Humble v The Queen

[2009] HCATrans 270

[2009] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2009

B e t w e e n -

IAN EDWARD HUMBLE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 14 OCTOBER 2009, AT 9.28 AM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with MS J. FULLER for the applicant.  (instructed by Scammell & Co)

MR S.P. PALLARAS, QC:   If the Court pleases, I appear with my learned friend, MS A.F. CAIRNEY, for the respondent.  (instructed by Director of Public Prosecutions, (SA))

FRENCH CJ:   Yes, Ms Powell.

MS POWELL:   Your Honours, the applicant was convicted by majority in each case of two counts of unlawful sexual intercourse.  At the time of offending the complainant was aged 10 or 11.  The accused was her mother’s boyfriend.  Both of the incidents occurred in the years 1989 or 1990.  The first count of which he was convicted – that is count 1 on the information – occurred at a suburban beach at the time when she was there with her mother and her siblings and the accused was there as her mother’s boyfriend.  The sexual intercourse alleged was cunnilingus.  The second count of which the applicant was convicted – that is count five – also involved cunnilingus.  The scene of that offending was the complainant’s bedroom which she shared with her younger sister.  There were four further charges of which the applicant was acquitted by majority verdict.

FRENCH CJ:   I think, Ms Powell, you can take it that we are familiar with the facts of the case.  Perhaps we can go straight to the first matter of the direction in relation to recent complaint, which I understand is the first element of your application.

MS POWELL:   Certainly, your Honour.  The significance of the acquittals in my submission is that certainly the jury, it can be inferred, must have had some reasonable doubts about the evidence of the complainant.  So this is not a case where there were all convictions.  Quite to the contrary, there were only two out of seven.  In relation to the first count of course there was the evidence of recent complaint and in respect of the second conviction there was evidence that the sister was in the room at the time, although she did not give evidence about the specific alleged conduct.

In the circumstances that the verdicts demonstrated that the jury was not prepared to convict where there was no evidence independent of the complainant, then the question of how her credibility might have been bolstered was a very important matter in the trial.  The question asked by the jury at application book page 25, line 43 also shows that the jury were very concerned about that.  The first question asked was:

In situations where it is purely the word of the victim against the accused, is the word of either party enough evidence alone to bring back a verdict ie no eyewitness accounts or any hard circumstantial evidence?

There is no complaint made about the direction that her Honour gave in respect of that particular question, although she did fail to tell the jury that the complainant had admitted that previously she had lied in respect of her relationship with the applicant and her Honour failed to address them in respect of that matter.

We say, if the Court pleases, that in the circumstances of this case, as indeed in the case of every case involving oath on oath, it was particularly important that the jury be properly directed on the matters it needed to determine before it could bring the recent complaint evidence to account to bolster credit.

FRENCH CJ:   The trial judge at 24 did direct the jury that:

In considering whether the complaint was made you should note the inconsistency between the evidence of [A] and her mother.

MS POWELL:   That is right.  This was a situation where we do not say so much that the content of the complaints was violently different, rather it was the circumstances in which they were made, the mother being adamant that it was made to her on the beach a matter of minutes after the incident, the complainant giving evidence that she had been troubled about the whole matter for days and had finally told her mother at home about five days later.  Both of them were quite firm ‑ ‑ ‑

HAYNE J:   Now, MsPowell, the jury are confronted with those two different versions of events.  Do you say that neither of them or that one of them was not recent complaint?

MS POWELL:   It could have been that the jury may have determined that the one five days later was not recent complaint simply because ‑ ‑ ‑

HAYNE J:   How old was the complainant at that stage?

MS POWELL:   Nine or 10.  Certainly, your Honour there is no doubt that it was admissible as recent complaint evidence but it was still a matter which the jury should have been concerned about if that was the complaint they accepted.  But in our submission where the direction fell short ‑ ‑ ‑

HAYNE J:   Can I understand that better than I do.  Assume it is the later version of events, the version of events where the complaint is later.  What should the jury have been concerned about?

MS POWELL:   The jury should have been told that if that was the complaint that they accepted, they would need to consider whether it was relevantly recent.  That is all we say.  The real complaint we make is that the jury were given a bundled up direction on these two complaints and that they were never told that in fact they were not reconcilable and indeed if they were not reconcilable and the jury could, by reason of the inconsistency, not be satisfied that either of them were made to the requisite degree of satisfaction, then there was no evidence in the Crown case to bolster the credibility of the complainant.

FRENCH CJ:   MsPowell, do you say that the direction to the jury – and I am reading at 24 again at about line 30.

If you accept that the complaint was made and if you accept that it was made at the first reasonable opportunity and made to a person to whom [A] might reasonably be expected to complain ‑

et cetera, does that not direct the jury’s attention to the need to consider whether the complaint was made at the first reasonable opportunity?

MS POWELL:   It does, your Honour, but at that point in the summing‑up the judge has compendiously rolled the two complaints into one single complaint without directing the jury that before they can consider issues such as relevant recency and, indeed, consistency with evidence, they have to determine whether they accept and are satisfied that the complaint was made.  Which of the two complaints were they to accept; was it such that they could accept neither because they were so diametrically opposed.  The judge simply gave them no assistance in that regard.

We say that the trial judge failed to direct the jury on what were really two very important legal issues.  What complaint, including timing, content and circumstances, were they prepared to accept to the relevant degree of satisfaction and if either one was accepted it was that complaint which was to be considered against the evidence given in the trial by the complainant and not the other version.

