Humphries v The Queen

[1988] HCATrans 66

IN THE HIGH COURT OF AUSTRALIA

Registry No ClO of 1987

B e t w e e n -

TERRENCE DOUGLAS HUMPHRIES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

DEANE J
DAWSON J

TOOHEY J

Humphries

TRANSCRIPT. OF PROCEEDINGS

AT CANBERRA. ON TUESDAY, 19 APRIL 1988, AT 10.18 AM

Copyright in the High Court of Australia

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MR B.J. SALMON, QC:  May it please the Court, I appear with

my learned friend, MR K. CRISPIN, for the appellant.

(instructed by Gillian Witchard, Legal Aid

Commission (ACT))

MR I.D. TEMBY, QC:  May it please the Court, I appear with

my learned friend, MR R. LIVINGSTON, for the Crown. (instructed by the Director of Public Prosecutions)

MASON CJ:	Yes, Mr Salmon.
MR SALMON:	I hand up our outline of submissions, if it please

the Court, and a list of persons who were involved -
they are not all witnesses, but they may assist
the Court.

Your Honours, the appellant's case is that there were various matters that occurred during

the trial which would have given the Federal Court
the option of ordering a new trial but, principally,
the verdict was unsafe and unsatisfactory and should

have been quashed. At the time the Federal Court

dealt with the appeal the decision of this Court

in MORRIS V REG had not been delivered and the

first submission which is made on behalf of the

appellant is that the Federal Court, when it

considered this appeal, did not independently examine

the evidence and determine for itself whether or

not the jury should have been in doubt and acquitted

the accused.

As is set out in the - I will take Your Honours

first to MORRIS V REG and the parts of the judgment

where this aspect is dealt with. In the decision

of Your Honour the Chief Justice the matter was

dealt with in MORRIS V REG at page 169 line 45.

No doubt, most members of the Court will remember

that in MORRIS' case it was put that it was merely

a question of fact and that the High Court should

not grant special leave but the Court held that

in considering the unsafe and unsatisfactory ground

the Queensland Court of Criminal Appeal had not

independently examined the evidence.

(Continued on page 3)

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--

DAWSON J:  What is meant by "an independent assessment of the

evidencerr? It is not suggested the Court should

sit down and read through the whole of the transcript,

is it?

MR SALMON:  No, Your Honour. The independent examination of

evidence, of course, takes place in the light of the

submissions made by counsel for the appellant on the appeal. That is not to say that counsel for

the appellant will necessarily mention everything,
but clearly the Court is not obliged to retry the

matter and trying to try it

on the transcript.

DAWSON J:	Deal with	the points which are raised.
MR SALMON:	That is so.	And in this instance in the Federal

Court the appellant did rely on the ground, and

did point to the - principally, of course, the

scientific evidence as being such as to raise a

reasonable doubt when it was properly considered.

The references in the decision of MORRIS' case

to which I wish to refer, at page 169 Your Honour

the Chief Justice said:

I am not persuaded that the Court of

Criminal Appeal recognised that the function

which it was performing required it to make a careful and independent assessment of the

critical evidence -

and Your Honour referred to the critical evidence

in that case, and Your Honour went on:

It seems to me that the Court of Criminal Appeal

was under some misapprehension as to the task

which it had to perform in assessing the

qualitative worth of -

that bit of evidence -

or, if not, that it failed to perform that

task.

In this instance we say, Your Honours, that

the scientific evidence properly considered was

such that when it was considered and compared

with the balance of the evidence should have raised

a reasonable doubt in the mind of the jury and

that task was never performed by the Federal Court.

The matter is dealt with also in the joint

judgment of Your Honours Mr Justice Deane and

Mr Justice Toohey, and Justice Gaudron at page 175,

line 33 where it is stated:

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A Court of Criminal Appeal must make an

independent assessment of the evidence, both

as to its sufficiency and its quality.

And then goes on to deal with what happened in

the particular case.

(Continued on page 5)

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MR SALMON (continuing):  Your Honour, the decision in MORRIS'

case quotes at length the relevant parts of other leading cases in the High Court on the unsafe and

unsatisfactory issue and I would rely on what was

said in MORRIS' case about those other cases and

would not trouble Your Honours by referring to
them, such as - well, CHAMBERLAIN and WHITEHORN,

I suppose ,are the two principal ones.

The coinciderice of time meant that the

Federal Court did not have the benefit of the decision

in MORRIS' case when it came to consider the ground

and one can only speculate, of course, what would

have happened had they had the benefit of that.	I
will take Your Honours to what was said about the
ground. There was nothing, in our submission, at
all in what fell from His Honour Mr Justice Fox on
the issue at all. The matter was, in fact, only
dealt with by His Honour Mr Justice Kelly where,

in our submission, it is clear that he did not

really carry out the task which, in our submission~

MORRIS' case requires.

Mr Justice Kelly dealt with the matter at

page 421 of the appeal book. He, having dealt with

other aspects of the appeal, then goes on to say:

The last ground of appeal was that the

verdict was unsafe inthe light of the scientific

and other evidence. I am unable to see that, in

general, this was so. In particular -

and then he deals with a specific matter -

even if it be accepted that the questions going

to Professor Boettcher's credit should not have

been asked, the fact that they were does not,

I think, constitute grounds for setting aside the verdict.

If I could pause there, His Honour was merely

considering whether as an independent matter of

complaint that matter of complaint amounted to an

unsatisfactory part of the trial but I would submit

he was not looking at the evidence as a whole

comparing the Crown case with the accused's case

and determining whether the jury verdict was quite safe in those circumstances.

MASON CJ: But was that not the gist of the submission that

was made to the Court of Criminal Appeal that the
unsafety or the alleged unsafety of the verdict

arose out of the scientific evidence?

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MR SALMON:  Your Honour, that was, of course, the principal

bit of evidence on which the appellant could rely.

It was, one might have thought, a bit surprising that

with the exculpatory scientific evidence, which,

in our submission, it clearly was -notwithstanding

some matters which I might have to deal with later -

it was a highly significant aspect of the defence

case which, in the ordinary circumstances, one would

have anticipated would have resulted in acquittal;

so that it is not surprising that counsel for the

appellant before the Federal Court used that as the

principal annnunition, but not alone. There is

also the other aspects of the trial, in particular

the way in which the witness Channel was dealt with,

which I will come to in the next point in the

outline of submissions, which, if it had been

properly considered with, perhaps, the fact that

another witness, Andrea Dawe, had signed a statutory

declaration after having apparently given a statement

to the police in which she recanted and said there

had been no rape, if all of the evidence had been

taken together, with, of course, the scientific
evidence as the most powerful weapon for the accused,

then the court would have, in our submission, having

performed the task, found that the verdict was unsafe

and unsatisfactory.

