Duyn v The Queen

[1995] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M13 of 1995

B e t w e e n -

JOHANNES WILHELMUS DUYN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 11.19 AM

Copyright in the High Court of Australia

MS F.P. HAMPEL:   May it please the Court, I appear with my learned friend, MR Z. ZAYLER, for the applicant.  (instructed by Melasecca Zayler)

MR G.R. FLATMAN:   May it please the Court, I appear with my learned friend, MS S.F. THOMAS, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

DAWSON J:   Ms Hampel, you require an extension of time in this one, do you not?

MS HAMPEL:   Yes, your Honour.

DAWSON J:   What is the length of time involved?

MS HAMPEL:   Seven months, your Honour.

DAWSON J:   A very long time, it is not?

MS HAMPEL:   Yes, it is.  The bulk of it, again, your Honour, was in respect of the delay in the grant of legal aid.

DAWSON J:   Why do these delays occur?  Why cannot the situation be corrected?  They may be corrected very quickly if we simply refuse an extension in cases such as this.

MS HAMPEL:   The difficulty, I suppose, is this, your Honour, that if an application for an extension is refused where the reason for the delay or the substantial reason has been the failure to grant legal aid, and that unfairly deprives an applicant who otherwise has a good ground of entitling him to leave, a real unfairness or a real injustice is committed against that person.  Unfortunately, it was not within the applicant’s hands but rather the Legal Aid Commission.

TOOHEY J:   That might be a bit unfair on the Commission in many cases.  It is the obtaining of the opinion that - certainly, in a number of cases that have come before the Court that leads to the delay.

MS HAMPEL:   That may well be so in some cases.  I  have just been told by Mr Zayler that an affidavit was filed which, unfortunately, I have not seen but in the application book this is referred to and it is correct that the day after the Court of Criminal Appeal refused the applicant’s appeal, an opinion was provided to the solicitors for the applicant to be provided to legal aid setting out the basis for the merits of the grant of legal aid for an application for special leave.

TOOHEY J:   I think that is certainly true in this present case but there are other situations in which it is not so much the processing of the application but the obtaining of the opinion in order to enable the application to be processed that gives rise to the delay.

MS HAMPEL:   Yes.  I do not know whether this is the right forum to discuss it, but certainly there have been problems in relation to legal aid and questions about funding and whether there will be funding provided for the provision of an opinion but that clearly was not the issue here.

TOOHEY J:   No.

DAWSON J:   It should be recognised that the Court views the situation as being a serious one and some steps should be taken to correct it.  Now, you can address yourself to the merits.

MS HAMPEL: Thank you, your Honour. This application is to do with the circumstances in which an applicant should be granted leave to cross‑examine a complainant about prior sexual history in a rape case or in a case of a sexual offence. There is very little decided authority. Apart from this case, there is only one other decision of the Court of Criminal Appeal in Victoria that we have been able to find that deals with the application of section 37A. That is Reg v Warrell and that is a very different type of circumstance to this.  But there is a real risk that as a result of the dearth of authority within Victoria and the conflict in the decisions of the courts of criminal appeal around Australia dealing with the slightly different provisions in each State, that a complainant in a case of a sexual offence is being elevated into a special or protected category of witness, the very sort of thing that this Court warned against happening in its decision in Reg v Longman where it said that the removal of the corroboration - the rule of practice that a corroboration direction should be given in a rape case did not thereby elevate a complainant into a special or protected category of witness who is thought to be more reliable, honest or trustworthy than any other. There is a real risk that the application of section 37A and similar provisions around Australia is achieving that very effect, that the Court was so concerned in Longman to ensure did not occur.

GUMMOW J:   How is that rectified other than by a particular interpretation of section 37A and, if so, what is it?

MS HAMPEL:   That is exactly the point, that the time has come - - -

GUMMOW J:   Maybe this may be a consequence of what the legislatures have done, but there it is, unless the courts are wrongly construing what the section says.

