H v The Queen

[1994] HCATrans 91

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Brisbane         No B29 of 1994

B e t w e e n -

H

Appellant

and

THE QUEEN

Respondent

BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 NOVEMBER 1994, AT 10.15 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:  If the Court pleases, I appear with MR R.J. CLUTTERBUCK and MS K.J. FEELEY.  (instructed by Wellner & Chittenden)

MR M.J. BYRNE, QC:  May the Court please, I appear with my learned colleague, MR P.J. CALLAGHAN, for the Crown.  (instructed by D. Field, Solicitor to the Director of Prosecutions (Queensland))

BRENNAN J:   Yes, Mr Fleming.

MR FLEMING:   Thank you, Your Honour.  I hand up copies of the outlines of argument as well as a chronology.

BRENNAN J:   Yes, Mr Fleming.

MR FLEMING:   Thank you.  If the Court pleases, it is common sense that a 15 year old living in a family will be affected by the incidence of that family and the emotions that pass through that family.  The complainant in this case was 15 years old at the time of making the complaint and a little older when she gave her evidence, almost 17 when she gave her evidence.  In addition to the tensions that we have set out in paragraph 3 of our outline, we want to add ‑ ‑ ‑

BRENNAN J:   Just a moment.  You said it is common sense that a 15 year old would know if there were tensions in the family.  The family in which she was living was not the family in which there were tensions; is that right?

MR FLEMING:   With respect, Your Honour, we would submit that there is tension in that family because of a couple more things that we are going to say.  For example, one of the complaints by the wife was that the husband had never paid maintenance; never supported the children ever.  The wife also had brought numerous applications in court against the husband.  So, while the tensions may not necessarily be specifically in that family, they are reflected in that family and the mother is affected by the tensions between herself and her former husband.  In addition, the children are involved in all of those as well.  It is the children who are not being supported.  It is the children in respect of whom many applications have been brought to various courts, including the Family Court and the Magistrates Court, under the Domestic Violence Act.

DAWSON J:   What has it got to do with anything?  The judge told the jury that they could make what they would of this evidence.

MR FLEMING:   With respect, Your Honour, the trial judge went so far as to say, “I tell you that it has nothing to do with it”, and then ‑ ‑ ‑

DAWSON J:   He did so saying it was up to the jury to make what they wanted out of it and he said in the beginning:

I do not propose to comment on all of the evidence or all of the submissions made by counsel.  If I do mention something that you consider is material, then it is material, and if you think I have a view about the case and you think that view is wrong, then it is wrong.

MR FLEMING:   Yes, that is certainly true, Your Honour, in his general propositions in respect of the evidence but, when he came to this particular evidence ‑ ‑ ‑

DAWSON J:   He made a comment.

MR FLEMING:   Your Honour, we would submit he made more than a comment.  He went so far as to say, “I tell you”, which is a term that he used when he was in fact giving directions to the jury.  When one compares it to, for example, the direction he gave in respect of corroboration, he said, “I must tell you; I tell you what you must do”, and then when he came to this particular issue, he said, “I tell you that it really has nothing to do with ‑ ‑ ‑

DAWSON J:   He did not quite say that, unless I have got the wrong passage.  He said:

it is submitted to you in support of her credibility or believability that there is no apparent motive for her making up these allegations.  It is a matter for you to decide whether you accept that submission.  I should tell you this, though:  some considerable attention was given during the course ‑

and he goes on to describe what happened.  That is hardly any form of a direction.  Then he says:

Now, members of the jury, what you make of that is up to you - - -

MR FLEMING:   Yes.  Certainly he concluded by saying in that same paragraph:

So, you might think that is really not a matter which would concern you a great deal -

but he did say: 

I should tell you this, though -

and he made it perfectly clear that it was not a matter that the jury should entertain and we would submit that that is where the error lies.

DAWSON J:   All he said he should tell them is that considerable attention was given during the course of evidence to details of the particular bitterness.

MR FLEMING:   Yes. 

that is really a matter between the two of them.  It really has got nothing to do with Karlina.

DAWSON J:   That is a comment.

MR FLEMING:   We would submit that it is somewhat more than that, given the context in which it is:

I should tell you this, though -

We would submit that he goes so far as to really exclude them from considering that issue altogether.  He had previously made the comment which we have extracted in our outline:  “What has this to do with the assault on this man’s adopted daughter?”, or words to that effect.  And that was in the presence of the jury.  He had, in fact, infected the jury’s mind to that extent and then when he came to this particular issue in the summing up he really took it one step further and, we would submit, unfairly excluded it from their consideration, despite coming back and saying that “You might think that this is really not a matter which would concern you a great deal at all”.  He has already said:

I should tell you this.....It really has got nothing to do with Karlina.  There is no evidence to suggest that she was even fully aware of that bitterness. 

We would submit that that is where the error arose before the jury and it is further where the error arose in the Court of Appeal’s reasoning because they made the comment that that seemed to be accurate enough in the circumstances.

We would submit though when one looks at the evidence - and we will turn to that in a moment - the evidence is quite clear that the degree of tension in the relationships reflects issues which could well have affected Karlina’s mind and as such should clearly have been open to the jury and not dealt with in what, we would submit, was an unfair way before the jury.

Your Honours, can I take you to the Reg v Heyde, (1990) 20 NSWLR 234, for the proposition which was argued both before His Honour and in the Court of Appeal. It is the judgment of Mr Justice Clarke, with whom both the Chief Justice and Mr Justice Studdert agreed, at page 248, and it is the proposition at point E on that page, especially about half‑way between E and F. To put it in context, some discussion took place just below C in respect of the particular case on that same page.

BRENNAN J:   What is the objection that is taken in this case?  Is it a question of admissibility of evidence or the direction that was given by the trial judge?

MR FLEMING:   The direction that was given by the trial judge.  Your Honours, the initial notice of appeal raised the question of whether or not counsel was cut off in cross‑examination and whether or not, therefore, the evidence was fully extracted.  However, when one reads the transcript carefully, it would appear that counsel had reached a point where he had said, “One further matter”;  His Honour said, “Is that the final matter upon which you are going to cross‑examine?”, and counsel said, “Yes”, and then the trial judge took up the issue, and that is where he asked the jury to go out for a while and then he said to them, “That is just a gratuitous attack on this lady’s credit”.

