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)

PlTI/1/PLC

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller v The Queen

Details

AGLC: Miller v The Queen [1988] HCATrans 255
Case: [1988] HCATrans 255
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal in the matter of *Miller v The Queen*. The applicant, Mr Miller, complained that the trial judge's directions to the jury concerning a charge of rape were inadequate. Specifically, it was argued that the judge presented the case as solely an issue of penetration versus no penetration, thereby failing to adequately address the crucial element of consent as a live issue for the jury's deliberation.

The legal issues before the High Court concerned whether the trial judge's directions to the jury were sufficient in relation to the defence of lack of consent and the issue of corroboration. The applicant contended that the judge's emphasis on the factual question of penetration overshadowed the importance of consent, which remained a critical aspect of the case, particularly given the defence's denial of any sexual activity. Furthermore, the applicant argued that the judge's direction on corroboration was diluted and did not adequately warn the jury of the potential dangers of accepting the complainant's testimony, especially considering the significant delay in her formal complaint.

The applicant relied on the principle established in *Holman*, which held that a denial of sexual activity by an accused does not negate consent as a live issue. The court was referred to the judgment in *Holman* for the proposition that even where an accused denies any sexual activity, the question of consent remains a real issue for the jury if there is evidence in the Crown case that suggests it was a live matter. The applicant argued that the trial judge failed to properly place this issue before the jury, reducing the case to a simple question of penetration. Regarding corroboration, the applicant submitted that the judge's direction was a "watered-down" version of the traditional warning, which was essential given the circumstances, including the delay in the complaint and the conflicting evidence. The judge's direction, which advised the jury to consider how other evidence "fits in" with the complainant's story to gain confidence in her testimony, was criticised as insufficient.

Orders