Grewal v The Queen

[1998] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S128 of 1997

B e t w e e n -

HERMINDER GREWAL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 12.36 PM

Copyright in the High Court of Australia

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

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

KIRBY J:   Yes.

MR ODGERS:   Your Honours, in this case it was primarily one of the complainant’s word against that of the applicant.  Although there was some evidence from the complainant’s mother introduced by the prosecution to provide some corroboration of the complainant, it could not be said to have been an overwhelming prosecution case.  This application relates to evidence from the defence from a psychologist who spoke to the complainant and her mother on a number of occasions before the matter was referred to the Department of Community Services and, a year later, to the police. 

The evidence was excluded in its entirety by the trial judge at the beginning of the trial.  The nature of the anticipated evidence of the psychologist is disclosed in the report of the psychologist at application book, page 14, and his committal evidence at pages 18 to 42.

HAYNE J:   Could I just see if I understand the nature of that evidence?  Could it be summarised in this fashion:  “I am a psychologist.  I understand the symptoms of young people who have suffered sexual abuse.  The symptoms that they commonly exhibit are A, B, C, D.  I have spoken to the complainant in this case.  She, to my observation, exhibited symptoms A, B, C, D or symptoms like them at point 1.  She did not exhibit them at point 2.”  He would wish to go on to say or perhaps the defence would wish to have him go on to say, “Because she exhibited them then but not later, yes, she was abused, but while in the custody of her natural father, not her stepfather.”  Is that the essence of it?

MR ODGERS:   I would accept that that would be a fair summary of it, except for this, that he would go on to say, firstly, that she was not sexually abused in his opinion by the applicant; that she may have been sexually abused by her natural father some years before; that in his opinion there are explanations which could be advanced as to why she might falsely accuse the applicant, but I accept that those are additions to what your Honour has put.  The essence of our complaint is that even assuming for the purposes of the argument that section 409B of the Crimes Act prevented the defence from calling or leading evidence of the opinion that she had been sexually assaulted by her natural father, that should not have prevented the defence from leading evidence of the opinion that she had not been sexually assaulted by the applicant.

KIRBY J:   There are two issues then, two conceptual issues.  One is the psychologist’s evidence that was excluded and the second is the scope of section 409B.

MR ODGERS:   Yes.  We have sought to raise a third, which is that even accepting or proceeding on the assumption that 409B did exclude the evidence that she was sexually assaulted by her natural father - and we say that this was very relevant in the trial, would have been very relevant because it would have provided an explanation for the details of the description of the assaults and also explained other aspects of the case which without the evidence would have created suspicion - that this Court should consider the question of whether or not an appeal court in exercising its power under section 6 of the Criminal Appeal Act has the power to say, “All right, even if it was inadmissible at the trial, this court can take it into account in determining whether or not there has been a miscarriage of justice.”

KIRBY J:   Is that not in the face of what the Court held in Grills or DJE?

MR ODGERS:   With respect, no, your Honour.  In Grills this Court by majority held that a trial court cannot refuse to exercise its jurisdiction to hear a trial - to proceed with the trial on a basis that an assessment that the result of legislation is unfair.

KIRBY J:   You say the point of what happened at the end of the trial, if it remains unfair, is an issue that is still alive?

MR ODGERS:   And one that can be considered within the terms of section 6 of the Criminal Appeal Act by an appeal court.  Now, this issue was raised, as I have noted in the argument, on a special leave application called Berrigan before this Court.  I have extracted in the materials in the argument at page 84 of the application book - I have not handed up Berrigan to your Honours, but essentially in delivering judgment in that case Justice Dawson said:

The correct application of [s 409B] cannot of itself found an argument that the trial was unfair or that the verdict was unsafe or unsatisfactory.

I should say ‑ ‑ ‑

KIRBY J:   What does that enigmatic statement mean?

MR ODGERS:   Well, that is really one question, your Honour, which we would seek to ventilate in the Court.  There is authority ‑ ‑ ‑

KIRBY J:   His Honour always had a deft hand for leaving a small trail but doing it enigmatically.

MR ODGERS:   Your Honour, one of the sources of authority which had prompted that special leave application was the decision of the Court of Criminal Appeal of New South Wales in Morgan where his Honour Justice Mahoney, the President of the Court of Appeal, had suggested that an appeal court had power to consider otherwise inadmissible evidence for the purposes of determining whether or not a conviction was unsafe and it was that authority which was put before the High Court in Berrigan and your Honours have seen the response of Justice Dawson there.  All we seek to submit is that consistent with what his Honour said that an appeal court has the power to consider this material in determining the ultimate result of an appeal.

KIRBY J:   Well, whether that is a good or a bad point, it is a significant one if section 409 is frequently invoked.  Can you tell me, from your experience or observation, is section 409 a significant or important barrier to the elucidating of evidence in these cases?