Now, Your Honours, it would appear that counsel may well have concluded his cross‑examination at that point, so we cannot argue strenuously that evidence was not admitted.  In any event, the mother had admitted certain things in the cross‑examination that we will come to soon.  So, the issue then becomes one of the way in which His Honour treated the matter before the jury, and he treated it as though it were an irrelevant matter.  That is the crux of our submissions.  We would be submitting that it is, and will almost invariably be, a very relevant matter.

TOOHEY J:   Well, Mr Fleming, does that mean we are to disregard ground (a)?

MR FLEMING:   Yes.  I cannot push ground (a) at the end of the day.

TOOHEY J:   Well, it is a matter of the Court knowing where it stands, and the answer is, we are to disregard it, are we?

MR FLEMING:   Yes.

TOOHEY J:   Yes, thank you.

MR FLEMING:   I want to come back to the circumstances surrounding it, because they are part and parcel of the other, but it would appear that counsel did not wish to take the matter any further in cross‑examination, so I am precluded from arguing that further.  However, it is relevant, as I have said, to the other circumstances.

If the Court pleases, the issue is highlighted in that passage that I have referred to in Mr Justice Clarke’s reasoning.  A jury, as a matter of common sense, will want to probe those sorts of things in family relationships if there is a suggestion that there is a false complaint made.  The jury will want to know, as Mr Justice Clarke said, why it might be that a false complaint was made.

As His Honour also said, sometimes those issues are very much to the fore but sometimes they lurk in the background.  In this particular case, there was no specific allegation put, nor could any specific allegation be put, in respect of collusion or in respect of the girl actually fabricating the evidence.  However, there was probing cross-examination in relation to those issues.

DAWSON J:   Of the mother.

MR FLEMING:   Of the mother and of the daughter, Your Honour.

DAWSON J:   Perhaps you will direct our attention, in due course, to the cross-examination of the daughter.

MR FLEMING:   The daughter simply denied that she had manufactured the complaints and I will take Your Honours to that.

DAWSON J:   Correct me if I am wrong, it was never specifically put to her that her motive was to avenge the mother’s hostility to the father.

MR FLEMING:   That is so, Your Honour.

DAWSON J:   Never put to her?

MR FLEMING:   No, it was never put because there was no instruction that could be put to that effect.  However, the issue was properly raised and ventilated in the cross-examination and when she denied that she had fabricated the complaints then it is our submission that there was no point in taking the matter any further at all.  However, the jury could well have assessed her answer in respect of that to see whether or not it was a correct answer in the light of all of the evidence that did come out, the background evidence, and the family relationship; the issues that had gone on in the family were the background relationship that the jury could use to assess.  His Honour, in fact, said that was not relevant and so left the credit of the young girl virtually untouched on that issue and we would submit that it ought to have gone further.  I accept what Your Honour said, it was not put.

McHUGH J:   What, do you mean credit or do you mean motive?

MR FLEMING:   Your Honour leads into another area which we wish to argue and that is the whole area of collateral issues.  It can be used, we would submit, firstly, as to credit but, secondly, it can also be used as going to the very heart of the offence because it might show a motive.

McHUGH J:   But did the cross‑examiner explore the complainant’s knowledge of the bitterness between her mother and stepfather?

MR FLEMING:   Not in great detail, Your Honour.

McHUGH J:   Well, the fact that he had no instructions to put it would not stop a cross‑examiner from exploring the issue.

MR FLEMING:   No, we accept that, Your Honour, but nevertheless - - -

McHUGH J:   But, is that not one of the problems with your criticism of the learned trial judge’s summing up.  When you read the passage at page 104 of the book one gets the impression that the judge was of the view that basically it was an attack on the relationship between the parents, and you say that has got nothing to do with Karlina, and there is just no evidence that she was fully aware of the bitterness, and that was the beginning and the end of the matter.

MR FLEMING:   We would submit, Your Honour, that that concept of fully aware, the term “fully aware” is where His Honour may well have fallen into error because she did not need to be fully aware of those issues.  What we say was ventilated was the family interaction and that was available to them, the jury, to assess ‑ ‑ ‑

McHUGH J:   Well, you leave us up in the air.  You see, when the cross‑examiner does not explore the issue then you are asking the jury to speculate about these things.

MR FLEMING:   But, Your Honour, they speculate - I am sorry, I will not use the word “speculate”.  They use their common sense in respect of all of the evidence that is there including, of course, their knowledge of the world and their knowledge of what might go on, and we would submit that it is common sense, as we said at the outset, that a 15 year old living in a family such as this which has been dysfunctional, in which there have been much bitterness between husband and wife - there have been allegations of attempted shooting and so on - could well have formed a view about that relationship and could well have been motivated by it.

McHUGH J:Did the complainant not say at some stage, or am I thinking of some other case I have read recently, that she loved her father?

MR FLEMING:   Yes.  She also said that she was afraid of her father, and when she was pressed on that she said that there was no reason why she was afraid of her father.  That goes back to the allegations of 1983, when she was asked why she did not complain about those allegations, she said she was afraid of her father.  But then, subsequently, she said she loved her father.

Your Honour, that is part of the fabric about which we are speaking.  All of those things can go to the jury for the jury to assess whether or not she is telling the truth, in the context of all of their family relationships.  We would submit that all of them become relevant, even though she does not accede to any of them specifically in cross‑examination, yet they still become relevant because a jury can go away and assess the case on all of the evidence including the fabric of the family - - -

BRENNAN J:   Can you direct our attention to the cross‑examination in which she did not accede to some proposition that might have been put for her consideration?

MR FLEMING:   Your Honour, she refused to accept generally that she made the story up.  It is in the second book at page 26.  Your Honour, there was cross‑examination about her speaking, the previous page or two, about when she first made her complaints and then speaking with counsellors and then speaking with her mother, at the bottom of page 25, and then just above line 20:

Did any of the counsellors ever tell you what to say?‑‑‑No.

