Longman v The Queen

[1989] HCATrans 263

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl0 of 1989

B e t w e e n -

JOHN HENRY LONGMAN

Applicant

and

THE QUEEN

Respondent

For filention

BRENNAN ACJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

Longman

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 1989, AT 9.18 AM

(Continued from 23/10/89)

Copyright in the High Court of Australia

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BRENNAN ACJ:	Gentlemen, I trust you understand the purpose of the matter being mentioned this morning.	It is to

inquire whether there are any passages of the
transcript.-copies of which, I gather, you have been

kind enough to make available to the Court.-in the

proceedings before the Court of Criminal Appeal to

which you would wish to refer in support or in

contradiction of the proposition that the argument

that was raised here was raised before the Court of

Criminal Appeal.	Mr Miller, do you wish to
point to - - -

MR MILLER:  Yes, if the Court pleases, I wish to make some

references if I may. I would respectfully submit

the transcript shows that the question of whether

or not there should have been a general direction,

not necessarily a true corroboration direction, was

fairly and squarely raised before the Court of

Criminal Appeal, and the passages, Your Honours,

if I could just refer to them are first at page 3 -

would Your Honours wish me to take you to the pages

or just give you the references?

BRENNAN ACJ: Just the references will be sufficient, I think.

MR MILLER:  Yes. Page 3, page 5, pages 8 to 9, 12, 13, 18,

to to how it was put by way of final submission

20 22, and then by way of reply at 40 41. summarize

to the Court of Criminal Appeal. At pages 20-21,

Your Honours, it was fairly and squarely put before

the court in these terms: at the foot of page 20:

So, Your Han0urs, th@ argument then

for the appellant in this case boils down to these two propositions: first of all, if it is appealable to come to this court

and complain that this was an exceptional

case in which, notwithstanding the provisions
of section 36BE of the EVIDENCE ACT some

direction should have been given, then we

would respectfully submit it should have
been.	I appreciate the difficulties -

I then said -

with that submission.

Alternatively, because, as I have

identified from the trial judge's charge

to the jury, there was no attempt to

stress the necessity to be positively

satisfied of the version given by the girl

before the accused could be convicted there

has indeed been a miscarriage of justice by

reason of his conviction. At the bottom of

the trial judge's charge was a determination

on his part to pitch only the complainant's

testimoney against the appellant's and to

make it a contest of credibility.

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Longman	27/10/89

And on the next page:

Several references that I have made make
that quite clear, and in my respectful

submission when you think that these were

incidents that occurred 20 to 26 years

beforehand -

and this was the learned Solicitor's point in

argument on Monday, that this had not really been

raised -

with no complaint at the time, it is

very difficult to see how the case could

have been left to the jury without some form

of direction along the lines that I am

submitting.

So, I think, Your Honours, that sums it up. And the

other references I have given you were all towards

that final submission.

BRENNAN ACJ:  Thank you, Mr Miller. Mr Solicitor?

MR PARKER:  If it please Your Honours, could we start briefly

by reminding Your Honours that neither in the grounds

in the original notice of appeal before the Court of

Criminal Appeal nor in the two grounds remaining

after that original notice was amended was either

the age of the complainant at the relevant time or
the lapse of time since the offence raised as a matter
requiring specific direction nor was it raised that the
f~ilure to give either. of those directions or
directions as to those matters had led to a miscarriage

of justice.

Before the Court of Criminal Appeal the grounds

raised the statutory issue - that was the first ground -

and the second ground was th$ lack of a direction as

to the danger of convicting on the evidence of the

complainant alone. Before this Court, the four grounds

raised in the affidavit in support of special leave,

three of them deal with the statutory point. Only

(c) does not turn on the statutory point, and that is

at page 165 to 166 of the papers. It raises "the

evidence of the complainant alone" point.

The proposed grounds to this Court if leave were

granted, (a) and (b) are the statutory point;	(d)
introduces into "the evidence alone" point a new

element, that is, the time lapse since the relevant

conduct, raising or changing, in our respectful

submission, fundamentally the issue. Even then that

ground as now formulated does not raise the age of the

complainant at the time of the offence. And there is

in ground (c) an entirely new issue foreshadowing an

argument, if leave is granted, as to the adequacy of

the direction as to credibility.

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Longman

Now, against that background we, I am afraid,

read the argument before the Court of Criminal Appeal

in a different light from that submitted by my learned

friend. The first reference on page 3, in our

respectful submission, raises two matters and they

are clearly directly related to the two grounds before

the Court; the need either for a statutory corroboration

direction or some other direction, the groun~ that -

and, in our respectful submission, in that context

is clearly refe~ring to the other 8round, that is, a

direction as to the danger of convicting on the

evidence of the complainant alone. Page 5: the passage

is dealing with a submission under the statutory point,

the need for a corroboration direction under the

statutory point. It raises, as matters of fact, the

points now in issue but the submission is directed to
the statutory issue. Page 9, again, his submission is

directed to the statutory corroboration direction point.

