Miller v The Queen

[1988] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl of 1988

B e t w e e n -

BRIAN ARTHUR MILLER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
WILSON J

BRENNAN J

TOOHEY J

GAUDRON J

Miller(2)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY,' 25 OCTOBER 1988, AT 10.04 AM

(Continued from 24/10/88)

Copyright in the High Court of Australia

PlTI/1/PLC 15 25/10/88

MASON CJ: Yes, Mr Singleton?

MR SINGLETON:  The applicant then, Your Honour, complains that

the learned trial judge directed the jury, basically,

that the issue was penetration or no penetration.

The question of lack of consent was not really an issue and I would refer Your Honours to page 123 and

page 143, in that regard, of the application book.

He put the question, basically, that she says there was penetration; that the accused applicant says

there was not penetration.

The question of consent fundamentally, it is

submitted, was never properly put to the jury as an	issue and the very fact that the penetration was
denied and that was the defence did not mean that the
question of consent was not in issue and it is submitted that the question, in the circumstances of this case,
was still alive and that it was a real issue for the
jury's deliberation and that the judge should have made
it clear that it was such an issue and should not have
treated it as a secondary - as not so important as the
question of penetration which clearly his direction
indicated to be the question and,basically, the only question. Both were important; they were equally important. as was, indeed, the applicant's state of
mind of fact that was not canvassed at all, or at least
adequately, by His Honour. And in that regard I would
refer you to the case of HOLMAN which is No 10 on our
list. The question of corroboration: His Honour,
at page - - -

BRENNAN J: Now, what does HOLMAN say? You say you are referring us

to it; for what purpose?

MR SINGLETON:  HOLMAN, Your Honour, was a case where a man was

charged with rape. The allegation was that he forcibly

intimidated her and raped her. He denied that there was

any such sexual activity whatsoever. The judgment -

and, in particular, the judgment of Sir Lawrence Jackson,

was that the very fact that there was a denial did not,

of itself, mean that the question of consent was not

a live issue. It was a live issue and that there had

to be an appropriate direction on the question of

consent as, indeed, there had to be an appropriate

direction on the question of penetration. Whilst it

may well be a situation where an accused person

is relying on the honest and reasonable belief that

she was consenting and, of course, one would normally

expect him to assert that so that there was evidence

upon which a jury could be directed towards and could

consider, nevertheless, where there was a case of

denial that there was any sexual activity, it did not

necessarily mean that that issue is not a proper
issue to be placed before the jury because if he can

point to evidence in the Crown case that the question of consent was a live issue as, indeed, we say it was here with the conduct of the girl, that it is not one

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to be put aside; it was a real matter to place before

the jury as to his belief which could be inferred

from the conduct of the parties. And it is in that

area, we say, that His Honour failed to even place

that matter properly before the jury and, in essence,

reduced the issue, basically, to one of whether there

was penetration or whether there was no penetration.

His Honour raised with counsel, at pages 16 to

19 of the application book, the question of the direction

as t:o corroboration that he would give and decided that he IDuld

not give what, perhaps, one could regard as the ~raditional

direction as to corroboration but decided he would give

a direction as to corroboration more in line with the

amendments to the CRIMINAL CODE where now the sexual

assault offence was created and, indeed, he was

criticized, I think, by the Chief Justice, Sir Francis Burt,

in his judgment in that form of direction. Indeed, it

was a watered-down direction on the question of

corroboration. And it is submitted that it was extremely

important that a direction in the traditional form as·

to corroboration should have been given in this case

having in mind that, really, it was a matter - as

His Honour acknowledged and noted and said on several

occasions, that it was a matter for the jury to decide

her evidence or his evidence. Having also·in mind that

it was 12 months after the events had taken place,that,

effectively, she formally complained and His Honour

decided to give a general broad warning of the dangers

to accept her testimony unless it could be demonstrated

that it was supported in some way. Indeed, he never directed as such, in my reading of his charge, that,

indeed, there was no corroboration. He simply indicated to the jury that they should look at all of the evidence

and should see"how it fits in" - to use his words - with

her story and with that they may gain some confidence

in accepting her testimony in preference to that of the

accused man. His direction - and that discussion

then, as I indicated, was at pages 16 to 19 and, again,

at pages 105 to:·, 107 where counsel for the applicant

indicated to His Honour that he felt that His Honour

should direct in the traditional form and, indeed, that

there was no evidence of corroboration at all.

