HJS v The Queen

[2001] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2000

B e t w e e n -

HJS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 2001 AT 12.13 PM

Copyright in the High Court of Australia

MR G.P. CRADDOCK:   If the Court pleases, I appear for the applicant.  (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Craddock.

MR CRADDOCK:   Your Honours, this case raises the important question of how the proviso to the Criminal Appeal Act is to be applied in a case where there are errors of law established and where those errors, firstly, tend to enhance the credibility of the complainants and, secondly, detract from the credibility of the applicant, and the case itself turns upon the competing credibilities of the complainants and the applicant.  The case also raises the important issue of the requirement or otherwise of an intermediate Court of Appeal to expose in its judgment the reasons why an error of law is said not to give rise to a miscarriage of justice.

Returning to the first of those issues, we commence with section 6 of the Criminal Appeal Act of 1912 New South Wales.  It is in the short bundle that your Honours have, provides relevantly ‑ ‑ ‑

KIRBY J:   I think you can take it that we are both rather familiar with it.

MR CRADDOCK:   Thank you.  Might I say that it is in similar or identical terms to all of the provisions across the Commonwealth, which provide each of them for the dismissal of appeal on the proviso basis.             We next go ‑ ‑ ‑

KIRBY J:   That is what is put against you by the Crown.  They say you really want to talk about the proviso, and the proviso is well-worn territory that is dealt with in many, many cases incidentally to another issue in the case, and there is nothing really that warrants bringing the matter up on that basis alone.

MR CRADDOCK:   Well, there are two responses to that, your Honour.  The first one is that, with respect, is no answer to the proposition that there has been a miscarriage of justice occasioned in this case, and the applicant has had his appeal dismissed.

Secondly, though, what this case brings up for consideration is just how the proviso is to be dealt with in circumstances where it is a case of determining competing credibilities, and, on the one hand, there are errors which tend to ‑ ‑ ‑

GLEESON CJ:   Is it the judgment of Justice Simpson that we are primary concerned with on this point?

MR CRADDOCK:   Well, that raises another difficulty.  Yes, to some extent that is right because her Honour Justice Simpson dealt with the question of complaint and held that the plaintiff in this ‑ ‑ ‑

GLEESON CJ:   What she really said, as I understand it, appears at page 226, line 35, and when she says when you look at what the actual evidence of that complaint was, although the trial judge made something of a meal of it, it was not very significant evidence in the overall scheme of things.

MR CRADDOCK:   I would accept that is what her Honour said, but ‑ ‑ ‑

GLEESON CJ:   That the really significant evidence in the case was the combined effect of these complainants lining up against your client.

MR CRADDOCK:   Well, not the combined effect because ‑ ‑ ‑

GLEESON CJ:   The effect of these complainants coming along to tell their story.

MR CRADDOCK:   In each particular count, because there was no question of tendency.  But that is not the test, we would submit.  It is not simply a matter of weighing one body of evidence as against another and saying when you look at the direct evidence that the offences were committed and then compare that to the evidence that the complainant said to somebody else that the offences were committed, one is greater or more significant than the other, and, therefore, there was no miscarriage of justice.  In all cases where there is a complaint there will be evidence directly of the commission of the offence.

GLEESON CJ:   Whether your argument is right or wrong, it is really the passage at the bottom of 226 that you are concentrating your attack on, is it not?

MR CRADDOCK:   That is part of it.  There is a second proposition.  It goes back to the question that your Honour raised as to whether we are primary dealing with the judgment of Justice Simpson, and one really needs also, we submit, to deal with the judgment of Justice Ireland.  If I could just move through them without taking your Honours to each of them in turn just at the moment.  Firstly, at 179 there was the question of exhibit F and whether that should have been edited to remove the material which the Crown conceded was unrelated to these matters, but was clearly prejudicial in a matter that concerned the jury so much that they asked a question about it.

Then there was the question dealt with by his Honour Justice Ireland at 182 about the reference by Detective Grech to the complaint by a Ms P, and that, itself, was a complaint that, according to the detective’s evidence based the arrest of the applicant; the jury were told that.

There was then at 186 of the book his Honour’s reason with respect to ground 6 in the CCA relating to the record of interview which, on any basis, elicited no admissible evidence whatsoever, but had the vice ‑ ‑ ‑

KIRBY J:   This was admitted by consent?

