MCO v The Queen

[2019] HCATrans 73

[2019] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B60 of 2018

B e t w e e n -

MCO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 12 APRIL 2019, AT 11.19 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, with my learned friends, MR J. ROBSON and MR M.J. JACKSON, we appear for the applicant.  (instructed by Legal Aid Queensland)

MS S.J. FARNDEN:   If it please the Court, I appear with my learned friend, MR C. COOK, for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

BELL J:   Yes.

MR CALLAGHAN:   We need leave, your Honours.

BELL J:   Yes. 

MR CALLAGHAN:   I understand it is not opposed.

BELL J:   This is the affidavit of Ms Strofield?

MR CALLAGHAN:   Correct.

BELL J:   Something of the order of a four‑month extension is required, is that so?

MR CALLAGHAN:   Yes, your Honours.

BELL J:   Yes.  Is that opposed?

MS FARNDEN:   It is not.

BELL J:   Yes, very well, you have that extension.

MR CALLAGHAN:   Thank you, your Honours.  Your Honours, it has been said that human evidence shares the frailties of those who give it.  In this case, evidence was given by a witness who was intellectually impaired and had autism spectrum disorder.  With a view to protecting such frailties as may have attended this complainant’s presentation to the jury, the prosecution adduced evidence from a clinical neuropsychologist and for the purposes of this application we are really focused on the evidence that appears at application book 32, line 25, that is to say, the evidence that the – or the opinion, rather, that the evidence of the complainant “would be brief and lack detail”.

Now, lack of detail is no small thing in a criminal trial.  It is detail that will give evidence the air of reality.  It is detail which will allow evidence to acquire a sense of reliability.  Conversely, a lack of detail is something which might arouse suspicion.  A lack of detail might be a reason to doubt.  In a case such as this which involved accusation such as those here made, for evidence to be thought reliable it is reasonable to expect that it ought be accompanied by certain details, at the very least detail as to things like timeframe and location, and that is why the potential was there for Dr Keane’s evidence to resonate in this trial, because it attached – all too neatly, we submit – to the propensity evidence which appears at application book 14, lines 1 to 10.

If nothing else, that evidence is brief and lacks detail and it is to be expected that when considering that evidence – indeed, all of the complainant’s evidence, but that is the best example – when considering that evidence a juror’s mind would turn to the neuropsychologist’s evidence and the question then becomes, well, what use can be made of the one evidence in the interpretation of the other?  We say that the answer to that question is the use was limited and ought to have been explained and confined.  Now, in common law ‑ ‑ ‑

BELL J:   Mr Callaghan, what direction do you say it was necessary to give?

MR CALLAGHAN:   Specifically that the jury had to be reminded that credibility was a matter for them.  They had to be instructed that it was their duty to make decisions about it without being unduly influenced by the expert evidence and, further, that this evidence should not have been used to negate a doubt that might otherwise have been the source of concern.

BELL J:   The evidence – I withdraw that.  There is no complaint before us concerning the admissibility of Dr Keane’s opinion.

MR CALLAGHAN:   No.

BELL J:   It is accepted that autism combined with a level of intellectual limitation is a condition that members of the public in their ordinary experience may not have an understanding of and that therefore the expert opinion of Dr Keane was admissible to establish, amongst other things, that by reason of the complainant’s disability her account of events might be brief and lack detail.

MR CALLAGHAN:   Yes, we have not agitated the admissibility point in this Court.

BELL J:   To that extent, that is, that it was open to lead opinion evidence to establish those matters, the last matter that you raised, that is, that the directions were inadequate because the jury were not told that they could not take into account Dr Keane’s evidence to resolve a doubt ‑ ‑ ‑

MR CALLAGHAN:   Yes.

BELL J:   ‑ ‑ ‑ why would that be?  If Dr Keane’s evidence was admissible and it explained that this complainant was not capable of giving evidence with the sort of detail we would expect from a complainant who did not suffer from the twin conditions that she suffered from, what is a jury to make of the direction that you propose?

MR CALLAGHAN:   Because it has to be accompanied with a direction about the use that they can make of it.  We are allowing that it was admissible for a limited purpose which was in this case what has been described as an educative purpose, and not for the purposes of bolstering her credibility.

NETTLE J:   To educate the jury that the answers would be brief and simple?

MR CALLAGHAN:   Yes, and to put this witness on a level playing field, as it were, with other witnesses, of whom more detail might be expected.

NETTLE J:   It then comes back to Justice Bell’s question, if that be the relevance which allows for the admissibility of the evidence why ought the jury not take it into account in deciding whether they had a doubt about the credibility or reliability of the witness’ evidence?

