Koushappi v The Queen

[1999] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P24 of 1998

B e t w e e n -

JOHN CHRIS KOUSHAPPI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 2.56 PM

Copyright in the High Court of Australia

MR S.W. O’SULLIVAN:  I appear for the applicant.  (instructed by Kuscevich & Associates)

MR R.E. COCK, QC:  I appear with my learned friend, MR J.W.M. FOULSHAM, for the respondent.  (instructed by the Director of Public Prosecutions (Western Australia)

KIRBY J:   Mr O’Sullivan.

MR O’SULLIVAN:   This application, your Honours, arises out of a trial which related in four convictions for what were basically child sex offence offences.  The matter then went on appeal to the Court of Criminal Appeal in Western Australia.  Count 1 on the indictment involved a sexual assault charge and that count was overturned on appeal.  The Court of Criminal Appeal refused to overturn the remaining number of counts, all of which were for sexual penetration of a child who, at the time, was five to six years old and at the time of trial some 10 years old.  The issues that are raised on which we base the special leave application are arising out of what we say is the deficiency in the direction of the trial judge in relation to a number of matters which arose in this particular trial in relation to the particular complainant being the child of the age he was; His youth at the time; the fact that there was no corroboration of his complaint; that there was delay and unspecified allegations in the sense of the time at which the alleged conduct was said to have occurred, that being, depending on your view of it, some three to four years. 

The normal direction on delay was given by the learned trial judge which is required under section 36BD of the Western Australian Evidence Act and that was, we would way, one sided, in the sense that it gave the statutory side of the direction but did not go on to say that the jury would be able to use the delay as a factor in their considerations when they were looking at the credibility of the child.  This was very much a case where it was the word of the child against the continued denial of any such activity by the accused.

KIRBY J:   This is the principle in Longman, is it?

MR O’SULLIVAN:   Yes.  Certainly in Longman and picking up particularly ‑ ‑ ‑

KIRBY J:   And in many cases since.

MR O’SULLIVAN:   That is so, yes, your Honours.

KIRBY J:   Longman is a frequent visitor to the Court and the Court has had to deal with the issue on a number of occasions including recently.  So that there is no reason why we would revisit that in order to say what has been said again.  The only question is whether a miscarriage of justice has occurred in this case that invites our attention.

MR O’SULLIVAN:   Yes, and we say ‑ ‑ ‑

KIRBY J:   Now, relevant to that question, though not determinative of it, is the fact that, I think, your client was represented at trial by senior and experienced counsel, is that not correct?

MR O’SULLIVAN:   Yes, that is right.

KIRBY J:   No application for redirection was made by counsel who had the advantage of his experience and who knew the trial, how it had been conducted, would have been closely attending to the jury and no application was made for redirection on the lines you are now advancing.

MR O’SULLIVAN:   Yes, absolutely, your Honour, and ‑ ‑ ‑

KIRBY J:   Now, why, in those circumstances, should we bring the matter up again?

MR O’SULLIVAN:   We would say that when that issue was raised in the Court of Criminal Appeal, it was disposed of by the court and, in particular, by Justice Ipp who wrote the principal judgment, really, without any further explanation, a reference to a previous case from which he gave a similar ruling, Varney v The Queen.  This appears at page 55 over to page 56 of the application book, your Honours, and it seems that all that has happened is that his Honour has taken the fact that there was no request for redirection or raising of this issue and simply said, “That is the end of it”.  Now, in our submission ‑ ‑ ‑

HAYNE J:   In the particular circumstances of this matter, why should the absence of request for redirection not be a matter of some considerable significance?

MR O’SULLIVAN:   Well, your Honour, what we say about that is that there are authorities and one of them is referred to on our list, the case of Omarjee, the Victorian case, where it is said that one should be flexible about this sort of thing and whilst there is really – perhaps, it is putting it too highly to say that there is a presumption, but one looks at it to see whether there is, in fact, an injustice done in the circumstances where, for whatever reason, that question has not been raised, and we say this is a case ‑ ‑ ‑

HAYNE J:   Can I interrupt you and put this to you?  Longman does not erect an absolute rule that in every case such a direction must be given.  The rule is more qualified, is it not, namely, that if it is necessary for the fair trial of the accused, such a direction must then be given.  Is that right?

MR O’SULLIVAN:   Yes, and that is even more qualified by section 50 of our own Evidence Act where it is, in a sense, turned around the other way.

HAYNE J:   If then the rule is not absolute, and if experienced counsel running the trial does not ask the judge for such a direction, why should an appellate court say that, unasked for, the trial judge should, nevertheless, have given such a direction?