MS HAMPEL:   The time has come, in our submission, for this Court to give proper guidance to trial courts around Australia as to the circumstances in which leave should be granted to cross-examine a complainant about prior sexual history.  There is a series of what can only be described as “on their own facts” decisions but conflict amongst them.  If one goes back to De Angelis, the South Australia Full Court decision of 1981, it is there said that the fact that a complainant has consented on previous occasions to sexual activity either with some of the accused or with others, then that has a bearing on the issue of whether she consented on this occasion.

In Bannister, before the Court of Criminal Appeal in Western Australia the court considered that evidence of a sexual proposition by a complainant to the applicant occurring some short time after it was alleged he had raped her was evidence that went so closely to the issue that one lost the dividing line between a fact in issue or a matter going to the credit or credibility of a witness.

DAWSON J:   The link that you are demonstrating that each case depends very much on its own facts, are you not?

MS HAMPEL:   Yes.  But what happens then is when trial judges are confronted with another peculiar set of facts there is no guidance and the sort of injustice that occurred to Mr - - -

DAWSON J:   The guidance is to be found in the statute.

MS HAMPEL:   The guidance is a statement of principle or proposition.  As to how it is to be applied is the real issue and Mr Duyn, the applicant here, in our submission, suffered a miscarriage by reason of not being able to have put to the complainant in this case the fact that a previous sexual relationship between the two of them went to establishing a motive why the complainant would make a false allegation of rape against the applicant on this occasion.

TOOHEY J:   But it was a week that they spent together some 12 months before the alleged offence took place, was it not?

MS HAMPEL:   Yes.  The lapse of time is irrelevant.  What is important is it went - - -

TOOHEY J:   Well, it may not be, coupled with the circumstances of this case which involved virtually a break-in by the applicant and others for the purpose of dealing with someone who the applicant thought was going around accusing him of being an informer.

MS HAMPEL:   Yes, that person not being the complainant.

TOOHEY J:   No, no.

MS HAMPEL:   What is essentially said is the complainant had a motive for wishing to do the applicant harm.  Her motive sprang from the ill-will that had been caused between the complainant and her husband as a result of the news getting to the complainant’s husband that they had had a sexual relationship some time earlier.  Thus, when the applicant broke in to the house where the complainant was and not only dealt with the informer or the man who had said he was an informer but also dealt with the complainant, she took the opportunity to even the score by adding to the things he had done by making a false allegation of rape.

Now, had the allegation of the bearing of ill-will towards the applicant being based on something other than a previous sexual relationship, not only would no leave have had to have been sought but nor could it possibly have been said that this was irrelevant. It may be a question of how much weight the jury is going to put on the question of what bad blood in the past had caused the complainant to make a false allegation or whether that was relevant to the jury’s consideration as to whether the rape itself took place or not, but it would not have precluded the applicant from having that allegation put to the complainant and ventilated. But what has happened is because of the judge’s interpretation of the effect of section 37A, the applicant was deprived of putting a matter that properly went to a motive to make a false allegation simply because the subject matter was a previous sexual relationship.

TOOHEY J: Could I just interrupt you, Ms Hampel. Which part of section 37A do you suggest is particularly applicable? I mean, is it relevance or credit or what?

MS HAMPEL:   It was put before the trial judge that the matter went to credit and counsel, a number of times, said to the trial judge that the matter only went to credit.  It was argued before the Court of Criminal Appeal, accepting that limitation that counsel had put, although it is a very difficult dividing line.  In other words, I took the view that I was stuck with what had occurred in the court below, namely, that counsel there had said this is a matter only that goes to credit.

TOOHEY J:   You see, this was not a situation in which the applicant admitted that there had been sexual intercourse on the occasion that we are speaking of, said it was with consent, then that might be one question because the fact that they had lived together some time in the past might be relevant to that but in this case he denied that there was anything of that sort occurred at all.  Now, where does it become relevant as going to credit to show that the complainant and the applicant spent a week together some 12 months earlier?

