Lumley v The Queen

[2005] HCATrans 174

[2005] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2004

B e t w e e n -

CHRISTOPHER EDMONSTON FERNEAUX LUMLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.58 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   If it please the Court, I appear for the applicant with my learned friend, MR J.R. HUNTER.  (instructed by Boe Lawyers)

MR R.G. MARTIN, SC:   May it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the issue raised, in our submission, is an issue in particular concerning the way in which there was an inappropriate assumption by the Court of Appeal of a function which ought to have been reserved to a jury; that is, a jury on a new trial.

If I may take your Honours to the sequence of events.  The first thing to recall is that the jury here had asked a question about a matter of evidence in a way which, perhaps unusually but certainly well within the appropriate interaction between jury and judge at such a trial, focused attention on a question of fact in a way that meant thereafter, in the course of that criminal proceeding, including on appeal, it would be unsafe to speculate about whether the jury regarded that matter as important or not.  The only safe way to proceed was to infer from that question being asked that it was an important matter for them.

That lifts this case at the intermediate appellate level out of the ordinary category of areas where it might be thought, in light of supposed new evidence, that a jury might have come to another conclusion had they had the evidence before them.  Here, unusually, it is known from that account that for appellate purposes one would have to infer it mattered to them.

The question they asked was a question concerning expert medical physiological knowledge, no doubt for the purposes of being used in the course of their reasoning about a mass of evidence, most of which was not expert but was lay or narrative.  Thus the question asked, “Can anal spasm be caused by anything other than penetration; for example, nerve effected?” is one which is in the heartland of the difference which can now be seen in the Court of Appeal between the general practitioner evidence, Dr Culliford, and the special evidence, Dr Lumley.

Now, Dr Lumley’s evidence in effect was dealt with by the Court of Appeal on the basis that all of this was a matter for the jury, which it may be conceded is true on a trial upon indictment, and that for that reason the issue of anal spasm, already having been raised at the trial, the jury determination on it is not one that should be seen as having been affected by the way in which the answer was responded to.  The way in which that question was responded to is not one which, in our submission, would have helped the jury one way or the other.

It is clear, obviously enough, that anal spasm was correctly understood by his Honour at trial as something that was important to the jury; thus the reference we make in paragraph 26.1 of our written submissions to it actually having been selected as an illustration offered by his Honour to the jury of the inferential process.  That, in our submission, makes it clear that what was presented to the Court of Appeal was information which, unless it could be rejected in the Court of Appeal without pretending to be a jury on a retrial, was in the heartland of material which was reserved for a jury on a retrial.

McHUGH J:   Yes but, Mr Walker, this is becoming quite common.  A case is run, Dr Lumley’s evidence is not fresh, now people want a new trial on the basis that there was evidence that they could have obtained, and I am not sure that it really takes the case very far.  I want you to deal with these two propositions.  First of all, Dr Culliford gave evidence, did she not that extreme anal spasm was likely to be due to interference or external stimulus, whether it is an injury due to a medical cause or an injury due to a traumatic cause.  The fresh evidence of Dr Lumley does not really assist the applicant in establishing that the spasm was not involuntary.  All it does is that it raises some possibility that it may not have been.

MR WALKER:   But the possibility is precisely that which then became a matter fit for consideration by the jury.

McHUGH J:   Yes, I know, but you want another retrial.  You have had one trial, now you want another trial to put some evidence before a jury that you did not put before a jury before.

MR WALKER:   Your Honour, there is no doubting that is exactly why we are seeking special leave.  There is no doubt that that is the approach we took in the Court of Appeal and, under statute, section 668E, that is the proper outcome if the court were persuaded or, for special leave purposes, if the Court of Appeal should have been persuaded that there was a miscarriage by reason of the unreasonable nature of the verdict in light of what can now be seen in the Court of Appeal pursuant to their facility.  Their power to receive evidence was a critical or important – I should not say critical ‑ ‑ ‑

McHUGH J:   I am not sure that I understand what you really seek to make of this, other than a debating point.