MR CRADDOCK:   It was.  Well, albeit, briefly.  It was admitted by consent and then counsel reconsidered the position, realised that there were problems, and sought to have it excluded.  Now, the difficulty with the record of interview was not simply that there was no admissible evidence in it probative of the offences, but that it had the inbuilt tendency to prejudice the applicant because it put him in dispute with the police.

GLEESON CJ:   Well, all these grounds of appeal that Justice Ireland was dealing with had the proposition that a miscarriage of justice was occasioned by some irregularity as part of the ground and he dealt with that in dealing with the ground.

MR CRADDOCK:   That is right.  He dealt with each of those, but that was not to say that the evidence of the reference to Ms P was properly before the jury; it was not.  It is not to say the document ought not have been edited to remove the prejudicial material which the Crown conceded did not go to the case at all.  It is not to say that the jury should have seen the material whereby the independent officer was saying to the applicant, “You have to assist these police.  They are investigating a serious crime, and you should cooperate,” which is like have a detective go across to the jury box and say, “See that bloke over there, the accused, well, we are investigating a serious crime, and he would not help us.”  It is not to say that material was properly before the jury.

Nor is it to say that the improper questioning of the accused dealt with by his Honour at page 188 and following, as to whether he was the only person in the case who was telling the truth was properly before the jury.

KIRBY J:   Well, that is conceded by the Crown as to be a question that should not have been asked; not been allowed.

MR CRADDOCK:   Yes, exactly.

KIRBY J:   So it really gets back, ultimately, to the proviso.  There were a number of mistakes in this case.

MR CRADDOCK:    Of course.

KIRBY J:   It is a question of whether or not you can demonstrate that a miscarriage of justice has occurred.

MR CRADDOCK:   Yes, but when one is looking at the proviso, is the test on the one hand as it appears to have been dealt with by her Honour Justice Simpson, looking at the complaint evidence alone and comparing it with the direct evidence of the offences, “Was that evidence of great significance or not?”  Answer, “No”.  Answer:  “Therefore, no miscarriage of justice”.  Or is the test that if there is an error in the admission of the material and in the directions upon which the jury considered the material, if there are errors of those kind, is there, nevertheless, no substantial miscarriage of justice, and is the test one that requires the appellate court to examine the material absent material that ought not have been admitted and absent the directions that ought not to have been given, and then to ask itself whether on what was left it was inevitable that the applicant would have been convicted?

GLEESON CJ:   Inevitable?

MR CRADDOCK:   Yes.

GLEESON CJ:   Looking at what Justice Simpson said at the bottom of 226, she talked abut the direct accounts of “repeated sexual abuse” being “taken to have been more compelling”.  Was there anything about the way that evidence was given or the way that evidence stood up or failed to stand up under cross-examination that produced the result that it was severely shaken?

MR CRADDOCK:   Well, that, really, was a matter for the court to analyse.

GLEESON CJ:   What do you say about that?

MR CRADDOCK:   We say that their evidence was seriously challenged.

GLEESON CJ:   No, was shaken.

MR CRADDOCK:   Well, that is in the eye of the beholder.  We would say yes.

GLEESON CJ:   They did not resile from their evidence.

MR CRADDOCK:   But they often do not.

GLEESON CJ:   I understand that.  I was just wondering whether it was the possibility that there was anything about the evidence of those four daughters as it stood before the Court of Criminal Appeal that should have led them to say that evidence was not cogent and it required to be bolstered by this complaint evidence, vague and unspecific though it may have been.

MR CRADDOCK:   Well, your Honour, that, in my submission, asks the wrong question.

GLEESON CJ:   I am not saying that is the only question, but I am raising it as a question.

MR CRADDOCK:   If it is raised as a question, then one answer to it is this.  That these alleged offences all occurred decades before the applicant was ever put on his trial, and that, itself, gives rise to a need for very great caution.  That, itself, gives rise to a matter that can be weighed against the likelihood of the offences having been committed, leaving aside any question of whether there could be established as against any of the complainants any objective matter throwing into doubt the evidence that she gave.  It is the very fact of that delay which adversely impacts upon the accused chances of doing that.