MR ODGERS:   Your Honour, I can only say that there have been a significant number of cases where evidence has been excluded where concerns have been raised as to whether or not important probative evidence indicative of the innocence of the accused has been excluded and thereby prejudiced the defence.  As your Honour would be aware, there was a sequence of cases which resulted in permanent stays on the basis of the application of 409B.

KIRBY J:   That was at the beginning of the process.

MR ODGERS:   Yes.

KIRBY J:   We are now at the end of the process.

MR ODGERS:   Your Honour, those cases continue.  There is no reason, in my submission, to believe that the circumstances have changed.  The result is that evidence has been excluded and continues to be excluded which appears to be significant and probative.

HAYNE J:   Am I right in understanding your arguments to be a succession of cumulative propositions, namely, prima facie, the evidence was admissible evidence of opinion on two issues:  one, she was not abused at the time alleged; two, she was abused at an earlier time ‑ ‑ ‑

MR ODGERS:   Yes.

HAYNE J:   ‑ ‑ ‑ three, the abuser, therefore, was her natural father?  It would be enough for you, would it, if you got the first of those propositions home, namely that there was admissible evidence rejected at trial?

MR ODGERS:   Yes.  In my submission, these are alternatives.  They are not ‑ ‑ ‑

HAYNE J:   Well, cumulatively in that you only get to them or only need to get to them if you have taken certain steps along the way in your favour.

MR ODGERS:   If we succeeded on the first proposition, it would not be necessary to proceed to consider 409B or the issue I raised about section 6.

KIRBY J:   But looking at it from the point of view of the administration of justice, it may be that the second step in the argument is the thing that lifts the case out of a case about the rejection of the evidence of a particular psychologist into something which may have some general significance for this kind of case.  There has been a case in the Supreme Court of Canada about the calling of expert evidence on child abuse of this kind.  We had it cited to us in a recent case of Farrell, I think, that we have reserved.

MR ODGERS:   Your Honour, I am not aware of that decision and I cannot assist the Court in respect of that.

KIRBY J:   My general impression is that it is favourable to the admission of this sort of evidence.

MR ODGERS:   Your Honour, the applicant had not proceeded to investigate that because it appeared to be, in our submission, accepted that absent the 409B problem this evidence from the expert would be relevant and probative to some degree of the innocence of the applicant.  The problem arose because of this issue of 409B and the issue of severance, which raised separate problems.  Your Honours, I am not sure that I can add much more to the submissions that I have made.

KIRBY J:   Yes, very well.  We will hear what Mr Hosking has to say.  Yes, Mr Hosking.

MR HOSKING:   May it please your Honours, may we first deal with the section 409 point and your Honour’s question to my learned friend.  Of my own knowledge section 409B in New South Wales is being reconsidered at this very moment for legislative amendment.  It is, as my learned friend said, still being used but it may not last in its present form for very much longer, I suspect.

HAYNE J:   Mr Grewal will find little comfort in that fact, will he?

MR HOSKING:   I do not put the contra‑submission, your Honour.

HAYNE J:   I understand that. 

MR HOSKING:   But I am just making the point now.

KIRBY J:   It may be an answer to my concern that if the Court was looking at the matter from the point of view of the administration of justice, as is one of our obligations, then the fact that the legislation is about to change may be a reason for discounting that factor to some extent.

MR HOSKING:   I can tell your Honours from personal experience that even those in the profession on the Crown side, as we are, do not cavil with the proposition that the section needs amendment in certain respects.

KIRBY J:   It is a tricky section to amend though and there are various voices in the community for and against amendments, so that one could never be absolutely sure what would happen to such a provision.

MR HOSKING:   Well, that is certainly so, your Honour.

KIRBY J:   Is the Law Reform Commission looking at it or is it a departmental examination?

MR HOSKING:   No, it is Law Reform Commission.

KIRBY J:   Well, that might take a little time.

MR HOSKING:   Yes, that is true.

KIRBY J:   And, as Justice Hayne says, it is cold comfort to the applicant.

MR HOSKING:   Yes.  Anyway, I thought I would tell your Honours of it.

KIRBY J:   Yes, thank you very much.

MR HOSKING:   Your Honours, we contest our learned friend’s threshold propositions as we set out in paragraph 1 of our written materials that this is an opinion within the meaning of section 79 of the Evidence Act at all.

HAYNE J:   Why is it not?  Why is it no more an opinion than the practitioner who examines the rape victim and describes his or her observations of the victim of rape?

MR HOSKING:   Because, your Honour, the difference is, we submit, that the person that your Honour has just made reference to can describe things that are physically observable.

HAYNE J:   Yes.

MR HOSKING:   There was trauma.  There was various physical signs.

