MWJ v The Queen

[2005] HCATrans 431

[2005] HCATrans 431

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A69 of 2004

B e t w e e n -

MWJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 JUNE 2005, AT 11.20 AM

Copyright in the High Court of Australia

MR P.A. CUTHBERTSON, QC:   If the Court pleases, I appear with my learned friend, MR S.C. EY, for the applicant.  (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))

GUMMOW J:   Yes, Mr Cuthbertson.

MR CUTHBERTSON:   There are two prior inconsistent statements of the complainant in a sexual abuse case made to the mother of the complainant.  Essentially, they related to the fact that the Crown case was that sexual abuse on one occasion occurred at premises at Sutcliffe Street, and on numerous occasions at an address at Jeffries Street.

The mother gave evidence for the prosecution, and in her evidence‑in‑chief she gave evidence of these two complaints made by her daughter, in which the complaint was, firstly, that it happened on a number of occasions at Sutcliffe Street in contradistinction to the complainant, and on one occasion at Jeffries Street in contradistinction to the complainant.

The inconsistent statements were led by the prosecution, not as evidence of recent complaint - they did not pass that test - but the prosecution said they were relevant to establish that as a result of those conversations the mother approached the accused, who was the stepfather of the complainant, and admissions were made when the mother approached the accused.  So these prior inconsistent statements came out as a result of examination-in-chief by the Crown.  When, in addresses, the defence sought to rely upon them as prior inconsistent statements, the learned trial judge said that they were not available to be used for that purpose.

The Full Court of South Australia held that was an error, and that they were available to be used for that purpose, but because of suggested non-compliance with the rule in Browne v Dunn, the weight to be accorded to the inconsistencies was reduced, and in the Full Court judgment in paragraph 68 the error we say is apparent, wherein the learned Chief Justice said:

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 . . . has to be taken into account.

There is a reference to Foley’s Case, which is a case plain and simple on the rule in Browne v Dunn.  It is our submission that this is not a case of the application of the rule in Browne v Dunn because the inconsistency came in, not by virtue of evidence being led by the defence, the inconsistent statements, but by virtue of evidence being led by the Crown, albeit for another purpose.

Now, both the trial judge and the Full Court looked to what might be innocent reasons for the inconsistent statements of the complainant, and it was the question of the possibility of innocent explanations for the inconsistencies that the Full Court directed its comment, or its ruling, that the evidence was to be treated as having less weight on account of the failure of the counsel of the accused to cross‑examine.

Now, that was an error, we say, an important error, because in South Australia at least it places the rule in Browne v Dunn far beyond what the ordinary understanding of its use could be.  One can demonstrate that error, in my submission, by looking at it this way.  If the prior inconsistent statements had come in by virtue of evidence from a defence witness called by the defence, and the defence had complied with the rule in Browne v Dunn, all they would have had to ask the complainant would have been, “Did you not say this to X at a particular time and a particular place?”  There was no obligation on the defence to go on and cross‑examine about possible innocent explanations for the inconsistent statements.  They would have been entitled to leave that to the prosecution in re-examination, if there were any innocent explanations for the inconsistent statements.

CALLINAN J:   Mr Cuthbertson, would you look at page 45, paragraph 68?

MR CUTHBERTSON:   Yes.

CALLINAN J:   I think that is in the judgment of the Chief Justice.

MR CUTHBERTSON:   Yes.

CALLINAN J:   Is that correct, what his Honour said, that it was open to Ms Powell to have the witness recalled for further cross‑examination and she did not do that?

MR CUTHBERTSON:   Yes, your Honour, I think she would have been ‑ ‑ ‑

CALLINAN J:   You see, it is so often overlooked, but that is the way in which so often a failure to comply with Browne v Dunn can be cured.  People do not do that, or say that, but it seems to be something that is so often overlooked.  The Chief Justice has not, but it is overlooked.

MR CUTHBERTSON:   With respect, I quite agree, your Honour, but this is not a case where there had been a breach by the defence of the rule in Browne v Dunn in the first place because the evidence came out through the prosecution witness in examination-in-chief.  So it is not a case of something that the prosecution did not know about and should have been put to their witnesses so they could comment on before the defence are entitled to give that evidence.  It is a case of the prosecution knowing about it, leading it through the witness, the mother, and then - the defence is being criticised for non-compliance with Browne v Dunn in not cross-examining the complainant.

