MWJ v The Queen
[2005] HCATrans 574
[2005] HCATrans 574
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A35 of 2005
B e t w e e n -
MWJ
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON TUESDAY, 9 AUGUST 2005, AT 12.42 PM
Copyright in the High Court of Australia
MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MR S.C. EY, for the appellant. (instructed by Mangan Ey & Associates)
MR P.F. MUSCAT: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (South Australia))
GLEESON CJ: Yes, Mr Rofe.
MR ROFE: If the Court pleases, this is an appeal by special leave granted on 17 June this year against a judgment of the Court of Criminal Appeal dismissing the appellant’s appeal against conviction. The gravamen of the appeal is that there has been a miscarriage of justice by virtue of the rigorous application, and we would say possible extension, of the Browne v Dunn principles in the circumstances of this case by the trial judge and the Court of Criminal Appeal. As a result, the trial was unfair to the appellant in that the fundamental feature of his case was either not considered or diminished by the approach of the trial judge and the Court of Criminal Appeal.
GLEESON CJ: Where do we find the trial judge applying those principles?
MR ROFE: In his reasons for verdict, particularly under the heading “Findings – Reasons for Verdict” beginning at page 357 of the appeal book ‑ ‑ ‑
HEYDON J: Paragraph 84?
MR ROFE: Yes, your Honour. At paragraph 78 at page 357 his Honour said:
I turn firstly to what Ms Powell QC characterised as the Crown’s “fundamental problem”. The argument was essentially that MRC complained to her mother of something materially different to what she told the Court.
GLEESON CJ: I was looking at paragraph 87. The words “Having said all that” apply to paragraph 84 and following, do they not?
MR ROFE: Yes, they do, your Honour.
GLEESON CJ: Well, does he not make those comments and then put them to one side?
MR ROFE: The trial judge effectively in paragraphs 84 and following enunciates what can be said to be the principle of Browne v Dunn as to the unfairness to the witness whose credit is being impugned:
that I should use the statements made by [the complainant] as deposed to by her mother as prior inconsistent statements without the witness whose credit is impugned thereby, namely MRC being given an opportunity to address the alleged inconsistency.
GLEESON CJ: That is a reference to the submissions of Ms Powell. But having referred to those submissions of Ms Powell, he goes on to say, “Having said all that, I don’t think it is necessary to get into that difficulty for this reason”. Now, one of the difficulties I am having at the moment, Mr Rofe – and it may be useful to mention this to you before lunch, you might like to answer it after lunch – is that I have difficulty identifying the inconsistency between statements made by the complainant in her evidence and evidence of statements previously made by the complainant. But do not answer that now. Perhaps after lunch you could come and identify what you say are the prior inconsistent statements.
MR ROFE: Certainly, your Honour. I propose to begin by addressing the circumstances. I hope by doing that I will have outlined to your Honour where we say the inconsistencies were. As a matter of background, the appellant was originally presented on information charging six counts of sexual assault against two complainants who were in fact sisters. By agreement, counts 1 and 2 relating to one sister were severed. He was later tried and acquitted on those, having elected for trial by judge alone pursuant to section 7 of the Juries Act. He was then presented on counts 3, 4, 5 and 6 of the information, which is the matter before the Court.
KIRBY J: Counts 1 and 2 were the sister?
MR ROFE: Yes, your Honour. That was by agreement with the prosecution that they were severed and separately tried.
KIRBY J: Were they tried by jury or by a judge?
MR ROFE: By judge alone as well, your Honour. The trial judge in the present matter acquitted the appellant of count 3 and convicted him of counts 4, 5 and 6.
GLEESON CJ: Now, count 3 related to the event at the Sutcliffe Street premises?
MR ROFE: That is right, your Honour.
GLEESON CJ: Did the complainant ever give evidence that the event of which she spoke at the Sutcliffe Street premises was the only time she was abused at the Sutcliffe Street premises?
MR ROFE: She did give an answer that I say says that, yes.
GLEESON CJ: She did give an answer that says that?
MR ROFE: Yes. I will come to that in ‑ ‑ ‑
KIRBY J: In the written submissions, it is a little bit ambiguous but the written submissions seem to say the judge found him guilty of the Sutcliffe but that it was not established as to when it happened within the count of the indictment. Is that correct or not?
MR ROFE: It should be that he acquitted him, your Honour.
KIRBY J: Maybe you can check that over lunch too.
MR ROFE: Certainly, your Honour. Can I just say that my submissions may not follow precisely the written submissions which were filed by counsel retained prior to me picking the brief up last week.
The complainant referred to as M or MC or MRC was born on 6 July 1978 and lived in the city of Whyalla with her mother and family from 1981, initially in the house at Sutcliffe Street into which the appellant moved in 1987. Count 3, unlawful sexual intercourse under 12, was alleged to have occurred at Sutcliffe Street between 7 July 1986, that is effectively the complainant’s eighth birthday, and 31 December 1987. It was put forward as a discrete act.
In May 1989 the family moved to Jeffries Street, Whyalla where it is alleged counts 4, 5 and 6 occurred, three separate offences on the one occasion, unlawful sexual intercourse, indecent assault and attempted unlawful sexual intercourse, which occasion was allegedly the last occasion of the history of sexual abuse at Jeffries Street. Evidence was led of uncharged sexual acts that occurred at that address prior to that occasion.
Those offences were originally particularised as between 1 January 1991 and 31 December 1991. Those particulars were amended over objection to 1 January 1990 and 31 December 1991, effectively extending the timeframe by 12 months. In effect, the complainant gave evidence of a single act by the appellant at Sutcliffe Street, count 3, which she recounts in the appeal book at page 28 at about line 28:
Q. At Sutcliffe Street, did anything unusual occur between you and Bill?
She goes on to recount over on to page 29 and then at line 18 on page 29:
Q. Had anything like this happened before.
A. No, not that I know of.
GLEESON CJ: Happened before?
MR ROFE: Yes, your Honour.
GLEESON CJ: It is common in matters like this to charge the first occasion and the last occasion.
MR ROFE: That is so, your Honour, but the way the Crown case was presented it came out as a discrete act at Sutcliffe Street.
GLEESON CJ: Well, they only gave evidence of one discrete act at Sutcliffe Street but – and this is related to my question of where the inconsistency lies – her mother made an assumption that there had been only one event at Sutcliffe Street, evidently.
MR ROFE: She made an assumption that there had been only one event at Jeffries Street.
GLEESON CJ: Yes, but why was that inconsistent with the evidence of the complainant?
MR ROFE: The complainant’s evidence was one event at Sutcliffe Street, count 3 ‑ ‑ ‑
GLEESON CJ: The complainant’s evidence was not only one event at Sutcliffe Street, was it? It is one thing for a complainant to give evidence of an act of sexual abuse. It is a different thing for the complainant to say that is the only time it ever happened.
MR ROFE: In my submission, on an analysis of her evidence, that is the only conclusion one could come to. She did not say anything happened. Her answer was to what happened before.
GLEESON CJ: No, she did not say anything happened and she did not say nothing happened.
MR ROFE: She did not say nothing happened but ‑ ‑ ‑
GLEESON CJ: It is understandable why the Crown would adduce evidence from the complainant of the event the subject of the charge but it is a large step from that to say that it is inconsistent with the complainant’s evidence if somebody later makes an assumption about whether or not other things happened.
MR ROFE: The assumption about other things happening was in relation to the 2002 complaint by the girl to her mother that the appellant used to come into her room at night.
GLEESON CJ: The complainant never gave evidence, did she, that the event that she described as having occurred at Sutcliffe Street was the only time she was ever abused at Sutcliffe Street?
MR ROFE: Not in so many words, your Honour, no, but I would submit she at least said nothing like it had happened before to her knowledge and the question of anything happening after that before they moved was not explored.
GLEESON CJ: Exactly.
CALLINAN J: She did give evidence of a multiplicity of events at Jeffries Street though, did she not, at 32 and 33?
MR ROFE: That is right, your Honour, yes. There was a multiplicity of offending and history of offending up until that last occasion on which the three counts – 4, 5 and 6 – were based, that being the last occasion that anything occurred at Jeffries Street.
KIRBY J: Do you draw some inference from that that if there had been multiple instances she would have said so in relation to Sutcliffe Street? I just want to understand the submission.
MR ROFE: Well, one has to look then at where we say the inconsistency emerged, which obviously came from complaints to her mother in 1991 and 2002.
GLEESON CJ: I presume she gave evidence in response to questions asked of her by the prosecutor.
MR ROFE: That is so, your Honour.
GLEESON CJ: And I presume the prosecutor exercised a degree of care about what he asked her and what he did not ask her.
