Douglass v The Queen
[2012] HCATrans 111
[2012] HCATrans 111
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A29 of 2011
B e t w e e n -
RAYMOND HOWARD LYLE DOUGLASS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
CRENNAN J
BELL J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO ADELAIDE
ON FRIDAY, 11 MAY 2012, AT 2.04 PM
Copyright in the High Court of Australia
MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Patsouris & Associates)
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS A.D. HARRIS, for the respondent. (instructed by Director of Public Prosecutions (SA))
CRENNAN J: We have an affidavit of Mr Patsouris.
MS SHAW: Yes, your Honours. It was intended to provide more detail in relation to the affidavit that appears in the application book, page 55 to 56. I ask the Court to receive that affidavit in relation to the application for a dispensation with the rules at 41.02.
CRENNAN J: Is there any opposition to that application?
MR HINTON: There is no opposition to that application to the extent that an extension of time is sought. If the matter warrants a grant of special leave, then that is not opposed.
CRENNAN J: Thank you, Mr Hinton. Very well, Ms Shaw, you have that extension.
MS SHAW: Thank you, your Honours. Your Honours, this application for special leave concerns the important question of the application and discharge of the burden of proof where the prosecution case depends solely on an out of court statement and unsworn evidence of a young child contradicted in court by the accused’s sworn evidence where that sworn evidence is not rejected by the trial judge. The Court of Criminal Appeal held that in such a case, firstly, a judge sitting alone is entitled to find the charge is proved beyond reasonable doubt by treating it as a case of word against word, so that if one accepts the truthfulness of the child’s allegation, one necessarily rejects the accused’s sworn evidence.
Secondly, on appeal, although the judge at first instance has not made any finding adverse to the accused’s evidence, the Court of Appeal may infer that the trial judge must have rejected the accused’s evidence beyond reasonable doubt and excuse the lack of any reasons for doing so on the basis that no reasons are necessary in a contest of word against word. We submit that it is a matter of ‑ ‑ ‑
CRENNAN J: Now, just looking at the application book at page 47 in the decision of the Chief Justice at paragraphs 63, 64 and 65, that passage of reasoning concludes with this statement:
The Judge’s acceptance of C’s evidence is the explanation for the rejection of the defence case.
As I apprehend it, it is that reasoning which you say is erroneous?
MS SHAW: We do, your Honour.
BELL J: Underlying that is the contention, is it, that where the only evidence is the evidence of a child recorded at the time when the child was four years and two weeks old, or something of that nature, there is an inherent difficulty in discharging the onus of proof beyond reasonable doubt. That is really what your contention is, is it not? Does it turn on whether or not the judge gave reasons for rejecting the defence case so much as the sufficiency of the evidence to discharge the burden?
MS SHAW: It does not, your Honour. We submit that because the judge has not rejected the defence case and the evidence is sworn, then the child’s statement cannot displace the accused’s sworn evidence. In this case, the only comments that the trial judge made about the accused’s evidence were positive, namely, that there was nothing in his demeanour that assisted the prosecution. In essence, what we submit is the way that the Court of Appeal, when faced with what was the out of court statement of the child which, at its highest, as appears at pages 88 to 89 of the application book, was, as your Honour has pointed out, at the age of four years and two weeks, in the context of an interview where there were no preliminary inquiries as to whether the child understood the difference between truth and lies, as to whether the child understood the seriousness or the importance of what she was about to say, initially made a series of denials that anyone did anything to her, in particular, in relation to her willy, that her brother had touched her – she had been asked to touch his willy and that when she was asked if anybody else had asked her to, she denied it, and it was not until the interviewer prompted her with a reference to the conversation with the mother outside that she mentioned touching the grandfather’s.
That was the high point of the prosecution evidence in‑chief and we point out that in contrast to the situation that applies in relation to other States that were the subject of this Court’s decision, for example, in Gately v R, (2007) 232 CLR 208, where in Gately’s Case the evidence, the child’s out of court statement became the child’s evidence in‑chief and in Gately’s Case the accused did not give any contradictory evidence. Under the South Australian provision, the statement out of court does not become the child’s evidence and in this case the prosecutor did not ask the child any questions at all in‑chief. There was of course then the limited cross‑examination. So the question of whether or not the burden of proof can be discharged where there is evidence that is not subject to the requirements of our section 9 in relation to unsworn evidence that was not the subject of any inquiry as to the child’s competence in terms of choosing between understanding the difference between truth and lies, can indeed discharge the burden of proof.
