Malone v The Queen

[1991] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1991

B e t w e e n -

JOHN NEVILLE MALONE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

MCHUGH J

TRANSCRIPT OR PROCEEDINGS

AT PERTH ON TUESDAY, 22 OCTOBER 1991, AT 11.21 AM

Copyright in the High Court of Australia

Malone 1 22/10/91

MR H. SKLARZ: If it please the Court, I appear for the

applicant in this matter.	(instructed by Benari &
Co)

MR J.R. McKECHNIE, QC: If Your Honour pleases, with my

learned friend, MR G.T.W. TANNIN, I represent the

respondent. (instructed by the Crown Solicitor for

Western Australia)

MASON CJ: Yes. Yes, Mr Sklarz.

MR SKLARZ:  If the Court pleases, this is an application

made by John Malone for an extension of time within

which to seek special leave to appeal against a

conviction and sentence. He has filed an affidavit

in support of his application sworn on 17 August of

this year. In the first 10 paragraphs of that

affidavit he deposes to circumstances of the

history of the matter, where he was convicted in
the Supreme Court of Perth on 8 August 1989, in

respect of one count of rape, as it was then known;

that:

On a date unknown between 1 January 1982 and

31 December 1982 at Kelmscott -

he so -

committed rape upon one KAREN LYNETTE MAYS.

I was sentenced on the 10th August 1989 to 12

years imprisonment and ordered eligible for
parole.

He subsequently appealed that determination and sentence and that appeal was heard by the Court of

Criminal Appeal on 7 March and handed down - - -

MASON CJ:  We are familiar with the history of the matter.

MR SKLARZ:  Yes. The circumstances, succinctly, are that he

comes to this Court seeking a special leave on the

basis that there is a general public importance

with respect to the considerations to which he has

deposed at paragraph 15 of his affidavit.

Succinctly, I would wish to address the Court with respect to the first two, that being:

The determination of whether the potential

injustice caused to a defendant by reason of

the long delay between alleged commission of an offence and its prosecution, coupled with the lack of specification of the offence;

should be addressed and the subject of a

warning in a trial Judge's direction to a

jury.

Malone 22/10/91

And, coupled with that, sub-paragraph (2), being:

The determination of whether a trial Judge is

bound to warn the jury of the increased

likelihood of error and fallibility of memory,

with delay, in a witness' testimony,

especially where those alleged events occur

during childhood.

The circumstances here are that not only was

there a long delay in respect to this matter coming

to the court - namely seven years - but similarly,
the complainant was only 10 years of age at the
time of the alleged rape, six years when,

apparently, evidence was given of some form of

interaction or relationship with the accused, as he

was then.

Similarly, the two Crown witnesses, as it

were, endeavouring to support the complainant's

evidence in respect to that relationship with

Malone, were of very minor years, eight and 10

years of age.

The Court of Criminal Appeal, in considering the application of the Longman case, and its

principles, as they were invited to by submissions

on that occasion, in my respectful submission to

this Court I say that they incorrectly

differentiated the principles of Longman, and

distinguished Longman incorrectly with the

principles and the facts as prevailed with Malone.

If I can draw Your Honours' attention to pages 44

and 45 of the application book. At page 44,

His Honour Judge Brinsden, in his decision, refers to the Longman case, and he refers to the various

enunciated principles there dealing with:

Firstly, the offences were alleged to have

commenced when the complainant was asleep.

And I would concede that that set of circumstances,

case, has some warrant. But he went on to say	for what it is worth, as different to Malone's
that:

She testified that on each occasion she

pretended to remain asleep. She stated that

after the incident in Longman's bed she went

back to sleep. She was about 6 years old -

that age not being too different to the juvenile

age of the complainant in Malone's case. Both

offences had occurred over a 20 year period, in

Longman's case.

Malone 3 22/10/91

Furthermore, the evidence was uncorroborated.
His Honour went on to refer to the fallibility

of memory -

and then the aspect of the textbook, Hunter,

Memory, was referred to, and also some adverse

feelings that the complainant in Longman's case

subsequently felt towards the accused.

At page 45, His Honour Judge Brinsden, in

fact, seeks to distinguish Longman with the facts

and circumstances of Malone by saying that they are very significant, and it is with that qualification

that the applicant challenges the distinction here

today, because - - -

TOOHEY J: But it is misleading, Mr Sklarz, is it not, to

say that the court distinguished Longman.	The
court applied Longman in so far as Longman

addresses questions of principle, but simply said that, having applied it, there was nothing in the

facts of this case which warranted a particular

warning of the sort that was thought necessary in

Longman.

MR SKLARZ: With respect, my understanding is that Longman

was referred to and the principles considered, but

it may be a little generous to suppose that Longman

was properly adhered to and applied in Malone's

case because, for example, in the distinguishing

factors, as His Honour refers to at page 45, there

are certain errors. He says, the fourth line from

the top:

Though there was a delay in this case of 6

years, that is very much less than a delay of

20 years as in Longman.

