M v The Queen

[1994] HCATrans 329

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S62 of 1993

B e t w e e n -

M

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Copyright in the High Court of Australia 1 12/5/94

AT SYDNEY ON THURSDAY, 12 MAY 1994, AT 11.16 AM

MR B.W. COLLINS, OC: If Your Honours please, I appear with

my learned friend, MR P.G. MAIDEN, for the

applicant. (instructed by Back Schwartz Vaughan)

MR K. MASON, OC. Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MR COLLINS:  Your Honours, my most daunting task is probably

to convince Your Honours to place to one side the

earlier pieces of paper that have been provided to

Your Honours and ask Your Honours to look at the

last one which is the only piece of paper which

Your Honours need to look at in order to -

MASON CJ:  Mr Collins, it is not your fault, but it is a

matter of some little concern that we do find that
the submissions are being replaced at the last

minute - not merely in this case but in other cases

as well.

MR COLLINS:  I understand, Your Honour. It was for that

reason I said that was my most daunting task.

MASON CJ: It is not daunting in the sense that - I have

looked at them and I think the other members of the

Court have also looked at them.

MR COLLINS:  I thank Your Honours for that. The point of

the submissions was to endeavour to expose, with

due respect to those who preceded me in this case,

with a little more clarity precisely what the

applicant for special leave was advancing. It can

really be grouped under three broad headings. In

the first place, Your Honours, consistent with the

way· in which this Court approached the matter in

Palmer and in Morris, the submission is that, even applying the principle in Whitehorn, as His Honour

Mr Justice Sully said he was, there was in a number

of significant and important respects a failure to

deal with evidence which was of moment.

The second broad submission can be dealt with

by my reading a passage to Your Honours from the

decision in this Court in Carr, which I shall do in

a moment, so that I may endeavour to develop the

submission that there is an important point of

principle in terms of the direction which the

Courts of Criminal Appeal should take. The

proposition which, in our submission, emerges from

Carr involves a consideration of the question

whether there are judicial differences of opinion

concerning the state of the law on the important
question of the application of section 6 of the

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Criminal Appeal Act. That is what I might call

Your Honours, broadly the second submission.

The third matter to which I propose to devote

a moment or two in the course of our application is

the question whether, regardless of there being a divergence of opinion between the members of this

Court on the question of how section 6 is to be

applied, what Mr Justice Sully did when he spoke

for himself and the other two members of the Court

of Criminal Appeal was to pose a test which really

had nothing to do, in our respectful submission,

with Whitehorn or with Morris or with the

difference of judicial opinion expressed in Carr

and, in particular, that part of His Honour's

judgment which referred to His Honour's perceived

need to point to something so destructive of the

credibility of the version of the complainant.	In
so far as His Honour saw that as the necessary

trigger for action under section 6 of the Criminal

Appeal Act, it will be our submission that

His Honour was quite wrong in so doing.

Your Honours, may I move to the written

submissions, if I may.

MASON CJ: Where did His Honour get that from?

MR COLLINS:  Your Honour, with the greatest of respect to

His Honour, no matter how one reads Chidiac,

Morris, Palmer, Carr or any of those cases, one

cannot find in isolation or in combination a series

of principles or a principle which can be

translated into what His Honour said. Our

submission in attacking - - -

MASON CJ:  I am not aware of any authority to support that

proposition.

MR COLLINS:  No, Your Honour, and, with great respect, we

have searched the authorities which gave His Honour

trouble in the way that I will return to in a

moment. There has not been, in our respectful submission - certainly not in this Court - any

support for such a proposition because what

His Honour was doing was to put the bar, if one

could put it in colloquial terms, far too high. To

say that "unless there is something so destructive

in the evidence of the complainant, we will not
invoke the provisions of section 6" was to ignore

altogether the significant possibility, in our

submission, that at the end of the complainant's
evidence in a criminal case, he or she may well not

have been damaged in cross-examination. There may

not be significant blemishes upon his or her

evidence but - - -

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MASON CJ: But, Mr Collins, it is a little curious that the

proposition should be enunciated by His Honour in

these terms because in other parts of the judgment

there seems to be some nostalgic regret that this

Court has not adopted the "lurking doubt" formula.

