Lefroy v The Queen

[2005] HCATrans 885

[2005] HCATrans 885

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P84 of 2004

B e t w e e n -

ROBERT JOHN LEFROY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 12.31 PM

Copyright in the High Court of Australia

MR A.O. KARSTAEDT:   May it please the Court, I appear for the applicant.  (instructed by Max Crispe)

MR K.P. BATES:   May it please the Court, I represent the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

HAYNE J:   Yes, Mr Karstaedt.

MR KARSTAEDT:   Thank you, your Honours.  Your Honours, the applicant in this case faced six charges on an indictment alleging sexual offences against one particular complainant between 1972 and 1975.  In this case there was a delay in complaint and in prosecution in the order of 30 years.  In our submission, there was a defective Longman direction.  There were material contradictions of the complainant’s evidence by the Crown witness, Ritchie.  There was no reference to this in the judge’s summing up either in the context of the Longman direction or otherwise ‑ ‑ ‑

HAYNE J:   Sorry, there was no reference to what?

MR KARSTAEDT:   To the material contradictions by the witness, Ritchie, either, as I say your Honours, in the context of Longman or in summing up.  The jury acquitted on four out of the six charges, they acquitted by way of majority verdicts, convicted on counts (3) and (4) by way of majority verdicts.  We submit further there was a defective direction in relation to alleged admissions made by the applicant in two contexts:  firstly, in the context of Longman where the learned trial judge, we say, directed the jury erroneously in relation to those alleged admissions; and, secondly, by saying that they were admissions of the actual charges themselves, whereas we say at most they went to the question of tendency or relationship evidence.  We say that by reason of those matters in summary, the verdicts were unsafe and unsatisfactory and/or that there was one or more miscarriages of justice.

Your urs, in relation to the first ground that the verdicts were unsafe and unsatisfactory, the first contention is that this was very similar to the case of Jones v The Queen.  It was a case where there was no proper way of distinguishing between the evidence given on the counts on which the jury acquitted and those in respect of the counts on which the jury convicted.  There was no supporting evidence in respect of counts (3) and (4) in relation to which the jury convicted.  There was nothing in the way the evidence was given that would justify the distinction.  It was unlike a case such as MFA v The Queen where the counts in respect of which the jury convicted were clearly distinguishable from the other counts because there was supporting evidence on those counts and not on the counts for which they acquitted, and if I recall, also because in relation to the counts on which the jury acquitted, there had been a Jones v Dunkel direction by the trial judge that an adverse inference may or should be drawn against the Crown for not leading evidence by people who were apparently eyewitnesses to those matters.  That is the first basis on which we say the verdicts were unsafe and unsatisfactory, that there was no proper basis for distinguishing between the complainant’s evidence on the various counts.

The next matter we rely on is the unexplained delay of something in the order of 30 years from the time of the alleged offences.  A further matter is that the complainant’s evidence was entirely uncorroborated and unsupported and, fifthly, the evidence of the State witness, Ritchie, which is summarised in the judgment of Justice Murray in the CCA which we say materially contradicted the complainant’s evidence both with reference to the general relationship or tendency evidence but we say it also had relevance to the specific counts on which the jury convicted because the complainant’s evidence was that the offences the subject of counts (3) and (4) occurred at the complainant’s house.  The complainant also said that there had been numerous other instances of sexual offending at that house on occasions when Ritchie was present and actually saw this taking place and further that there were occasions when Ritchie himself was the victim of sexual offending at that particular place. 

Ritchie’s evidence was that this was not so.  Ritchie said that he never witnessed any sexual offending on the complainant at that place nor was he himself the victim of any such offending by the complainant.  So we say for those reasons the verdicts were unsafe and unsatisfactory.  The CCA – and this is with reference to ground (b) – indicated that the fact that the complainant’s partner, Mr Watkins, was not available to give evidence.  Can I just say there that the evidence of the complainant was that they had broken up in 1994 and he had no idea where that person was any more, but the CCA suggested that that might be a factor which would provide some basis for distinguishing between the verdicts on counts (1), (2), (5) and (6) on the one hand and the guilty verdicts on counts (3) and (4). 

Your Honours, if I could perhaps leave the Markuleski direction point for last and move on to the question of Longman which is ground (d) ‑ ‑ ‑

HAYNE J:   Is the direction so far as it was given the direction that appears at pages 41 over to 43 of the application book?

MR KARSTAEDT:   That is correct, your Honour.

HAYNE J:   What is missing from that, do you say?