MR WALKER:   Possibility, your Honour.

McHUGH J:   Did not Dr Culliford say that a cause of anal spasm could have been penetration of an instrument, but she said it also could have been surgical intervention or a natural anal fissure.

MR WALKER:   Well, there were possibilities available following the Court of Appeal consideration, not only of Dr Culliford’s trial evidence but also of what Dr Lumley said, the possibilities available which would not have been consistent with, let alone indicative of, let alone corroborative of, the necessary elements of the offence of which my client was committed – it being critical to recall that my client had been acquitted on one of the rape charges.  So that there was a distinction or discrimination being essayed by the jury which appears to have turned on the difference between one rape and the other, the anal rape, with the end of the walking stick.  That made quite important – more than quite important, certainly important, perhaps to the point of critical – the question about physiology, which is explicit in the questions they actually posed to the judge.

That being clear from the course before the trial, it being clear on appeal that possibilities were raised which were not anywhere near so fully explicated by Dr Culliford’s evidence, there, in our submission, came the jurisdiction, power and, we would submit on these circumstances, the duty to defer to a new jury rather than to decide in the Court of Appeal the effect that that evidence may have had.  Of course I cannot say that this was fresh evidence in the orthodox sense amounting to a thunderclap in terms of the record below.  Those cases are very rare, no doubt.  But, in our submission, the run of cases in so-called fresh, and certainly in the rather broader category of new evidence being considered by the Court of Appeal, the broader run of cases makes it clear that the statutory test of unreasonable or miscarriage of justice looks to what would have been the effect as a matter of the possibilities, not the probabilities and certainly not the certainties ‑ ‑ ‑

McHUGH J:   Yes, I know, but there is a public interest in the finality of litigation and not putting the public and witnesses and others to expense in an inconvenience in rerunning cases.  What you are putting to us comes to no more than, “We have now found another piece of evidence, not that would establish our innocence, but which if put before a jury might help them to find that the defence we made at the first trial was made out.  It might suggest there was a possibility”.

MR WALKER:   Your Honour, that ‑ ‑ ‑

McHUGH J:   Mr Walker, really, the courts ‑ ‑ ‑

MR WALKER:   Your Honour, that is after all the test if there is failure to put a defence which should have been put – I am now talking about a summing up, not evidence.  The test is deprivation of a fair chance of acquittal, possibilities, and it is also the test when there has been attempt to tender evidence which has failed wrongly with the proviso in mind that the matter still is, whether there has been a miscarriage, and it will nearly always fall to be formulated along the lines of being deprived ‑ ‑ ‑

McHUGH J:   Yes, but in all those cases there has been an error as a matter of law, an error on part of the judge at the trial.  What you are seeking to do now is – you have to concede this evidence was available but we did not obtain it, and now we bring it along when our client is convicted and we say, “Well, this is some more evidence that would support this case”.

MR WALKER:   Your Honour, we of course have to accept that we make our application today in the general context of the high public importance of people, both civilly and criminally, being bound by the way in which they prepared for and presented matters at trial.  However, the court has been, in our submission, careful, particularly in light of statutory powers, to receive new evidence, not to lay down any rule which would by inflexibility prevent there being entertained arguments concerning miscarriage of justice in the circumstances of a particular case.  In our submission, that being the species of application which this is this morning, there is this slightly less particular aspect to it.

Medical evidence of a kind about possibilities is the kind of material upon which there would be less rather than more assurance by an appellate Bench that the jury could, as it were, look after things, make up their own minds on the basis of inadequate material.  If there is an inadequacy in the presentation of lay eyewitness accounts of a narrative at the heart of a criminal case, then one can well understand why on appeal it can be said, “You are simply trying to get a fourth, fifth or sixth person to say there was a scramble and a confusion of colour and light”, et cetera, et cetera ‑ ‑ ‑

McHUGH J:   But all you are seeking to do is to get through Dr Lumley direct evidence of what was already a major issue at the trial, namely, that this may have happened without the insertion of the cane or anything else.  I mean he just says you can get involuntary spasm from various causes that were not ‑ ‑ ‑

MR WALKER:   In terms of the real expert – I do not mean Dr Culliford is not a legal expert at law, but an expert in terms of qualifications Dr Lumley was clearly superior, there is the important probabilistic statement that if it was associated with trauma you would expect to find trauma, and there was none to be observed.