MR COLLINS:	Yes, the "yearning for old England" to which Your Honour refers is, in our respectful
submission, something of a mask in this case
because, with great respect, Your Honour, what
enunciated by Your Honours Justices Deane and
His Honour was really saying was that the principle him trouble. In our respectful submission, he was
able to identify the concern he had and express it
in terms of Morris.

TOOHEY J: You seem to have left Justice Gaudron out.

MR COLLINS: I am sorry, Your Honour. I need to say

something about her in a moment because - - -

DEANE J: No, in terms of Morris.

TOOHEY J: In terms of Morris.

MR COLLINS: Yes, Your Honour, because last evening I was

grateful to my learned friend, the

Solicitor-General, for drawing my attention to

Knight, a decision - - -

TOOHEY J:	I was thinking only of your reference to Morris.
MR COLLINS:	Yes, but Your Honour was kind enough to remind

me that Her Honour was one of the Justices who

heard Knight, 175 CLR, and, in a joint judgment

with His Honour Justice Brennan, said things which

are not altogether on one view consistent with the

approach taken in the joint judgment of

Your Honours Justices Deane and Toohey. I am bound

to draw that to your attention immediately, and I

do so and express my gratitude to the Solicitor. But may I try to dispose in a moment or two of

the first ground of argument which essentially
takes the form of the Morris submission,

Your Honours, and if I could endeavour to point to

that part of the application book where

Mr Justice Sully expressed himself as applying the

principles in Whitehorn. I have referred to that in paragraph 1 of the submissions and I shall not

say any more about that.

Then in paragraph 4 of the written

submissions, we take _the point where His Honour

concerned himself with that passage in the joint

judgment of Justices Deane, Toohey and Gaudron.

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Then, having said that he was going to apply

Whitehorn, he then, in the material which we have

collected together, Your Honours, in

paragraph 7 - all of the material in paragraph 7 is

not challenged and it all derives directly from

Mr Justice Sully's reasons for judgment. So may I

then go immediately to paragraph 8 because to those

matters in paragraph 7 must, in our submission, be

added the matters in paragraph 8.

Having referred on two occasions,

Your Honours, to the fact that two doctors were

called, His Honour did not refer to the evidence of
the psychiatrist, Dr Mason. At the top of page 7
of the submissions, we have extracted the essence

of this evidence. It can be put in two different

ways. The complainant was a twelve and a half

year-old girl. She, so the evidence disclosed -

but the treatment in the Court of Criminal Appeal

did not concern itself with this - had been since

1988 under psychiatric care. There was no evidence

led by the Crown of any complaint made to the

treating psychiatrist, but certain aspects of the

psychiatrist's evidence raised matters of

significant concern. Those matters in essence were

that you had a twelve and a half year-old girl who

had made a complaint, whose complaint was not

corroborated, and the evidence of the psychiatrist

discloses that she had made a previous complaint,

making sexual allegations against her eight

year-old sister and, in her consultations with the

psychiatrist, had also referred to others in her

class, or another lass in her class, as having been

the subject of a sexual attack of this kind.

Your Honours, nowhere in Mr Justice Sully's

treatment of the matter is the evidence of the

psychiatrist referred to. Dr Mason's name is

mentioned obliquely in the course of the transcript

of some cross-examination by Mr Porter, but

Mr Justice Sully did not refer to the fact that

this young girl had been under treatment by a

psychiatrist for psychiatric reasons since 1988.

Neither was there any reference made to the absence

of any evidence of complaint when the complainant

went to see the psychiatrist in the month

immediately following the dates of the alleged

attacks.

The second matter not referred to and not made

the subject of the independent evaluation in the

Court of Criminal Appeal was the evidence of

Dr Holloway, Your Honours, and that is picked up at

page 7 in subparagraph (2), and the point the

complainant makes to Dr Holloway and the

discrepancy between that and the evidence she gave

at the trial was not referred to. In (iii), the

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next matter not referred to was the inconsistency

between three matters: the complaint to

Dr Holloway, where there was no complaint of rape; the complaint made to Dr Fleming at page 70 of the

application book clearly appears to have been a

complaint not of penetration but simply that the

penis was placed against the vagina.

