Naylor v The

[1994] HCATrans 403

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B12 of 1994

B e t w e e n -

GARTH DAVID NAYLOR

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 11.23 AM

Copyright in the High Court of Australia

Naylor 1 30/6/94

MR K.C. FLEMING, QC: If the Court pleases, I appear with

MS C.E. CAREW for the applicant. (instructed by

Robert Bax & Associates)

MR D.L. BULLOCK:  I appear with my learned friend,

MR M.C. CHOWDHURY, for the respondent. (instructed

by D. Field, Solicitor to the Director of

Prosecutions (Queensland))

MASON CJ:  Mr Fleming.

MR FLEMING: If the Court pleases. Your Honours, it is our

submission that in this day and age where there are

very many complaints of a sexual nature brought

before the court after an elapse of time, sometimes

a significant lapse of time, there ought to be more

than a simple warning in respect of corroboration.

The requirement to give a warning is entrenched in

section 210, in respect of this particular offence,

in the Criminal Code.

A warning was given by the learned trial judge

to the jury in this instance but we would submit

that, given the circumstances, not adequate.

MASON CJ: It was a fairly strong warning, was it not? Did

the trial judge not tell the jury, "To convict

would be a dangerous proceeding"?

MR FLEMING:  Yes, he did, Your Honour. Yes, he did, but,

Your Honour, we would submit for the following

reasons it was not an adequate warning and, indeed,

this Court ought to take the opportunity to make a

statement in respect of such warnings, given some

of these propositions.

Firstly, there was a lack of fresh complaint.

We proceeded on the basis that fresh complaint

applies in these sorts of offences as well.	We
acknowledge that that goes to the credibility of

the complainant rather than to an element of

corroboration. But the reason why the warning has

to be given is that it is unsafe to convict upon
the uncorroborated evidence and we would submit,

Your Honours, that the reason why it is unsafe is

because of the real possibility of inconsistencies

which appeared here and also the fact that there

was no corroboration.

So, the issues in this case, we would submit,

are, firstly, there is a delay which leads to

difficulties in itself.	The delay is a year or
about a year.	We acknowledge that that is not the

sort of delay that was discussed in Longman but,

nevertheless, it is a significant delay when a

Naylor 2 30/6/94

child is involved. Secondly, there is that lack of

fresh complaint. The complaint was not made in

that period of time. Thirdly, there are
inconsistencies in the evidence which are not
adequately explained away. Those inconsistencies

are dealt with in the summing up at pages 8 and 13,

and the Court of Appeal summarizes them at page 29.

Each of those things, each of them themselves, speaks of the possibility of a fabrication, the

very reason why the direction must be given. But,
Your Honours, we would submit that whilst Longman

deals adequately with the history of such a

direction and whilst it is a general statement, it

was, after all, under the Western Australian
Evidence Act and impacted specifically on that. We would submit that a more general statement ought to

be made to a jury.

Your Honours, in the summing up at page 16 of the application book His Honour dealt with the

reasons why one has such a direction. Three times

in the space of about 10 lines he mentions the

difficulty relating to detail. In many of these

cases there is significant detail given and it is

the detail of the case which can cause difficulty
to an accused because they are not in a position to

meet the detail. Yet, in this very case, there was

in fact a lack of consistency in the detail

provided by the complainant. There was a lack of

fresh complaint which would lead to difficulty with

the detail.

Your Honours, we would submit under those

circumstances there ought to be a stronger and more

general summing up to the jury, a direction to the
jury that it is dangerous to convict because of
delay and because of the real risk of

inconsistency.

Your Honours, each of the difficulties which

we submit ought to be dealt with in a general

summing up were, in fact, present in this

particular case and we would urge the Court that it

is time, given the nature of the complaint, given

the prevalence in society, given the oftentimes

significant delay, that a strong direction be given

in each such trial as a matter of course.

MASON CJ: But no direction was sought.

MR FLEMING:  No, Your Honour, we recognize that. We can

only say, in respect of that, that that is not

fatal in all circumstances.

MASON CJ: But why was a direction not sought?

Naylor	30/6/94
MR FLEMING:	I do not know the answer to that, Your Honour.

We can only say that we acknowledge the weight of

authority in respect of directions but it is still

the responsibility of an appeal court to overcome

that if there is a real prospect of a risk of

miscarriage of justice. Your Honours, we would

submit that the next step from Longman ought to be
taken by this Court in such directions.

Your Honours, the Court of Appeal in dealing with it, dealt with it in a most peremptory way at

page 29 of the record. The inconsistencies were

summarized and at page 30 Their Honours raised the

very issue that Your Honour the Chief Justice just

raised in the second line:

In particular, no complaint was made of the

trial judge's directions to the jury -

and further:

the various criticisms now made of the
complainant's testimony were emphasized to the

jury.

With respect, there is not a single mention to the

jury of a lack of fresh complaint, and there is not

a single mention to the jury of the significant factor of delay. The only issue that was dealt

with by the jury or, at least, in the summing up to

the jury was the question of the inconsistencies

and we would submit that that is a clear

demonstration of the need, because in all other

respects His Honour's summing up was quite a

careful one but we would submit that it is a clear

demonstration of the need for such a direction to

be given in the circumstances.

MASON CJ: Your complaint about the direction in relation to

inconsistency is that a direction in relation to

inconsistency was not linked up with the warning?

MR FLEMING: That is so, Your Honour. And whilst this goes

to the particular case, the inconsistencies there

suggested were explained away by His Honour.	He
said, at the end of the day, "Well, look, they

aren't unequivocal in terms", and we would submit

that given the fact that there was no corroboration

of the boy's testimony at all, in this particular

case it ought to have been a much stronger

direction. As a matter of course, as a matter of

law, there ought to be a stronger direction of that

sought in every case. If the Court pleases.

MASON CJ: The Court need not trouble you, Mr Bullock.

Naylor 4 30/6/94

The Court is not persuaded that the proposed

appeal would enjoy sufficient prospects of ultimate

success to warrant the grant of special leave to

appeal. The application is therefore refused.

AT 11.33 AM THE MATTER WAS ADJOURNED SINE DIE

Naylor 30/6/94