MS HAMPEL:   Because that is the foundation for saying her husband then found out; that caused real problems between the complainant and her husband and, therefore, the complainant took the opportunity to make a false allegation of rape against the applicant at a time when the applicant broke into her house and, on any version, threatened her and assaulted her.  So, this is not a question that says because she consented in the past, she consented this time and, in fact, there is significant argument to say that consent in the past may not go very far to proving consent on a particular occasion later but, rather, because there was an incident that gave rise to what the applicant said was a basis for the bearing of ill-will by the complainant to the applicant giving rise to, therefore, a basis for making a false allegation of rape, because the applicant said this did not happen at all.  So, once there is a basis for saying “she has a motive to do me harm”, then the applicant should not be shut out of putting evidence about that motive to do harm simply because part of the motive is the fact that there had been a sexual relationship between them in the past.

TOOHEY J:   The trial judge’s discretion has to be exercised in terms of whether the cross-examination would be likely materially to impair confidence in the reliability of the evidence of the complainant.

MS HAMPEL:   Yes.

TOOHEY J:   So, that is something, really, the trial judge has to assess in the light of all the evidence before him.

MS HAMPEL:   But if the matter is something that goes to a motive to make a false allegation, then the mere fact that the motive is bound up with previous sexual history, in our submission, does not mean an applicant should be unfairly shut out of putting that simply because it involves the sexual allegation.  It is really as simple as that.

TOOHEY J:   Was he shut out from that?

MS HAMPEL:   As can be seen - what happened was counsel for the applicant embarked upon the cross-examination without seeking leave and, it would appear, in ignorance of the fact that leave was required when the allegation involved previous sexual history with the applicant.  It was in those circumstances, the question having been asked as to the affair and answered, the judge then - - -

TOOHEY J:   And answered in the negative.

MS HAMPEL:   And answered in the negative.  The judge then directed the jury to disregard that.  That was then the basis for the applicant’s counsel’s second application to put the question about the ill-will between the applicant and her husband.

TOOHEY J:   But the judge permitted that.

MS HAMPEL:   But in a vacuum.  The applicant was unfairly deprived of being able to say why this was a reasonable, logical, sensible or, perhaps, able to be acted upon, motive.  It is particularly important because if one looks at the verdicts that came in all of the counts here, the complainant was not believed on the account that she gave in respect of the aggravated burglary nor on the account she gave in respect of the false imprisonment because the applicant was acquitted of aggravated burglary and convicted of burglary simpliciter.  He was acquitted of the false imprisonment and it was on the rape where he said he had a proper basis for alleging she had a motive to make a false allegation that he was unfairly shut out of putting in a way that would give it its proper evidentiary force and in respect of which he was convicted.

TOOHEY J:   But the motive did not lie in the relationship itself that had taken place earlier on.  It was said to lie in the husband’s response to what had happened 12 months earlier.

MS HAMPEL:   That seemed to be the way it was ultimately put but the judge’s first ruling refusing leave was on the basis of the previous sexual relationship and the friction it had caused giving rise to the complainant having a motive to make a false allegation when she got the opportunity.

TOOHEY J:   Yes, but it was the friction which was said to give rise to the motive, not the fact that there had been this relationship which had come to an end.  The case was not one in which the relationship, having come to an end, perhaps against the wishes of the complainant, she had a motive for falsely alleging rape against the applicant.  It was the friction which had been said to be generated between the complainant and her husband by reason of what happened.

MS HAMPEL:   But the applicant was put in a position where all he could put to the complainant was, “There was bad blood between you and your husband and you bore some ill-will towards the applicant”.  If there is no evidentiary foundation to provide that with some support so it sounds reasonable, logical or rational, and the applicant in fact had a basis for putting it, a basis that the jury should have been entitled to assess for itself, he has been unfairly deprived of material he is entitled to put in his defence.

