ML v The Queen

[2015] HCATrans 177

[2015] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S50 of 2015

B e t w e e n -

ML

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 2015, AT 11.07 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR S.J. BUCHEN.  (instructed by Legal Aid NSW)

MS S.C. DOWLING, SC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honours.  The first two grounds of appeal concern evidence of an interview between the complainant and the police, more than two years before the trial, which was admitted into evidence pursuant to a statutory exception to the hearsay rule created in 2007.  Your Honours appreciate that the Criminal Procedure Act, section 306V, creates a hearsay exception for that interview.  It comes in as part of the evidence‑in‑chief of the complainant.  The legislation requires that a general direction be given to the jury that they are not to draw any adverse inference from the procedure of receiving this video interview ‑ ‑ ‑

BELL J:   This is section 306X.

MR ODGERS:   Correct, your Honour, yes.

BELL J:   It also requires that the judge warn the jury not to draw any inference adverse to the accused person, or give the evidence any greater or lesser weight because of the evidence being given in that way.

MR ODGERS:   Yes.

BELL J:   So if a hearsay direction were asked, pursuant to section 165 of the Evidence Act, in relation to the hearsay content of evidence given in this way, there would be an interesting question raised concerning the intersection of that provision and section 306X.

MR ODGERS:   Yes – perhaps so, your Honour, but our response to the question would be that there is no conflict, that 306X is merely saying, look, just because you have this unusual procedure of seeing evidence through a video‑recorded interview, that fact alone is not something you really should use one way or the other in the proceedings.

It is an entirely different question whether or not in the particular circumstances of the case where it transpires that the person who engaged in an interview two and a half years later has no real memory of either the incident itself or the interview itself – whether that, in turn, requires something to be said to a jury.  We say they are completely different fields of discourse.

Of course, that is where we are in terms of this application.  It was a case where, when the complainant came to testify, she essentially had a very poor memory of both the offences - the alleged offences and the interview.  Many of the questions asked in cross‑examination were answered with “I do not remember” or “I do not know”. 

That had two consequences:  One was that the prosecution relied very heavily on the interview itself, on the video record of the interview conducted two and a half years before the trial.  It also had the consequence that the defendant was, in a very large sense, unable to attest the complainant’s account.  I think we say that when you look at the cross‑examination with any attempt to elicit detail, it was met repeatedly with the answer that the complainant just really did not remember.

Now, it was not argued in the Court of Criminal Appeal that that forensic disadvantage required the exclusion of the complainant’s evidence.  We are not in that territory of saying how can you get a fair trial on the basis of evidence which you cannot test.  Rather, what we say was asked for – and even if it was not asked for, it was raised fairly and squarely in the Court of Criminal Appeal – was that something needed to be said.  A direction with the authority of the judge, highlighting the problem, highlighting the reason for caution, and telling the jury how they should take that into account was needed, and was not given.

Now, we do say – and your Honour raised this – if a 165 warning was given, was asked for, we say it was.  But perhaps before I go to that, can I just take you to 165, just to highlight the key components of that provision.  It is at 125 in the application book.  Your Honours will see under subsection (1) that it refers to:

evidence of a kind that may be unreliable –

So it is a general catch‑all.  We have focused our attention on (a) hearsay evidence, but even if you do not technically say that it was hearsay evidence, it is still – we say that evidence which you are not really able to test through cross‑examination because the person who has given it asserts no memory, is evidence that may be unreliable because it has not been able to be tested in the usual way that our system of justice relies on as the primary mechanism for testing.  Now, subsection (2) says:

If there is a jury and the party so requests, the judge is to –

do (a), (b) and (c).  Well, I do not think that anyone would suggest that any of those were done in this case.  We say that a careful direction complying with those requirements was necessary.  Your Honours would have seen, I think, in the judgment of the Court of Criminal Appeal that I was asked to give a version of what could be said, and I did that, and that would have, we said, complied with the requirements of subsection (2).

BELL J:   The merits or otherwise of that draft direction might well be raised on an appeal in a circumstance in which the judge had been asked to give such a direction and declined to do so.

MR ODGERS:   Yes.

BELL J:   But when one looks at 165, the starting point is that:

If there is a jury and a party so requests, the judge is to:

(a)       warn the jury that the evidence may be unreliable, and

(b)       inform the jury of matters that may cause –

the evidence to be unreliable.  That is predicated on an application to warn that a particular part of the evidence may be unreliable and to draw the judge’s attention to that part of the evidence, and presumably the reason why it is said it is unreliable, so that the judge can comply with the obligation.

MR ODGERS:   I accept that, your Honour.

BELL J:   Now, if one turns to application book 92, in paragraph 39, the Chief Judge at Common Law sets out the application and the factors that are addressed do not, on the face of them, appear to be an application for a 165 warning in relation to the reliability of hearsay evidence.