Page 10, in our respectful submission, again, that

submission is directed to the statutory corroboration

point.

On page 13, it is again the statutory corroboration

direction that the submission thus far, apart from the

introductory comment on page 3 which canvassed both

grounds, has gone then dealing with the statutory

corroboration issue.

McHUGH J: Well, what about back on page 5 about point 2 on the

page where he says:

were convicted ..... or second, without

being persuaded beyond a reasonable

doubt of the truth of the girl's account

in the strongest possible terms.

What about that? Is that not putting the direction

that Mr Miller now seeks or says should have been

given?

MR PARKER: Well, I can only start, if it please Your Honour, by

referring to the context which starts on the preceding

page with a specific reference to the "corroboration

direction". Can I accept for a moment that there is

there in half a sentence an extension of that

proposition - - -

McHUGH J: Yes.

MR PARKER:  - - - to point up what follows later in the transcript

as to how that is developed.

TOOHEY J:  You can see how the two matters may have become

blurred because - although I have not a copy of the

Act in front of me - the subsection that is peculiar

to this State which precludes the judge from giving

the standard direction unless, as I recall, the

circumstances so dictate lets in an area of

debate which bears both on the subsection and, to some

extent, on the separate point.

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Longman

MR PARKER:  Yes. It may, as a matter of fact in a particular

case, of course, Your Honour, and I would not question

for a m0ment that that is not the position here.	My
concern is with the criticism that was levelled on

Monday at the Court of Criminal Appeal for failing to consider this further issue of age and delay and our

respectful submission is that that occurred because it

was not put to them that they should as a distinct

issue from the corroboration under the statute point.

At page 14 it appears that the submissions have

moved to the second ground and it is done in the context

of going through the transcript but in the first

full paragraph on that page there is a reference to

what Justice Brinsden said in SHAW's case:

"Here you have a conflict between the

complainant woman on the one hand, and

the appellant on the other. You must

be satisfied postively," beyond reasonable

doubt, if you like - but stressing the

need to have accepted her evidence and

her account of the incidents that occurred

and to be so positively satisfied before

conviction.

In our respectful submission, that is the start of the

development of ground 2 and from beginning to the end

it is put in terms of a direction that the jury should

be positively satisfied and it is done there at the

beginning and at the end by reference to

Mr Justice Brinsden's reasons for decision in SHAW.

Some of Your Honours are more familiar with SHAW

than I am.	I have only managed to get hold of the
application book this morning.	It was argued before

Your Honours, or some of Your Honours, earlier this

week. But I have available, if it would be of use to

Your Honours, the reasons of Mr Justice Brinsden in

SHAW but if I could just read into the transcript the

material passage at page 19 of his reasons.	They
were page 124 of the application books before this

Court this week.

In my view his Honour was correct in not

being satisfied that in the circumstances a

warning was justified. In any event in effect

he gave a very strong warning to the jury on

two occasions that they should not convict

unless they were positively satisfied of the

truth of the girl's evidence, irrespective of

what they thought of the father and his

evidence.

And Your Honours will see the words "positively

satisfied" and that is the therre of the whole of the

submissions, in our respectful submission, that follow.

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Longman

And the direction referred to at pages 91, 94 and

96 of the SHAW book do not at any point go to the fact that there was a delay of some years between the offence and the complaint et cetera, but simply

make the point, "You have a credibility issue, you

may think that you cannot accept the accused's
credit, but that does not mean that you must convict.

You must then analyse the complainant's evidence and be positively satisfied on that beyond reasonable doubt before you can convict." And in our respectful

submission, the Court of Criminal Appeal were quite

justified in understanding all of these submissions

to be seeking such a direction and that explains

entirely the reasons of Mr Justice Rowland which

deal with just that point, pick up the passage in the judge's charge where he gave to the Court of Criminal

Appeal's satisfaction such a charge and therefore

the second ground of appeal in this matter was rejected.

Just continuing on with the transcript quickly

for Your Honours. At page - after 14 where there is
a reference to a direction about "positively

satisfied". At page 16, in the middle of the page:

"Who do you believe? It's a simple

line ball credibility issue."

I am in the middle of the paragraph there.

That's really what His Honour is saying,

and it's the absence of any attempt to

stress that they had to be positively

satisfied of this girl's testimony

before they could convict the accused

which, in my submission, mars the

direction that was given.

At page 17, over three-quarters of the way down the

page, in the middle of that last paragraph:

His defence is a complete denial of the	entire story, and there it is. It's	left really, as I put it, line ball;
credibility issue - do you believe her,
do you believe him? There's no repetition
there of the need to ensure that you may not accept his testimony, but you must nevertheless remain convince.cl beyond reasonable doubt - entirely satisfied,
whatever you like to say, of the testimony
of the complainant.

