Fleming v The Queen

[1998] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S85 of 1997

B e t w e e n -

MARK FLEMING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 9.31 AM

Copyright in the High Court of Australia

MR C.A. PORTER, QC:   I appear for the applicant with my learned friends, MR P. BYRNE, SC and MS S. KAUR-BAINS.  (instructed by Segal Litton & Chilton)

MR G.S. HOSKING, SC:   May it please the Court, I appear for the respondent with my learned friend, MR R.D. ELLIS.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Porter.

MR PORTER:   Your Honours, this is one of those very frequent situations in criminal litigation now in New South Wales and, I think, in Australia generally, of a person accused of a serious sexual offence where it is simply word against word, no corroboration.  If I may put it quite bluntly, it is probably the situation in the criminal law where it is most likely that an innocent can be convicted.  The old safeguards, of course, have gone.  Under section 164 of the Evidence Act the need for corroboration has gone but, of course, not the desirability.

Now, the particular circumstance of this case - I do not want to go into great detail but to give you a background so one can see the special leave point we are seeking to raise - was that the girl was a pupil of a catholic school; the applicant was the deputy head.  She apparently had difficulty with her mathematics and saw him frequently.  She alleges sexual misconduct, three charges of indecent assault and one of digital sexual intercourse, all occurring in the fourth term of the year.  That is the year 1994.

She never made a complaint about the matter until the middle of the next year.  I think her first complaint was to her mother and then she asked her mother to do nothing about it.  Somewhere around about July she complained to a teacher, Mr Neil, and then she confirmed it to the school counsellor and the matter got into the hands of the police.  So that she made her first police statement on 24 July 1995, well over six months after the last of the alleged offences.

The nature of her accusations were so vague as to time that it would have been absolutely impossible to put up an alibi defence.  The only time she ever picked a date - she said these cases all occurred during the week and during school days - she picked a Saturday which was clearly a wrong day.  So, there was no way he could call evidence of an alibi.  She gave evidence of, in effect, situations of the two being together with no one else present, so that if you can summarise the position of the applicant when he is first met with the complaint or the accusation, there is no way he can call alibi evidence; there is no way he can call a witness who can give direct or persuasive evidence as to the circumstances.  She called no pupil to support her allegation.  She suggested no sexual arousal on behalf of the applicant.  She suggested no quarrel between them which would account for the fact that she would later - in fact, page 13, point 10, she said that she was able to go back to him whenever she liked, but apparently she elected not to and, for reasons which are not at all clear, decided to sacrifice him six months after the alleged events.

Now, the applicant had in his favour the fact that the allegations were vague as to time; that there was a delay in making the complaints; there was the unlikely situations in which the alleged misconduct occurred; the complainant was 15 years old, admittedly depressed, unhappy, emotional with eating disorders; going through puberty:  a witness whose evidence, obviously, had to be regarded with considerable scrutiny.

The special leave point we raise is simply this - I am not trying to argue now for the setting aside of the verdict - this was a case where there was no corroboration in the Baskerville sense.  There was no independent evidence to prove either the offence had been committed or that the applicant was involved.  So, the situation simply was that it was her word against his.  It was heard by a single judge, as I am sure your Honours are aware.  The matters which seem to have decided the case against the applicant were matters which might be called matters of confirmatory evidence.

As to confirmatory evidence, there has been no guidance either by this Court or, for that matter really, by the New South Wales Court of Criminal Appeal.  In fact, I am unable to find any authority, particularly in the light of the new Evidence Act which abolishes the need for corroboration, as to what are the proper tests and guidelines to be applied in the case of confirmatory evidence.

BRENNAN CJ:   But are there any?  It is a question of whether or not, when there are two version of the facts, one version of the facts carried that degree of conviction which is essential to criminal liability.

MR PORTER:   Yes.  But, your Honour, if you have a situation as here and as often occurs where the difficulty of word against word is solved by so‑called confirmatory evidence, then we would argue, in the words of Mr Justice Sully who, of course, dissented in the Court of Criminal Appeal, that confirmatory evidence must give, in a real way, significant support to the evidence of the complainant.  That is page 148.  We would argue that it must indicate that, overall, the evidence of the complainant may be accepted with confidence.  Your Honours see that I am well away from the Baskerville test.  We would argue that if any item of confirmatory evidence, as distinct from corroboration, is to become the linchpin of the decision to convict, then in accordance with Shepherd’s Case, that particular item has to be proved beyond reasonable doubt.

BRENNAN CJ:   Let us assume that there was no confirmatory evidence; that the prosecutrix or the complainant says simply, “He touched me indecently” and the defendant says, “I did nothing of the sort”, and that evidence is given before trial judges here, and the trial judge says,  “I believe to the requisite standard the complainant.”  What could be done?  I can understand all the arguments at a jury level but I just do not see what the appellate point might be, Mr Porter.