MR O’SULLIVAN:   Because, your Honour, in the circumstances of this case, the person who suffers at the end of the day, of course, is the accused in the case, the applicant here, and for whatever reason, if there is a situation that has developed which we say has developed here, where just to use the first of the examples - and that is that there was no balancing of the section 36BD direction - that where that occurs, had that been raised in the case, for example - the cases referred to in Victoria, for example, of Miletic, of Omarjee, of Young, it would have of itself been a ground of appeal, a ground upon which the convictions would be overturned.  When this applicant comes to be dealt with in this State, no credence is given to that.  Is it simply because, one asks rhetorically, that counsel has not raised it?  If it is an issue which is sufficient to ground an appeal in Victoria, why should it not be in Western Australia, whether counsel raises it or not?  We do not know in this case ‑ ‑ ‑

KIRBY J:   But any barrister who is looking at the law reports will see that just as at trial level these cases constitute a very significant part of the work of trial courts, so, at appeal level, in courts of criminal appeal and in this Court, this is a substantial question that is being raised all the time.  The last volume of the Australian Law Journal Reports, for example, would have a couple of them – three or four of them, dealing with this.  Now, in these circumstances, any counsel who appears in a criminal trial who believes that there is any possibility of a direction on Longman will be alerted by repeated instances of cases in this Court and in the Court of Criminal Appeal of the duty to raise it.

But in this case, very experienced counsel did not appear to think that it was necessary and, in those circumstances, why should we substitute a view of our own that it would have been desirable and, indeed, was necessary that it be given, given the way in which the Longman rule is expressed?

MR O’SULLIVAN:   Yes.  Well, looking at it – this is not one of those cases where one could identify a forensic advantage in the failure to make application for such a direction, so, it falls somewhere else where you are looking at a situation where someone has, for whatever reason, failed to do something.

KIRBY J:   We had a case recently in Brisbane where counsel’s address was five minutes at the end of the case and he had not sought a Longman direction, and the court allowed the appeal instanter and made orders but this is not the case that we have before us now.  We have a very experienced trial counsel who is very familiar with the criminal law and very familiar with the Longman rule and for reasons which appeared appropriate to him, I would not infer that he overlooked Longman, not at all.  Therefore, in the running of the case, and attending to this jury and these facts, he did not think it was necessary to raise the Longman issue and seek a direction.

Now, you are really inviting this Court to say every time somebody of that experience does not raise it, somebody else can come up to this Court and say, “Well, we have to go back to square one, because Longman was not asked for”.  If Longman is to become compulsory, it has to be made compulsory by Parliament, not by courts.

MR O’SULLIVAN:   Yes.  We are not saying that, we are saying that what you need to look at, really, is the effect at the end of the day and we are saying that in this particular case, there is a demonstrated difficulty, a demonstrated need for that sort of direction, the Longman sort of direction, to be given.  There is a demonstrated need which is accepted in other courts for the balancing of the section 36BD direction which did not occur.  Now, we do not have, as in Miletic I think it was, the case, an affidavit from trial counsel saying this is why counsel made the decision he made, or did not make a decision, as the case may be.

The difficulty is, as we put it to the Court, that you cannot – it is unjust to this particular applicant where you can see other grounds that might have permitted his appeal to be successful, where you can see them, to simply say, “Counsel was very, very experienced”.  Does it become a matter, to some extent, of luck then as to whether you have experienced counsel or not experienced counsel?  Really, the emphasis ought be, I suppose ‑ ‑ ‑

KIRBY J:   It is not a matter of luck, it is a matter of the Court seeking to ascertain for itself whether there has been a miscarriage of justice.  We do not need another Longman Case.  We have had at least 10 since I have sat on this Court.  That is only four years.  So that, we do not need another case to clarify what Longman means and, therefore, the only basis you can get it up is if you can show that there is a miscarriage of justice.  When you come to ask that question, then if you have an inexperienced counsel you would react in a different way, but if you have a very experienced counsel who, perhaps, has been concerned about the nuances of the suggestion that the complainant’s mother might have influenced the way the evidence came out, that he might think that it had been left perfectly by the trial judge and it is not a matter of luck, it is a matter of looking at the whole of the circumstances.

