Keevers v The Queen

[1995] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S123 of 1994

B e t w e e n -

THOMAS JOSEPH KEEVERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 11.21 AM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear for the applicant.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R.N. HOWIE, QC:   May it please the Court, I appear with MS M.F. LATHAM for the respondent Crown.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR ODGERS:   May it please the Court, it is submitted that there are four matters of general importance raised by this application.  I will deal with them in sequence.

The first is the meaning of the term, “making a complaint at the first reasonable opportunity”.  In my submission, the meaning of that term turns on he rationale of the doctrine of “recent complaint”.  The facts of this case were that the complaint in question was made at least nine months after the alleged assaults, and it was admitted on the basis of the reason which was given by the complainant for that delay which was that she did not know the conduct was wrong.  The trial judge proceeded to admit the evidence on the basis then that it was made at the first reasonable opportunity; that she claimed that she had discovered it only just before she made the complaint.

It is the applicant’s submission that since evidence of complaint is admitted for the purpose of enhancing the credibility of a complainant in a sexual case, it can only be admissible if it is capable of doing that.  In my submission, it is only capable of doing that if the circumstances in which the complaint is made are consistent with the complainant’s allegations.  The requirement that it be made at the first reasonable opportunity is designed to provide a circumstantial indicator of enhanced credibility.  It is for that reason that the requirement is imposed, to provide a circumstantial basis for saying that it has enhanced credibility.  There was nothing in the objective circumstances of the making of this complaint which enhanced the credibility of the complainant.  The only suggested basis was the assertion by the complainant that she did not know it was wrong until she had been told by Amanda.

BRENNAN CJ:   And that she then made the complaint.

MR ODGERS:   And that she then made the complaint.  But, in my submission, that is a classic case of circular reasoning.  How can that assertion enhance her credibility unless you accept the truth of the assertion?  There was no circumstantial basis for doing so.  There was no other evidence to support that assertion and, therefore, in my submission, the evidence does not enhance the credibility of the complainant.  It follows, in my submission, that on a proper application of the principle of “first reasonable opportunity”, understood in the context of the rationale for the doctrine, that in the circumstances of this case the complaint was not made, and could not be said to have been made, in circumstances which enhance the credibility of the complainant or were made at the first reasonable opportunity, taking into account the need for the objective circumstances to demonstrate that.

BRENNAN CJ:   That is an interesting argument, Mr Odgers, but the credibility that has to be enhanced is the credibility of the complainant in respect of them making the complaint, is it not?

MR ODGERS:   With respect, your Honour ‑ ‑ ‑

BRENNAN CJ:   In respect of the allegation of the matter complained of.

MR ODGERS:   Yes.  It is not the mere fact of consistency of the complaint with the allegation at the trial which is sufficient for admissibility, because the law says that it must have been made at “first  reasonable opportunity”.  Your Honours, I have great difficulty, I must confess, in quite understanding how all of these rules fit together, but the requirement of “first reasonable opportunity” appears to be premised on the assumption that the complaint is made in circumstances which enhance the credibility of the complainant’s testimony at the trial.  My submission is that there was nothing in the circumstances of the making of the complaint which did that because the only suggested basis for admitting the complaint as made at the “first reasonable opportunity” was the assertion of the complainant that she did not know it was wrong.

The classic situation in almost all the cases of “first reasonable opportunity” you are looking at the objective circumstances and you say, “Yes, soon after the incident - very soon after the incident, she made” - it is usually a she - “she made a complaint.”  That is an objective circumstance and it permits a conclusion that it enhances the credibility of the allegation at the trial.  That was not the situation here.

BRENNAN CJ:   It is not infrequent, is it, that one sees evidence of a recent complaint admitted when the complaint is made, not to mother, for example, but to the girlfriend, because mother might have had a particular view about the subject matter.  Is that not the explanation that is given by the witness of the reason why the first possible opportunity regarded objectively was not taken?

MR ODGERS:   In those circumstances, in that situation, your Honour, the court is able to look at the objective circumstances and make a judgment for itself whether or not it was unreasonable to have expected the complainant to have spoken to, let us say, a taxi driver or to a police officer, in some cases, or to a relative.

BRENNAN CJ:   That is why I took the example of mother; because that is something which, really, the court has no knowledge of, apart from that which the witness imparts.

MR ODGERS:   In my submission, in that situation, if the objective factor that it was a mother does not demonstrate that there was a reasonable explanation for delaying, then again, consistent with my argument, it would have to follow that unless there was corroboration in some way of the complainant’s assertion, her explanation, then it would also follow in those circumstances it was not made at the first reasonable opportunity.  I am not aware, with respect, of any cases where it has been held that the failure to make the complaint to a mother did not prevent it being the first reasonable opportunity if it is subsequently made to a sister, for example, but I may be corrected.

