Fern v The Queen

[1992] HCATrans 263

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IN THE HI"GH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AlS of 1992

B e t w e e n -

EDMUND JAMES FERN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Fern 1 2/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 2 SEPTEMBER 1992, AT 10.35 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR C. BONNICI, for the

applicant. (instructed by J.M. Hartnett, Legal

Services Commission (South Australia))

MR P.R. BREBNER: If the Court pleases, I appear for the

respondent. (instructed by P.J.L. Rofe, QC,

Director of Public Prosecutions (South Australia))

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH:  May it please Your Honours, the applicant

appeals against two convictions for rape. The

alleged rapes occurred upon his cell mate in the

Adelaide gaol some years ago. They were, on the

evidence, separated by about two days and the

applicant's case was a denial and that the

complainant in the case had made complaint for

powerful reasons of his own which I will come to in

a moment.

Your Honours, the evidence against the

applicant came principally, of course, from the

complainant, his evidence being that there were two

anal rapes in the cell, separated by about two

days. In the Crown case, evidence was called from

the complainant's sister who had received a
telephone call from the complainant the day after

the second rape, the telephone call being made from

the gaol.

Her evidence was that what was said by the

complainant to her was, "They got me from behind.".

That evidence was led in-chief from her, obviously

as evidence of complaint along traditional lines.

If the Court pleases, that witness, Miss Colbey, said in her evidence that the complainant mentioned

no name and obviously did not make any reference to

the applicant being involved. The complaint, on

her evidence, simply was, "They got me from

behind.".

When it came to the complainant's evidence,

which was given first, of course, his evidence was,

too, that he had rung his sister, that he had said

to her that, "They got me from behind.". When

asked to explain what he meant, he said that, "I

meant by that that I was raped by my cell mate.",

remembering, of course, that Miss Colbey said that

he said nothing about rape or his cell mate or the

name of the applicant.

When it came to cross-examination of the

complainant, of course, counsel had to put the

complaint in terms of Miss Colbey to him under the

fairness principle and under cross-examination the

Fern 2 2/9/92

complainant said, "I told her that I'd been raped

by my cell mate and I gave the name of Fern.", the

applicant in the case.

If the Court pleases, following that, when it

came to the evidence of prison officers, defence

-counsel elicited - it was not led and I accept that

point - that when later the same day - that is the

day after the second count - the complainant spoke

to the prison officers, he first of all mentioned
only that two other prisoners had been, "Putting

the hard word on him.", omitting any reference to

his cell mate. It was only when the prison officer

asked and extracted further material that the

complainant nominated his cell mate.

In the Court of Criminal Appeal, Your Honours,

complaint was made and accepted that the omission

to give the jury a standard direction along the

lines of Lillyman and Kilby, in this Court, in

pressing upon the jury that evidence of complaint
was not probative but it only went to show

consistency with the evidence of the complainant to

buttress his credit, but went on to apply the

proviso on the basis that the evidence of complaint

could not possibly have been used in a probative

way.

That occurs, may it please Your Honours, at

page 28. The Court will see at the top of page 28

that the Court of Criminal Appeal accepted that

there was an error of law in failing to give the direction. At lines 6 to 7, the conclusion was:

That was not done in the present case and

there was, therefore, an error in the conduct

of the trial.

But then it went on to apply the proviso for this reason:

The content of the remarks made by Colbey -

the complainant -

to his sister and to Evans -

who was the prison officer, Your Honours, I have

just mentioned -

made no allegation which Colbey	did not make
in his sworn evidence in court.	There was,
therefore, no material in those	complaints
which was capable of being used	by a jury to
establish matters which had not	been deposed
to by Colbey in court.

Fern 3 2/9/92

And then the Court goes on, per the Chief Justice,

to talk about the evidence being used as

inconsistency which, of course, I accept.

The same reasoning, also, was translated into

-~he reasons of the court at page 29, line 3:

It seems to me that the fact that what was said by Colbey out of court extended no further than the evidence which he gave in

court, in the circumstances of this particular
case, excludes any reasonable possibility that

the jury could have misused the complaint in

some probative way. The whole emphasis upon

the discussion at the trial of what Colbey

said was not its consistency with his

evidence, but the alleged inconsistencies -

et cetera.

If the Court pleases, the error in those two

passages is this, and I focus upon page 28 just for

argumentative purposes but the reasoning is the

same on page 29.	When it is said, at page 28,
that:

There was, therefore, no material in those

complaints which was capable of being used by a
jury to establish matters ..... which had not been

deposed to by Colbey in court.

Suffers from an error when looked at from two

perspectives.

The first is, with respect, that if by that

passage and the one on 29 it is meant to convey

that evidence of complaint is exclusive to the

witnesses who deposed to it - that is the third

parties other than the complainant - it is, in my

submission, wrong. Evidence of complaint comes

both from the complainant and those who received

the complaint.

In my respectful submission, one reading of

these two passages is that the Chief Justice is

confining evidence of complaint to Colbey and Evans

without referring to the evidence of complaint by

Colbey.

Alternatively, in our submission, the error is

this: if those two passages mean that the evidence

of complaint includes both that of the complainant

and that of Miss Colbey and Evans in this case but

that it could not have been used by the jury

probatively because Colbey himself had given

evidence of it, it inherently means that the court

Fern 4 2/9/92

is saying that the complainant may give evidence of

the complaint which may be used probatively.