His Honour did then touch on this question at

pages 134 and 143 of the papers. But he never directed,

as I have indicated, that there was no matter that was

capable of corroboration; never explained what

corroboration was. He never directed that there was no

corroboration as to penetration; he never directed

there was no corroboration as to the lack of consent.

GAUDRON J: Well, that direction would not have been correct,

would it, that latter? And is not the evidence of.

distress on the following morning corroboration of lack

of consent?

MR SINGLETON:  No, Your Honour, would be my submission. It is

evidence to demonstrate the consistency of what she is

complaining about.

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GAUDRON J: That is the complaint itself does that?

MR SINGLETON:  The complaint itself, but it is not - surely

it is not evidence of - - -

GAUDRON J: Yes, but where there is also distress.

MR SINGLETON: Well, the distress, Your Honour, depends, perhaps,

what way you interpret and what way - and His Honour
never pointed that out to the jury. It was not - her

complaint was not a complaint of rape, it was a complaint

of disgust and certainly it was equivocal - that she

was complaining to her mother about the events that

occurred last night and her mother's participation in

them and she was disgusted with what had occurred - but

it was equivocal that she was complaining about her

mother's participation and the disgraceful events

that took place with a complaint of rape. And His Honour

never directed the jury to carefully consider what was

said and what use they could make of that. Indeed,

His Honour said that the evidence of the discussion

between the mother and the girl the morning following

could be. viewed as a buttress, a buttress to the
consistency of her story, and that was the importance,

surely, of the mother's evidence in the end result;.

That her formal complaint was made some 12 months

after the alleged event and to allow the mother to
give evidence as to what took place was important and
fair to the Crown's case to demonstrate that this was
not something that was suddenly brought to the attention
of the court or to the authorities 12 months after the
event; that that complaint cannot be evidence of

corroboration - or cannot amount to corroboration in

my unde~standing of the law. And the evidence of

distress does not amount to, of itself, corroboration

of a penetration and (b) that she was lacking consent.

It was, perhaps, evidence that could be considered in

the overall c.onduct of the girl subsequent to the

events alleged.

Again, in the judgment of Mr Justice Jackson,

in the case of HOLMAN, His Honour deals directly with

that point and quotes the appropriate authorities,of

which. I am not aware have been overruled.that such

complaint could not be considered corroboration of

the allegation of rape or of any of the elements that

go to make up the crime of rape.

is meant by corroboration and what cannot amount to By not so demonstrating clearly to the jury what

corroboration, by advising the jury that the evidence

of the discussion between mother and daughter, the evidence

of the nnther as to the discussion between mother and

daughter the following morning,could bolster - was a

buttress. The jury may well have thought that that	material could amount to corroboration of the allegation
of rape and its elements. And it is interesting to
note that after the jury had retired,deliberating for

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a little over an hour or so, they returned and asked

for a recount of the evidence as between mother and

daughter's discussion the morning following the

event and His Honour then reread to them that

discussion. And it is fair comment, surely, to say that
that discussion the following morning was obviously

of some significance to the jury, to come back after

having deliberated for in excess of an hour and ask

for that matter to be recounted to them.

So, in summary, the submissions are that in all

of the circumstances the applicant complains that the

judge's charge was significantly deficient and that

he was not given a fair chance of acquittal and that

having regard to all of the circumstances the verdict

should be considered to be unsafe and should not 1::e

allowed to remain, otherwise a grave injustice would

be done to the applicant. This Court, in these
circumstances, is invited to involve itself; to grant

special leave to allow the appeal; to set aside the

conviction and direct a new trial. They are my

submissions, Your Honour.

