McEachern v The Queen

[1997] HCATrans 13

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A34 of 1996

B e t w e e n -

MALCOLM JOHN McEACHERN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 11.24 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, for the applicant.  (instructed by Caldicott & Co)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear with my learned friend, MR M.A. NICHOLAS, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

MS SHAW:   The special question in this case concerns the proper directions to be given to a jury as to the use it can make of evidence of complaint.  It is our submission that the cases demonstrate in the different States the different approaches that have been taken to the critical question as to the way in which evidence of complaint is said to bear upon the credibility of the complaint.  On the one hand, the Court of Criminal Appeal in Queensland in the case of King, referred to in our summary at paragraph 4.1, held that such evidence has a double function, firstly, to negative any effect the victim’s silence might have on her credibility and, secondly, of positively supporting the complainant’s credit.            This was the approach adopted by his Honour Justice Perry in the Court of Appeal in the present case. 

On the other hand, the New South Wales Court of Appeal in E’s Case as set out in paragraph 4.1 of our summary of argument, expressly disapproved of directions that entitled the jury to use complaint to support the complainant’s credibility and reliability generally, that that was the direction given by the learned trial judge in the present case and approved by his Honour Justice Perry in the Court of Appeal.

His Honour Justice Sperling in E’s Case held that it was important that the jury be directed as to the function of the evidence - that was at page 460 - and at page 457, his Honour identified the justification for the admission of this evidence as being to meet, and at the adverse inference that might otherwise be drawn,  because a jury might wrongly assume that the victim did not complain.  We say that this more restricted approach is consistent with the historical reason that justifies the admission of complaint evidence.

BRENNAN CJ:   Ms Shaw, Mr Justice Duggan in the Court of Appeal at pages 37 and 38 set out what is the significance of evidence of recent complaint.  Do you join issue with his Honour’s statement there?

MS SHAW:   I join issue with his Honour’s statement, in particular at the top of page 39, where his Honour says that there is a second basis upon which complaint evidence might:

assist with the assessment of the evidence given by the complainant by indicating either consistency or inconsistency between that evidence and what was said at the time the complaint was made.

We say the complaint evidence does not have two purposes.  We say that the only relevance of the terms of the complaint are those described by his Honour Justice Hawkins in Lillyman, namely for the jury at page 177 ‑ ‑ ‑ 

BRENNAN CJ:   Just before you go on, before you leave page 39:

assist with the assessment of the evidence given by the complainant by indicating either consistency or inconsistency -

Is not that what is said on pages 37 and 38?

MS SHAW:   Your Honour, there is a ‑ ‑ ‑ 

BRENNAN CJ:   What is the difference?

MS SHAW:   Well, we say that there is a twofold purpose that his Honour Justice Duggan is giving to the evidence.  The first purpose we say is ‑ ‑ ‑

BRENNAN CJ:   Tell me what the second purpose is.

MS SHAW:   The second purpose is for the jury to consider whether there is consistency between the version given in the complaint and the version given in evidence ‑ ‑ ‑

BRENNAN CJ:    That is right.  That is the first purpose.

MS SHAW:   That is the terms of the complaint.

BRENNAN CJ:   That is the only purpose, is it not?

MS SHAW:   I am sorry?

BRENNAN CJ:   Is not that what you contend for?

MS SHAW:   No, your Honour, with respect.  No, we do not.  We say that the only use that can be made of complaint evidence is to demonstrate consistency of conduct between the - that is between what the complainant does afterwards and the story told by her in the witness box.  It does not have the purpose of establishing consistency between the terms of the complaint and the version given in evidence to bolster credibility on the basis of prior consistent statement.  The only reason that the terms of the complaint were admitted in the first place - because before Lillyman’s Case they were not admissible - was, as is identified in Lillyman’s Case, so that the jury could determine whether or not there was in fact a complaint made.

BRENNAN CJ:   Well, if you are right about ‑ ‑ ‑

MS SHAW:   That is, that there was not ‑ ‑ ‑

BRENNAN CJ:   If you are right about that, the statement would be admissible as a prior inconsistent statement.

MS SHAW:   We say there are two different issues.  The admissibility of a prior inconsistent statement is a totally different issue as to whether or not a prior consistent statement is admissible.  Prior inconsistent statements are always admissible at the behest of the defence, not in a probative way but as undermining the credibility of a witness.  They are not admissible at the behest of the prosecution to demonstrate consistency or inconsistency.  That is the point with which we take issue.

