Glossop v The Queen

[2002] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S108 of 2001

B e t w e e n -

DAVID JOHN DOUGLAS GLOSSOP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 11.28 AM

Copyright in the High Court of Australia

MR C.C. WATERSTREET:   If the Court pleases, I appear for the applicant.  (instructed by Murphy’s Lawyers Inc)

MR R.D. COGSWELL, SC:   I appear for the respondent with my learned friend, MS B.K. BAKER, may it please the Court.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Waterstreet.

MR WATERSTREET:   With the Court’s permission and my friend’s consent, might I hand to your Honours two or three documents that do not appear to have made their way to the Registry.  One is an outline of my oral submissions just to shorten the time that I will be on.  I hand up three copies.

GLEESON CJ:   Thank you.

MR WATERSTREET:   The second is a copy of the article in Bar News referred to in the respondent’s reply ‑ ‑ ‑

GLEESON CJ:   This is the conflict between Judge Nader and Mr Cowdery?

MR WATERSTREET:   Yes.  Can I hand it up.  I thought it had been filed and it had not.

GLEESON CJ:   Yes.  Well, I have read those articles anyway, but hand up a copy then.  I am familiar with the encounter.

MR WATERSTREET:   Yes.  Might I also hand up a copy of the Director of Public Prosecutions of New South Wales, Prosecution Policy and Guidelines.  It is only the one on presenting bills with a reasonable prospect of conviction, in a shorthand way of putting that.

GLEESON CJ:   Thank you.  Will you just give us a moment to look at the outline that you have handed up.  Mr Waterstreet, it is clear, is it not, that notwithstanding an attempt made on your side of the record to present this as such a case below, this was not dealt with on the basis that it was a recovered memory case?

MR WATERSTREET:   No, it was treated as a recovered memory case by us.  At trial judge level the trial judge found, as a matter of fact so the Court of Criminal Appeal found, that hypnosis had not taken place but, significantly, he also found there was a reasonable possibility that the memories were false memories.

GLEESON CJ:   But it is not sort of recovered memory under ‑ ‑ ‑

MR WATERSTREET:   Yes, it was run as that and the trial judge found that there was a reasonable possibility they were false memories, and in that sense, yes.

GLEESON CJ:   False memory is just thinking you remember something that did not happen.

MR WATERSTREET:   Exactly.

GLEESON CJ:   I could have a false memory about something yesterday which is different from this recovered memory idea.

MR WATERSTREET:   That is a matter of definition.  It is not a recovered memory in the sense of an intervention by therapist.

GLEESON CJ:   Yes, go ahead, Mr Waterstreet.

MR WATERSTREET:   It may be taken as read, can I just hand up section 13 of the DPP Act which we say makes law the guidelines.  Assuming the high hurdle that an applicant in this Court faces, we say that for the reasons set out in the outline of oral submissions, namely, no specific decision of this Court in circumstances of long delay, uncorroborated evidence and a dispute, obviously in the community, about the appropriateness or otherwise of bringing such cases in a circumstance where the trial judge, we would submit, inferred that there was no reasonable possibility of conviction.  He did not take into account that in giving the stay.  So that our primary submission is this, that although the trial judge found, despite 25 years lapse, despite loss of records, he would not grant a stay.

GLEESON CJ:   Could you just remind us what actually went on before the trial judge in the way of evidence and argument.

MR WATERSTREET:   Can I walk your Honours through that.  Can I first of all take your Honours to page 2.  It is a notice of motion and notice of motion 1 was a permanent stay and 2 was an exclusion of the evidence.  There were two complainants at this pretrial, the second complainant, the female complainant, no longer pursuing it.  The affidavit of Mr Doughty was unchallenged and we rely on paragraphs 9 and 10 – we would ask your Honours to read that – was “it is virtually impossible to identify the time and date” ‑ ‑ ‑

GLEESON CJ:   Page?

MR WATERSTREET:   Page 4, paragraph 9.  Page 3 is an affidavit by the solicitor for the applicant.

CALLINAN J:   Mr Waterstreet, do you say that there was a guideline that was infringed?

MR WATERSTREET:   Yes.

CALLINAN J:   Where do I find that?