That may be clumisly put but, in other words,

if the court is saying evidence of complaint covers
poth the complainant's testimony and that of the
-other witnesses, by saying that the complainant

said nothing more to them than he repeated in court is inherently to give what the complainant has said

probative effect.

The other thing is, If the Court pleases, in

my submission, there was a real danger that the

jury in this case used the evidence of complaint as

probative, apart from the obvious fact that if it

was accepted there was a nomination of the

applicant by name to Miss Colbey, but also because

when it came to the directions, at pages 11 and 12,

His Honour was, in my submission, really leaving it

to the jury on the basis that it may be probative.

At the bottom of page 11, His Honour said:

Members of the jury it's entirely a

matter for you what you make of that apparent

conflict.

That is the conflict between what Colbey himself

said and the limits of what Miss Colbey has said he

said.

Mrs Shaw put it to you very strongly that what

the sister said undermined all that Colbey had

said. And you will consider that argument. A

possible explanation may be, it's entirely a

matter for you, that Colbey at the time, on

any account, seems to have been very upset and

crying. Perhaps he was embarrassed, on his

account, telling his sister about something

which had never happened to him before. And

perhaps he wasn't as explicit as he thought he himself thought he was. Another possible	explanation is that he was as explicit as he	said-he was and his sister was upset because
he was upset and didn't grasp all that he had
told her over the telephone.

That last paragraph, of course, is putting to the

jury inherently that they might accept that what he

did say to his sister, despite her evidence, was

not only that, "They got me from behind.", but he

said, in his complaint to her, "It was my cell mate

and his name is Fern.". That clearly went, on that

basis, in my submission, to the jury on a probative

basis, not on a limited basis, purely for purposes

of consistency.

Fern 2/9/92

If the Court pleases, the other complaint

which is made in the application for special leave
is the omission of the trial judge to give any

warning at all about the dangers inherent in the

evidence given by Colbey alleging rape.

Your Honours, without wanting to argue the

facts, the evidence came to this: as I have said,

Colbey nominated two other prisoners to the prison

officer Evans in his complaint the next day. His

evidence was that he was so worried by them that he

was prepared to do and say anything to be removed

from the yard in which he was.

In our submission, that was not just other

evidence, it was evidence from the complainant

himself. There was a very powerful motive for this

man to tell lies and make up a false complaint

against the applicant and nowhere was a warning

given, either on traditional lines or, in our

submission, more appropriately and certainly only

appropriately since Longman's case, directing the

jury's attention to the dangers in that evidence

and directing them to heed a warning that they

should scrutinize it carefully before acting upon

it.

In the Court of Criminal Appeal, Your Honours,

it was submitted that such a warning should have

been given. At that stage, of course, Longman's

case had not been decided but Bromley and Karpany

had. Bromley and Karpany was read to the Court of

Criminal Appeal but, in the end result, it ruled,

at page 30 lines 8 to 11, that:

Whether the circumstances of the case render a

witness so potentially unreliable as to

require a special warning to the jury is very

much a matter for the discretion and judgment

of the trial judge.

True it is, of course, with respect, that whether a

warning should be given will initially be a matter

of judgment and discretion but, with respect, when

there was such an obvious and admitted

consideration - admitted by the complainant that he

was prepared to say or do anything to be removed

from that yard - and relating it to complaints

about other prisoners initially rather than the

applicant, in our submission, there was every

reason by application of Bromley and Karpany and

Longman to give such a warning.

DAWSON J:  An objection was taken to the charge on this

ground?

MR TILMOUTH: It was on that.

Fern 6 2/9/92

DAWSON J: But not on the other basis?

MR TILMOUTH: That is true, and in short, we would submit,

one offsets the other. But, in my submission,

going back to the complaint matter, the fact was

_.that Colbey, himself, said, "It was Fern who raped

me, my cell mate.". It was clearly left, in our

submission, to the jury on the basis that it could

be used probatively and there was no warning. In

our submission, since the jury obviously convicted,

it cannot be said that the jury convicted on

evidence other than the evidence of complaint. On

the contrary, it would appear that they must have

accepted that he said those words, otherwise the

other inconsistencies probably would have told

against a conviction.

So, if the Court pleases, for those combined

reason, we submit it is an entirely appropriate

case to consider the question of complaint and the

question of the proper direction. If the Court
pleases, the question of the scope of the

complaint, that is from which witness it must be gathered, the complainant or the third person or

others, has not be dealt with by this Court and the

error in the Court of Criminal Appeal was in

treating it either as exclusively confined to the

third parties or, alternatively, as enabling the

complainant to give evidence of complaint which

could be used probatively. On either view, in our

submission, there was a fundamental error in the

way that evidence was used and the way it was

treated in the Court of Criminal Appeal.	If the
Court pleases.

MASON CJ: Thank you, Mr Tilmouth. The Court need not

trouble you, Mr Brebner.

This case raises no question of general

principle and, having regard to the fact that no

application for redirection was made with respect

to the complaints, the interests of the

administration of justice do not warrant the grant

of special leave. The application is therefore

refused.

AT 10.51 AM THE MATTER WAS ADJOURNED SINE DIE

Fern 2/9/92