Johnson v The Queen

[1997] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M9 of 1997

B e t w e e n -

HAROLD ROBERT JOHNSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 12 NOON

Copyright in the High Court of Australia

MR G.R. FLATMAN, QC:   May it please the Court, I appear for the respondent with MR O.P. HOLDENSON.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions(Vic))

BRENNAN CJ:   There is to be, I understand, no appearance by the applicant.

MR FLATMAN:   I understand that to be so, your Honour.  I think we may have created a unique situation by us appearing, but we are here.

KIRBY J:   Do you know if that is his election or because legal aid is not available to him?

MR FLATMAN:   I do not know the answer to that, your Honour.  I believe it is privately funded but I do not ‑ ‑ ‑

KIRBY J:   May I just ask:  there is a reference in the argument to Kribs in the Supreme Court of Canada.  There was something I read that suggested that Kribs does not conform to the way the principles have been elaborated in Australia.  Do you have any help that you can give on that point?

MR FLATMAN:   No, I do not believe that that really is the submission put by the argument from the applicant.  Rather, I think the argument was directed towards suggesting that it could be distinguished on its own facts.

KIRBY J:   Which is the passage that I am thinking of?

MR FLATMAN:   Page 338 of the application book, 3.7 of the applicant’s argument:

The Supreme Court of Canada considered the matter in Kribs.  There the complainant had been raped in a secluded spot.  After crossing a number of fields, she reached the highway where she hailed a truck.  She complained to the truck driver.  When he asked her for a kiss, she left the truck.  At trial, the truck driver was untraceable.  The Court held that the evidence of complaint was correctly admitted.  However, Kribs is of dubious authority since it was held (contrary to the position that pertains in this country) that evidence of complaint is receivable inter alia to establish absence of consent.  In any event, it is submitted that the decision ought be restricted to its peculiar facts.

KIRBY J:   Do you know does Kribs say that you may receive complaint to establish absence of consent, because that would not be the law in this country?

MR FLATMAN:   That is not the law in this State or in this country.

BRENNAN CJ:   But does Kribs say it?

MR FLATMAN:   I do not know that Kribs ‑ ‑ ‑

BRENNAN CJ:   We need not trouble you any further, Mr Flatman.

The question which the applicant seeks to raise in this application for special leave to appeal is whether the evidence of recent complaint by a complainant in the trial of an accused charged with sexual offences is admissible if the person to whom she made the complaint is not called.  That evidence was admissible to forestall any inference that might have been drawn adversely to the credit of the complainant if she had not complained.  The appeal would not succeed and therefore special leave is refused.

AT 12.05 PM THE MATTER WAS CONCLUDED