Miller v The Queen

[1988] HCATrans 254

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 MONDAY, 24 OCTOBER 1988, AT 3.45 PM

Copyright in the High Court of Australia

Pl T 9 /1/PLC 1 24/10/88

MR B.J. SINGLETON, QC:  May it please Your Honours, I appear

with MR J.G. STAUDE on behalf of the applicant.

(instructed by Talbot & Olivier)

MR M.J. MURRAY, QC:  If it please the Court, I appear for the

respondent with my learned friend, MR K. BATES.

-~~instructed by the Crown Solicitor for Western

Australia)

MR SINGLETON:  This is an application by the applicant for leave

to appeal. And if I could take you first to the

appeal book papers to page 195.

MASON CJ:  Now, we have read the judgments and the affidavit

in support of the application so that you can proceed

to the special leave points.

MR SINGLETON: Yes, sir, but before I do that I should make

this point, that in reference to l(a)(i), l(a)(ii)

and l(a)(iii), whilst I will make comment thereon

I do not wish to advance them as arguments in

particular.

MASON CJ: That is l(a)(i) - - -?

MR SINGLETON: l(a)(i), l(a)(ii) and l(a)(iii). If I could

take you to page 197: neither do I wish to advance

any argument on l(b)(iv), on l(c)(i) and l(c)(ii). I would

submit folders, Your Honours, with summary, index

and with photocopies of various authorities.

MASON CJ: Thank you.

MR SINGLETON:  The submissions are made in the light of the - and I

would like to outline to you the facts of this case,

although they perhaps are capable of being gleaned,

to some extent. by the judgments, but I would like

to take you thr-0ugh the summary of the facts in perhaps

a little more detail than that which is contained in

the judgments.

The complainant in the matter was aged just on 16 years and she was the stepdaughter of the

applicant. She had been the stepdaughter for a number

of years, the mother having married the applicant, and

she alleged that about the time of her sixteenth

birthday that she was at home with her stepfather.

The mother left the home and attended a local tavern

with a friend where, after consuming a quantity of
alcohol, she returned to the home and was feeling unwell

as a result of the alcohol that she had consumed.

The applicant apparently had retired to bed;

the mother retired to bed; the daughter retired to

her bedroom. After a while she heard her mother

giving indications that she was feeling unwell and

the mother called to her and asked her to get a bucket

and a wet towel; she was wanting to vomit.

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The daughter, the prosecutrix, took the bucket and

a towel into the mother, turned on the light in the room

and there found the mother and the stepfather, it being

a warm night, lying on top of the covers and both naked.

She left the towel and bucket with her mother, turned

off the light and went back to her room and shortly

after she heard her mother being ill. A little while

--later she went to the room, collected the bucket, took

it to the toilet, disposed of the contents and returned

the bucket to the mother in case the mother might have

had further need.	She then returned to her room
where she retired.

A little while later the mother attended the

daughter's room and told her to "Come with me" and

the daughter went with her and sat on the side of the

bed near the mother. She observed the father pat

the bed, indicating a position irr between the mother

and the father, and the daughter climbed on to the bed

and sat or laid on the bed now between the mother and

the father. Shortly thereafter she observed the

father pat the bed again, this time to the opposite

side, and she got up and moved around and laid on the

side of the bed next to her father, now farthest

away from the mother. Nothing had been said by the

father or, indeed, by the mother other than the mother's

comment, "Come with me".

When she was.lying on the bed next to her father

farthest away she then observed her mother reach

over and take hold of her stepfather's penis and,

as she described it in her evidence, "aroused him".

When this was done the father removed her panties and

lifted up her nightie. She was then, but for the

nightie now lifted above her, naked. She said in her

evidence, it would appear to be the case, that he then

rolled on top of her and made the comment that he could

not find the opening. He then rolled back on to his

back and by taking her arm and forearm he sort of

eased her on top of him so that she was now straddling

him. She then, in her evidence, indicated that she

was now endeavouring to assist him but again he

expressed the view that he could not find the opening.

And in that situation the mother leaned over and placed

her hand on the vagina of the daughter; the daughter

lifted her buttocks - raised her buttocks; the mother,

in accordance with the daughter's evidence, then with

one hand found the opening to the vagina and with the
other hand guided the stepfather's penis into her.

