Foster v The Queen

[2015] HCATrans 276

[2015] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2015

B e t w e e n -

DANE FOSTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 12.15 PM

Copyright in the High Court of Australia

MR S.C. HOLT, QC:   If the Court pleases, I appear for the applicant.  (instructed by Peter Shields Lawyers)

MR G.P. CASH:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, Mr Holt.

MR HOLT:   If the Court pleases, we need an extension of time in relation to this matter.  I understand from my learned friend that that application is not opposed and I am happy to address it if your Honours please.

MR CASH:   That is so, your Honours.

KIEFEL J:   Yes, you have the extension.

MR HOLT:   Thank you, your Honour, I am grateful.  Your Honours, this application for special leave raises an important question in our submission, essentially relating to the legal meaning of the word “complaint” in the sense of a preliminary complaint.

KIEFEL J:   Is it about the meaning of the word “complaint” or is it about how you communicate – how a person communicates the matter of complaint?

MR HOLT:   The second is a subset of the first, in my respectful submission, so it is essentially about both.  At its broadest level, it is about the question of the legal meaning of “complaint”.  At its specifics ‑ ‑ ‑

GORDON J:   Am I to read your submissions as conceding you do not need speech?

MR HOLT:   Yes.  For example, your Honour, if a complainant were to write down a complaint that would plainly be sufficient.  If a complainant were to nod in response to a series of matters that were put that could, depending on the circumstances, be sufficient.  So it would be wrong for me to submit that speech is absolutely required in all circumstances.  That is, in my submission, plainly so, but that does not detract, in our submission, from the real question which emerges in this application which is what is a complaint for the purposes of preliminary complaint evidence, as it is called in Queensland.

KIEFEL J:   Well, there is, of course, a distinction between saying absolutely nothing about an allegation of rape, on the one hand, and on the other being asked if you have been raped and then not responding orally, but showing, by gesture and facial expression, that that is in fact the case.

MR HOLT:   Yes, and, your Honour, with respect, it is to the heart of the matter here.  There are two components to the evidence which is set out at various places in the application book, but replicated in our submission at page 62 of the application book.  There are two aspects to the complaint, or what was said to be a complaint made in this case.  The first is silence in response to the question “Did he rape you?” and it was put by Justice Gotterson in the Court of Appeal on the basis that silence could be the acceptance of a proposition.  The question, in our submission, as we put in the written outline is really whether silence is capable of being a yes answer to that question as opposed to a no answer to that question, or no answer to that question at all, and, in our submission, it is no answer to that question at all in context.

The second, as your Honour Justice Kiefel, with respect, correctly notes was the evidence which is set out there also or given there – led essentially by his Honour the trial judge, but that does not matter for present purposes, which was the ‑ ‑ ‑

GORDON J:   Slumping of the shoulders and looking beaten?

MR HOLT:   Yes.  The difficulty, of course ‑ ‑ ‑

KIEFEL J:   And “about to burst into tears” might indicate somewhat of a difficulty in responding directly.

MR HOLT:   It might, although it cannot in the context of this case because this was a case in which everybody accepted – indeed, it was accepted by the applicant’s guilty pleas that he had committed very serious violent offences against the complainant, indeed about which she had complained in this very conversation directly and unequivocally to this very witness, such that the learned trial judge took away from the jury distress as a – the complainant’s distressed state as evidence that it could use in support of the rape charges, precisely because of the equivocal nature of that given the other matters that were going on at the time. 

Thus, in these circumstances – we have described them as equivocal.  They are essentially irrelevant, in my respectful submission, and it is a point that Mr Byrne QC, counsel for the applicant at trial, made when he invited the learned trial judge to redirect the jury, which is at application book 19 at line 22.  Mr Byrne sought a redirection and made precisely the point that his Honour had chosen to direct the jury that distress was irrelevant for that very reason.  She looked beaten, if I can put it bluntly, because it was entirely accepted that she had been, in this context.

Thus, what we had here was – we have a physical response by her which has an explanation sufficient that the trial judge took distress away as a matter that could be considered and otherwise all that one has is silence.  In my submission a question as to whether that can amount to a complaint for the purposes of preliminary complaint evidence is one that must be answered in the negative when one understands properly what the nature of preliminary complaint evidence is, not as my learned friend puts it, with respect, incorrectly, in his submission, that it is an exception to the hearsay rule.  Of course, it is not.  It is not being led to prove the truth of its contents.  It is being led as an exception to the rule against prior consistent statements.

