NBM v The Queen

[2022] HCATrans 150

[2022] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2022

B e t w e e n -

NBM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 9 SEPTEMBER 2022, AT 10.29 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR N.M. VADASZ appears for the applicant.  (instructed by Vadasz Lawyers)

MR D. PETRACCARO, SC appears with MR W.M. SCOBIE for the respondent.  (instructed by Director of Public Prosecutions (SA))

GAGELER J:   Yes, Mr Vadasz.

MR VADASZ:   Thank you, your Honour.  This application raises two issues.  The first relates to the directions as to inadequate reasons in relation to the reliability of the complainant’s evidence, and the second relates to the question of setting aside the verdict on the grounds that it was not supported by the evidence, and unreasonable.

I will proceed on the basis that the Court is familiar with the application book and the facts, but there are some core facts which I would seek to outline very briefly.  The complainant was young when the offending occurred.  It started when she was aged about nine.  It stopped when she was aged around 11.  Her clear evidence was that for a number of years from the age of about 11 or 12 until she was 17, she referred to a period of six years she had no memory of the offending.

When it came to the trial she advised that she had a clear memory of the details of the offending.  The complainant had not, prior to cross‑examination, raised with any person that she had a loss of memory for a period of about six years.  The question of the loss of memory arose during cross‑examination for the first time when the complainant said that she had blocked out the events and there were numerous and, in my respectful submission, unequivocal statements by the complainant that for six years she had no memory of any of the events that made up the offending at Bar.

No psychological evidence with respect to that was called by the prosecution, with the exception of a psychologist to whom she made the first report.  That psychologist, Dr Brooks, agreed that the question a loss of memory, or an absence of memory, was not raised in the matter – not raised with her, with respect.

GAGELER J:   Mr Vadasz, the way that you have just described the course of the evidence seems to be at odds with the characterisation given to it by Justice Doyle at the end of paragraph 125.  Do you take issue with his characterisation of the evidence, that is, that she tended to use language that suggested not so much an absence of memory but rather a desire not to, or perhaps an inability to access, process and understand her memory of what had happened to her?

MR VADASZ:   Yes, I do, your Honour.  The witness repeatedly said that she had completely blocked the matter out of her mind.  She did not recall any of ‑ ‑ ‑

GORDON J:   Mr Vadasz, is that the matters that are referred to at application book 52 at paragraph 37?

MR VADASZ:   Yes, your Honour.

GORDON J:   This is in the trial judge’s reasons for judgment by reference to transcript.

MR VADASZ:   I will just pull that up.  Application book 52, did your Honour say?

GORDON J:   Yes, it is page 6 of the reasons at paragraph 37.  It is really from the fourth line down.

GLEESON J:   I think it might be page 12 of the application book.

GORDON J:   Thank you, Justice Gleeson.

MR VADASZ:   Very well.  I will go to that.

GORDON J:   Too many numbers.  Sorry, Mr Vadasz.  I meant to say 12, at paragraph 37.

MR VADASZ:   Yes.

GORDON J:   Fourth line down.

MR VADASZ:   Yes.  All she remembered for a period of six years – and she agreed with six years – that she felt uncomfortable with her father.  She did not remember any of the detail, she did not remember being touched on her groin or being penetrated or any ‑ ‑ ‑ 

GLEESON J:   Mr Vadasz, I am afraid that that does not – from what I am reading here, she did not say she felt uncomfortable with her father:

She remembered that her father had made her uncomfortable in bed –

MR VADASZ:   Correct. 

GORDON J:   Was there any explanation about – I mean, that could mean more than one thing.  But we do not have the evidence here.  Was she saying he made her feel uncomfortable in bed in the sense that he was in the bed with her, or in some other sense?

MR VADASZ:   No, in the sense that she remembered feeling uncomfortable in the bed with her father and felt a feeling of uncomfort around her chest and groin area.  It was her evidence.  But she did not recall any details of why she felt uncomfortable.