GLEESON CJ:   I infer from what you say that, although there may have been grounds upon which the defence would invite the jury not to accept the evidence, it was not shaken in cross-examination.

MR CRADDOCK:   Well, no, I do not concede that.  There are difficulties about assessing whether the evidence was shaken in cross-examination that derived from the very fact that none of us were there to see it.  If the proviso in such a case is to be determined upon the basis whether you can show on a bare transcript that a complainant has been shown to be wrong about a matter, then, in my submission, that would fly in the face of all that has been said about the proviso.

GLEESON CJ:   What Justice Simpson seems to have done is to have said the error in relation to the matter she was considering that was demonstrated does not appear to have been important or significant in the total scheme of things in the case.  That may have been a correct or an incorrect appreciation of the significance of that error, but, as a matter of principle, that is a material consideration, is it not?  I am not saying it is the ultimate question.

MR CRADDOCK:   No.  Her Honour never got to the ultimate question.  It is a material question to ask what significance the evidence had in the scheme of things in the trial.  That is a material question; it is not the ultimate question.  Here, of course, as her Honour conceded, there was a great deal of court time devoted to the complaint evidence.

GLEESON CJ:   What about line 2 on page 227?  Did that evidence stand or fall with the evidence of the complainants?

MR CRADDOCK:   Yes.  It was entirely dependent upon the evidence of the complainants.  That is the difficulty, you see, it was an oath-against-oath trial, and so if you have an error which has admitted before the jury evidence that the jury could accept as enhancing the evidence of the complainants, and the further error which has allowed the jury to reduce the credibility of the accused, in order to answer that ultimate question, that is, whether absent those errors conviction would have been inevitable, one necessarily must go through the practical exercise of hiving off all of that material and then asking the question whether in an oath-against-oath trial conviction was inevitable.  Of course, that raises the difficulty of saying as an appellate court that in a case that depended upon oaths, the oaths on one side of the record would necessarily have been accepted by a jury.

GLEESON CJ:   If your argument is right, the consequence must be that in any case that is oath against oath, if there has been a wrongful admission of evidence that is capable of supporting the evidence of the complainant, the proviso cannot be applied.

MR CRADDOCK:   I would not go quite so far.  There may be other factors, but if that is all there is and if it is oath against oath, then that is right.  That really was the effect of what Justices Gummow and Gaudron said in Suresh 72 ALJR.  It is in the bundle.  We have only included extracts, but it is the second page of the Suresh extract.

GLEESON CJ:   What paragraph?

MR CRADDOCK:   Paragraph 6.  You see, that is precisely what their Honours said.  Now, they went on in Suresh and said, “Well, that is not this case because there are additional factors.”

KIRBY J:   I think you should deal with the ground that you say the Court of Criminal Appeal failed to deal with.

MR CRADDOCK:   Yes, your Honour.  I will do that as swiftly as I am able.  The material I need to take you to very briefly:  if I could take your Honours to page 18 of the book, and your Honours will see there a passage that exemplifies what was being put to the applicant by the so‑called independent officer throughout a fairly lengthy exchange.  The officer said:

I want you to cooperate with these two detectives.
All right?  That’s a must.  You just have to cooperate the best you can, all right, because you’re here . . . to be interviewed in relation to this . . . allegation.  You, you know, they are only doing what they have to do.  Somebody’s gone and made a complaint to them and they’ve implicated you, so they’ve got to interview you and you’ve got to assist them and cooperate.

Now, the vice was referred to in the applicant’s submissions before the Court of Criminal Appeal at page 160 of the book.  There are two separate grounds dealt with with respect to the admission of that evidence.  Firstly, there was the proposition that the evidence was ‑ ‑ ‑

GLEESON CJ:   All right, you have identified the point.

MR CRADDOCK:    ‑ ‑ ‑inadmissible.  The second was that it put him in a position where he was in dispute with the police.

KIRBY J:   He went on to make a complaint and the senior detective was brought in to ask what his complaint was.

MR CRADDOCK:   It was the senior detective who was telling him there in that passage that I took you to that he had to cooperate.  That was the so‑called independent officer who was telling him, “You have to cooperate with these police.”