It is our submission, of course, that it did not,

and I would submit that that is, perhaps, emphasized

when one goes on to see what His Honour said:

It is not for every minor blemish in

a criminal trial that a verdict of

guilty found by a jury should be set

aside -

of course, with which we agree -

There is a general rule that if an

error of law or a misdirection or the

like occurring at the trial is of such

a nature that it could not reasonably

be supposed to have influenced the

result, a new trial need not be ordered.

Again that is, of course, a proposition with which we

would agree. But bearing in mind the case for the

accused and the way in which the appeal had been

argued, that is dealing specifically with His Honour's

treatment of the scientific evidence, the Federal Court

was obliged to look at the evidence as a whole and

determine whether the verdict should stand.

(Continued on page 7)

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--

MR SALMON (continuing):  Your Honours, as I have attempted

to put in the outline of submissions, the special

leave issue, if I can call it that, that is

a basic reason or the reason why the High Court, in this particular case, would go on to consider

the questions of fact which did arise, occurs because

of the fact that the Federal Court itself failed to
carry out the task. It is not something which one

would anticipate will happen in the future, but

my client, in this case, was in that gap, as it were,

before MORRIS' case was delivered.

Of course, the other two judges on the Federal

Court did not refer to the matter at all for some

reason. Mr Justice Fox does deal with other matters

and at page 397 he actually refers to the second-last

ground of appeal as being the final ground of appeal.

I am reminded of this. If Your Honours could examine

Mr Justice Fax's judgment at 397, he says:

The final ground of appeal was that instead

of sworn jury minders sworn in accordance

with the s.46 of the JURIES ORDINANCE (1967)(A.C.T.) -

the sheriff and <leputy sheriff looked after the jury,

et cetera. That ground of appeal is abandoned before

this Court, but it does, in our submission, indicate

quite clearly that, for some reason, His Honour -

and, it follows, of course, His Honour Mr Justice Forster,

who concurred with Mr Justice Fox - did not even

consider - it appears from the judgment, at least,

they did not even consider the unsafe and unsatisfactory

ground - - -

TOOHEY J:	Mr Salmon, was that ground argued independently of
the other grounds of appeal?
MR SALMON:	It was, Your F..onour, yes. I have, in fact, got the outline of

submissions - I do not know 'Whether it is in Court - that was used in thE

Federal Court, and it is clear from that that it

was argued. It was argued principally by referring

to the other points that had been argued before.

Of course, the main one was the way in which the

scientific evidence was treated, but it was argued

and I would submit that Mr Justice Kelly's judgment

indicates that he understood it to have been maintained

in the court. Your Honour, if I could now go to some

other, I hope, briefly, aspects of the appeal.

MASON CJ:  Well, before you do, I notice that, at page 397,

in the first complete paragraph, Mr Justice Fox says

at about lines 8 tol0, after referring to the scientific

evidence, that he was satisfied that, "no miscarriage

of justice occurred."

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MASON CJ·(continuing):

There was no doubt of the possibility

of contamination and of its effect and the

other evidence was strong.

MR SALMON:  Your Honour, His Honour there, as I apprehend

it, was accepting that there had been an inpropriety

in the trial in that Dr Boettcher had been
improperly cross-examined and he was there dealing,

in our submission, and only dealing, with that

ground and that issue and saying, "Although the

cross-examination should not have been allowed,

and that was an irregularity, bearing in mind

the other evidence that ground did not result

in any miscarriage." I would submit that that

suggestion is, as it were, more a throw-away

line dealing with the conceded irregularity.

I also, of course, have to accept that he did say that the possibility of contamination was

an issue and - - -

MASON CJ:  He is really saying, is he not, that the Crown

case was stron*? Because he is not referring,

when he says, And the other evidence was strong",

to evidence about contamination - he is referring

to the case generally?

MR SALMON:  That is so. That was certainly an indication

of a view that he took when he was comparing

the attack which he held that should not have

been made on Professor Boettcher, and saying that

when one looks at that attack and the other evidence,

that does not v1t1ate the trial. I would submit
that, bearing in mind the way His Honour delivered

his decision, it does not really suggest that

he had given the overall submission about the

effect of the scientific evidence the sort

of consideration which is required in MORRIS V REG.
It was more the sort of remark that can be made by a

court dealing with an irregularity in the trial

which the court finds to have occurred and then	compare it with other views of the evidence,
and say, "Well, that irregularity is not enough."

(Continued on page 9)

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MR SALMON (continuing): It does not, in our submission,

suggest that he has really examined the issue of
'unsafe and unsatisfactory' and come to the

conclusion that the verdict was not but rather

that he has considered one bit of evidence,

compared- that to the Crown case and said, "Well,

disturb the verdict 11 • that irregularity in the trial is not enough to

Your Honours, there is another issue of law

which is a matter in which, it is submitted, the

Federal Court clearly were wrong and that is the

issue of the way in which Channell was treated.

Can I remind Your Honours that Channellwas with

the party that went to this comparatively isolated

place and had obviously given a statement to the

police not long after the incident which was corroborative of the victim 1 s evidence.

It then became clear that he had recanted

at odds with the victim 1 s case and apparently at	from that and prepared a version which was totally
odds with his prior statement and that had been
initially in handwriting and then subsequently
in an affidavit. Channel~ of course, was one of
the two other, I could call then eyewitnesses, but certainly witnesses present at the time who
was called by the Crown. His evidence, obviously,
would have been of great significance in
determining the credibility of the victim and he having in-chief refused to adhere to the statement he made to the police and having in fact said that
either he could not remember the incidents or that
entirely consistent with the applicant 1 s innocence, they did not happen and given a version which was
not surprisingly, the Crown prosecutor sought leave
to cross-examine him on his prior statement.and
it is not - before Your Honours it is not argued that there was anything improper about the trial judge granting leave.

He was then cross-examined chapter and

verse about what he had said in the statement to the police and throughout that cross-examination

he said that his statement to the police was not

true, that they were lies and that what he had

already said about the incident was the truth.

