H v The Queen

[1994] HCATrans 396

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• r

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B22 of 1994

B e t w e e n -

li

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Copyright in the High Court of Australia 1 30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 11.33 AM

MR K.C. FLEMING, QC: If the Court pleases, I appear with

MR R.J. CLUTTERBUCK, for the applicant.

(instructed by Wellner & Chittenden)

MR D.L. BULLOCK:  I appear with my learned friend,

MR M.C. CHOWDHURY, for the Crown, Your Honours.

(instructed by D. Field, Solicitor to the Director

of Prosecutions (Queensland))

MASON CJ:  Mr Fleming.

MR FLEMING:  Thank you, Your Honours. Your Honours,

corroboration continues to dog the administration
of criminal law, and this is another case in
respect of corroboration. In the summing up to the

jury the learned trial judge said at the outset

that there was no evidence which was capable of

being corroborative. There was admitted into

evidence, though, evidence of a brother who was

present at a time when the sexual offence was

alleged to have occurred. The offence is alleged

to have occurred when the child was visiting her

father, together with the brothers, the family had

divided, and they were staying at the father's

unit.

The specific evidence which was admitted by

the trial judge related to the sleeping

arrangements, and to something which the son - the

brother of the child - saw. The evidence of the

child was that she slept on a mattress beside the

father's bed in the father's bedroom. The son

said, at one stage, that he looked through the door

and he saw the child lying on the bed without a top

on. The child, at no stage, gave that evidence, so

there was an inconsistency in the evidence given by

the child and given by the brother. Now, the

evidence was admitted and we would submit that that

goes to the heart of what actually happened.Whilst

the judge, in his summing up, said that there was

no evidence capable to corroboration, he yet

admitted that evidence and then depreciated the

evidence in his summing up, and I can come to that

in a moment.

The Court of Appeal, when it was dealing with

this issue, and I take Your Honours to page 29 of

the record, also said that there was no

corroboration or at least Their Honours said at

about point 8 of that page:

. The judge told the jury that there was no

corroboration in relation to any of the
counts.

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The Court of Appeal then went on to deal with some

of that evidence. At page 31 in the middle of the

page, that is the evidence, just before the

reference to Jenyns, that the son gave, and then,

in particular, came to that evidence at page 33,

and Their Honours said at the last sentence of the

second paragraph:

But the principal point was that Robert's

evidence had nothing to do with any of the

counts.

That was the conclusion that the court seems to be

coming to. We may ask, rhetorically, why then was

it allowed in. The analysis then follows of the

cases of sexual familiarity or similar behaviour in

the past.

Your Honours, the court also said at page 36

that the evidence was admissible because it tended:

to show a sexual relationship on the week-end

in question.

With respect, we would submit that that is

therefore corroborative evidence, if that is what

it goes to. At page 38, again they say, it:

was admissible, as tending to show a sexual

relationship -

Again, with respect, if it is admissible at all on

that basis then it would be corroboration. The

trial judge already having said that there is no

evidence which could constitute corroboration, and

the court having repeated that.

MASON CJ:  The Court of Appeal seems to have gone out of its

way to suggest that that was evidence that might

support the existence of some guilty relationship,

but really would the jury have made much of this

evidence?

MR FLEMING:	Your Honour, it went to the jury
MASON CJ:	I know it went to the jury - - -
MR FLEMING:	And, the learned trial judge certainly gave a

direction or, at least, he dealt with it in his

summing up at page 8, line 50. He says, firstly,

that there is no evidence which amounts to

corroboration at that point, and then he deals with
Robert's evidence at - sorry, Your Honours, I have
lost it, I made the note of where it was in the

Court of Appeal, but not here. It, nevertheless,

was before the jury and it was left before the

jury - - -

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MASON CJ: It was before the jury, but the trial judge said

there was "no corroboration".

MR FLEMING:	Yes.
MASIN CJ:	The fact that he told the jury there was no

corroboration seems to me to drain this evidence of

significant impact in the minds of the jury, and·

the other thing is that one would have thought

there are all sorts of possible explanations,

innocent explanations, for the girl to be on the

bed in those circumstances.

MR FLEMING:  Yes. Your Honours, at the end of the day, we

say, that the complaint is that having said that

there is no corroboration, nevertheless the

evidence was there before the jury, and it could

only have been there in terms of corroboration. As

one looks at the way in which the Court of Appeal

dealt with it, it could only have been there in

terms of corroboration.