MR CALLAGHAN:   Because that would be to take it further and to use it to bolster her credibility.  We appreciate the distinction is a fine one, but it is one that nonetheless has to be drawn because there is a general prohibition upon ‑ ‑ ‑

NETTLE J:   One normally draws conclusions or inferences about credibility from demeanour, to some extent.  One expects a certain demeanour in a witness, give or take.  This evidence educates the jury that they are not to expect the ordinary sort of demeanour, but a different one because of the witness’ condition.

MR CALLAGHAN:   Yes, and ‑ ‑ ‑

NETTLE J:   Is that not something to which they would logically have regard in assessing credibility?

MR CALLAGHAN:   Well, we say that it was not open to go that far and ‑ ‑ ‑

NETTLE J:   But why?  What is the point of principle which precludes it?

MR CALLAGHAN:   The bolster rule.

NETTLE J:   The bolster rule says one cannot give evidence to bolster the credit of a witness.

MR CALLAGHAN:   That is right.

NETTLE J:   But this is not that.  This is evidence of a fact that the witness so suffered from a disabling condition that it was not to be expected of her that she would portray a demeanour ordinarily to be expected of a witness.

MR CALLAGHAN:   That is right, so she should be viewed ‑ ‑ ‑

NETTLE J:   “Well, make of it what you will, ladies and gentlemen of the jury, but just bear in mind as you assess her credibility that it is natural not to expect of her the same demeanour that you would seek from someone not afflicted by this condition.”

MR CALLAGHAN:   We have no problem with what you just put to us, save for the word “credibility”.

NETTLE J:   Well, what else were they assessing apart from credibility and reliability?

MR CALLAGHAN:   Well, her method of communication.

NETTLE J:   No, they are not.  They are looking at her evidence and asking themselves as jurors, “Can I accept that it is credible and reliable?  What factors do I take into account?”

MR CALLAGHAN:   That is right, and they do not take into account at that point the expert’s opinion because they use it to import the language from the authority of MA v The Queen which is ‑ ‑ ‑

NETTLE J:   That was the ultimate issue.

MR CALLAGHAN:   Yes, but the ‑ ‑ ‑

NETTLE J:   This evidence was not like that.  This evidence was scientific evidence of what was to be expected of a person afflicted by this condition.  It went no further.

MR CALLAGHAN:   Yes, well – and the jury should have taken it no further and ‑ ‑ ‑

NETTLE J:   No, that is where we come to the issue.  If it be relevant, as it is conceded properly that it is, it is relevant to instruct the jury as to what they are to expect of the demeanour of a witness afflicted by this condition.

MR CALLAGHAN:   Yes, and so that ‑ ‑ ‑

NETTLE J:   The only logical relevance of that can be that it is something which they are permitted to take into account in performing their assessment of credibility and reliability.

MR CALLAGHAN:   Up to a point.  Up to the point where that assessment puts that complainant’s credibility in what has been described as a neutral position, and no further.

BELL J:   This jury was instructed on more than one occasion that the issue of credibility was a matter for them. 

MR CALLAGHAN:   Yes.

BELL J:   There is a level of sophistry to the direction once one accepts that Dr Keane’s opinion, which was not an opinion about whether the jury would accept the complainant as truthful – it was an opinion that explained her disability precluded her giving evidence with the detail that one might expect from a person who was not disabled.  There was no question of this expert evidence usurping the jury’s function in the sense of the jury saying, “Well, we can accept her because Dr Keane told us that she’s telling the truth”.

MR CALLAGHAN:   No.  But there was a danger that it would be taken further.  I mean, I come back – I would like to take you to the passage in MA v The Queen at 568, because that is as best as we can express it and the language used there – I paraphrase, but it is to the effect that the evidence is there only for the jury to be educated about the fact that the complainant’s evidence was brief and would lack detail and that it educated them that for that reason the evidence did not of itself – or the lack of detail did not of itself demonstrate untruthfulness, as it might be thought to do in another case by reference to common or usual expectations about narratives, and the purpose of the evidence was therefore to ensure that any assessment of her credibility started from a neutral position rather than the negative position it would have been in if the jury did not have that evidence.  That is what they should have been instructed and, with respect, we accept that it is a subtle point.

NETTLE J:   Well, it is super subtle, really.

MR CALLAGHAN:   It is impossible to deny the force of that, your Honour.  But that of itself ‑ ‑ ‑

NETTLE J:   When you are talking about directions to a jury, you talk about it only brings it up to the midpoint, and takes it no further.

MR CALLAGHAN:   Yes.

NETTLE J:   I mean, you have passed into metaphysics, really.

MR CALLAGHAN:   Well, we take it from the Victorian decision.

NETTLE J:   Granted.  That was in a different context and it has to be construed in the light of the context in which it was said.

MR CALLAGHAN:   Well, we cannot put it any better than it was put there and even though that was in a statutory context as well, there is no common law authority directly on point.  Indeed, the common law might suggest that any evidence was inadmissible for the purposes of assessing the credibility of another witness – the observations about the bolster rule would suggest that.  But as your Honours suggested, and as we allow, we are not taking that point.