The second matter, it is submitted, of general importance is that even if my first submission is not accepted that the doctrine, itself, is entirely anomalous, the historical justifications for the admission of complaint in sex cases no longer exist.  It is premised on a false and sexist assumption that if, usually, a woman fails to make a complaint at the first reasonable opportunity, it is assumed that that impacts - it reduces the credibility of her evidence or her allegation.  It necessarily impairs her credibility.  The evidence of complaint is admitted for the purpose of meeting what seemed to be that legitimate assumption or that legitimate line of reasoning.  It is admitted from a perceived need to forestall that kind of attack.  In my submission, that assumption is not one which the common law should continue to permit to be accepted.  And it follows that if it is ‑ ‑ ‑

DAWSON J:   You could not stop the defence cross‑examining about lack of complaint?

MR ODGERS:   No, certainly not and, of course, my submission is in those circumstances the law of evidence permits the prosecution in those circumstances to meet the attack.  Of course, in this case, as was made clear, the defence ‑ ‑ ‑

DAWSON J:   Not to meet the attack, necessarily; to launch an attack.  I am sorry I took - - -

MR ODGERS:   I am sorry, your Honour, I am not suggesting that the defence should not be permitted to cross‑examine about absence of complaint.  What I am submitting is, and my response would be in those circumstances where such an attack is made, the law would permit prosecution to respond, for example, in re‑examination of the complainant to bring out evidence that in fact a complaint was made if one was made.  What I am putting is that there is a difference between saying we have a rule of the common law which is premised on a general assumption that a failure to complain permits - necessarily impairs credibility on the one hand - and another principle which is that in a particular case it may be legitimate for the defence to argue that circumstances - failure to complain - do impair credibility.  But that is a different thing.  There is a different thing between saying a rule of common law is premised on a general assumption about, effectively, all women - - -

DAWSON J:   It is not a general assumption, but it is relevant.

MR ODGERS:   With respect, if that was the case, the rule that excludes all prior consistent statements would not be legitimate.  That doctrine to which this is, in my submission, the only exception, is premised on the assumption that a consistent statement is superfluous, it adds almost ‑ ‑ ‑

DAWSON J:   I follow.

BRENNAN CJ:   Mr Odgers, there is this difference, is there not, which one can readily perceive without any overtones of sexism in it:  the complainant in this class of offence is usually in a sense of relative powerlessness in comparison with the accused if the crime was, in fact, committed?  It usually happens in isolation and to then expose the prosecutrix as she usually is to cross‑examination on the basis that it never happened, and to prevent her from giving evidence that “I told mum straight afterwards”, seems to me to leave the prosecutrix in a very exposed position.

MR ODGERS:   In my submission, in cases of non‑sexual assault, such alleged offences often occur with only two people being present.  It is never thought that a victim, or alleged victim, or complainant is put in an exposed position because he or she is not able to say that, “I complained to the police immediately after the incident.”  It is simply not an issue that people concern themselves with.  Indeed, in my submission, that is precisely what should happen in offences of this type.  True it is that a child is not necessarily in the same position as an adult but the critical question should be the credibility of the child complainant at the trial and it is a distraction, in my respectful submission, to investigate the issue of complaint.

DAWSON J:   If you were to succeed in your application, you are really asking this Court to reform the law in respect of complaints.

MR ODGERS:   Certainly.  I am asking this Court ‑ ‑ ‑

DAWSON J:   It has shown enthusiasm in some directions for the reform of the law but that is going a fairly long way, is it not, in this area?  It is a matter in which opinions may legitimately differ and perhaps it would be a matter for legislative attention, if attention were warranted, rather than this Court to deal with it.

MR ODGERS:   Ultimately, your Honour, my only response can be that if the Court accepts that there is an argument that the doctrine is based on a completely outdated, outmoded, unacceptable process of reasoning, then it is for this Court to reform the common law.  Certainly it may be that the legislature may or may not see fit to do so but, in my submission, in an exceptional case this Court should do it.

BRENNAN CJ:   You need to get leave to reopen Kilby v The Queen, do you not?

MR ODGERS:   The curious thing about Kilby, your Honour, is that it was really only, as I understand it, obiter.  Maybe I am mistaking the situation but the question in Kilby was whether or not ‑ ‑ ‑

BRENNAN CJ:   Pretty powerful obiter.

MR ODGERS:   Pretty powerful obiter, yes.  I accept that, your Honour.  The Canadian Supreme Court in Timm’s Case indicated at page 401 of that judgment that they would be prepared to reconsider this doctrine.  I will take your Honours to that page.  It is 59 CCC (2d) 396, at page 401, and at point 5.

Much of this disagreement and uncertainty is, in my opinion, the result of our considering the admissibility of such evidence as an exception to a general exclusionary rule, whilst what is in fact exceptional is the granting of special probative value to the silence of an alleged victim of a sexual offence.  Most scholars and many a Judge have in the past explained the historical origins of the rule and attempted, with relative success as far as I am concerned, to rationalize the singling out of that group of victims complaints as being exceptionally admissible.  There are today suggestions that the need for the rule is doubtful and should be reconsidered.  We have not been invited by the parties to do so, but I should like to add here that, given the proper opportunity, we should seriously reconsider the soundness of some of the assumptions that are made in order to justify the rule.