She then, the mother, rolled over with her back to

the daughter and to the father.	The intercourse then
took place, she being in the superior position.	After

intercourse was completed she rose and returned torer

bedroom where she retired.

The next morning she spoke to her mother and

spoke in terms that she was disgusted with what had

taken place the night before; that she asked her mother's

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assurance that it would not occur again and

in the course of that conversation, as the mother

was later to admit in evidence, she was informed

and understood that the stepfather had had

intercourse with the daughter and was told by

the daughter that she, the mother, had in fact

assisted the stepfather in the way that she had

aroused him, and helped to guide his penis

into her, and asked for her mother's assurance

that that would not occur again.

They were the salient facts from a

distasteful and disgraceful case, but nevertheless

they were the salient facts as to the evidence

uryon which the stepfather was subsequently

charged with rape and that was an offence

which was existing under our Code before the

more fashionable change of sexual offences

came into vogue.

The mother was also charged with rape

as being a principal and both came before the court. There was an application for separate

trials because the mother had made an out of

court statement wherein she made admissions

to the police, as was alleged, as to her

participation in the events of that evening.

The learned trial judge subsequently, after

argument, conceded that it would be highly

prejudicial to the applicant for the mother

to be tried together because of her out of

court statement wherein she made admissions.

The applicant had made no admissions at all

to the police. The applicant had denied that

any activity had taken place and had claimed

that the girl was a liar, and that she had

told lies before and that he considered that

he would make no statement whatsoever. The

learned trial judge thought in fairness

to the applicant that there should be separate

trials, and perhaps understandably so.

The Crown then chose to proceed with

the case against the mother, Mrs Rosemary Miller,

and in that trial she admitted the approach

by the girl. She gave evidence, I should first

of all state, and she admitted in her evidence that the girl had approached her the following

morning and that that conversation, as outlined

by me, had taken place.	She admitted that she
had asked for the bucket to be brought in.	She
recalls that.	She recalls being ill and she

says that she could not recall any other matter

at all. She in effect, as I said, admitted

that she made the statements to the police

but denied the truth of its contents, saying

that, in effect, it was really what the daughter

had told the police and that j_ t was there so she

PIT9/4/JM	4
Miller(2)

must have said it. But she denied the truth

in her trial. She was convicted.

Whilst the jury were in retirement on

considering her future the trial of the

applicant conunenced and was adjourned to take

-=--- the verdict of Mrs Miller. I am informed that

the jury was completely removed so that the jury of Mrs Miller's trial could give their

verdict out of hearing of the current jury.

The evidence eiven in the trial against

the applicant was the evidence of the
prosecutrix, the stepdaughter; Mrs Miller

was called and Police were called as to the

conversation between themselves and the

applicant who denied any sexual penetration

whatsoever, indeed any sexual activity. The

evidence adduced by the Crown from the daughter

was as I have outlined. There was further

evidence adduced from the daughter and that

was on the basis that there had been prior

sexual activity not to establish any

similar facts, or to create any similar fact

situation, but to establish that there had been

an overbearing by the stepfather of the stepdaughter

for some years and that this present act then under

review was not an isolated act. The daughter
gave evidence that at the age of roundabout 10 or 11

years of age she, on a family outing in a beach

suburb south of Perth in company with her brothers,

was with her father. The brothers, whilst away

playing, she was taken by her father into the

sand-dunes where he removed her clothing and he

his and then achieved sexual penetration of her,

during which she cried, as a result of which he

struck her and subsequently informed her not to

tell anybody about what had happened or otherwise

he would kill her.

(Continued on page 6)

PIT9/5/JM	5
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MR SINGLETON (continuing):	She then gave evidence that there

were other occasions; one when she was 13 at home, one when she was about 15 at home, in other words, some 12 months or a little over 12 ~onths prior

to the subject incident.

There was no evidence from her that in any of

- -those subsequent events and - indeed, I should add

that when she was being cross-examined she indicated

that there were other instances about which she did
not tell the police because she could not remember

the details and went on to say that there were

numerous incidents. But the incidents of which she

recounted were the only incidents that she really
could call to mind any details thereof.

