Jones v The Queen

[1995] HCATrans 61

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M74 of 1994

B e t w e e n -

BRIAN KEITH JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 12.22 PM

Copyright in the High Court of Australia

MR G.J. THOMAS:   If the Court pleases, I appear for the applicant.  (instructed by A.I. Crockett, Director of Legal Aid (Victoria))

MR J.D. McARDLE:   May it please the Court, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ:   Mr Thomas.

MR THOMAS:   If the Court pleases.  This application for special leave is on two bases:  the first is that the verdict is so unsafe or unsatisfactory that in the interests of the administration of justice, it ought not to stand; and secondly, the second basis is that the provision to a child complainant of details of past offences by this applicant was a feature of the case such that a consideration of the wider concept of a miscarriage of justice is required by this Court.  It follows, in the way that that second basis is put, that the provision of such material should attract from this Court a finding that a miscarriage of justice occurred.

Perhaps I can turn firstly to the first argument.  In the application book the matters that the court below considered and other matters that it did not consider that it is submitted it ought to have done are the basis of the unsafe or unsatisfactory basis for this application.  Perhaps I can quickly go to the bases or the matters upon which this part of the application is based.  First is this, that the evidence of the victim, complainant, was that of a child and was unsworn.  Of course it follows, because of the changes to legislation, there is no need for corroboration.  But nonetheless it is submitted that that was a matter not considered by the court below that should be taken into account in weighing the evidence to consider the unsafe or unsatisfactory ground.  In short, what is submitted is this:  a finding that a child has not the capacity to understand the nature of the oath is a finding that there is a reduced capacity in that child and that reduced capacity is a matter for consideration, it is submitted, on the question of the evidence being unsworn.

The second matter that I would go to is this:  the evidence was uncorroborated.  Again, corroboration is not required, but the Court is aware that in fact a warning was given by the trial judge, and that was considered by the court below, of course.

GAUDRON J:   Was there not some corroboration in the plea of guilty to the other matter?

MR THOMAS:   That would be equivocal, it is submitted, your Honour, and would not reach a state where it could be considered corroboration, it is submitted.  It certainly has never been contended for, either at trial or at the court below, and it is submitted that in the context of this case it would be considered equivocal and not corroborative.

DEANE J:   Did it appear whether the plea of guilty was in relation to what the child said had happened on the particular occasion or that it related to a completely unrelated occurrence?

MR THOMAS:   It was  not clear at the trial, your Honour, but I can inform your Honour that it in fact related to a separate instance to the instance under consideration.

DEANE J:   It had nothing to do with the series of events on the particular day?

MR THOMAS:   No.  Not only is the evidence uncorroborated but it is in direct conflict on a critical point in the child’s evidence, it is submitted, to that of a witness called by the Crown and that is the child’s father.  The child gave evidence that it was because the applicant was staying at the home at Doveton, a Melbourne suburb, that he could fix this offence as occurring.  Now, the Crown led from the child’s father evidence directly to the contrary, that he never did.  That becomes important because the complaint about the applicant was made as a result of police going to the applicant, and subsequent to the applicant making a complaint, as he said at the trial, about all that happened at Doveton, that is the sexual offences which occurred at Doveton.  So that not only is there no complaint, and that is a matter that needed to be considered, needs to be considered by this Court, it is submitted, not only was there no complaint at that point, it was a question of a complaint being made about all that had happened and a subsequent complaint being made about the applicant after an approach from police.

DEANE J:   Mr Thomas, can I ask you this:  at the bottom of page 93 in the judgment of the Court of Criminal Appeal there is a statement:

Upon his release, the applicant, at Taylor’s invitation, stayed for a couple of weeks at Taylor’s house -

Where did their Honours get that from if what you say is ‑ ‑ ‑

MR THOMAS:   They got that from the evidence of the boy.

DEANE J:   I see.

MR THOMAS:   Perhaps while I am on that, your Honour ‑ ‑ ‑

DEANE J:   That answers my question.

MR THOMAS:   So that the complaint about the applicant comes after an approach by police.  It is not as if that complaint was directly before - or proffered to the police on the approach to the victim because the victim said that while he could speak to some extent about the applicant, that he required time to think about what took place and he would try to think about what took place in the meantime to make a statement subsequently.  That is about five months after the approach.  Now, that in turn becomes important because the child victim was talking about dreams in cross‑examination, not being properly able to distinguish between reality and dreams at time, especially about what happened at Doveton, not able to work out what was a dream and what was not, and he gave evidence of a difficulty with memory as to what took place.

Now, just so that it is clear what is being said about the facts, he gave evidence that in fact in the past, in statements to police, he had confused Robert Henderson who, according to the father, had lived at Doveton with the applicant.  I will just indicate to you that all of that is not within cross-examination.  In re-examination he is asked about what was his memory as to what took place at Doveton in relation to the applicant he had called Brian.  In re-examination at 37 he is asked:

You said that Brian lived at Doveton; you just said that a moment ago.  You said also, in answer to Mr. Thomas, that you have trouble remembering sometimes?---Yes.

Did you have any trouble in September when you made the statement in relation to Brian, about what he did to you?---Yes.