MR ROFE: Well, the difficulty was that the evidence of complaint in both circumstances was introduced to put in context later confrontation with the appellant.
GLEESON CJ: Is that a convenient time, Mr Rofe?
MR ROFE: If your Honour pleases.
GLEESON CJ: We will adjourn until 2.10 pm.
AT 12.55 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.11 PM:
GLEESON CJ: Yes, Mr Rofe.
MR ROFE: Your Honours, all that I can put to you in regard to whether there was an inconsistency, namely whether there was just the one incident at Sutcliffe Street, is that, in my submission, it was common ground with counsel, the trial judge and the Court of Criminal Appeal that there was such an inconsistency. In respect of that, I refer to the Crown’s opening, appeal book page 13. He was outlining count 3. At line 33:
She thinks that this is the only occasion when the accused touched her in this way at Sutcliffe Street.
GLEESON CJ: Did she give evidence to that effect? What we are looking for is a prior statement inconsistent with her evidence.
MR ROFE: All I can say is that she gave evidence that count 3 occurred and what I have already referred your Honours to, that is she does not think it happened before that.
GLEESON CJ: She said that in her evidence – before that?
MR ROFE: Yes. She is not taken to anything after that and, indeed, on that basis I suggest she was not cross-examined in that respect. I add that, indeed, the opening was consistent with her original statement that was filed with the court.
CALLINAN J: Her evidence at page 28 – she was asked whether anything unusual had occurred and thereafter she speaks entirely in the singular.
MR ROFE: That is right, your Honour, yes.
CALLINAN J: Whereas she talks about a course of events in relation to the other address.
MR ROFE: Which was led, yes. By analogy, I would say that if there was a further course of conduct at Sutcliffe Street, the Crown would have led that in the ‑ ‑ ‑
CALLINAN J: She says at the foot of page 28:
It was night-time. It was definitely night-time.
It all proceeds upon the basis of a singular incident.
GLEESON CJ: Which is the prior statement inconsistent with that evidence?
MR ROFE: It was her complaint to her mother in 2002.
GLEESON CJ: Where do we see that in the evidence? Where is the evidence of the complaint?
MR ROFE: The evidence was not led from the complainant.
GLEESON CJ: No, we know.
MR ROFE: The evidence of the first complaint of 1991 related to Jeffries Street was led.
GLEESON CJ: I understand that. I just want to see what was the evidence of the prior statement made by the complainant that was inconsistent with the evidence that she gave in court. Where is the evidence of the inconsistent statement? I am not denying it exists; I just want to read it.
MR ROFE: It comes in the evidence of the mother, if your Honour pleases. The Crown having not led it from the complainant herself, although they led the first one, attempted to lead at appeal book page 134 over the objection of Ms Powell, then there is a discussion between counsel and his Honour. Then at page 141 examination continues of the mother:
You have told us that [the complainant], in about 1991, told you something like the fact that [the appellant] had tried to sleep with her or have sex with her.
A. Yes.
Q. What was your understanding about where that had occurred, as in which address.
GLEESON CJ: Is that the evidence:
Q. What was your understanding about where that had occurred –
Is that evidence of a prior inconsistent statement by the complainant?
MR ROFE: Just going on, your Honour, line 26:
Q. I am now going to ask you about a conversation you had with [the appellant] in about early 2002. First of all, can I ask you whether you had a further conversation with [the complainant] in about 2002 about what [the appellant] had done to her.
A. Yes. That’s when she told me that he had interfered with her when she was very young, when we were still in Sutcliffe Street.
. . .
A. She told me that he used to go into her room at night-time and touch her.
Q. Did you infer from that that it was sexual touching.
A. Yes.
Then they go on to the confrontation. We say that is the inconsistency.
GLEESON CJ: So the fact that she told her mother that he used to go into her room at Sutcliffe Street at night‑time and touch her is inconsistent with the fact that she gave evidence about one occasion on which he touched her?
MR ROFE: One occasion.
GLEESON CJ: Unless she said that that was the only occasion on which he touched her, I have difficulty in seeing the inconsistency.
MR ROFE: If your Honour pleases, that is the way that the case proceeded and that was common ground, in my submission, between counsel. I cannot put it any higher than that. But if there was an ambiguity, in my submission, it would be incumbent on the Crown to recall the complainant and elicit that from her, unlike what I say is the possible extension of the Browne v Dunn principle on the inconsistency basis that the trial judge and the Court of Criminal Appeal inferred that it was a duty on defence to recall the complainant and clear up those matters.
KIRBY J: But all of this is a palace of cards built on an inconsistency which, on the face of things, does not seem to be established, unless I am missing something. What is the best way you can put the inconsistency?
MR ROFE: Simply that the complainant gave evidence of one incident at Sutcliffe Street and a course of conduct at Jeffries Street culminating in the one final occasion when the three offences, 4, 5 and 6, were alleged to have occurred. Then when the mother is called ‑ ‑ ‑
KIRBY J: Is your proposition that when she has the chance to speak to her mother, you would think that she would tell her mother this has been a pattern or that there have been a number of incidents of this kind?
MR ROFE: Yes. The effect of the mother’s evidence is that the girl told her on two occasions 10 years apart that the accused used to come into her bedroom at night at Sutcliffe Street, having in 1991, 10 years earlier, said that “He tried to have sex with me”, which everyone understood to be the occasion at Jeffries Street, although on that occasion there was no history of abuse mentioned, according to the mother. As I say, the case proceeded on that basis. Just referring to the trial judge’s reasons at page 361, paragraph 99 – this was raised earlier I think by the Court – he said:
I am convinced, based on my acceptance of MRC’s evidence, and the evidence of her mother, that the offending did take place and at Sutcliffe Street. However, placing it within the period charged, namely 7th July 1986 and 31st December 1987, is not possible, at least with any conviction, given the necessity to do so beyond reasonable doubt and bearing in mind the warning. If I was convinced that it was a single occasion at Sutcliffe Street, then I would have entertained an application to amend to widen the charge period; but I am not so convinced, based on MRC’s reserved response to whether there was only the one occasion of improper touching at Sutcliffe Street. So, Count 3 is not proved beyond reasonable doubt.
So the trial judge was alive to it and the fact that it was being presented both by the Crown and defence as being one occasion at Sutcliffe Street. Of course, the Chief Justice in his judgment at paragraph 66 on:
I agree with Ms Powell’s submission that the defence was entitled to rely on the inconsistency between M’s evidence about WJM’s conduct and her complaints, and D’s evidence about the complaints. The fact that the evidence of the complaints was led from M merely to explain D’s response does not mean that the evidence of D cannot be used to weaken M’s evidence, or D’s evidence.
The evidence by D about M’s complaints is evidence of statements by M inconsistent with her evidence about WJM’s conduct. The defence was entitled to rely on those inconsistencies to attack M’s credit.
The fact that the inconsistencies were not put to M was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to Ms Powell to have M recalled for further cross‑examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to M that has to be taken into account.
I consider that the Judge erred in deciding that D’s evidence could not be used as evidence of statements by M inconsistent with her evidence at trial.
KIRBY J: Just pause there. There is no impediment to counsel for the accused asking for the complainant to be recalled for further questioning.
MR ROFE: I think it goes further than that, your Honour. I think it goes that there was almost an obligation for the defence to apply to recall the complainant and cross-examine her in that respect.
GLEESON CJ: What is the difficulty referred to by the trial judge on page 359, paragraph 87, line 1?
MR ROFE: I suggest the difficulty is what Ms Powell referred to as the fundamental problem of the Crown back at paragraph 78. The trial judge found that the evidence was inadmissible.
GLEESON CJ: But he did not need to resolve the difficulty.
MR ROFE: He did not need to but he went on to do it, in my submission, to speculate about reasons that would explain the inconsistency.
GLEESON CJ: I am just interested to know what it is he said he found it unnecessary to resolve.
MR ROFE: The alleged inconsistency between the complainant’s evidence and what she had said to her mother.
GLEESON CJ: If it was something that he found unnecessary to resolve, why is it important in the outcome of the case?
MR ROFE: We say it was the fundamental aspect of the defence case and is credibility of the complainant. As is typical of these historical sexual abuse cases, defence is left simply on an issue of credibility.
GLEESON CJ: But I thought he went on to say following paragraph 87, “Even if there are these inconsistencies that Ms Powell says exist, I don’t think they matter for the following reasons”, and he then gave his reasons. Do you criticise his reasons?