She did not, other than the occasion when she was 10 or 11 years in the sand-dunes, ever claim or suggest

that her stepfather had beaten her, had assaulted her,

had threatened her orally or physically. She did,

however, in her evidence in-chief maintain that her

stepfather had, over a period of years, been violent

towards her and had been violent in corrective
attitudes towards her. Under cross-examination, she

agreed that she had been a most mischievious child

at school, at home, and that she had been a constant

source of concern to her teachers, a constant cause of

concern to her parents and that she, indeed, deserved

punishment and that she had received physical punishment

from her stepfather.

She also conceded that from about the age of 15 onwards the corporal punishment had ceased and that

other forms of punishment had taken place for her

misconduct both at home and at school and that form
of punishment was, to quote her, that she had been

"grounded, kept to her room, not permitted to leave the home." She stated in her evidence that she had

complied with the unspoken word and perhaps the

direction of the mother and of the father in the

patting of the bed and of the taking hold of the arm

had complied because if she had not he might do her	and hand in easing her on top of him; that she	some bodily harm or he might get back at her in
another way. She conceded and, indeed, never
suggested that at any stage that evening did she ever
complain, did she ever ask him to desist, did he ever threaten, did she ever resist and, indeed, she said,
in fact, that she had consented to the act of sexual intercourse but that such consent had been influenced
by her fear as to what might have happened to her,
that he might have punished her, that he might have
done something to her later on.

The next morning she approached her mother ::_aI).d

indeed, she said nothing at all, not to the mother or

to the stepfather - and said to her mother that she was

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disgusted with what had occurred; she was

disgusted with her mother arousing her

stepfather as she had observed her do. She

wanted her mother's assurance that this would

not occur again. She informed the court that

she had informed her mother that Brian - the

first name of the applicant - had had sexual

intercourse with her, and criticized her mother
for having guided the male member of her

stepfather into her, thus achieving sexual

penetration. She never complained about rape;

she never complained that she was not consenting.

All she complained about - and I am not saying that it was not capable of that inference, but it was

equivocal, one would submit, that there were a number of matters that she was complaining

about. One, perhaps that she was not consenting

and it was rape; two that the participation of

the mother in this activity disgusted her; three,
that the sexual intercourse that took place in

the presence of her mother disgusted her; the

fact that her mother had aroused her stepfather;

the fact that her mother had guided the
stepfather into her; all are matters which were

disgusting to her. Her mother said that that

would not occur again. She did not complain

to any person other than in that sense, and

getting on to some 12 months later she took an

overdose of tablets, having now left home and
was, I think as she described· herself, a street child,

took an overdose of some tablets; was admitted

to the hospital. In the course of her treatment

a counsellor, I think, approached her and it was

to the counsellor that she disclosed the events

that had taken place some many months earlier.

Flowing therefrom, the police were brought into

the matter and then the mother and father were

spoken to and the charges were preferred.

The mother gave evidence in her trial

the day prior to the applicant's trial and

in heri:evidence, as I have indicated, denied	the truth of the written statement which she
acknowledged she must have given to the police -
indeed I think she had signed it. She denied
the truth of that and advanced reasons why
she had signed it. The Crown, in the trial
of the applicant - she now having been a
convicted person - called her as a witness
on behalf of the prosecution against the accused applicant. Counsel for the accused applicant advanced argument that (a) she should not be called; (b) if she was called permission should not be
given to the Crown for her to be treated at any stage as a witness hostile, thus bringing in the material
which was in the written statement,which she
had now denied on oath only the day before,and
which was the very substance of the application

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for separate trials of the prejudice and

the unfairness to the accused applicant if she

was tried jointly with him.

