Longman v The Queen

[1989] HCATrans 247

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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 LONGV1AN

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN ACJ
DEANE J

DAWSON J

TOOHEY J

Longman

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 23 OCTOBER 1989, AT 2.10 PM

Copyright in the High Court of Australia

PlTl/1/RB	1	23/10/89
MR G.P. MILLER, QC:	May it ?lease	Court, I appear wi

my learned friend, MR T. J. 1-1O,;AGHA.i\l, for the

applicant. (instructed by Kott Gunning)

MR K.H. PARKER, QC, Solicitor-General for the State of Western

Australia: ~ay it please the Court, I appear with my learned fr :nd, MR J. MacTAGGERT, to represent the

respondent, (instructed by the Crown Solicitor for

Western Australia.

BRENNAN ACJ:  Mr Hiller.

MR MILLER:- If Your Honours please, may I first hand up the

outline of argument for the applicant.

I have endeavoured to put the special leave question in one question and I respectfully submit

it is this:  does the stacutory abrogation of the

common law corroboration r:-1le mean that in a sexual

assault case where the on evidence against the accused

is that of the complainant, the trial judge is freed

from any obligation to direct on the need for careful

scrutiny to be given to the complainant's testimony.

And in this case one could perhaps add, particularly in a case where the incidents alleged occurred more

than 20 years beforehand.

Now, it would appear, Your Honours, that the

Court of Criminal Appeal of Western Australia and of Victoria consider the trial judge is so freed of any

such obligation but in che Court of Criminal Appeal in

New South Wales and South Australia the opposite view

would appear to have been taken.

The basic corroboration ~ule, as it was called,

was perhaps most recently formulated or reformulated

by this Court in CARR V REG, (1988) 165 CLR 314 and in

particular in the passage of His Honour Mr Justice Wilson

and Your Honour Mr Justice Dawson at pages 318 to 319 of

that report where the following passage at the foot of

page 318 to 319 encapsulates the common law rule as it

was: 

Judicial experience has identified a strictly

limited range of cases where as a matter of practice

a departure from this general principle has

been required. We refer to the rules which
oblige a trial judge to warn the jury of the

danger of convicting upon the uncorroborated

evidence of an accomplice, the victim of a

sexual offence and the sworn evidence of a

child: ..... These are cases where the evidence

suffers from some intrinsic lack of reliability

going beyond the mere credibility of a witness.

And the central question in this application is whether

the statutory abrogation of that rule means that one can

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Longman

confidently say there is no longer an intrinsic lack

of reliability; there is no longer any justification or

requirement on the part of a trial judge to give any

sort of special direction akin to the old corroboration

direction.

His Honour the former Chief Justice of Western

Australia, Sir Frances Burt, in MILLER V REG rJhich is unreported,

a decision of the Court of Criminal Appeal of Western

Australia and delivered on 23 December 1987 indicated
the Western Australian position at page 9 of His Honour's

reasons making the point that the rule of law or practice,

as it has been described in the relevant amending

provision to which I will refer in a moment, seems not
in Australia to have hardened in relation to sexual

offences in the rule of law as it has in relation to

evidence of accomplices and His Honour there, at page 9,

indicated that at least in so far as Western Australia

was concerned, in a case in which there was in fact no corroboration, it was undesirable to do more than give the direction to which His Honour refers at the foot

of the page from KELLEHER V REG,(1974) 131 CLR:

'' .... The better direction is that a jury be

told that they may act on the word of the

woman alone but should exercise considerable
caution before doing so, because of the ease

with which the charge is made and the

difficulty which may attend its rebuttal".

So that was the Western Australian position prior to

the relevant amending Act which was introduced in 1985

into the EVIDENCE ACT of Western Australia 1906. The

section 36BE, a copy of which has been made available to

Your Honours, abrogated the corroboration rule. It

reads:

(1) On the trial of a person for a sexual

assault offence or an offence under Chapter XXII

of the CRIMINAL CODE -	-
(a) the judge is not required by any rule of

law or practice to give in relation to any
offence of which the person is liable to be
convicted on the charge for the offence a
warning to the jury to the effect that it is

unsafe to convict the person on the uncorroborated

evidence of the person upon whom the offence is

alleged to have been committed; and -

it goes on to add a paragraph which is not reflected in

other jurisdictions:

(b) the judge shall not give a warning to the

jury of the kind described in paragraph (a)

unless satisfied that such a warning is justified

in the circumstances.

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It will be my submission that paragraph (b) does not

take the position any further than paragraph (a).	The
judge not being required to do it, in my respectful
submission, the statement that he should not give it
unless he is satisfied that it was justified was

self evident, without needing to be incorporated into

the section. But the Court of Criminal Appeal in this

case saw some significance in the additional subsection.

Your Honours will see that section 101 of the EVIDENCE ACT,

testimony of a child is not affected by that provision.

Now, since this appeal, section 36BE has been

deleted from the EVIDENCE ACT and may I hand up to

Your Honours the CRIMINAL LAW AMENDMENT ACT No 70 of 1988

which repealed BE but ·-e-enacted it in section 50 of
the EVIDENCE ACT and .terestingly, re-enacted it for

all offences triable en indictment in Western Australia,

making much wider ramifications of the effect of this

section. Section 50 now reads:

(1) In this section "corroboration warning" in

relation to a trial means a warning to the

effect that it is unsafe to convict the person

who is being tried on the uncorroborated

evidence of one witness.

(2) On the trial of a person on indictment for

an office -

(a) the Judge is not required by any rule of law

or practice to give a corroboration warning to
the jury in relation to any offence of which the

person is liable to be convicted on the indictment;

and

(b) the Judge shall not give a corroboration

warning to the jury unless the Judge is

satisfied that such a warning is justified in

the circumstances.

And it preserves in section 101 the position of the

unsworn testimony of children.

McHUGH J:	So that applies to accomplices.
MR MILLER:	It does, Your Honour, and has been so held in a

number of criminal trials in this State, so it is a

very far-reaching provision which is more far reaching

than any of the other Australian States where the

abrogation seems to be limited to sexual offences.

The reasoning for that, as emerges from the cases, is

because the legislature has quite clearly taken the

view that one can no longer say that there is some

factor, apart from mere credibility, beyond the

mere credibility of a witness, which puts into a
particular category the evidence of a complainant in a

sexual case.

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Longman

Of course, Your Honours, this is a sexual case

but the decision, in my respectful submission, is of

extreme	importance for Western Australia because of
wide effect of section 50.	Your Honours, section 36BE

of the EVICENCE ACT and thus section 50 of the

EVIDENCE ACT has been held in this State to be procedural

and not substantive in terms of its amendment and thus

it applied to the trial of this applicant, notwithstanding

the fact that the offences alleged to have been committed

were alleged to have been committed 20 years before the
amending provision came into effect and Mr Justice Kennedy

has so held in SHAW V REG vJhich is an unreported

decision of the Court of Criri.inal Appeal of Western

Australia, delivered on 22 December 1988, and in that

decision Your Honours will see the statement which is

then adopted in this State in Mr Justice Kennedy's

reasons on page 17 thereof, the last page actually of the report which has just been handed to Your Honours.

His Honour said, at about two-thirds of the way down the

page:

That being a procedural and not a substantive amendment of the law, it applied to trials of offences allegedly committed prior to the

date on which it came into force.

So the Western Australian position is that this section,

36BE, now section 50, applies to all offences triable on
indictment whether cotmnitted before the amending provision

or after.

Now, in the other Australian States, Your Honours,

there are similar although not identical sections and

as far as I am able to research, there are three other

States in which these changes have been made. The

first is in New South Wales. Unfortunately I have given

Your Honours a wrong reference in paragraph 5 of the

outline of argument - it has been changed. It is

section 405C(2) of the New South Wales CRIMES ACT, and

could I hand up to Your Honours copies of the section as

it reads in the State of New South Wales. There is an

amendment of really no consequence but section 405C,

as it is reproduced in the photocopy handed to

Your Honours provides, under (2):

On the trial of a person for a prescribed sexual offence, the Judge is not required by

any rule of law or practice to give, in relation

to any offence of which the person is liable to
be convicted on the charge for the prescribed

sexual offence, a warning to the jury to the

effect that it is unsafe to convict the person on

the uncorroborated evidence of the person upon

whom the offence is alleged to have been

committed.

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Longman

So it is in identical terms to our first limb. Then

there are, in subsection (3), some indications that
the - declarations that the operation of this rule is

limited in certain ways and the amending provision

that Your Honours also have under the CRIMES (CHILD

ASSAULT)AMENDMENT ACT simply makes disjunctive

paras (a) and (b) and omits subsection 3(c). But

nothing really turns on any of that. So for practical

purposes, in New South Wales the section is in

identical terms to the first limb of 36BE and what is

now 50(1) of the Western Australian EVIDENCE ACT.

In Victoria the relevant provision is

section 62(3) of the Victorian CRIMES ACT 1958, the

amending provision having a side-note, "Abrogation

of Obsolete Rules of Law". Section 62 could hardly be

described, if I may respectfully say so, as obsolete

until such time as this piece of legislation was

introduced, but section 62(3) provides:

Where a person is accused of a sexual

offence, no rule of law or practice shall require the judge before whom the accused is tried to warn the jury that it is unsafe

to convict the accused on the uncorroborated

evidence of the person with or upon whom the

offence is alleged to have been committed -

Again, identical to our first limb. Finally, in

South Australia, section 34i(5) of the EVIDENCE ACT

reads:

In proceedings in which a person is charged

with a sexual offence, the judge is not required
by any rule of law or practice to warn the jury
that it is unsafe to convict the accused on the
uncorroborated evidence of the alleged victim of

the offence.

So, Your Honours, the provision has parallels in three

other Australian States and it is therefore the

submission of the applicant that the true effect and

the proper meaning to be given to this section 36BE

as it was in our Act and now section 50, is a matter

of public importance, it is certainly central to the administration of the criminal law in this State and the wider impact of section 50 applying as it does to

accomplice case in my submission means that the true

interpretation of the section or the effect of it is a

matter of great importance and accordingly I would

submit that it is a case which merits a grant of

special leave to appeal within the categorization that

Your Honour Justice Dawson indicated in MORRIS V REG,
(1987) 163 CLR 454, and I have simply referred to

Your Honour's passage at page 475 where Your Honour,

in indicating the Court's discretion to grant special

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Longman

leave to appeal, at about two-thirds of the way down

the page made the point:

the duty which the Court has to develop and

clarify the law and to maintain procedural

regularity in the courts below.