The witness – the complainant – suffered from a number of psychological disabilities, which she freely admitted, and she felt uncomfortable with other persons as well.  She was cross-examined about a feeling of discomfort with her grandfather, who she agreed had not sexually harassed or molested her in any way.  So, the high point of her recall, in my submission, was this feeling of being uncomfortable – her memory of being uncomfortable with her father, but no other detail as to why she felt uncomfortable.  That detail came out in 2018 following her sessions with the psychologist Dr Brooks.

GORDON J:   Am I right, Mr Vadasz, that that memory came out in two stages?  That is, that there was the trigger giving rise to the disclosure to Ms Brooks, and then a subsequent recall on proofing, which is recorded at the foot of paragraph 39?

MR VADASZ:   Correct.  Correct, your Honour.  The various details came out on the day or day before the trial.  Correct, yes, your Honour.  The complainant said that she – and the complainant was the first to raise that she had no memory – she said, in answer to a question, that she had “blocked” it out of her mind.  She repeated that phrase, blocked out of her mind.  She then used various terms, including “repressed” or “suppressed” and in my submission, she was the first to raise at least one of those terms, but not that anything deals with the description or the terminology to be attached to the loss of memory, the substantive issue is that the complainant agreed that she had no memory of detail for a period of roughly six years.  She ‑ ‑ ‑

GORDON J:   Mr Vadasz, assuming that those facts are, for the moment – is your real complaint then to be found on page 24 of the application book in relation to the extent in which the trial judge dealt with reliability?  Is that the way it is put?

MR VADASZ:   Thank you for taking me there, yes.  The trial judge did not analyse the impact of the loss of memory and the impact of the psychologist – Mr Balfour called by the defence – on the question of her reliability.  His Honour – as he said at 122:

found the complainant to be an impressive witness.

He found her to be “generally reliable”; he addressed her psychological problems and her loss of memory in terms of credibility, but in any child issues of credibility and reliability may be tied together – but they are separate issues.  He did not at any stage, squarely and clearly – in fact, not even inferentially – unless the Court agrees with the finding of Justice Doyle – he did not address the impact of this evidence upon her reliability.  If his Honour ‑ ‑ ‑ 

GAGELER J:   Mr Vadasz, I note that, in respect of this submission, Justice Lovell was on your side in the Court of Appeal, and although he criticises the trial judge – I am looking here at page 76 of the application book, paragraph 108, for not dealing with reliability, he expresses his own conclusion in paragraph 109 in terms of a:

failure to adequately address the opinion of Mr Balfour on the issue of the credibility –

I mean, one can easily slip between these terms and yet still be talking about the same thing:  the weight to be given to the evidence.

MR VADASZ:   Yes, I do agree with that.  But his Honour the trial judge was a very experienced trial judge and was very careful in his language.  Whilst he used the phrase “credibility” and “reliability”, when he addressed these topics he was particular to refer to credibility.  That is one answer to your Honour’s question.  The other is that, even if he had been referring to reliability inferentially, he still did not address the impact of her evidence and Mr Balfour’s evidence on that question of reliability.

GLEESON J:   Mr Vadasz, a question that I have about this really concerns whether this is an appropriate vehicle for dealing with your first special leave question.  As I read it from paragraph 14 of your special leave application, Mr Balfour’s expert evidence was predicated upon the assumption that the complainant had absolutely no recollection of relevant traumatic events for six years.  But I am not sure that that is – finds a foundation in the findings of the trial judge.

MR VADASZ:   There is a discord between the findings of the trial judge upon which Justice Doyle relied and the transcript in the sense that the complainant agreed that she had no memory of any traumatic events.  What she recalled was a feeling that may be called a sense of trauma in relation to her father, but ‑ ‑ ‑

GORDON J:   Mr Vadasz, I just want to make sure that I am clear in your answer to Justice Gleeson, is that right?  I had thought that the paragraph we went to on page 12, at 37 is the line:

She said that for years she had blocked out of her mind what the accused had done to her.

Is that not it?

MR VADASZ:   Yes, but – that is correct, she did say that, and she also said that, because of the ‑ ‑ ‑

GORDON J:   But is that not the finding of the trial judge?  Or not?