The learned trial judge considered, rightly

so I would agree, that she should be called as

_-:.-a witness if only to give the evidence which

she had always acknowledged and always admitted

and had indeed acknowledged on oath as having

occurred, that material which was this: the next morning, after the event, the girl came

to her and told her that she was disgusted-

and that material. One would have thought that

that was more than fair enough, particularly

when one considers that she did not complain in

the formal sense until 12 months later and it
was obviously fair and proper for the Crown to

adduce that evidence to show that the complaint

was not something very, very late. Indeed

it was simply no more than basically a complaint

made the next morning, or certainly something akin to a complaint. The learned trial judge said that he would reserve his decision as to

whether or not she should· be cross-examined on her staterrent

made to the police out of court until such time

as he heard her give evidence. Not surprising,

having given sworn testimony the day before

that the statement was not her statement, it
was not the truth, notwithstanding her conviction

and the rejection by the jury of her testimony as

to that fact, she gave evidence and then gave

evidence confirming the conversation that took

place, perhaps with some reticence, but

nevertheless did confirm the conversation that

took place between the daughter and herself on
the morning subsequent to the alleged events

and confirmed on oath that the daughter had

approached her; confirmed that the daughter had said she was disgusted; confirmed that she said

that the daughter had told her that she had

assisted arousing, :and helped guide in the act of

penetration.

11ASON CJ:  Mr Singleton, our reading of the judgment

has apprised us of much of what you have told us.

MR SINGLETON:  I am sorry, sir, but I wanted to make it

very clear. I read those judgments and I do

not know whether it was in the detail perhaps

that I have outlined to you so far as the

facts went,anyway.

BRENNAN J:  When was the first application made to have

her declared hostile?

MR SINGLETON:  The first application was made in the

course of her evidence in the trial of the
applicant after she had given evidence as to

the complaint.

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BRENNAN J: Yes.

MR SINGLETON:  And, as I say, I do not sort of argue

that really as an argument, but I simply leave
it there because I would submit that in the

circumstances of the totality of the case,

--= - knowing that she would clearly - being

conscious of the evidence that she had given

only the day before, the likelihood of her

now admitting to her perjury was scant, was rennte indeed

and the fact that she continued to maintain,

as she had in her sworn testimony the day before in

which the jury had disbelieved her, and oermit	or seek that she should be cross-examined on
a statement of which she said she did not recall - rather, she denied the content, the truth of it
and always maintained that she could not recollect
the events because she had passed out, to then permit cross-examination of matters which she
would not, and did not, confirm to be fact - that
is the content of the police statement - achieved the very end which the-learned trial judge -
and more so probably - the learned trial judge
at the outset of the joint trial directed the
be there against the accused applicant. What separate trials so that the prejudice would not
we simply say there, that in the exerciae of
his discretion, seeing that the real object of calling her, which was never in dispute, was that
indeed there was a complaint the next morning
by the daughter to her about the activity, was
sufficient and the judge by allowing, once she
had clearly indicated in her answers to the learned Crown Prosecutor that she was maintaining the stand which she had maintained in the trial the day before before the same trial judge,
that he exercised his discretion correctly in
allowing her to then be cross-examined on that
statement, thus, in effect, as I have said,
achieve the very purpose for which he granted
a separate trial in the first instance and it
did not go to the proof of the matters then
alleged. We simply mention that as a matter
of unfairness and would not rely upon it by
its own.

TOOHEY J:  Mr Singleton, there seems to be a step in

between the declaration by the trial judge that	the applicant's wife was a hostile witness. You
complain, do you, about that step?

(Continued on page 10)

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MR SINGLETON:	No, I do not, but, as he saw it clearly and on the statement that was before him, he saw that
she was not giving evidence in accordance with
that statement.
TOOHEY J:	I ask you that because, unless I misunderstood

-you when you began, that is one of the grounds that

--you are still advancing.

MR SINGLETON: Well, when I say I am still advancing, I leave

it there; I do not rely upon it as being the ground

and I do not rely upon it as being a ground of substanc~,

that this Court would interfere with the judgment of

that court by itself, but I do not want to eliminate

it.

MASON CJ:  It is hanging there as a bait for anyone who wants

to swallow it.

MR SINGLETON:  Oh well, I would not dare come before this Court

to proffer a bait, Your Honour. It might be spat

back at me. But I leave it there, simply, and perhaps

if I can say no more about it and get on to the other

area and then I will come back to it.

MASON CJ: Yes, well, I think if you now turn to the points

that you do wish to take up with us.