MR ROFE: I say they are speculation which did not arise from the evidence. Indeed, that was a mistake that his Honour the Chief Justice also picked up following paragraphs 66 to 69 which I just read. Paragraph 71 at 380:
It was appropriate for the Judge to consider, as he did, the significance of any inconsistency between M’s evidence at trial and evidence of what she said to D about WJM’s conduct. To my mind that is the correct starting point. The first issue is whether there is an inconsistency, the next issue is whether there is an explanation that makes the inconsistency innocuous . . .
As to the apparent significance of any inconsistency, I agree with the Judge that it would not be at all surprising if M’s first complaint to D had been in terms of a single incident. It would not be surprising if she focussed on the attempt at intercourse, and said nothing about the long course of conduct that led up to it.
That is at Jeffries Street.
Neither M nor D were cross-examined in a manner that tends to exclude that fairly obvious explanation for M putting her complaint that way, and for D thinking that there had been a single incident at Jeffries Street. There was no suggestion in D’s evidence that she asked M to elaborate on or to explain the first complaint.
That does not dispose of the inconsistency between M’s evidence at trial of her first complaint (“[WJM] had been touching me”) and her evidence about WJM’s conduct at Jeffries Street. That also is a matter to be considered. But, once again, M was not asked anything about this, even though it was apparent on her evidence in chief. And the prosecutor had asked her to confine herself to “the topic of your conversation”. The Judge did not refer to this aspect of the matter. However, in the circumstances that seems a subsidiary issue, and the Judge may well have thought it did not require separate consideration.
As to the second complaint, the Judge seems to have attributed the inconsistency between [the appellant’s] evidence at trial that there had been a single incident at Sutcliffe Street –
I think that should read “the complainant’s evidence” –
and D’s evidence that M “told me that he used to go into her room at night-time and touch her”, to D being distracted by the realisation that there had been past misconduct by [the appellant] of which she had been unaware. It was open to the Judge to take that approach. Once again, there was no cross‑examination of D that would tend to exclude that possibility.
When one bears in mind the very brief nature of D’s evidence about the complaints, and the likely impact on her of hearing these complaints, it would not be surprising if there was some misunderstanding as between her and M.
Because of the brief way it was led and the way it was thus cross-examined, that issue was not ventilated at any length.
There is also the fact that D’s evidence of WJM’s admissions, when she tackled him about the first complaint, is evidence of what seemed to be admissions to a single incident. The Judge did not refer to this aspect of the matter. Indeed, he said that D’s evidence of WJM’s admissions corroborated much of M’s evidence. I agree that it did, but only if one was satisfied that this aspect of the evidence was not significant, and was satisfied that in a confrontation between D and WJM there might have been no reason for either of them to explore the number of times that misconduct had occurred. I consider it was open to the Judge to take this approach, and more broadly to take the approach that in considering what happened when D tackled WJM, the number of incidents about which M had complained was far from being the main issue.
In my submission, neither the trial judge nor the Chief Justice was entitled to speculate about reasons for the inconsistency. The point I was making is that the inconsistency was accepted ground, as I said, between counsel, the trial judge and the Court of Criminal Appeal.
Could I just turn very quickly to some other evidence from the complainant at page 32 of the appeal book of the evidence‑in‑chief. Again at line 19 it starts:
Q. At Jeffries Street, did anything unusual occur between you and [the appellant].
. . .
Q. Can you describe what happened at Jeffries Street. Take your time. It might help if I ask you this: at Jeffries Street, was there one occasion or more than one occasion where something unusual went on.
A. There was more.
. . .
A. No. It happened too often.
Q. How regularly did it occur at Jeffries Street.
A. At the start, not as many, but sort of as time went on, it became a more regular thing ‑ ‑ ‑
GLEESON CJ: Not as many as what?
MR ROFE: Not as many as later on, in my submission.
Q. This occurred when you were aged about 11, do you think.
A. Up until then, yes. Like I said, a regular thing.
Q. Over what period of time did this occur regularly.
A. Like I said, it started – I don’t know when it was that it started. We moved, I just sort of noticed it started to happen more and more.
By that, I submit the girl is saying that the conduct began at Jeffries Street and then continued until that final occasion which is the subject of the charges. Inferentially one can say that supports the fact that she was only alleging one incident at Sutcliffe Street.
In cross‑examination at page 58 of the appeal book, line 17, she was asked:
Q. Do you say that these things that [the appellant] was doing to you started almost immediately after you moved into Jeffries Street.
A. I don’t recall when exactly, I just sort of – it just became like a realisation that it was happening more and more. I don’t know when it first started when we moved into the house. I don’t know if it was the first day, first week, first month.
. . .
A. Yes, definitely first six months.
That is as high as I can put the submission, your Honours, that there was one incident at Sutcliffe Street and therefore, on our case, an inconsistency between what the mother said she told her. In effect the girl’s evidence was one incident, count 3, at Sutcliffe Street, the history uncharged leading up to the final occasion at Jeffries Street, which is the subject of 4, 5 and 6.
GLEESON CJ: It is right, is it, that the case was presented on the basis that they charged the first time it ever happened and the last time it ever happened?
MR ROFE: As it turned out, yes.
GLEESON CJ: Which is common prosecutorial practice.
MR ROFE: That is true, your Honour.
GLEESON CJ: Because they are the occasions people are likely to have a best recollection of.
MR ROFE: Yes, but the way it was led would indicate that, although there were incidents in between, they all happened at Jeffries Street and not at Sutcliffe Street after the first occasion. That is as far as I can take it, your Honours.
The inconsistency, as we say it existed, arose out of two complaints, one by the complainant to her mother, and were not led as recent complaints, in 1991 and 2002, and then in its context in confrontation between the mother and the appellant which allegedly led to admissions by the appellant which the appellant strenuously denied. The appellant admitted there was a confrontation in 1991 ‑ ‑ ‑
KIRBY J: What is the sequence of events of the breakdown of the marriage and when did that occur?
MR ROFE: The marriage occurred after the second complaint in 1992, your Honour.
KIRBY J: So the first complaint was what year?
MR ROFE: 1991.
KIRBY J: The second complaint 1992. Marriage?
MR ROFE: Sorry, the second complaint 2002. The marriage was back in 1992, which is after the first complaint but before the second complaint.
KIRBY J: And break‑up of the marriage?
MR ROFE: The break‑up was in – there is a chronology provided by the appellant – in 2002 the separation.
KIRBY J: Complaint to police?
MR ROFE: 2003, your Honour. Although both complaints were opened on by the prosecutor, in my submission, they were opened very scantily and were not of – and I refer to the appeal book, page 11, the prosecution opening, starting at line 5:
In 1991, and probably the same year as this last incident, [the complainant] complained to her mother that the accused had tried to have sex with her. That evidence is not being led for the purposes of recent complaint. However, [the mother] confronted the accused. The accused made admissions that what [the complainant] had said was true. He told [the mother] that he would attend counselling and apologise to [the complainant].
Then there is an exchange with the trial judge. Mr Crowe, the prosecutor, continues at line 26:
Yes, that was in 1991.
This topic was next raised between [the mother] and the accused in early 2002. In that conversation, the accused confirmed that incidents had occurred at Sutcliffe Street. In March 2003, police began investigating [the complainant’s] allegations.
HIS HONOUR: He confirmed that incidents had occurred at Sutcliffe Street. Then you went straight on and said ‘In March 2003’.
Then it goes on that that was the end and as far as the prosecutor was prepared to take it in opening. So the actual detail of the complaint itself from the complainant to her mother was not opened on and, indeed, the prosecutor only led the 1991 complaint from the complainant. If that was supposed to put the defence on notice that if they wanted to give the opportunity to the complainant to explain the complaint she had made in 2002, it would have involved defence counsel beginning cross‑examination on a topic that the prosecutor had presumably and deliberately left unled.
We say that that is something that should not be required by the prosecutor, equally the inference from the trial judge and the CCA that it was open to Ms Powell to recall the complainant, places an onerous burden on defence counsel to effectively fix up the prosecution case where there was an internal ‑ ‑ ‑
GLEESON CJ: Mr Rofe, were there committal proceedings here?
MR ROFE: The usual ones in these sort of cases, your Honour.
GLEESON CJ: Paper committals?
MR ROFE: Paper committals.
GLEESON CJ: Yes, and they would have contained an account of the evidence that the witnesses were going to give?
MR ROFE: Yes, your Honour.
GLEESON CJ: So that by the time the trial commenced defence counsel knew what the evidence of all of the prosecution witnesses was going to be?
MR ROFE: Yes, I would accept that, your Honour. Indeed, that is what I referred to as the original statement of the girl that she was alleging only the one occasion at Sutcliffe Street but in ‑ ‑ ‑
GLEESON CJ: When I say she knew what the evidence of the prosecution was going to be, she knew what the evidence‑in‑chief of the prosecution witness was going to be.