McHUGH J:   No.

MR WALKER:   That is a very important expert physiological view concerning what the science of medicine has in its data based observationally concerning what the jury asked the question about.  In our submission, in cases where there is an area of knowledge such as physiological possibilities and the empirical observational data of a science such as medicine, when a court of appeal becomes seized of material that shows there was an inadequacy, then the balance swings against the importance pour encourager les autres; that is, the discipline of litigation generally swings against that and in favour of ensuring that there is justice in the particular case.

It is for those reasons, in our submission, that the general admonition against merely attempting to have a second go would not, in our submission, swing your Honours against a special leave application here once, or if, I can persuade you that in the Court of Appeal what they did in effect was to size up that evidence for themselves.  Now, they did not size it up by saying logically accepting it to its fullest extent this could not matter.  It was sized up on the basis that quasi jury this probably would not have been decisive.  In our submission, that involved decisions of a kind which are fundamentally reserved for a jury, either at the trial or if there be a new trial, in contemplation of the new trial, that one does not avoid a new trial, having found that there is the possibility of a miscarriage in the sense of a wrong factual appreciation of physiological possibilities, you do not avoid a new trial by saying that a jury could have rejected that.

The mantra, as it were, of “This is a matter for the jury” was in this case used in the Court of Appeal recently against the appellant although, in our submission, the fact of there being matters for the jury was the very reason why there ought to have been a new trial.

McHUGH J:   Well, the government medical officer in effect said this could have been caused by the insertion of a cane, and your expert witness said the same thing.  It seems to me that all you are seeking to do is to argue out at length the reasons why that could be so.  There is no ‑ ‑ ‑

MR WALKER:   Well, weighted possibilities are the stuff, your Honour, of medical scientific opinion.  There is a range of possibilities available in terms of the reaction of the human body to multifarious circumstances, but that medical science can weight the possibilities, “This is extremely rare”, “This is usual” and everything in between.  In our submission, what the jury lacked and what they were interested in – they already had the issue opened to them but they showed by their question they were interested in it was in effect concerning weighting of possibilities, not just as the literal reading of their question raised, the mere bare theoretical possibility.

It is for those reasons that there ought not to have been the anticipation of a retrial jury outcome here.  It should have been recommitted to the very place where, by the first jury’s questions, it can be seen the matter could have been appropriately weighed.  Of course we accept that we are asking for another chance for a question of possibilities to be put on evidence superior to that available at trial.  The question is whether in terms of the seriousness of the offence committed, the telling circumstances that the jury had obviously not been persuaded beyond reasonable doubt of at least lack of consent – there must have been lack of consent in the first place ‑ ‑ ‑

McHUGH J:   Well, not necessarily.  They may have thought that ‑ ‑ ‑

MR WALKER:   No, but there probably was, your Honour.

McHUGH J:    ‑ ‑ ‑ given what happened to this unfortunate woman that evidence about that was wrong.

MR WALKER:   Yes, and we have drawn to attention in our written submissions the last of the factors I wish to draw to attention in relation to…..justice position was this was after all a case where the complainant’s evidence was, on any view of the matter, in various aspects of it, unreliable.  For those reasons, in our submission, this is an appropriate case for special leave on the individual merit.

McHUGH J:   The Court need not hear you, Mr Martin. 

The Court is of the view there has been no miscarriage of justice in this particular case.  Accordingly, the application is dismissed. 

The Court will now adjourn to reconstitute. 

AT 11.17 AM THE MATTER WAS CONCLUDED