MR PORTER:   Your Honour, we would say that in the context of this case there is no way in which a trial judge could have properly found beyond reasonable doubt - I mean, in these sexual accusation cases there is a tendency among some to apply the irrebuttable presumption of guilt to the accused but, assuming he does it properly, he is in a situation where there are a considerable number of danger signs as to the evidence of the accuser or the complainant.  There are no danger signs as to the evidence of the applicant.  In the particular circumstances of the case, there is nothing more that the applicant can do but deny it.  Now if, perchance, in the example that your Honour has put to me, in that context a judge had found him guilty, we would say that a Court of Criminal Appeal should set aside the conviction, because you are not deciding these matters on mere probabilities, you are deciding them on beyond reasonable doubt.

BRENNAN CJ:   If the point that you make there is arguable, then it may well be a question that an appellate court should decide but, if, in truth, the proposition is simply, “Well, the trial judge has the advantage of seeing the witnesses and the statutes being such that they can come to these decisions without corroboration” and so forth, “dangerous though it may be”, what can the courts do?

MR PORTER:   Under section 33 of the Criminal Procedure Act they have to give reasons.  In that way they differ from a jury.  The reasons given in this case - and we would say, the linchpin, the nails in the coffin, if one likes, of the conviction - are reasons which, as Mr Justice Sully found, could not stand up and were reasons given without applying any proper guidelines as to what is confirmatory evidence.

If I can give a very simple example of what occurred.  He wrote in her workbook, “Ten out of ten in more ways than one”.

GUMMOW J:   That assumed an enormous significance in the - - -

MR PORTER:   It did.  If your Honour pleases, the only instance I can think of like it is “chops and tomato sauce, never mind about the warming pan” which was the foundation of the verdict in Bardell v Pickwick.  To give that significance assumes guilt before you examine it.  If the proper guidelines had been applied, and that is, in our submission - this is a very important matter - does the evidence give, in a real way, significant support to the evidence of the complainant?

GUMMOW J:   But do we not have to, somehow, adjust the traditional rules of interference - to use that expression - with decisions of juries in criminal cases with the requirements of section 33, that the judge, without a jury, gives reasons?

MR PORTER:   That is right.

GUMMOW J:   Does that require some different form of approach as to the cogency of the reasons?  And what is it?

MR PORTER:   If your Honour pleases, that is another matter, we would say, which is a matter for special leave because it is not sufficient to say, as the Court of Criminal Appeal said in Kurtic’s Case 85 A Crim R 57, that you apply exactly the same test. That cannot be so because, as your Honour has pointed out, the statute says the judge must give reasons. The Court of Criminal Appeal, hearing an appeal from the judge, must therefore look at the reasons and if the reasons show that the judge has applied what he considers to be confirmatory evidence, without any proper appreciation of what confirmatory evidence ought to be, then there is a manifest error. The fact that the judge says, “Well, I’ve seen the complainant, I’m impressed by her.”, that does not get over it.

Take another instance, as frequently happens in this type of matter, the complainant said the door of the study was always shut.  As frequently happens in this type of matter, the accused, as he then was, the applicant said - the complainant said the door was shut; the applicant said the door was open, and each of them said “always”.  Independent witnesses were called who, in effect, said sometimes the door was open; sometimes the door was shut when the girl was with him.  The trial judge then regarded that as a severe matter going against the credit of the applicant.  But that cannot be right, it went against the credit of both if it went against anyone’s credit.  That is a by-the-way matter.

The fundamental thing that occurred in this case, really, if one looks at the trial judge’s judgment, if you looked at the two majority judgments of the Court of Criminal Appeal, was they put enormous significance upon the fact that the girl knew that the applicant had a vasectomy.  With great respect, none of them in any way attempted to disbelieve or discount the fact that he had had his vasectomy in the Gosford area where the school was.  The two nurses who had attended him had children at the school.  The anaesthetist had a child at the school.  As Mr Justice Sully rightly says, people seem to discuss vasectomies with considerable less reticence than they used to.  In fact, if I can recollect, I think at one time the ex-Premier of New South Wales vasectomy was discussed at great length in the press.

What convicted this man, in effect, in substance, was they said there was no way she would have known about it but from him, which was a finding which was, to say the least, very dubious, and if she found out about it from him then he must have had a sexual relationship with her.  We would submit that this looking for confirmatory evidence has to be the subject of rules; it has to be the subject of guidelines, otherwise we will have numerous innocent people being convicted on the basis of so‑called confirmatory evidence.

If I can put it this way, again to adopt the words of Mr Justice Sully, to indulge in hair splitting or straws in the wind and call it confirmatory evidence is simply a highroad to injustice.  This case is important - it is obviously enormously important to my client but it is important way beyond that sphere.  It is important from the general point of administration of justice and decision of this type of case, in a situation where, I think, everyone would agree that there is an ever present danger of the conviction of the innocent and that is why there needs to be guidelines about confirmatory evidence.  If you are going to use that - it is interesting to note that in the judgments which put this enormous significance on the confirmatory evidence, particularly the vasectomy, there was never a finding beyond reasonable doubt about that.