MR VADASZ:   The issue is whether she had blocked out – she is talking in retrospect that I had blocked out what I now remember – is what she was saying.  Her evidence was, I completely blocked it out of my mind, I did not think about it.  Mr Balfour’s evidence was that that is not how memory works, in particular with repeated traumatic events.  The mind keeps on going back to those events and cannot block it out.

He raised – and I might point out that the complainant’s evidence once – the complainant had from an early age a diagnosis of OCD – obsessive compulsive disorder, it is never set out in full.  She thought about a lot of things.  One part of her evidence, for example, is that, if she cut her finger or her arm – I think she said – if she cut her arm, she would start thinking that her arm would fall off.

The general thrust of her evidence was that she thought a lot about things, and thought about them to an extreme.  She had a phobia about germs and washed her hands regularly.  It is in stark contrast to not thinking about these multiple traumatic events, as she indicated, and blocking them out of her mind.  I trust that is an answer to your Honour’s question.  When she says, I blocked it out, I did not think about the things he did to me, it has to be read was - in that she did not recall the things that he did to her.

GLEESON J:   Was that put to her in cross‑examination?

MR VADASZ:   It was put to her that for six years she had no recall of her father inserting a finger into her vagina or touching her on the vagina or committing any of the acts about which she gave evidence; that was put to her, yes.  I will move on.  The question of the witness having a loss of memory and recovering it was recently discussed by this Court in Agnew in August of this year on an application for special leave which was refused, and the Court noted that Agnew was not a good vehicle for the issue

because there was no psychological evidence to contradict any evidence given by the complainant.

In the matter at Bar, the issue of memories and blocked memory, whatever it to be called, arises quite regularly and is of importance.  In this matter there is uncontroverted, uncontradicted evidence from a psychologist upon which the learned trial judge . . . . . and which the Court of Appeal accepted.

I will move on.  I know I have only got about two minutes.  The court found that – I rely on the time left with respect to the outline of argument of the application book with respect to the issue on unreliable evidence ‑ ‑ ‑ 

GAGELER J:   Do you press both grounds of appeal, or proposed grounds of appeal?

MR VADASZ:   Yes, your Honour, and I rely on the outline in the application for special leave.  I note that since the outline was handed down – or that outline was prepared, that Dansie was handed down by this Court, reinforcing certain aspects of M v The Queen, and earlier authorities and Pell.  And in my respect for submission, the approach of the Court with respect to the unsafe and unsatisfactory aspect was incorrect.  Subject to any questions, they are my submissions.

GAGELER J:   Thank you Mr Vadasz.  Mr Petraccaro.

MR PETRACCARO:   May it please the Court.  In my respectful submission, dealing with the first ground, it is not a proper or good vehicle for the issue that has been raised in terms of Mr Balfour’s evidence as it affects the issue of reliability.

Can I start by saying that, in respect of the reasons given by his Honour the trial judge, he starts the consideration part of his deliberations at 123 saying that he is mindful of both the issues or credibility and reliability.  In my respectful submission, he then concludes in the last paragraph of his reasons, which is at 144, that he is:

satisfied beyond reasonable doubt of the truthfulness and material reliability of the complainant’s evidence.

And what occurred in between those paragraphs is in my respectful submission entirely correct in line with Justice Doyle says, and that is an elucidation of why his Honour found the complainant to be both credible and reliable.

True it is he does not mention the word “reliable” outside of those two bookend paragraphs, if I can put it that way, but there can be no doubt in my respectful submission that his Honour – an experienced trial judge – had both issues in mind.  He said so from the start, and he said so concluding at the end finding beyond reasonable doubt that the complainant – upon whom the case really turned, her credibility and reliability – was both credible and reliable.  Insofar as ‑ ‑ ‑

GAGELER J:   Mr Petraccaro, am I right in understanding that Mr Balfour’s evidence – insofar it was tied to the complainant – was based on his reading of the transcript?

MR PETRACCARO:   Yes.  The transcript of the complainant, and of the psychologist Ms Brooks.  That is all.  Even though Justice Lovell alluded to the fact that the approach was – he was not asked to make assumptions as is normally done, and it was not led in an orthodox manner – and your Honours, you will get that at paragraph 95 of Justice Lovell’s reasons.