(Continued on page 10)

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MR SALMON (continuing):  So that the situation was reached

where the counsel for the accused sought to bring

to the jury's attention what had already been

briefly mentioned, that is, that Channell had in

two other statements, one of which was a statutory

declaration and the other of which was an affidavit,

given a version which was, in fact, consistent

with his version on oath before the jury.

Now, it is our submission, Your Honours, that

that course by the defence counsel was entirely

proper and should have been allowed. What took

place appears at the appeal book in page 222 and

following - it is in volume 1. He was, in fact,

shown the affidavit, as I apprehend it, and it

was put to him by defence counsel:

Have a look at this document that was previously

shown to you. Does your signature appear

on all three pages?---Yes.

Do you remember swearing it? In other words, going before a justice of the peace?---Yes .....

When it was read over to you, what did you

think of the contents?

And then the objection came from the Crown prosecutor

and after some brief discussion the jury was sent

out and it is clear that the defence counsel
misapprehended some parts of the EVIDENCE ORDINANCE

which, in our submission, were not relevant. This

was, in our submission, just an ordinary

cross-examination - it happened to be, of course,

a cross-examination on a document, but it was,

in fact, an ordinary cross-examination.

(Continued on page 11)

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MR SALMON (continuing): And I must draw Your Honours' attention

to what defence counsel said at page 223:

the jury now know that he has given two

versions. Firstly, to the police, on

which he has been cross-examined; secondly,

to the this court. The jury know that he has given a third version, not necessarily different -

I am not quite sure what he means by that -

and that that version is in the statutory

declaration.

I suppose he means not necessarily different from

the sworn version to this court.

They also know, because my friend put the document in front of the witness, that he

has also made an affidavit, being a possible

fourth version.

MASON CJ: Whereabouts is this, Mr Salmon? I have not -

MR SALMON:  I have gone to 223, after the jury retired,

Your Honour.

TOOHEY J:  The numbering is a bit obscure, Mr Salmon.

MASON CJ: Yes, which number are you reading?

MR SALMON:  The appeal book numbers are the rubber-stamped

numbers throughout. I apologize that all the old

ones were not whited out, but the appeal book numbers

in the references in my outline of submissions - - -

MASON CJ: We are confused by the name Wilcox. That has led

us along a false track for a moment, but we have

righted ourselves, Mr Salmon.

MR SALMON: Well, the passage I was reading from starts at

about point Sl or point 4 and I had read to you what

Mr Wilcox put to the judge. It is what falls from him next which has created some difficulty for the

appellant, and I may as well read it to Your Honours

and try and deal with it, because what Mr Wilcox

then said, which i~ referred ro in borh Mr Ju~tire Fox'~

derision ;:ind Mr Justice Kelly'~ decision is this·

Now, Your Honour. at the end of this

case I will be submitting to the jury, quite
obviously, that a person who gives at least
three versions, each different in some respects

to the other. is a person who cannot be believed

about anything.

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That remark, I think, we have to put to Your Honours,

was indeed an unfortunate one, an unnecessary one and

one which turned out not to be the way the learned

defence counsel put his case to the jury.

(Continued on page 13)

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MR SALMON (continuing); In this appeal book the address of

counsel was included because, of course, the

basis on which we approach this Court is that the

defence case was really never properly put and what

we sought to do is to point out that accused's

counsel, in his address, did refer to the matters

which would have required the trial judge to put the

defence case. But the address is included and what

he acutally says, a couple of days later when he

comes to address, is quite inconsistent with the

unfortunate remark to which I have drawn attention,

and it is at page 304, at the bottom of the page:

What of David? -

that is Channell -

We can say a lot about David. He has

caused everyone a lot of inconvenience.

He is not the flavour of the month.

But one thing we know and which has not been challenged is this - and it is worth

just reminding you of what he said about

it yesterday. I said to him - I was

talking to him about him having given a

record of interview, not just a statement,

if you remember, and how he was - the police

warned him in the same way as they warned

Terry at the beginning -

and he goes on to ref er to parts of Mr Channell' s evidence
and the fact that the Crown prosecutor had had a

discussion with him, I think, and he goes on in the

middle of the following paragraph:

It is after that episode that David, who

you may think was scared out of his wits,

comes to court and tells you what he tells

you. I know he is not the most popular

fellow around, and for good reason, but he

comes here and gives his version after that

sort of conversation takes place with the

Crown prosecutor here in the precincts of

the court.

You say "So what?" -

and this is the relevant part -

What I am suggesting to you is that it is

all the more likely that what he has told

you is true because of the conversation

he had with the Crown prosecutor.

Now, what he actually put to the jury at a later part

of the trial is, of course, quite inconsistent with

the remark he made to His Honour, that I have drawn

the Court's attention to at page 223. In fact, in

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. .

the conduct of the case he came to the conclusion
that Channell was a witness on whom the defence should

at least rely to the extent that he refers to it

there and, of course, this was clearly the case.

Notwithstanding the view that defence counsel

apparently had on 20 November, had the jury been

aware of what was contained in the two later versions -

that is later than the record of interview, the

statutory declaration and the affidavit - it may well

have been that the jury would have taken a view of and which may well have raised a reasonable doubt

in their minds.

What took place was that His Honour prevented defence counsel from putting those matters, or letting

the jury know what the witness Channellhad said in

his later versions, and it can, of course, be clearly

inferred from what took place that those versions

were similar to his evidence in-chief. Now, the

confusion arose because it is suggested what was being

done was that a witness was being cross-examined about

a prior statement consistent with his evidence and

there are, of course, rules of the law of evidence

which govern such an examination of a witness; but,
of course, they apply, we suggest, at least, where a
witness having given a version satisfactory to the
party calling him, is cross-examined to suggest

that version is a recent invention.

(Continued on page 15)

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MR SALMON (continuing): Thereafter, in the ordinary course,

counsel for the party calling the witness may

seek to put an earlier consistent statement in to

rebut the suggestion of recent invention but, it

is our submission that that had nothing to do with

what took place in this case. The party called had

been called by the Crown and given a version

contrary to the Crown case. He had then, under a

completely different rule of evidence, been
cross-examined as to the statement which he had

given to the Crown and, although he was a witness

who was hostile to the Crown, he was still the

Crown witness and there was no impropriety at all

in the counsel who had the right to cross-examine

that witnes~ as the defence counsel had, putting

to him the two documents which clearly, as the

Federal Court accepted, supported the defence case.