In our respectful submission, the approach of the Court of Criminal Appeal in that situation is erroneous. The way that the court endeavours to meet the failure of the learned trial judge to reject the accused, that is, applying cases such as Murray v The Queen, for example, in this Court (2002) 211 CLR 193, the Court of Appeal characterised what was an issue as a contest between the word of the child and the word of the accused on oath. We submit that that characterisation was misplaced when, in this particular case, clearly the word of the child was in the very unsatisfactory out of court setting and the accused’s word was on oath.
BELL J: When the child was called for the purpose of being cross‑examined, was there any voir dire concerning the child’s understanding of the obligation to tell the truth?
MS SHAW: There were two aspects raised. One was, did the child know the difference between truth and lies, and the child was asked about how many people were in the room, and was it two, that was the truth, if it was 50, it was a lie. The judge then told the child, “I am telling you it is important to tell the truth” and then said to the child, “Will you tell the truth?” That was the extent of the questioning. That, of course, does not comply with section 9 of our Evidence Act. In fact, the judge was required, under the Evidence Act, to inquire as to whether or not the child was able to give evidence on oath. As our court has held in Starrett’s Case, which is in our materials, R v Starrett (2002) 82 SASR 115, at page 24 his Honour the Chief Justice pointed out that the legislative provisions requiring a trial judge to only receive unsworn evidence if the child has been asked whether or not they are able to give sworn evidence, that is, unless the witness – the presumption is being displaced, is effectively a precondition to the admission of the evidence.
BELL J: But we are talking here of the evidence of a child of six, is that right?
MS SHAW: At the time of giving evidence the child, as I understand it, was five.
BELL J: Five.
MS SHAW: Her birthday was in October, the trial was in August.
BELL J: So are you making a complaint about the failure of the trial judge to consider whether a five-year-old could give evidence on oath?
MS SHAW: No, I am not making a complaint because of the age. I am pointing out that the legislative provision was not complied with and under our evidentiary ‑ ‑ ‑
BELL J: I am sorry, Mrs Shaw, can you just explain in what way?
MS SHAW: Your Honour, in essence, the effect of the provision is that the evidence should not be received at all unless and until it has been complied with.
BELL J: Until section 9 has been complied with?
MS SHAW: Until section 9 has been complied with.
BELL J: And what aspect of section 9 was not complied with?
MS SHAW: In subsection (2), it reads:
If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that –
(a)the judge –
undertakes those two Inquiries that are referred to and his Honour did refer to.
BELL J: I am sorry. I thought you said that the judge did ask the child questions designed, as I understood it, to ascertain whether the child understood the obligation to tell the truth.
MS SHAW: He did, you Honour, but the first step that the judge was required to undertake under subsection (2) was an Inquiry as to whether or not a child was capable of giving sworn evidence or affirmation before permitting the person to give unsworn evidence.
BELL J: That was the matter I was taking up with you, Mrs Shaw. It does not seem to me to be your strongest point to say that the judge failed to take steps to see whether a five‑year‑old was capable of giving sworn evidence.
MS SHAW: Your Honour, it is not in terms of the argument we put. I merely point out that it was, indeed, not compliant with the statute. Your Honours, can I come back then to the reasons of the Court of Appeal and as to how they overcame the failure of the trial judge to make any adverse finding, bearing in mind the nature of the child’s statement. The Court relied upon the remarks of his Honour Justice McHugh in the New South Wales Court of Appeal in Soulemezis v Dudley Holdings to reason – if your Honours go to the appeal book at page 43, his Honour the Chief Justice refers to the way a case might be resolved. At paragraph 47, line 32, his Honour says:
Particularly when a finding or the resolution of a case turns on credibility, it may be enough for the judge to say that the judge believes one witness in preference to another.