DEANE J: That is the way the Court of Appeal dealt with it, but what you say is not right, is it? It could have

been there as part of the story of what happened.

The other factor here is that the trial judge indicated that he was prepared to tell the jury

that nothing much turned on it, and he was not

asked to supplement his directions to do what he

had said he would do.

MR FLEMING:  Yes, I thank Your Honour for that. That is

exactly - - -

MASON CJ: Well, I do not think you ought to thank

His Honour.

MR FLEMING:  No, no, I am at least thankful for having

identified how it was dealt with. Again, we

acknowledge that there was not a direction in those

What there is created is the difficulty of saying	terms but, nevertheless, again that is not fatal.
that there is no corroboration and yet leaving
evidence like that in there, which can only, we would submit, go to corroboration. It could only
go to whether or not there was a guilty association or some such thing which would go then to tend to
prove the case.

DEANE J: That is not really so, is it? I mean say, for

example, the alleged offence was something happened

in the bedroom. Evidence could be led that they

were both seen entering the bedroom, even though

that fact of its own would not be corroboration

that anything improper happened.

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MR FLEMING:  Yes, but Your Honour, when the evidence is in

the nature of what was given, that is, that the

child was lying on the bed with no top on, when

indeed, that is inconsistent with the child's own

evidence, then it yet remains before the jury in a

very unsatisfactory state. Your Honours, the whole

issue which, we would submit, is thrown up here is

similar fact evidence in the context of sexual

offences. It is used, it seems, by the Court of evidence of a guilty association.

GAUDRON J: But, that is not how it was put at the trial, is

it? Whatever the Court of Appeal may have done
about it do we not ultimately have to focus on what

happened at the trial, and whether what happened

resulted in a miscarriage of justice?

MR FLEMING:  Yes, Your Honour, but we would submit though

that in one sense the Court of Appeal was right, it

did go to that. At least that is the only basis
upon which the evidence could go in. But, on the
other hand, it simply ought not to have gone in

because it was outside of the parameters of conduct which could be admissible as similar fact evidence.

The way in which similar fact impinges upon these

cases, we would submit, really has not been dealt

with fully by this Court and we would submit it

ought to be and this is an appropriate vehicle.

Your Honours, the second issue involved is

that relating to cross-examination of the child

going to motive or, at least, cross-examination of

her family going to motive for the possibility of

making a false complaint. In this case there was

clear evidence of hostility between the family

members. In fact, on one occasion, the wife

admitted under cross-examination that she said that

she would love to see the husband in gaol. The

trial judge brought cross-examination to a halt in

respect of that.	Now, there is some debate as to
whether or not cross-examination had been

completed, but when one looks at the outline, and I
can take Your Honours to that if necessary, but the

facts are set out as to exactly what happened

before His Honour. We would submit that the

cross-examination was cut short, it was then dealt
with before the jury on the basis that it really

had nothing to do with the matter, at the end of

the day. We would submit that it did have a lot to

do with the matter, that full cross-examination

ought to have been allowed - - -

DEANE J:	Mr Fleming, on the cross-examination being
interrupted, the Court of Appeal found adversely to
that.

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MR FLEMING:  Yes, Your Honour.

DEANE J: Well, on what basis do we say that their finding

that there was no interruption to the

cross-examination - I am conscious of what is on

page 4 of your outline, but it does not tell us

much.

MR FLEMING: It is the factual basis, Your Honour, that is

the -

DEANE J: Yes, but I mean His Honour makes a comment, it

ends up:

All right, you might be able to make it

relevant. Go ahead.

And then, apparently the trial proceeded.

MR FLEMING:  Yes, the trial proceeded a little further,

there was some further cross-examination.

DEANE J: Well, we do not know what that was, do we?

MR FLEMING:  No, Your Honour, it is not - - -

DEANE J: It is a bit hard, in terms of page 4, for you to

make good a proposition that cross-examination was

halted when the last thing we have is the judge

saying, "Go ahead", and the trial proceeds.

MR FLEMING:  Yes. Your Honour, I can only revert to the

transcript, and say that it is equivocal, although

we acknowledge that the Court of Appeal was

satisfied that it was, in fact, completed at that

point. There was an argument as to whether or not

the matters had been put to the child. There was

an argument in the transcript as to whether or not

it went to anything at all, and counsel appearing

said it went to motive, and the matter finished
soon after that.	There was quite substantial

argument, there was some quite strong words spoken

by the trial judge who said that, "You were just

attacking gratuitously the credit of a lady," and

then that appeared ultimately - those words did not

appear - but, the summing up dealt with it by

His Honour saying, "You might think that that has

got nothing much to do with this at all."