He accepted that, but in my respectful submission, insofar as really the plank of the issue of reliability upon which this ground relies is Mr Balfour’s evidence.  In my respectful submission, this was not a repressed memory case.  That issue was put to her – was put to her that she repressed her memory – and the complainant accepted that description, but in my respectful submission, a proper analysis of what she said was that she had feelings in respect of her father in the bed and in relation to areas of her breast and vagina, which is consistent with the allegations of the charge, of some of the particulars of the charge of maintaining an unlawful sexual relationship.  In my respectful submission, what she said was that:

it was just in the back of my memory completely –

In my respectful submission, that did not connote an absence of memory of events, just that they were in the back of her mind.  That is where they were housed.  She said she:

didn’t have a clear image in my head –

Again, that suggests that the image was not clear, but not that she had no memory.  She said the greater detail was triggered over time, again – in my respectful submission – suggests that it was not that she had never had a memory of what occurred, it was just that, consistent with being someone who offending had occurred over at a young age, that these things were not thought of might be another way of putting it, until it was put to her for the first time, whether she had ever been sexually abused, by the psychologist, Ms Brooks.  And then the disclosure was made and the psychologist was the recent . . . . . matter.  And then she then made further disclosure again, consistent with this greater detail being triggered over time when she was proofed on the issue – or, well, proofed generally in the lead‑up to trial.

And as a result of that proofing, if your Honours look at the information at page 5 of the application book, those particulars f and g were added to the information.  His Honour picked up on the fact that the evidence – the initial complaint and the elucidation and the fact that her recall was over time was not inconsistent with a young child who had been abused as a young child and then was recalling events as an adult.  I think she was 19 when she actually came to give evidence.

GLEESON J:   Mr Petraccaro, did Mr Balfour give a clear statement of the nature of repressed memory?

MR PETRACCARO:   He did in the sense that – he dealt with the concept, your Honours, and he gave a – he said it was atypical and he gave an example that he knew of – and it was accepted that it was atypical and he gave that example and he said that – I withdraw that – that it was atypical that someone would not remember sexual abuse, and especially sexual abuse over a period rather than a one‑off.  So, he gave that evidence and, importantly, in my submission, he would not be tied down ‑ ‑ ‑

GORDON J:   Mr Balfour’s evidence is set out by the trial judge at application book 18, between paragraphs 81 to 90.  Is that a fair analysis of what he – the evidence that was given?

MR PETRACCARO:   Yes, thank you, your Honour.  Yes, I do not take any issue with the way it was set out there.

GAGELER J:   So, assuming he was – I am not sure that he was actually providing any opinion on whether this was a case of repressed memory.  It just does not appear from that ‑ ‑ ‑

MR PETRACCARO:   No, he never met with the complainant – sorry, your Honour – and his evidence really was about, having looked at her cross‑examination and the evidence of Ms Brooks – and it was accepted that Ms Brooks, who was a hypnotherapist, did not employ any of those techniques in terms of her dealing with the complainant, so we can put that one side.  It is why I say, with respect, this is not a proper vehicle for the Court to look at this issue, because at the end of the day when there is ‑ ‑ ‑

GAGELER J:   The way I read paragraphs 87 through to 89 is that he appears to be addressing the general phenomenon of repressed and then recovered memory.  He says that it is “atypical”, but then gives an example of it occurring.

MR PETRACCARO:   Yes, with respect, and he is only aware of one example in his practice in 30 years, and that is the example that he gives, where someone basically confesses to it and the complainant had had no knowledge of it.  But, in my respectful submission, that has not really hit home to this matter, and a big deficiency in this matter is obviously that he has not met with the complainant.  No assumptions were put to him.  Even Justice Lovell accepts that, those are ordinarily put to an expert, and at the end of the day no real issue was taken with what he has had to say about repressed memory but, in my respectful submission, it cannot go home to this case because the trial judge was correct to find at the end of the day that this was not a case of repressed memory.  His Honour was alive to the issue.  He was alive to the possibility, and he says so in his reasons.