My submission is that this Court should follow that lead.

Turning to the third submitted basis or matter of general importance:  evidence was admitted at the alleged confrontation between the mother of the complainant and the applicant in which she allegedly put the complaint to him and he denied it.  It is my submission that that evidence was simply inadmissible and that there was no basis for letting it in.  The Court of Criminal Appeal justified the admission of the evidence on what I submit is a fundamental error.  The Court of Criminal Appeal accepted that the evidence had no evidential value but they held that it was admissible to prevent speculation by the jury which might be harmful to the prosecution case.  In my submission, there is no such doctrine. 

Certainly, if the defence chooses to make something of it in the trial then it would be perfectly open to the judge to admit the evidence in those circumstances.  But, to allow in inadmissible evidence simply to prevent speculation as this Court of Criminal Appeal in New South Wales has done in other contexts is, in my submission, a fundamental error, a matter of very great general importance, and one in which this Court, in my respectful submission, should clarify the law.  True it is that - and I am sure this will be brought out, will be mentioned - there was no direct objection to the admission of the evidence of the confrontation but, in my submission, the objection that the defence counsel made at the beginning of the trial to all reference to the 1980 complaint necessarily imported an objection to the reference that was made by the complainant’s mother to it when she allegedly confronted the applicant.

It was a matter which prejudiced the applicant considerably because not only were there no directions given to the jury on how they could use the evidence, it also resulted in a side issue on whether the confrontation had, in fact, occurred.  That may well have been decisive in this case.  There was no technical corroboration but the jury were invited, in determining whether or not they accepted the complainant, to consider all the other evidence.  They were invited to conclude that one or other of the mother or the applicant must have been lying.  In those circumstances it was, in my submission, inevitable that they would have used, if they did so conclude that the appellant was lying about the issue, that to conclude that the complainant was telling the truth.  In my submission, in those circumstances, it cannot be said that the matter did not prejudice the applicant.

The last matter that is sought to be raised is in relation to the Court of Criminal Appeal’s determination that the conviction was not unsafe.  This was dealt with in the application book at pages 61 to 62.  Very briefly, the Court of Criminal Appeal referred to an earlier determination by a differently constituted Court of Criminal Appeal, that a conviction for the same offence was not unsafe.  Then Justice Hunt said at line 10 on page 62:

It was concluded in the previous appeal that there was no basis for holding that, if the trial had been duly conducted in accordance with the law, the jury ought to have had a reasonable doubt as to the appellant’s guilt.

DAWSON J:   This Court has dealt with that question very recently, has it not, in a similar sort of case in Re M?

MR ODGERS:   Yes, but there is an interesting question, your Honours:  given the test that it is appropriate for a justice in a Court of Criminal Appeal to consider what he or she believes the situation is, to determine whether he or she has a reasonable doubt, in my submission, it must follow necessarily that such a judge should not consider, let alone rely on, the opinion of another judge that it is not unsafe.  In my submission, the error that was made here is that if in fact it was an objective test, “What would a reasonable jury have thought?”, then it may, perhaps, be permissible to consider what a differently constituted Court of Criminal Appeal might think.  But, if the ultimate question is, “What do I think?” ‑ ‑ ‑

DAWSON J:   I do not think that is what M said, is it?

MR ODGERS:   With respect, your Honour, as I understand M, the Court said that it is appropriate for a judge to determine whether or not he or she has a reasonable doubt.  That does not determine the issue but it is nonetheless an appropriate thing for the trial judge to do.

DAWSON J:   The question is still whether it was open to a reasonable jury to reach the conclusion without reasonable doubt. 

MR ODGERS:    Certainly, your Honour.

DAWSON J:    So, in the end it is an objective test.

MR ODGERS:    It is ultimately but it is appropriate for the judge to consider what he or she thinks, whether he or she has a doubt.  In my submission, how can that be done effectively if a judge is deferring to another judge in, a fortiori, a different case where, in that case there was an unsworn statement.  In this case there was not.  I have no further submissions.

BRENNAN CJ:   Yes, thank you, Mr Odgers.  We need not trouble you, Mr Howie. 

This case raises, in substance, two questions.  The first is whether the complaint made was, in truth, a recent complaint and admissible on that account.  That raises a question of fact but does not warrant a grant of special leave.  The second question is whether the established rule admitting evidence of recent complaint
 should be abolished.  The legislatures in Australia have been concerned with the evidence admissible in sexual cases but the rule now under consideration has not been amended.  There is no occasion for this Court now to revisit the law on the subject set out in Kilby v The Queen (1973) 129 CLR 460. The other points relating to the admission of particular evidence and the safety of the verdict do not warrant a grant of special leave. Accordingly, special leave is refused.

AT 11.44 AM THE MATTER WAS CONCLUDED