DAWSON J:   I do not understand it, Ms Shaw.  You say it is the conduct in making the complaint that is relevant and not the content of the complaint.

MS SHAW:   No, what I say, your Honour, is that there is not two purposes which can be gleaned from evidence of complaint, there is only one; that the only use that the jury can make of the terms of the complaint is to identify whether or not this in fact was a complaint and, therefore, conduct which was capable of demonstrating consistency.  It does not have a dual purpose.

DAWSON J:   But you have to look to the terms of the complaint to make any conclusion at all.

MS SHAW:   I agree with that, your Honour.  I say that is the sole purpose of the use of the terms.  It does not have a separate purpose to further the complainant’s credibility by demonstrating consistency.  If it was so confined, then there would be no error, but it does not have this further limb to it.  We say that the ‑ ‑ ‑

DAWSON J:   I must say the distinction eludes me.

MS SHAW:   In this area the distinctions themselves are, in any event, very fine, because the only relevance of the evidence we say, which is our special leave point, can be to rebut the assumption of fact that historically was made, that the complainant should make hue and cry.  We say that the directions ‑ ‑ ‑

DAWSON J:   If you are considering a complaint you have to look to see what she said and see whether it is consistent with what she says happened.  If it is, if the complaint if consistent with her account in her evidence, then it serves to buttress her evidence.  It goes to her credit.

MS SHAW:   Your Honour, in my submission, it only goes to her credit in the context of demonstrating that a complaint was made.  It does not have this second purpose.

DAWSON J:   That cannot be.  If the complaint was about something entirely different, you would have to look to see what it was and it would not have that effect.  It has to be consistent, in material respects, with what is given in evidence, or it can have any value.

MS SHAW:   That is so.  I accept that, your Honour.  But what we say is that we are concerned here with the use that the jury can make of the terms, and they cannot rely on the terms ‑ ‑ ‑

KIRBY J:   This matter has a long history in this Court.  I think Kilby considered this, did it not?

MS SHAW:   Yes.

KIRBY J:   What is the essence of the passage in Kilby that you rely on?  What do you say is the authority of the Court, because Kilby was revisited about two months ago in a decision of the Court?

MS SHAW:   Yes.  Your Honour, the difficulty with Kilby, and with Crofts v The Queen, when the Court revisited Kilby two months ago, was that the Court was concerned with the effect of absence of complaint and the relevant directions that must arise.

KIRBY J:   I see.

MS SHAW:   There has been no authoritative determination of this Court on the question of what directions ought to be given if a complaint has been made as to how the jury used that evidence in relation to credibility.  But we say in Kilby’s Case, at page 472, when his Honour, the former Chief Justice Barwick, is describing the historical reason for the exception and, in particular, discounting the argument that the absence of complaint was not probative of consent, in the passage in the middle of the paragraph his Honour makes it plain, in my submission, that the relevance of the evidence of complaint is to her credibility - and this is the last three lines of that middle paragraph, “in that respect”.  In other words, only in so far as it demonstrates consistency. 

So, we say that the High Court has not properly considered the positive views.  But if one says that in accordance with Kilby that consistency is relevant in the context of the historical reasons for the admission of the evidence to the absence of complaint is capable of undermining credibility because of lack of consistency, then the converse ought to flow.  But we say that the different decisions, or the decisions of the courts since Kilby, have taken different approaches because this issue has not been addressed by the High Court.

That is why one sees, in New South Wales, the evidence being limited to expunction, namely, as demonstrating consistency and, in Queensland, the wider view that it goes generally to credibility.  We say this is a critical question because, in any event, the distinction between credibility and the issue in sexual cases is such a fine one that juries ‑ ‑ ‑

KIRBY J:   I suppose the arguments in favour of your proposition are that consistently with excluding out‑of‑court statements which are, in a sense, self‑serving, the court would exclude it as proof of what it said, as distinct from of the fact that a complaint was made.

MS SHAW:   Yes.

KIRBY J:   But the problem is that you get to a point where you have to say, well, it is a complaint and, therefore, you have got to indicate what it was, otherwise it is not a complaint.