But, at the end of the day, the complainant had issues in terms of OCD and other ailments.  We saw – we mentioned she saw another psychologist other than Ms Brooks, but none of that was at play, in my respectful submission.  What we are left with is the complainant always had a memory of something that had occurred – to use her words – and one must recall that she is a 19‑year‑old giving evidence about events that occurred between the ages of seven and 10 – I think is my reading of the evidence – but she still has a memory in so far as she feels uncomfortable around her father – “in bed” is important in my respectful submission – but what is more important is that in bed, and around the area of the breast and the vagina.

Now, in my respectful submission, while she cannot put it into language – or perhaps put it into any other way in which it is put – in which she puts it – that is consistent with someone who has some memory.  His Honour in my respectful submission was correct to say, this is not a repressed memory case, she had some sort of memory, she has expressed it in the way that she was able to express it.  True it is, she had not said anything before she said something to Ms Brooks, but as we pointed out – and as his Honour accepted – that was the first time anyone had ever asked her.

In my respectful submission, his Honour’s findings are consistent with what his Honour says is typically encountered in the Court, someone of a young age, having experienced sexual abuse, suppressing it in the sense of perhaps not wanting to think about it, and then it coming out gradually – especially when there is a triggering event – and then also a direct question by the psychologist that was seeing her at the time – and then in proofing, comes out the further particulars which I have taken your Honours to and which were added to the information.

GORDON J:   Mr Petraccaro, can I ask one question about that from a different angle, if I might, but directed to the same issue?  Putting to this one side that this was a judge alone trial but would be conducted in accordance with the usual directions, what ordinary directions would be given about reliability in this context?

MR PETRACCARO:   It depends very much on the case.  In my respectful submission, one does not have to go as far in a trial by judge alone – especially an experienced trial judge – in directing oneself.

In this case, in my respectful submission, so long as his Honour was aware that both the issues of credibility and credit and reliability arose and he acknowledged that – and he acknowledged that in his reasons – then, in my respectful submission, in this case that would suffice.  In relation to a jury, of course, it might be that something more was needed, but then again it would depend on the given case.

GORDON J:   Would not the usual direction, though – to the jury – be in relation to reliability – be more expansive? 

MR PETRACCARO:   It might be, your Honour, with respect – again it will depend on the case.  So, there might be cases where it is just a straight‑out contest between an accused and a complainant about events of this nature.  In my respectful submission, the issues of credibility and reliability would be intrinsically linked.  It would be very hard to find a complainant who was not credible but yet reliable – or the other way around.  In relation to trial by judge alone ‑ ‑ ‑ 

GORDON J:   Sorry, I should have been more specific.  In relation to the question of delay, though – the directions in relation to that would be more specific?

MR PETRACCARO:   They might be, but his Honour dealt with that issue in his reasons.  Sorry, your Honour.  Yes, at paragraph 111 his Honour deals with the issue of complaint, forensic disadvantage and delay.  It may be that in front of a jury that one might give more expansive reasons, but, in my respectful submission, his Honour was cognizant of the fact that delay – on two fronts – one, delay in making the complaint, and the second one, on the issue of forensic disadvantage.  He took those into account, in my respectful submission, in an appropriate way.

At the end of the day, in my respectful submission, in a trial by judge alone, one is not required to make oneself wholesale directions of the law, as one would in front of a jury, and so again I come back to the issue that his Honour’s bookending of the issues of credibility and reliability, at 123 and up until the concluding remarks at 144 are sufficient in this case.

If I can then turn to the unsafe and unsatisfactory ground, in my respectful submission there is nothing wrong with the process that was embarked upon here.  In a nutshell, our submission is that in dealing with the issue of inadequate reasons – and indeed some of the other grounds, but primarily inadequate reasons – both his Honour Justice Lovell and Justice Doyle canvassed the evidence and the facts extensively.  In my respectful submission, there was no need for them to go wholesale through those things again in dealing with the unsafe and unsatisfactory ground.