Page 20 marks the high-water mark in that it is the one specific reference in the argument to the issues

that are now raised strongly before Your Honours, the
age and the time delay, but the reference is in this

context: at the top of page 20, line 6 or 7, the

submission starts with:

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Longman

Now, there, Your Honours, in my respectful

submission, it was incumbent on the trial

judge to say, "But don't forget, it is

necessary that you should be positively

satisfied" - as Brinsden J put it in

SHAW's case -

then follows a submission - mention of the time delay.

That direction, which was given by

Judge Healy in the SHAW case, although

not professing to be a direction under 36BE,

but an independent direction, in my submission,

would have cured the problem -

and the submission as I have indicated to Your Honour

was one simply that you cannot convict just because

you reject the accused. You must go and be positively

satisfied of the evidence of the complainant.

The next paragraph:

I would adopt what Brinsden J said in the SHAW case, to which I referred this

morning -

and I have just quoted that into the transcript for

Your Honours what was said there.

So that it is all in the context that that is

the sort of direction that there ought have been here,

that there is mention of the time, firstly, and then

about three-quarters of the way down the page, of the -

sorry, it is time delay first and then age later.

Concluding that part of the submission, immediately over the page on page 21 it is put again:

Alternatively, because, as I have

identified from the trial judge's charge

to the jury, there was no attempt to

stress the necessity to be positively

satisfied of the version given by the girl.

Now, at page 22 His Honour Mr Justice Franklyn draws

attention to what is happening because there has just

been a mention of the time delay and the age and he

says:

Your second ground as there expressed is

really not quite in accordance with your

grounds of appeal.

His Honour is pointing out that the submission is

straying from the ground.and he puts briefly what he

thinks is being urged and counsel then continues:

MR MILLER:  Yes, well, perhaps in the way I

put it; positively satisfied that the girl's

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Longman

version was the true one irrespective of

how you saw the evidence of the appellant.

So, when the issue of the ground and these points

just mentioned as put by one of the judges, counsel

returns to the point that what is sought is a

direction about positive satisfaction. In our

respectful submission, in that context it is not

merely understandable but it is not at all surprising

that it is correct that the Court of Criminal Appeal

dealt with the second ground in the submissions in

respect of it as seeking a direction that the jury -

must be emphasizing in some way that the jury must

be positively satisfied of the truth of the evidence

of the complainant and that the ground was never

developed beyond that point and there was certainly,

even when the scope of the ground was mentioned by

the judge - there was never any attempt to extend
the scope of the ground by amendment to embrace the

matters of age and of delay.	If it please the
Court.

BRENNAN ACJ:  Yes, thank you. Mr Miller, do you have anything

to say in reply?

MR MILLER:  Your Honours, I would respectfully submit that

one just cannot read into the transcript the limitations

that the learned Solicitor seeks to put upon it and

at 40 to 41, in reply, may I respectfully submit that

the matters were clearly articulated and the Court of

Criminal Appeal, for some reason, overlooked effectively

dealing with the second ground, that labelled 2(a).

I refer to two-thirds of the way down page 40

where the submission was put:

What has happened here, I respectfully

submit, is that the trial judge, having
been asked to give a direction under

section 36BE of theEVIDENCE ACT declined to do so and in so declining it seems to

have coloured the way in which he gave

his charge generally, and he has overlooked

the fact, as was put in two of the cases
to which my learned friend referred, that
nevertheless, when the Crown case relies
upon the evidence of one person who stands
alone, as it was put, it is important
to direct the jury as to the importance of
being completely satisfied, positively
satisfied, in relation to that evidence.

And reference is made to the passage of Chief Justice King

to which I referred in argument on Monday. And the same

submission was put at page 41, in the middle of the

page, that:

The trial judge, with the greatest of

respect, has omitted to do that -

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Longman

and reference is made to Mr Justice Lee's dictum

in the MURRAY case to which I referred.

I suspect the reason is that he has read

section 36BE too literally as really

precluding him from saying anything

about the stand alone witness, but
each of those cases in each of those

Courts of Criminal Appeal in South

Australia and New South Wales still stresses

the requirement that the trial judge in a
stand alone case should direct the jury

firmly in that regard.

So, in my submission, it was clearly put, as I have

submitted, indeed, on Monday afternoon, that the

reasons of His Honour Mr Justice Rowland indicate

but the Court of Criminal Appeal seems to have

overlooked dealing with that aspect of the appeal

before it. May it please Your Honours.

BRENNAN ACJ:  Thank you, Mr Miller.

The Court will consider its decision further

in this matter.

AT 9.37 AM THE MATTER WAS ADJOURNED SINE DIE

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