MR SINGLETON:  Yes. The learned trial judge directed the

jury that the real, the prime question, ,that probably
was due to counsel for the defence - the prime

question, the prime issue - was one whether or not

there was penetration and, naturally, that was a vital

question.	The girl had said that there was; the
applicant denied it.	So that was definitely a prime
question.

TOOHEY J: Well, when you say that, Mr Singleton, that might

be taken to imply that the applicant agreed in part

with the girl's evidence but, as I understand the

case, the applicant denied that anything untoward

had at all - had happened that night.

MR SINGLETON:	Denied that any sexual - that is right.
TOOHEY J:	So it is not merely question of whether penetration

had taken place or not so far as the broad question
went, but whether any incident of the sort described by

the girl had occurred that evening.

MR SINGLETON:  Had occurred that night. But in analysis, with

respect, sir, he said that the issues that you have

got to decide is whether or not penetration has taken

place and whether or not there was consent or lack of consent in the words of His Honour. But he did

say - he said on at least two occasions - in very

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direct language to the jury, that the real issue

for them to decide is - the prirre issue for them to

decide is whether or not penetration had taken

place, and he informed the jury that it was a case

of, perhaps, in the end, of having to make a choice

and maybe that was right but, I think, gave them a

warning about making a choice. But he said that

_-:.if they conclude that penetration had taken place, then the· other issue, the issue of consent, really,

perhaps, would not detain them at all and would

fade away. It was really a question of then

deciding whether or not the girl had consented as,

indeed, she said -had she consented out of fear,

and that fear being brought about by the previous

treatment that the father had meted to her on other
occasions, presumably - certainly on most other
occasions sexual - and perhaps other occasions in
chastisement generally and that she was consenting

out of fear as to what might occur. If they

concluded that there had been penetration, then theywould

not have much trouble with the question of consent;

she had said that she had consented, but she had
consented out of fear and that, in those circumstances,

the elements of rape were established. That truly

and effectively was His Honour's direction.

As to the belief or knowledge or view that the

accused man may have had, of the events of that night,

or as to the view that he might have had - the jury's

view of his belief, looked at overall as to his

past conduct, did not enter into consideration at all

and never entered into consideration. It was not a

case of him asserting an honest and reasonable

belief; he asserted that there was no sexual activity

at all; he denied it, and His Honour effectively said

that, where there is a denial then the issue, really, of

his knowledge, his state of mind - he did not say it

as such - does not arise at all.

TOOHEY J:	In a sense, that had perhaps not been ·forced on the trial judge, but it had come about, no doubt, because
of what had been said by defence counsel earlier in
page 7 - - - the trial, because there is an express statement at
MR SINGLETON:	By counsel which says that the question of

consent is not -

TOOHEY J:  Yes:

The defence which is being raised by the

accused is not a defence of consent.

MR SINGLETON:	Yes.
TOOHEY J: Of course,	it is rather difficult to run that

defence along with a defence that it did not happen,

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b-ut, at any rate, defence counsel made the position

clear from the outset.

MR SINGLETON:  Yes, I do not deny that; I am not criticizing

His Honour because of that fact. But notwithstanding

defence counsel saying that, the issue of consent

-~where there is a denial can still be alive and clearly,

in my submission, was alive, when the girl said here,

in effect, she did consent, and to the independent

observer there would be no question that she was

consenting by her conduct. She said she did consent

but the reason for her consent was her mental

reservation that if she had not consented, he may

have - he might have	done her some harm or got
back at her in another way.	There was never any expression

to the contrary and understandably because she said

she consented for that reason, and the fact that he - - -

BRENNAN J:  What is the proposition of the mistake that is

made? What mistake do you say may have been made?

MR SINGLETON: Well, in the position where somebody is consenting

and it must have been abundantly clear, on the face of

it, to the accused applicant that she was consenting,

by, indeed,what was occurring and what she was doing

surely that is sufficient evidence to place before'

a jury his state of mind as to whether he believed

she was consenting.

BRENNAN J: That was not a relevant mistake, because she was,

and if she was, on this approach, the problem is

was there any mistake about whether she was consenting

because of any intimidation.

MR SINGLETON: Well, that is the question.