MR ROFE: Yes, your Honour. Again, my recollection of the statement of the mother was that although she said there was a conversation with the complainant it was never spelled out in so many words, that she said, other than the way she gave her evidence in the end, that is that, “My daughter told me that ‘he used to come into my room at night’”, in relation to Sutcliffe Street. Of course in the opening Mr Crowe had referred to alleged admissions by the accused of incidents – plural – at Sutcliffe Street, but that, in my submission, was not enough to sufficiently alert the defence to the inconsistency that we say then existed. That came out only after the evidence of the mother in‑chief and, indeed, that is highlighted by the defence objection to the 2002 complaint which appears at page 134 of the appeal book and the subsequent discussion between counsel and the trial judge.
The defence case was that there was no abuse at either address or at all and no admissions were made. The critical issue here was credibility, particularly of the complainant. The so‑called inconsistent prior statements were not put to her by reason of the way the prosecution led the evidence, that is that the inconsistency did not become apparent until the complainant had finished and the mother gave her evidence of what the girl had said to her.
As is usual in these types of cases, the only defence available apart from the denial on oath which was made of any abuse occurring at all or of any admissions made was an attack on the credibility of the complainant and the inconsistencies that had appeared was the fundamental plank of the defence case. His Honour the Chief Justice in the Court of Criminal Appeal called it a significant aspect of the defence case.
The difficulty that arose on appeal in the Court of Criminal Appeal was that the trial judge found that what the complainant had said to her mother in 1991 and 2002 could not be received as evidence going to her credibility because it was not a recent complaint. That appears at page 358 of the appeal book, paragraph 82 of the trial judge’s reasons. As we have seen, the trial judge then went on and determined it would be unfair to the complainant to use the statements made by her to her mother as opposed to by her mother as prior inconsistent statements without her being given the opportunity to address the alleged inconsistencies and he placed an obligation upon the defence to put the inconsistencies to the complainant. That appears at – where, in effect, he went on to look at the Browne v Dunn type principles even though he had effectively eschewed them.
In the Court of Criminal Appeal, in the Chief Justice’s judgment, he found the defence was entitled to rely on the inconsistency between the complainant’s evidence about the appellant’s conduct and her complaints, and indeed his evidence about those complaints, and said that the trial judge was in error in his approach. The Chief Justice found:
The fact that the inconsistencies were not put to M [by the appellant’s counsel] was something to be taken into account in assessing the weight to be given to the inconsistencies.
In particular, he held at page 380, paragraph 68 that:
It was open to Ms Powell to have M recalled for further cross‑examination.
Our submission is that if there was ambiguity or difficulty about that, then the onus was on the Crown to recall the complainant and certainly not on the defence counsel to apply to have her recalled in effect, to, as I said, fix up the prosecution case.
Just as the trial judge speculated about reasons for the inconsistency that existed, the Chief Justice also speculated on the possible explanation for the inconsistencies which appears at paragraph 72 of 380 of the appeal book. In my submission, those speculations did not arise specifically from any of the evidence given. Paragraph 72 on 380:
As to the apparent significance of any inconsistency, I agree with the Judge that it would not be at all surprising if M’s first complaint to D had been in terms of a single incident. It would not be surprising if she focussed on the attempt at intercourse, and said nothing about the long course of conduct that led up to it. Neither M nor D were cross‑examined in a manner that tends to exclude that fairly obvious explanation for M putting her complaint that way, and for D thinking that there had been a single incident at Jeffries Street. There was no suggestion in D’s evidence that she asked M to elaborate on or to explain the first complaint.
That is the situation in which we are in, that there is no evidence and, in my submission, it is impermissible to speculate in the way the trial judge and the Chief Justice did to explain the inconsistency that they found. The Chief Justice went on to look at the first complaint at paragraph 73 and also paragraph 74 to the second complaint:
the Judge seems to have attributed the inconsistency between –
as I have said, that should be M’s –
evidence at trial that there had been a single incident at Sutcliffe Street, and D’s evidence that M “told me that he used to go into her room at night‑time and touch her”, to D being distracted by the realisation that there had been past misconduct by WJM of which she had been unaware.
That is, in my submission, just pure speculation and there is no basis in the evidence for the judge to take that approach.
The Chief Justice held the trial judge’s failure to bring the inconsistencies to account in assessing the credibility of M was not an error of law. He further held that if the trial judge’s decision not to bring to account the inconsistencies at all by reason of the failure to cross-examine could be an error of law but did not give rise to a miscarriage of justice.
Considering the question of miscarriage, the Chief Justice identified circumstances in which a miscarriage could be said to have arisen: (1) where the judge had failed “to consider a significant aspect of the defence case”; (2) where there “is a real risk of the Judge having been led into error in his ultimate conclusion by his failure to consider the relevant matters”; and (3) where the verdict of the trial judge manifested what would have constituted a misdirection to a jury. That appears at paragraph 84, appeal book page 382.
With regard to the first consideration, although the trial judge considered aspects of the defence case, he failed properly or fully to consider the inconsistencies which in the manner described above were a central part of the defence case.
HEYDON J: When was that defence case first articulated? Was it articulated before final address?
MR ROFE: The defence case?
HEYDON J: Yes, that point, that aspect of it.
MR ROFE: No, it came out in final address, your Honour.
HEYDON J: For the first time?
MR ROFE: It had arisen in the course of argument between counsel and his Honour in relation to the leading of the second complaint. The defence were going to rely on the inconsistencies between ‑ ‑ ‑
HEYDON J: Would that be around page 140?
MR ROFE: Yes, your Honour, or it might be just before that, I think, about 120 ‑ ‑ ‑
HEYDON J: But Ms Powell was objecting to the evidence.
MR ROFE: At 134 the objection.
HEYDON J: If it is going to be at the centre of the defence case, why would she be objecting?
MR ROFE: As she said, “This is not a recent complaint.” In my submission, because of the lack of detail in the opening, she was unaware of what was to be led from the mother. So in that sense I may have misled your Honour because it really only becomes after that it becomes obvious that the inconsistency arises when the mother gives evidence at 141.
HEYDON J: Does it follow from what you have just been saying then that the inconsistency point was not raised in the debate up to 141?
MR ROFE: That is so, your Honour, not until addresses.
HEYDON J: Your submission was that the Crown should have recalled the complainant to patch up its case. If the Crown did not realise that this weakness existed, how could it be expected to respond in that way?
MR ROFE: I would say it became clear when the mother said at 141 that there was more than one incident of offending at Sutcliffe Street that there was then a clear inconsistency between what the complainant had given evidence of and what the mother said she had complained of.
HEYDON J: Where is the inconsistency on Jeffries Street?
MR ROFE: Your Honour, simply that the mother, and indeed everyone, took the complaint in 1991 related to an incident at Jeffries Street, not a course of conduct at Jeffries Street. He said he tried to have sex with her which is, of course, count 6, the attempted unlawful sexual intercourse.
HEYDON J: Yes.
GLEESON CJ: Mr Rofe, the mother is not a lawyer and she is not a policeman and it is very unlikely that she would have cross‑examined her daughter about the detail of this incident. It was open to the trial judge to take the point of view, was it not, that any inconsistency such as might have been that emerged from the mother’s understanding of what the daughter was telling her was of marginal significance and not central to the defence case, especially because it seemed to have been touched on so lightly by the defence counsel up until her final address?
MR ROFE: That is so, your Honour. I cannot argue with that. That was the situation as it existed and, in my submission, defence counsel are entitled to take account of something that came out in the course of the prosecution case, which was only the two witnesses. The complainant and the mother were the only witnesses called. Of course it is against the background of the defence being a complete denial of any abuse and of any admission, so that in a submission to the trial judge as to why he should not rely on the evidence of the complainant she was entitled to take use of what we say is an internal inconsistency in the prosecution case.
On that basis, the rule in Browne v Dunn was at least underlying the reasoning of the Court of Criminal Appeal, the rule in Browne v Dunn being, of course, a rule of professional practice which requires that a cross‑examiner should put to an opponent’s witness factual matters or inferences to be drawn from facts that are inconsistent with what the witness says which were intended to be asserted in the defence case.
The situation is simply that at the time the complainant gave evidence and was being cross‑examined that inconsistency was unknown to the defence and could not therefore be put, and we say that there is no onus. If the onus exists anywhere, it exists on the Crown, and there should not be an extension of the onus under the Browne v Dunn principles. The defence should clear up the inconsistency by recalling the complainant.
KIRBY J: I did not understand the suggestion to be that the defence recalls the complainant but that the defence requires or requests the Crown to recall the complainant and ‑ ‑ ‑
MR ROFE: In my submission, that was the effect of both the trial judge’s reasons and also the Court of Criminal Appeal’s reasoning.