DAWSON J: Now, counsel is not allowed to do that, is that

right?

MR SALMON:  No, it is our submission that counsel for the

defence cross-examining a witness can cross-examine

at large,as it were, including on documents of the

witness.

DAWSON J: Well, they are entitled to hand the document to the

witness, ask him to read it and then ask him does

that not change his mind.

MR SALMON: Well, Your Honour, that is only_

where the version that the witness has given was

unsatisfactory to the cross-examining counsel, in

our submission. Where the version that the witness

has given in-chief and on which he is subsequently

cross-examined by leave by the party calling him

is favourable, there is no rule of law which prevents

counsel cross-examining him,from referring him to

matters which he has written -

DAWSON J:	What do you mean by referring him to them?
MR SALMON: Well, putting quite blatantly, in our submission,

the question, "In this document which I have now

shown you, did you not say" so-and-so and asking
him why he said it, was he under pressure to say it
and generally cross-examining him in the way he would

have cross-examined an adverse witness.

DAWSON J: Cross-examining for what purpose?

MR SALMON: Well, in this instance, to re-enforce the version

which turns out to - - -

DAWSON J: You see, that is the point. It is not to get over

wh&t is in the document. It could only be to credit.

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The document is consistent with what the witness

is now saying and it could not be used as to credit.

MR SALMON: Well, Your Honour, that would be the case in

respect of the party calling the witness but, in

our submission, that rule which we accept that a

party calling a witness cannot bolster his credit

by referring him to a consistent statement is,

in our submission, not in point when the witness

is called by the other side and the other side have

done what occurred here; that is, that they have got

from the witness one version and they have also

cross-examined the witness on another version.

I concede that, of course, that cross-examination

does in the result bolster the credit of the witness

but what we put is that in the circumstances that happened in this case, the defence is entitled to bolster the credit of a Crown witness when he does

what occurred here.

DAWSON J:  By showing that he said something previously which

is consistent with his evidence in court.

MR SALMON:	Yes, Your Honour.
DAWSON J:	Now, you cannot do that, can you, except in

circumstances of recent invention.

MR SALMON: Well, it is our submission that, in the circumstances

which occur here, the ordinary rule about not bolstering

a witness' credit is, of course, designed for a party

who calls the witness. The incidental effect of what

would otherwise or- can I put it another way? Assume

that the witness had given some evidence favourable to

the Crown and some evidence favourable to the accused

and, in another statement he had given a version which

was different from the favourable part of the evidence

given by the witness.

(Continued on page 17)

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MR SALMON (continuing):  Counsel for the defence has that

other document there and now the situation is

that he wants to, as it were, deal with that

part of the witness' evidence which was unfavourable

to him. There is no question in this instance

of having had leave to cross-examine on prior

statement. It is our submission that he would

be entitled to cross-examine the witness because

what he is doing there, of course, is merely

saying, "Well, you gave that version in court

but you gave a different version on another occasion."

That, in our submission, clearly would be

available to defence counsel and yet, of course,

the defence counsel would be - - -

DAWSON J:  You can attempt to shift the witness by showing

him something which is inconsistent with what
he was said to have said on a previous occasion.

But that is as I understand it, I may be wrong,

that is not what was being attempted to be done

here. Here you are trying to bolster the witness'

evidence in examination in-chief and to do so

in cross-examination by presenting him with a

statement which was consistent with the evidence

he gave on his examination in-chief. Am I wrong

in that?

MR SALMON:  No, Your Honour is right, but what I am putting

is that in the example I gave Your Honour you

would be doing the same thing:  you would be

bolstering the part of the witness' evidence

that was good for the cross-examining side by

referring him to something he had written earlier

which also tends to refute the bad bit of his

evidence.

Another matter which I must draw to

Your Honours' attention is the evidence about

the prior statement was elicited in-chief. The

witness had been cross-examined under the special

rule that applies to hostile witnesses, so that

it was elicited in-chief that he had said to

the police certain things. Therefore the evidence
was before the jury of that version and that

came out as a result of what had taken place

on the side calling the witness. The jury was

then in a situation where they had this sworn

evidence; he was cross-examined about another

document - - -

DAWSON J:  Be that as it may, what you are complaining

about - I just want to get this straight in my

mind - is the fact that counsel for the defence

were not allowed to put to the witness in cross-

examination the fact that he had made statements

on a prior occasion which were consistent with

the evidence which he gave in-chief?

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MR SALMON:	That is so.
DAWSON J:	Have you any authority to suggest that anyone can

do that,save in circumstances of recent invention?

MR SALMON:  Your Honour, the only authority about putting

prior consistent statements to the accused appears

in the passages which were quoted by His Honour

Mr Justice Fox from the textbooks and referred

to by Mr Justice Kelly in CLEMENTS case. But

those cases do not deal with this issue at all

because normally one does not get to the situation

where a witness called for one side is declared

hostil~ and is declared hostile on one version,

but it happens that defence counsel is aware,

or the other party is aware, of other statements.

So when I am not in a position to give authority

on the issue, that is not surprising, I would

submit. It is clear, in our submission, that

the authority that was quoted to prevent it was

irrelevant. The authority that was quoted by

the Federal Court by reference to Phipson and

Cross and the case of CLEMENTS, which was referred

to by Mr Justice Kelly, deal with the ordinary

situation which Your Honour has put to me. That

is, where a witness calling a party tries to

bolster his credit by a prior consistent statement

and there are set rules about that.

There is just nothing, in our submission,

which deals with the peculiar problem that arose

here. That, if one uses the normal rule that

a cross-examining counsel can cross-examine at

large provided that it is relevant or it

is capable of being made relevant, and it either

goes to an issue or goes to credit then, if it

turns out - I suppose I have to come to this

submission - that cross-examining counsel wants
to bolster the credit of a witness called by

the opposition, he is entitled to do so. It

is just not, in our submission, a case where

one has to look for the normal rule of a party

calling the witness and then trying to bolster

the credit.

(Continued on page 19)

C2Tl2/2/SDL	18	19/4/88
Humphries

DEANE J:  How did the Crown deal with his evidence? Did they

say that his evidence should be disregarded, or was

it suggested that his prior unsworn statement should

be-accepted as reliable?