TOOHEY J:   Given the question that had been wrongly asked the previous day, the jury would have been fairly slow not to twig what it was all about.

MS HAMPEL:   One has to accept the jury would have accepted the direction the judge gave them to totally disregard that question and answer.  The point was, because of the way it happened, the applicant was just shut right out.  Had it been a motive for any reason other than the previous sexual history, had it gone back 10 years instead of one year, had it been something that a court, later scrutinising it, would have thought was trifling, nonetheless, the applicant would have been entitled to put it and to have the jury assess it.  When one looks at the verdicts in the case and sees that the complainant was not believed on everything she said otherwise, it makes it particularly important that he should have been given that opportunity and particularly unfair that he was deprived, not because it was going to suggest a general propensity to engage in promiscuous behaviour that would thereby diminish the credit of the complainant but because there was a very direct and crucial nexus, namely, the motive to do him harm and to wish him harm and in the context where he was already doing something wrong.

He was shut out of it, in our submission, because of a misunderstanding about the status of a complainant by reason of section 37A in very much the way your Honour Justice Toohey and your Honour Justice Dawson in this Court warned against in Longman where it is said a complainant does not, simply because of the removal of the general rule, come into this special category, and one must always look at the surrounding circumstances.

TOOHEY J: No, but it is not a matter of placing the witness in a special category, is it? It is a matter of what section 37A demands and permits.

MS HAMPEL: Section 37A(2) empowers an applicant, with the leave of the court, to cross-examine the complainant as to the previous sexual activity if, under rule (3)(a):

it is satisfied that the evidence has substantial relevance to facts in issue or is proper matter for cross-examination as to credit -

This, clearly, is a proper matter for cross-examination as to credit, and if one looks at Bannister and sees how closely the court there says there is an overlap between credit and matters in issue where it is word against word in a sexual allegation, then one could perhaps say also that it has substantial relevance to the facts in issue.

A fact in issue was whether the complainant had made a false allegation.  What was there to support it in order to create a reasonable doubt was not just the fact of ill-will but the reason for it because the reason is going to provide credibility and without the reason there is no credibility or not the weight that the applicant would otherwise be entitled to have put to the allegation of ill-will giving rise to the motive.  It seems that the court had misdirected itself as to what it should do, and because it was an allegation of previous sexual activity, said, “Therefore, it cannot be put”, rather than saying, “If it is a proper matter and it doesn’t deal simply with promiscuity or simply with having consented in the past, then it is a matter that should, indeed, have been allowed to be put by it on behalf of the applicant”.

TOOHEY J:   I think I read some of the language in subsection (4) but I do not really think that has anything to do with it when I look at it.

MS HAMPEL:   Yes.  What that is really saying is you cannot say that something is relevant to a complainant’s credit simply because she has engaged in sexual activity with other people in the past or promiscuity has a bearing any more on her general credibility.  That is really not to the point.  We are really back at rules (2) and (3)(a), namely - - -

TOOHEY J:   So, it has to be justified either as having substantial relevance to the facts in issue or being a proper matter for cross‑examination as to credit.

MS HAMPEL:   Yes.

TOOHEY J:   And the basis upon which it was argued in the courts below was that it was a proper matter for cross-examination as to credit.

MS HAMPEL:   Yes, that is so.  One cannot think of any better motive for wishing someone ill than to try and get even because it had caused problems with the spouse and when the applicant had, in any event, already broken in and caused havoc within the house.  One may say what better way to even the score but he was not able to put that and, therefore, was deprived, in our submission, of the opportunity of an acquittal otherwise fairly open to him, and that is the special leave point.

DAWSON J:   Thank you, Ms Hampel.  Yes, Mr Flatman.

MR FLATMAN:   If it please the Court.  It is my submission that the comment in Longman by Justice Deane at page 96 of the report is relevant to the issue before this Court:

It is not the function of an appellate court further to fetter the controlled discretion which the statute vests in a trial judge by seeking to frame in advance categories of cases in which a trial judge must or should be satisfied -

in this case, that a warning under a section of an Act -

is necessary or justified.