BRENNAN J:  Now, was there the slightest evidence of any

mistake on his part on any fact which might have been

relevant to her state of mind?

MR SINGLETON:  Only the fact that she indicated that her state

of mind went back to some considerable time ago as tb the

assault when she was about 11, and thereafter, when

she said sexual intercourse had taken place, there was

no other assault upon her. Now, why could not he, in

those circumstances, have the belief that she was

consenting?

BRENNAN J: This was scarcely a girl who was battering on his

door. at night wanting to come in, Mr Singleton.

MR SINGLETON: Well, she may not have been battering down the

door at night wanting to come in, Your Honour, but

at her mother's invitation, she did come in.

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BRENNAN J: Well now, take that situation: he is lying on

the bed; the mother goes out and gets the daughter

and brings her in. He indicates to her where to lie

and the events that you have just described take

place. This is a girl with whom he has had sexual

relations in the house, intermittently, at least, from

---= the age of 11. From those factors, is there an

inference of consent to be drawn?

MR SINGLETON:	I missed your last -
BRENNAN J:	An inference of consent to be drawn?
MR SINGLETON:	Why not, Your Honour? It might be immediately

a case of sort of being reviled about that

possibility.

BRENNAN J:  But it depends on what one means by "consent,"

perhaps.

MR SINGLETON:  Well, why could not he have a belief in her

consent, believing that she was consenting to the

acts by her conduct? Why cquld he not believe?

I mean, I accept what Your Honour - you might say,

"Look, this is an incredible situation." That

may be so, but - - -

BRENNAN J:  Oh no, it is not incredible; it is, perhaps, quite credible, quite sadly credible.

MR SINGLETON: Sadly, yes, sir.

BRENNAN J:  But the situation, as I understand the case, that

the girl described in her evidence, is one where she,

being a child in this house, was put upon and she

was put upon this night. It seems to me that that

is not the kind of approach that is apt to describe

what is spoken of as consent in section 325 of the

Code.

MR SINGLETON: Well, put upon she might have been, in the

sense that four Honour uses - - -

BRENNAN J: Yes.

MR SINGLETON: - - - although there would be, I suppose, an

equally extraordinary situation that the mother

should approach her for the first time ever and

simply say, "Come with me. " and thereafter she

totally consentswith all that takes place.	One
perhaps could say that seems to be a little

incredible unless, of course, she is full participating

in the sexual act, clearly consenting, incredible

though, sadly, that might be. But as to the man

himself in all of these circumstances, it is said that it did not really matter whether he - well, in effect, it did not matter what he thought, because all that

had to be proved was penetration- well, all that

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had to be proved. wa&, (a) penetration, and (b) that her consent
was because of what was in the back of her mind not

conveyed to him at any stage. And it was not conveyed

to him and it was never addressed by the judge to the

jury, because it may well have been exactly what

Your Honour was saying, that, look, you might find

_ .that he, in all of these circumstances - that he may

--well have had a belief that she was consenting, but

in what circumstances did that belief come about?

I mean, she said herself she participated, she

consented.	But if he appreciated that her consensual
conduct was as a result<	of his past conduct
towards her;	that it was fair to say that he had

been overbearing towards her in this regard over many

years; this was no different, no more, If the

mother's presence here too was in that sense that she

was the mother, "Corne daughter, do what I tell yo-q,

to do, or do what your stepfather wants you to do.

Perhaps that issue, then live, the issue of his knowledge

as to her consent, was there.

But it never was there and it was never placed before the jury. Sarne as when His Honour said, "Look,

you look for some evidence to support her story to

see where it fits best to corroborate her story that

penetration took place." But he never, at any stage,

said, "Look for evidence, because it is uncorrobotated;

everything is uncorroborated. Look to ~he evidence,
not only as to the corroboration that penetration took

place, but look to the evidence for corroboration

that she was not consenting, or that she was consenting

out of fear or intimidation of past events."

MASON CJ:  Mr Singleton, it may be a convenient time to adjourn

now. ~e..~ill-..agjourn ·until 10 o'clock tomorrow morning.

AT 4.30 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 25 __ OCTOBER 1983

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Miller(2)