GLEESON CJ: I think you may be at cross‑purposes. They just said the defence could have asked for the complainant to be recalled so she could have been further cross‑examined by Ms Powell.
MR ROFE: That is so.
GLEESON CJ: There is no suggestion Ms Powell would have had to lead her evidence with non‑leading questions.
MR ROFE: No, I accept that, but even that onus to have her recalled for further cross‑examination I submit is beyond the rule in Browne v Dunn. The touchstone of the rule is simply to prevent unfairness, so the essential elements to the eventual case, and if they are not put to witnesses who might have the capacity to cast doubt upon the case, a fair trial, that is a fair trial to both sides, has been jeopardised. That was the statement of the rule from Foley’s Case [2000] 1 Qd R 290 at 291 and echoed by Justice Hunt in Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16.
We would also refer the Court to the dictum of Chief Justice Bray in R v Byczko(No 2) (1977) 17 SASR 460 at 466 where his Honour said:
I do not agree that counsel when faced with apparent improbabilities, inconsistencies and incredibilities in the evidence of his opponent’s witness is necessarily bound to probe them in detail if he wants to comment on them adversely in his final address. Sometimes it may be better advocacy to leave the matter with an uplifted eyebrow. This is not, as I see it, a case of the application of the rule in Browne v Dunn.
Indeed, if the rule in Browne v Dunn had any part to play here that is such a situation that in the circumstances the trial judge and indeed the Court of Criminal Appeal should not have applied rigorously the rule or the fact that this had not been put to the complainant in her evidence, we say, simply because the inconsistency had at that stage not arisen. The inconsistency did not emanate in any way from the evidence of the appellant or from new or different inferences from facts which the defence sought to rely on. The basis for the inference of lack of credit on the part of the complainant arose solely from the inherent inconsistency of the evidence of the only two prosecution witnesses.
The defence should suffer no adverse consequences, including a diminution of the weight to be given to the inconsistencies from the lack of cross‑examination on this topic. Of course, that refers to the comment by the Chief Justice in his judgment that that was the relevance of the fact there had not been cross‑examination and that it went to the weight to be given to the inference.
The rule in Browne v Dunn, if it is to be applied in criminal trials, in my submission, should be applied flexibly. Before an adverse inference should be drawn against a defence for failure to comply with the rule, there is need for consideration of factors in the trial process which led to the conclusion that the failure should not reflect adversely upon the credibility of defence witnesses. So that is where, your Honours, we say the miscarriage arose in that effectively the appellant did not receive a fair trial.
CALLINAN J: Mr Rofe, assume you are right about what you say in relation to inconsistency and the like, your client was acquitted on count 3.
MR ROFE: Yes, your Honour.
CALLINAN J: The complaint relates to the evidence affecting count 3, is that not right? The complaint that you make is that there was an inconsistency in relation to the accounts that were given concerning the events constituting count 3.
MR ROFE: And counts 4, 5 and 6.
CALLINAN J: That is what I do not understand. How does that matter, assuming you are right about that, affect counts 4, 5 and 6?
MR ROFE: We say the inconsistency goes to the general credit of the complainant and as such the judge should not have been satisfied.
CALLINAN J: You really can compartmentalise each of the charges, that is to say count 3 on the one hand and counts 4, 5 and 6 on the other, can you not?
MR ROFE: Yes, but as has been read to the Court the trial judge’s reasons for acquitting on count 3 related to the timeframe and that he could not be satisfied that ‑ ‑ ‑
CALLINAN J: But there are a whole lot of matters which the trial judge deals with in paragraph 105 on page 362 which are peculiar to counts 4, 5 and 6 and which surely are well capable of supporting a conviction on those counts. There is your client’s false evidence ‑ ‑ ‑
MR ROFE: There is no doubt the trial judge accepted the complainant as a witness of truth and rejected the evidence of the appellant.
CALLINAN J: Why then is there any substantial miscarriage of justice in relation to counts 4, 5 and 6, or any miscarriage of justice?
MR ROFE: We say because he did not give effect to the inconsistencies because he regarded the evidence of the mother as being inadmissible, which the Chief Justice himself said was an error.
CALLINAN J: Just remind me where the Chief Justice said that, please.
MR ROFE: Certainly, your Honour. Page 380 of the appeal book, paragraph 69, about line 16:
I consider that the Judge erred in deciding that D’s evidence could not be used as evidence of statements by M inconsistent with her evidence at trial.
GLEESON CJ: Could I suggest to you that the words “this difficulty” in paragraph 87 on page 359 refer to the question posed by the judge for
himself in paragraph 83. I am putting that suggestion to you in compliance with the rule in Browne v Dunn.
MR ROFE: That may be so, your Honour, but in any event the judge does consider the Browne v Dunn principles, if not correctly then at least by – simply the trial judge said he could not use the evidence of the mother because it was not introduced for that purpose.
GLEESON CJ: That view is really supported, is it not, by the opening words of paragraph 82? The trial judge thought he had a bit of a problem on his hands about strict legal principle ‑ ‑ ‑
MR ROFE: That is so, your Honour.
GLEESON CJ: ‑ ‑ ‑ and he discussed them and then he said, “However, it is unnecessary for me to resolve this difficulty because of the view I take of the facts”.
MR ROFE: That is true, but his Honour the Chief Justice did say there is an error in taking that position and we say there is an error in taking that position and he should have given full effect to the inconsistency that existed. Had he done so, then he may well have come to a different conclusion as to the credit of the complainant and, indeed, if he had directed the jury in those terms, that they would take no notice of that evidence – assuming that evidence got in at all, but assuming it did, if he had directed the jury that they were to take no notice of that evidence in determining the credibility of the complainant, that would have been a clear misdirection, in my submission. It is for those reasons that we say there is a miscarriage and that this Court should quash the convictions and order retrials on counts 4, 5 and 6. If the Court pleases.
GLEESON CJ: Thank you, Mr Rofe. Yes, Mr Muscat.
MR MUSCAT: May it please the Court. The trial judge in this case found the complainant to be a credible witness and convicted the appellant on counts 4, 5 and 6 on the information, largely based on her evidence, corroborated in an important aspect by the admissions that the trial judge found the appellant had made to the mother of the complainant, and he gave detailed reasons for his verdicts.
The appeal to this Court centres around two inconsistent statements said to be made by the complainant to her mother when informing the mother of the conduct of the appellant that the defence at trial sought to utilise in their closing address to impugn the credit of the complainant so much so that the trial judge ought to have had a reasonable doubt as to the appellant’s guilt. As defence counsel at trial put to the trial judge, the inconsistent statements attributed to the complainant were said to be such a fundamental problem for the Crown that they were damning of the prosecution case. The purported inconsistencies were, contrary to the appellant’s submission to this Court, properly considered by the trial judge. There can be no suggestion that the trial judge did not have regard to that evidence.
At paragraph 88 of the reasons for verdict at appeal book 359 the trial judge considered the evidence of the purported inconsistencies and found that they did not have the effect of undermining the credibility of the complainant as submitted by the appellant. Prior to assessing the evidence of the purported inconsistencies, the trial judge remarked in his reasons for verdict at paragraph 84 and 86, found in appeal book 358 and 359, that it may have been unfair to use the purported inconsistencies to undermine the credibility of the complainant in that they had not been put to her by defence counsel for comment. However, and importantly, the trial judge did not actually adopt this approach. So much is plain from a reading of paragraph 87 of his reasons for verdict at appeal book 359 and a subsequent analysis of the evidence as it stood at paragraph 88 of his reasons for verdict.
The trial judge proceeded to evaluate the weight of the evidence of the purported inconsistencies as it stood and found contrary to the defence submission that they did not undermine the credibility of the complainant. As I say, there can be no suggestion that the trial judge ignored or had no regard to the evidence of the inconsistencies or even that you somehow place less weight upon them as a result of the failure of defence counsel to put them to the complainant for comment; rather, that what he appears to have done was to simply assess the evidence of the inconsistent statements as they stood against the other evidence in the case and found that there existed plausible explanations, open on the evidence, for those inconsistencies, such that the evidence did not undermine the credibility of the complainant. Upon the evidence in this case, the trial judge was certainly entitled to arrive at that view.
The Court of Criminal Appeal stated at paragraph 69 of their judgment at appeal book 380 that the trial judge erred in deciding that the evidence from the complainant’s mother could not be used as evidence of inconsistent statements made by the complainant with her evidence at trial. That overstates, with respect, what were merely observations by the trial judge as there can be no doubt that he did in fact consider the evidence of the purported inconsistencies submitted by defence counsel without, indeed, taking into account their failure to put them to the complainant.