MR WATERSTREET:   One passes it this way.  The guideline we say that the DPP follows where the judge has a view, the traditional view, of course, that bringing indictments is a matter for the Crown but in a stay matter, the substance of this application, is where – and inferentially this trial judge did – found that there was not a reasonable prospect of conviction ‑ ‑ ‑

GLEESON CJ:   Where did he find that?  The guideline is on the first two lines of page 4 of that document you handed up, is it not, where you have marked it with ‑ ‑ ‑

MR WATERSTREET:   That is it, bottom of page 3 and 4.  Mr Cowdery refers to it in his rebuttal of Judge Nader’s article.

GLEESON CJ:   Yes, but part of the background to this is, I presume, there had been a committal for trial.

MR WATERSTREET:   Yes, there had been.

GLEESON CJ:   So the committal for trial involved the Magistrate finding certain things about prospects of success.

MR WATERSTREET:   Yes, and there was also evidence from the two complainants before this trial judge on the application for stay and it was on those matters that the trial judge, significantly we say, found the following.  If I could take your Honour to, first of all, page 15, which shows that there is no medical records; page 16 shows that there was one page for the school records and at page 18 the trial judge’s reasons again.

GLEESON CJ:   Yes.

MR WATERSTREET:   Now, I just hesitate to remind your Honour that at the time the stay was rejected there were two complainants.  It is common ground that the female complainant has withdrawn her allegation and the matter is no longer pursued.  His Honour, the trial judge, dealt with the stay application on page 23, page 6 of his reasons, and he said at line 15:

The accused’s counsel submission, that delay has resulted in vagueness of the complainants’ allegations, uncertainty of the complainants’ memories ‑ ‑ ‑

GLEESON CJ:   The primary basis of the application was that the evidence of the complainant should be excluded and, therefore, there should be no trial, and that that was the recovered memory.

MR WATERSTREET:   Exactly, that was on the sole basis of hypnosis, I agree with that.  But, your Honour, he said that the allegation has some merit, at the bottom of page 23.

GLEESON CJ:   But was there an application that the judge should exercise his power on the basis that, assuming the evidence was admissible, there were insufficient prospects of success for the prosecution?

MR WATERSTREET:    Yes.

GLEESON CJ:   Where does he deal with that?

MR WATERSTREET:   First of all, all the grounds were dealt with in globo, but he dealt with it, we say – at the top of page 25, page 8 of his reasons, second line, he says:

has resulted in the complainants being uncertain as to some things and vague as to other things such as to suggest that their evidence might be unsatisfactory, I cannot exclude the complainants’ evidence upon that basis.

And then, importantly for this application, at the bottom of page 25:

Thus I have answered the issues raised by the complainant’s motion.  However, before I leave this Motion, I wish to say that I wonder whether sufficient thought has been given to the question whether the evidence which is admissible is capable of satisfying a jury beyond reasonable doubt . . . I appreciate that this is a question for the Director of Public Prosecutions to answer.  I do not want anyone to think that I should answer this question.  However, having said that, I spent four days with this Motion and I see some hurdles for the Crown –

and then he goes on to the delay in paragraph 1, the risk of contamination 2, 3 the lack of corroboration.  But can I go to page 27, page 10 of his judgment, paragraph 8, very importantly:

Whilst it is reasonably possible that the complainants’ memories are true memories, there must be a reasonable possibility that the complainants’ memories are not true memories, that is that they may be honestly believed false memories, in which case a jury, properly instructed, would be left with a reasonable doubt about the accused’s guilt.

What we say is, having made those findings of fact, he should have taken those into account on the stay.

GLEESON CJ:   A magistrate had to take similar considerations into account before committing people for trial, did he not, before committing your client for trial?

MR WATERSTREET:   I accept that, but there was different evidence, if I could be so bold.  The trial judge had heard the complainant and had heard the difficulties.  Our sole complaint – or the two sole complaints are that he made a finding of fact that one could infer that he believed the DPP, at the very least, should revisit it, or was wrong and, secondly, that it was ‑ ‑ ‑

CALLINAN J:   Overshadowing all these cases to some extent is what this Court said in Doney’s Case, that even a tenuous case cannot be taken from a jury and I do not doubt that that has had an influence on prosecutors and on judges and magistrates.  I am not too sure that it has been a good influence, in fact.  I have a lot of sympathy with your client in this case.  It would be very difficult to get a fair trial.