Then there is this question:

Because throughout my cross‑examining you today I’m going to be suggesting to you that what you are saying is not correct and is made up.  Do you understand what I’m saying?  Do you understand that?‑‑‑No.

What I’m going to say to you throughout the course of the afternoon is that you are not telling the truth.  Do you understand that?‑‑‑Yes.

And what do you say to that?‑‑‑I am.

Counsel accepted, after probing a little bit further, “Absolutely”, and then probing some more, that that was an answer that was given and he did not probe it any more.  She was of the view that she was telling the truth.  Therefore, one would have to look further for ways of testing whether she was telling the truth.

TOOHEY J:   But as a matter of legitimate cross‑examination, having put to her that she was not telling the truth, would it not be appropriate to suggest a reason why she may not have been telling the truth?

MR FLEMING:   Yes, Your Honour, we accept that.

TOOHEY J:   I only ask you that because you spoke earlier in terms of instruction, but clearly the instruction went far enough to justify a question that she was not telling the truth.  Having gone that far, one might think it appropriate then to offer her a reason why she may not have been telling the truth.

MR FLEMING:   Your Honour, the reasons offered were that perhaps ‑ ‑ ‑

TOOHEY J:   The reasons in cross‑examination ‑ ‑ ‑

MR FLEMING:   Yes, in cross‑examination:  perhaps she was told by somebody else.  That was not specifically put.  Questions were asked:  “Did you speak to the counsellor about this?”; “Did you speak to your mother about this?”; “Did you speak to anybody else about this?”; those sorts of questions.  But it was never put to her that she was manufacturing the evidence out of some desire to pay him back for not paying maintenance or for the bitterness that had been caused in the family.  We accept that that was not done.

TOOHEY J:   Should it not have been put to her?

MR FLEMING:   Your Honour, when that answer was given, no.  When she had already said that she had not spoken to her mother or had not spoken to the counsellor, had not been told what to say, there was very little more that could have been said.

TOOHEY J:   Well, it might depend on what was going to be made of the matter, say, in address to the jury.  For instance, I notice in the pages that we have been taken to in the judge’s direction to the jury, there is reference to the evidence.  There is nothing said about counsel’s address.  Do we know whether this possible motive was a matter that was used in the course of final address?

MR FLEMING:   Yes, Your Honour, it was used in the final address.

BRENNAN J:   Where is the best part that you can point to in terms of putting to Karlina the proposition that she has been spoken to by others in a way that might have affected what she said?

MR FLEMING:   Yes, the passages to which I have referred Your Honour.

BRENNAN J:   At page 26?

MR FLEMING:   Yes, and the previous couple of pages ‑ police officers, court counsellors, she remembers a little bit about ‑ sorry, I am back at page 24, at about line 10.  There was nothing put that they told her what to say, it was just cross‑examination as to what the conversation was between them.

TOOHEY J:   But that is different, is it not?  I mean, that goes to possible prompting which is not really what you are complaining about here.  You are complaining about the way in which the judge handled a possible motive for the telling of an untruth.  But the fact that she may have spoken to counsellors and the police and, indeed, her mother before, of itself, does not really throw light on that matter, does it?

MR FLEMING:   We would submit that the purpose of the cross‑examination was to attempt to throw light on it but it was unproductive because she simply said, “They asked me questions”, or something like that.  It was never put.  We must accept it was never put that she fabricated the evidence for a particular reason. 

BRENNAN J:   The subject of the conversations was never put other than it was discussed about this matter.  Is that right?  There was no particulars given or inquired after about any of these conversations.

MR FLEMING:   As to why?

BRENNAN J:   No, as to what - what was said.  Am I right in thinking that these pages show you that the girl was asked to whom had she spoken, when had she spoken, how often had she spoken. 

MR FLEMING:   Yes.

BRENNAN J:   But was never asked what was said in the conversation.

MR FLEMING:   Yes, I understand what Your Honour is saying.  No, it was not specifically asked.

BRENNAN J:   Specifically or non-specifically, attention was not directed to the subject of the conversation.

MR FLEMING:   There is a question at page 24, line 12:

What can you tell me about that?

That is, going to the conversation.

Just asking me questions, they were.

Do you remember when it was? 

So it was probed, Your Honour, but we accept that there was nothing put in relation to that.

BRENNAN J:   This is really a different question, is it not?  Not from the problem that you want to raise on Heyde’s case.  Am I right in thinking what you are saying is:  irrespective of any questions being asked of the child, evidence of a tension between the parents is admissible, provided only it is shown that the child was in contact with one of the parties to the bitterness?

MR FLEMING:   We would submit that that is taking Heyde a little further.  We would submit, Your Honour, that if she was aware, either by direct evidence from herself or by reasonable inference that there was bitterness and tension, then that is an issue which should go to the jury.

BRENNAN J:   Then was she asked whether she knew anything about the bitterness?

MR FLEMING:   Your Honour, she was asked whether anybody had counselled her.  There were early questions asked about when they first separated ‑ that is at page 20 ‑ but they separated in 1979, when she was three, and she said she could not remember.  She was born in 1976, so she said she could not remember that, not unreasonably, we have to accept, but there were no further questions asked of her, whether she was specifically conscious of the bitterness in the family.  That is why, as Your Honour Justice Brennan has said, we have to go back to draw ‑ perhaps I am taking what Your Honour said one step further ‑ we have to draw inferences that she would have known, given the state of the family relationships; given the number of applications that had been made in court, involving, amongst others, herself, and given the threats, which she said had been made, and so on.

The mother had tried, on many occasions, to have court action taken.  Your Honours, I should add a couple ‑ ‑ ‑

BRENNAN J:   Am I right in saying that your proposition amounts to this:  that the evidence given by the mother is sufficient to found an inference which impugns the credibility of the daughter, though the daughter is never asked any question with respect to that subject?

MR FLEMING:   Yes, Your Honour, we have to go that far.