HEYDON J: He considered the Jeffries Street inconsistency in paragraph 88, but did he consider the alleged Sutcliffe Street inconsistency?
MR MUSCAT: Yes, your Honour, he did consider both inconsistencies in paragraph 88. If your Honour goes down to about line 24:
As to the 2002 complaint, I consider that the witness DE was, in recounting that episode, concerned not so much with the details of what was alleged to have happened, but the place where it happened, namely Sutcliffe Street.
As I say, it is clear from paragraphs 87 and 88 of the reasons for verdict that the trial judge had regard to this important aspect of the defence case.
Just before I come to the approach of the Court of Criminal Appeal, could I take your Honours to the evidence in this case because there was a complete lack of evidence, if you like, regarding whether or not what the complainant had said to her mother was, indeed, inconsistent with her evidence at trial. The evidence of the 1991 disclosure by the complainant to her mother is found in the transcript at appeal book 38 to 39. It is led in a very truncated fashion by the prosecutor, wary that he did not want to lead any evidence that would be considered by the court as evidence of recent complaint. At page 38, line 36 the prosecutor asked the complainant in evidence‑in‑chief:
Q. I’m not going to ask you about the detail of the conversation with your mother, but what was the topic of your conversation.
A. I told her that [the appellant] had been touching me.
Q. Did you mention to your mother that it was sexual.
A. Yes.
That is the only evidence led from the complainant, either in evidence‑in‑chief or when she was cross‑examined, regarding any disclosure made to her mother concerning the abuse by the appellant. What is apparent immediately from the complainant’s brief evidence about that disclosure is that she refers to more than one incident, clearly enough, which was consistent with her evidence, namely, that she had been abused at the Sutcliffe Street home and then abused when the family moved to Jeffries Street.
So that is not inconsistent at all with the evidence of the complainant, but that is not to the point because it is really what the complainant had to say to her mother that is important from the point of view of the appellant in this case. The evidence in that regard is found in the transcript at appeal book 130 through to 132. If I could briefly take your Honours to that, commencing at line 16 of page 130 of the appeal book:
I’d now like to ask you about conversations with [the complainant]. At some stage did [the complainant] have a conversation with you about [the appellant] and things that [the appellant] had been doing.
A. Yes.
. . .
Q. Can you tell us about the circumstances of [the complainant] speaking to you.
A. [The complainant] told me that [the appellant] had touched her sexually.
Q. Do you remember the words she used.
A. She said that he tried to have sex with her.
. . .
Q. Did you ask [the complainant] for some detail.
This is important in the context of whether or not what she had said was inconsistent with her evidence.
Q. Did you ask [the complainant] for some detail.
A. No, I went straight in to talk to [the appellant] about it.
So that far from the evidence of the 1991 disclosure to her mother indicating, on the appellant’s case, only one incident of abuse at the Jeffries Street house, that is simply not to be drawn from the answer she had given to her mother. Clearly from what her mother said, she did not ask her for the detail, she immediately went and confronted the appellant about what she had just been told by her daughter.
Some further questions were asked of the mother at pages 141 and 142 of the appeal book, insomuch as trying to ascertain what her understanding was about where that disclosure of the incident had taken place. The prosecutor asked the mother:
Q. What was your understanding about where that had occurred, as in which address.
A. Jeffries Street.
Q. Did you have any idea of how recently that had occurred or how long before the conversation it had occurred.
A. I don’t think it was very long after it.
. . .
Q. Was it your understanding –
that is the mother’s understanding –
that there was one or more incidents at Jeffries Street.
A. The once, I believe.
KIRBY J: What page was that, I am sorry?
MR MUSCAT: Page 142 of the appeal book at line 28:
Q. Was it your understanding that there was one or more incidents at Jeffries Street.
A. The once, I believe.
That is the mother’s understanding, but that is certainly not the evidence of the complainant and one could simply not glean from the limited complaint made by her daughter with a clear indication from the mother that she did not elicit any other detail from her that that somehow was inconsistent with her evidence at trial and thus was a fundamental problem for the Crown that so impugned the credit of the complainant the trial judge was obliged ‑ ‑ ‑
KIRBY J: The verb is in the present tense, “I believe”. It is a statement of what the witness, the mother, was saying at the time she gave the evidence. I suppose the suggestion is that if she believed it was once, even as late as that, then for the complainant to be giving evidence or suggesting it was more than once is an inconsistency that should have been put to the accused.
MR MUSCAT: No. That would be the case if there was some detail as to exactly what the complainant had told her mother. That is the problem that the appellant faced in this case, a complete and utter lack of detail from the complainant, and indeed from the mother, as to exactly what was said. Because there was a complete lack of evidence on that topic, the trial judge was entitled to take the view that it simply did not have the effect that defence counsel were attempting to make of it at trial.
It has been argued by the appellant that defence counsel were somewhat taken by surprise about this inconsistency regarding the Sutcliffe Street disclosure. I will come to that in a moment. Mr Rofe took your Honours to a passage in the appeal book where counsel for the appellant at trial objected to the prosecutor leading the further disclosure that occurred in 2002.
GLEESON CJ: But the sequence of disclosures was that it was what happened at Jeffries Street that prompted the complaints.
MR MUSCAT: That is so, your Honour.
GLEESON CJ: And she complained about what was happening at Jeffries Street.
MR MUSCAT: Yes.
GLEESON CJ: Then later she gave further information about Sutcliffe Street.
MR MUSCAT: That is correct, some 10 years later, in fact. That is so. But it has been suggested to this Court that the appellant’s counsel could not have known what was to come from the mother about this disclosure and therefore how could she have cross‑examined the complainant about it when she gave her evidence. It is plain from reading that passage between page 134 through to 141 of the appeal book when counsel for the appellant objected to the prosecutor leading the 2002 disclosure that counsel for the appellant was aware that the complainant had told her mother that there were other incidents – plural – between her and the appellant at Sutcliffe Street. So much is plain from page 140 of the transcript at line 35, where counsel for the appellant told his Honour the trial judge:
I inferred from the declaration –
namely, the statement of witness of the mother –
that the later discussions about other incidents –
plural –
was ‘[The complainant] then told me there were other incidents with her and [the appellant] in Sutcliffe Street; in other words, other incidents –
and I use the word “incidents” in the sense of plural –
apart from the one that I’ve already talked about’, that’s what I’ve drawn [from] the inference.
Clearly, counsel for the appellant was armed with another statement. As your Honour the Chief Justice indicated to Mr Rofe, the defence were fully aware of what the prosecution evidence at trial would have been from the statements that were filed with the Court and served upon the defence.
GLEESON CJ: Yes, there would be an uproar at trial if the prosecutor tried to lead evidence of a kind that had not been foreshadowed at committal. There would be arguments presumably about whether that was unfair and there would be applications for adjournment and the like.
MR MUSCAT: Precisely, but that was not the case here. That was not the case here. The clear inference from that passage is that defence counsel were aware of this so-called inconsistency in the number of occasions abuse is meant to have occurred at the Sutcliffe Street home. It has been put to this Court that it would be somehow unfair to the appellant for counsel for the appellant at trial to have sought the recall of the complainant to put that inconsistency to her for comment.
They knew about it. They knew about it prior to the mother giving evidence‑in‑chief on this topic. So there can be no unfairness. They were on notice that there was this inconsistency. They chose not to cross‑examine the complainant about it when she gave evidence at trial and they now complain that it is somehow unfair that the trial judge and the Court of Criminal Appeal have taken the view that their failure to put that inconsistency to the complainant was a factor that the trial judge was entitled to take into account in assessing the weight of the inconsistency that is alleged against the complainant.
Staying with the topic of the 1991 disclosure, in my submission to your Honours, firstly, when one analyses the evidence on that topic one cannot say that there was in fact an inconsistency between what the mother said the complainant told her about the abuse at Jeffries Street and what the complainant’s evidence at trial was about that abuse. I will not take your Honours through this in detail because it is in paragraph 38 of my written submissions, but very briefly, firstly, there was simply no evidence either from the complainant or her mother that the complainant has said there was only ever one incident of sexual abuse at Jeffries Street. The mother’s evidence about what the complainant said, namely, that the appellant had tried to have sex with her, was not inconsistent with the complainant’s evidence‑in‑chief. The complainant’s evidence was that the appellant had tried to have sex with her, this being the final incident of abuse the subject of count 6.
The complainant’s mother did not ask her daughter for any further detail regarding that disclosure and instead immediately confronted the appellant. The complainant, therefore, was not given any opportunity to develop that disclosure prior to her mother confronting the appellant. There was no evidence to conclude that the complainant intended to convey by this statement that there had only ever been a single incident of sexual abuse at Jeffries Street. The fact that the mother believed or understood her daughter to be referring to only a single incident of abuse is not evidence of an inconsistent statement by the complainant.