HAYNE J:   I understand that.  Why cannot the psychologist say, “I am familiar with the symptoms which people who have undergone stress, trauma, et cetera, of a particular kind commonly exhibit.  My learning tells me they commonly exhibit these signs and symptoms and young people so and so”?

MR HOSKING:   Your Honour, our answer to that is that certainly that could be done, but it was not in this case.  Mr McCombie was never qualified by counsel for Mr Grewal before his Honour to give evidence of that kind.

HAYNE J:   But it came up in such a curious way in this context of application for adjournment and which seems to have skewed the process.  Ordinarily if you had had a witness who was sought to be called on the voir dire about admissibility, I could understand it, but on his face was he not qualified?

MR HOSKING:   We, with respect, your Honour, do not accept that he was.  His Honour the trial judge does not appear to have accepted that he was.  His Honour’s comment was, if I may take your Honours to application book line 55 ‑ ‑ ‑

KIRBY J:   Page 55?

MR HOSKING:   No, your Honour, page 89, line 55.  This is a shorthand way of referring to it, your Honour.  We reproduce it in our submissions.  That is why I am taking your Honours towards the back of the application book.

KIRBY J:   Is it page 89 that you are looking at?

MR HOSKING:   Page 89.

KIRBY J:   Yes.  What line?

MR HOSKING:   55.  The trial judge accurately observed to counsel for the applicant who spoke of Mr McCombie’s findings:

You could hardly them findings, surely it’s just conjecture.

KIRBY J:   But may not that be an important question?  I mean, the common law has always been a little disinclined to favour psychiatric or psychological evidence, but we are here dealing with a new statute which is in common form in New South Wales and in the Commonwealth and the ACT and this sort of evidence is likely to be tendered more and more frequently as this kind of criminal offence is more and more commonly prosecuted.  May that not be quite an important question to elucidate whether it is the sort of opinion to which section 79 of the Evidence Act is referring?

MR HOSKING:   Well, again, your Honours, at the risk of repetition, that may be so in a case where the witness was properly qualified to give this evidence, but we submit that ‑ ‑ ‑

KIRBY J:   It is a vehicle point and you say that ‑ ‑ ‑

MR HOSKING:   Yes.

KIRBY J:   ‑ ‑ ‑ because of the skewed procedure that this is not an appropriate vehicle for the issue?

MR HOSKING:   Your Honours, we submit that it was not as skewed as one might first suspect because the whole question of Mr McCombie’s evidence on the accused’s adjournment application was whether or not it could have been admissible in any event.  So to that extent counsel for the accused was on notice that he had to demonstrate the admissibility of this evidence and, to that end, the trial judge, I think, received a copy of Mr McCombie’s report and also the evidence that was given in the committal.

HAYNE J:   And can I identify the point that troubles me most?  At page 16, which is in the written report, if you go to line 35, so page 16 line 35 ‑ ‑ ‑

MR HOSKING:   This is the one commencing “Carlie did not report”, your Honour?

HAYNE J:   Yes:

I would have expected some significant increase in behaviour and emotional disturbance as a result of this trauma.  However this was not reported -

It reads to me like a person claiming expertise - leave aside the qualification point for the moment.  It reads like a person saying, “My opinion is these are the symptoms that should have been displayed and they were not” and the accused was denied the benefit of this evidence.

KIRBY J:   Can I add to his Honour’s question?  Given that in many of these cases it is accusation and denial, may it not be useful in the trial process to have expert testimony of qualified people of this kind to assist because otherwise people can lose their liberty on nothing more than an uncorroborated denial?

MR HOSKING:   Your Honour, I do not wish to say things that are trite, but there are cases and cases and in this particular case it was not a case, we say, of uncorroborated evidence.

KIRBY J:   I realise that and that may ultimately be a stumbling block for the applicant, but he is entitled to have a fair trial and to have placed before a tribunal of fact the relevant evidence if it is admissible.

MR HOSKING:   Yes, but, your Honours, the point I have just made I appreciate is a vehicle question and it is not answering the general question, but in this particular case as to a particular vehicle we make that submission.  Your Honours, we have set out in our written material four reasons which we say compels the result that this applicant should not be given leave to appeal in this application.  As I say, the principal point that we have made, which was not the principal point before their Honours in the Court of Criminal Appeal, is what we say is the threshold question, that this, in the circumstances of this evidence, was not an opinion within section 79 in the first place.

As your Honours will appreciate, the next point, which is at page 90, is that the evidence was prohibited by the operation of section 409B(3) in any event and, in particular, because, as President Mason said in the Court of Criminal Appeal, it is impossible to divide it and given the operation of section 409B(3) it is impossible to divide it and leave it in any meaningful way as a meaningful piece of evidence and one which could be tested by the Crown.