DEANE J: Well, that is a different question, the summing

up, as distinct from cross-examination being

stopped.

MR FLEMING:  Yes, well we can move on to that, Your Honour,

and that is the next point in respect of it, the

summing up.

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DEANE J:  Yes. Can I ask you this? Am I right that the

child had been living with her mother since she was

three, when the marriage came to an end?

MR FLEMING:  Yes, Your Honour.

DEANE J: It does not appear in terms anywhere, but the

impression is clear enough. That was the evidence,

was it?

MR FLEMING:  Yes, Your Honour. Your Honour, the case which

seems to have dealt with this most clearly is in

New South Wales, R v Heyde, and it simply says, if

I may simply quote this to Your Honours without

requirement of going to the books:

It follows, in my opinion, that an

examination of the circumstances surrounding

the relationship between the young person and
the accused which might demonstrate a motive

for the laying of false charges is not only

relevant but, at least in some cases,

critical. The fact that there had been much

bitterness between a mother, whom the young
person loved and her ex-husband, who was the

accused, is certainly a material consideration

on the question of motive.

And, with respect, the learned trial judge did not deal with that at all, but rather he depreciated that substantially in the eyes of the jury and, we would submit, for that reason as well, this matter

ought to be given special leave.

GAUDRON J: Notwithstanding, apparently, that nothing was

put to the child about that?

MR FLEMING:  Your Honour, there is some dispute about that.

There were matters put to the child in respect of

that.

DEANE J: Should we not see them?
MR FLEMING:	We would have to go to the transcript to obtain those for Your Honours.

DEANE J: Perhaps you can tell us what was put. It was not

put to the mother, was it, that she had attempted

to influence the child?

MR FLEMING:	The cross-examination was certainly heading in that direction. There was cross-examination at
page 24 of the transcript that the daughter got
help from her mother.  I do not know that it was
put.  The discussion in respect of the
cross-examination is found at page 68 as to why it
occurred, or page 64 to 68.  Your Honours, there

30/6/94

was cross-examination of the mother assisting the

child in relation to the facts. I do not know that

it was put in specific terms that the child - I

have got to be very cautious about this - at

page 27 there is some cross-examination about

family matters put to the child. It was not

specifically put that the child had manufactured

the story, that question, specifically, was not

put. The details of the story were cross-examined as to the assistance that she obtained in respect

of the details of the story, but the final
question, in respect of fabrication, was not put.

It was put that the story was untrue, and she

denied that.

DEANE J:  Can I ask you another question, notwithstanding

the red light.

MR FLEMING:  I am sorry, I did not even notice it,

Your Honours.

DEANE J:  And that is this, did the evidence reveal what the

other child had told the child involved in the

case? Was it a similar sexual incident to the serious sexual incident involved in this case?

MR FLEMING:  I am instructed, yes.

DEANE J: It was, what, the same type of thing exactly, or?

MR FLEMING:  Yes, Your Honour.

DEANE J:  And that came out in what, in? I was asking about

the evidence.

MR FLEMING: Yes, I am told it did. Those are our

submissions.

MASON CJ: Thank you. Mr Bullock.

MR BULLOCK:  Your Honours, if I could deal with some factual

matters. It was put to you that there was an

inconsistency between the girl's evidence and the

brother's evidence, namely, the girl not saying

anything about lying on the bed -

MASON CJ:  We need not trouble you on that aspect of the case, Mr Bullock.

MR BULLOCK: Yes, thank you, Your Honour. Your Honours, if

I could summarize my submissions this way. The

effect of this evidence was not very prejudicial.

It was evidence which was capable of an innocent

explanation, but when one looks at the total

circumstances of this case - - -

30/6/94

MASON CJ: No, we are not concerned about that. We are

concerned about the other matter, the second

ground on which Mr Fleming relied

MR BULLOCK:  The motive, Your Honour? Yes, very well.

GAUDRQN J: Particularly the direction by the trial judge

that it may not be a matter of great moment.

MR BULLOCK:  Yes. Your Honours, my understanding of the

cross-examination was this, that the mother was

being cross-examined, the trial judge queried the

relevance of the cross-examination. Counsel said
he would make it relevant, or words to that effect.