It is my submission that this case will have precisely that effect if special leave is granted.

BRENNAN ACJ:  Mr Miller, where was the application for

redirection ma<le?

MR MILLER:  The application was actually made for direction and

it was refused, so it was anticipated and Your Honour

will see that the trial judge at page 109 gave reasons

as to why he would not give such a direction, the s

application having been made the previous afternoon,

on Friday, 21 October, page 109 His Honour gave reasons and a submission had previously been made to him at the

close of proceedings on 20 October that this was a case

in which a direction should be given. The primary

thrust of the submission was that because the offences

had occurred 20 years beforehand and there was no

evidence against the accused other than the testimony

of the complainant. His Honour dealt with it at 109

when he said:

In relation to the question of a warning which

arises from the operation of the EVIDENCE ACT,

in particular section 36BE, subsection (l)(a)

removes any requirement, -

he just indicated what the provision was; he pointed

to the fact that under the second subsection he could

not give the warning;unless he was satisfied it was

justified in the circumstances; defined "justification"

and then, at line 18 said:

The circumstances here, in my view, do

not satisfy me that a warning is required or

that I am able to give it. There has been,

for example, nothing advanced to suggest any

particular reason why there should have been

a false complaint made, for example, some

difficulty within the family, the fact that

the complainant was a stepdaughter, and one

can think of other similar possible reasons

which could have been advanced. There was

no special relationship existing in this case

between the complainant and the accused.

There is no question of any violence. The fact

that there has been a considerable degree of
time which has elapsed and the fact that there

was no complaint are each capable of a variety of

meanings. One can speculate as to these matters

but to ascribe to the facts a particular view

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Longman

as a basis for the need tog ve the warnin

would, in my view, be wrong.

TOOHEY J: Mr Miller, can you tell us wha direction was

sought by counsel?

MR MILLER:  If Your Honour will give me a minute, I will see

if I can identify it. I think it was just put in the

broad terms that a corroboration warning was called

for.	At page 104, line 8, counsel for the accused
said:
I was going to ask you to ive a direction in
accordance with section 36  of the EVICENCE
ACT.  I appreciate the law in respect of
uncorroborated evidence has been changed by
this section. However, it would be my submission to you, one couldn't imagine a case and
obviously a judge indicates there in 36BE
subsection (b) -

he repeats the section -

With respect, sir, I would not have thought there was another case that would more justify it than

~li.isparticular case.

HIS HONOUR: I can think of one.	I can think
of a number.

Then counsel indicated that it was the length of time

which was, in his view, the key factor, and the lack

of any complaint having been made at any time. Here

today, in my submission, they are still the key factors.

McHUGH J:  But is not your problem that what counsel asked for

was a warning in terms of paragraph (a). What the

section seems to me to strike at at the moment is

against directions that it is unsafe to convict.

But that does not prevent and perhaps a judge is still	required to say, in an accomplice case, to direct the	jury that accomplices have frequently got reasons for
inventing evidence; that in a sexual case that sexual complaints are easily made but not so easily rebutted;
warnings of that nature. But that sort of direction
was never asked for, was it?

MR MILLER:  I would respectfully submit that is what he was

asking for, a warning, whether it be the traditional

corroboration warning or a lesser warning was what he

was seeking. Now, Your Honour's question is interesting

because in Victoria and - particularly Victoria, they

have come down to the view, the Court of Criminal Appeal

of Victoria, that it is quite wrong to suggest to a

jury that a woman might have some reason for making a

complaint against a man and therefore you should

scrutinize her evidence. I will go later to a passage,

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if I may, where there is a specific statement by the

Court of Criminal Appeal of Victoria that under no circumstances should a judge tell a jury that they

are required to scrutinize with care the evidence of

the complainant where it stands alone. Now, in New

South Wales, the opposite view has been taken but

the view Your Honour has just put to me would still be

open and no doubt desirable in any serious case to put

to the jury that in cases where there is a stand-alone

witness, as it has been termed, it is very important

that they should scrutinize that evidence with care.

But the Court of Criminal Appeal in Western

Australia appears to have adopted the Victorian view

that this section in some way puts what Chief Justice King

described as the complainant on some exhaulted plane,

some special position, that the complainant has some

special rights. Now, that cannot be right, in my

respectful submission, and the Court of Criminal Appeal

of Western Australia has been at pains, as

Mr Justice Rowland points out in his judgment, to say

you must not tell the jury that there is anything

dangerous about acting on a woman's complaint in a

sexual case because the section tells us we cannot do

that. In my submission, that is wrong. The section

does not go so far,as Chief Justice King observes in one

of the South Australian cases, to preclude a judge

from that approach.

That is effectively what has happened in Victoria

and Western Australia, that the Courts of Appeal have

said, "You can't categorize a woman who has made a

complaint of a sexual offence as being in some special

category". She is not, because the Act says so.

BRENNAN ACJ: Those cases must all turn, must they not, upon

the meaning that is attributed to the phrase "to the

effect that"?

MR MILLER:  Yes.

BRENNAN ACJ:  So that one might say it does not have to be

precisely in the words of the section, it can be to

that effect, and the effect might be achieved in a

variety of ways. But none the less, the thrust of the

section is that a woman's complaint - or perhaps more
accurately, a complainant's complaint in a sexual case

is not to be regarded as standing on some particularly

disadvantageous footing when it comes to the assessment

of evidence. Now, in this case it is not because the

complaint is made by a woman or that it is a complaint

of sexual interference as such, your real problem is

that it was made 26 years after the event.

MR MILLER:  I would rather, with respect, roll that together,

Your Honour, that it is a sexual complaint made

20 years - - -

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BRENNAN ACJ:	I appreciate you must roll it together in order to make your special leave point, but if you cannot
roll it together, or if, more accurately, it was not
rolled together at the trial, do you have a special
leave point now?
"MR MILLER:	Your Honour, I appreciate that the request was made

in a fairly slim way, but I would respectfully submit ·hat the way the trial judge dealt with it, as I have

ead from the passage at page 109 indicates that he

understood he was being asked to give a form of direction -

whether it be the old corroboration direction in the

traditional terms or whether it be something less, he

certainly saw the position as being that he was not to

give any warning, any direction, and that is the

trouble with this case, You~ Honour, he did not. He

made no further statement t 1n the statement that this

was a case of credibility and as with all cases of

credibility, you have to be persuaded beyond reasonable

doubt that the complainant's testimony is to be accepted,

but really there was never any suggestion of the things
that I have put at page 3 of my outline of argument,

the four critical factors, in my submission, which would

have brought home to the jury - not the traditional

corroboration direction but the need for evidence from

some independent source,to be positively satisfied of

the complainant's testimony, and to carefully scrutinize

her testimony because she stood alone.

All that he did was say - I will come to the

passage in a moment, if I may - perhaps I will go straight

to it, the true question of credii:>ility he put it in this ·way,

page 115, and this was the highest that it was put to

the jury, at the top of 115 His Honour said:

Now in this particular case there is a

fundamental conflict between the evidence for

the Crown and the evidence for the defence. It

is about as basic a conflict as one could get.

You will have to consider in this matter who you

believe. You a.re faced with the problem of

considered the question the answer is adverse	determining credibility. But if, when having	to the defence, that does not necessarily mean
that the prosecution has proved it's case beyond
a reasonable doubt. Even if ultimately you
prefer the evidence of the prosecution you cannot convict unless you are satisfied beyond a reasonable doubt as to the truth of the evidence of the Crown.

And that is the highest that it got. And that is no

different from the direction that would be given in any

case, whether it was a stand-alone witness or a

combination of witnesses and in my respectful submission

it therefore did not address the problems that this case

had.

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His Honour went on to tell them that they would

use their common sense as members of the community in

reaching that decision, and although it is not
complained in the grounds of appeal, just to indicate

to Your Honours how weak it was, page 116, the next

page, after having explained the process of

examination and cross-examination, His Honour equated

the task that they were entering into in this way,

about line 5:

All of us determine people's credibility,

almost daily, not just judges and magistrates.

You would have, for example, have been

required to interview people for a job, you

would have been required to decide whether you

were going to work for somebody, you would have

been on a committee, for example, dealing with

people, a social committee. And all of those

occasions and experiences would have involved

you determining whether you could rely on a

person to be truthful. And that's what you do

here. It is as simple as that.

Well, with the greatest of respect, Your Honours, that

is a very weak statement of the position that this

unfortunate accused found himself in on the testimony
of one person of events which were alleged to have

occurred 20 years beforehand.

TOOHEY J: When you put it that way, Mr Miller, you shift the

focus really from an EVIDENCE ACT point to a wider

question than the nature of the direction given by

the judge and whether the verdict was unsafe.	It may be
that that is then what the appeal is all about.	I do

not know, but that runs into some difficulty because
the judge was not asked to redirect in relation to the

broader question of what sort of direction ought to

have been given in this case because of the lapse of

time that had occurred.

:MR MILLER: Except this, Your Honour, if I may respectfully

answer the proposition Your Honour is putting this way:

counsel raised the need for a direction of some sort

with the judge; the trial judge had the section before

him; the trial judge was administering the trial

process and in my submission it was incumbent upon the

trial judge to have assessed for himself the evidence,
the relative weight of it, and to have decided for

himself what the true direction was; not for counsel to

have to tell him that fact. Although I appreciate

entirely Your Honour's point, that perhaps more could

have been suggested than was. But the core question

was certainly put to the trial judge and he reserved on

it overnight.

McHUGH J: If you look at page 105, line 28 through to about

page 106, counsel takes up the delay point and the
trial judge takes up the rationale of the rule about

complaints are easily made and hard to disprove.

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MR MILLER:  Yes, thank you for pointing that to me,

Your Honour. I had missed that. There certainly was

a debate at pages 105 and 106 on that point. But to

answer Your Honour Justice Toohey's question, I

respectfully submit this case is not limited just to

the question of whether or not there was a miscarriage of justice in this case, because the Court of Criminal

Appeal took the view that you are not obliged to give any form of direction in a sexual assault case where

you have a stand-alone witness. I will come in a

moment to Mr Justice Rowland's decision. He said it

is up to the judge; he can do what he likes; he does

not have to say anything, and in this case he thought

conf 1 ~ct on credibility - he was the view that it	the direction that I have read at ryage 115 about the
was ::-ong and adc::;:.1ate. In my ;ectful submission,
it was weak and gr:::::ssly inadequate.: but it does raise,
I submit, this wider question. Perhaps I could go
direct to - - -

DAWSON J: Mr Miller, when would the warning be justified? I

find difficulty in envisaging the circumstances.