McHUGH J:   Well, can you go that far at all?  I thought you could not lead evidence about person’s credit, except in certain limited circumstances, that what you could do was to lead evidence as to motive.

MR FLEMING:   Your Honour, that raises again that issue of whether it is collateral, or whether it goes to the very heart of the issue.  I have extracted one of the comments from Reg v Funderburk, which is the Court of Appeal decision, in our outline, where they say, in cases such as this, the distinction disappears to vanishing point ‑ yes, it disappears, because you have, on the one hand, one person saying he did it, and on the other hand, somebody saying, “I did not do it”.  And that, of course, has been the subject of much discussion in the cases ‑ that dilemma has been the subject of much discussion in the cases ‑ as to just how one ought to treat it, and what evidence can be called.

May I test it in this way?  If counsel had asked questions of the mother, and she had denied them, would counsel have been at liberty to call evidence in relation to those denials, that is about bitterness in the family and whether or not she had said that she would like to see him in gaol ‑ let us use that as the illustration.  She denied that ‑ ‑ ‑

McHUGH J:   If it goes to the motive certainly counsel would be entitled to.

MR FLEMING:   Yes.

TOOHEY J:   But you have to lay a foundation for it, would you not?  You could not simply ask those questions out of the blue.

MR FLEMING:   The mother was asked of the relationship. She admitted that in the evidence so there was no need to test the next step but we would submit that it does go to motive and it may be asked as a question.

TOOHEY J:   But in the ordinary course the complainant would have given evidence first.

MR FLEMING:   Yes.

TOOHEY J:   Let us say that she had not been asked any questions at all, even remotely touching the relationship of her mother and father, then the mother had given evidence, are you suggesting that it would then be open to the cross‑examiner to cross‑examine the mother with a view to suggesting motive on the part of the child?

MR FLEMING:   We would submit so, Your Honour, because it can be used by the jury to test what the child is saying.  It is part of the fabric, it is part of the background of the offence.  We are confronted with the difficulty of a child - here, we accept that the child was 16, but she was intellectually handicapped to some degree, so, we are confronted with a child making allegations of incidents that occurred at that point some 10 years beforehand, and trying to test that evidence and the difficulty that arises in testing the detail of that evidence which, again, has been referred to in some of the cases that we will come to, but, nevertheless, one can use extraneous material to test that.  One can look at the circumstances, one can look at the circumstances of the family to test that.

TOOHEY J:   But, if you are going to attribute a motive which is likely to explain an untruthful answer, are you not obliged to put that as an area of cross‑examination to the complainant?  You may not be able to take it very far.

MR FLEMING:   No.

TOOHEY J:   But your submission seems to imply that it is not even necessary to open up the area in cross‑examination.

MR FLEMING:   When the child has already said or denied that she has fabricated the evidence then, Your Honour, there is nothing very much that can be done.

McHUGH J:   Except this question of motive really goes to bias and that is why you can lead evidence to contradict the complainant’s evidence, but surely the witness is entitled to have the issue put to her and if you are going to suggest somebody’s got a motive or somebody’s got a bias, the person has got to be given an opportunity to deal with the issue.

MR FLEMING:   Your Honour, if I may deal firstly with the issue of bias.  The text writers do not seem to put it in the category of bias nor do the cases, the cases ‑ ‑ ‑

McHUGH J:   I know they do not, but I must say I have always thought that is its proper characterisation, when you are dealing with a witness.

MR FLEMING:   The issue appears to be more related to testing the credit of a child when the child is the only witness who can give evidence of it.  One must then look at ways that one can test that.  That is the context in which the cases appear to have dealt with these sorts of questions.  We would submit that it does not fit neatly with any of those categories and we do not pretend for a moment that it is an easy area.  Society still seems to be struggling very much with balancing the rights of the child and balancing the fair trial.  But it appears that in these instances the courts have made some quite strong statements that you are entitled to test the evidence very carefully and if there are issues which can reflect upon the evidence then they are entitled to be there.  We would submit that the cross-examination of the mother and the bitterness between them is an issue which can reflect on this.

TOOHEY J:   You do not get that from Heyde, do you, because in Heyde there was, apparently - at least on a quick reading of the judgment - cross-examination of the complainant, specifically in relation to bitterness between the parents.  That may well be the foundation for the decision in Heyde; namely, that that cross‑examination having been permitted, then a further step should have been taken to allow cross‑examination of the mother.  But we are not in that area, here, are we?

MR FLEMING:   No, there certainly appears - and the material is quite scant in respect of this - that there was cross-examination of the child there in respect of the bitterness.

TOOHEY J:   It is stated expressly on page 248D.  The extent of it, we do not know.

BRENNAN J:   You do not need to conjure up too much, do you?  The first question is, “Do you know that Mummy didn’t like Daddy?”  That is all you have to ask, is it not?  If the answer to that is “No”, then you go on to ask, “What do you know about Mummy and Daddy’s relationship?  Where do you live?  How many people in the house?”

MR FLEMING:   Your Honour, we accept that that was not done.

BRENNAN J:   Then where do you get to first base?

MR FLEMING:   Because, Your Honour, we do not necessarily have to establish that first.  We can still look at other evidence.

BRENNAN J:   Maybe not first but, first or last, surely somewhere.

MR FLEMING:   Your Honour, it is not necessary, we would submit, for the child to make comment on that.  If there is evidence from which a jury can reasonably draw inferences about the relationship - and here there is ample evidence from which a jury can reasonably draw a relationship.  She is living, as I said at the outset, in a home where these issues have now been going on from 1979 through until 1993, where there have been many applications to courts.  There have been allegations of quite serious threats of violence, according to the mother’s evidence, where he has refused to support any of the children.  She has put it so high as he has never ever supported any of the children.  So despite the paucity of evidence from the child, one can still have regard to the evidence of the mother and the jury can have regard to the evidence of the mother in assessing the child’s position.

TOOHEY J:   I can understand that if the child, by reason of some mental condition, was unable to give evidence, but that is not the situation here.

MR FLEMING:   No, the child was, as we have said, 16.