MR SALMON: Well, I think it was accepted, Your Honour, that

the Crown could only deal with the prior unsworn

statement as being a matter which went to the credit

of the witness. It was at no stage - it appears,

from my reading of the appeal book and the transcript -

I have not actually looked at the Crown's address,
but the Crown accepted the proposition that the prior
statement was not evidence; it was a matter only which

detracted from his evidence.

DEANE J: Well, that answers my question. The Crown's approach

must have been that his evidence should simply be

disregarded.

DEANE J:  Your Honour, I also have my attention drawn to a

matter which touches on this; at page 367 in volume 2,

because the jury actually asked a question about it,

and I apologize, I was not aware of this, I concede.

However the Crown tried to deal with it, His Honour

certainly directed the jury at page 367, when the jury

returned and asked the question:

Can we use the record of interview made

by David Channell in corroborating

other evidence given during the trial?

And His Honour, in our submission, correctly directed

them on that.

DE}\NE J:	What, that there had not been a committal proceeding
in this case?
MR SALMON:	Oh yes, there had, Your Honour.

DEANE J: There is no reference, is there, to Channell's

evidence in the committal proceedings?

MR SALMON:  No, Your Honour. I must say I am not familiar with

whether, in fact, Channell was called at the committal.

But certainly there has been, so far as I read it,

no cross-examination of him or reference to what

happened at the committal, but I think my learned

junior was in the committal - - -

DEANE J:	Do not let me delay you, Mr Salmon.
MR SALMON:	My learned junnior did not stay in the committal

right through. Unfortunately, there was - or I

might just advise Your Honour now of what - I am

informed, Your Honour, that he was called at the

committal; he gave a version at the committal similar

to that which he gave at the trial on oath. He was

declared hostile at the committal and he was

cross-examined on his record at the committal, but

C2Tl3/l/VH	19
Humphries

it seems to be common ground between my learned

friend, Mr Temby, and myself, that none of that was

used in the trial one way or the other, although,

it is, of course - - -

DEANE J: Perhaps one should not wonder why it was that the Crown

called him?

MR SALMON: Well, I suppose a terribly cynical observer might

think that the Crown wanted to call him so that they

could do exactly what they did do and perhaps even

get the jury to a stage of asking the question which

is put on page 367 which, in our submission, of course,

emphasises the significance trying to neutralize

any effect like that by havi~ before the jury the

other statements.

Your Honours, I would no ue making any further

submissions on this point. accept what fell from

Justice Dawson that there is no authority and I rely

merely on the fact that a cross-examiner - there

is equally no rule of law applicable which would

prevent a cross-examiner from doing what the learned

defence counsel tried to do in this case. I now

turn to the,- I trust, briefly - to the scientific

evidence and to the inevitable effect of it. It is

clear that the evidence given about the findings of

the swabs taken from the vagina of the victim were

prima facie absolutely exculpatory of the accused.

The victim had sworn at page 56 in volume 1

that she had had no sex with anybody else around about

the relevant time. This question here is the nearest

that accused's counsel .ever got to putting to the witness

that she had sex with another man. On my reading of

the whole cross-examination, she was never in terms -

it was never in terms put to her that she must have

had sex with another man. The only question on the

issue is the one that appears at the top of page 56,

she having been asked whether she knew anything about

the_~esult of the tests taken of the swabs; she said

she did not know, and counsel for the accused said:

(Continued on page 21)

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Humphries
MR SALMON (continuing):

Cassandra, had you had sex with any man

either on that Friday night or very close

to that Friday night other than with

Terry?---No.

Are you sure about that?---Yes.

And then Mr Lalor asked and was allowed to ask

and it may be of assistance to us that he did ask:

Have you ever had sex before that Friday

night?---No.

So that it is our submission that the case really

was: did she have sex with someone else and, I

suppose, is there a reasonable doubt about whether

someone else left the semen there, bearing in mind

the scientific evidence?

The scientific evidence comes from three

witnesses. The first is the Crown witness,

Miss Clancy - - -

WILSON J:	Mr Salmon, did the accused give evidence?
MR SALMON:	Yes, Your Honour, he gave evidence.
WILSON J:	What was his story?
MR SALMON:	He denied, in terms, anything in the nature of sexual intercourse or anything of the sort.
WILSON J:	So it was not a defence of consent?

MR SALMON:  No, Your Honour. The accused was going to give

evidence and it may well be that counsel for the

accused was very wary of going beyond the question

that I have just read in case the accused who,

it is clear, had a very long record although nothing

anything like this but a very bad record, so that	it was not put any more than the oblique question
I have read to Your Honour but then, of course,
the accused gave evidence, absolutely denying any involvement at all and he had, in fact, denied
it in a record of interview with the police which was also tendered and there is absolutely no material in the record of interview or in the cross-
examination which suggests intercourse between the accused and the witness.

WILSON J: Yes, I misunderstood, perhaps, from the question

that you referred to and cited which seemed, on

one view, to accept that she did have intercourse

with Terry and he was asking if she had intercourse

with anyone else.

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Humphries

MR SALMON:  In the context, no doubt, everyone understood

what learned defence counsel meant but I agree
with Your Honour it might have been better

phrased. Mrs Clancy's evidence, the part I wish

to refer Your Honours to is in volume 1 at

page 156. She gave evidence of having examined

the swabs and having typed the victim's blood,
the victim was a type O secretor. She goes on
to say that on the swabs she found A and B blood group

substances and she says:

The A and B blood group substances could not

have come from Miss Simpson.

Now, since that time you have been made aware

of certain other data?---Yes, I have.

And what is that?---I was made aware of the

blood grouping of Mr Humphries.

And what blood grouping is that?---

Mr Humphries is a group B secretor.

And is that consistent with your finding - now this question, also, is perhaps not as clear

as it might have been but we submit that the meaning

is clear, she having said at page 156 she found A and B blood group substances and that she now

knew that Mr Humphries is a group B secretor and

the question asked:

And is that consistent with your finding from

the semen having originated from a group AB

secretor?---On the face of it it is not, no.

(Continued on page 23)

C2Tl4/2/ND	22	19/4/88
Humphries

..

MR SALMON (continuing): And then it seems to be assumed

that what she found, on the face of it, could not

be true because it goes on:

And when you say on the face of it, could

you-please explain that?---Because of the

condition that the swabs were submitted in,

I cannot discount the possibility that the

A and/or the B substances that I detected may have arisen from bacterial contamination

of the swabs.