KIRBY J:   All right.  Well, you say the Court of Criminal Appeal did not deal with that.  I think we can hear what Mr Blackmore says.

MR CRADDOCK:   And they did not deal with that.  The only reference to the ground at all is at 186 of the book.

GLEESON CJ:   All right, thank you.  Yes, Mr Blackmore?  Mr Blackmore, we are going to sit until 12.45, at which stage we have to adjourn, but we then have to do video link applications from Adelaide and Perth starting at 2.00 and probably finishing at 2.45 or 2.50 in another courtroom actually, and we will resume this part-heard matter after we finished those video link applications.

MR BLACKMORE:   Without rushing I think I may be able to finish by 12.45.

With respect, none of the alleged errors outlined in the applicant’s submissions lead to the result, in our submission, that the conclusion in this case amounted to a substantial miscarriage of justice.

KIRBY J:   There were a number of mistakes.

MR BLACKMORE:   Correct, there were a number of mistakes.

KIRBY J:   It is a question of whether cumulatively they deprived the applicant of a fair trial, and led to a miscarriage ‑ ‑ ‑

MR BLACKMORE:   I need to deal with them individually because that is the way the Court dealt with them, and they arrived at the ‑ ‑ ‑

KIRBY J:   In a sense, it is the accumulation that worries me.

MR BLACKMORE:   I can address that issue, your Honour.  Our submission in relation to it is this, that the Court individually dealt with each of these matters and decided in most of them they did not amount to a miscarriage of justice, in which case you can put them out of the accumulation for the purpose of testing the end result as to whether or not there was substantial miscarriage of justice.

KIRBY J:   We do have certain standards for criminal trials in Australia.

MR BLACKMORE:   And there is no doubt there was an issue here that was the complaint evidence which should not have been before the trial court.  There is no issue about that.  Whilst it could be said, in suggesting that the court had to find a substantial miscarriage of justice, I have made a concession.  It is clear that there was no express reference to that term or any relevant authorities in any of the judgments of the Court.  Our submission is, by implication, the Court had that in mind when it was making its observations, particularly the observation of Justice Simpson at the bottom of page 226.  The contra argument is obvious available and my friend has made it.

The subsequent argument, then, if it is not accepted, is that in any case this is an application for special leave.  There is nothing especial about this application.  Their Honours addressed factually the issues that would lead them to conclude, in our submission, that there was no substantial miscarriage of justice here, and that is, with respect, a matter that this Court would now, on leave, if special leave is taken into consideration, because at the end of the day, if special leave was granted and it was heard as an appeal, ultimately the result may be that the Court there would conclude there was no substantial miscarriage of justice.

Perhaps, if I can take, first of all, the complaint evidence.  In our submission, your Honour the Chief Justice has correctly characterised Justice Simpson’s remarks as, in effect, being in this case the complaint evidence that was actually improperly admitted was relatively minor when you compare it with the fact that there were four complainants giving evidence in this trial consecutively of being sexually interfered with in various different ways - the details I do not need to go into - by the accused.

KIRBY J:   Except the complaint is one means by which a person accused of these types of offences can get objective criteria by which to test, challenge and rebut the evidence of the complainant.

MR BLACKMORE:   Absolutely.  I cannot ‑ ‑ ‑

GLEESON CJ:   Let us get one thing straight, Mr Blackmore.

MR BLACKMORE:   Yes.

GLEESON CJ:   Was the error in the admission of evidence that there had been complaint, or was the error in leaving it to the jury on the basis that the evidence of complaint was evidence of the truth of the facts alleged in the complaint?

MR BLACKMORE:   The error pointed to by her Honour – I have to answer that in a slightly longer way.

GLEESON CJ:   Let me make myself more clear.

MR BLACKMORE:   I think I understand.

GLEESON CJ:   What I am trying to ask is this.  If the error had not been made, would the matter have gone to the jury on the basis that there was no evidence of complaint?

MR BLACKMORE:   Can I answer by just saying in the Court of Criminal Appeal the Crown argued that the complaint evidence would have been admissible under section 108.  The Court in the Court of Criminal Appeal said they could not satisfied that leave would be granted to lead that evidence under section 108 inevitably, so it cannot be said for sure that the evidence would have been before the Court or, at least, all of it.