TOOHEY J:   Or was not able to give evidence or not able to give evidence in any intelligible form.  But again we are not in that area here.

MR FLEMING:   Your Honour, my learned junior has drawn my attention to page 21:

Your mother told you reasons why she and your dad split up?---Yes.

Now, do you remember a person called Melissa -

Melissa is another issue but we will come to that.  It does not go any further than that.  She says she knows the reasons why mum and dad split up.

There is a further question where she is asked whether or not she likes Wara.  Wara is the father’s subsequent wife, from whom he had also separated, and she said in relation to that - - -

GAUDRON J:   Page 27, I think.

MR FLEMING:   Thank you, Your Honour, page 27.  She says she does not, at line 41 or 42.  She gives a reason, to be fair as well:

Yeah, because we don’t keep in contact anymore -

the reason for not liking her.  There is the next question:

Has your mum said that she doesn’t like her?---She hasn’t told me anything like that.

She hasn’t?---No.

So did you get on well, when you saw her, with her?---Yes.

So there is that sort of cross‑examination but we must of course face the difficulty that Your Honours have been putting to us, that she was not specifically asked the questions.  However, we would submit that Heyde still takes us far enough because, as Mr Justice Clarke said, these issues will lurk in the background.  Can I go back to that - - -

DAWSON J:   And the point of all this is that the judge’s comment was unwarranted?

MR FLEMING:   Yes, Your Honour.  It was in fact, we would submit, a positive misdirection.  He said to them that the evidence is irrelevant.  Of course - - -

BRENNAN J:   Mr Fleming, are these the steps of the argument:  the evidence is to be found at pages 20 and 24 to 26; that despite the limited cross‑examination the fact of the bitterness was demonstrated in the cross‑examination of the mother.  That was something which ought to have been put to the jury as impugning the credibility of the daughter, and the summing up was inadequate because it gave them a direction that they were not to take it into account.

MR FLEMING:   Yes, Your Honour.

BRENNAN J:   Is that the proposition?

MR FLEMING:   That is the proposition.

BRENNAN J:   All right.  I understand that.

MR FLEMING:   Your Honours, the difficulty with evidence such as this will be, as Mr Justice Clarke said, it will often lurk in the background.  It might be very difficult - - -

BRENNAN J:   We have read those passages.  You do not have to take us to it again.

MR FLEMING:   Thank you, Your Honour, and we would submit that because it is difficult it has got to be obtained wherever it can be.  The mother is a very fertile source of cross‑examination in respect of that and she made the admissions that she did, which we have extracted and which I will not go through, except to add a couple more to there, Your Honours.  She had said that, and I have not given these references specifically, at page 36 line 15 she said:

I had tried on many occasions to have actions taken against Dan.

Dan is the appellant.  These are in addition to the issues that I have set out at paragraph 3 of the outline.  That is page 36 of the record, not of the second book.  At page 37, line 48, she gives a reason:

Never said that?  You’re on oath?‑‑‑I may on occasions have said that he deserves to be in gaol.

You’re on oath?‑‑‑Because he’s never, ever paid support for his children.

At page 36, line 10:

The reason I took the Domestic Violence Act out was that Dan threatened to shoot me on 2 August of that year.

Your Honours, one further interesting fact is that it was not quite clear when the first complaint was made by Karlina.  It was put to the mother that the first complaint was made in or about July 1991.  At page 29 of the record there is what should have been called an occurrence sheet, a police occurrence sheet, which may just assist in refreshing her memory:

At 1 p.m. on 7 August 1991 they attended at your house?‑‑‑They attended at our house on a number of occasions.  I do not remember them all and I do not remember all the times, but I do remember an evening when they interviewed us all quite extensively.

The threat to shoot was 2 August, according to the mother.  The police are there on 7 August and there is some little doubt as to when the first complaint was actually made by Karlina in relation to the allegations against her father.  All of those issues, we would submit, are available to go to the jury, in addition to the ones that we have already mentioned, to test the propositions.

Your Honours, may we then move to some of the cases:  Reg v Funderburk.

BRENNAN J:   What are these to show, Mr Fleming?

MR FLEMING:   These are to show the worth of the cross‑examination in these sorts of circumstances, Your Honour, whether they go to collateral issues or whether they go to the heart of the issue.

BRENNAN J:   Is it dealing with questions of admissibility or relevance?

MR FLEMING:   Yes, Your Honour, whether it is relevant, whether it is admissible, how far the cross‑examination can go, in these sorts of cases where you have one person making an allegation against a second person.

BRENNAN J:   We do not have to worry about admissibility here, do we?

MR FLEMING:   No, Your Honour, the evidence is there, but it is just how far the evidence can go as being relevant.

BRENNAN J:   How is that going to assist us here?

MR FLEMING:   The point that we want to make in respect of that is that the jury has to have consideration of it and the judge has to give a very careful direction to the jury in relation to it.

BRENNAN J:   Do any of these cases deal with the direction to be given?

MR FLEMING:   These will not initially, Your Honour, but they highlight ‑ ‑ ‑

BRENNAN J:   Or subsequently?

MR FLEMING:   Yes, Your Honour.  We will come to Longman, in which we will deal with the way a jury ought to be directed.  But the point we make in relation ‑ ‑ ‑

GAUDRON J:   You did not seek any particular direction or redirection, did you, in this case?

MR FLEMING:   There was no redirection asked for because we would submit the argument was had during the course of the trial and the judge had formed some very firm views about it.  I should, perhaps, take you to the transcript to show the views that the judge did form about it, if I may do that before I go to those cases.  Page 35, His Honour interrupted the cross‑examination at line 35 ‑ this is in front of the jury:

the relevance of this to the issue of whether or not this girl was assaulted by her adoptive father.

With respect to the trial judge, the language there is very, very strong.  The charges were indecent dealing.  We accept that assault can be an indecent dealing, but the case had not been presented on that basis and the term “assault” had never been used.  His Honour said “assault by her adoptive father”.  Why the term “adoptive” father entered into there we do not know.  In fact, very early in the case the Crown prosecutor established that Karlina was in fact adopted by the mother and the father and then referred to “the mother” and the “adoptive father”.  His Honour picked up on that term ‑ ‑ ‑

BRENNAN J:   What is the point you are making, Mr Fleming?