BRENNAN J:  Mr Singleton, at the end of the judge's summing up

he asked whether there were any requests for redirections,

did he not?

MR SINGLETON: Yes, Your Honour.

BRENNAN J: And he had a negative reply?

MR SINGLETON:  Yes, Your Honour.

BRENNAN J: Your proposition is that although there was an

opportunity then given for the submissions which you

have now made to be considered by the judge and ·

any repairing that needed to be done in his summing

up could have been done.

MR SINGLETON:  Could have been done, Your Honour, but my submission

is that is not fatal.

BRENNAN J: But significant.
MR SINGLETON·:	Well, with respect, Your Honour, - you say

usignificant": counsel for the defence started off

from (a) to (z) with the proposition that consent was

not an issue. Now, the fact that counsel does not see

it that way, why should that be fatal?

BRENNAN J: One reason, perhaps, that might have appealed to

counsel - and it is a matter, of course, for counsel -

is whether that was seen to be the most appropriate

tactical way to conduct the defence.

MR SINGLETON: Well, that may be so, Your Honour, but the very

fact that counsel does not raise a matter which clearly -

if this Court agrees with the submission that it really

is there and should have been raised,.- then it is not

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fatal and that, of course, is well-founded in law.

The Court cannot ignore that. In the case of

REG V HOIMES, (1960) WAR,in the Court of Criminal Appeal,

where counsel fought the issue in a charge of wilful

murder, on the question of intent, I think it was -

perhaps it does not matter - but fought it and it was

clear on the evidence that there was open to, although

n·ever raised by counsel, a defence on the basis of

insanity. It was considered encumbent upon the trial

judge to place that matter before the jury even though

counsel had not fought the issue on that matter,

and there are a number of authorities that go to-that.

And the situation is here that if counsel for the

defence does not raise the matters and on the evidence

the matter is fairly proper to be placed before the

jury-, it is for the judge to do so and if he fails	to do so, invited - uninvited, then that does not
relieve him of the obligation and does not make the
decision sound. And I believe that matter was also
canvassed in the VAN DEN HOEK matter which is also on our list.

I know in some jurisdictions in this country

it is apparently considered to be of considerable

significance but it has not been my experience or my

understanding of the authorities in this State that

it is fatal. And, indeed, the issue that we have

argued here or made submissions here was not raised

in the Court of Appeal, that is, the question of

consent and the matter has never been considered.

But, with respect, we would say that it is of

significance to the point that it should not be

simply ignored and if this Court believes that it was

a live i_ssue and the judge was deficient in placing

that before the jury then this Court should involve

itself because the accused man did not have a fair

chance of acquittal on the issues that really should

have been before the jury and were not. Whether	that be counsel's fault, whether it be the judge
misled by view of the counsel's statement that it was not in issue is not really, in the end, the question.
They are my submissions, Your Honours.

MASON CJ: Yes, thank you, Mr Single.ton. The Court will take a

short adjournment in order to consider the course

that it will take in this application.

AT 10.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

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

The principal ground urged in support of this

application for special leave to appeal is that the

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trial judge erred in failing properly to direct the jury that before convicting they must be satisfied

beyond reasonable doubt,not only that the complainant's
consent was due to fear as to what might occur to her

if she did not participate, but also that the applicant

knew that the complainant's participation was brought

about by that fear.

Redirections were not sought at the trial and the ground was not argued in the Court of Criminal

Appeal. The ground is raised in this Court for the

first time.

Assuming that there was some material in the

evidence which would have required a direction of the

kind sought~ and we are not suggesting that there was-

having regard to the way in which the case has been conducted, it is not one in which it is appropriate

to grant special leave to appeal on this ground.	We
are not pe~suaded that there is substance in the other points argued in support of the application
for special leave.	On these matters, the decision

of the Court of Criminal Appeal is not attended with

sufficient doubt to justify the grant of special

leave. The application for special leave is therefore

refused.

AT 10.42 AM THE MATTER WAS ADJOURNED SINE DIE

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