GLEESON CJ:   But it does raise a question, does it not, as to the relationship between the judicial and executive branches of government?

MR WATERSTREET:   It does and I have tried to get it ‑ ‑ ‑

GLEESON CJ:   And, as Lord Hailsham pointed out in, I think, the case of Connelly v DPP, if people get the idea that judges can stop prosecutions because they do not approve of them, it is a very short step from that to concluding that all prosecutions that go ahead, go ahead with the approval of a judge.

CALLINAN J:   And everything has got to be reviewed.  It would be intolerable, really.

MR WATERSTREET:   What I say that this Court has reason to do, because it rarely would get the question before trial, is where does Longman and Doggett end and where does Jago in these sorts of cases begin?

GLEESON CJ:   Do not forget there is a long line of authority in the Court of Criminal Appeal of New South Wales and elsewhere – and this Court has refused special leave to appeal in cases where people have sought to challenge this line of authority – that a trial judge cannot take a case away from a jury because the trial judge thinks a verdict would be unsafe or unsatisfactory.

MR WATERSTREET:   That is a given, of course.  What I am saying, though, is that in the context of a stay only he could take into account the fact that he believes that the DPP, at the very most for us, has misconceived that discretion or, at the very least, should revisit it.  Secondly, having found as a matter of fact that having seen the witness it is a reasonable prospect that it would be a directed verdict on what he saw and why should an applicant wait ‑ ‑ ‑

CALLINAN J:   Your best case depends entirely on paragraph 8, does it not, at page 27?

MR WATERSTREET:   It is the sharp end of my stick.

GLEESON CJ:   There could not be a directed verdict, could there, if there was evidence which a jury could accept and which, if accepted, could result in conviction?

CALLINAN J:   On the basis of Doney there could not be, could there?

MR WATERSTREET:   One would think not.  I would argue this, that if, as a matter of fact, it was left that the Crown had not shut the door on a reasonable possibility that the complainant’s memories are false, then they have not proved their case.

GLEESON CJ:   Saying that a memory is false really just means this person honestly believes that what he is saying he recollects is true, but his recollection is wrong.

MR WATERSTREET:   Yes, that is correct.  That is exactly right.  We just say that this Court would rarely get an opportunity to deal with the delicate matters of balance in these sorts of matters.  It has dealt with it in Jago and it has dealt with it in Glennon but it has not had the opportunity to deal with it in this type of case where one judge in the Court of Criminal Appeal said – and I quoted it in my submissions but I do not know whether the transcript of the argument in the Court of Criminal Appeal made its way

to this Court, but can I hand it up.  I will give three copies and I will just refer to it and I will give my friend a copy.  It is only one page of argument and I referred to it in my summary of argument but I do not think it founds its way – it is a comment of Mr Justice Sully on page 16:

Mr Waterstreet, is it not time for the courts to take a firm grip on the correct starting point for this kind of discussion, which is nothing to do with judicial discretion.  It has to do with parliamentary statutory policy.  For myself, I think that there is something seriously wrong, logically, with a state of affairs that permits very serious allegations of sexual misconduct to be revived in the criminal courts after twenty years or so.  That is just a personal view.  I take the point entirely.  I have never understood how it is expected that, exceptional cases apart, justice can confidently be done in cases of that character, human memory, human ‑ ‑ ‑

GLEESON CJ:   I do not really expect to see during my lifetime, Mr Waterstreet, a political party go into an election campaign proposing a statute of limitations on child sexual abuse.

MR WATERSTREET:   That, with respect, is why the Court should.

GLEESON CJ:   Yes, I understand the argument.

MR WATERSTREET:   That is it, your Honour.  I do not put it in ‑ ‑ ‑

GLEESON CJ:   Thank you.  Yes, Mr Cogswell.

MR COGSWELL:   May it please the Court, may I make three submissions.  The first is to deal with what my learned friend referred to as the “sharp point” or I think your Honour Justice Callinan may.  May I take your Honours to page 27 of the application book, and paragraph 8 where that remark is made that your Honour asked a question about, the “reasonable possibility”.  That remark needs to be seen in this context.  We go back to page 25 of the appeal book where his Honour concludes dealing with the various matters in the notice of motion, finishing with question 4.  His Honour then, at about line 41, confirms that, “Thus I have answered the issues raised”.  Then goes on to the question of whether the evidence is admissible and is capable of satisfying a jury.  The foot of page 25, line 50:

I appreciate that this is a question for the Director of Public Prosecutions to answer.  I do not want anyone to think that I should answer this question.