MR MILLER: When would one be justified?

DAWSON J: Other than in cases where the credibility of the

witness was-

MR MILLER: Exactly, Your Honour, that is what makes the

question - the section is so difficult to understand

because - that is the point - - -

DAWSON J:	The trial judge said he could imagine lots of cases but I find it difficult to imagine any.
MR MILLER:	I cannot imagine one which would call out for the

direction more than this case, where the girl was

6 and 10, two incidents separated by four years, and

she gave testimony about it 20 and 26 years later.

That of itself, in my submission, you would think would

be at the pinnacle of the list of cases, if there is

such a list. But I understand Your Honour's point

entirely. It is difficult to understand. What is there?

Mr Justice Rowland skated around it, if I may

respectfully say so, by saying there has got to be

some special thing but he never identified what it was.

DEANE J: 

Is not the answer that the warning must be given, in

the amended section, when there is only the evidence
of one witness and where a verdict of guilty would be
unsafe and unsatisfactory?

MR MILLER: 

At the end of the day, Your Honour, that must be

the answer.

DEANE J:  If that is so, an appeal will never turn on whether

or not the warning was given. It will turn on a

decision that the verdict of guilty is tmsafe and .tm.Satisfactory.

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MR MILLER: Yes. There are observations - although in the

grounds of appeal here I challenge the Court of

Criminal Appeal view that it was non-appealable, I

have to concede that it is not an appealable - the

refusal to exercise the discretion, I would have to

concede, could not be appealable as a point in itself,

it must be a question of whether, as a result, the

conviction was dangerous and unsafe.

But Your Honour Justice Deane's exposition, if

I may respectfully say so, of the position is that must

be it. This case must fall for the warning of some sort.

DEANE J: Except I do not know if it helps you. What it means

is that you can, in effect, only succeed if you establish

that the verdict is unsafe and unsatisfactory.

MR MILLER:	Yes.
DEANE J:	Now, was that a point advanced in the Court of

Criminal Appeal?

MR MILLER: Yes, it was. It certainly was and - - -

DEANE J:	And they found against that.
MR MILLER:	They found against that.
DEANE J:	Now that means that ultimately the appeal to this

Court would have to be that the Court of Criminal

Appeal was in error in finding in all the circumstances

of this case that the verdict was not unsafe and

unsatisfactory, which makes it a difficult path in

terms of leave.

MR MILLER: Perhaps not, Your Honour, because the Court of

Criminal Appeal did not see it in the way in which

you have just articulated it. The Court of Criminal

Appeal saw the position as being, as I tried to put it

just had a discretion to do what he wished under this	a moment ago, perhaps unfairly, that really the judge
section. He had no obligation to consider the
situation where you had the stand-alone witness against
the accused and for that reason, it being the classic

Tl case where some form of direction needed to be given- - -

DEANE J:  But that brings us to the problem that other members

of the Court have been asking you about and that is

what if one takes the view that there is a vast

difference between the 36BE warning and the direction

of the kind you refer to in paragraph 13 of your

submissions? In other words, it is one thing to say

to a jury, "It would be unsafe for you to convict"

which comes very close to a suggestion to acquit and

the paragraph 13 direction that "When you are asked to convict on the evidence of one witness alone, you need

to scrutinize it very carefully".

PlT2/l/RB	13	23/10/89
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MR MILLER:  At the end of the day I suppose I would have to

concede our case comes down to that, that in this

case at least the trial judge was called upon to

give a general direction of that type, which the

Court of Criminal Appeal took the view he. was not

required to do and which, in some States, as I have

said, in particular in Victoria, they have positively
said you must not do, so that would, in my submission,

raise a special leave point in the sense that here we

have, after a good deal of consideration in the State

of Victoria, a very positive statement - I should go

straight to it - where - - -

BRENNAN ACJ:  Could you go to the grounds of appeal to the

Full Court first.	They seem to be at page 144, are
they?

MR MILLER: They were amended. If you look at page 147,

Mr Justice Rowland indicated they were amended. Seeing

the problem, 2A was put in during the running of the

argument and it was put then that the two grounds were:

The learned trial judge erred in the exercise
of his discretion in failing to give a
warning to the jury to the effect that it was

unsafe to convict on the uncorroborated

evidence of the complainant.

2A Alternatively, by the failure of the learned

trial judge to direct the jury on the need for the jury to exercise caution before convicting on the evidence of the complainant alone, the

conviction of the Appellant was dangerous and

unsafe.

So 2A raised directly the question of whether or not

the conviction was unsafe and expressed the direction

called for in a different terminology than appeared

in the original 2 which had come from page 144.

Your Honours, if I could just refer to the current

position in Victoria, because this is the highwater

mark, if I may respectfully say so, of interpretation

of this section. It is WILLIAMS V REG, (1987)

26 A Crim R 193. This followed a string of Victorian

cases in which there was a good deal of dissention

amongst the members of the Victorian Supreme Court as

to how the section should be treated and this, as I

understand it, is the definitive statement of the

Court of Criminal Appeal of Victoria where a	number
of propositions are put forward by the court at
pages 202 to 203.	I do not think it is necessary to

go to all the earlier cases, but they finally crystallized
in these ten proporisitons which are at pages 202 to 203.

It will be convenient, before returning

to the facts of this case, to set out a number
of general propositions.

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(1) Section 62(3) has done away with the rule

that on the trial of a sexual offence the jury

must be warned that it is dangerous to convict

on the complainant's uncorroborated evidence.

( 2) This has the rESul t that the law no longer

regards complainants in sexual cases an an

unreliable class of witness, and it is wrong

for a judge to convey to a jury that the law

does so regard them.

And I would respectfully submit that that is not an

inevitable conclusion from a proper interpretation of

the section.

(3) If the judge does raise with the jury the

question whether they should look for evidence

which supports or confirms that of the

complainant, he should never do so in a way which

tends to convey to them that he is directing

them as to the law or giving them a warning which the law in its wisdom has found to be

desirable, for anything he may say about

supporting or confirmatory evidence is by
way of comment on the facts of the particular
case, not by way of warning required by the law.

That is not to say that such comments on the facts should not be made when a judge considers

them appropriate in the particular case in the

interests of justice. Such comments may be

expressed in terms of an approach founded in

common sense and human experience.

(4) It is preferable, in making any such comments,

to speak in terms of "confirmation" or "support"

rather than "corroboration", since "corroboration"

has a technical meaning in the law and since

there is no longer any requirement of a warning
about corroboration on the trial of sexual

offences.

not required to, and should not, say anything	(5) In making any such comments the judge is
to the jury by way of defining corroboration in the legal sense.

Now that sits uneasily, if I may respectfully submit it,

if subsection (1) as it stands in the Western Australian

section stands and the judge has formed the view that

he should give such a direction, it would appear that

he could give either a full corroboration direction or

a lesser direction. But Victoria has set its face
against a full corroboration direction in any

circumstances.

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(7) A judge who comments on this matter of

supporting or confirmatory evidence is not bound

by any supposed rules as to what he must or

may say in his comments or his treatment of the

evidence beyond those principles which govern

everything which a judge says by way of comment

on the facts or which he otherwise says in his

treatment of the evidence. He should be fair,

he should be accurate and he should not convey

to the jury that they are free to draw from

particular parts of the evidence conclusions

which, for one reason or another, that evidence

must be viewed as incapable of sustaining.

Perhaps I do not need to read the rest of that subsection, that point.

(8) In determining whether some observation of

the trial judge in the course of any such

comments has tended to mislead the jury as to

the possible significance of certain evidence,

assistance may be derived from decided cases

which have, in relation to corroboration,

determined that certain evidence was or was not
capable of being viewed as implicating the

accused in the offence charged.

(9) Decisions dealing with what evidence is

capable of amounting to corroboration are more

likely to be of indirect relevance in this way,

and so of assistance, in a case in which the

judge chooses to canvass the question of the

extent to which there is evidence independent of

the complainant -

that is not this case .

(10) Where the judge does invite the jury to
consider what evidence supporting or confirming

the complainant's evidence exists, it may well

be helpful for him, assuming that there is not	only evidence which merely in some way supports
the complainant's testimony but also other
evidence which tends to implicate the accused
in the crime charged, to draw this distinction
in general terms for the jury -

it is perhaps of no significance in this case. But

then the next paragraph is the critical paragraph:

We return to the facts of the present case.

As we have said, to the extent to which the

charge conveyed to the jury that the law regarded

complainants in sexual cases as unreliable

witnesses, it erred in favour of the accused.

His Honour would, of course, have been quite

wrong had he told the jury anything to suggest that

the law required the evidence of the prosecutrix to

be scrutinised.

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In my submission, that is a very strong statement

and - - -

DAWSON J: What would happen if the judge said, "Ladies and

gentlemen, you may think that charges such as these

are easy to make and difficult to refute. Now, in

those circumstances, you may want confirmation and

you may want strong confirmation which means that it

has to independently support the witness's story and

implicate the accused in some regard." What would

be wrong with that? Apparently it would be wrong.

MR MILLER:	It would be wrong, according to this.
DAWSON J:	What more could you say?
MR MILLER:	I respectfully-

DAWSON J: Sorry, that is a rhetorical question.

MR MILLER:  Yes, I respectfully submit that those 10

propositions cannot stand. Now, may I respectfully

submit that Chief Justice King put the matter the

best way in PAHUJA V REG, (1987) 30 A Crim R 118,

and in particular at page 126. This case was a special

case because it involved the question whether the

South Australian amendment extended to abrogate the

rule in relation to unsworn testimony of children, so
it was a different point, but Chief Justice King at

page 126, in my submission, put the true position:

Although I consider thats 34i(5) has had

the effect of abolishing the rule of law or

practice relating to corroboration warnings

in sexual cases, I cannot read into it some of
the wider implications attributed to it. It
does not confer upon the evidence of an alleged

victim in a sexual case any particular legal

status, nor inhibit the triers of the facts in

a sexual case from weighing that evidence in

the usual way, having in mind such aspects of

human nature and behaviour as they consider to

be material for that purpose. Acts of

Parliament do not and do not purport to, change

human nature. There are aspects of human nature

and behaviour, such as sexual appetite, certain

motives for making false complaints and proneness

to certain types of fantasies, which have a

peculiar bearing upon sexual cases and which may

be important in certain factual situations.