It went on. There was more cross-examination, the

jury was sent out, and following that the trial

judge asked counsel if he had finished his

cross-examination, counsel said that he had. It

was after that that His Honour made the comments

about "gratuitous comments". So, my submission is,

and this is what the Court of Appeal found, that

the cross-examination had actually finished. So,

what we are left with, in my submission, is a

situation where the cross-examination was finished,
and none of it was really made relevant to the
question of motive, and all the learned trial judge

did was to make observations on the facts, leaving

it to the jury to form their own view of the facts.

DEANE J: But, if you turn to page 16, that first paragraph

there, what do you say about that?

MR BULLOCK: Yes, those are my submissions about that,

Your Honour.

DEANE J: His Honour directs the jury that there is a

submission of no apparent motive and, in that

context, that the intense bitterness between the

parents is unimportant.

MR BULLOCK: That is so, Your Honour, because if one looks

at the full context of this case, the girl was away

from home since she was three. Nothing was put to

the girl, or the mother, to make this type of

cross-examination relevant, and it is quite a

different situation from Heyde's case where there

was actual bitterness acknowledged by the girl to

the knowledge of the girl, and when the mother was

cross-examined about it that was stopped. In this

case there was nothing relevant in terms of showing

that the girl knew of any bitterness or that any
bitterness had anything to do with her allegations.

No questions like that were asked and, in that

context, it is my submission that His Honour was

correct in saying to the jury, "Well, you may think

nothing much of it, but it is a matter for you, all

the facts are for you." That is all His Honour

30/6/94

did. No re-direction was requested in respect of

that. Those are my submissions on that point,

Your Honours.

MASON CJ:  What do you say about the "copy cat" evidence?

Do you agree with or concede that there is evidence

in the transcript to the effect stated by

Mr Fleming?

MR BULLOCK:  I will accept my friend's statement that there

is, Your Honour.

DEANE J:	That is that there is evidence that what the friend told the child almost exactly corresponded
with the type of sexual assault involved in this case?
MR BULLOCK:	That might be taking it further than Mr Fleming

took it, with respect, Your Honour.

DEANE J: Well, I thought that was what I asked him.

MR BULLOCK:  Yes, he said it was in similar terms, or

somewhat similar terms, something like that.

DEANE J: Yes, I then asked him in relation to the serious

incidents.

MR BULLOCK:  Yes, Your Honour, I prefer not to make that

concession.

MASON CJ:  Can you give us the relevant pages of the

transcript so we can see for ourselves?

MR BULLOCK: Yes, I can find that and supply Your Honours

with that.

MASON CJ:	Can you do that promptly?
MR BULLOCK:	I could do it within half an hour or so, if

that suited Your Honours.

MASON CJ: Yes, that will be satisfactory, if you can do

that?

MR BULLOCK: Yes, I will do that.

MASON CJ: Thank you, Mr Bullock.

MR BULLOCK:	Thank you, Your Honour.
MASON CJ:	Mr Fleming.

MR FLEMING: Yes, one of the matters that Your Honours

requested in the transcript before in respect of
the cross-examination of the child:

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when you had a conversation with your mother

about once a week, did she ever tell you what

to say?

The answer is:

No.

Because of the denial there was then cross-examination in respect of the detail. But,

Your Honours have moved on from that.

GAUDRON J: There was no cross-examination as to bitterness

of the child, as to the bitterness between the

mother and the step-father?

MR FLEMING:  Yes, there was cross-examination as to whether

or not she knew about the bitterness between the

mother and the father. There had, in fact, been

proceedings taken in court to restrain.

MASON CJ:  Can we have the transcript that records that as

well?

MR FLEMING: Yes, thank you, Your Honour, we will attend to

those matters.	We do not wish to reply on any
other basis.	We will provide that material
forthwith.

MASON CJ:  The Court will consider its decision until

2 o'clock, and then announce our decision at

2 o'clock.

MR FLEMING:  Thank you, Your Honour.

AT 12.02 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.36 PM

MASON CJ:  We have examined the transcript. Does counsel

wish to put anything to us in this matter in

relation to the transcript?

MR BULLOCK:	No, Your Honour.
MR FLEMING:	No, thank you.
MASON CJ:	The Court has come to the conclusion that there

should be a grant of special leave in this matter,

but the draft notice of appeal clearly requires

11   30/6/94

reformulation, and we should say in relation to it
the notice of appeal to be filed pursuant to the
grant of leave should exclude the ground of

inadmissibility of the evidence of the brother.

.., .., "7

AT ~•.JI PM THE MATTER WAS ADJOURNED SINE DIE

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