MR ODGERS:   Let me say this, your Honour.  Firstly, the request that was made was in relation to 165, because your Honour will see at line 40 there is a request for “a warning under section 165”.  So, her Honour said, well, it was not a 165 application, it was a 165A application, well, let us – you will not see that mentioned here ‑ ‑ ‑

BELL J:   What one sees is reference to 165B in the transcript ‑ ‑ ‑

MR ODGERS:   I understand that, your Honour ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ so I think we have to take it that there is some difficulty when one looks at counsel’s submission in terms of what it was that was being requested, when one looks at the substance one understands the Chief Judge’s ‑ ‑ ‑

MR ODGERS:   All right, yes – line 40, your Honour – I am sorry, 93 – I am sorry, I do apologise, that is not the key part, it is ‑ ‑ ‑

GORDON J:   It seems to be that the matters that are raised at line 48 on page 92 really are subsection (c) factors, rather than (a) factors.

MR ODGERS:   Except for the last one - this is at the top of 93:

There’s her evidence in court ‑

So he is going through a list of factors that he says are asking for a warning under 165.  Then he says:

There’s her evidence in court where she couldn’t remember any detail about the allegations, including –

and then he gives all the examples of where she could not remember the details.  She could not remember if the banana touched her body.  At that point, the judge stopped him, and said, “Mr Crown, what do you say?”  Now, we have demonstrated, we think, very clearly, your Honours, in the written submissions that given that defence counsel had addressed only a short time before, he had only mentioned the lack of memory in order to establish that there was a forensic disadvantage.  He did not mention lack of memory as going to credibility of the complainant - never, in his address.  His address – when he talked about memory, it was exclusively because it went to forensic disadvantage.

You will see that, your Honours, at 96 of the application book at line 35 where he goes through the lack of the detail, he refers – this is at line 40 – and of course, by the time we get to court she has no memory at all and is unable really to be effectively tested about her account.  So that is the context in which he has addressed - lack of memory, therefore, cannot be effectively tested.  When the judge summed up and summarised the defence case that is what she took the jury to.  She did not suggest that it was anything about memory going to lack of credibility.

So we say that everyone understood, or should have understood, that when he raised memory it was in the context of unable to effectively test.  He raised that as a factor, the judge cut him off and ruled that she would not give the warning, but we say it was sufficiently clear that the request was made based on forensic disadvantage.  Even if we are wrong about that, the court ‑ ‑ ‑

BELL J:   When you now put it in terms of the application was for a warning – that the evidence was such that it placed your client in a position of forensic disadvantage, are you maintaining that this was a 165 application for a warning that the evidence may be unreliable because it was hearsay or something more general?

MR ODGERS:   I am putting it more generally and ‑ ‑ ‑

BELL J:   So, it is really the point made, I think, in Longman, and I mean, if ‑ ‑ ‑

MR ODGERS:   If there is something, yes ‑ ‑ ‑

BELL J:   ‑ ‑ ‑a warning is required then the failure to give one will occasion a miscarriage.

MR ODGERS:   Exactly.  This Court has repeatedly said that even if a request is not made, if a warning is necessary in the particular circumstances of the case, it should be given.  It is a well‑established area of justification for a warning, Longman itself, where delay led to a forensic disadvantage.  Here, it is not delay that leads to a forensic disadvantage.  It is lack of memory that leads to a forensic disadvantage.  The Court of Criminal Appeal accepted that even if it had not been asked for, there was a real question about whether a miscarriage of justice had resulted from the absence of any kind of warning.

BELL J:   Where did the Court of Appeal make that exception?

MR ODGERS:   Well, your Honour, this is in 106, I think, of the application book – no, 105, at line 28, your Honours, paragraph 64:

If that is the case, Ground 2 raises an issue which was not raised at trial –

So, his Honour found it was not raised, this issue –

and leave is required . . . I would grant leave.

BELL J:   Yes.

MR ODGERS:   Because it was said that there was a miscarriage of justice, from an absence - even if it was not requested, something needed to be said, and his Honour then proceeded to say, well, there was no miscarriage of justice for the reasons he gave, which we say are all erroneous, but I can go to that – perhaps I can go to that now.  Before I do though, I was just going to say, your Honours, that we stand by the proposition that it was understood that forensic disadvantage was the concern.  Whether it related to not being able to test the hearsay, which was the interview – bear in mind, the judge said the Crown relies on the interview because of what happened at the trial, so we focused our attention on that.

But, even if you are saying, well, it is unable to test her assertion at trial that he had done these things, that was it, that was all she could say – that could not be tested because of cross‑examination.  So, we should not focus, with respect, on technical questions about is it hearsay, or is it not.  The question of principle is were there circumstances here where the defence was effectively suffering a forensic disadvantage through inability to cross‑examine because of loss of memory or asserted loss of memory which required something to be said. 