May I interpolate that this is just such a case on the

face of it.

The ease of making an allegation and difficulty

of refutation, often given as one of the reasons

for the former rule, are not entirely confined to

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sexual cases, but are often considerations of

considerable importance in such cases. The

trial judge is not require to ignore such

matters in charging the j and may have a

duty in certain cases to remind them of such
considerations. It is to be remembered,
however, that the weight to be attached to such
considerations in any particular case is a

matter for the jury.

Now, in my respectful submission, that is the better

articulation of the way in which the sections should

be treated and not that which has been propounded in

the State of Victoria and followed in Western

Australia. In New South Wales, the same as what

Chief Justice King aid was said nis Honour

Mr Justice Lee in REG V MURRAY, (1 7) 11 NSWLR 12, in

particular at page 19. This was a decision of the

Court of Criminal Appeal and Justices Maxwell and
Yeldham agreed with the reasons delivered by

His Honour Mr Justice Lee. At page 19 similar statements were made:

Section 405C(2) has brought about the

result that women are no longer, in the eyes

of the law, to be put before juries as persons

whose evidence requires corroboration before

it is safe to act upon it. That concept which

has been in the law for a long time has now

gone.

I am not sure that Chief Justice King would go quite

as far as that.

That, of course, does not mean that a judge cannot draw attention to the absence of

corroborating testimony from witnesses who
are shown by the evidence to have been present

and able to offer corroboration of the girl's

story, if it were true, nor does it preclude

the judge from making such observations as he

considers ought to be made about the credibility
of the complainant's evidence, but always with

the proviso, of course, that he must make it

clear to the jury that those are his opinions

and that the weight to be given to the

testimony of the woman is entirely a matter

for the jury. The fact that a judge does not

cormnent upon the absence of corroboration of

the complainant's evidence cannot, in my view,

in the case of those offences to which s 405C

applies now be made the basis of a criticism

of his surmning-up, but again this does not mean

that the judge cannot or should not, as is done

in all cases of serious crime, stress upon the

jury the necessity for the jury to be satisfied

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beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of

the Crown case.

And this is the passage that we would respectfully rely on.

In all cases of serious crime it is customary

for judges to stress that where there is only
one witness asserting the commission of the
crime, the evidence of that witness must be

scrutinised with great care before a conclusion

is arrived at that a verdict of guilty should

be brought in;

So one sees in New South Wales and South Australia a

statement which is certainly at odds with the Victorian
position and the way in which our Court of Criminal

Appeal here dealt with this case.

DEANE J:  Mr Miller, I do not see the conflict that you say

exists. Obviously I read that sentence, "It would be

wrong for a judge to tell the jury that the law
requires the evidence of the prosecutrix to be
scrutinized" differently to the way you read it. I

mean, that was a case where there was confirmation and strong confirmation and what Their Honours were

saying, as I read it, was this section has abolished

the approach that the complainant was a sort of

second class witness whose evidence had to be scrutinized

because she was the complainant.

1:1R MILLER:  Yes, but Your Honour, in my submission the court

has gone further than that and said, "Furthermore, you

should not··really even suggest to the jury, where you

have only got one witness standing alone for the

Crown agains the accused, that there is anything special

about that".

DEANE J:	Where is that?
1:1R MILLER: Perhaps I have read too much into it, but that is

the effect of it. It must be the effect of it.

DEANE J:  Where, in particular, do you get that from, because

that certainly was not WILLIAMS's case.

1:1R MILLER:  No, that is true, Your Honour, but in the sequence

of 10 propositions which are there put, I cannot find
anything which would suggest that there is ever a

case, whereas Mr Justice Lee suggests the jury should

be carefully told that the stand-alone witness's

evidence needs to be scrutinized with great care. That

seems to have been - in the context of sexual cases there
is nothing in the 10 propositions which would suggest

that to be so. If one looks at the next paragraph

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perhaps I have over-emphasized it, but nevertheless, it

is certainly by way of omission; there is nothing to

suggest and rather the contrary, every indication is

there that in sexual cases you make no point about the

complainant's testimony standing alone. If that is

the gravamen of that decision, then in my submission

it makes it difficult to see where you could ever give

a direction such as we seek in this case.

If I could turn to the way the Court of Criminal

Appeal looked at it here, they put a gloss on the
section which no one else appears to have done.

Mr Justice Rowland's reasons, at the bottom of page 151.

I did not have a page 151 in my book.	Do Your Hono;, r-s
have 151 in the book?

DEANE J: Yes.

MR MILLER:  At the bottom of 151, His Honour Mr Justice Rowland

said:

Counsel for the appellant submitted that

this case discloses such circumstances and

submits that the age of the complainant at the

relevant times of the offences, when contrasted with the age of the complainant at the hearing,

shows such a long time span so that, by itself,

this must justify the judge in making the

necessary finding to give the warning.

With respect, that mistakes the clear

purpose of the section. It is true that, where

the only evidence in effect is from the

complainant nd the accused, then the jury

should be wa ::ed, as in any other serious case,

that disbel f of the accus 's evidence and

belief of the complainant's evidence is not

sufficient to justify conviction and that the

jury must be satisfied beyond reasonable doubt

that the accused is guity of the offence charged

however, were given by the learned trial Judge before it can convict. Warnings to that effect, in this case.

I have already referred to his warning, and in my

submission His Honour Mr Justice Rowland put that

too low. Then he said:

For a judge to be 'justified' in giving

a warning of the type prohibited, there must be something in the evidence or the case which can

be identified which will call for the jury to be

warned that, in this case, they should look for

corroboration or, if none, to give the warning

referred to by Burt C.J. in MILLER V. THE QUEEN -

to which I referred earlier.

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And that identifiable something will not be

that particular trial Judge's, or any other
judge's, perception of "the intrinsic lack of

reliability" of complainants in cases involving

sexual offences. It will be something in the

evidence of the particular case that occasions

the necessity for the warning. The age of a

complainant and the length of time between

complaint and hearing may, in the circumstances

of some cases, justify such a warning. In this
case, the learned trial Judge considered the

matter and, in the circumstances of the case,

decided that no such warning was necessary.

But to speak of some identifiable thing, in my submission, is of no assistance. It does not help.

This is a starke case; a stand-alone witness giving

evidence of events that are alleged to have occurred

20 years ago must, of itself, in my respectful submission,

have called for some form of warning.

McHUGH J: Yes, but that is different to what the section - I

must say I have some real difficulties with the surrrrning

up in this case, but I am afraid at the moment it has

got nothing to do with 36BE. It seems to me that the

trial judge should have given a lot more specific -

greater directions in this matter about the evidence
called for the prosecution but not in terms of

section 36BE. That is the problem I have, Mr Miller.

MR MILLER:  Yes, not in terms of the traditional corroboration

warning.

McHUGH J: Yes.

MR MILLER:  But the way in which it has been put in the Court

of Criminal Appeal below seems to suggest that no

warning at all was called for; that is to say, not

just a traditional corroboration warning. As I

understand it, the legislation really leaves open the

highwater mark of the corroboration warning in the

traditional sense or something less, and you can scale

it down, according to what Mr Justice Lee said, for example, depending upon how the trial judge himself

saw it.

But our Court of Criminal Appeal seems to have

taken the view it is a black and white situation. You

either give a warning, full corroboaration warning, or

you give nothing. Or perhaps you do not even give a

halfway house; you give nothing, unless there is some

special identifiable thing. But there is no - - -

McHUGH J:  But the warning he is talking about is the warning

in terms of the section, is it not?

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MR MILLER:  It seems that he is, yes. It seems that

His Honour is - - -

McHUGH J:  Because he has to be, I think, Mr Miller,

because that is all focusing on the first ground

of appeal and then the judgment moves over to the

second ground which is looking at the need for some

sort of caution by reason of the circumstances in the

matter.

MR MILLER:  Yes, I accept Your Honour's assessment; that

is quite correct, with respect, because His Honour

does go on at page 153 to then say that that disposed

of the first grotmd;and in the second ground he
dealt with His Honour's state: 'ent which I have

previously read to the Courc.

McHUGH J:  Well, that does not - that, I mean the

direction referred to on page 153, which has the

endorsement of the Court of Criminal Appeal, does not

appear to touch the problems that arise from the

length of time that has elapsed t.2tween the events

and the trial of the applicant.

MR MILLER:  No, and His Honour the trial judge took the view

that he was not required to give any direction, whether

it be the traditional corroboration direction or any

other direction and, in essence, the Court of Criminal

Appeal has really confirmed that because the Court of

Criminal Appeal has said that the corroboration

direction was not given and, furthermore, the direction

which was giv~'J. was quite adequate. So, effectively,

in my submiss~on, it does raise head-on the question

of what the section means. Does i~ mean that - - -

McHUGH J:	Perhaps not so much what it means but it perhaps tends to distract attention from why the considerations
of what warnings ought to be given to a jury in any event given a whole range of factors but not factors
upon which section 36BE turns.
MR MILLER:	Yes, Your Honour, that is correct, if I may

respectfully say so. Section 36BE confuses the

position by referring only to the rule of law or
practice that called for a corroboration direction

in the past.

McHUGH J:  But, that rather means that your real point was

the second grotmd of appeal to which His Honour refers

rather than the first and then the question ,::.rises

whether that is a special leave ground.

MR MILLER:	Yes, well, if I am driven to that position, well then, what is special about it, is that the dicta to
which I have referred of Chief Justice King and
Mr Justice Lee, for example, are stressing that in

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any case where you have a stand-alone witness,

then the jury must be told that they should scrutinze
with care the evidence of that witness. Perhaps,

as Mr Justice Deane has indicated, I have overstated

the Victorian position but I see the Victorian

position as being a much more rigid one than that,

that really because of the abrogation of what was

referred to as the obsolete rule, the trial judge is

not required today to give any form of direction,

anything like that, in a sexual assault case a11.d t':at, I v-7ould
respectfully submit, is what our Court of Criminal

Appeal has also said. It is up to the trial judge to

do what he likes but there is really no obligation to

give any form of safety or caution directions. Now,

in my submission, that does still remain a special

point because if there is a two-tiered process,

that you have to look at section 36BE in its

equivalence and discard or accept the need for a

corrobation direction, that is only one-half of the
task. In all cases, as Your Honours have pointed out

to me, where there is a stand-alone witness, there

will remain this further question.