TOOHEY J:   But we are not talking about that, are we?  We are not talking about warnings to the jury, we are talking about cross‑examination of a complainant.

MR FLATMAN: We are, but we are talking about the exercise of a discretion of a judge under a statutory requirement and that the statutory requirement is set out clearly in section 37A that unless certain conditions are fulfilled then, in those circumstances, the judge should refuse leave in the exercise of his discretion. It is not a matter that requires further clarification by a court in relation to other jurisdictions. It is clearly here - the statute in Victoria sets out the discretion to be applied. The judge has applied that discretion. The Court of Criminal Appeal found no reason to take the view that he exercised his discretion incorrectly. In the circumstances, in my submission, it does not give rise to a ground of special leave.

This comes down to a very, very narrow issue as to whether or not there is in fact a link between the argument put by the applicant as to the relevance of the line of questioning.  It is extremely tenuous to be - - -

TOOHEY J:   But it was not put on the basis of relevance.

MR FLATMAN:   No, no, sorry, relevance to the question of credit.  It has been put that it goes to a question of credit to establish that this witness is unreliable, that there had been a prior relationship some 12 months earlier, which she denied, between her and the applicant, which led to some kind of a dispute between the complainant and her husband.  That is one step in itself but then the next step has to be to lead into the proposition that that would lead her, in turn, to make a false allegation of rape.

TOOHEY J:   Might lead her.

MR FLATMAN:   Might lead her in turn. 

DAWSON J:   And the ill-will was established, was it not?

MR FLATMAN:   The ill-will was established in the course of questioning of the complainant in any event but that was the ill-will between the husband and the applicant.  But it is a huge step, in my submission, to say, “Well, because there had been this prior sexual relationship 12 months earlier, and that, in turn, created a problem between you and your husband, that you would then turn around, as a matter of logic, and make a false complaint of rape against him”.  In my submission, that is not a logical step that follows.  It would not improve her position in relation to the allegation that - - -

DAWSON J:   But it does not go so much to credit as to motive, does it not?

MR FLATMAN:   It is put as to motive but I am happy to deal with that as well, your Honour, because it could not be said to go to a motive towards making an allegation of rape.  That is the step, in my submission, in which there is no nexus.

TOOHEY J:   There was something of an artificiality created by the fact that cross‑examination was permitted and probably could hardly have been denied as to the relationship between the ill-will that the complainant bore to the applicant but I suppose the complaint that is made on behalf of the applicant is that once that evidence is in, to divorce it from the reasons giving rise to the ill-will leads to a fairly unreal sort of situation.  Even if that is made out, it does not necessarily mean that cross‑examination should have been permitted but that seems to be the basis of the complaint.

MR FLATMAN:   Except that the situation is that the statute forbids that line of questioning unless, in the exercise of discretion, the judge permits it.  The question having been asked without leave being sought is not one, in my submission, that then should allow the question in.  It might be different in circumstances where it does not go to what is a relevant issue either as to motive or as to credit.  Fundamentally, the problem is that it is of extremely tenuous value in any event.  It would be a very difficult thing to put to a jury as something that should really weigh with them in terms of the credibility of the witness.  There is a logical failure in the course of the argument.

I would submit that section 37A(4) of the Evidence Act does apply. Section 37A says that:

(1) The court shall forbid any question -

first of all as to general reputation, and then:

(2) Without the leave of the court -

(a) the complainant shall not be cross‑examined as to his or her sexual activities; and

(b) no evidence shall be admitted as to the sexual activities of the complainant.

(3) The court shall not grant leave under Rule (2) unless -

(a) it is satisfied that the evidence has substantial relevance to facts in issue or is a proper matter for cross‑examination as to credit.....

(4) Evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities shall not be regarded -

(a) as having a substantial relevance.....