Now, what is the criticism that we did not cross‑examine the complainant about?  I suppose it could be one that we did not put to the complainant, “Isn’t it the case that you said this inconsistent statement to your mother?”  Now, my answer to that is we do not have to do that because we did not lead the evidence, the Crown led the evidence.  Indeed, in relation to the second complaint we objected to it being led at all but it was permitted over objection.  Then it gets used – or our failure to cross‑examine gets used not only presumably in the traditional Browne v Dunn sense, but also when both the learned trial judge and the learned Chief Justice in the judgment of the Full Court, in contemplating the weight of the evidence, they seem to say, “Look, these are the possible innocent explanations for her, the complainant, to have made inconsistent statements”.

Because the defence have not cross‑examined on those possible alternative innocent explanations for the complaint, that is a breach of the rule in Browne v Dunn, and what follows is that the evidence of the inconsistency bears less weight, and we say that is wrong on two bases:  One, it is not a breach of the rule in Browne v Dunn in the first place and, secondly, if anyone has to wear the failure to deal with possible innocent explanations for these inconsistent statements, it is the prosecution not the defence.  That follows from, firstly, the principle that evidence is to be weighed according to the power of one party to produce.

GUMMOW J:   Yes, Mr Cuthbertson.

MR CUTHBERTSON:   That is a function of the two principles; one, that evidence is to be weighed according to the power of the party to produce, and the other to refute, and this is all ‑ ‑ ‑

CALLINAN J:   And also in your favour, Mr Cuthbertson, this is a criminal case and at this point you are under no obligation to decide

whether you are going to call evidence or not or whether you are going to – you have not even decided what you have to contradict because there is a contradiction anyway in the Crown case.

MR CUTHBERTSON:   Yes, indeed, and the onus of proof ‑ ‑ ‑

CALLINAN J:   The onus of proof remains on the prosecution.

MR CUTHBERTSON:   So if the onus of proof means that one cannot say that evidence that is uncontradicted can more readily be accepted, as this Court has said in RPS I think, then it follows, in our submission, that one cannot say that because the defence did not go into the – that the possible innocent bases for these prior inconsistent statements, that that should be held against the defence.  On the contrary.  In our submission, the learned trial judge should have given himself a direction that in considering this he should bear in mind that these matters, innocent explanations, are peculiarly within the knowledge ‑ ‑ ‑

CALLINAN J:   It is a little like trying to apply Jones v Dunkel against an accused in a criminal case.  You just cannot do it - or you cannot do it without qualifications, serious qualifications, in a criminal case, having regard to the onus and standard of proof.

MR CUTHBERTSON:   Yes, indeed, your Honour, and why it is so important to the administration of law in South Australia is that if uncorrected here will be a decision that seems to be an extension on the rule in Browne v Dunn and casts some sort of an onus on the defence to look at possible innocent explanations.  A good cross-examiner might, in complying with the rule in Browne v Dunn in a standard case, say, “Isn’t it the fact that you told your mother this?” and if the girl said, “Yes, I did” there will be no obligation on the cross-examiner to go on and say, “Well, did you have an innocent reason for doing that?  Was there a possible” – as the learned trial judge did and as the learned Chief Justice did, go through the possible reasons why it might have been an innocent reason.

GUMMOW J:   Yes, well thank you, Mr Cuthbertson.  I think we should interrupt you to hear from your opponent.

MR CUTHBERTSON:   If the Court pleases.

MR MUSCAT:   If it pleases your Honours, this case has nothing to do with placing an onus upon the applicant to cross‑examine the complainant about these matters.  It is simply.....to the evidence of the complainant against the background.  Nobody asked her about the detail of those matters.  So when the court is looking to assess the relevance of the alleged inconsistency, the court is plainly entitled to take into account that (a) there was complete lack of detail; and (b) because nobody asked about that detail, the court is simply left with the very bare minimum of detail concerning that topic; hence, it is about the assessment of the evidence in light of the lack of the evidence that was adduced by both parties on that topic.

Can I just take your Honours briefly through why this happened this way in this case.  The evidence of the complainant was that there had been a single incident, the subject of count 3 upon the information, at the family home in Sutcliffe Street, and then a course of conduct that culminated in counts 4, 5 and 6, upon the information, at the family home in Jeffries Street.  The complainant gave very brief evidence relating to a disclosure to her mother a year after the incidents, the subject of counts 4, 5 and 6; namely, the address at which the course of conduct was said to have taken place.