His Honour relies on what his Honour Justice McHugh said at page 280 in Soulemezis:
Where the resolution of the case depends entirely on credibility, it us probably enough that the judge has said that he believed one witness in preference to another –
Your Honours, his Honour the Chief Justice, then at page 45, paragraph 56, line 43, concluded that:
But in this case it is apparent that the rejection of Mr Douglass’s denials must have been based on the Judge’s acceptance of C’s evidence as truthful and reliable.
That is, assuming there was a rejection. His Honour goes on to say –
There is no difficulty in reaching that conclusion. In relation to the allegation of the offence, the case was one of word against word.
Again, at page 47 at paragraph 63 his Honour characterises the issue, at the first line of paragraph 63, as “a case of word against word” and therefore having acknowledged in paragraph 64 that there was no explanation by the trial judge for rejecting the accused’s evidence. If he did, his Honour concludes that “the explanation is obvious” at line 20 and his Honour reasons at paragraph 65 that:
Indeed, there is little he could say other than that; because he accepted and acted on the evidence of C, he necessarily rejected the evidence of Mr Douglass. This is a case of a kind referred to by McHugh J in Soulemezis at 280 –
Importantly, his Honour goes on to say, at line 34 –
There were no flaws in the defence case that needed to be exposed and explained.
Now, your Honours, we submit his Honour ought not to apply the reasoning in Soulemezis where the criminal onus applies and certainly not in a case where there is a difference in the evidence upon which the onus of proof depends, in two respects. First of all the equating of unsworn evidence or evidence out of court with sworn evidence we say was misplaced. It is not correct to characterise that as word against word, but, more importantly, his Honour Justice McHugh made it plain that what he was referring to was a case that depended entirely on creditability and his Honour said it was probably enough that the judge has said he believed one witness in preference to another.
Clearly, in this case it did not depend entirely on credibility, the issues of reliability that are plain from the video interview and from the matters your Honour has raised, the age of the child, most importantly that there was no independent support for the child’s evidence, the circumstances in which the interview was conducted, the initial inconsistent statements of the child and, of course, the limited scope that defence counsel had to cross‑examination freely by dint of the statute. In our respectful submission, his Honour Justice McHugh’s observations were made in a civil case where it may not involve error to ask which of two contradictory accounts is preferable.
In our respectful submission, the outcome where there is evidence which is of a child or is unsworn or is an out of court statement and there is evidence of an accused on oath, if the accused’s evidence is not rejected, then, in our respectful submission, the result ought to have been an acquittal. In our respectful submission, the approach of adopting his Honour Justice McHugh’s remarks in a civil case to a criminal case where the burden of proof is beyond reasonable doubt is a misapplication of the onus and, in our respectful submission, falling into the trap that this Court recognised in Murray v R of approaching a case on the basis that there are two competing bodies of evidence.
That, of course, is inconsistent with the burden of proof because, of course, a trial judge is entitled to find that he accepts the evidence of a prosecution witness but does not necessarily reject the evidence of an accused and therefore the trial judge would be left with a reasonable doubt. In our respectful submission, to resolve the question in this case upon the basis of a word against word, it was to wrongly elevate the status of the
child’s evidence to that of sworn evidence and therefore determine that one could displace the other.
In our respectful submission, in those circumstances, it is important, as a matter of importance, because there are provisions like the South Australian provisions in other States, which we set out in the application book at page 61, as to how courts are to approach evidence which is received that is not unsworn or is received under common law exceptions when an accused person gives evidence on oath, and, in our respectful submission, here, because a conviction was mandated, we submit, this is a suitable vehicle and, in our respectful submission, ought to be the subject of a grant of special leave. If the Court pleases.
CRENNAN J: Thank you, Ms Shaw. Mr Hinton.
MR HINTON: One of the primary submissions underpinning the application is that you cannot return a conviction on the strength of an out of court statement admitted into evidence where that statement admitted into evidence is answered by a denial – a denial, nothing more.
BELL J: Mr Hinton, rather than perhaps looking at that broad proposition, it might be helpful to focus on this. This applicant has been convicted where the only evidence is evidence given by a child in response to some leading questions when the child was aged four years and two weeks and when the child later gave evidence following what must be said to be, if the account that we have received is accurate, a very brief voir dire to ascertain the child’s understanding of the obligation to tell the truth. In the circumstances presented by this case, given the child had not turned four at the date of the event and in the absence of any evidence to support the child, one might think that the issues raised in particular in the application at the summary of argument, paragraph 1.4, are raised.