We say there were two legal consequences of acceptance of the complainant’s version:  first, that the complaint was made five days later and whether that was sufficiently recent to bolster credibility.  That might not be a very strong point but a point that the jury should have been directed about in any event.  It was the content of that complaint which had to be juxtapositioned against her evidence.

There were two legal consequences if they accepted the mother’s version, and again we say that it would then be the content of the mother’s version which would have to be compared with the evidence given, and a rejection of the complainant’s version and her evidence on that topic could be brought to account in a general way in assessing her reliability.  Of course the jury were never told that.

The third legal issue, which was not the subject of direction, was this.  The jury should have been directed that if because of the inconsistencies they could not be satisfied of either version, then as a matter of law neither could be used to enhance the complainant’s credibility.  To roll the complaint into a single one, as the learned trial judge did at application book 24, line 30 that your Honour the Chief Justice has referred me to, we say was the source of the error.

We say it could never have been sufficient to just leave the issue of the inconsistency between the two complaints to the jury to make of it what they would.  We say proper directions as to the appropriate path of reasoning as to how the evidence could be used were not opened to the jury’s attention.

Can I move to ground 2.  Motive to lie was raised by the applicant’s counsel in cross‑examination of the complainant.  That passage is set out in application book 53 from line 30 in the judgment of Justice White, who was in dissent in the court below.  The applicant gave evidence as well about the telling off of the children which he suggested precipitated the complaint.  That evidence is referred to in the judgment of the majority at page 70 from line 41.  Interestingly, that particular piece of evidence that the majority referred to at page 54 was not specifically referred to by the trial judge in her charge to the jury.

The prosecution referred to the raised motive to lie in her address.  Still on page 54, you will see at line 20 the majority set out what was said by the prosecutor about that motive to lie.  Then under that at line 28, the majority set out what was said by defence counsel about motive to lie.  Motive was raised only in respect of the first count on the information and not in respect of the other six counts.  There was no complaint in respect of the other six counts.  They did not come out until the complainant eventually went to police in 2004.  There was an invitation to direct the jury with respect to motive to lie.

FRENCH CJ:   That invitation, or that submission, was put to the trial judge well into the jury’s deliberations, was it not?

MS POWELL:   Yes.  The jury had retired at 11.41 the day before, and then at the first opportunity when her Honour returned to the Bench at 10.25 am the next day that invitation, or that request, was made of the trial judge.

HAYNE J:   What do you mean by “at the first opportunity”, Ms Powell?

MS POWELL:   That the judge was asked to convene the court the next morning without the jury so the application could be made, so it was not until the next morning but it was when the judge was available to hear the application.

HAYNE J:   Are you saying that counsel sought to raise it earlier than it was raised?

MS POWELL:   No.  It occurred to counsel overnight, your Honour.

HAYNE J:   Exactly so.

MS POWELL:   There is no suggestion that there was any difficulty for her raising it at a time when it was appropriate.  It was opposed by the Crown.  As Justice White said, there were two occasions when her Honour might have given the direction to the jury because they returned on two further occasions before they finally delivered their verdicts to ask questions of her Honour.  It was not as if the jury’s deliberations would have been unnecessarily interrupted for the purpose of giving the direction.  

The direction sought on page 29 was what has become known as the second limb of the direction concerning motive, namely that if a jury rejects a motive to lie which is propounded by an accused that does not mean that the prosecution case is thereby strengthened.  Of course we rely, similarly to the respondent, upon the decision of Justice Latham in Doe v The Queen.  It is in my friend’s book, I think, and the passage particularly, which I think is cited in any event in my friend’s outline at paragraph [58], where his Honour, having been through the various authorities, says that the following propositions emerge:

Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive (“the central theme”), or goes beyond the asserted motive and poses the question at large -

That is not the case that we assert here:

and the summing up does not contain full, firm and clear directions on the onus of proof including a direction that the accused bears no onus to prove a motive to lie and ‑

We emphasise “and”:

that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

Now, because no motive in the other six counts had been raised and with no direction on that particular topic, having heard the complainant cross‑examined, the accused examined and cross‑examined on the topic and matters raised in both addresses, we say that the jury may very well have speculated without a direction about the lack of possible motive.

A direction carrying the weight of judicial authority should therefore have been given with respect to those other six charges, namely the first limb, that is that the jury should not speculate; and with respect to count 1, we say it was a significant error that they were not given the second limb direction, that is if the jury rejected the motive to lie raised, that does not mean the prosecution case was strengthened.

We say that in the peculiar circumstances of this case, particularly given the differing verdicts, from which it may be inferred that the jury were not prepared to accept the complainant’s evidence without other evidence, then it is an appropriate vehicle for this Court to determine with what detail and with what assistance legal issues relating to recent complaint need to be dealt with by a trial judge and also it raises a composite question in terms of the need for motive to lie directions, where in fact the trial judge has been entirely silent on the topic except to tell them that they might bring motive to account in assessing the value of witnesses’ evidence.  If the Court pleases.

FRENCH CJ:   Thank you, Ms Powell.  We will not need to trouble you, Mr Pallaras.

The Court is of the opinion that the trial judge’s direction on the question of recent complaint was sufficient to direct the jury’s attention to the task in relation to inconsistencies in the evidence.  The refusal by the trial judge late in the course of the jury’s deliberations to make a direction on the question of motive to lie was unexceptional having regard to the limited way in which the issue arose.

Special leave will be refused.

The Court will adjourn briefly to reconstitute for the next matter.

AT 9.46 AM THE MATTER WAS CONCLUDED