Then (iv) on the next page, the fourth matter not dealt with, Your Honours, is the question of

the direction that was sought. It was for that

reason that I sent to the Court the passage in the

transcript, but Your Honours do not need to go to

it, with respect, because I have reproduced the

question and answer which was not dealt with.	It
is true that Mr Justice Sully did refer to that

piece of evidence. However, he referred to it only

in relation to the direction point, the complaint

made about the learned trial judge's direction.	He
did not, in our submission, look at it in the course of an independent assessment of the evidence.

Your Honours, may I move to the next point

which can be dealt with by my referring

Your Honours to the judgment of Justice Brennan in

Carr v The Queen, 165 CLR, if I may hand that to

Your Honours. I want to do no more than go to

page 333, if I might. Perhaps I will just lead in

at the bottom of page 332, the first words in that

sentence:

In a joint judgment Deane, Toohey and

Gaudron JJ expressed a preference for an

approach stated in terms which appear broader

than the terms in which the test had been

expressed by the majorities in Whitehorn and

Chamberlain [No 2] -

Then in the quoted passage indented, there are the

two, if you like, Your Honours, different signposts

with which His Honour Mr Justice Sully was greatly

concerned. In the first sentence, which is later

made the point of distinction by Justice Brennan,

there is the expression:

we would think that there might be verdicts

falling within the concept of miscarriage of

justice, as that expression is used in the

common criminal appeal provisions, by reason

of some defect or weakness of the evidence

even though on the evidence it was open to the

jury to be satisfied of guilt beyond

reasonable doubt, as, eg, where there is some

feature of the evidence which raises a

substantial possibility that the jury may have

been mistaken or misled.

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That is what His Honour Justice Brennan refers to

as the first sentence in the passage. The second

sentence which provides what we would respectfully

submit is possibly to be regarded by Courts of

Criminal Appeal as a different signpost:

Whether or not this be so, it is clear that

the question whether a verdict is unsafe or

unsatisfactory involves a Court of Criminal

Appeal undertaking an independent examination

of the relevant evidence to determine whether

it was open to the jury to be satisfied beyond

reasonable doubt as to the guilt of the

accused."

With the greatest respect, I am unable to

agree with the broader approach expressed in

the first sentence cited.

Then His Honour went on to explore the implications

of the different approaches, and I shall not

develop that with Your Honours because time will

stand against me. What we do want to say is that

what M's case presents in the most strident

practical fashion is the case which stands at the

margin of sentence (1) test and sentence (2) test

because, in our submission, sentence No 1, which

refers to the test in broader terms, is the very

matter which His Honour Mr Justice Sully was

striving towards when he made the reference to

English authorities but which, when one reads his judgment carefully, can only be a reference to the

breadth of the approach in Morris. His Honour, in

two passages which I would like to take

Your Honours to, shows, in our respectful

submission, as sharply as one can how those

principles had a cutting edge for the applicant in

this case. The two passages to which I refer are

at page 85 of the application book. If I might ask Your Honours to go to that passage, it is at line 7 where His Honour said: For my own part, I would say at once

that, were it permissible to approach the matter upon the basis now accepted in the

United Kingdom, I would favour upholding the

present appeal -

If the judge had stopped there, Your Honours, it

may have been just a hankering for the principles

in the United Kingdom which have long since been

held to be inapplicable in this Court. However,

when His Honour went on to say, "upon the ground

now being discussed", it is, in our very respectful

submission, clear that what he is doing is speaking

of the broader ground.opened up for His Honour in

Morris. It is not, as it were, some nostalgic

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appeal for a return to English principles which I could not contend for as being applicable in this or in the Court of Appeal.