So what the respondent contends is it was not open on the evidence to conclude what the complainant had said to her mother in 1991 was inconsistent with her evidence at trial. Even if it could be said that the evidence of that 1991 disclosure constituted a statement that was inconsistent with the complainant’s evidence regarding the sexual abuse at Jeffries Street, the trial judge was correct in finding that this evidence lacked any significant weight for the following reasons: first, there was a complete lack of detail in the evidence; secondly, the complainant’s mother was giving evidence of a conversation that she had with her daughter that occurred over 10 years ago.
This incident was, from the complainant’s perspective, the most serious and traumatic incident of abuse that she suffered. It was the final incident of sexual abuse that would have been uppermost in her mind.
HEYDON J: We are working our way through paragraph 39 of your ‑ ‑ ‑
MR MUSCAT: Yes, your Honour. What is important of course is it is the one occasion where the complainant reacted to the abuse by the appellant and intended to stop his conduct. So there would have been further and understandable reluctance on the part of the complainant, who was then only aged 12 or 13 years, to volunteer a long and painful history of sexual abuse to her mother, a woman who plainly loved the appellant and plainly was prepared to stand by him even in the face of what her daughter had just disclosed to her.
So a plausible explanation, if the Court pleases, for the evidence, being the explanation actually referred to by the trial judge, was that the complainant had begun by disclosing the final and most serious incident of sexual abuse and, as this Court knows, it is not uncommon in a sexual case, in particular where you have a young complainant, to hear evidence of disclosure of what had happened in a piecemeal fashion. A further plausible explanation for this evidence was that the complainant started by disclosing, as I say, this final and most serious incident of abuse to her mother but was interrupted when her mother immediately confronted the appellant; in short, her complaint to her mother had not been completed. That is the evidence that was left in this trial for the trial judge to assess.
Nobody explored with the complainant what else she might have said to her mother. No one explored with the mother what else her daughter may have said to her. So the trial judge was simply faced with having to assess that inconsistency on its face as it stood. Really, he was correct to come to the conclusion that it had no impact upon the credibility of the complainant whatsoever.
The Court of Criminal Appeal found that that was open to the trial judge. Mr Rofe says to your Honours there is no evidence and that was speculation. I have taken your Honours to the evidence. The trial judge was entitled to infer from that evidence plausible explanations for the inconsistency. There can be no complaint that a trial judge and jury in coming to assess evidence is entitled to use their common sense and experience of life and to practically weigh up the evidence and draw inferences from the evidence that they find convincing, provided there is a factual basis for drawing that inference. I submit to this court that there is. I have taken your Honours to the evidence of that. Both the trial judge and the Court of Criminal Appeal were of that view.
The 2002 disclosure is even more stark in that the complainant did not give any evidence about that whatsoever. The evidence regarding the content of that disclosure came solely from the complainant’s mother. Of course the mother’s evidence was in 2002, at around the time she was having problems with the marriage to the appellant, she told her that the appellant had sexually interfered with her when they were living at the Sutcliffe Street address. Now, when asked by the prosecutor about the words that her daughter had used to describe what had happened in Sutcliffe Street, the complainant’s mother replied that:
She told me that he used to go into her room at night-time and touch her.
Mr Rofe has taken your Honours to that passage in the evidence. Just before that, just so your Honours know the flavour of what the mother was attempting to recall, if I can go back to just before counsel for the appellant objected to this evidence at trial, page 134 of the appeal book. The prosecutor leads into the second disclosure in 2002 at line 11:
Q. At some later stage, did you have a further conversation with [the complainant] about what [the appellant] had done to her.
A. Not until I was leaving.
That is, “Not until I was leaving him from the marriage.”
Q. Can you tell us when that was and tell us about that conversation.
A. I can’t remember the exact details, but [the appellant] and my marriage had broken up and I told the girls that I was leaving Whyalla and I was moving back to Mildura.
Then, of course, counsel for the appellant objected. Well, she started off by saying, “I can’t remember the exact details” and all she has given evidence of is that:
She told me that he used to go into her room at night-time and touch her.
I have already taken your Honours to that passage at page 140 where it was clear that counsel for the appellant was aware that the mother would say this about ‑ ‑ ‑
GLEESON CJ: Yes, we remember that.
MR MUSCAT: So what the defence contended at trial was that the 2002 disclosure constituted a statement by the complainant that there had been multiple incidents of abuse at Sutcliffe Street. The complainant gave evidence of a single incident of abuse at Sutcliffe Street, that being the subject of count 3 of the information.
Your Honour the Chief Justice went through with Mr Rofe whether there was any evidence that there had been abuse after that incident the subject of count 3 on the information and there was not. The question was simply, “Did anything like this happen before?”, and her answer was, “No, not that I can remember”. Of course nobody asked whether anything had happened after that incident at Sutcliffe Street, the Crown case being opened on the basis that that was the first incident of abuse and that the counts 4, 5 and 6 was the last occasion of abuse that occurred at Jeffries Street.
Now, the trial judge came to this evidence and he assessed it and weighed it and found that it did not have the impact that defence counsel had put to him that it ought to have, namely, that it so impugned the credit of the complainant that he could not convict on her evidence. When one looks at that bare statement from the mother that she attributes to her daughter, “She told me that he used to go into her room at night-time and touch her”, there is a complete and utter lack of detail there.
GLEESON CJ: I think you mentioned that before.
MR MUSCAT: Your Honour, that was in relation to the other complaint. Now, again I will take your Honours to the evidence. The complainant’s mother, when she heard this disclosure by her daughter, was clearly angry and distressed at hearing that her daughter had been sexually abused at a younger age at Sutcliffe Street. She had previously been of the belief that there had been only a single incident, in her mind at least, of abuse at Jeffries Street, being that to which she believed the appellant had confessed. So it was on that understanding that she remained with the appellant.
So a plausible explanation for the apparent inconsistency, as the trial judge found, was that the complainant’s mother had been focused more on the fact that her daughter had been sexually abused at a younger age, at a different address, namely, Sutcliffe Street, and less on the detail and nature and extent of that abuse. That was open by inference from what the mother had said about what she did after she was told of that disclosure by her daughter and the trial judge was entitled to draw that inference and form that view as to that evidence. Indeed, the Court of Criminal Appeal said that that was open to him on the evidence.
CALLINAN J: Mr Muscat, I just want to ask you this. What I have seen done on occasions of the kind that occurred here where a subsequent witness has given some evidence inconsistent with an earlier witness, counsel for the party calling the witness has simply tendered the earlier witness for cross‑examination. Now, the Crown could have done that here.
MR MUSCAT: The Crown could have done that here.
CALLINAN J: I mean, both the trial judge and his Honour the Chief Justice seemed to think that there was some obligation which was incumbent upon the appellant and could only be discharged by the appellant by seeking the recall of the complainant. Now, it seems to me at this stage, with respect, that that is not correct, that the better view, particularly in a criminal case, is that the Crown, having created the inconsistency in effect by calling the two witnesses who give the different evidence, is the party that should cure it, or should give the opportunity of its being cured.
Now, that may or may not mean that the conviction should be quashed – his Honour the Chief Justice has dealt in detail with reasons why that may not lead to quashing – but what about that as a proposition? Is that not the more appropriate course, particularly in a criminal case having regard to where the onus lies?
MR MUSCAT: If I can say this about that, your Honour, it was the appellant who intended to use that evidence.
CALLINAN J: No, the appellant intended to use the inconsistency. That is an entirely different matter. Using the evidence is using the inconsistency between two pieces of evidence. It is a different matter.
MR MUSCAT: Well, with respect, the appellant intended to make much of that inconsistency.
CALLINAN J: And you could have cured it by tendering the complainant for cross‑examination.
MR MUSCAT: The Crown was not to know until the final address that that was to be a fundamental aspect of the defence case.
CALLINAN J: Look, Ms Powell clearly opened it up. She referred in detail at, what, pages 138 to 141 to the inconsistencies. Blind Freddie would have seen that it would be a matter that would be relied upon by the appellant in address.
MR MUSCAT: She opened it up in the context that she objected to the evidence being led ‑ ‑ ‑
CALLINAN J: Yes.
MR MUSCAT: ‑ ‑ ‑ because it was her view that it was not ascertained from the mother exactly what that conversation was relating to, which address. That is why she withdrew her objection when she indicated, “If the prosecutor could sort this out as to, namely, what was the address that the mother believed the complainant to be talking about regarding the first disclosure, then I do not object to this evidence”.
CALLINAN J: Where is that again, please, Mr Muscat?