And, Your Honour, the rest of Mrs Clancy's evidence

deals with the way in which she conducted the test

and whether or not that possibility of a contamination

of the swabs was something that was likely or whether

it was a mere possibility and I will not trouble

Your Honours by reading it becaus~ it is submitted
tha~ although Mrs Clancy was qualified to give

the evidence she was, the accused called two witnesses

whose qualifications, apart from the minor matter

that was dealt with in the Federal Court, were

considerable. They also deal with the likelihoods.

Dr Gutowsk~ at page 233 which is in the second

volume, phrases it in this way - I think it is

232 actually.

WILSON J:  The evidence begins on 231.

MR SALMON:  Yes, Your Honour. I was trying to find the precise

statement as to his view which I have noted on

my submission was on 233.

DEANE J: It is on 236 at the top of the page.

MR SALMON:  I am grateful to Your Honour. I can see what has

happened, I have used the handwritten note instead

of the proper appeal book pagination.

As I mentioned before, the most likely explanation

I would say by far is that the A and the B

substances detected in an inhibition test

came from an AB secreter.

That is, a male secretor?---It would have

to be, to be male for the semen, of course, yes.

Yes, it is the semen we are talking about?---Yes.

And then he deals with the other possibilities

and says - at the bottom of that page - when he

is asked about a false B group:

Well, fairly unlikely I would say.	I have
over eight years experience.	I have never
come across anything like it myself.	However,

C2Tl5/l/AC	23	19/4/88
Humphries

1n the literature that I have read, the sort

of common literature for forensic science,

then there is one example of that documented.

I should point out that the false B was detected

in this case by the inhibition test was only able to be picked up with some reagents, not

all reagents.

Now, that refers to this test being the one in

the forensic science literature - one example over

eight years - and he then deals with the other

possibilities and it is fair to say that he regards

all of them as unlikely and that his principal

view is that the most likely explanation is that

the semen came from an AB secretor.

Professor Boettcher deals with, I hope, at

page 246 - having been asked some questions about

his qualifications and about the methods used by

Mrs Clancy, he says, at the bottom of 245 in the appeal book:

As a result of Mrs Clancy's studies, she reported finding semen on swabs on three swabs and

that she came to the conclusion that the semen

donor was of blood group AB and of course
a secretal, that is, in his body fluids including

the semenal plasma there was both the A and

the B group substance.

Are you aware of the blood grouping of Mr Humphries?

---Yes. I have been informed through documents

that Mr Humphries is of blood group B.

(Continued on page 25)

C2Tl5/2/AC	24	19/4/88
Humphries

. .

MR SALMON (continuing): And then he is asked:

Thank you. Professor, in the light of

that knowledge, is it normal to have an A

factor in that conclusion which Mrs Clancy

arrived at, if indeed - I mav have

confused you with the ball of the question.

I will withdraw the question. What do you conclude from the conclusion of both A and B

in the swabs examined by Mrs Clancy?---My

conclusion is that this is not consistent

with being semen from Mr Humphries.

So, his evidence was straightforward there and he

then deals at some length with the possibility of

contamination and he gives. what we submit were,

good reasons for the unlikelihood of contamination

in this case. He says that the technique used was

relatively insensitive and he says that the semen

in Mrs Clancy's test was completlely inhibited

by all the reagents and he says that that establishes

that there was an appreciable amount of blood group

substance in the semen, et cetera. And it is, in

our submission,a case in which the scientificevidence of - or the possibility of contamination, although it

has to remain as a slight and - a possibility that

cannot be entirely discounted, the scientific evidence

is, when viewed as a whole and even accepting the

possibility which Mrs Clancy contends for, very strongly

favourable to the accused.

TOOHEY J:  Mr Salmon, do you have any complaint about the way

in which the trial judge directed the jury on this

aspect of the evidence?

MR SALMON:	We certainly do.
TOOHEY J:	I do not want to divert you from what you are - - -

MR SALMON: Well. I was goin2 to that straight awav. His Honour,

at page 363, firstly,did mention this, and in our

submission, put it to the jury in a way which was

frankly, incorrect. I should tell Your Honours that

His Honour in this case summed up by summing up on

the law, then summing up on the Crown case and then the accused case, then summing up the evidence, and
then went back to the scientific evidence. And so,

this is towards the end of his summing up. It was

really the last thing he dealt with. At page 363,

he - perhaps page 362 I should really start from: The Crown says something on the one hand, the

defence says something on the other. The Crown

says that the fact that there is both A and B

blood group substance on the swabs does not

necessarily mean that the semen cannot belong

to the accused. The evidence of Mrs Clancv,

C2Tl6/l/JM	25	19/4/88
Humphries

- -

according to the Crown, establishes that there

was a possibility that the swabs became

contaminated before they were analysed. They

were contaminated because they had not been

properly dried before they were placed into

these sealed containers. And so it was possible

at least that bacteria would grow or develop

on the swabs. And further. that bacteria does, on analysis, sometimes show up characteristics

which can be taken to be the characteristics

of A blood group substances; what has been

called, I think, in the evidence, false A

characteristics.

However - and this is what the defence relies

upon - Miss Clancy conceded that it was possible

that the semen on the swabs belonged to an AB

secreter -

well, one could say that "conceded" was not the

appropriate word, but -

and the accused, of course, was not an AB secreter,

but simply a B secreter, and therefore there was
a possibility that the semen did not originate
from the accused.

And this is one of the passages with which we find fault, if I may put it that way:

So you might think in the end, members of the

point is really equivocal. jury, really, that the Crown evidence on this

And, in our submission, the Crown evidence on this

point, properly approached, was favourable to the

accused, but left a possibility open. To describe it,

in our submission, as equivocal was not a fair or

even an accurate description of what Mrs Clancy or

Miss Clancy had said.

(Continued on page 27)

C2Tl6/2/JM	26	19/4/88
Humphries

- .

MASON CJ:  But you have to read on, have you not, to put

it in context?

MR SALMON:  Yes, Your Honour, and that, of course, is what

the Federal Court did:

It is consistent with innocence and

it is consistent with guilt, in the sense

that it is consistent with the semen

originating from the accused and it is

consistent with it not originating from

the accused.

Of course, Your Honour, that is, in our submission,

another way of saying that it is equivocal, and

I respectfully submit that if one looked at the

evidence it is much more consistent with innocence,

and therefore, by making the two versions equal, as

His Honour did there, he misled the jury.