MR KARSTAEDT:   Essentially, there are three difficulties with the Longman direction.  The first one is that the learned trial judge erroneously, we submit, directed the jury that the alleged admissions made by the applicant in 1985 reduced the prejudice, reduced the forensic disadvantages suffered by the applicant because of the delay in complaint.  The evidence of the complainant in this regard was that in 1985 he went to the complainant’s house and confronted him with allegations in a very general sense saying, “You did things to me”.  The trial judge directed the jury that this was a balancing factor which reduced the prejudice and that they may find as a result of that that the prejudice caused by the delay was not so great.  What her Honour said to the jury – and this appears at the foot of page 43:

If you accept Mr Reidy’s evidence that . . . he confronted the accused man at that time about the offending, then the accused has had earlier notice of these matters and has known of them for a considerable time.

He then goes on to say that therefore the prejudice would not be that great. 

This was erroneous, we say, because, even if these admissions had been made, which was in dispute, but even if they had been made, it would in no way have enabled the applicant to meet the forensic disadvantages that he faced.  There was no detail even on the complainant’s version as to when or where the so-called offending occurred.

CALLINAN J:   There was no charge brought at that time so the occasion did not arise for him to explore a defence.

MR KARSTAEDT:   Yes, your Honour, and even if these things had been said to him, he could not have even begun to try and get alibi evidence or anything of that nature because even on the complainant’s version there were no specifics given.  So we say that was the first error in relation to the Longman direction.

CALLINAN J:   There is a further problem.  It does not meet the problem of forensic disadvantage because the occasion to explore what defences he may have had simply did not arise; that does not arise until he is charged, until he know he is going to be charged.

MR KARSTAEDT:   Yes, your Honour. 

HAYNE J:   What do we make of page 42, lines 9 and following:

I warn you that you must exercise considerable care before you accept the evidence of the complainant.  With such a long delay it could be –

not would be –

unsafe to convict the accused on that evidence.

coupled with page 44, lines 15 and following:

Always bear in mind the forensic disadvantage that these very old charges place on the accused man.  He can do little in his defence but deny the offences as he has done.

MR KARSTAEDT:   Your Honour, insofar as that went, we say that the way her Honour expressed herself was probably adequate, although if one looks at Longman perhaps it could have been put somewhat more emphatically.  Even accepting that that aspect of the direction was correct, nevertheless it was watered down and diluted. 

CALLINAN J:   Why does not that cure an imperfection, if imperfection it be, in the summing up by reference to the warning, as it were, or the intimation of the possibility of a charge 10 years afterwards?  Perhaps I am not putting that very well.  What his Honour has put to you may be a complete answer to the imperfection of saying that the delay is tempered, in effect, by the fact that he was confronted 10 years after the last of the offences.

MR KARSTAEDT:   Your Honour, it is a relative matter.  The jury would have been left with the understanding based on that direction that the disadvantage to the accused is not particularly great in this case.  It is at most a disadvantage caused by, say, a 10-year delay which might, given that Mr Watkins, for example, would still have been available in 1985, that the disadvantage is really not so great.  I would submit that a jury would justifiably be more cautious, much more cautious, if there has been a 30‑year delay than if there has been a 10-year delay.  We would submit that where you have a delay in the order, as occurred in this case, of 30 years, watering down a Longman direction must be viewed in a serious light. 

Your Honours, can I just indicate that that evidence of the complainant about this alleged confrontation was also dealt with by the trial judge at application book page 45, line 55 commencing over to the next page, page 46, where her Honour again said - and this is in the context of admissions - that what he was alleged to have said related to the specific charges.  If one looks at page 46, her Honour says:

Now, the crown says to you that . . . those words . . . are not the words that a person would say if . . . the offences had not happened.

In the following paragraph starting with line 10, that the Crown’s submissions:

those words . . . impliedly admit that the . . . offences were committed -

So in four different places her Honour has indicated to the jury that what was allegedly said related to the offences themselves.  The jury is left with that understanding and the jury is left with the understanding by reason of the Longman direction that that reduces the prejudice to the accused in some way.

HAYNE J:   Against that perhaps, page 46, lines 19 and following seem to me to be something that might need to be taken into account.  What are we to make of that?

MR KARSTAEDT:   Her Honour did tell the jury that they have to be satisfied that those words were said.

HAYNE J:   And that:

the only reasonable inference open . . . he must have been involved in some sexual offending . . . If there’s any other reasonable inference open on those facts, if you find those words are ambiguous . . . then you couldn’t rely on that as an implied admission.

MR KARSTAEDT:   Assuming the jury found that those words had been used and that they had been used in a way that entitled them to treat it as an admission, the consequence would follow by reason of the earlier direction that the jury could treat that as lessening the prejudice.

HAYNE J:   Yes.  If the jury formed the view that the only reasonable inference from what they accepted to be said was an admission of sexual offending, where does that then take your argument?