Then, Your Honours, the next passage which shows that His Honour would have taken a different

course had he regarded himself as being free to do

so is at the bottom of the next page of

His Honour's judgment. At page 86 of the

application book His Honour said something which

paints up, in our submission, the practical

importance of the difference between the test in

sentence (1) and sentence (2) in this case, where

His Honour said:

it must be, in my opinion, a matter of anxious

concern to this Court that a miscarriage of

justice might have occurred.

Your Honours, those are the passages upon which we

rely in establishing that His Honour would have

acted in a particular way were His Honour to regard

himself as being free to do so in accordance with

the first sentence of that passage in Morris to

which three Justices of this Court put their names.

The final argument, Your Honours, if I might

go to it before closing, is that in which the

applicant fastens, as it does at page 10 of its

submission, upon what, in our very respectful

submission, is the curiosity of the test that was

in fact applied. Regardless of what I put earlier
as the existence of the two different signposts,

regardless of the passages which His Honour

Mr Justice Sully quoted, where His Honour drew

specific attention to Your Honour the

Chief Justice's judgment in Chidiac, referring to

certain categories of testimony, His Honour with

those alternatives available to him departed

entirely from any of them. He did not purport to

amalgamate or to modify or qualify them, but he	then posed a test which, in our respectful	submission, has no authority in any of the
pronouncements of this Court or in any other court.
For those reasons, Your Honours, we say in our submissions at the end of page 10 that there was no
independent assessment of all of the available
evidence and the critical omission there was the
failure to deal with the fact that a twelve and a half year old complainant in a sexual matter had
been treated by a psychiatrist, and she had been
aware of and had discussed the very sorts of
consequences of making a complaint of this kind
which she had made against her eight-year-old
sister when she at that time was ten. That matter
was not dealt with.

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Then, Your Honours, the second submission

deals with the special character evidence which

His Honour Mr Justice Sully did acknowledge. But,

having acknowledged it and having set out the

passages from Chidiac and the other cases where

members of this Court have pointed to the special

character of the evidence principle, His Honour

made no attempt to apply that principle. What he

did was, in our respectful submission, to eschew

the principles in Morris, Chidiac and Carr and

adopt an unreasonably narrow view.

The two matters in the passages at pages 86

and 88 which I quoted to Your Honours were very

grave and legitimate concerns, and His Honour had

ample leeway within the principles espoused by this

Court in Morris and in Chidiac to give vent to

those and in so doing, what His Honour should have

done, in our respectful submission, was to find

that there was a real possibility here that this

jury had been mistaken, and the verdicts of the
jury should have been set aside accordingly. Those

are our submissions, if Your Honours please.

MASON CJ: Thank you, Mr Collins. Yes, Mr Solicitor.

MR MASON:  As to the first point, Your Honours, our

submission is that the failure to review all of the

matters of fact which an applicant might seek to

raise does not show a failure to address the

correct task of an independent review. It would

always be possible, in my submission, to say there

were factual matters which we urged and which were

not addressed in the judgment, but that mere fact

does not show, and indeed there is overwhelming

evidence in the judgment otherwise to show the

contrary, namely, that the Court of Criminal

Appeal, Mr Justice Sully, embarked upon a detailed

independent review of the evidence and, having done

so, reached their conclusion in the application of

section 6.

DEANE J: But Mr Solicitor, is not the problem this: that

Justice Sully seems to be suggesting that the decisions of this Court leave a Court of Criminal

Appeal absolutely uncertain about what is the

appropriate approach to be adopted.

MR MASON:  That is the second and third point that my friend

raised, and my response to that is that there is a

clear majority position in this Court that the view

espoused by Your Honour Justice Deane,

Justice Toohey and Justice Gaudron in Morris's case

has not received the support of the majority of the

Court. Indeed, there is a majority to the

contrary for what I will call the tighter test.	In
Chidiac's case, 171 CLR, at 461 point 8, in our

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submission, Mr Justice McHugh espoused the tighter

test where His Honour said, about 8 lines up from

the bottom:

In exercising the latter jurisdiction,

the only question for the Court is whether

there was evidence which could reasonably

support the conviction if the jury accepted that evidence.