(b) as being proper matter for cross‑examination as to credit in the absence of special circumstances by reason of which it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

TOOHEY J:   It is still a bit hard to fit subsection (4) to the facts of this case though, is it not?  To say “that the complainant was accustomed to engage in sexual activities” by reason of a week she spent with the applicant some 12 months earlier seems a rather inapt description.

MR FLATMAN:   “Evidence that relates to or tends to establish” is the basis for the submission that that applies.

TOOHEY J:   Yes, but it is the use of the term “accustomed to” which is in subsection (4) which seems rather inappropriate in this case.

MR FLATMAN:   I see the force of that, your Honour, but it does relate to ‑ ‑ ‑

TOOHEY J:   In any event, it still takes you back to subsection (3).

MR FLATMAN:   It does, and the thrust of the submission by the respondent is, quite clearly, that it was within the discretion of the trial judge to exercise it as the way that he did; it was in accordance with the law.  The appellate court is loath to interfere with the exercise of a discretion of a trial judge, especially in circumstances where it is a discretion in accordance with statute, and that they saw no error of law in the way he conducted that exercise of discretion and, indeed, there is no error of law, in my submission, in the decision of the Court of Criminal Appeal.

It does boil down to that very simple fact and unless the Court wishes to raise any other questions with me, I do not propose to address the issue any further.

DAWSON J:   Thank you, Mr Flatman.  Ms Hampel.

MS HAMPEL:   The only matter I wish to take the Court to in reply is this:  the Court of Criminal Appeal did not descend to any reasons as to why it said the discretion had been correctly exercised by the trial judge and the trial judge did not, himself, give any reasons other than asserting that special circumstances such as to permit or to warrant the grant of leave had not been established.

If I could take the Court to page 15 of the application book where the court sets out the submissions that were made on behalf of the applicant.  Between pages 15 and 17, the arguments submitted on behalf of the applicant before the Court of Criminal Appeal were summarised and then at line 9 the court simply says this:

I now turn to my conclusions.

And then goes on to say, at about line 14:

I have looked to the contents of his Honour’s ruling.  The learned judge has correctly identified and, indeed, recited the material parts of the section.  He has also noted, and noted correctly, the arguments put to him as to why the relevant leave should be granted.  Those arguments may not have been put with the sophistication that has accompanied them in this Court, but in my opinion they were sufficiently put to the judge.  His Honour plainly considered them.  In the end he was not satisfied that the relevant “special circumstances” existed.....such a finding was open to the learned judge.

That is all that one gets by way of reasoning from the Court of Criminal Appeal.

DAWSON J:   That is enough, is it not?  It said it is a matter of discretion and that there was nothing to indicate that the discretion had miscarried.  He took into account no irrelevant circumstances nor did he fail to take into account circumstances which he ought to have taken into account.

MS HAMPEL:   With the greatest of respect to the Court of Criminal Appeal, that is merely a recitation of the formula rather than giving any indication as to what were the relevant considerations.

DAWSON J:   But it is a recitation of the formula for deciding whether the exercise of a discretion miscarried.

MS HAMPEL:   But without actually going to the reasons why the discretion had been correctly exercised, what were the relevant factors and why there were no grounds warranting the grant of leave to cross‑examination and exactly the same happened in the trial judge’s ruling, no reasons - no reasoning is there set out, and simply to say, “The grounds have not been made out, leave is refused” and then to say, “We consider that no error has been demonstrated” does not grapple with the issue, in our respectful submission.  If the Court pleases.

DAWSON J:   Thank you, Ms Hampel.

This case is not a suitable vehicle in which to consider the proper limits of section 37A of the Evidence Act 1958 (Vic). In any event, the decision of the trial judge not to allow cross‑examination of the complainant with regard to her sexual activities appears to have been within those limits.
The application is some seven months out of time and accordingly an extension of time to make the application is refused.

AT 11.53 AM THE MATTER WAS CONCLUDED