The point of complaint evidence is that it has to provide a narrative of some sort to allow comparison between what the complainant says in her complaint, if it is indeed a complaint, with her conduct, as it put by this Court, properly, with respect, in court and her evidence in court.  It is not a question that there is some reliance by my learned friend on where silence in response to an allegation can amount to an admission.  There the admission itself, the proposition that one would expect a person to deny ‑ ‑ ‑

KIEFEL J:   But a complaint does not have to contain particulars of the offence – the way you are putting it, it seems to me you are suggesting that it does.

MR HOLT:   What it has to provide is something – I accept the proposition in the way your Honour puts it, but what it has to provide is something that can be compared to the complainant’s evidence and conduct in court, because if it cannot then it cannot meet the very basic purpose of evidence of complaint.

GORDON J:   So if we come back to the principle which is in issue here, you accept that conduct other than speech can amount to a complaint?

MR HOLT:   Yes.

GORDON J:   You take issue with the proposition that the absence of a verbal rejection of the proposition could amount to a complaint?

MR HOLT:   Yes.

GORDON J:   Yet, in this situation, it seems to be fact specific that here we have a set of facts which, on their own basis, would not provide an appropriate vehicle to test those propositions.

MR HOLT:   Well, they can, in my submission.  The facts do provide an appropriate basis for this reason.  That additional – for two reasons – the additional – the body language, if I can put it that way, without meaning to deprecate it at all, but the body language evidence, her response evidence, given the ruling about distress evidence which was, with respect, entirely correct in the context of this case, takes us nowhere in this context.  If the question had not been asked and there was not silence in response to that question, then the other evidence of slumping and so on in the particular context could take the matter nowhere.  It could not amount to complaint on that basis. 

What is at the foundation of the admissibility of the evidence or the claimed admissibility of the evidence in this case is the silence in response to the question.  It takes us to an important distinction, in my submission, which was not properly grappled with, with respect, by Justice Gotterson at paragraph [32] of the judgment in the Court of Appeal where his Honour – this is at application book 49 ‑ ‑ ‑

GORDON J:   This is his Honour’s statement:

It is not necessary that in order to respond meaningfully ‑ ‑ ‑

MR HOLT:   Yes.  It is the wrong question, in my respectful submission.  The question is not – because his Honour seemed to use that question as a proxy for the question as to whether in law this was a complaint, and that is not the right question.  The question is not whether it was a meaningful response or not, the question is whether the evidence is capable of being complaint evidence as a matter of law.  There was not a question of discretion.  In fact, it was not a matter that should even have been left to the jury to decide, as the learned trial judge did.  You decide, members of the jury, whether this amounts to a complaint when the meaning of “complaint” is a legal question, without any assistance. 

There is an assumption in all of this that if it is a meaningful response to a question then it is complaint evidence and there is a significant gap in the reasoning, in my submission, and the gap that was not asked and answered is whether or not this evidence created – I have used the word “narrative”.  It might be an imprecise and clumsy term, but something, some narrative, some piece of evidence properly designated as complaint evidence which could then be compared to what the complainant says and does in court because otherwise the evidence has no purpose because it is not admissible just because it was said.  It is admissible only for the purposes of that comparison.

KIEFEL J:   And the time at which it was made.

MR HOLT:   Yes, all of the surrounding context, your Honour, I have to accept that, but perhaps if I can deal with it by way of, not quite analogy, but something amounting to it.  When we deal with complaint ‑ ‑ ‑

KIEFEL J:   The question under section 4A(2) is one of admissibility.  Much of what you have been saying is really questions going to weight.

MR HOLT:   No, in my submission.  With respect, it goes to the very question of the definition of what amounts to complaint evidence or not, what is a complaint and that is a question of construction, not a question of discretion.  So the learned trial judge made, by inference at least in response to Mr Byrne QC’s request for a redirection, a finding that this evidence was capable of amounting to complaint evidence and that has, at least implicit within it, in my submission, an explicit finding about what the legal definition of “complaint” is.  There is very little law on this.  There is surprisingly little law on what is a complaint ‑ ‑ ‑

GORDON J:   Well, it is not surprising because you accept the propositions that I have put to you so it is going to be fact specific, it is going to depend upon the context, as Justice Kiefel put to you – the time, all the other surrounding circumstances.

MR HOLT:   Yes, but we are dealing here, in our submission, with an example that falls outside the boundaries of what is a proper legal definition of “complaint” because it does not create something which can be used for the only purpose for which complaint evidence is used, that is for comparative purposes.  What is created here simply does not meet that threshold.  By way of example, there was no ‑ ‑ ‑

KIEFEL J:   The point about a preliminary complaint is that it was made and the time at which it was made.  If there were other words said at the time and something to give it, as you say, a narrative, that may be as well, but that is not the purpose of complaint.