MR FLEMING:   It is a very very strong comment to be made in front of the jury.

BRENNAN J:   I thought we were dealing with a ground of appeal that had to do with the summing up.

MR FLEMING:   I am taking Your Honour through to the parts where His Honour formulated the argument that he finally put.

BRENNAN J:   It would be helpful if you could identify it as you go through without, as it were, going into other issues in which you might seek to criticise the conduct of the trial.

MR FLEMING:   Thank you, Your Honour.  That is the first comment he made:  what is the relevance of that material?

McHUGH J:   But what has it got to do with it?  The trial judge, having heard the submission, told counsel to go ahead.

MR FLEMING:   Yes.  But nevertheless the jury has that comment before it.  Subsequently, he sent the jury out, at page 38, and this is where I was referring Your Honour Justice Toohey before in relation to that first issue in the notice of appeal, line 8: 

There is just one final thing.

And then there is a question.  Then His Honour at line 12 said:

Hang on a moment.  Members of the jury, would you just retire -

His Honour asked:

Is that the final matter.....You have put nothing to this witness yet to suggest that she has fabricated evidence or been in any way collusive to the creation of false allegations in this case, have you?

If I may pause there. I have already ‑ ‑ ‑

McHUGH J:   I just cannot see what the relevance of this has got to the ground 2 of the notice of appeal and the passage at page 104 of the book which contains the summing up.  It is a fairly simple straightforward issue.  Either the judge misdirected the jury in the passage at 104, or he did not.  And you are just going on with what seems to me, with respect, irrelevancies.

MR FLEMING:   With respect, Your Honour, we submit that it shows the way in which His Honour reached his conclusion.

McHUGH J:   But that is irrelevant.  It does not matter what was in his mind, it is what effect his words had on the jury - if they had any effect.

MR FLEMING:   It does have relevance, Your Honour, to the question that Justice Gaudron asked me, and that is whether or not a redirection was asked for, and the point I was making ‑ and that is why I went back to this passage ‑ is that the argument had been held ‑ had through the course of the case ‑ and there was no point in then going back and asking for redirection ‑ ‑ ‑

McHUGH J:   There is always a point.  We hear this submission from counsel again and again, and it does not matter how rough a passage counsel has had during the course of the trial, they should always ‑ they are under a duty to take the proper objections.

MR FLEMING:   We accept what Your Honour says.  The exception is if there has, in fact, been a mistrial of a miscarriage of justice, and we would submit that this goes so high as that.

BRENNAN J:   What does?

MR FLEMING:   The misdirection in this particular instance.

BRENNAN J:   Well, if so, the misdirection was there and the misdirection can be considered. 

MR FLEMING:   Yes.

BRENNAN J:   What is the relevance of this material?

MR FLEMING:   I am answering Justice Gaudron’s ‑ ‑ ‑

BRENNAN J:   To explain why there was no application?

MR FLEMING:   Yes, why there was no application.  The issue had been fully ventilated in argument in the passage that is there ‑ ‑ ‑

BRENNAN J:   Well then,  let us understand precisely what the proposition is.  The objection to the summing up is that some issue which ought to have been left to the jury was not left to the jury.

MR FLEMING:   Yes, Your Honour.

BRENNAN J:   And in this passage you were going to identify what the issue was that ought to have been left to the jury?

MR FLEMING:   No, Your Honour, we would submit ‑ ‑ ‑

BRENNAN J:   Then what is the relevance of it?

MR FLEMING:   No.  We would submit that the issue had been fully argued, that is, as to whether or not the evidence was relevant and whether the jury could have regard to it; under what circumstances.  That argument had been had on the way through the trial, at this point, and then counsel came back to it ‑ ‑ ‑

DAWSON J:   Are you saying the judge had a closed mind and there was no point in asking for a ‑ ‑ ‑

MR FLEMING:   Yes, Your Honour.  At that point in time ‑ ‑ ‑

McHUGH J:   Well, it does not look like he had a closed mind from the passage that appears at the bottom of page 35.  He says, “What has this got to do with it?”, and then counsel submits what it has to do with it and then at line 53:

All right, you might be able to make it relevant.  Go ahead.

MR FLEMING:   Yes.

DAWSON J:   It is done in a situation where the complainant has already given evidence and it has never been put to her.

MR FLEMING:   Yes.

DAWSON J:   And that is why the judge is presumably saying what he is saying there, well, it is difficult to make it relevant if you have not put it to the complainant.

MR FLEMING:   That is so, Your Honours, but there is a subsequent argument about, where Heyde is then brought into court, and there is an argument on Heyde ‑ that is at page 46. Now, I have got to say that at the end of this argument, His Honour at page 48, about line 25, concluded the argument by saying:

Anyway, I will have a look at that case before I make a final decision as to my approach to that in my summing‑up.

So, His Honour had not formed a concluded view, but he was going to form a concluded view as to what he was going to put in the summing up.  At page 47, line 50, really encapsulates much of what His Honour thought about the issue.

McHUGH J:   I notice at page 47, line 18, His Honour said:

No, you can’t put allegations but you can explore the possibility - - -

MR FLEMING:   Yes.

BRENNAN J:   And that harks back to what he had said at page 38, where he says:

you haven’t suggested a single thing to her about that she’s supposedly made something up.  It’s quite irrelevant.  It’s
 a red herring.

MR FLEMING:   Yes.  The one thing we do point to though, in response to that, Your Honour, is that she had been asked directly whether she had fabricated the evidence, and she had said, “No”.  So, in that bald way, His Honour was not accurate.  But we accept what Your Honours have said about other issues not being put, but we go on to say that, despite that, it is still an issue that could be considered by the jury.