He then elaborates his Honour’s eight points, concluding with the eighth, and then following the eighth, once again back at page 27 at about line 44:

These are some hurdles that I see in the Crown’s cases against the accused and, whilst as I have said it is not a question for me to answer –

So that is far from a finding by his Honour that there must be a reasonable possibility that the complainant’s memories are not true memories.  They are, at the most, observations made by his Honour, obiter dicta, and expressly so.  His Honour qualifies his remarks that.  The second submission, your Honour, concerns this area which your Honour the Chief Justice raised between the judicial and the executive branch of government.  To the extent that my learned friend’s submissions invite the court to, or invite a trial judge to review a decision by the DPP, this Court has made it clear that there is a fundamental line not to be crossed and our submission is his Honour did not cross it.  There is a case called Director of Public Prosecutions, South Australia v B 194 CLR 566. The passage is at 579 and it is in paragraph 21. It is a joint judgment of Justices Gaudron, Gummow and Hayne where their Honours refer to the “The line”. Hence, his Honour’s remarks over pages 25 to 27, made expressly obiter, clearly demonstrate that his Honour stayed on the, with respect, correct side of that fundamental line.

The third submission, and final, in so far as my learned friend’s argument suggests that at some stage of the proceedings the trial judge should consider the question which the DPP at first considers and to some extent, as the Chief Justice points out, a committing magistrate, whether there is reasonable prospect of a conviction, that is, in our submission, an unwarranted trespass onto the province of the jury and one which, as Justice Callinan pointed out, this Court dealt with in Doney v The Queen 171 CLR 207 and there is a passage ‑ ‑ ‑

CALLINAN J:   I am not too sure, you know, that Doney has not cost the community a great deal of money that might unnecessarily have been spent and that it may not have caused a great deal of distress.  In any event, we are all bound it.

MR COGSWELL:   I appreciate the force of your Honour’s remarks and as your Honour pointed out ‑ ‑ ‑

CALLINAN J:   No doubt if affects the DPP and his resources from time to time.

MR COGSWELL:   That is right.  The passage that your Honour referred to is at the foot of 214 and the top of 215.  Once again, it is a joint judgment of five Justices of this Court and in particular there is a passage at 215, the first paragraph there:

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory . . . nor the inherent power of a court to prevent an abuse of process (as to which see Jago v District Court (NSW)) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function.

That is, in our submission, a proposition ‑ ‑ ‑

CALLINAN J:   You know, it strikes me as being a little bit anomalous because this Court held in a civil jury case, I think by a majority, that the case could go to a jury, a civil case, if there are any reasonable bases.  In any event, the word “reasonable” is inserted in there, but it seems to be a much less stringent test with respect to people being put in jeopardy.  In any event, that seems to be the position.

MR COGSWELL:   It may be because of the long entrenched and important function of a jury in determining guilt or ‑ ‑ ‑

CALLINAN J:   It used to be thought that way about civil matters too, that it is an entrenched function of a jury to decide civil cases.

MR COGSWELL:   True.  They are our submissions.

GLEESON CJ:   Yes, thank you.  Mr Waterstreet.

MR WATERSTREET:   Yes, just in reply, on that matter of Doney, it is at the stay time that the trial court judge has the well‑known power of not allowing a case to go to the jury, despite a prima facie case, and that is commonly exercised.   What we say is that this case raises for review the parameters of that exercise, so that the view of not going to a jury in an otherwise prima facie case is the province of a judge’s discretion.  The error is that matters of comment or fact he did not take into account and could have.  Thank you.

GLEESON CJ:   The decision of the Court of Criminal Appeal in this matter turned on the application of settled legal principle to the facts and circumstances of the particular case.  The court was reviewing a discretionary decision of a trial judge.  No error has been shown in the approach taken by the Court of Criminal Appeal to the matter.  The application is dismissed.

AT 11.55 AM THE MATTER WAS CONCLUDED