McHUGH J:  I am not sure that it is as simple as that. If

you approach it from the other direction and say,
'Because of a whole lot of things, in this case the age

of the case and so on, I must give an appropriate direction", and com: to the conclusion, as you well might, that the only appropriate direction is the traditional corroboration direction, you bring yourself

back in the section.

MR MILLER:  Yes, I would respectfully agree with Your Honour

if you look at it from that point of view, you do.

DEANE J:  But, that would be a subsection (2) case.

MR MILLER:  Yes, it would. So, in this case, then, perhaps

I could start - really, my argument encompasses both

points - I can start confidently with that submission,

that really this was a subsection (2) case in any

event because, after all, the age of the girl and the

period of time which had elapsed and the fact that

she stood alone, were all factors which you would

think would demand, if there ever was going to be a
case, a corroboration direction. But, even if that is

not so, then certainly the case must have demanded

some form of warning which was positively considered

by the trial judge but abandoned and, likewise, in the

Court of Criminal Appeal.

BRENNAN ACJ:  Does it not come down to this, that accepting

that women in sexual cases are not in a special

category of unreliability and accepting it for the
purposes of this case,as well as every other case, is

the sunnning-up, so far as it is recorded at page 153,

adequate in the circumstances of this case?

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MR MILLER:  Well, if it did come dmm to that, the answer,

in my respectful submission, would be a definitive, "No",

because it does no more than say what the position is

in any case,that the Crown must prove its case

beyond reasonable doubt. This was a case in which he
only had two players; the complainant for the Crown and

the accused, therefore it was totally inadequate.

BRENNAN ACJ:  If that is the real nature of the problem,

is it. a special leave caseJ

MR MILLER:  It would only then be a miscarriage of justice case

if I am driven to that back-foot position, if I can put

it that way. Clearly, I would have to accept

Your Honour's formulation; if that is all that is left

of the case, there is nothing special about it; it is

a question of whether chere was a miscarriage of

justice or whether there was not. The Court of Criminal

Appeal below took the view that there had not been

but because they thought that was adequate and yet, in

my submission, it must be quite clear to this Court that

thtt wa:; never adequate in the context of this case so

that pechaps under section 35A of the JUDICIARY ACT

one could ultimately say, at least, that there has been
a miscarriage of justice in this case if you were driven

to that point. But I do respectfully submit that there

are more important considerations at issue in this
application and one only has to see the way in which the

Courts of Criminal Appeal of the States that I have mentioned have been grappling with it to see, if I may

respectfully say so, some confusion of approach. On

the one hand you have got some justices taking the view
that you can still basically take the view that for one

reas8n or another girls do make :omplaints in sexual

cases for reasons which can ne': ::r be fathomed and

whatever the section says abou: abrogating the rule,

that is a live factor which might induce a judge to give

a direction to a jury of the need to scrutinze your

evidence with care or,at a higher level, a corroboration

direction.

BRENNAN J:  Unless the true meaning of a section is simply

that girls do not do that; whether the individual

prosecutrix does is a different question.

MR MILLER:  Yes, and that being so, the section will mean

nothing really of the philosophical proposition -

BRENNAN ACJ: It might mean quite a lot in practice because the

rule used to be that once you had the female
prosecutrix the warning was given even though there was

nothing about the evidence that she might have given which

¼Duld have justified the slightest adverse conrrnent or

suspicion.

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MR MILLER:  Yes, and that does point up the distinction

between the current position where you might now have

a trial judge, as this trial judge did, taking the

view that, "Because of the section, I cannot give

a corroboration direction because I can find nothing

really special about this case", and that is a most

unfortunate position, in my submission, because the

trial judge does not have to take that view. That is

not the necessary interpretation of the section as

Chief Justice King says and that is a special point,

I would respectfully submit. And in so saying,

Your Honours, I think that really exhausts the

argument for the applicant.

BRENNAN ACJ:	Yes, Mr Solicitor?
MR PARKER:	May it please the Court, may I pass up an outline

of my submissions?

(Continued on page 26)

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BREi'lliAN ACJ :  Yes , Mr So 1 i c i tor ?

MR PARKER:  If it please Your Honours. The section which

my learned friend has opened before Your Honours

is, of course, applicable only to sexual assault

offences.	They are defined in the shortly
preceding section, section 36A.	There was a comment

early on from Your Honour Justice McHugh which I

did not fully catch, I am afraid, sir, but I thought

you asked of my learned friend whether the effect

of this section was that a warning as to accomplices

might not be given.

McHUGH J: 

No, that was for section 50.

MR PARKER: 

I beg your pardon, sir. This section is confined

to warnings about the uncorroborated evidence of
the person upon whom the offence is committed,

that is, the complainant, or victim. The first

paragraph, (a), of the provision is in terms that do not differ materially from the provisions in

three other States that have been referred to.

With respect, we do not see in the decisions

that the Courts of Criminal Appeal of those States
that have been referred to that there is any significant

different in the position reached. Victoria was

singled out and the decision in the case of WILLIAMS

but at pages 202 and 203 that was referred,

(1987) 26 A Crim R 193, and Your Honours will

refer to pages 202 and 203, to the summary in (10)

point 4 that was given. The second point of those
ten, on page 202:

This has the result that the law no longer regards complainants in sexual cases as an

unreliable class of witness, and it is wrong

for a judge to convey to a jury that the law

does so regard them. ·

Simply that complainants as a class are unreliable.

Point (3) goes on, specifically: 

If the judge does raise with the jury the

question whether they should look for evidence

which supports or confirms that of the
complainant, he should never do so in a way

which tends to convey to them that he is

directing them as to the law or giving them

a warning which the law in its wisdom has

found to be desirable, for anything he may

say about supporting or confirmatory evidence
is by way of comment on the facts of the

particular case, not by way of warning required

by the law.

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In our respectful submission, that position is

entirely consistent with the position taken in

the other St$tes in the cases that have been referred

to and does not in any way suggest that the judge

is precluded from giving such directions about

the risk that might be present in the particular
case arising from the fact that the evidence against
the person accused is that of the complainant alone.

The other comments that follow in that point (3) and in (4) and in (8) and (9) and (10)

are spelling out what ought to be avoided in the

course of making any such comments which obviously,

firstly, confirms that the court contemplated the

continued giving of directions of a nature which

as comment on the fact designed to ensure that

the jury safely considered the issues in the trial

that attention could properly be drawn to the fact

that the only evidence was that of the complainant

and that there might be, for a variety of reasons,

some risk about that and need to scrutinize that

evidence with particular care.

In our respectful submission, the decision

in the case of WILLIAMS and the preceding cases

referred to in it in Victoria are not out of keeping

at all with the decisions reached in South Australia

and New South Wales in the other cases referred

to by my learned friend. In our second submission,

we drew attention to the rationale for the old

rule and what we understand the provision to be

directed at and the decision in the New South Wales
case of MURRAY at page 19, in our respectful
submission, usefully and sufficiently and accurately

deals with that.

The Western Australian statute is unique in

that it has a paragraph (b) and in our third
submission we draw attention to the intention and
purpose and, in our submission, the effect of (b).

If one looks at the provisions as though it stopped

at (a) - in other words the provision as it exists

in the other States - all it does, in terms, is

to eliminate the rule of law or practice or any

rule of law or practice that might require a

corroboration warning; and I use that in the sense

that that was well known in the law and which this

Court has made clearly known in cases such as

KELLEHER and those preceding it; a full formal

corroboration warning.

What paragraph (a) did was to remove the requirement of law or practice that such a direction

should be given. The object of the provision.

was to ensure that complainants were not presented

to juries, unless there was some special reason

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in the case for doing so, as second class witnesses,

as witnesses who for some reason or other ought

to be scrutinized more carefully than any other.

Merely to remove the rule of law or practice that

required the formal corroboration warning did not

necessarily mean that judges would shed the habits

of a practising lifetime in giving such a direction.

So paragraph (b), uniquely in the Western

Australian provision, took the matter a step further.

It set up a positive barrier in the way of judges

continuing the habits of the past by saying, "Not

only is there no rule of _actice that you should

but you	all not unless you think it is justified."
Now, th	egislature thankfully -

DAWSON J:  ..... what, when the judge thinks that the habit

was justified but still - - -

MR PARKER:  Yes. Thankfully, of course, and with respect

to the legislature, sensibly, they did not go so

far as ~o preclude such a _thing ever happening but they did,

in our respectful submission, try to make more

clear than the provisions in the other States that this was the sort of thing that oughtnot in future

be done in juries unless the judge saw that there

was some justification for it.

TOOHEY J: And yet the two provisions, Mr Solicitor, do not

entirely gel, do they, because paragraph (a) is

a class provision, as I understand it, in the sense

that the rules of law or practice contemplated

by th t paragraph relate to classes of persons?

Parag 3ph (b), necessarily, I suppose, focuses

on the individual:

unless satisfied that such a warning is

justified in the circumstances -

and that cannot mean - well, perhaps I should not

put it that way.

person's membership of a particular class or by Does that mean by reason of that

reason of that person's membership of that class
in the particular circumstances in which that

individual finds himself or herself?

MR PARKER:  I wonder whether Your Honour is not perhaps starting

down a road that is too sophisticated for the

provision inself. You start with a borrowed provision

in substantially common form from those elsewhere
with the setting out to preclude or abolish the

need for a practice which e legislature in its judgment found no longer appropriate and because

of the experience elsewhere or the suspicion or

expectation of the legislature that they thought

to go that one step further in the provision. In

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our respectful submission, however it is expressed,

whether generally or as to a class in (a) and,

more particularly, about the particular case as

in (b), that difference of expression is explained

by the history and by the fact that in (b) they are

necessarily looking at a particular trial and what

a particular judge does in those particular

circumstances rather than some sophisticated
reasoning as to whether a class rule is to be applied
differently or whether the particular paragraph

in (b) is dealing with the situation different

from that in (a).

In our respectful submission, (b) should be

seen as	not in any way abrogating the operation
of (a).	The position remains that there is no

rule of law or practice requiring a corroboration

direction, a formal corroboration direction. The

consequence of that, in our respectful submission,
is that in no case can the absence of a formal

corroboration direction be a miscarriage. The existence of (b) merely confirms, if there was

any room for doubt, that that does not necessarily

preclude a judge from giving such a direction if

the judge feels, in his wisdom, that one should

be given or in these terms if he feels it is

justified. But there remains the position that

if he does not do so, whether or not he ought to

have seen one to be justified, there is no rule

of law or practice that requires one. The consequence is that the absence of a formal

corroboration warning - and these submissions deal

only with such a warning - can not, in our submission,

ever produce a miscarriage of justice.