Can I take Your Honours, rather than to the line of cases at Funderburk to, firstly, B v The Queen, 1991‑1992 175 CLR 599, B v The Queen was the case where the husband introduced his own previous conviction for a similar offence, and the argument was what use could be made of that particular evidence. There were two dissentients in respect of whether it could go to all of the issues but the passages that we want to draw Your Honours’ attention to is, firstly, the passage of the Chief Justice at page 602, where the last paragraph commences:

On the other hand, the trial judge was called upon to direct the jury with some care.

Then through to the middle of the following page, we would submit, especially at about point 4 of the page, the sentence commencing:

But, because the extent of the probative or corroborative value of these convictions depended critically on the details of the other evidence -

BRENNAN J:   What is the relevance of that?

MR FLEMING:   We would submit that we fall within a similar category, Your Honour.  The other evidence is quite critical to an understanding of the fabric going to these charges.

McHUGH J:   These are just questions of fact, and it is not everything that is in the law reports that is law.  I mean, you are entitled to lead evidence.  I notice in this Court in Bennett & Woods v Piddington Sir John Latham took the view you could lead evidence about motive to contradict a witness and he seems to have regarded motive as part of bias, although he did not use the term “bias” nobody disputes that, and you  have got evidence in, in this particular case.  The critical question is:  what is the effect of the passage at page 104 of the summing up?

MR FLEMING:   Yes, Your Honour.

McHUGH J:   Well, we have heard no detailed analysis from you as to what the effect of it is.  You have not dealt with what Justice Dawson said was comment.  The learned judge says, “It is really not a matter which should concern you a great deal at all”.  What is the implication of that?  He was leaving it to the jury, was he not?

MR FLEMING:   With respect, Your Honour, we would submit that he is really taking it from the jury.  That is our complaint; that is our simple complaint.  He is saying to them, “I tell you this, it is irrelevant.”

McHUGH J:   Well, that is the beginning and end of it then, is it not?  I mean, if that proposition is made good, then you are home. 

MR FLEMING:   Yes.

McHUGH J:   Unless the proviso be used against you.  This is what your opponent ‑ ‑ ‑

MR FLEMING:   Yes.

BRENNAN J:   Unless the direction is wrong - is right.

MR FLEMING:   We would submit that he has usurped the role of the jury on that issue, that it is relevant; even though it was not put to the girl it still remains relevant.  He usurped the role of the jury and he took that question away from the jury and we would submit that he ought not to have done that.

McHUGH J:   Let us test it; let us test your proposition.  What it comes down to is that there is some evidence in the case that the mother and father dislike each other intensely and that there has been worse than that, there has been threats, there has been litigation, again and again, between them.  Is that what the trial judge is telling them, to take no notice of that at all?

MR FLEMING:   Yes, he is, Your Honour.  He has gone so far as to say that.  He said, “I tell you this; it is not relevant but it is a matter for you”.  He did come back, we accept, in the end, and say, “But it is a matter for you”, but such a strong statement, we would submit, takes it out of the realm of the jury consideration.

McHUGH J:   There is no objection to the summing up?

MR FLEMING:   No, there is no objection to the summing up.

McHUGH J:   No asking for a redirection?

TOOHEY J:   Presumably counsel had invited the jury, perhaps urged the jury, to take those matters into account.

MR FLEMING:   Yes.

McHUGH J:   You must have been persuasive on the special leave application, Mr Fleming.  I regard this as a weak argument in the Court of Criminal Appeal, let alone in this court.

MR FLEMING:   There is the additional element in the matter as well, of the copy-cat offence.  Melissa was a young lady who lived with them and she had a discussion with Karlina.  She had been abused and her father had been convicted of that, it would seem.  His Honour did deal with that.  We cannot complain about the way in which His Honour dealt with that.  He said that there had been abuse.  If that was so, then one cannot complain if a friend had simply encouraged Karlina to speak out.  That was put as a motive.

However, Your Honours, the strength of the case, we would submit, was still not great and if the jury had been properly allowed to consider the issue then we would submit that they could well have acquitted because they acquitted on three other charges.  Admittedly there was a time delay.  They occurred in 1983; these occurred in 1989.  They acquitted on the three in 1983.  So they must have had a reasonable doubt - and I will not put it any higher than that - of the evidence of Karlina in relation to those.

TOOHEY J:    But it is commonplace in these charges of sexual assault against young children that juries convict on some charges and acquit on others and, very often, the explanation lies in the time interval between those on which they convict and those on which they acquit and the nature of the assault.  In some cases it is of a rather more vague nature and the jury obviously have some doubt about the matter, but that does not preclude them from convicting in situations where they accept the evidence of penetration or some sexual assault of a much more serious and clearer nature.

MR FLEMING:   Yes.  We also have to concede that sometimes that can be said to flow from a very careful jury consideration where they acquit on some but convict on others.

McHUGH J:   But this is a classic case.  The jury might well come to the view that, “This touching business, I’m a bit dubious about that.  She could have easily been mistaken about that or she’s looking at it with the benefit of hindsight.  But the other parts are just too graphic.  She either made it up or she didn’t”.

MR FLEMING:   Yes, Your Honour.  We accept that a jury could come to that conclusion.  However, we submit that if the other evidence had been properly before the jury they may well have reached a different view.

BRENNAN J:   What is the proposition that you are putting in relation to the “copycat” ground of attack?

MR FLEMING:   If one adds that to the material being taken away from the jury - - -

BRENNAN J:   What do you mean, “adds”?  Added to what has been taken away?

MR FLEMING:   Your Honour, you have evidence which has been taken away from the jury, in our submission, which might well colour the jury’s view of the matter.  If that was allowed to be there then that might well colour the view that they had of the “copycat” offence as well.

BRENNAN J:   In what way?

MR FLEMING:   They might have had some cause to look more carefully at the credibility of that evidence.

BRENNAN J:   There were two propositions, were there not?  One was, “You told an untruth because you wanted to imitate what Melissa had told you”.  The second is, “You told an untruth because you wanted to side with your mother against your father.”

MR FLEMING:   Yes.

BRENNAN J:   And because you say the evidence on the second of those issues was not allowed to go to the jury, somehow or other the fact that the evidence about Melissa did go to the jury affects what?