That disclosure was led by the prosecution solely to explain why the mother then confronted the applicant, her husband, and accused him of interfering with her daughter which, on the prosecution case, resulted in the applicant admitting the conduct, the subject of counts 4, 5 and 6.

GUMMOW J:   He was the stepfather.

MR MUSCAT:   The complainant was specifically told by the prosecutor not to provide any detail of that disclosure to her mother – he taking the view, correctly, that as it was hearsay evidence it could not be used for the truth of what was said by the complainant, nor was there evidence of recent complaint, but that it was necessary to explain how it was that the mother came to confront the applicant and what he said in response, which was the sole relevance of the evidence.

Now, the complainant’s evidence was that she told her mother that the applicant had been touching her.  That was entirely consistent with her evidence.  Her mother’s evidence of what the complainant said to her was that the applicant had touched her sexually and that he tried to have sex with her.  Again, with all due respect to my learned friend, that was entirely consistent with the complainant’s evidence.  That the mother believed or assumed that the complainant was only referring to an isolated incident occurring at the Jeffries Street home is not to the point.  Indeed, that the applicant himself was of that view is likewise not to the point.  Because no one asked the complainant, or indeed her mother, for any of the detail in relation to that initial disclosure which led to the mother confronting the applicant in 1991, that is because a forensic focus was not on that disclosure, but rather of what the applicant had to say about it.

Now, of course, as the Court of Appeal considered, that did not preclude the applicant from exploiting that apparent inconsistency, if indeed one is said to have existed in the first place, but its weight must be limited indeed, very limited.  Firstly, as I have submitted, it is doubtful if it is even an inconsistency at all, and this simply highlights the problem.  Because nobody asked the complainant or her mother for the detail or for an explanation for that inconsistency, if one existed at all, then its weight must be reduced significantly.  In any event, a number of plausible explanations existed to explain what the complainant was meant to have said to her mother, as recognised by the trial judge and, indeed, by the Chief Justice.

Now, the second inconsistency was more obvious.  The complainant’s evidence was of an isolated incident at the family home in Sutcliffe Street that formed the subject of count 3, but even that was not as clear because when the complainant was asked by the prosecutor if anything like that conduct had had happened before, her answer was, “No, not that I know of”.

CALLINAN J:   Mr Muscat, would you look at page 23 please, in the reasons of the trial judge, paragraph 84.  The trial judge seems to be rejecting a submission that the judge:

should use the statements made by [the complainant] as deposed to by her mother as prior inconsistent statements –

Now, the trial judge seems to have said that that should not be done because the complainant had never been given an opportunity to deal with the inconsistency.

MR MUSCAT:   Yes.

CALLINAN J:   Now, why does the second follow, bearing in mind what Mr Cuthbertson said?  This came out in your case.  You adduced the evidence.  Is that not right?

MR MUSCAT:   For a limited purpose, if the Court pleases.

CALLINAN J:   It does not matter what the purpose is.  The defence was entitled to use it for whatever purpose they could, and the defence was seeking to use it in the same way as it would use an admission against interest, because an inconsistent statement is capable of being so used.

MR MUSCAT:   There is no doubt about that, your Honour, but ‑ ‑ ‑

CALLINAN J:   Well, if there is no doubt about it well the trial judge seems to have taken a different view about it.

MR MUSCAT:   And the Court of Appeal found that he was wrong to have taken that view.

CALLINAN J:   Yes.

MR MUSCAT:   And the Court of Appeal went on to then look at whether that ‑ ‑ ‑

CALLINAN J:   Well, it said there was no miscarriage of justice.

MR MUSCAT:   Exactly.

CALLINAN J:   That is what I think you should be focusing on.  Why do you say there was no miscarriage of justice?

MR MUSCAT:   There was no miscarriage of justice in this case.

CALLINAN J:   It is accepted there is an error.

MR MUSCAT:   Yes.  The error then led to the Court of Appeal having to determine whether, in the circumstances of this case, that led to a miscarriage of justice.

GUMMOW J:   We know that.