MS SHAW:   Yes.

KIRBY J:   But your proposition is that there is a conflict of authority now in Australia between Queensland courts and South Australia on the one side, and New South Wales on the other, and that it is timely that the Court clarified it.  And you say, consistent with principle, you cannot have a bootstraps argument.  You cannot, by your own evidence, out of court, make your own case, or make the Crown’s case a better case?

MS SHAW:   And more than that, there is evidence given by a purportedly independent witness confirming the complaint of rape and its terms which the jury are directed is capable, according to the Queensland authorities, of supporting credibility and, according to his Honour Justice Perry and the trial judge in the present case, of going to the weight of the complainant’s evidence.  The ability of the jury to distinguish between the question of credibility and the question of probity of facts in that situation we say is impossible and, indeed, we say is without justification.

BRENNAN CJ:   Ms Shaw, it is one thing to say there is a conflict of authority.  That may or may not be right.  But in this case, if what the Court of Criminal Appeal in South Australia has said is in conformity with the law beyond doubt and if Justice Duggan was right to say, as he says at page 39, that the significance of consistency was conveyed to the jurors, particularly in the second passage which is quoted from the judgment of Justice Perry, why should this Court now grant special leave in this case?

MS SHAW:   We say that his Honour Justice Duggan, if one looks at the passage at page 7 of the application book, is incorrect in asserting that it does convey to the jury correctly the topic of consistency.

BRENNAN CJ:   You may say that but, if the principle so far as it is laid down in South Australia is laid down correctly, why should this Court grant special leave to consider whether the application of that principle in the instant case was correct?

MS SHAW:   We say that his Honour Justice Duggan purports to be supported by the Chief Justice but his Honour the Chief Justice also agrees with his Honour Justice Perry.  In other words, rather than the judgments making it plain what the position is, we now have two separate judgments quite different with his Honour the Chief Justice substantially agreeing with his Honour Justice Perry and agreeing with his Honour Justice Duggan.  The unfairness to this applicant is that what his Honour Justice Duggan is effectively saying is that if there is a reference to consistency, even if it is in a wrong context, which we say it was in this case, then the summing up will pass muster.  What the learned trial judge had said was, “Does that support her story and make it more credible?”.

If the jury are invited to consider whether or not complaint evidence supports the story of the complainant coming from an independent person, even if that terminology is used, we say that, just like this accused, accused

will not receive fair trials.  So we say that the effect of his Honour Justice Duggan’s judgment is erroneous in allowing juries to rely on prior consistent statements rather than the complaint evidence being directed to the issue of rebutting the suggestion of afterthought.

We say that our Court of Appeal has not rightly limited the admissibility of complaint evidence to its function but, rather, his Honour Justice Duggan has stated that a reference to consistency would be enough.  We say that in this case that is an error of principle and the position in this State is unclear.

We also say the Court of Appeal was in error in recognising the defects in the summing up, in particular the failure to put the defence case.  The linking of distress to complaint evidence and the error that his Honour Justice Duggan acknowledges occurred in relation to complaint evidence, and yet concluded that the summing up was adequate.  We say that this man did not have the trial that he was entitled to have, and each of the defects that were identified, and to some extent accepted by the appeal court, undermined the accused’s credibility but enhanced the credibility of the complainant.

KIRBY J:   This apparently was not a point that was noticed and reserved when the trial was conducted?  No unfairness was perceived in his Honour’s summing up at that stage.

MS SHAW:   Yes, I accept that no exception was taken in that regard but certainly the court acknowledged that there were these defects in the summing up and, in my submission, rather than arriving at misgivings, the court’s approach ought to have been to consider whether or not this man had the trial to which he was entitled, particularly when issues of credit were absolutely critical.  It was oath against oath and directions which gave rise to a risk of misuse that could only have been to the prejudice of the accused’s fair trial.  We say for that reason special leave ought to be granted.  If the Court pleases.

BRENNAN CJ:   Thank you, Ms Shaw.  We need not trouble you, Mr Millsteed. 

In the context of the summing up in this case and in the absence of any request for redirection by the learned trial judge, Justice Duggan was
right to hold that there was no danger that the evidence of recent complaint would have been misused by the jury.  Accordingly, special leave will be refused.

AT 11.43 AM THE MATTER WAS CONCLUDED