There will be, in many trials where such

a warning might in the old practice have been given,

be now a live question whether the jury ought to
be warned or directed specially about an aspect

that would have been covered by the old formal

corroboration warning but that is to be governed

by the ordinary principles and in the end the issue

will be whether there is a miscarriage of justice

because the verdict must be feared to be unsafe - - -

BRENNAN ACJ:  Mr Solicitor, paragraph (a) refers to a particular

kind of corroboration warning, does it not?

MR PARKER:	Yes.
BRENNAN ACJ:	And that is a warning:

to the effect ..... on the uncorroborated

evidence of the person upon whom the offence

is alleged -

in other words, it is the character of that person as a person upon whom the offence is alleged which

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used to be the foundation of the corroboration

warning and the source of its requirement. That

no longer exists. But if, in the circumstances

of the case, it is necessary to give precisely

that sort of warning in relation to the evidence
of the person upon whom the offence is alleged
to have been committed, not because that person
is such a person but because of other circumstances

in the case, then paragraph (b) can apply?

MR PARKER: It can.

BRENNAN ACJ:  And the failure to give a direction, precisely

that direction, under paragraph (a), may be a

justifiable ground of appeal.

MR PARKER:  May it please Your Hone:, our submissions are

that your position is correctly reached but not

in virtue of paragraph (b) but in virtue of the

ordinary principles applicable to charges, that

(b) should not be construed as intending to qualify
the abrogation of the rule of law or practice that

(a) sought to achieve, that the whole of the

provision is dealing with the formal corroboration

warning, firmly established as a requirement of

law in the law at the time of the enactment of

this provision, dealing with complainants, the

evidence of complainants in sexual cases, and that

at the end of the day this provisions has abrogated

any rule of law or practice that such a direction

should be given.

If, as a matter of fact, to ensure that the

jury's appreciation of those facts is informed

and that they are not led into any hidden trap
in appreciating the weight and significance and

effect of the evidence and potential unreliability et cetera, some warning is necessary to guide them

and assist them in the interests of a fair verdict
and a proper verdict, then that, in our submission,

does not arise by virtue of the rule of law or	practice that is dealt with in this provision.	It arises from quite distinct principles in the
law.

If, in working out those principles, this

Court shnuld conclude in a particular case that

the only orm of charge that would have satisfied

them is ~~e that went as far as and was in terms

of the old formal corroboration warning about

complainant's evidence, then the failure to give

it may lead to a miscarriage. In our respectful

submission, it is difficult to imagine a case where

the need for such a warning would be seen to be

essential as a matter for fairness or practice

but the possibility certainly is there.

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McHUGH J:	What about the case where the complainant admitted
that she had made unfounded complaints of sexual
impropriety on previous occasions? Surely a warning
would be required in that case, would it not?
MR PARKER:	I hope I am trying to make sufficiently clear

a warning of the type required under the former

established rule of law and of practice about

corroboration warnings of the evidence of

complainants. The three cases that have been

referred to already from the other three Australian

Siates, each deal very extensively with the form

of warning that might be given very much to the

same effect as the old formal corroboration warning

but not bringing it up to being a requirement of

law or that "the wisdom of the law requires members

of the jury that you heed this", bringing it up

merely to be a direction on the fact, comment,

advice and asistance on the facts, in terms very

similar to but preferably avoiding the word

"corroboration" and avoiding formal definitions

of corroboration.

McHUGH J:  But this section seems to go about things or

misunderstand what the old rule was in that the

former rule was stated in an abstract way, the

jury were instructed that the law says that it

is unsafe to convict on the uncorroborated evidence

of a complainant or an accomplice as the case may

be; major premise. Minor premise: this woman

is a complainant. Conclusion: therefore it is

unsafe~ But (a) seems to be talking about:

unsafe to convict the person on the

uncorroborated evidence of the person upon

whom the offence is alleged to have been

committed -

and then (b), you are asked to--

give a warning -

when it is -

justified in the circumstances.

But what is the warning, a warning about this

particular person or a general warning?

MR PARKER:  The warning is precisely the type of warning

referred to in (a). In our respectful submission,

Your Honour's postulation of (b) then was not correct because (b) does not require a warning ever to

be given. (b) merely limits the freedom of a judge

in his judgment and assessment to give such a warning

to those cases where the judge positively concludes

that one is justified.

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TOOHEY J: This is where I have difficulty, Mr Solicitor,

because the sort of warning that was given as

cont~7plated by paragraph (a)	. a warning that
by -	son of a person's membership of a class,

not· y reason of any considerations relating to
that person as an individual but because the person
is a female complainant, a child or an accomplice,

then it is unsafe to convict without corroboration.

Now, if a warning is to be given in terms of

paragraph (b), it is a warning of the kind described

in paragraph (a). Now, what does the judge say,

that by reason of this person's membership of a

class, to wit a female complainant, it is unsafe

in the circumstances to convict on the evidence
of that person without corroboration. That seems

to me to be almost meaningless.

McHUGH J:	I have the same difficulty, if it helps you.
MR PARKER:	Our submissions are that the section is directed

to putting an end to directions of a judge to juries
that because this is a sexual case it is the

experience of the law that complainants' evidence

must be scrutinized particularly carefully and,

in fact, that you should not act on that evidence
alone, et cetera, because complaints of this nature

are so easy to make and so hard to refute - - -

DEANE J: But is not the answer to the question that (a)

is not worded in the abstract at all but because

of the way it is worded it would encompass both

the specific and the abstract warning.	(b) says,
"You will on	give a warning of that kind if you
in fact thin	t would be unsafe to convict on

the evidence of the complainant in the circumstances".

MR PARKER:  I suspect Your Honour has gone with incisiveness

where I was stumbling, sir, but yes -

DEANE J:  I do not know about that.

MR PARKER:  The irection being caught up in (a) and referred

to in (a) is that specific type of direction and

(b) is saying, ''You do not give that sort of
direction - not only is it not required as in (a)

but you do not ever give it unless a judge just

feels it is justified".

McHUGHJ: But that seems to assume that what the judges used

to do is to say, "You shall not convict on the

evidence of" or "It is unsafe to convict on the

evidence of this particular complainant".	But
that was not the way it worked at all.	And juries

can always convict, they were just given this general

warning about the law's experience generally and from that they applied it to the particular case

and reached a particular conclusion.

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MR PARKER:  The law required that in a particular trial

of a sexual offence the judge should give a

warning that it would be unsafe to convict on the

evidence of that complainant unless it was

corroborated. However one assesses how (a) is

formulated, it is directed to that specific event

in the trial and it removes the law or practice

that required the judge in a particular trial to

give that form of warning.

BRENNAN ACJ:	For whatever reason?
MR PARKER:	For whatever reason, yes.
BRENNAN ACJ:	..... the reasons why.
MR PARKER:	The reasons that led to it, the brush might have been a little too broad on the canvas~ with
respect, ~but there are emotive forces driving
this legislation in many parts of Australia and
we have the consequence.
BRENNAN ACJ:	There are two possibilities, are there not?

One is that one which follows, it seems to me, from your acceptance of the proposition that

Justice Deane put to you. It covers warnings based upon class incapacity or on individual

situations. (b) then refers to:

justified in the circumstances -

so it must therefore be directed to individual

situations. The only alternative from that is

to say that a warning to the jury of the kind in

(b) means simply a direction that it is unsafe

to convict but if that be so then (b) has a very

wide sweep because it means that the judge shall
not warn the jury in any kind of case that it is unsafe to convict unless in the circumstances he

thinks he should.

MR PARKER:	Our respectful submission is that the preferable construction is the former of the two put by
Your Honour and the section so construed does not
produce serious difficulty at all whatever may
one think of the policy of it, its application
does not present serious difficulty and it has
not presented serious difficulty in those cases
that have considered  similar provisionsas to
(a), nor has it presented difficulty in this case
when I come to the more detailed consideration
of it.
BRENNAN ACJ:	Does it present serious difficulties in States

where you do not have paragraph (b)?

MR PARKER:  No. Ours is different and unique for that reason.

Our submissions are that the existence of (b) should

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not be seen as qualifying the abrogation ~ the

rule of law or practice; so that, in our 1bmission,

one is not left with the position that it is open

now to say of a trial. "The judge ought to have

considered that a corroboration warning was justified."

His failure to do so is an error. The rule of

law or practice that required it is to that extent

still alive and there has therefore been a miscarriage

and in our submission the approach intended by

the section and the effect which ought to be given
to it is that the rule of law or practice is
abrogated, that a judge may still give a warning
only where the judge, in the course of the trial,

concludes it is justified.

DAWSON J: It is an extraordinary exercise to have to go

through, is it not, because it proceeds on the

assumption that the previous rule was not justified?

MR PARKER:	Yes.
DAWSON J:	And if one does not accept that - - -

MR PARKER: It is pretty clear the legislatures took that - - -

DAWSON J:	View.
MR PARKER:	Yes, and that that is now the law and hopefully (a), in all of the Australian States, will now
impress upon the judiciary that that is the view the should take, this would be the position of the legislature. With those saving erace comments
I do not necessarily disagree from what Your Honour has
put but this is what has been done with ~~e
provision. In our submission, though, t~ : does
not lead us to, as it were, required - leg1slaturely required miscarriages of justice, because the law
still has its ordinary principles which require
adequate direction by a judge to lead to a fair
verdict and that those are fully adequate to deal
with all cases such as these and that that is
expressly, as we read them, the position reached
in the other three States and that - - -

DAWSON J: Can I just test you there? Having said what I

said, (b) really requires you to look not at a

general view of the law or view of the human
behaviour but to look at the particular case but

if the judge in the particular case comes to the

conclusion that a warning is not justified and

it is apparent to an Appeal Court it is justified,

what is the situation?

MR PARKER:  Our respectful submission is that the effect

of the provision is that (a), for all circumstances,

abolishes the rule. (b) goes further and puts

a prohibition in the way of the judge doing what

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his judgment and conscience might require him to

do at trial. That is only relaxed where he reaches

a sense of justification. If he does not reach

that sense of justification -

DAWSON J:	He is never required to .....
MR PARKER:	- - - he cannot give the ruling and his failure

to do it, whether or not his consideration of the
issue of justification was correct, cannot lead

to a miscarriage because (a) is - - -

DAWSON J:  And you can never have a - you really can never

have a ground of appeal that the judge failed to

give such a warning?