MR HINTON: If I can deal with each of those matters sequentially. Firstly the question of the inquiry. Can I start by taking your Honours to application book page 18 and, in particular, to paragraph 51, line 12. There the learned trial judge describes the inquiry he undertook.
BELL J: I am sorry, paragraph 51, did you say?
MR HINTON: Yes, your Honour, application book page 18.
BELL J: Yes, thank you, I have it now.
MR HINTON: We are in the process of dealing with two applications here; one, the question of whether or not the child can give sworn evidence or should be allowed to give unsworn evidence and, secondly, whether or not the requirements of section 34CA of the Evidence Act which would have to be met in order that out of court statement be admitted have been met. So we have an inquiry undertaken for the purposes of section 9 at the same time as the question of the admissibility of the out of court statement is dealt with. That means that the first thing that the learned trial judge did was watch the video tape. So rather than have the child come into court and be subjected to questions, he had the benefit of the video tape to determine whether or not that child at that young age at the time she gave evidence was capable of understanding the obligation of the oath such that she could give sworn evidence.
CRENNAN J: You are saying, are you, that that is the method chosen by the judge to undertake his statutory task under section 9?
MR HINTON: Yes, your Honour, and section 9(3) provides that “the judge is not bound by the rules of evidence” in determining whether or not a person can give sworn evidence and may inform themselves “as the judge thinks fit”. So it was open to the judge to rely upon that video tape and the interview conducted with the child psychologist in determining whether or not this child was capable of giving sworn evidence in the proceedings. It is implicit in paragraph 51 there on page 18 that the learned trial judge arrives at the conclusion that the child does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. So we tick that box for the purposes of section 9.
We move then to the question of whether or not the child should give unsworn evidence. What is not before your Honours is an excerpt from the transcript, pages 195 to 197. The child is on the closed circuit television and the trial judge speaks to her. He puts to her a series of questions, not a lot of questions, granted, but one or two questions, designed to determine whether or not she understands the difference between truth and a lie. Then he tells her that it is important in court to tell the truth and he also asks her is she prepared to tell the truth. Now, in the course of ‑ ‑ ‑
BELL J: The child is five at this stage, is that right?
MR HINTON: Yes, your Honour. We cannot get away from the fact that this is a child of tender years, yes, your Honour. We cannot get away from the fact that the interview was done with the child when she was three, but, of course, there is nothing that says, other than nature, that there is a limit at which – a limit, by that I mean age – that governs when you cannot and can give evidence that is credible and reliable. We are very much here dealing with a question of the evaluation of evidence and, yes, your Honour Justice Bell, there is here a risk because of the tender age of the child, but the trial judge was alive to the risk of the tender age of the child, and there is an absence of corroboration, but the trial judge was again alive to the fact that there was an absence of corroboration.
He mentions specifically both of those things in his treatment of the child’s evidence. Can I take your Honours to application book page 25, paragraph 86, the sentence commencing “However”; alive to having to tread cautiously because of the age of the child. If I can invite your Honours to turn over to page 27, paragraph 94; alive to the fact that her evidence is uncorroborated.
BELL J: Mr Hinton, can I just take this up with you. The Chief Justice made some observations. I am turning now to application book 44 and 45 in paragraph 52 concerning the trial judge’s assessment of the trial’s reliability. The Chief Justice noted that the trial judge had been impressed by the circumstance that it was an incident that, in his Honour’s opinion, a “child was unlikely to make up.” The Chief Justice said if he were the fact finder, he may not place so much emphasis on that consideration. One then sees over at page 45, still part of paragraph 52, the Chief Justice indicated that he may not have given as much weight to the significance that the trial judge attached to the fact that a five‑year‑old child maintained her story in cross‑examination.