GLEESON CJ:   It is a rather important practical question.  If the error had not been made, would the jury have had to deal with the case on the basis that they had before them no evidence that any of these daughters had complained?

MR BLACKMORE:   The answer, again, unfortunately, is yes and no because some of the evidence of complaint was properly before the jury.

GLEESON CJ:   Because it was complaint to the accused.

MR BLACKMORE:   To the accused, correct, and it elicited, we say, admissions from him.

GLEESON CJ:   So they were saying amongst other things, that apart from the general remarks that they made over time to other people, they confronted him squarely with these allegations and he made admissions in response to it.

MR BLACKMORE:   Correct.  And a very crucial aspect of them, and in her Honour Justice Simpson’s decision she notes at page 227, “his subsequent incriminating responses”, and in response to what your Honour the Chief Justice said, we do not accept that those were entirely matters that came from the complaint.  They were responses that he agreed that he made in his evidence.  If I can take your Honour just briefly to page 29 of the appeal book, for example - this will not set up the whole context of this material but at line 35 to 40:

Mr S, when J asked you ‘Did you ever have sex with me?’ weren’t you staggered by that question?

This is in the context where he accepts that that question was asked, and, with respect, there is very damaging cross-examination of him about his acceptance of that proposition and that conversation.

GLEESON CJ:   Well, maybe you can show us that when we come back, Mr Blackmore, because this may be a matter of some importance in undertaking the task that Mr Craddock says should have been undertaken and you say was undertaken.  There is a dispute about that, but I am far from clear in my own mind at the moment exactly what Justice Simpson is referring to on the top of page 227.

MR BLACKMORE:   Yes.

GLEESON CJ:   Well, I cannot specify a time to which we will adjourn.  If you send somebody down to Courtroom 23D you will be able to see the progress of these applications.  One is starting at 2.00 and one starting at 2.30, and then after we finish those we will come back here and resume the hearing of this matter.

MR BLACKMORE:   Certainly not before 2.30, then?

GLEESON CJ:   Certainly not before 2.45.

AT 12.44 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.38 PM:

GLEESON CJ:   Yes, Mr Blackmore.

MR BLACKMORE:   Thank you, your Honours.  In relation to Justice Simpson’s last statement on page 226 and the top of 227, this is what it says:

the accounts of the three of them of accusation made directly to the appellant, and his subsequent incriminating responses.

In answer to that query as to what she was referring to, can I take your Honours very briefly to page 205 of the book, about point 5 on the page, numbered (ii), that is the complaint that was made allegedly by daughter D, the incriminating part being that which is in single line print commencing:

He said that because we went -

et cetera.  If could then go to page 206, the complaint by daughter M, the incriminating part is in (iii) at the top of the page in the single print:

I think we have already paid for that.

This conversation that is related here by D and M is a conversation about with they gave evidence which took place when they were both together, and it was in relation to the Housing Commission house.  It is a little bit confusing to put it this way, but it is explained in more detail in the summing up.  I will give your Honours those references.  At page 93 of the book, his Honour is there dealing with at about line 15:

In relation to the Housing Commission D gave this evidence, the subject came up when she was about 17 or 18 -

I cannot read all that, but towards the bottom of the page from about line 50 on:

Can you recall what was said?  And the answer was, ‘I can’t remember what we said but I remember he -- ” -

and this is the incriminating part.

Can you recall exactly the words he said, can you recall them?  And the answer was, “He said that because we went and sat on his lap he that that we wanted to be sexually abused, that we wanted to be touched and fondled.”

That was D’s response.  That was the incriminating part.  M then immediately afterwards is dealt with on page 94.  The same location and the same location which they were both a party to about the Housing Commission.  The incriminating part is towards the bottom of the page, line 50:

“Oh, no, I don’t think that’s right, you girls wanted that as much as I did.  You girls wanted the cuddles, it wasn’t just me.”  And then I told him, said M, that I think he’s sick because we didn’t want the cuddles, any children should just be able to cuddle their dad and not expect that sort of thing to happen.  And we argued about that sort of thing for a little while and then said that he would see what he could do and we left.