BELL J:   Was the judge asked in terms for a direction of that kind, that is put to one side whether an application under 165 or 165A ‑ ‑ ‑

MR ODGERS:   No, your Honour, I accept that it was not in terms, but we say it fits within 165.  I do want to emphasise this.  Evidence may be unreliable because it cannot be tested.  That is an important principle.  It is not that it is unreliable, but it may be because you do not have a forensic technique to test its reliability.  So we say it falls fair square within 165.

BELL J:   Section 165 - I come back to, Mr Odgers - requires an application.

MR ODGERS:   Yes.

BELL J:   That is not to say that there may not be circumstances where, without application, the failure to give a warning occasions a miscarriage.

MR ODGERS:   Yes.

BELL J:   But unless you can identify the failure to give a warning that was requested, we are not in 165 territory, so it would seem to me.

MR ODGERS:   All right, your Honour.  Then my position is – and it was the position that was advanced in the appeal – even if it does not strictly fit within 165, it fits within the general principle that if there is a concern or a problem or a risk in a criminal trial which may not be fully apparent to a jury, that a judge has particular expertise in, such a direction should be given to avoid the risk of a miscarriage of justice. 

So that was argued, and we say we stand by that here.  We say that all of the reasons that his Honour gave for saying that there was no miscarriage of justice here were erroneous.  Perhaps I should go to those now.  So, this is at 105.  Paragraph 66 is where his Honour deals with it.  Firstly, he says:

The forensic disadvantage . . . was inextricably linked to the complainant’s age.

Our response to that is that nothing needed to be said in the warning about the complainant’s age.  That was not the reason for the warning.  The reason for the warning was the complainant, however old she was, asserted lack of memory, which meant you could not test her allegations.  The likely explanation for the lack of memory is quite distinct from the forensic significance of the lack of memory.  So we say that that first proposition of his Honour is erroneous.  Then his Honour says:

That issue arises in most cases where sexual offending occurs to a very young child.

Well, we say that is clearly erroneous reasoning.  Whether or not a warning will commonly be required is not relevant to whether it should be given.  We are, in this millennium, in new territory because this is a new situation where complainant’s accounts given years before trial are played before a jury and treated as part of the examination‑in‑chief.  Where they are very young complainants, this problem will recur, where they come to trial, and they really have no memory. 

Now, it is going to recur.  This is not a suitable vehicle for determining whether or not a judge should say something about it.  We say ‑ his Honour held no miscarriage of justice, but we say to say that it is going to be common is hardly a reason for saying no miscarriage of justice in this case.  Then, his Honour says:

In this case, there was nothing subtle about the forensic disadvantage.  It was obvious to the jury for a number of reasons.

Well, the jury knew that she had lack of memory.  She had asserted it constantly throughout the cross‑examination.  So much is true.  But, with respect, it is simply not good enough to say therefore there is no need for a direction.  Now, I say a number of things about that.  Firstly, in the United Kingdom, where now legislation has allowed hearsay to come in much more easily than it used to, the United Kingdom courts have emphasised that it is absolutely crucial that judges say something to a jury about the potential problems and the lack of ability to cross‑examine which that creates.  So the English courts have acknowledged ‑ ‑ ‑

BELL J:   Some of those decisions to which you refer are referring to the admission of hearsay where the maker ‑ ‑ ‑

MR ODGERS:   Where the person is not at trial.  I accept that, your Honour, but we say ‑ ‑ ‑

BELL J:   Very different situation.

MR ODGERS:   No, with great respect, your Honour, there is functionally no difference between a situation where the person is not at trial and where the person says “I have got no memory”.  You cannot cross‑examine.  It is the same, we say.  Anyway, I will – I draw analogies from the English authorities.  Secondly, courts have special knowledge about this, about the importance of cross‑examination as a method of testing evidence. 

Juries do not know how prosecution – how cross‑examination works, what its function is, what it seeks to achieve, how it can not only test accounts given by complainants or witnesses, it can also seek further detail which then in turn can raise question marks about the reliability of the accounts.  Juries do not know about that and judges do. 

Next, what was said to the jury in this case went nowhere near being sufficient to explain those matters.  All the jury got was a statement, well, the procedure – that is not to be – you do not use that for or against the accused.  Otherwise, you treat the interview just like any other piece of evidence – that is what they were told to do – and they are given a Murray direction, which just simply says, well, look at it very carefully, but that does not tell them the reason why you need to be cautious, and does not relate that to the need to then approach the evidence of the complainant with caution.

Lastly, and most importantly, as this Court held in Domican, there is a world of difference between defence counsel saying “I have got a forensic disadvantage” and a judge giving the weight of her authority, as a judge, to that warning.  So, we say, when you look at it here, it just cannot be correct to say that the jury would have fully understood the issue which we say arose here.  They would not, and they could not be expected to, and Justice Hoeben could not be confident that the jury would have understood it or fully understood it.  Lastly, also erroneously, over the page, his Honour, in the second sentence, refers to:

There were differences and inconsistences in that evidence which provided the defence with fertile ground for comment and challenges to the complainant’s reliability.