Now, the matter I am raising with you, Mr Hinton, is the two factors that the trial judge identified as reasons for satisfaction beyond reasonable doubt as to the child’s reliability, the child’s evidence being the only evidence, were matters that the Chief Justice on a review expressed some hesitation with, albeit recognising that the trial judge was the fact finder. There just must come a point when one wonders what the content of proof beyond reasonable doubt means in a circumstance such as this?
MR HINTON: What we actually get to is a question as to, what is the function of the appellate court. Here the Chief Justice, noting that he may not give the evidence the same weight as the trial judge, is endeavouring to comply with the instruction of this Court in M v The Queen, referred to at page 40 of the application book, in conducting that independent assessment of the evidence.
BELL J: But how can you make an independent assessment in an M v The Queen way satisfactorily when one is dealing with evidence in‑chief led from a child of four years and two weeks? It is a very different exercise to the sort of exercise that courts of appeal regularly undertake in reviewing evidence.
MR HINTON: Yes and no, your Honour. No insofar as the court is looking at whether or not the evidence was capable of satisfying the trier of fact and must have regard to the advantage that the trier of fact had. Now, it may well be that when we are dealing with a child of such tender years, greater weight has to be given to that advantage than when we are dealing with someone who is of an older age group.
Here the trial judge saw this young girl, not to question her as part of the section 9 inquiry, saw her cross‑examined. There comes a point where the obvious advantage of the trial judge is one to which the Court of Criminal Appeal must almost defer entirely because it cannot itself gain the appreciation necessary to evaluating the evidence. If it were not the case that it must defer in that sort of situation, then we get to the point where a child of such young age cannot expect the protection of the criminal law because invariably an appellate court will be concerned at the young age of the child and it will invariably not have the benefit of seeing her and being able to truly evaluate her evidence.
So that is what, in my submission, the Chief Justice is saying. He is saying, “I might not, but minded of that impediment that I necessarily suffer sitting here on the Court of Criminal Appeal, I defer to the trial judge” and he has done so. In my submission, that is appropriate, with respect.
CRENNAN J: But then the deference to the trial judge needs to be noted in the context that the trial judge also concluded that he did not find anything in the demeanour of Mr Douglass that assisted the prosecution.
MR HINTON: Yes, your Honour. We get to the question then, the second special leave question, of what is the consequence of not actually saying in your reasons that “I reject the applicant’s denials”? Implicit in these reasons is that the trial judge, who noted the age of the child, who was aware of the lack of corroboration, who had the benefit of consistency in terms of initial complaint, went about his task very carefully and was satisfied beyond reasonable doubt. The denials were diametrically opposed. There was no additional evidence required explanation.
So in being satisfied of credibility and reliability, he necessarily, as the Chief Justice said, rejected the accused’s evidence. In my submission, there is nothing wrong about that. That is an application of the standard of proof and an appreciation of the difficulties in the way of reasoning to guilt and yet despite them, a finding of satisfaction beyond reasonable doubt. That is what is expected of a trial judge sitting in a trial without a jury; identify the risk and only if, only if you can overcome them and still be satisfied beyond reasonable doubt, may you move to convict.
Now, much has been made of the fact that the prosecution relied, it was said, solely on the out of court statement of this child. With the greatest respect, that is not correct. The child was called and was cross‑examined. Whilst you had the out of court statement, you had the facility of cross‑examination and then it is said, well, it was not a full cross‑examination and it is true that under section 34CA, cross‑examination is constrained, but it is constrained by the requirement to seek permission. Permission was sought, and permission was granted.
No complaint was ever made that there was a topic that could not be put or nothing was ever said by defence counsel to the effect of, “Look, I would like to ask questions along these lines” and the judge said, “No”. So there was cross‑examination of this child in court before the judge or, rather, over the CCTV before the judge to the extent that defence counsel replied, you cannot complain now that something more convincing, something more that is not identified, by the way. So in my submission ‑ ‑ ‑
BELL J: One of the matters that is raised is that when the child first in the interview made the allegation, it was in response to some level of prompting or suggestion. That is the contention, realistically, Mr Hinton, notwithstanding Mr Edwardson’s ability as it may have been difficult to effectively cross‑examine a child of five to elicit a meaningful response to having been led. You understand what I am raising with you.
