Graham v The Queen

[1998] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 1997

B e t w e e n -

PHILLIP JOHN GRAHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 12 NOON

Copyright in the High Court of Australia

MR M.A. GREEN, QC:   May it please the Court, I appear for the applicant, together with my learned friend, MR S.J. ODGERS.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

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

BRENNAN CJ:   We would like to hear from you, Mr Hosking.

MR HOSKING:   I cannot say I am entirely taken by surprise, your Honours.

BRENNAN CJ:   That, in a sense, answers the question then, does it?

MR HOSKING:   No, I do not concede that, your Honours.  I just had an inkling.

Your Honours, we submit that of the four questions set out in our learned friend’s submissions as special leave questions - and may I take your Honours to page 74 of the application book - of those four enumerated questions, only the first, 1.1, the section 66 of the Evidence Act question and the meaning of what is “fresh in the memory”, your Honours, our first submission is that as to those four questions, it is only the first, 1.1, the “fresh in the memory”, section 66 Evidence Act question, that has not already been examined by the High Court.

Your Honours, question 1.2, the significance of delay, has been examined in Longman and other cases, I think.  1.3, the question of the proviso, we have made reference to Glennon and Wilde.  The proviso has been examined in many cases by this Court.

BRENNAN CJ:   But take that case, take that situation here, for example.  Here was a record of interview admitted in which there was nothing but allegations made by the accused without confessional statements appearing.

MR HOSKING:   Your Honour, I accept that point.

BRENNAN CJ:   How can one say, in those circumstances, that that did not produce some damage to the prospects of acquittal?

MR HOSKING:   Your Honour, that would be so, we concede, if the record of interview was improperly admitted.  With great respect to Justice Levine in the Court of Criminal Appeal who expressed the view that it was improperly admitted, we say that on a proper examination of the evidence it was a proper piece of evidence for admission.  I can explain to your Honours quickly why we say that is so.

Your Honours, as our learned friends point out, when the applicant was questioned by the police in his electronic interview, on at least three occasions they said to him, in effect, “Can you proffer any reason why she would make these allegations against you?”  Our learned friend says that equates to “Why would she lie?”  We do not accept that.  There is a difference.  But those questions were asked. 

In the record of interview he said that he could proffer no reason as to why she would make these allegations against him but when it came to the trial, not unusually, it was the complainant who gave evidence first.  When the complainant gave evidence, she was cross-examined about a motive to make these allegations.  Your Honours, the material - there is some reference to it in our learned friend’s submissions but we can more easily refer to it, if we may hand, with our friend’s leave, up to your Honours some pages from the actual transcript.  It will make it easier, I suggest, your Honours.  I will hand up three copies.

Your Honours, the bundle that I have just handed up commences with a three-page judgment that his Honour gave on the admissibility of the record of interview.  I will return to that later if I may.  May I take your Honours first to the fourth page in the bundle which is headed “D2”, day 2.  It is page 31 at the foot of the page and it is a portion of the cross‑examination of the complainant.

BRENNAN CJ:   Now, was there an objection taken to the admissibility of the record of interview before the evidence of the complainant was led?

MR HOSKING:   Yes, it was, and - - -

BRENNAN CJ:   So, that at the time the complainant was giving her evidence and being cross-examined, it was known that the record of interview was going to be introduced into evidence?

MR HOSKING:   Yes, that is true.  That is true, yes.  I appreciate the force of that, your Honour.

CALLINAN J:   Mr Hosking, it seems to me that the reception of the record of interview really led to an exploration of a whole lot of prejudicial non‑issues which could be used against the applicant, and that appears, I think readily, from pages 48 and 49 of the Court of Criminal Appeal’s extract from some of the evidence.

MR HOSKING:   Yes.  May I say to your Honour, candidly, that if that is your Honour’s impression, it is hard for us on this side of the Bar table to meet that on a special leave application.

CALLINAN J:   Impossible, I would have thought, with respect.

MR HOSKING:   Thank you, your Honour.  I do not know that I need - - -

CALLINAN J:   No, I do not want to deter you from making any further submissions.

MR HOSKING:   There are other points that I had intended to make, your Honour, but if it comes down to that, I do not know that I can usefully go on.

BRENNAN CJ:   I doubt whether you can, Mr Hosking.

MR HOSKING:   I am indebted to your Honour.  I do not want to take up your Honours’ time unnecessarily.

BRENNAN CJ:   Thank you, Mr Hosking.

The Court will grant special leave in this matter.

AT 12.08 PM THE MATTER WAS CONCLUDED