MR PARKER:  Yes, that is our submission of the effect of

the section.	Our further submission which I have
just outlined -

DAWSON J: Even though it was a case that cried out for

such a warning?

MR PARKER:  Yes. I am speaking now of an appeal based upon

36BE and in particular paragraph (l)(b). In our

submission that does not, on its proper construction,
give right to a right to have a direction of the

old corroboration type. That is not the intended

effect of the section. It is there merely to -

primarily to limit judges and preclude them from

ever giving such warnings save in the limited

situations allowed and that it is not intended

to give rise to any abrogation of the abolition

of the requirement for such a direction achieved

by (a).

Our respectful submission is that in cases

that cry out for some sort of warning it is not

under 36BE that the case falls io be determined

but under the ordinary principles and it is to those that we would turn because, in our respectful	submission, it is there that this case really comes	to be determined and in so doing, although in our
outline the comment is made generally at the end, we would respectfully question that there is a
basis for special leave in respect of section 36BE
itself because on its proper construction in the
end we would submit one does not achieve ever a
miscarriage of justice for a failure by a trial
judge to give a formal corroboration warning of the type contemplated by the section.

(Continued on page 36)

35   23/10/89

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MR PARKER (continuing):  The real issue in this trial, the

trial below, in our submission, was whether some

special direction beyond that given was necessary or

desirable to enable the jury to come to a safe

verdict. The principles governing that are very well

known in the law and, in our respectful submission,

settled, they being canvassed - - -

DAWSON J:  Mr Solicitor, you speak of a formal corroborative

direction type warning, is that not a little

mis leading? ThE;r:e ffi'3.Y have been a formal requirement

previously that there would be a warning but there is

no particularly formal warning that had to be given,

it could be put in any terms you like:

MR PARKER:  Yes, I accept that, naturally, Your Honour.

Among other cases, KELLEHER makes that clear, although

certain content had to be dealt with. I was using - - -

DAWSON J:  Because, otherwise, the warning was ineffective.

MR PARKER:  Ineffective, yes. I was using the words loosely

attempting to catch up what it is that paragraph (a)

of the section was directed at. If one came to a case,

such as that mentioned earlier by Your Honour

Justice McHugh, where the complainant, who was the sole

witness, admitted fantasies about sexual matters,

admitted those fantasies, fantasized as to those who

had committed those sexual matters, that she had

fabricated evidence about those matters in the past and

so on, clearly, no judge could safely allow that

evidence to go to the jury without some very direct

warning to the jury about its potential .unl!'eliability

and the danger of convicting on it alone. Now, the

concept of corroboration need not be spelt out and

discussed - - -

DAWSON J:  Well, that is playing games. What is that .....

corroboration? What is that crime to corroboration;

I mean, you may not use the word "corroboration", you

do not have to, what is the difference?

MR PARKER:  Well, at bottom line, I do not disagree with the

proprosition that a warning to that general trend may

be given and may have to be given in some cases. It is

required by the ordinary rules of a fair trial; it is

not any longer required by any rule of law or practice

about the evidence of complainants in sexual cases.

It is not precluded by statute, not in the other States

because there is nothing that could possibly say so,

nor in Western Australia because 36BE(l)(b) cannot

have the effect that the judge, if he was properly

considering the case, could fail to see that it was

justified. He is not precluded by section 36BE(l)(b)

but that is not, in our submission, saying that the

obligation to give that direction arises from

section 36BE(l)(b), he is simply not precluded by it.

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The obligation arises from the ordinary principles

of fairness and the ordinary principles governing

directions in the trial and,apart from the cases
cited from the other States, we have referred

Your Honours to BROMLEY and CARR, two decisions of
this Court, and to SPENCER, a decision of the

House of Lords, where particular examples of where

special warnings are required are given and some

discussion of the principles occur.

Turning to this particular case, our sixth

submission, we think, identifies the issues in this

case that could justify some special direction.

They are the time since the events alleged occurred,

the relevance potentially is that this could affect
the ability of both the complainant and the accused to recall anything or to recall accurately or fully.

Secondly, the age of the complainant at the time of the offences. They could affect her: comprehension

of the events themselves as well as affecting the reliability of her present recollection of them.

And, thirdly, of course, from particularly focusing

on the position of the present applicant, the absence

of contemporaneous complaint meant that the events

may to him have gone quite unnoticed and, therefore,
more easily lost in the passage of time than had there

been a complaint and a stir about the events at the

time when they might more readily then have fixed

themselves in his recollection.

DEANE J:  (b) is particularly relevant, is it not, in that

the alleged events occurred between intervals of

sleep in the case of the little girl?

MR PARKER:	Yes.
DEANE J:	And, in one case in a situation where she says she

pretended to stay asleep.

MR PARKER:  Yes, there is no question about the existence of

these considerations. We have tried to set them out

so that they are clearly before us. About them, we

would say, firstly, that their existence simply could
not have escaped the attention of the jury. They were

central to the very limited facts canvassed before the

jury; this was not an enormous trial, it was a very

short trial. These were the remarkable features of the

facts of the trial that here is now a middle-aged woman

coming along to complain about events in her childhood

of this nature after all this time, never having raised

the issue ever before,and the fact that they occurred

when she was six and ten were just so central and so

obvious that there can be, in our respectful submission,

no concern that they may have passed without the jury

noticing them. They were, of course, to various degrees

the subject of cross-examination and specifically the

P1T4/2/JH	37	26/10/89
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subject of submission by counsel and I would mention

there, ,,ery specifically, the submissions of the
prosecutor who very properly, very cautiously, went

to some length about, in particular, the fact that

this was a yotmg girl when these things occurred and

asked the jury to try and put themselves in the

position of that girl in evaluating her evidence now

as a woman. The possible effects, and I have tried to

set them out accurately and fairly and fully so that

we can identify what they are, in our respectful
submission, every one of them is obvious. There is

nothing unusual or hidden or outside the experience of ordinary people in these matters. It is not the

case of a jury perhaps for the first time in their

lives being confronted with the evidence of a polished,

experienced policeman, where chere is a contest over

an unconfirmed oral confession, opposed to the nervous
and hesitant evidence of the accused. It is not the

case of a jury being confronted with an apparently

plausible complainant who happens to be the victim of a mental disorder who has been convicted or acquitted

of offences because of unsoundness of mind and

detained at a mental hospital and so on.

McHUGH J:  But, Mr Solicitor, it falls, does it not, into that

category of cases such as identification cases? A

witness goes into the witness box and very impressively

and confidentaly identifies the accused and juries

are impressed by it and yet we know from experience,

not only in the courts, but psychological tests and so,

just how unrealiable that is. It is the same with

memory - I have always been struck by one of the volumes

of Bertrand Russell's autobiography when a man as
intelligent as he said that when he came to write that

autobiography and read letters that had been written

contemporaneously 30 or 40 years ago, he got the shock

of his life, in effect, at how his recollection had been

totally falsified over 30 years of events which the

letters totally disproved and that is fairly common

experience, I think, of certainly in my own case and I

suspect others as well.

MR PARKER:  So, you have anticipated the submission I would

put in response; I do not question that at all. Our

point is that nothing is more common in the experience

of jurors than just that. We all know how our

recollection plays tricks with us. We all know how

difficult it is to sUIIllllon up specific recollections

of events 25 years ago; nothing is more in our ordinary

experience than that. The fact that this is exactly

what this witness was having to do and what this

accused before them was having to do was so absolutely

central and self-evident and our submission is that the

jury were fully equipped to realize the dangers, the

self-evident dangers, that were within their own

experience about accel)ting · the evidence of somebody who

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firstly experienced these things when such a young

child, who secondly purports to recall them so many

years later, all of those things are something that all of us have lived through, know very well and in the case of many of the juries are parents who have

seen it lived through again in their time by their

children and so on.

BRENNAN ACJ: That is, no doubt, applicable in the case of

memory but in terms of the fairness of a trial is

there not something to be said for the view that when

a complaint is being litigated with more recency

than 26 years, there are the prospects of examining

the circumstances attendant upon the particular

event complained of, the assembly of witnesses and

the like? Now, the jurors, for all they know, might

not be aware that it would be open to an accused
person to cross-examine about the surrounding

circumstances of a trip home from the brother's farm

or whether mother was in the kitchen waiting to

receive a complaint. But, 26 years aftenvards, nobody

can know that.

MR PARKER:  Yes. You have mentioned some particular aspects

of the evidence, Your Honour. Our submissions would

draw to the Court's attention that we are not talking

in the abstract here, we are talking about this

particular trial, about problems in the evidence that

were (a) starkly evident and (b) for all the

substantially significant parts were very much in the

experience of ordinary jurors. I would respectfully

submit, if it please the Court, that in evaluating

whether, (a) the judge was wrong in thinking that in

this case his warnings about, (a) you must firstly

decide on credit and then, (b) you must scrutinze

the evidence of the person whose credit you prefer to

see what part of it you believe, that in doing that

in the context of these dangers of time and childhood

recollection, he was sufficiently for the purposes

of ensuring a safe verdict, alerting the jury to their

difficulties because in the substantial part of the

case and in the core issues, all of those considerations were

considerations that the jurors themselves would have

experienced and could fully appreciate.

TOOHEY J:  Well, that submission assumes, as perhaps it must

in the circumstances, that no direction was given by

the trial judge in relation to any of the particular

matters appearing in paragraph 6 of your outline.

MR PARKER:  I would not at all suggest that he had dealt with

each of those specifically or fully if one were -

TOOHEY J:  Well, let us say or at all.

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MR PARKER:  Yes, a few aspects of some of them received

attention,but I do not believe for the purpose of

drawing attention to these aspects. For instance,

he dealt with the lack of complaint; he dealt with

other objections more in his mind than these.

The lack of complaint, though, was very clearly brought

home to the attention of the jury in the course of
evidence and in the course of addresses so that these

consequences of it were things that were to the jury's

attention - it would not go as far and I cannot attempt

to suggest that it would of saying that the jury could

then go on to work out that there may possibly have

been some other form of evidence able to be led had

this trial happened relati. ---ly contemporaneously.

Obviouslsy, that is not tt position. But, in

assessing whether the jury .) verdict in a trial w re

credit was such a stark issue and there was in th2 life

of the trial such very great material for a jury in

their observation to make assessments of the credit,

the general concerns that we all might feel about this
evidence and its reliability, in our submission, can

all be seen to be matters that could not have escaped

the attention and the consideration of the jury.