MR KARSTAEDT:   Your Honour, the other four references by the trial judge to the words relating to the offences themselves would have left the jury with the understanding that these were admissions of the offences, not admissions just generally in relation to relationship or tendency evidence.  In the context of the last ground which deals with this particular aspect, we submit it required the learned judge to give clear directions as to the use they could make of that evidence in the context of Gipp and other cases dealing with relationship evidence to the effect that if the jury found that these words had been used and that they are to be understood in the way suggested, then that does not entitle them to go to the conclusion that the offences were committed, but that is only relevant to the question of relationship.  It required a very clear direction as to the use they could make of that evidence and no such direction was given.  That is in the context of the question of admissions.

HAYNE J:   Just generally about these aspects of your contentions, was there any request at trial for any relevant redirection of the jury?

MR KARSTAEDT:   Your Honour, in relation to the Longman aspect where her Honour said this was a balancing factor that would result in the prejudice not being so great, defence counsel objected to that direction being given in advance of it being given during discussions with counsel prior to the summing up.  In addition, after the direction had been given, counsel again objected and the learned judge declined to change the position, so that was clearly given twice.  As to whether there was an objection to the aspect that the judge ought to have explained that these words did not relate to the offences themselves but only to relationship evidence, I do not recall there being any specific request in relation to that. 

Your Honours, we submit, in grounds (e) and (f) that the summing up ought to have referred to the evidence of Ritchie.  As I have indicated, there was no reference to that in the context of Longman and, as I understand, Longman does say that in the context of warning a jury where there has been a long delay, deficiencies in the trial case should be explained.  Ritchie’s evidence was not referred to in the context of Longman or at any point at all in the judge’s summing up.  Ritchie’s evidence, we say, was very significant.  It is summarised very briefly but, we submit, accurately at page 82 of the application book where Justice Murray starting at line 45 said:

But the complainant did give evidence of going to the applicant’s house on numerous other occasions when the applicant would involve the complainant in sexual activity . . . On some of those occasions Ritchie would be present at the house, but often not in the room where the sexual interference occurred.  However, there were occasions when Ritchie did see things of a sexual nature done to the complainant and when the complainant saw such things done to Ritchie.

Ritchie, on the other hand, simply gave evidence that although he had been a classmate of the complainant, he had never seen anything of an inappropriate sexual kind done to the complainant

there or at the applicant’s house and the applicant had never interfered with him in a sexually inappropriate way.

That was not mentioned at any stage by the learned judge, although her Honour did refer to certain evidence that went against the defence.  If I could just indicate, for example, on page 49 of the application book at line 40 – this is in the context of going through the various counts - her Honour spoke about the evidence of Lorna Dick and in the earlier paragraph about Mrs Annie Gerrard who gave evidence that perhaps went to some extent against what the complainant said on certain aspects.  Her Honour did not decline to summarise the evidence but no reference at all was made to Ritchie’s evidence which we submit was an omission that did occasion a miscarriage of justice.

Your Honours, I have dealt with the admission point briefly.  As far as the Markuleski direction is concerned, in this particular case there was evidence which we say could well cause the jury to have doubts about the complainant’s evidence generally and that is, firstly, the evidence in relation to what happened allegedly on other occasions at his house, and that is the issue of the contradictory evidence given by Ritchie, and also the fact that in respect of counts (1) and (2), although the complainant said Ritchie was in the class at the time these things occurred, there was no evidence by Ritchie dealing at all with this aspect, Ritchie being a witness called by the Crown.  Ritchie did not positively say these things did not occur but was not asked whether they had occurred and gave no evidence to that effect.  Thank you, your Honours.

HAYNE J:   Thank you, Mr Karstaedt.  We need not trouble you, Mr Bates.

The applicant submits that the trial judge was in error in referring in her summing up to a reduction in the possible prejudice, by reason of long delay in bringing the charges which the applicant faced, on account of a confrontation that was alleged to have occurred 10 years after the conduct forming the basis of the charges against him.  In that confrontation one of the complainants accused the applicant of sexual misconduct.  The applicant ultimately was not charged with offences until a further 20 years after the confrontation that had occurred and some 30 years after the alleged offending.  The applicant further submits that the direction given by the judge in intended performance of the obligations referred to in Longman’s Case fell short of what was required. 

The reference to the confrontation that had occurred some years after the offending may have been inappropriate if only because, taking the form it was alleged to take, it could not have significantly affected the forensic disadvantage that the applicant confronted at his trial on account of the long period that elapsed between the alleged offending and the date of institution of the proceedings against him.  Nonetheless, reading the charge as a whole, we are not persuaded that it is arguable that even if account is taken in favour of the applicant of what is said to have been this inappropriate reference to the intermediate confrontation, the jury was left in any doubt of the forensic disadvantage that the very old charges placed on the accused man.

As for the other complaints which the applicant makes, we are not persuaded that it is arguable that those complaints or the complaint to which I have particularly referred have led to an arguable case of miscarriage of justice in this case.  It follows that special leave is refused.

AT 12.57 PM THE MATTER WAS CONCLUDED