In Knight's case, and I have the relevant extract

to hand up to Your Honours, Justice Gaudron appears

to have joined the view espoused by Justice Brennan

in the passage at pages 510 and 511, in particular

511 about point 4. Our submission is that if it is

on a question of head counting, if I may put it in

those terms, the test is clear and that it does not

include the material in Morris that is referred to

in Carr's case, a passage quoted by my learned

friend.

It is suggested, turning to the third point,

that Mr Justic,e Sully created a new and - the

judgment of Justices Brennan and Gaudron was a

dissenting judgment in Knight's case. It contains

the general discussion upon which I rely.

MASON CJ:  You are treating Justice Gaudron as having

resiled from the exposition in Morris, are you?

MR MASON:  Yes, but even if she has not, she ..... in a group

of three, in my submission.

DEANE J: It does not really answer the problem, does it, in

that it may well be that you can mount an

absolutely compelling argument to the effect that

in individual judgments you can build a majority of

the court who clearly think that that passage in

the majority judgment which was critical to the

decision in one sense, in Morris's case, is a lot
of nonsense. But it is still a most unsatisfactory

position even if the way you are approaching it

does lead to a compelling result.

MR MASON:  It is not unsatisfactory in the sense that it is

causing confusion, in my submission.	The Court of
Criminal Appeal has been - - -

DEANE J:  I think it is though, in that the judgments I have

been seeing, and most of them as you are very well

aware, do not come on to the full appeal, but the

judgments from the various States I have been

seeing seem to be accepting the correctness of that
passage in Morris and acting on the basis that the

intermediate court is under an obligation to do

what that passage says they should do, very often
with unexpressed intimations that they really think

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it is a bit much that they should be required to do

it.

MR MASON:  Your Honour certainly has the advantage of me in

that observation.

MASON CJ:  My recollection is that there are also judgments

of the Court of Criminal Appeal in New South Wales

to that effect, particularly judgments to which

Chief Justice Gleeson has been a party, and judgments delivered since Chidiac, so that this

judgment strikes me as being not only inconsistent

with views expressed by a number of members of this delivered by the Court of Criminal Appeal.

MR MASON:  I, of course, stand on the former ground and

submit that in relation to this particular matter

the decision was correct in point of precedent and

principle.

My submission as to the third point is that

Justice Sully was not putting a judicial gloss

upon, may I say whatever the High Court's test is.

His Honour, at the passage to which my friend takes

exception, at paragraph 14 of the outline, was
simply applying it to the facts of the particular

case. This was a case where, although the jury

could not be told this, it was a clear contest

between the complainant and the applicant. The

Court of Criminal Appeal was properly entitled, in my submission, under section 6 to, as it were, pose

the sharp dichotomy and this was all that

His Honour was doing in the passage there. He was

not saying that this was a universal test, but in a

case such as the present where it was word against

word, and there was nothing inherently incredible

about the evidence of the complainant, then the

court really was in great difficulty in finding

grounds under section 6 to - - -

DEANE J:  It does not really help the administration of

justice, though, does it, when a Court of Criminal

Appeal says, "There is nothing wrong. we cannot

interfere but we are very uncomfortable about the

circumstances of this case, and if it were for us,

on principles of general justice and so on, we

would interfere". It really is calculated to

create a feeling that there is something wrong with

the working of the law when Courts of Criminal

Appeal take that approach.

MR MASON:  They were not saying, "We cannot interfere" in a

technical sense. They were simply being properly submissive to the law as they correctly perceived

it in saying, "Whatever our own views are the test

is at this level", and applying that test which has

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a very significant function, namely, the

endorsement of the role of the jury as having, not
only the advantage but the constitutional function

for being the determinate of guilt and that section

6 is, of course, a large, and one may submit,

growing derogation from what would have been

regarded as the traditional function of the jury

and an acceptance of that function. In my

submission, what I submit is the majority position

of this Court, gives a proper level of recognition

to that role.

MASON CJ: Yes, thank you~Mr Solicitor. There will be a

grant of special leave to appeal in this matter.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

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