They were the incriminating answers or responses, as your Honour put it, with respect to M and D.  In relation to complainant J, I take your Honours to page 207.  In her Honour’s judgment she gave this brief account towards the bottom of the page in numbered (ix):

J gave evidence (which was admitted both as evidence of complaint and of admission by the appellant) of confronting the appellant at his home, then at Pacific Palms.  This occurred in 1995 when she had travelled to Pacific Palms with M.  J said that she demanded to be told why the appellant had behaved as he had.  The words she attributed to herself in recounting the confrontation were:

“Why did you do it?”

Now, the incriminating part, though, is dealt with in the summing up at page 106, and, with respect, we would submit this part is particularly significant.  It is not set out in the judgment of the Court of Appeal.  From about line 30 onwards this is conversation that took place at Pacific Palms.  That can be seen from the top of the page:

she had driven up to Pacific Palms with M.

From line 30 there is a conversation related:

And she said that his answer was, “Because I loved you so much, oh, you were such beautiful kids.”  And she said that she asked him, “Did you do it to anyone else?  Did you do it to anyone else?”  because it was news to her that it even happened to M and that was communicated as they drove to Pacific Palms.  And he said, “No, I wouldn’t have done it to anyone else.  No, I didn’t do it to anyone else.  You were the one who wanted it.”

Again, we would submit, that is the incriminating response that was made by the applicant, which is what her Honour was referring to at that point.

Now, in relation to that particular conversation - and this is where I, perhaps, approached it very tangentially this morning - there was an agreement with the applicant that he, in fact, had a conversation with J at Pacific Palms, and that appears at page 107 of the summing up and also in the actual cross-examination, itself.  Again, I have not time to go into that in detail, but at page 107 he agreed that he was asked by J:

“Dad, I want to ask you something, did you ever have sex with me?”

And then he gave series of responses in relation to that ‑ ‑ ‑

KIRBY J:   Just pause there.  That, itself, is an odd - if somebody said to him, you would react with astonishment at such an accusation, but if she had had the sex with her father, it is astonishing that she should ask him.

MR BLACKMORE:   Well, she, in fact, denied that those precise words were used.  That appears at the bottom of page 106 where it was put in cross-examination to her:

“You asked your father, “Did you ever have sex with me?” and she said, “No, I didn’t ask that, I already knew he had.” . . .  “I’m suggesting to you that he replied, “No, I didn’t.?”  And she said, “No,” he replied, “You were such beautiful girls and you were the one who wanted it and no, I did not.”

KIRBY J:   It is all rather odd.  He admitted it in answer to a question that is to this effect but maybe - - -

MR BLACKMORE:   The way we submit it here is that it lends support to the fact that the conversation, a conversation along those lines, at least, took place at Pacific Palms, which support her evidence, that is, J’s evidence in that respect.  I cannot put it, really, any higher than that.  Given that evidence before the jury, and, with respect, there was a deal of cross‑examination about his answers along those lines, and I can only summarise it by saying it did him little credit in the sense that his answers were difficult to understand and to follow, given that he had made that statement of his own accord.  Examples I could give to your Honours, but, perhaps we do not have time.

For example, at page 34, towards the top of the page, line 5, he gives a very long answer.  This is all before the jury.  Confronted with this sort of evidence, our submission is it is not at all surprising that her Honour was of the view that the other pieces of complaint evidence were insubstantial in comparison to this material.

With respect to your Honour Chief Justice’s question as to whether or not ‑ ‑ ‑

KIRBY J:   Just pause there.  She says, “Oh, dad, did you every have sex with me?”  I mean, that just came out of the blue.  Bang, boom, just like that.  The provisional way in which it is expressed is a little disquieting.

MR BLACKMORE:   It is extraordinarily unusual, I would say.

GLEESON CJ:   This is the accused’s evidence.

MR BLACKMORE:   This is accused’s evidence.

KIRBY J:   No, but it is the accused - - -

MR BLACKMORE:   It is his evidence - - -

KIRBY J:   - - - attributing the statement to her, and she said, apparently, something to the effect that she had asked him words to that effect.  I though you were just - - -

MR BLACKMORE:   That is correct.  She had asked him, “Did you ever have sex with me.”

GLEESON CJ:   No, she denied that.

MR BLACKMORE:   She denied actually using those words.