At the end of the day, their Honours said that they reviewed the evidence; which was consistent with what has been said in M v R and in relation to the issue of Dansie, can I note this, that while both – and I note that all of your Honours were on the bench in the hearing of that matter, that Dansie was a specific case of, really, just over‑relying on circumstantial evidence.  Your Honours may recall there were two trials started in that matter, there was an initial trial – in which there was a mistrial – and then the transcript from that trial was put before Justice Lovell, as it turns out, and the trial judge ‑ ‑ ‑

GAGELER J:   Mr Petraccaro, you can take it that we are quite familiar with Dansie.

MR PETRACCARO:   Yes, as am I, your Honour.  Can I simply say this:   the distinction here is that this case is one that relied entirely on credibility and issues of reliability and credibility, primarily of the complainant.  But there was not an undue regard – in my respectful submission – to Justice Barrett’s judgment, there was a review in the sense of renewal of the evidence – albeit in relation to the other grounds – and this was a case where credibility and reliability loomed large, and the Court would not have been wrong to have given some sway to the trial judge in that case because, unlike Dansie, which was entirely a circumstantial case, matters of credibility and reliability were primarily for the trial judge, and in my respectful submission there is no error of approach by Justice Lovell.

To be sure his comments on the issue are brief, but they needed to be brief, he expressed the correct principle – they did not need to be – but they were appropriately brief given that he dealt with the evidence in relation to the other grounds.  Those are my submissions.

GAGELER J:   Thank you.  Is there a reply, Mr Vadasz?

MR VADASZ:   Thank you, your Honour.  Can I take the Court to page 26 of the application book, and paragraph 136, the first two sentences regarding her describing her memory as “repressed”, and she did in fact agree with that.

GAGELER J:   What about the last sentence?

MR VADASZ:   It might be a credible way of describing it, but is it reliable?  Again, in the face of an experienced psychologist who says it just does not happen like that except possibly once in 6,000 cases.  This is a matter where the learned trial judge was required to squarely address the fact that for six years she had no memory.  We did not argue that this was a memory that returned as a result of therapy, partly because there was no advance notice that she had no memory.  She did not say that to anyone and did not in fact raise that in‑chief when she gave evidence on oath.

The terminology is, in my respectful submission, irrelevant.  What is relevant to the question of reliability is what you do with the fact that she did not remember specific details that must be borne in mind that the court was required to be satisfied of certain specific details before they could conclude that the applicant was guilty of the offending.  They did not address that particular issue.  Incidentally, the question of repression or suppression – and they seem to be interchangeable – was first raised, in my submission, by the witness herself, but I think, again, that is irrelevant.

With respect to the second ground, it is – might I just say this, that it is submitted that this is not an appropriate vehicle.  In my respectful submission, the issue is whether the interests of the administration of justice, either generally or particularly, require consideration by the High Court.  Mr Petraccaro says a trial judge sitting alone does not need to address in any detail the reasons for his finding.  Here he did not address it at all with respect to reliability, and that gives rise to the problem raised in Dansie, DL and also raised in Douglass, which was an appeal against the same trial judge.

That raises the problem of how does the court come to understand what the judge did with respect to reliability.  Here, Lovell said you cannot, whereas Justice Doyle inferred, by restructuring his Honour’s reasons, inferred that he must have.  It is not, in my respectful submission, appropriate for the reasons are that inadequate that it requires an intermediate appellate court to infer that the matter – a matter for which there was a significant foundation, namely, reliability, was properly addressed.

With respect to the unsafe and unsatisfactory, I respectfully submit that Justice Lovell fell into the same trap that he – which he criticised the learned trial judge in the first instance, namely, not fully addressing the issue.  They are my submissions.

GAGELER J:   Thank you, Mr Vadasz.  We will retire to consider the course we will take.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.18 AM:

GAGELER J:   Having regard to the content of Mr Balfour’s evidence as summarised by the trial judge, and to the manner in which that evidence was adduced, we are not persuaded that the proposed appeal would squarely raise a question of principle suitable for resolution by this Court, or that the proposed appeal would have sufficient prospects of success to warrant a grant of special leave.  The application for special leave to appeal is dismissed.

The Court will now adjourn until 11.30 am.

AT 11.19 AM THE MATTER WAS CONCLUDED