MASON CJ:	But His Honour then goes on to put the accused's case, that the evidence is more favourable to the
accused.
MR SALMON:	That is so, Your Honour, bu4 in our submission,

if in the course of his summing up he quite, as it were,

downgrades the scientific evidence, calls it equivocal -

I agree that he was referring there to the Crown

evidence - then the scope for the jury to itself

disregard it is increased. It is true that he does go on and deal with it and point out why the accused

say that the contamination theory, if I may call it

that, is unlikely, but the basic premise was that the

accused needed to do that. In a sense the accused

started off with a good bit of evidence from the Crown

and only reinforced it in its own evidence, but the

way it is put to the jury the accused started off, as

it were, equal on the scientific issue, and that is

the way the jury should look at it.

Bearing in mind that the whole of the defence

case was that this scientific evidence - when I say the

whole, of course he relied on his own evidence too -

but the best part of the defence case, the part that,

in our submission, should have resulted in him getting

an acquittal was, in our submission, downgraded by

that treatment to which Your Honours havejustbeen

referred.	That point leads us on to the next
point in the outline of submissions.	The whole

defence case had to be that the accused had not had

intercourse with the victim, but that some other person

had. Now, I have to concede that when one looks at

the way in which the matter was treated by counsel for

the accused, both in the bit of cross-examination which

I have already referred the Court to, and in his

address, he really did not, as it were, emphasize

that that was the defence case but, on the other hand,

it is, in our submission, clearly raised in two parts

C2T17/l/HS	27	19/4/88
Humphries

..

of the address,which I have reffered to in the notes,

where he specifically refers the jury to the possibility

and the reasons why the victim may well by lying

about this issue.

They appear at page 302 point 3 and there are

some other aspects, but these are perhaps the strongest

points where he criticizes the veracity of the victim,

and the bit at 302 which I will refer Your Honours to

is this, in the address:

If you accept that I am putting, you

may come to ask yourself; how do you

know that she is a frank type of person

generally but that on this one occasion

she chose not to tell her parents

something important?

What he was referring to was that she went off to

stay with this friend in a caravan without telling

her parents the true circumstances in which the friend

was living with another man to whom they were not

married and the friend was apparently a young woman

not much older than the victim.

(Continued on page 29)

C2T17/2/HS	28	19/4/88
Humphries

--

MR SALMON (continuing):

In other words -

he went on to say -

how do we know that she has been frank with

us -

says -

the jury.

I am not quite sure what he means but I rely on

himsaying, "How do we know that she has been frank".

And, he also, again, raises her credibility at

page 308 point 9 when he gets much closer to the

issue, perhaps. He said:

I asked Cassie -

it is right at the bottom of 308 -

as I had to, "Have you had any intercourse

with anyone else?" Of course she said no,

and I cannot produce to you a male person

who is going to come in here and get in the

box and say "Yes, I'm an AB and I've had

intercourse her within the last whatever -

48 hours, say." I cannot do that.

And he then went on to say:

You can be quite sure if I could, I would

have done it.

One wonders why he needed to add that but he did.

It is our submission, then,that the defence

case, that is, the matter that the jury had to

consider when they came to look at this whole case,

have they a reasonable doubt that some other man
had intercourse with her and deposited the semen

found by Mrs Clancy, was raised by counsel for

the accused,although not in terms, but it was
never, never put to the jury by the trial judge

and yet it was, really, the whole defence case. It was what the scientific evidence had to mean and it was what, in our submission, the case was

really about but the issue, "Have you any doubt

as to whether this victim had had intercourse

with another man apart from the accused" was just

never put to the jury and that, in our submission, brought about a miscarriage of justice.

What I have been saying to Your Honours now,

that is, the criticisms of His Honour's sunnning up

C2Tl8/l/SH	29	19/4/88
Humphries

and, of course, to some extent, the matter of evidence
which we debated at some length a bit earlier, would

all, perhaps, give rise to an application for a new trial but, it is submitted that when one then turns to what I have put as the final point in the outline

of submissions, the net result of this appeal, in our

submission, should be finding that the verdict was

unsafe and unsatisfactory and that the conviction

should be quashed.

DEANE J:	Was His Honour asked to put that?
MR SALMON:	No, Your Honour. His Honour was not asked at the close of the Crown case, although I note in the
submissions that were put to the Federal Court that counsel who appeared on the appeal who was not counsel
at the trial, did submit that by the time the case was
over His Honour should have been asked to hold that
the verdict or rule that the matter should not go to
a jury but, in fact, it was not done by counsel for
the accused.

DEANE J: It is a bit difficult, is it not, when counsel has

carefully made sure he does not highlight the point.

The trial judge, as it were, takes his cue from that and then there is no request made for a direction on

the point for a court as far away from the trial as

this one is to say, "Oh, the trial judge should have,

as it were,said to them, 'Well, now, the whole of the accused's case means that not only is this girl lying

but that she has had sex with another man, that she

has sworn on oath shei:has not had'."

(Continued on page 31)

C2Tl8/2/SH	30	19/4/88
Humphries

-.

MR SALMON: I, of course, accept the force of what

Your Honour puts.

DEANE J:	I am just trying to envisage how you would react
if you were counsel for the defence and the trial
judge did that.
MR SALMON:	Your Honour, one could hardly complain because

there is no doubt that counsel for the defence,

a, drew attention to aspects of credibility of
the witness; b, relied heavily on the scientific
evidence which really only led one way, and in
those circumstances. although it does appear as if
counsel for the defence, as it were, deliberately did not
put the matter what we say is that counsel for

the defence had put it in a way which, perhaps,

I would not have done, and no doubt many counsel

in this situation would not have done, but

did not leave it so that His Honour could avoid

it.

Your Honours, although it might appear by,

as it were, what Your Honour called, "the careful

way the issue was avoided", as if it had been

done deliberately, it is our submission before

this Court that that was not what counsel was

seeking to do; it was just the way in which

he conducted the case enabled the criticism

to be made but not with any - in our submission,

there is absolutely nothing there, nor can one
think of a reason, why he would deliberately

refrain from putting it much more strongly in

his address.

