given.

MR RAFTER:   That is right, and even if the statements in the telephone conversation are clearly capable of amounting to corroboration, whether they do, in fact, is a matter entirely for the jury.  Now, the reasons for the Longman warning do not relate to whether a case is corroborated or not; they relate principally to the significance of delay in making a complaint as it affects the defendant’s ability to defend himself.  If one looks at the principal passages in the Court’s decision in Longman 168 CLR 79, first of all in the joint reasons of Justices Brennan, Dawson and Toohey at page 91 ‑ ‑ ‑

GUMMOW J:   Well, we are pretty familiar with that.

GAUDRON J:   I think we might be assisted if we hear from Ms Clare, Mr Rafter.  Yes, Ms Clare.

MS CLARE:   The respondent strongly challenges the notion that there can be, or even should be, an absolute rule that a warning should be given in all cases of delay.

GAUDRON J:   All right, so be it.  Why should there not have been one in this case?

MS CLARE:    In this case, particularly looking at the aspects of corroboration, there were, in fact, two pieces of corroboration:  the first was the pretext phone call statements, which have already been alluded to; the second was some evidence from the brother of the complainant who saw the applicant leaving the child’s bedroom when he was naked and the child was in the bedroom.  It is accepted that that second piece of potentially corroborative evidence falls within an area which would fit within the submissions made by the applicant, that is, that it is not inevitable that the jury would have accepted that as corroboration, that it was still open to the jury to reject it, and yet convict the applicant on the evidence of the complainant.

The first category of potentially corroborated evidence, that is the evidence of the telephone call and the statements made by the applicant, fall, in my submission, into an entirely different category.  Those statements were not challenged by the defence as to being made.  The issue, of course, was what the effect of those statements was, whether, in fact, they were admissions of a general type to the molestation of the complainant and, on their face, they were.  The applicant gave in evidence at trial an implausible explanation as to why he said the things that he did but, even beyond that, in my submission, in reaching the verdicts that it did, that is finding the applicant guilty of the offences, the jury must have rejected the applicant’s explanation for his statements on the telephone, the jury must ‑ ‑ ‑

GAUDRON J:   Well, that is not inevitable.  That is not so, is it?

MS CLARE:   Well, in my submission, it is, for this reason, with respect ‑ ‑ ‑

GAUDRON J:   Well, absent a Longman warning, you cannot say that.  Had a Longman warning been given, you might have come to the conclusion that very likely they rejected it.

MS CLARE:   In my submission, with respect, if the jury had accepted his explanation for the making of those statements, then the jury could not rationally have found him guilty.  The jury could not rationally have excluded the possibility of innocence in respect of the offences, for this reason.  The accused’s explanation for agreeing to the allegation that he had molested this girl was that he thought that she was referring to what he said had in fact gone on between them, that is, some episodes of sexual banter and some episodes where she had acted as the seducer where he was innocent.  Now, in my submission, it is completely implausible and highly unlikely that he would hold that belief, that interpretation of the allegation being put to him by this girl in circumstances where – that he would hold that belief if her account were true, that is, that there had been a course of conduct of abuse of her ‑ ‑ ‑

GAUDRON J:   Ms Clare, it is all very well to go to the facts, but as a proposition of law you assert, do you, that a Longman warning is never necessary where there is corroborative evidence?

MS CLARE:    No.

GAUDRON J:   Well, as a proposition of law do you assert that?

MS CLARE:    No, I do not.

GAUDRON J:   Well, what is your proposition of law that justifies the course that was taken in this trial?

MS CLARE:   The facts of this case.

GAUDRON J:   Well, can you put it a little bit ‑ ‑ ‑

MS CLARE:   In my submission, it is the whole circumstances that need to be assessed in the determination of whether or not a Longman direction is warranted.  That is ‑ ‑ ‑

GAUDRON J:   Do you find any support for that in what was said in Longman?

MS CLARE:   Yes.  Can I turn your Honours’ attention to page 88 of the judgment and particularly from perhaps the second part of that paragraph, which goes on - if the first part of the relevant section under consideration abolished the requirement of a suspect class of witness, it goes on to say:

no particular set of circumstances could justify the judge’s directing jurors.....a warning based upon general experience.

GAUDRON J:   That is the old general warning that used to be given about complainants in sexual cases.

MS CLARE:   Yes.

GAUDRON J:   Yes, but the Longman warning is a different warning.

MS CLARE:   Yes.  The Longman warning goes to the circumstance of delay being a relevant feature in the trial.  It is, in my submission, implicit in the judgments in both Robinson and Longman in the way the necessity for that warning was approached in that case.  It is implicit that it is the whole of the circumstances that need to be assessed as to whether or not such a warning is warranted in the circumstances.  If one turns to the bottom of page 90 in Longman, where the joint judgment sets out the circumstances in that case which necessitated the warning ‑ ‑ ‑

GAUDRON J:   Well, we have got the delay in prosecution here, have we not?