MR MUSCAT:   Now, there were those explanations open on the complainant’s evidence, and indeed on the mother’s evidence, as the Chief Justice clearly recognised.  As the Chief Justice pointed out, this simply goes to the weight of the evidence.  Now, the point was able to be made by the applicant, and indeed was made to the Court of Appeal ‑ ‑ ‑

CALLINAN J:   Weight for the trial judge may be one thing, but weight so far as the Court of Appeal is concerned is an entirely different thing.  The Court of Appeal has not seen the witnesses.  You have a trial here just for the judge, not a jury.  So the judge has to be treated in some respects in the same way as a jury.  The judge has seen all the witnesses, and had the judge directed himself correctly on the law then the judge might have taken a different view of the witnesses and of their credit.  But the judge has misdirected himself plainly on the legal position.  I think it is much more difficult in those circumstances for a court of criminal appeal to hold that there has been no miscarriage of justice than it might do if it had been a jury.

MR MUSCAT:   Well, can I just address that point?  Firstly, from the trial judge’s perspective, your Honours will see at page 24 of the application book, which is page 16 of the reasons for verdict, that the trial judge indicated that it was not necessary in this case to resolve that difficulty, and he then goes on to explain why it was that the inconsistencies that had been put by the applicant to him at trial carried only marginal weight.  Your Honours will see that line of reasoning in paragraph 88 of the reasons.  That is picked up by the Chief Justice in his judgment at paragraph 72 and following; namely ‑ ‑ ‑

CALLINAN J:   What about paragraph 85 on page 47?  The Chief Justice says:

I agree that the inconsistencies were a significant aspect of the defence case.  But I am satisfied, in the end, that the Judge has considered the substance of the defence case on this issue.

MR MUSCAT:   In that regard, the Chief ‑ ‑ ‑

CALLINAN J:   Now, if they are a significant aspect of the defence case, then I do not see how it can possibly follow that the substance of the defence case has been considered on a proper basis, on a proper legal foundation.

MR MUSCAT:   It was properly considered so it was – in view of the Chief Justice by the trial judge, in that paragraph that I drew your Honours’ attention to at paragraph 88 of the reasons.  The Chief Justice obviously then had to deal with this point in his judgment.  Now, he found and accepted that the trial judge wrongly treated the failure to cross‑examine the complainant as precluding use of the inconsistencies to impugn her evidence, but he then went on to find – this is paragraph 79 of his judgment:

that if one accepts that the inconsistencies were explicable in a manner that did not provide a basis for them to reflect on [her] credit –

as, indeed, the learned trial judge found at paragraph 88 of his reasons –

there is nothing of significance in the point.

It was for that reason that the learned Chief Justice found that there was no miscarriage of justice in this case.

GUMMOW J:   In looking at paragraph 85, is that formulation – I do not know the answer to this – but is that formulation at paragraph 85 on page 47 that Justice Callinan referred you to, does that reflect, or is it traceable to this case of R v ADW, which is referred to ‑ ‑ ‑

MR MUSCAT:   R v ADW relates to the reasoning process that a trial judge has to set out in order for a court of appeal to determine whether he has fallen into error.  Now, in this case the learned trial judge clearly set out the reasons for his verdict, and at paragraph 88 specifically dealt with the topic ‑ ‑ ‑

GUMMOW J:   But this phrase “the substance” seems to me to be pregnant with problems, in paragraph 85.

MR MUSCAT:   Well, it is just a matter of wording, if your Honour pleases.

GUMMOW J:   Not really, because you have said it postulates the significant problem, then it says “Oh well”.

MR MUSCAT:   What the Chief Justice is really saying is it is not as significant when one considers the plausible explanations available to how one views the evidence.  That is because there was a complete and utter lack of detail elicited from the complainant and the mother, in particular the second ‑ ‑ ‑

CALLINAN J:   What is the relevance of that?  This is in your case.  You are the ones who decide how much detail is going to be elicited.

MR MUSCAT:   With respect ‑ ‑ ‑

CALLINAN J:   You decide witnesses to be called.  It is not for the defence to do any of this.

MR MUSCAT:   No, it is not for the defence to do anything.

CALLINAN J:   It is not for the defence to repair inconsistencies in your case.

MR MUSCAT:   No, it is not for them to do that, but because nobody asked then the court is simply left with the bare answers, for which there are plausible explanations, and in this case the prosecution could never have asked the complainant the details of what she said to her own mother.  It was purely hearsay.