KIRBY J:   It certainly is difficult to divide it, I think, but one could say that the purpose of the statute is to prevent harassment or embarrassment to the person over previous consensual sexual activity and not to prevent matters which are pertinent to guilt or innocence from coming before the tribunal of fact, so that at least that would be available as a purposive construction of the statute and one which would be more tender to liberty than the one which found favour in the Court of Criminal Appeal.

MR HOSKING:   Yes.

HAYNE J:   And even if that were not adopted - and I say nothing about whether it should be - why should the psychologist not be permitted to give evidence, “She did not exhibit the signs of a person who had been abused”, that is exhibit signs at a time consistent with abuse by the accused?

MR HOSKING:   The short answer is, we say, your Honours, in this case, “Because he was not qualified to do so”.  On the evidence he simply was not qualified to give that evidence.  It was one thing to say, “I am psychologist and I have worked with children.”  We submit that it is quite another thing to say, “I have made a particular study of this area.  I have done particular recognised scientific tests.  I took some notes” - which this man did not - “and I have done a scientific analysis that at least looks scientific,” but that we submit that that was entirely absent in this case, as the Court of Criminal Appeal pointed out and, of course, as I am reminded, it is a precondition of the admissibility of an opinion under section 79 that the person, one, has specialised knowledge and, two, that there is evidence of that specialised knowledge and, at the risk of repetition, we submit that there was no evidence of specialised knowledge in the relevant sense in this case.

HAYNE J:   Well, it is training, study or experience, is it not, and its high point arose in his committal evidence at page 18, line 51 or 52 was, I think, about the high point, is it not:

I have a good experience of that area of work.

MR HOSKING:   Yes, your Honour.  Now, I just ask your Honour if your Honour would to postulate the situation where he was qualified in that way in a trial and then started to express this opinion and counsel for the Crown said, “Well, I object to that evidence.  He has not been qualified to give it.”  We say, with respect, that answers the present application in a nutshell.

HAYNE J:   It might have been an interesting trial had he been there to give evidence at it, Mr Hosking.  The difficulty was he was not.

MR HOSKING:   Well, your Honour, Mr Roser, who appeared before the learned magistrate seemed conscious of the need to qualify Mr McCombie.  One might imagine that Mr Roser was anxious to put Mr McCombie’s best foot forward at page 18 and if that is his best foot forward, we say it just does not get there.

HAYNE J:   And had it been a jury trial, it might have been interesting also to see what the jury might have made of his evidence, but it was not and he did not give evidence.

MR HOSKING:   Well, if it was ever admissible we say, your Honour.  I do not know that I can ‑ ‑ ‑

KIRBY J:   What do you say about the point relating to the Criminal Appeal Act, that there is, as it were, a safety valve in the Criminal Appeal Act?  I realise you say that you do not get over the threshold, but assume that you get over that, is that not an important question?

MR HOSKING:   Well, it might be in the absence ‑ ‑ ‑

KIRBY J:   I would have thought that it is an important question as to whether the Court of Criminal Appeal under its statute does not have, as it were, that reserve power to make a determination that an injustice has occurred or may have occurred.

MR HOSKING:   We submit, your Honour, that a moment’s thought shows that it is a very, very difficult proposition, the one that our learned friends advance.  How would, we ask rhetorically, such evidence be received in the Court of Criminal Appeal?  How could the Crown ever test it?  Is it to come in on the tender of the material for the accused without ever being ‑ ‑ ‑

KIRBY J:   Presumably in this case by an affidavit of the evidence of the expert that was excluded.  It is not all that difficult.

MR HOSKING:   Well, it would not qualify, your Honour, as fresh evidence or new evidence.

KIRBY J:   But if an opinion is excluded, the best way to put it before the court is to tender the report of the expert.

MR HOSKING:   I am loathe to make concessions in special leave applications, your Honours.  I do concede ‑ ‑ ‑

KIRBY J:   You never make a concession ever, Mr Hosking.

HAYNE J:   It may be uncharitable, but is it untrue, Mr Hosking?

MR HOSKING:   With respect, I reject it, your Honour.  I made a concession last week in this very Court.  Your Honour, I do concede that the question has not been answered in this Court and it has not been definitively answered in the superior State courts either.  I concede that.

KIRBY J:   Justice Mahoney was a very experienced judge and he raised the issue and it is, as it were, tendered and that may be a question of general significance.  There just seemed to be enough points here to lift the matter up.

MR HOSKING:   I am starting to get that impression, your Honour.

KIRBY J:   Yes.  I thought we might have given it to you.

MR HOSKING:   May it please your Honour.

KIRBY J:   And, of course, we now with Chief Justice Gleeson will have a judge who has had a great deal of experience in these matters.  So special leave is granted in this application.

MR ODGERS:   If it please the Court.

MR HOSKING:   May it please the Court.

AT 1.03 PM THE MATTER WAS CONCLUDED