MR FLEMING:   Your Honour, if they had a proper consideration of the first evidence and properly tested Karlina’s evidence there, it might have affected the way in which they viewed the second.  But they viewed the second allegation in isolation from the first.

BRENNAN J:   Is there any connection between them?

MR FLEMING:   Only as to credit, Your Honour, and only as to motive.  If there was a strong motive shown for this young girl to make a false complaint then, we would submit - - -

DAWSON J:   The way you must put it is to say, “Well, she wanted to hurt her father because of the way he treated her mother” and Melissa provided the means by suggesting this.

MR FLEMING:   Yes.

DAWSON J:   That is the way you can put it.

MR FLEMING:   Yes, thank you, Your Honour.  They ought to have been considered together rather than separately.  Page 105 of the record at line 10, in dealing with the Melissa issue:

On the other hand, if you think there is no motive at all and no reason at all for her to make up these allegations, then you may take that into account in assessing whether or not you are satisfied beyond reasonable doubt that she is telling the truth.

So they are in fact issues which ought to have been dealt with together.

Your Honours, can I finally refer to Longman v The Queen, (1989) 168 CLR 79. A passage of Your Honour Justice McHugh at page 107, immediately after the reference to the Bromley v The Queen, the paragraph begins, and especially the sentence beginning:

If, however, the evidence discloses any circumstance -

which suggests that the evidence of the complainant may be unreliable.  We would submit this is just such evidence.

At page 108 there is a discussion on the likelihood of error in the first complete paragraph.  In the second paragraph:

To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances -

That case involved I think a delay of some 20 years.  There is a delay in this case of between three and ten years.  The difficulty for an accused person is the incapacity to test the detail of the evidence, especially when it is a defence of “I didn’t do it”.  We would submit that is why the caution has to be shown

in these sorts of cases in respect of other evidence.  We would submit the other evidence here was the evidence of the mother going to the relationship between the parties.

If Your Honours are minded to allow the appeal at the end of the day, the accused has been paroled recently.  He was sentenced to three years imprisonment; he was paroled last month.  If the appeal is allowed, it might be in order to order a retrial except that he has in fact undergone the period of imprisonment involved in his penalty.  If the Court pleases, they are our submissions.

BRENNAN J:   Yes, Mr Byrne.  I think what we need from you, Mr Byrne, is just a brief outline of your argument.

MR BYRNE:   Thank you, Your Honour.  The proposition is that the way the directions were fashioned are conditioned upon the way the trial was litigated.  The passage of time over which the trial was litigated began with the complainant being called; she gave evidence.  There was nothing put to her in relation to motive.  That is the first proposition.

Following that, the mother was called and the mother of the complainant was cross‑examined at some length as to bitterness between herself and the adoptive father of the complainant.

His Honour, as you have heard, asked counsel as to what the point of that cross‑examination was.  He was told that the argument was it went to motive.  His Honour allowed the cross‑examination to continue and, in fact, without taking Your Honours to the passage, our submission is that His Honour, in effect, invited counsel appearing for the appellant to make that point if it was to be made, that is, if motive was to be an issue to be suggested to the jury, to at least put it to the mother of the complainant, even though it had not, at that stage of the trial, been suggested to the complainant.  Counsel, on the record, declined to take up that invitation and went on to cross‑examine on other points.

TOOHEY J:   I take it, Mr Byrne, from that that the cross‑examination of the mother went no further than to bring out the relationship between the parties.  In other words, I take it it was not put to the mother directly or indirectly that she may have fuelled the child’s mind with any suggestion as to some misconduct on the part of the father?

MR BYRNE:   No, that was never put, Your Honour.  It is somewhat surprising, if the point was going to be taken, with respect, that it was never put.  What His Honour the learned trial judge did was indicate his preliminary views to counsel that in the state of the evidence as it then was, His Honour would be telling the jury that he for himself could see little relevance in the evidence which had, at that stage, been elicited, and that is what is reflected on page 104 of the record in the direction which is here attacked. 

As to that direction, we submit that firstly it is accurate with one possible exception, and that one possible exception is, if anything, favourable to the appellant, because at about line 24 on page 104, His Honour said:

There is no evidence to suggest that she was even fully aware of that bitterness. 

There was, on our reading of the record, no evidence that she was even aware.  So the word “fully” could, on the material, have been deleted from His Honour’s directions.

What that direction is, as has been said, particularly by Your Honour Justice Dawson this morning, a comment or an observation on the state of the evidence.  It does not purport to, nor could it be interpreted, as taking away from the jury the evidence which has been elicited before them, to whatever length that goes, and really as it stood it only went to the relationship between the mother and the father.

His Honour has left that to the jury, has told them it is a matter for them, but has directed them correctly, with respect, on the material that there was nothing - no evidence to suggest that the complainant was aware or, as he put it, “fully aware of that bitterness.”  And he concludes by saying:

So, you might think that is really not a matter which would concern you a great deal at all.

Our submission is that there is nothing wrong with that direction in the context of the trial here.  Those are our submissions briefly, unless there is something further the Court wishes us to address on.

BRENNAN J:   There is only one further thing that I confess troubles me a little.  In the course of the special leave application, which no doubt proceeded without a full record of the transcript - - -

MR BYRNE:   I was going to point that out.  My learned colleague and I were not at the special leave application, but the only material in the record book was the summing up and the judgment of the Court of Criminal Appeal.

BRENNAN J:   Yes.  The court asked for assistance as to the identity of the “copycat” evidence.  It was given an answer by Mr Fleming, on instruction, which was concurred in by counsel for the Crown.  It does not seem that that was a very accurate response to the court at that stage.

MR BYRNE:   It is for that reason that we have gone for some length in our written outline to point out the actual state of the evidence as to the “copycat” material.

BRENNAN J:   Thank you, Mr Byrne.  Mr Fleming.

MR FLEMING:   Nothing in reply, if the Court pleases.

BRENNAN J:   The Court will consider its decision in this matter.  We will adjourn until 10.15 am tomorrow morning.

AT 11.39 AM THE MATTER WAS ADJOURNED SINE DIE