KIRBY J:   But she did not deny that she had asked something to that effect because it went on at 106 - - -

MR BLACKMORE:   The line of her inquiry was not in relation to whether or not she had had sex with him.  She was putting it to him that he had, and “Why would you do it to me?”

KIRBY J:   It would not be remarkable for her to say, “Why did you have sex with me?”

MR BLACKMORE:   Correct, yes.

GLEESON CJ:   She was confronting him with an accusation, as I understand her evidence.

MR BLACKMORE:   Exactly.  She knew then what happened to her.  She was 17 or 18 at that stage, but these were things that had happened to her when she was much younger.

GLEESON CJ:    His evidence was that she did, indeed, raise the subject with him, but in the form of a question.

MR BLACKMORE:   Yes, and it is fair to say, in summary, he denied it.  He, in effect, raised this for the jury’s consideration, himself.

Now, as to the question as to whether the evidence may have already been before the jury or ought to have properly been before the jury, we rely upon section 108, particularly section 108(3).  This was dealt with by her Honour in her Honour Justice Simpson’s judgment, but we would point out that it was very clearly stated by the applicant at page 32 of the book in cross-examination at lines 17, an answer:

Well, I reckon they’ve definitely got together to try and pin this on me, whether they think they can get a compensation or what from it, I don’t know, I don’t know where they’ve come with the idea from, I – whether they think that they can finish up being paid for the house that I built up at Kurrajong or what they’ve come up with an idea for there.

Very clearly he was suggesting that this was some form of joint concoction between them.

KIRBY J:   You probably dealt with that as well as you can in the time, but would you deal with the point concerning – which said the Court of Criminal Appeal did not.

MR BLACKMORE:   Did not deal with the point, yes, your Honour.  In relation to that point, we would submit that, in fact, his Honour Justice  Ireland did deal with those points.  They were dealt with in a very short fashion.  Perhaps if I can just take your Honours, to explain the submission, to the submissions of the applicant on this point.  The thrust of his submission appears at paragraph 31 of his submission, page 241 of the book.  As to this effect, it was submitted ‑ ‑ ‑

KIRBY J:   Which page, I am sorry?

MR BLACKMORE:   241, top of the page, paragraph 31, second sentence:

It was submitted that a fair trial could not be had where the applicant was, quite improperly , painted as being in conflict with legitimate efforts by police to investigate serious crime.  The ground was not referred to at all in the judgments below.

With respect, it was dealt with in those terms, however, if I can just take your Honours to his Honour Justice Ireland’s judgment.

KIRBY J:   Well, the first thing to do is to identify the ground before the Court of Criminal Appeal.  That is on 158, I think, or 159.  Which is the relevant grounds that is said to have been ignored?

MR BLACKMORE:   Six, your Honour, I understand.

GLEESON CJ:   Where do we find it being dealt with?

MR BLACKMORE:   It is dealt within Justice Ireland’s judgment, as I say, not in terms.  The essence of this, at least when put in context, is that this document had already gone before the jury, and did it by consent.

KIRBY J:   But the consent, it said, was withdrawn when counsel realised how damaging some of it was.

MR BLACKMORE:   Correct.  So the question, therefore, is being put now that ERISP should not have gone to the jury on the basis that it was unfair due to the conflict between the officers and applicant.  At page 187 of the book, in our submission, these two paragraphs adequately deal with this point, paragraph 79 and 80 of the judgment.

KIRBY J:   Well, that does seem to deal with it.

MR BLACKMORE:   It is quite clear that someone could have legitimately made a tactical decision to admit this document given that it strenuously states his denial.  Question 52, at page 16, for example, is a strenuous denial by the applicant, and it would be quite a reasonable decision to make ‑ ‑ ‑

KIRBY J:   Yes, I was first concerned that it had been totally ignored, but it does appear to have been dealt with.

MR BLACKMORE:   Yes, thank you.

GLEESON CJ:    Yes, Mr Craddock?

MR CRADDOCK:   Your Honours, we submit, it was not dealt with.  There was a reference to prejudice but there was not any reference at all to the ground that was argued, which was that there was particular prejudice given that the independent officer was through this record of interview indicating to the jury that they were investigating a serious offence, and that the accused was refusing to cooperate with them.  Now, that proposition was not referred to at all by his Honour or by Justice Simpson.