MR HINTON: I accept unconditionally that Mr Edwardson had a most difficult task and I accept that there was some prompting. I do not accept that there was necessarily leading questions, but what is most important when one looks at that transcript of the interview – and can I take your Honours in particular to application book page 89 – you have on page 88 the prompting, and when we get to the bottom of page 88, L being the child psychologist:
L If somebody did ask you to hold or touch their penis.
Then we have the answer volunteered –
C I . . . my grandpa’s.
L Oh did you? You touched your grandpa’s?
So your Honour is right, there was prompting, but the crucial piece of evidence was volunteered. If the Court pleases, in my submission, it is a difficult case, but all that this Court would be required to do, if special leave were granted, would be to sit again as a Court of Criminal Appeal and would be to determine whether or not their Honours had a reasonable doubt such that the learned trial judge should have had a reasonable doubt. That task has been performed by the Court of Criminal Appeal by a very experienced Chief Justice in these matters. If the Court pleases, for those reasons and those in our written submissions, special leave should not be granted.
CRENNAN J: Thank you, Mr Hinton. Ms Shaw.
MS SHAW: Your Honours, in relation to the matters that were addressed by his Honour the Chief Justice, one of the other complaints we made in our application was that when his Honour posed the ultimate test as to whether the verdict was safe, at page 46 of the application book, paragraph 57, his Honour said:
A case of this kind is difficult and worrying for the person who must decide the facts, be that person a judge or a member of a jury. But the fact is that there was evidence that the Judge was entitled to accept, and to rely upon to reach a finding of guilt beyond reasonable doubt.
Now, your Honours, that was not the test that his Honour was required to apply, we submit, in accordance with the judgment of this Court in SKA v R, that was referred to in our outline at page 64, paragraph 39. In particular, his Honour the Chief Justice and the Court of Appeal were required to conduct their independent assessment of the evidence and to consider whether it was dangerous to allow the conviction to stand and we submit his Honour stopped short of doing that but rather looked to see whether it was open to the learned judge to draw the conclusion he did.
In our respectful submission, the cross‑examination, as your Honours have remarked, one must be circumspect about it. The only other factual matter I raise is that before the cross‑examination, the evidence that was before the trial judge was that the child had been spoken to 10 times by her family before being cross‑examined and the extent of the cross‑examination on the issue was the permission to put to the child that it did not happen. So therefore it, in our respectful submission, did not result in the child’s out of court statement achieving any greater value or if it did, much more limited value.
In our respectful submission, if it is suggested by my learned friend, the Solicitor‑General, that there ought to be a different rule that applies to the question of unsafe verdicts where there is a young child involved, in our respectful submission, that is a point of itself that warrants a grant of special leave. Our respectful submission is that what is in issue are of course the rights of the child insofar as the legislature provide exceptions or introduce exceptions to the common law rules, but at the end of the day it is the Court’s responsibility to ensure that an accused person has a fair trial and that the onus of proof is discharged.
This case, in our respectful submission, raises squarely whether or not the onus or proof can be discharged in the way that the Court of Appeal
and the trial judge approached it and, secondly, the function of a Court of Appeal in undertaking its independent assessment of the evidence and the discharge of the onus of proof when it is faced with the evidence of a young child that is out of court and the evidence of an accused that has not been criticised or rejected beyond reasonable doubt. If the Court pleases.
CRENNAN J: Thank you, Ms Shaw. The Court will adjourn for a short period.
AT 2.48 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.53 PM:
CRENNAN J: There will be a grant of special leave in this matter. Ms Shaw, we are of the view that the grounds in the draft notice of appeal should be rationalised and what we have in mind is that the grant of special leave will be in respect of ground 2 and grounds 4.1 and 4.3 set out in the draft notice of appeal to be found at pages 54 and 55 of the application book. Now, Ms Shaw, are you of the view that this is likely to take a day?
MS SHAW: I would not have thought it would take that long, with respect, your Honours.
CRENNAN J: Should we allow half a day?
MS SHAW: No more than half a day. Half a day would be sufficient.
CRENNAN J: Very well. We will grant the special leave to appeal on that basis that it should take half a day. Thank you.
AT 2.55 PM THE MATTER WAS CONCLUDED
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