MR O’SULLIVAN:   Yes.  Well, we would say that no one could say that properly if one looks at this particular case.  That the difficulties that developed within the case, things like the first complaint, in accordance with the evidence of the boy, was made in response to a question by his sisters, “Has Uncle John done anything rude to you?”, and then he goes and complains to the mother.  It was a solicited complaint.  That is another one of the things that the courts have over the years seen as a feature.  There is clear evidence of the interference by the mother with the evidence.  That is referred to, although it is dismissed somewhat, in the passage of evidence that is quoted by his Honour Justice Ipp at pages 51 through to 52, and it is quite clear that the mother did have talks with the boy, on his evidence.  She, by the way, minimised that, one would say, in her evidence, but one ‑ ‑ ‑

HAYNE J:   The general thrust of much of the defence case was that the child had been affected by the conversations with the parent, was it not?

MR O’SULLIVAN:   Yes, your Honour.

HAYNE J:   And those are not matters that are to be picked up by a Longman warning, are they?

MR O’SULLIVAN:   Well, I am not saying it is totally a Longman warning, what I am saying is that Longman is part of it but what is as much to the point ‑ ‑ ‑

HAYNE J:   Trial counsel may well have wanted to focus attention upon this theory of the case that the child had been affected by mother, rather than have the jury’s attention taken away from that question to whether delay had prevented the accused gathering evidence that might have been a good answer to the claim that was made.  The thesis of the defence was “mother influenced child”.

MR O’SULLIVAN:   That was part of it, your Honour.

HAYNE J:   A legitimate tactical position.

MR O’SULLIVAN:   Certainly, your Honour, but what should have happened, we say, is that the judge then should have given his own authority to the submission that counsel had obviously made that the jury should consider the possibility of contamination of the evidence by the mother.  There was one particular instance of inconsistency in the evidence which was very clear, which had to do with the boy talking about whether he had pooed his pants, and his pants had been left behind and he had been in the bath for that reason, and whether the mother had been told about all of that.  When the boy talks about that, he says, yes, his mother discussed that with him prior to the first trial, but not between the first trial and the second trial.

Now, these are things where, when that evidence surfaced for the first time in the second trial, it was clearly contaminated on the evidence by the mother’s discussion with the boy.  That is something the judge should have commented upon and given his judicial authority to.  When he does not do that, he deprives the accused, as he is then, of a legitimate opportunity of acquittal and that is something which should have been put into the direction, that the judge should have spoken of the relative youth of the child.

KIRBY J:   You do not think the jury would have noticed that?

MR O’SULLIVAN:   Well, of course they noticed it, your Honour, but in the context of this case where the inconsistencies in the evidence are coming up, they are related, to some extent, to the boy’s view in relation to count 2, for example, that the offence took place when he was six or seven years old in grade 1 or 2.  In fact, for that to be an absolute statement of fact, the offence could not have taken place at the place that it was said to have taken place because the accused was no longer living there.  His Honour, on appeal, said, “Well, it did not matter much, it was only a matter of a few days”, but, nonetheless, what is occurring is that the boy is demonstrating that he has a particular difficulty. 

You are not allowed to say that all children cannot recall things, but you can say that this boy was experiencing some difficulty.  There is, of course, also, the question that your Honour has already raised and that is the question of the effect of the delay on the preparation of, or possibility of, any defence.  That was never put.  So, all of these things, we say, add up to, in a very real sense, the proposition that this jury was not, at the end of the day, in a position to give this man justice.  That is what happened and when the matter went on to the Court of Criminal Appeal, it was not rectified, and when the Court of Criminal Appeal went through the matter, as they did, or as Sir Justice Ipp did and Chief Justice Malcolm and the third judge

agreeing with it, that was all done without there being the benefit of the court directing itself as to the dangers of accepting any of this sort of evidence.

It was all done on the basis – the appraisal of the evidence – that there was no need for any such direction simply because counsel had not asked for it.  Now, at the end of the day, the applicant says, “Well, that is not good enough”.  Counsel can be wrong, even experienced counsel can be wrong and there is sufficient, we say, within this case to indicate that that was the case, that there should have been a direction sought, or directions of this nature sought, and that the absence of them has contaminated the result.  They are our submissions, your Honour.  We cannot take it any further.

KIRBY J:   Yes, thank you, Mr O’Sullivan.  Mr Cock, we have had quite enough help from you earlier in the day, we do not need your further assistance in this case.

MR COCK:   Thank you, your Honour.

KIRBY J:   The applicant was represented at trial by experienced counsel.  No application was made that the trial judge give the jury a direction of the kind described in Longman v The Queen (1989) 168 CLR 79. The principles applicable in relation to such directions, have been revisited by this Court several times in recent years. They would not justify a further re‑examination in this case. Having regard to the evidence adduced and the conduct of the trial, the Court is not persuaded that a miscarriage of justice has occurred or that the verdict was unreasonable. Special leave is accordingly refused.

AT 3.17 PM THE MATTER WAS CONCLUDED