BELL J:   And, indeed, Farrell contemplates that where the evidence is of a condition that the jury might not, in light of common experience, appreciate then evidence of this kind may be admissible.

MR CALLAGHAN:   The difficulty with Farrell, and so many of the cases to which reference has been made, is that they involve cases where credibility is being attacked and we have no difficulty with that because it is open always to attack a witness’ credibility, the difference here being that, or the danger, we say, was that it would be used to enhance credibility in such a way that might negate a doubt.

It is closer to the Canadian decision of Marquard, where this sort of evidence was discussed and where the observation was made, which we invoke, that credibility is a notoriously difficult problem, and an expert’s opinion might all too readily be accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties.

BELL J:   But that is where one must look at each case in its own circumstances.  I mean, if one looks at Farrell, with the suggestion that people with an antisocial personality disorder are more inclined to lie than others, that is one category of expert evidence.

MR CALLAGHAN:   Yes.

BELL J:   This is simply an account that a complainant with autism and intellectual handicap may give a brief account of events that lacks detail.  It is no expression of opinion about her truthfulness or otherwise, or for that matter, her capacity to reliably give an account.  It is a means of communication.

MR CALLAGHAN:   Which is why we point to the specific danger in this case, as we are bound to do, that we are bound to make the point that there was a specific danger and it was the point I have already made about the very brief evidence as to discreditable conduct on other occasions, evidence which completely lacked detail.  That evidence might all too readily have been accepted because of the neuropsychologist’s evidence and then certainly used to negate doubts which might otherwise have presented because that evidence did not, as I say, even have reference to a timeframe or a location.

BELL J:   But it is not uncommon in cases of this kind for complainants, including those who suffer from no disability, to refer to the abuse occurring on other occasions.

MR CALLAGHAN:   It is not.  But there is usually, at least, some detail given as to the nature of that abuse, that is to say the activity involved, the timeframe and the location.

BELL J:   Well, it is very often a forensic choice whether to explore with a witness evidence of that kind or to let it go by to the keeper.

MR CALLAGHAN:   And no doubt that forensic choice presented here.  But the defence was in an impossible position, given the evidence which had been adduced from Dr Keane because no matter what inroads they made by demonstrating a lack of detail which might conventionally have been expected, the jury were always going to resort to that expert opinion and explain away the doubts that they might otherwise have had because of it.

In that way we say the evidence – there was a danger that it would be misused and used in a way that went further than it ought to have been allowed to do, which was to do no more than educate, rather than bolster credibility.

NETTLE J:   Mr Callaghan, whence derives the direction “should not be used to negate a doubt which otherwise would exist”?

MR CALLAGHAN:   That is a direction which we, in effect, distil from MA and the – well, really it is a formulation we advance, based on that

authority.  It is not to be found in, for example, Marquard.  The first two parts of the direction I propose ‑ ‑ ‑

NETTLE J:   Yes, I am with you on that.

MR CALLAGHAN:   Yes.

NETTLE J:   But it is just the last part which is really the crunch.

MR CALLAGHAN:   Yes, and that is, I suppose, picking up on the language used by the Court of Appeal because the error we say that was made there, we say was made by Justice McMurdo at application book 27, in paragraph [9], where he said that this evidence could be used to negate a doubt about the complainant’s evidence.  Well, if that is right, then we fail.

NETTLE J:   Yes.

MR CALLAGHAN:   So I suppose we have to insist upon a direction that that was wrong, and that the jury should have been told to the contrary.

NETTLE J:   I mean, it is troubling that the evidence is accepted to be admissible, I think rightly, because it is scientific evidence of a fact which is relevant to the jury’s assessment of a witness and yet at the same time it is said that the jury must be directed that they are not to regard it as being evidence of a fact which is relevant to their assessment of a witness.

MR CALLAGHAN:   Well, the problem there is with that threshold question.  We are allowing admissibility for a confined purpose.  We are not allowing it as generally admissible because ‑ ‑ ‑

BELL J:   The confined purpose is to educate about why this witness cannot give the sort of detail you would expect an unhandicapped witness to give.  How does that not go to the assessment of the credibility and reliability of her account?

MR CALLAGHAN:   It, to use the language of the Victorian court, just restores the balance to a neutral position.  That is our proposition.

BELL J:   Yes, all right.

MR CALLAGHAN:   We rely upon that authority for that purpose.  I apprehend that your Honours, with respect, understand the argument.

NETTLE J:   Thank you for the assistance.

BELL J:   Yes, thank you, Ms Farnden.  We do not need to hear from you. 

In our opinion, there is no reason to doubt the conclusion of the Court of Appeal.  The application is dismissed. 

Adjourn the Court until 10.00 am in Canberra on Tuesday, 16 April 2019.

AT 11.38 AM THE MATTER WAS CONCLUDED