MR HOLT:   Well, if I might respectfully disagree with your Honour because it might get to the heart of the application in many ways.  In my submission, as we have set out in the written outline, the only purpose of preliminary – we have not got to the point, if I can put it a slightly different way, in our law where we say, at least not in uniform Evidence Act States, can I put it that way, where we say whatever was said by a complainant which was the precursor to a person ultimately being charged is admissible.  It has to be admissible for a purpose and in accordance with principle as an exception to the rule against prior consistent statements and here that is only in this context, that is only for the purpose of comparison, for comparison with the complainant’s conduct in court, as this Court has put it.

If that is so, then the evidence must be capable of meeting that – it must be capable of permitting that task to be undertaken.  In our submission, where one has a silent response – and I do invite your Honours to simply put those other matters to one side in the context of this case – a silent response is not capable of creating that.

KIEFEL J:   How is a person who is unable to speak to respond?

MR HOLT:   If you have a person who is unable to speak, one would expect a response, a communicative response but perhaps in a different form, not simply silence.  I mean, here we have a complainant who had made unequivocal complaints of awful physical abuse which had ‑ ‑ ‑

KIEFEL J:   She had been crying.  She was probably at the end of her tether.

MR HOLT:   Yes, your Honour, but that does not answer the question of whether the actual evidence, as it is set out in our submissions and otherwise, is capable ‑ ‑ ‑

KIEFEL J:   Quite.  It may explain it.

MR HOLT:   My submission ultimately is that this was not a question of discretion, not once - once a proper application of meaning of “complaint” which requires the creation of something that can properly be compared is deployed, silence in the face of a question is insufficient, particularly where that question can be answered yes or no. 

So, if, in the examples that my learned friend refers to in the admissions examples, someone says to me, “Mr Holt, you murdered someone, didn’t you?” and I sit mute, then the law says, well, in certain circumstances at least, it can be implied that if I had not done that, if I had not murdered someone I would be saying no, I did not.  That is the basis - that is the logical basis that founds that.

KIEFEL J:   They would say that is, par excellence, a question for the jury.

MR HOLT:   Yes, but this is a different question because the admission itself is the evidence.  What has to be created in the complaint context is something that can be compared against the complainant’s narrative and, in addition, there is an enormous difference between an allegation being put of me having done something wrong, and that, therefore, turning into an admission by operation of law, by operation of evidence law, an inference, than somebody who simply has a proposition put to him or her, the answer to which could be yes or no, and then saying well, by virtue of silence we can assume that it was yes.

The rhetorical question is why?  There is a logic to why the rules of evidence in relation to admission by silence have developed when one appreciates the difference in the pool of evidence that one is creating and deploying.  In my submission, complaint evidence is different and cannot be – the threshold cannot be met, in my submission, on that basis. 

So it simply, even if these sort of circumstances, silence, could amount to an admission of a criminal offence, for example, in the kind of circumstances I have been setting out, it cannot amount to a complaint in these circumstances, absent something like writing down something that actually communicates – again, I have used the word “narrative”.  I cannot on my feet think of a better one, but that creates something which is capable of meeting the definition and requirements of the evidence itself.

There is – just picking up, perhaps, in response again to a point that your Honour Justice Kiefel raised with me – if I could draw the Court’s attention to page 79 of the application book, and these are the submissions of my learned friend.  He cites at paragraph 8 of his submissions on that page a passage from the judgment of Justice Thomas in R v S, which was no doubt, at least in part, a precursor to section 4A of the relevant Act in this case.  The way his Honour Justice Thomas put it is, with respect, something like the way in which your Honour Justice Kiefel put it to me before, toward the bottom of that paragraph:

An assessment of the truth of the complaint can hardly be attempted without some knowledge of how it first saw the light of day.  It is my view that evidence of first complaint should always be receivable in cases involving sexual misconduct –

My submission is that simply is not the law.  To be complaint evidence the evidence must be capable of being used in the fashion that this Court has determined that the only way in which complaint evidence can be used, which is to compare with something which the complainant says to allow a permissible process.

KIEFEL J:   I think we have understood that submission.

MR HOLT:   Yes, I understand.  I am sorry, I am now saying things I have already said.  If the Court pleases, those are my submissions.

KIEFEL J:   We consider there is no reason to doubt the correctness of the decision below.  Special leave is refused.

AT 12.32 PM THE MATTER WAS CONCLUDED