CALLINAN J:   Well, why ask anything about it at all?

MR MUSCAT:   The topic was asked as a lead-up to why the mother then confronted her husband, the applicant.  That is the only relevance ‑ ‑ ‑

CALLINAN J:   I do not understand why the Crown is exploring that issue at all.  That is an issue for the defence.

MR MUSCAT:   The Crown ‑ ‑ ‑

CALLINAN J:   No, listen to me for a moment.  The defence would be interested in the question of confrontation or not.  You do not have to explain things like that in advance.  You only have to do that when it becomes an issue.  You were doing something in anticipation of what you thought the defence would do.

MR MUSCAT:   No, no, your Honour.  What the evidence was led for was to place into context why the mother confronted the applicant.

CALLINAN J:   Exactly.

MR MUSCAT:   And thereafter, why the applicant made admissions on the prosecution case to the mother about the conduct.  Now, I agree with what your Honour is saying, that the Crown could have simply led evidence from the complainant, in this manner, “Did you tell your mother anything about the abuse?”  “Yes.”  “Don’t tell us what you said, but you told her about the abuse?”  “Yes”.  Then the Crown would lead from the mother ‑ ‑ ‑

CALLINAN J:   Well, that is just a formula.  Why could the Crown not have simply asked the mother, “What happened at the confrontation?” with the stepfather, the accused?

MR MUSCAT:   They could have, and they did ‑ ‑ ‑

CALLINAN J:   And that would have been admissible, and it would not have needed any of the foregoing explanation as to why the confrontation occurred.

MR MUSCAT:   It needed to be put in some context otherwise it would have ‑ ‑ ‑

CALLINAN J:   No, it did not.  All that needed to be put was, “Did you have a discussion with the accused about this matter?”  “What did he say?”  “What did you say and what did he say?”  That is all he needed to put.

MR MUSCAT:   That is what the mother did.

CALLINAN J:   I beg your pardon?

MR MUSCAT:   But – that is what the mother did.

CALLINAN J:   But you did more than that.  You introduced this earlier material.

MR MUSCAT:   That was led by the prosecution, as I say, perhaps unwisely, but that does not mean that this has any point to the argument advanced by the applicant.  It is still simply a question of weight.

CALLINAN J:   Your leading it created the potential for an inconsistency, is that not right?

MR MUSCAT:   That is so.

CALLINAN J:   And then it was used against the defence that the defence did not, in cross‑examination of the complainant, explore that inconsistency.

MR MUSCAT:   Well, I do not say it was used against the defence ‑ ‑ ‑

CALLINAN J:   Is that not what happened?  I beg your pardon?

MR MUSCAT:   I do not say it was used against the defence.  It is a matter that the courts are entitled to take into account, that no one asked the complainant or the mother about this evidence.

CALLINAN J:   I am not concerned about the prosecution.  We are concerned about the appellant.  It was used against the appellant.

MR MUSCAT:   It was used against the appellant ‑ ‑ ‑

CALLINAN J:   It was a matter which the trial judge took into account in his overall consideration, whether the accused was guilty or not.

MR MUSCAT:   He took it into account to the extent that his reasons indicate that he placed virtually no weight on it.

CALLINAN J:   And your difficulty is that the Chief Justice had said that it was a significant aspect of the defence case.

MR MUSCAT:   Only when viewed in the context of there being no other plausible explanations for the evidence, for which the Chief Justice found there was.  Now, that is the point the Chief Justice is making.  On the defence case ‑ ‑ ‑

GUMMOW J:   Is there anything else, Mr Muscat?

MR MUSCAT:   No, your Honour.

GUMMOW J:   There will be a grant of leave in this matter.  It will be a half-day case I would assume, gentlemen?

MR CUTHBERTSON:   Yes, your Honour.

GUMMOW J:   Mr Cuthbertson and Mr Muscat, in preparing and presenting submissions on the appeal, it may not be immediately relevant, but we of course are not placed in a position where we have close familiarity with the practice in South Australia, and in particular we need to be informed as to the decision of ADW 84 SASR 178, which appears to have been the foundation of the Court of Criminal Appeal’s approach in the matter. Is that understood?

MR CUTHBERTSON:   Yes, sir.

GUMMOW J:   Thank you.

AT 11.55 AM THE MATTER WAS CONCLUDED