Now, with respect, your Honours, he was convicted of a count.  The fact that there were other sources of criticism of the complainant, other reasons for doubting her credibility, other reasons for doubting her reliability which in turn led to him being acquitted in respect of one count – that is nothing to do with a question of whether there is a miscarriage of justice. 

In failing to give a direction about this evidence – so, the question of miscarriage that this Court has repeatedly said needs to be answered is, is there a possibility – a reasonable possibility – that if the direction had been given, the verdict might have been different.  That is the question, and you focus on what is the issue, what is the problem, what could have been said and might the jury’s verdict been different.  You do not say, well, he had lots of other strategies for attack, and therefore he has got no complaint ‑ ‑ ‑

BELL J:   I think that point is understood, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  Well, I think that covers most of the issues I wanted to raise in respect of the first two grounds.  We say, in summary then, there was an issue that needed to be addressed.  This is going to be a question of general importance for the courts from hereon in.  One can anticipate problems like this arising in the future.  Something needs to be said to the jury about it.  The High Court should take the opportunity to affirm that fundamental proposition. 

The third ground seeks to challenge the Court of Criminal Appeal’s ruling that the verdicts were not inconsistent.  In the written submissions, we have responded to each of the reasons advanced by Justice Hoeben why he held that they were not inconsistent.  We say a question of general importance arises at application book 100.  At line 35, your Honours will see that the most important factor that his Honour relied on for distinguishing the two counts was that:

there was the evidence from the complainant and on the pornographic video of the girl with dark hair engaging in fellatio –

So Justice Hoeben is saying, look, there was evidence she was impressionable, there was evidence she had a tendency to confabulate.  The jury might well have reasoned, well, there is this video, it shows fellatio, therefore she might have confabulated that, therefore we will acquit him of the charge of fellatio, but we will convict him of the attempted penetration.

Now, we say the problem here is that it cannot be sufficient to point to doubts in a complainant’s account in respect of one count in order to explain a verdict of acquittal in respect of that count, but not another.  The point is that in a case where there is no corroboration in respect of any counts, if a jury has reasonable doubt regarding one count for a particular reason, then this would require careful attention to be paid to whether the jury could reasonably disregard that source of doubt when considering the other count.

The Court of Criminal Appeal failed to engage in that analysis.  What the court should have done was say, well, if there is a risk that she confabulated that allegation where we know that there is a source of possible confabulation, then can we discard the possibility that she confabulated the other count – even though we do not know where it might have come from.

BELL J:   We are looking at a ground that charges inconsistency of verdict.  One is interested in looking at is there a rational explanation.

MR ODGERS:   Yes.

BELL J:   There were, in this case, as the Chief Judge noted, a number of rational explanations, the first of which was this young child’s first unprompted complaint related to what I will describe as the first incident.

MR ODGERS:   Yes, and she did not mention the other.

BELL J:   Indeed.

MR ODGERS:   Our answer to that, your Honour, is very simple.  She had to mention one of them first.  When she did the person to whom she made the complaint said do not tell me any more.  Now, we say, how can you place any significance on that as a basis for differentiation, given that the same day, the same day she tells her mother both incidents?  We say that surely is not a sufficient basis for differentiating them.  We say that the complaints all on the same day related to both counts.  Weaknesses in both complaints apply to both.  There was no corroboration of either.  Justice Hoeben has placed considerable importance on the video showing fellatio.  We say, well, if she has confabulated that how can you exclude the possibility she has confabulated in respect of the other count ‑ ‑ ‑

BELL J:   The Court of Criminal Appeal is not engaged in excluding possibilities.  It is looking at whether there exists a rational explanation for the differing verdicts.

MR ODGERS:   All right.  The last point I would make about that, your Honour, is – and it overlaps with the first two grounds – which is that – and it highlights the problem about absence of warning relating to forensic disadvantage.  The video actually depicted both fellatio and penetration.  It depicted the dark‑haired girl engaging in penile vaginal intercourse.  If the complainant saw the video of one, it is likely she saw the video of the other.  That would have supported confabulation in respect of both counts.

BELL J:   Mr Odgers, I think you are straying into what I would understand to be new territory here, with the red light on.

MR ODGERS:   I am sorry, I did not even see the red light, your Honour.  I will sit down forthwith.  May it please the Court.

BELL J:   Thank you, Mr Odgers.  Thank you, we do not need to hear from you, Ms Dowling.

There are insufficient prospects, were special leave to be granted, that the appeal would succeed.  Special leave is refused.

AT 11.33 AM THE MATTER WAS CONCLUDED