Well, the suggestion I would put is that if a

person's fallible memory fails at a term of a six

year period, it becomes a moot point as to how much

longer that fallibility exists. So to the extent

of a child, particularly, there is some concern

that it may not require an inordinately long period of time of 20 years before proper consideration and

application should be given to Longman. I would

respectfully suggest that six years itself is also

a significantly long period of time.

TOOHEY J: But the question of delay is not relevant only to

fallibility of memory, is it?

MR SKLARZ:  No, it is one of - - -

TOOHEY J: It is relevant to the opportunities that the

accused has to rebut the allegations made against

him or her. In some cases, a delay may not be

Malone 4 22/10/91

particularly significant. In other cases, it might

be crucial.

MR SKLARZ:  Yes, that is correct, and must be considered in the circumstances that prevail. My submission is

that that is one of the aspects that prevailed that

should have been coupled also with the fact that

His Honour on that occasion said that:

Secondly, there was nothing in the alleged disadvantage of specificity.

Well, here we have a period of one year, of 1982,

from 1 January to 31 December of that year, being

the operative period for the alleged offence to

have occurred and, as I have referred in the

numerous parts and extracts of evidence, there were

alleged sexual acts of one sort or another alleged

right through from 1978 to the date of the

accident, being June 1984.

So that aspect of specificity, in my

respectful submission, is a disadvantage that the

defence has, not only in considerations of alibi,

but in the general considerations of this case

where many alleged matters and acts were referred

to. Not suggesting that each of those sexual acts

was specifically a rape. And that also was coupled

with the third consideration, that:

The evidence of Karen -

being the complainant -

was not uncorroborated, but indeed,

corroborated in a number of important respects

by the other two girls.

Again, my respectful submission is that

His Honour incorrectly considered that there was

corroborative evidence in respect to the other two

girls. Putting aside their very delicate age and

the lateness of the complaint and childhood

matters, again, in my written submissions in
argument to this Court, there are many extracts

referred to where, in fact, one can only infer

matters of corroboration, but there is no such

explicit corroboration to be distinguished to

Longman's case, bearing in mind that Longman was an

uncorroborated evidential case.

And particularly, one extract, if I may refer

to page 16 of the application book, submissions

there succinctly are made that:

Melanie McAleer -

Malone 22/10/91

being one of the girls -

in 1982 -

says that she "can't remember clearly"; that there

was "no evidence of the accused's penetration of

the complainant" -

"She sitting down on his penis" -

were her words.

He tried the same thing to you?

was put to her in examination; she said -

Yes.

The same thing as he was doing Karen?

Yes.
Could you feel his penis?
Yes.

Did he enter you?

NO.

Now, the general flavour of the allegation

that there was some sexual activity is one thing,

but to infer that there was penile penetration

tantamount to rape, as it was in the old Act, is

really a long bow indeed, and there we have the

explicit response and a denial to the allegation

that he so entered her.

There are other numerous matters that I refer to in the extracts in my submissions as to the lack

of memory, repetitive answers, by all three of the

complainant and both her witnesses, that is the

three juveniles, all qualifying their evidence with

lapses of clear memory problems.

So, respectfully and succinctly, the

application is that the court, in considering

Longman, did not apply it as in fact Longman was

very much tailored, or Malone in fact tailored to

the Longman case circumstances and, in that case,

as this Court well knows, the determination was
that a warning, as indicated, should have been

given. And clearly, in the absence of such a

warning, there is that perceptible risk of a

miscarriage of justice occurring as, in my

submission, has occurred in Malone's case. That,

succinctly, as I say, is the kernel, as it were, of

Malone 6 22/10/91

the applicant's submissions to this Court, among

the other things that are referred to in the papers

before this Court.

There is also, as I indicated at the outset,

leave sought in respect to the sentence. The

sentence was a very long one indeed, of 12 years,

though eligible for parole, for one act which
transpired many years prior, some seven years

prior, to the trial and the sentencing. And

further, in aggravation of that, the 62-year-old

accused was very senior in his age, in considering

the personal antecedents, the circumstances of the

sentence, and similarly, it was only one count of

rape for which he received what, in my submission,

is a manifestly excessive sentence. Unless

Your Honours have any questions of me, that

succinctly is the application today.

MASON CJ:  Thank you, Mr Sklarz. The Court need not trouble

you, Mr McKechnie. So far as the proposed appeal

against conviction is concerned, the Court is not

persuaded that the decision of the Court of

Criminal Appeal is attended with sufficient doubt

to justify the grant of special leave to appeal.

So far as the proposed appeal against sentence

is concerned, the Court is not persuaded that the

challenge to the decision of the Court of Criminal

Appeal involves any question of general principle.

The application for special leave is therefore

refused.

AT 11.36 AM THE MATTER WAS ADJOURNED SINE DIE

Malone 22/10/91