Now what is submitted is this, that given the fact that he told the court in evidence that he had rehearsed his evidence on a substantial number of occasions, the trouble with memory, the delay in complaints, the confusion between Henderson and the applicant, is overlayed to some extent by the use of the rehearsal of the evidence.  It is submitted here that that rehearsal goes to the question of the jury’s look at the witness, that is, it reduces or discounts to some extent the benefit the jury has had as against an appeal court in assessing the evidence.  It is not as if the rehearsal is with one person; it appears to be, I think, the victim nominated five people that he had been practising his evidence prior to giving it.  So that it is submitted that that feature is important, that is the jury’s look is no doubt an issue that this Court needs to consider in considering this application but it is submitted that, just as in Morris where it was seen that the recollection of an alcohol-ridden man might improve with the lack of alcohol, the overlay of the practice is a feature of this evidence that allows a Court of Appeal to discount.

I do not stop there because here the victim has demonstrated a very good ability to invent allegations that turned out to be false against people, knowing that they would be arrested, and that is demonstrated by the statement he made about Hainey, his step-father, and two people, Tony and Paul, in the full knowledge that the police would at least talk to the men and he thought Hainey would be arrested.  That was withdrawn.

Added to that is the fact that he was separate from his mother with whom he wanted to live when he made the first statement.  Subsequent to the statement setting out all that happened at Doveton, he was living at a children’s home and had worked out that he needed to withdraw the statement against Hainey to live with his mother, according to the evidence, and it was at that point that the police approached him to make a statement about the applicant.

I have summarised effectively the matters that I submit go to the first of the bases for this application.  It is submitted that this is to a high degree unsafe or unsatisfactory.  I know I need to meet the fact that it is rare, unusual for such an application to succeed on this particular ground.  I submit there alone, looking at the evidence, this Court should at this point see sufficient in the material to at least go beyond this point.

Now, can I just add to the mix, because it is obvious the way I have put the case before the Court that it is a cumulative effect that is relied on here, the cumulative effect of all these matters.  If you add to it what I submit is a special feature here of this case, and that is the police going to this complainant child and telling him that the applicant is effectively a notorious child offender, prior to a complaint being made, that feature is such that the wider concept argued for should switch in.  I am trying to submit that while it is not clearly defined in the authorities, it is submitted what it is that is being talked about in Davies and Cody and in M’s Case, the formulation in Davies and Cody that has been adopted by various members of this Court and, most recently in M’s Case, would cater for this kind of situation.

There have been a couple of formulations - attempts by members of this Court to identify what might satisfy a wider definition of miscarriage of justice than the unsafe or unsatisfactory ground, based on an appreciation of the evidence and what a jury might find.  There have been a couple of attempt at that and the sort of matters that have been raised to support this feature perhaps would be the failure to provide the defence with a witness or failure by the prosecution to call an exculpatory witness when the prosecutor had that witness available to him or her.

DEANE J:   An awful lot of the strength of what you say about the boy changing his story and the police giving him information and so on is dissipated, is it not, by the fact that the jury had before them your client’s admission that he had sexually molested this little boy? I mean, it is really a bit like lightning striking twice to say that the police told him this about the applicant and thereby stirred up one allegation of a terrible act of sexual abuse and it is just by the way to say that when the facts emerge the person against whom the allegation was made had in fact been sexually abusing him.  I mean, it provides the whole context of the case thereafter.

MR THOMAS:   Your Honour, I do not shrink from that.  I understand the thrust of your Honour’s question, of course.  But I submit it is to be placed on the debit side.  Where I might part company, your Honour, is the strength or weight to that proposition that fell from your Honour, that I would submit of course it is a matter that needs to be taken into account, but not sufficiently to defeat the application on this particular ground.  The applicant ‑ ‑ ‑

DEANE J:   Except again, and I do not want to delay you, but your saying that would have more weight in the Court of Criminal Appeal exercising the function entrusted to them than it does when you reach here and say to us, “Oh, you must interfere because the Court of Criminal Appeal has simply gone obviously wrong in exercising its function.”

MR THOMAS:   What I say about that is this, your Honour, that when you list the sort of factors that I have listed against the child complainant, if I can put it that way, that that takes it into the exceptional or rare case that this Court should consider.  Your Honour, I can spend a lot of time over it, but effectively I cannot do it any better than that, that that is what I must say and do say to you.

I am concerned about that light, your Honour. I am wondering if I can just develop the wider concept of miscarriage of justice, the Davies and Cody point.  What the Crown says is this, in their answer, that this is similar to a decision any counsel must make in terms of, perhaps, where police harassment is alleged, that you take your chances, effectively, when an

applicant has prior convictions.  In my submission, that is just not right.  The proper analogy might be this:  where a court is told by the Crown that they have harassed - that is police have harassed an applicant in this case, it is not a question of a conflict of evidence that needs to be determined at all here.  What is submitted on the page of a deposition is this, that it is all the Crown - or at least the Crown’s witnesses, between them - that is the information is passed by police to a complainant at a critical time, it is submitted, for this application.  Not only that, when that is done it is beyond the reach of defence counsel because to cross-examine a victim on the basis that  “You were told that this man is a notorious child molester” or is an offender in some manner or form simply alerts the jury to what is feared by every defence counsel, that is the past history of offences, importantly in this case, a notorious past offender.

And not only that, the court itself has difficulty in dealing with it and it may be beyond the reach of the court, because the strength of a warning about the victim’s evidence under those circumstances must necessarily be hidden from the jury.  That is, if a trial judge says, “Look, be careful about this witness” or “I warn you that you should look very carefully before convicting”, the basis for that is just not available to the jury. 

I see the light has counted me out, your Honour.

MASON CJ:   It has.   Thank you, Mr Thomas.  The Court need not trouble you, Mr Mardella.

The Court is not persuaded that there was any error of principle on the part of the Court of Criminal Appeal.  The application is therefore refused.

AT 12.44 PM THE MATTER WAS CONCLUDED