MR MUSCAT: Page 141 at line 8 where ‑ ‑ ‑
CALLINAN J: Well, she is saying that if it is really Jeffries Street rather than Sutcliffe Street that was being discussed, there is no problem. That is not a withdrawal of the objection to the tender of evidence on the part of the mother that there had been earlier complaints about what had happened at Sutcliffe Street – an entirely different matter.
MR MUSCAT: No, it is plain that Ms Powell was not certain, regarding the first disclosure, whether that was limited to Jeffries Street or Sutcliffe Street.
CALLINAN J: I am sorry, what was that, and Sutcliffe Street?
MR MUSCAT: Yes, she was not certain whether it was a complaint by the daughter regarding the entire abuse both at Sutcliffe and Jeffries Street. Once that was sorted out by the prosecutor ‑ ‑ ‑
CALLINAN J: Well, I do not read it that way, Mr Muscat, I have to tell you. I read it as a clear indication that Ms Powell is saying, “If she is really talking about Jeffries Street, the matter can be sorted out, but not if she is talking about Sutcliffe Street”.
MR MUSCAT: Well, the prosecutor sorted out that the 1991 disclosure was Jeffries Street. The prosecutor then went on to elicit from her the Sutcliffe Street disclosure and there was no objection.
CALLINAN J: I think she had sufficiently objected earlier.
MR MUSCAT: There was simply no objection when that issue was sorted out to her satisfaction. She did not object once the prosecutor then proceeded, at line 26 at page 141 of the appeal book, to ask the mother of the details of what her daughter had told her about the abuse at Sutcliffe Street.
CALLINAN J: Well, I do not read it that way.
MR MUSCAT: In my submission, there is no other way that one could read what happened.
CALLINAN J: Well, we have your submissions.
MR MUSCAT: If the Court pleases, just because an inconsistent statement arises on the evidence it does not mean that an otherwise credible witness should be treated as unreliable and not to be believed beyond reasonable doubt. This Court in Driscoll v The Queen (1997) 137 CLR 517 at 536 to 537 in the judgment of Justice Gibbs, as he then was, makes it clear that the evidence must still be weighed to assess its significance with respect to the credibility of the witness under attack. As the Chief Justice in this case at Bar observed at paragraph 70 of his judgment at appeal book 380, this involves an assessment as to whether or not there exists an inconsistency in the first place; next, whether there are plausible explanations for the inconsistency, followed by an assessment of the significance. There can be no doubting the correctness of the Chief Justice’s approach to evidence of inconsistent statements.
Since the evidence had to be assessed in this way and since the trial judge was entitled to consider whether plausible explanations existed for the inconsistencies, the question becomes whether there was any requirement upon defence to question the witness for what consequences, if any, flow from a failure to do so.
That brings me to the approach of the Court of Criminal Appeal. The respondent’s primary submission to your Honours is that the Court of Criminal Appeal was correct in its statement at paragraph 68 at appeal book 380 regarding how the evidence was to be approached. The Court of Criminal Appeal’s position, as I say, is set out at paragraph 68. What the respondent submits is that this is a correct approach both logically and appropriate to the circumstances of this case.
The approach that has been advocated by the Court of Criminal Appeal really contains the following elements. It is open to defence in these circumstances, that is, where there is an inconsistency inherent in the prosecution case that defence wish to utilise to undermine the credibility of the witness, to cross‑examine the witness about the inconsistency or to have or to apply to have the witness recalled so they could put those matters to the witness. If they choose not to do so – and there is no obligation upon the accused in a trial to do anything – the evidence is not automatically disregarded. The evidence is still to be weighed, just as any other piece of evidence must be weighed, but in weighing the evidence the fact that the inconsistency was not put to the witness is something that can be taken into account in assessing its weight.
Now, here the complainant had given little or no evidence on the topic and had not been given the opportunity to confirm or deny the inconsistent statement or provide any explanation. Fairness dictated that she be given this opportunity. Defence were the ones who wished to utilise the evidence of the inconsistency to further their argument to undermine the credibility of the complainant. Accordingly, defence should, as a matter of fairness, have put the inconsistency to the complainant.
Now, a failure by defence to put the inconsistency does not result in the evidence being disregarded; it merely reflects the fact that the witness who could have explained the inconsistency had not given evidence on the topic and that this is a factor to be taken into account in assessing the weight or cogency of the evidence. This will include a consideration whether there are plausible explanations for the inconsistency. In support of this proposition, I rely on what Chief Justice King said on this issue in R v Costi.
GLEESON CJ: Which proposition?
MR MUSCAT: Namely that if you wish to impugn the credit of a witness in regard to a prior inconsistent statement, then fairness dictates that that be put to the witness. Now, I have reproduced the paragraph from Chief Justice King’s judgment in R v Costi (1987) 48 SASR 269 at 270 in paragraph 21 of my written submissions.
GLEESON CJ: Yes, we have read your written submissions.
MR MUSCAT: Your Honours will know that that second limb in the observation of the rule of practice in Browne v Dunn relates to imputations against the conduct or credibility of a witness generally and the respondent contends that this encompasses the situation where defence wish to utilise evidence of an inconsistency inherent in the prosecution case to undermine the credibility of the complainant. Similar observations have been made in the earlier case of Reid v Kerr (1974) 9 SASR 367 by Justice Wells at pages 374 and 375 of his judgment. As I say, the approach adopted by the Court of Criminal Appeal does not mean that defence are obligated to or even should cross‑examine a prosecution witness ‑ ‑ ‑
GUMMOW J: Obliged I think. The word is “obliged”. You said obligated. Anyhow, go on.
MR MUSCAT: No. Well, I say that they are not obligated.
GLEESON CJ: Yes, we knew that.
GUMMOW J: We know that.
MR MUSCAT: Sorry, or should have. Now, what happens from Browne v Dunn and the consequence of a failure to adhere to the rule of practice in Browne v Dunn will vary from case to case. Really, it varies depending on what fairness dictates in the circumstances of the case. Now, the respondent’s alternative submission ‑ ‑ ‑
GLEESON CJ: You are not taking us through your written submissions, are you?
MR MUSCAT: No – is that if the Court of Criminal Appeal was incorrect in this approach, namely, that this somehow falls under the umbrella of Browne v Dunn, then the only other approach was simply to assess the evidence as it stood without taking into account the failure of defence counsel to have put the inconsistency to the complainant into account. I have already gone through that this is the approach adopted by the trial
judge in this case. That is clear from not only what he had to say at paragraph 87 of his reasons for verdict, but what he went on to do in paragraph 88, namely, he assessed the weight of the evidence to determine whether or not it had the impact of impugning the credibility of the complainant.
GLEESON CJ: Yes. Well, it would be naïve to assume that trial counsel are always motivated by a desire to clarify every possible aspect of uncertainty of the evidence. Sometimes their motivation is the opposite. But at the end of the day the judge or the jury has to do the best that can be done with the evidence as it is left.
MR MUSCAT: That is right, and that is the approach that the trial judge took in this case. He simply assessed the evidence as it stood. He did not take into account, as has been put to this Court, a failure by counsel for the appellant to have put these matters to the complainant. Accordingly, if the Court pleases, there has been no miscarriage of justice in this case, because the evidence was properly assessed by the trial judge and found to be lacking in its impact upon the credibility of the complainant because there were plausible explanations that existed upon the evidence for those two inconsistent statements that had been put by the appellant regarding what the complainant said. Unless there is anything further, those are my submissions.
GLEESON CJ: Thank you, Mr Muscat. Yes, Mr Rofe.
MR ROFE: Just some very quick matters, your Honours. As to Jeffries Street, I remind the Court that the only evidence of the precise words of the complaint by the complainant occur from the mother’s evidence at appeal book 130, line 33:
She said that he tried to have sex with her.
Of course, that was the last incident that occurred at Jeffries Street. Indeed, the mother thought it was the one occasion. On the topic of the fairness indicating the inconsistency in Sutcliffe Street should have been put, I remind the Court that no evidence was led from the complainant about any other abuse at Sutcliffe Street and, in particular, the 2002 complaint, unlike the 1991 complaint, was not led by the prosecution, so of course defence counsel was disadvantaged and the Crown case had been in opening that Sutcliffe Street was only on one occasion. As to the significance of the inconsistencies, I remind the Court of the Chief Justice at paragraph 85 of the judgment, appeal book page 382:
that the inconsistencies were a significant aspect of the defence case.
If the Court pleases.
GLEESON CJ: Thank you, Mr Rofe. We will reserve our decision in this matter. We will adjourn until 9.45 tomorrow morning.
AT 3.55 PM THE MATTER WAS ADJOURNED
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