KIRBY J:   Well, it was referred to by Justice ‑ ‑ ‑

MR CRADDOCK:   Ireland.

KIRBY J:    ‑ ‑ ‑Ireland in that elliptical way.

MR CRADDOCK:   Well, in an extremely elliptical way, given a fairly ‑ ‑ ‑

KIRBY J:   But these reasons are already long and burdensome, and in the whole picture of this case, originally your side had not objected to the document, it had gone in, and his Honour does make reference to the complaint about the unfairness of it.  It does not seem to me to be a big point in the case.

MR CRADDOCK:   Well, I am not suggesting that it is such a big point in the case.  More important is the test with respect to the application of the proviso.  Can I take your Honours to the judgment in Wilde, which is in that small bundle.  It is about five pages or so in.  You will see an extract from the judgment of Justices Brennan, Dawson and Toohey at page 372.  Your Honours have that?

GLEESON CJ:   Yes, we have it.

MR CRADDOCK:   Their Honours say:

Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.

They recite several cases.

Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed.

Now, it is not contested here that that is not what he got.  He did not get a trial where the rules as to admissibility of evidence were strictly followed.

GLEESON CJ:   Did Justice Simpson ask herself did he lose a chance of acquittal by reason of this complaint evidence getting in?

MR CRADDOCK:   Justice Simpson did not ask that question, but particularly ‑ ‑ ‑

GLEESON CJ:   What is the test that you say she applied?

MR CRADDOCK:   Well, what her Honour did was not to look at the case as it appeared absent the inadmissible material and wrong directions, but, rather, to compare one piece of evidence with another.  Not to take it out of the equation but to simply compare it with other evidence that was there.  That appears at line 45 on 226, where her Honour says:

Despite the attention paid to it in the summing up, it is not evidence that could be taken to have affected the jury to any substantial degree.  Taken in conjunction with the other evidence, it was of relatively minor import.  What may be taken to have been more compelling were the direct accounts of repeated sexual abuse

Now, we say that the proper application of the test as set out in Wilde required not a comparison of that sort, but for the Court of Criminal Appeal firstly to look at the case on this basis:  that you put to one side that material, which was not properly before the jury, which enhanced the credibility of the complainants, that is, the complaint evidence, and to put aside the evidence of improper questioning of the accused which was damaging to his credibility, and to look at the case absent reference to another victim, and that was the word that was used by Detective Grech.  To look at the case absent material which showed that the accused was uncooperative with police, and to look at the case absent the prejudicial material in exhibit F.

KIRBY J:   But to look at all of this in a case where D, M, and J had given evidence against their father?

MR CRADDOCK:   Yes, that is right, and to look at it as a case on that evidence alone tried decades after the event, and then to ask the critical question, “Was it inevitable that the jury would have accepted the evidence of each of the complainants beyond reasonable doubt?”

KIRBY J:   You have to really hypothesise as a sort of criminal conspiracy by the three daughters to make these horrendous accusations against their father.

MR CRADDOCK:   Your Honour, this was four trials.

KIRBY J:   Yes, but we have to ask ourselves was there a miscarriage of justice.

MR CRADDOCK:   There is prima facie a miscarriage of justice when a person is tried other than by way of the strict application of the rules of evidence and proper directions to the jury as to how they deal with the evidence.  The question is whether, notwithstanding those errors, the appeal ought to have been dismissed as showing no substantial miscarriage of justice.  In our submission, where you have a case which is oath against oath ‑ ‑ ‑

GLEESON CJ:   Well, we have heard that submission.

MR CRADDOCK:   You cannot, your Honour, say that a jury ‑ ‑ ‑

GLEESON CJ:   You said that to us hours ago.

MR CRADDOCK:   Well, I am saying it again to finish:  you cannot say that a jury must have accepted that witness who you have not seen as a court beyond reasonable doubt where it is disputed.

GLEESON CJ:   Thank you.  In this matter we are not persuaded that there was a miscarriage of justice and we think there is insufficient prospect of success of an appeal to warrant a grant of special leave.  The application is refused.

AT 4.00 PM THE MATTER WAS CONCLUDED