Now, I am perfectly happy to accept the proposition that each individual item of corroborative evidence or in the nature of circumstantial evidence does not have to be proved beyond reasonable doubt.  I am perfectly happy to accept the proposition that the Court of Criminal Appeal were entitled to look at the overall situation of the totality of the alleged confirmatory evidence.  But where they picked out one particular item and made it the decisive item, in my submission, they were bound to find it beyond reasonable doubt.  If they did not, then there is a grave defect in their reasoning and a grave defect in the process that convicted the applicant.  I think those lights indicate that my time is up, do they not?

BRENNAN CJ:   Not quite, but getting close, Mr Porter.  But I think we have understood the burden of your argument.

MR PORTER:   In other words, with regard to the confirmatory evidence which was, in substance, the evidence which convicted him, that was decided on the balance of probabilities and not beyond reasonable doubt at all.

Now, your Honours, I merely gave the other detail to show that if special leave were granted in this case it would not be a futility.  There is a very powerful argument to suggest that these convictions should be quashed but the fundamental special leave points are firstly, what significance do the reasons under section 33 of the Criminal Procedure Act have in the case of an appeal from a judge hearing the case without a jury?  Secondly, what are the guidelines to decide whether evidence can be safely classified as confirmatory evidence?  And, thirdly, if a case is decided on confirmatory evidence, should not the crucial confirmatory evidence be proved beyond reasonable doubt?  They are the matters of special leave which, we say, will arise again and again in numerous similar cases to this.  Now, I think I have now explained the matter to your Honours.

BRENNAN CJ:   Thank you, Mr Porter.  Yes, Mr Hosking.

MR HOSKING:   May it please your Honours.  We take issue with our learned friends in two respects.  They are these:  it is correct, as has been said against us, that it was the complainant’s word against the applicant’s.  The first point in which we differ from our learned friends is this, that according to our learned friends, these confirmatory points of evidence were the linchpin of the Crown case.  With respect, we do not accept that.  The trial judge did not do it in that way.  He progressed in, we submit, three correct stages.  He assessed the evidence of the complainant.  He assessed the evidence of the accused who gave evidence.  He concluded that he preferred the veracity of the complainant and, conversely, did not accept the accused.

BRENNAN CJ:   For what reasons?  At that stage, for what reasons?

MR HOSKING:   At that stage, your Honours, at that first stage, on the question of demeanour, as I apprehend what his Honour said.  His Honour then said, “I am confirmed in my impression of her veracity” by what our learned friends have called “the confirmatory evidence”, and there was a lot of it.  True, it is, it was not corroborative but there were many points that gave her account support to confirm his Honour’s impression as to her veracity.  That is the first point to which we take issue with our friends.

The second point is this:  that it is put to your Honours that confirmatory evidence, as is put against us, ought to be proven beyond a reasonable doubt.  We submit that that is not so.  We submit that that would set up a false issue and that the only issues that have to be proven beyond reasonable doubt, as your Honours will know, are the elements of the particular offence with which an accused is charged.  To set up a requirement that some other extraneous factor has to be proven beyond reasonable doubt, we submit, is without precedent and, as a matter of ordinary practice and commonsense, ought not be the case because it is difficult to set rules, as it is, for corroboration.

BRENNAN CJ:   We do not need to hear you on that point, I think, Mr Hosking.

MR HOSKING:   Yes.  Well, in a nutshell, they are our submissions.

GUMMOW J:   But does section 33 have corresponding provisions in other State legislation?  I had the impression it does but I cannot recall it immediately.

MR HOSKING:   I think it does, your Honour, but I am unable to nominate Acts and the provisions.

GUMMOW J:   If so, is there authority in other State intermediate courts construing the legislation?

MR HOSKING:   There is authority in this Court, your Honour.  Justice Kirby in Cutter has - - -

GUMMOW J:   I know that.

BRENNAN CJ:   Is that the only authority in this Court?

MR HOSKING:   That is the only authority that we are aware of in this Court, your Honours.  We are not aware of any authority other than Kurtic in the New South Wales Court of Criminal Appeal.

GUMMOW J:   It seems to be a proper question.

BRENNAN CJ:   That itself seems to be a question of some significance, does it not?

MR HOSKING:   Well, I cannot put to the contrary, your Honour.  I cannot gainsay that proposition.

BRENNAN CJ:   You see, if it is right that the appellate court’s function is not the same when there is a trial by judge alone and that it is open to the

appellate court to examine the steps in the reasoning, that is the factual reasoning of the judge below, so that one does not get into the M v The Queen line of country at all, that would mark a complete distinction, would it not, between the trial by judge alone and trial by jury?

MR HOSKING:   Again, I cannot gainsay that, your Honour.

BRENNAN CJ:   Is this a suitable vehicle for considering the question?

MR HOSKING:   Factually, we say it is not because we submit the supporting evidence in this case was so powerful that there was no miscarriage of justice in the instant case.

BRENNAN CJ:   Confirmatory evidence.

MR HOSKING:   Confirmatory evidence.  We say that looked at properly, in the instant case, there was no miscarriage of justice although, otherwise, I do not think I can put the proposition that it is not a suitable vehicle.  May it please your Honours.

BRENNAN CJ:   There will be a grant of special leave in this case.

MR PORTER:   If your Honours please.

AT 9.56 AM THE MATTER WAS CONCLUDED