MS CLARE:   Yes.

GAUDRON J:   We have got the nature of the allegations?

MS CLARE:   Yes.

GAUDRON J:   The age of the complainant at the time of the events alleged?  It is a relevant circumstance here, is it not?

MS CLARE:   Yes.

GAUDRON J:   Now, we do not have the awakening of a sleeping child, that is true, but there were other difficulties in the case from the point of view of the prosecution, were there not, in any event?

MS CLARE:   Yes, there were inconsistencies and there was, in fact, a ‑ ‑ ‑

GAUDRON J:   Yes, and there was a particular problem, was there not, about the dates of events when the complainant’s mother went to hospital in Brisbane?

MS CLARE:   In relation to counts 1 and 2 which was ‑ ‑ ‑

GAUDRON J:   Yes, well, when you have a problem with respect to the dates of particular events charged, you would think that the considerations that required the Longman warning, namely, the prejudice in preparing a defence, would be of particular relevance, would you not?

MS CLARE:   In that case the applicant set forward a case for saying that counts 1 and 2 could not have happened because he was not a member of the household on this particular date, and there was a specific date given for those two offences.  The evidence, of course, was that, notwithstanding the fact he had not moved into the house at that time, he had been a frequent part of the household before that time.  So that issue of whether or not he did have opportunity on that occasion was squarely raised before the jury.

GAUDRON J:   No, not whether he had opportunity to commit the offence, whether he had opportunity to check out the matters which might have provided a defence, given the delay.

MS CLARE:   I know your Honour is particularly interested in counts 1 and 2.  If I could speak more generally though, his explanation for his relationship with this complainant, who was in effect his stepdaughter over this time, was that there was this sexual overtone between the two of them, an environment of sexual banter, where she was being the provocative one.  So, implicit in his account is an acknowledgment that there was opportunity, that there was secrecy and there was privacy between these two people.  From that perspective and in those circumstances, it is not a case where he has lost the chance of calling witnesses who may have seen something.  It is not a case where he has lost the chance ‑ ‑ ‑

GAUDRON J:   Well, who knows?

MS CLARE:   But the fact that these other things, on his account, occurred without anybody knowing ‑ ‑ ‑

GAUDRON J:   There were specific offences charged.  The charge was not a charge of specific sexual banter over a period of years with a degree of illicit frisson; the charge was of specific sexual offences.

MS CLARE:   Yes, that is so, but in looking at the difficulties in which delay in this case presented to this applicant, it is my submission that in fact it was not a dominant feature in the way that it was in Longman or in Robinson.  It was not such a case that deprived him of his ability to present a proper defence because he did have a positive recollection of the circumstances between these two people, he did have a positive recollection of specific events between the two of them which he was able to present to the jury.  On his account he would have been the only person who was able to give that evidence in any event because he speaks of the circumstances which occurred between the two of them.

Unlike Longman and Robinson, it is a case where there was a complaint made to the mother of the child in circumstances where it could have been considered to be a fresh complaint.  And if I can just go back – I know your Honours were not impressed with this, but I am being masochistic today – to this issue of the jury’s reasoning.  Even if your Honours were of a mind that this was a case where a direction should have been given, ultimately, in my submission, there can be no miscarriage in this case, for this reason:  in circumstances where the two accounts between the parties are so different – one, a course of conduct culminating in an attempted rape over a course of time with the stepdaughter; the other, some sex talk and some attempts by the girl, but nothing further - in those

circumstances it beggars belief to think that if the girl’s account were true, this man could have misunderstood her allegation of molestation to simply mean the sexual bantering or teasing him while he is in the toilet.  If the jury accepted his explanation which he gives in the record, if I can refer your Honours to that ‑ ‑ ‑

GAUDRON J:   Now, that is right, but it was the Crown’s obligation or the prosecution’s obligation to prove its case beyond reasonable doubt.  The case depended very significantly on the credibility of the complainant, did it not?

MS CLARE:   Well, in these cases it always does.

GAUDRON J:   Yes.  And if a Longman warning had been given, her evidence may not have been so readily accepted, is that not right?

MS CLARE:   In my submission, in the circumstances of this case, there is no real risk of that because the jury had these admissions by the applicant.  They were entitled to treat them as admissions of a general kind.  Whilst the applicant purported to give some explanation for them, in my submission, that explanation must have been rejected by the jury who convicted him and if those admissions were accurate, then there is no substantial miscarriage of justice even if this is a case where, ordinarily, a Longman warning should have been given.  Those are my submissions.

GAUDRON J:   Yes, thank you, Ms Clare.  We need not trouble you further, Mr Rafter.

There will be a grant of special leave in this matter.

MR RAFTER:   Thank you, your Honour.

AT 3.03 PM THE MATTER WAS CONCLUDED