I did go so far as to say that His Honour at

the trial did not direct about them. I think it can

be seen that he did that as a matter of choice and decision because at page 109, having concluded his

consideration of the statute, at about lines 38 and

thereabouts, a little above that, he mentions that

he proposes to deal with complaint anyway and there

are other provisions of the EVIDENCE ACT dealing

with that, then he goes on:

In relation to the effluxion of time

comment from counsel can be made.

He, even then, in our respectful submission, was contemplating that those are matters that could

adequately be dealt with in the course of the trial

for the purposes of the jury by comment from counsel.

It is significant in this aspect that at the end of

the trial no direction on these bases was sought or no

redirection. What was sought was a full formal -

without intending to mislead:-a direction of the type

contemplated by section 36BE and that was the only

direction sought. And that, before the court below,

the only complaints made and the only issues raised

by the grounds even as amended were that there had
been no direction of the type contemplated by

section~ BE and that there had been no additional

direction because the evidence was that of the

complainant alone. They are the wor:ids of ground 2A.

It is only to the issue that this was the evidence of

the complainant alone that attention was focused

by gro 0 :.nd 2A. There was no ground focusing attention

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on any of these other matters of unreliability.

The delay, the youth of the complain~nt
at the time; page 153, I think, line 8, if it
please Your Honour, the ground is set out - I am

sorry, that is where it is dealt with, page 147

and it is ground 2A and it raises only:

the evidence of the complainant alone.

And, it is for that reason, of course, as we understand
it, that the reasons of the court below do not go

into these other matters; they were not formally

raised before them. They deal only with the issue

of the evidence being that of the complainant alone

and that is the matter that is the subject of

treatment at page 153 commencing at about line 8.

McHUGH J:  But, the learned judge there, at page 153, is

talking about:

the traditional direction where there

are only two witnesses.

But, there is a lot more to this case than there only

being two witnesses. That is the problem, is it not?

MR PARKER:  My point was. that the ground only raised this

issue because it complained only about the direction

in virtue of the fact that it was the evidence of the

complainant alone and the issues which, in our

respectful submission, are more central -in the

submissions before Your Honours today, the issues of the potential unreliability because of the youth, of the childness of the complainant at the time of the

offences, the effects of that and of the delay before

trial are issues that could not, in our respectful

submission, properly be thought to be raised by a

ground of complain:t_. _ about the evidence being that of

the complainant alone.

I have not thought to delay Your Honours by

asking Your Honours to turn to the cases of BROMLEY

or CARR but Your Honours will recall that in those

cases, this Court recently has (a) stressed that what

one looks for is unusual or hidden dangers, matters

that might not be obvious to the jury which might,

therefore, unless attention is drawn to them by the

trial judge, lead the jury to some unsatisfactory or

unsafe consideration of the evidence. Our submission

as far as we have and can take it, is that when one

analyses the matters that are obvious ones_for thought

and concern· _ here, they are each matters that

obviously are within the ordinary experience of
ordinary people just as it is within the ordinary
experience_ of juries to assess credit, the court leaves

it to them in the ordinary case, from their experience

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of life. These are matters that every one of them

has	elves lived through and seen, no doubt, and
expe:r:2nced others living_ through it as well.	The

obser1ation of youth, the difficulties of recollection

of youth and the difficulties of recollection over

a very long time. And, it was in the face of

very explicit directions as to the need to be

satisfied beyond reasonable doubt that a need to

assess whom you prefer of the two witnesses as to

credit, having identified one of them, what then is it

that you are satisfied is the evidence you can rely

on, the truth in that. In our respectful submission,

there are circumstances peculiar to this case perhaps

that could well leave this Court in the position that

concerned about the safeness of the verdict origin:: 1 ly	it is not shown to it that there is reason to be
reached. And, of course, all of this sin the context that the matters are now raised for specia
leave; that what are the more important issues, at least in our respectful submission, for concern are
not matters specifically raised below and which have not been the subject of specific decision by the Court for that reason.

The only alternative submission that we would put

is if contrary to our submissions, if leave was granted
and if the view is reached that the verdict is

unsafe, there is no reason to conclude that the

evidence of the complainant is so inherently unrealiable

that no jury could properly convict so that a retrial

would be appropriate. If it please the Court.

BRENNAN ACJ:	Thank you, Mr Solicitor.	Mr Miller?
MR MILLER:	If Your Honour please.	On that last point, I had

intended to tell Your Honours something of what

happened in the trial process. You will have

observed from the indictment pages 1 and 2 that there

were, in fact, seven counts and the indictment was

severed into three parts. The first trial related

to counts (5), (6) and (7) on page 2 of the

application book and the accused man was acquitted on

each. The second trial r~late~ to counts (1) and (2)

on page 1 and the accused was acquitted on count (1)

but convicted on (2) and Your Honours will observe

that count (2) involved a different section from the

other seven counts and the trial judge had overlooked
the fact that it did not fall within chapter XXII

so, therefore, the old corroboration direction was

called for, ironically, in a case that combined two

counts; Oine which fell within chapter XXII to which

section 36BE applied, so he had the bizarre situation

where the trial judge was obliged to not give a

direction in relation to corroboration unless he was

satisfied in the circumstances in relation to count (1),

but he was obliged to give a direction in relation

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to count (2). Now, all of that emerged before the

Court of Criminal Appeal and so the appeal was

allowed in relation to count (2) with a strong

recorrrrnendation that it seemed inappropriate that the

Crown should proceed with a retrial and the Crown

duly failed in nolle prosequi in the - - -

McHUGH J:  So, it is only counts (3) and (4) that this appeal

is concerned with?

MR MILLER:  That is right and so counts (3) and (4) are the

only two counts upon which this par·ticular accused ha~. been

convicted and I raise that because of

Your Honour Justice McHugh's question about juries and the way in which you can get these variations. Here is a stark illustration of variations on the

part of juries dealing with charges, all of which

dated back to the 60 s:,_ except for counts (5), (6)

and (7) which, ironically, were the later charges

in time, 1984, 1985 and 1986. Well, that takes up

Your Honour Justice Brenoan_ point but there, of course,

because those counts, (5), (6) and (7) on which he

was acquitted, gave to the accused at trial the greater

opportunity of dealing with the evidence because of

the proximity in time they had.

(Continued on page 44)

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McHUGH J:	They were different complainants?
MR MILLER:	Three different complainants, yes.
DAWSON J:	So he was acquitted on (5), (6) and (7), he was

acquitted on (1) and there is a nolle prosequi

in relation to (2)?

MR MILLER:  Acquitted on (1). Did you say acquitted on (2)?

DAWSON J: Acquitted on (1).

MR MILLER:	Yes.
DAWSON J:	A nolle prosequi on (2), acquitted on (5), (6)

and (7).

MR MILLER:  Yes. He was convicted only on (3) and (4) which

are the subject-matter of this application.

Another pain~, Your Honours, I meant to raise earlier,

it has been pointed out by the learned Solicitor-

General that under section 36BD which unfortunately

is not on the reprint I have given you except
for the tail-end of it., under BD in Western Australia

the trial judge is obliged to give a direction,

there may be various reasons why a woman may not

make a complaint and you can just see the tail

of it on the reprint - I see Your Honour

Justice Brennan has the section. 36BD requires, as a

matter of la~ that the trial judge shall direct

on the question of complaint and a strong direction
was given in this case under BD that there may
be many reasons why a woman shall not make a complaint.

That does not sit easily, in my submission, with declining or refusing under BE to give a direction

in relation to corroboration and there is a connundrum

here because you have got, under BD, a requirement which tells very much against the accused because it explains to the jury, the woman may not make	a complaint for various and many reasons. That	is a strong direction which swings the pendulum
against the accused. But then, under BE, if the
trial judge feels in the circumstances that for whatever reason it is not appropriate to give the
corroboration direction, it only further, in my
submission, swings the pendulum against the accused.

So that when one talks about abrogations,

the abrogations here have multiplied and the position

becomes that much more difficult and hence the

more risk of miscarriage of justice, in my submission.

McHUGH 3:  Mr Miller, is there any prohibition in Western

Australia of cross-examining complainants on previous sexual experiences?

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MR MILLER:	Yes, Your Honour, there certainly is.	You have

to have special permission so to do. And that

is contained within that group of sections at 36

or thereabouts.

Your Honours, the only other point I wish

to make, if I may, is just what happened when the

trial judge summed up the prosecution and defence
cases because my learned friend has rather suggested

that the jury had every opportunity to assess this

case in relation to all of these factors. If one

just looks very quickly at page 123, the way in

which the defence case was dealt with was to put

it really on an equal basis, if I may respectfully

submit it, with the Crown case.

You have two competing cases. At page 123:

The case for the defence represents a

complete denial of either allegation. There
is, as I've mentioned, some acceptance of
the opportunity.-

well, that could not possibly tell against him. And then, the only reference to time appears to

be in the last paragraph at line 45 or thereabouts.

You look back at how she gave her evidence

and what she said, and you ask yourself the

question, "Do we come to that conclusion,

having seen her and heard her?"

That was the suggestion, maybe she had made these

things up because of fantasies.

The defence says, "Why did it take so long, for example, for her to make a complaint or

an allegation?"

And now, interestingly, he uses the word

"corroboration".

I've already given you a warning in relation
to that.	"No force was used, there was no

corroboration," it was said.

That must have been a slip of the tongue. It is

ironic though that the judge, having decided he

would give no direction under 36BE, ·- slipped

out that the defence itself had said there was

no corroboration but, of course, no attempt was

made to expound upon that. But the only reference

to time that I can find is at line 45, the defence

question, "Why did it take so long?"

That is an entirely inadequate dealing, in

my respectful submission, when those issues - and

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it is no good for the learned solicitor to say,

"In the court below this question was not raised."

The totality of the case in terms of the time lapse,

age and the factors such as the girl having been

asleep at the time were all raised fairly and squarely

before the Court of Criminal Appeal as appears

from page 151, at the foot of the page. True,

His Honour Mr Justice Rowlands was dealing with

the first ground but:

Counsel for the appellant submitted that

this case discloses such circumstances and submits that the age of the complainant at the relevant times of the offences, when

contrasted with the age of the complainant

at the hearing, shows such a long time span

so that, by itself, this must justify the

judge in making the necessary finding to give

the warning.

So it was fairly raised in general terms before

Court below. So, Your Honours, that is all I wish

to say by way of reply.

BRENNAN J:  The Court will consider its decision in this

matter.

AT 4.30 PM THE MATTER WAS ADJOURNED SINE DIE

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