I have attempted to explain to Your Honours

why he might have been very loath to put it strongly
while cross-examining the victim; the effect
of PHILLIPS' case is such that one can understand
counsel being very careful how far they should
go, particularly in this sort of case, where

the allegation clearly is that this woman not

only is a liar but, in addition, had had intercourse

with another person apart from that to whom she

admitted. Here was a case where the accused

had nothing to fear from what he had said in

his record of interview; was prepared, obviously,

to give evidence and deny everything - as he

did; and accordingly the difficulty for counsel

in cases of this kind of how far you can cross-

examine the victim was highlighted.

So it would, I submit that Your Honours

would see notn1ng deliberate - a deliberate evasion

of the real issue in the way he treated the victim.

I have more difficulty, I concede, in trying

to explain why he did not make the point clearer
in his address but I do submit that what he
did in his address was quite sufficient to raise

the point for the trial judge.

C2Tl9/l/SDL	31	19/4/88
Humphries

I would submit quite definitely that had

there been a deliberate intention not to raise
the point and the trial judge had done what

Your Honour Justice Deane suggests, he certainly

could not have complained. In the last part
of the outline of submissions I have set out

the various aspects of a case which should have

attracted the attention of the Federal Court,

we submit, when considering the principal issue

on the unsafe and unsatisfactory aspect.

I do not resile from the legal points that I

have argued already about the evidence and about the summing up and they are, in our submission, very relevant in considering the overall effect

of the evidence because if one examines the scientific
evidence in the way that I have attempted to
put to the Court, it was overwhelmingly favourable
to the accused and then, when one turns again

to the case for the Crown, one notices the various

matters which I have briefly set out in the outline

of submissions; Andrea Dawe was the witness

who was present, who was corroborating the victim,

but she, as had Channell, had at some stage

signed a statutory declaration. It is very brief

and it was, as it were, introduced by the Crown
and it is set out in the appeal book at page -

WILSON J:	What point are you addressing now, Mr Salmon?
MR SALMON:	The criticism of the only witness, Your Honour,

who gave evidence corroborating the victim as

to the events at the scene. Your Honours will

recall that there was the accused, the victim

and three others in the vicinity of the scene.

(Continued on page 33)

C2Tl9/2/SDL	32	19/4/88
Humphries

..

MR SALMON (continuing): One was not called at all. It was

said by a policeman that she could not be found.

One was Channell, about whom we have had quite

a lengthy discussion. And the last one was this

An~rea Dawe whose evidence was corroborating of

the victim's evidence but she had executed a

statutory declaration in which she said - it is

at page 330 in the appeal papers:

That Terrence Douglas Humphries did not rape

Cassandra on the 29th Nov 85.

She later, when asked about it, said she meant

to say "2 November 1985" that the statutory

declaration was given -referring to the night 1n

question and not some other night.

Your Honours, I have referred in these

submissions to the fact that Julie Rudd, who could
have corroborated the victim's case was not called,
that does not tell one way or the other but it
does not strengthen the Crown's case and the medical

evidence about the accused's condition which might

have normally been corroborative was not of much

assistance to the Crown's case once the fact of
another act of intercourse was the central feature

of the defence case.

TOOHEY J: Mr Salmon, you make the point, on page 4 of the

submissions, in paragraph 4:

Bearing in mind the accused~ case that another man had had intercourse with the

victim, the medical evidence of the victims
condition is not inconsistent with the defence

case.

but did the accused's case that another man had

had intercourse with the victim depend upon anything

other than the medical evidence?

MR SALMON: It depended on the scientific evidence as distinct

from the findings of a doctor who found some evidence

evidence that I am referring to in that paragraph was some evidence of an examination of the victim's vagina.

of soreness in the vaginal region of the victim.

TOOHEY J:  But the proposition that another man had had

intercourse with the victim, itself, derives, as

I understand it, entirely from the scientific

evidence?

MR SALMON:  Yes, Your Honour, I accept that. I mean, the

accused was not in any position to rely on anything

more than that.	He had no actual material about
another person.

C2T20/l/ND	33	19/4/88
Humphries

The other matters that I have referred to then I can deal with very briefly. The Crown case

is that the victim was assaulted and raped with

two other friends - I am referring there to

Julie Rudd who was not called and Andrea Dawe who was and with Channell standing by and then driven

ultimately to the place at which she was staying.

And then I merely comment that the case for the

Crown was not overwhelming, even leaving aside the medical evidence, and, of course, naturally,

when one looks at the evidence as a whole one has

to look at the accused's own situation and he had
denied the allegation both to the police and before

the jury.

I could just give Your Honours a reference

in the appeal book to the business of	the
statutory declaration of Andrea Dawe.	She is asked
at page 84 in volume 1:

You have never told anybody any different?---

No.

And you have never written anything any

different?---Yes, I have.

You have? What have you written which is

different?---It was a statutory declaration.

A statutory declaration? I show you a

document, Miss Dawe. Please look at this.

Now, do you recognise that document?---Yes.

Is it a statutory declaration?---Yes.

Sworn by you before a justice of the peace?

---Yes.

And then there was various talk about whether she

could be cross-examined about the statutory

declaration but, ultimately, it was, in fact,

tendered during the Crown case and that is how

it became an exhibit.

(Continued on page 35)

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MR SALMON (continuing):  The only purpose of reminding

Your Honours of that was to point out that the

only witness who was present who gave evidence

corroborating the victim had, on another occasion -

and it does not seem to have been explored as to

why - sworn a statutory declaration quite inconsistent
with that corroborative evidence. That, of course,

is part of the basis for saying that, all in all,

the Crown case was not an overwhelming one. Then,

when the scientific material is added to it, it
was a case in which, quite clearly, as is referred

to in MORRIS, there was evidence available to the

jury-, admissible evidence - which could lead to

a conviction. That, in our submission, is all the

Federal Court said, but notwithstanding that, this

was a case in which the Court of Appeal, in reviewing

the decision, should come to the conclusion that

the verdict was unsafe. Thank you, Your Honours.

MASON CJ:  The Court will briefly adjourn, in order to

consider the course it will take in this matter.

T21 AT 11.42 AM SHORT ADJOURNMENT

:0

UPON RESUMING AT 11.48 AM

MASON CJ:  We need not trouble you, Mr Temby. The Court is

not persuaded that this case raises any question of

general principle, nor is the Court persuaded that

Mr Justice Fox's conclusion that there was no

miscarriage of justice was incorrect, or that the

verdict-was unsafe or unsatisfactory.	The application
is therefore refused.

AT 11.49 AM THE MATTER WAS ADJOURNED SINE DIE

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