Pahuja v The Queen

[1990] HCATrans 177

A -!.J 1,~USTRALIA111!" --~)' $-««.("-.._

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AlS of 1989

B e t w e e n -

PRAHBU DATTA PAHUJA

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Pahuja 1 21/8/90

AT ADELAIDE ON TUESDAY, 21 AUGUST 1990, AT 12.10 PM

Copyright in the High Court of Australia

MRS. WINNEKE, QC:  May it please the Court, I appear with

my learned friend, MR D. PEEK, for the applicant in

this matter. (instructed by Patel & Co)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MS A.M. VANSTONE, for the respondent.

(instructed by the Crown Solicitor for the State of

South Australia)

MASON CJ: Yes, Mr Winneke.

MR WINNEKE:  May it please the Court. Might I hand up to

the Court, Your Honours, outlines of our

submissions and argument and also, Your Honours,

can we hand up to you various cases that are on the

list of authorities that we have given to the Court

and which we have had copied, Your Honours.

MASON CJ:  Has this matter been before the Court on an

earlier occasion?

MR WINNEKE:  Yes, Your Honour, it has. I wondered whether

before I go to the rather brief outlines of

submissions that we have handed up, if I could

simply give the Court some background to the

matter?

MASON CJ: Yes.

MR WINNEKE:  It seems to us to be desirable that we do so,

that the Court can place it into its proper context

in the submissions that we desire to make.

Your Honours, the applicant was convicted on this

occasion, on 25 November 1988, o-f one count of indecent assault contrary to the provisions of section 56 of the Criminal Law Consolidation Act of

South Australia. That alleged assault was alleged

to have occurred on 10 February 1986 and, indeed,

has been the subject of a prior trial of the

applicant and conviction. The prior trial and

conviction was a majority conviction recorded in

Criminal Appeal of this State and is reported under	1987 and was set aside on appeal to the Court of
the name of R.B. Pahuja No. 1, (1987) 49 SASR 191.

The appellant was then retried and that is the

subject of this application. His retrial was

conducted in November 1988 and he was convicted by

a jury and sentenced by the trial judge to two

years and six months with a minimum of 18 months.

By that time, of course, he had spent a certain

amount of time in custody. The applicant then

appealed against that decision to the Court of
Criminal Appeal of the State of South Australia and

it delivered its decision in April 1989 and that decision was a majority decision. Their Honours

Pahuja 2 21/8/90

Mr Justice White and Mr Justice Bollen in the

majority, His Honour Mr Justice Prior dissenting,
and the majority decided that the appeal against

conviction would be dismissed, His Honour

Mr Justice White applying the proviso contained in

section 353 of the Act in the course of doing so.

The dissenting judge, His Honour Mr Justice Prior,

would have upheld the appeal against conviction.

The majority, namely Justices White and Bollen,

upheld the appeal against sentence and,

effectively, made an order in effect of sentence

which led to the almost immediate release of the

applicant.

TOOHEY J: That does not explain how the matter got to us,

Mr Winneke, does it?

MR WINNEKE: 

I am sorry, Your Honour. There was an appeal

by the Crown from the former decision of the Court
of Criminal Appeal. There was an application for

leave to appeal which was entertained and

dismissed, I think, in August 1988.

TOOHEY J: Thank you, Mr Winneke.

MR WINNEKE:  So that, I think, is a summary of the curial

history of this matter, Your Honours.

Your Honours, at the date of the alleged offence,

namely February 1986, the applicant was a

45-year-old medical practitioner and he had an

unblemished reputation. He had been practising in

general practice in the outer suburban areas of

Adelaide, namely, Christies Beach; he had

consulting rooms at Christies Beach and another one

at Hackham West. There was very strong character

evidence led in the course of the trial and, I

think, it is fair to say that that evidence

indicated that the appellant had practised for some

13 or 14 years in these two areas and had

established for himself and enjoyed the good

reputation, both amongst the community in general,

and amongst his patients in particular.

The incident out of which the offence is

alleged to have occurred, occurred against a

background of undisputed facts. The complainant, a

girl called Violetta, was a member of a family who

were all patients of the doctor at Hackham West and

she lived with her family in a residence not far

from the doctor's surgery at Hackham West. At

about quarter to five on the evening of

10 February 1986, it is undisputed that the

applicant rang the household in which Violetta

lived. It is also undisputed that he did so

because he was due to move from his consulting

rooms at Hackham West to his consulting rooms at

Christies Beach - the drive is some five or 10

Pahuja 21/8/90

minutes away - because he had consultations at

Christies Beach at approximately quarter past five

and stretching until 6 o'clock in the evening. The

last person on his consulting list at Hackham West

was, in fact, the young sister of the complainant

Violetta, and at about quarter to five, the doctor

rang the house of Violetta and a conversation

ensued because Violetta was home at that stage with

her elder brother Tom.

The content of the conversation is conceded up

to a point. It is conceded that the conversation

commenced by an inquiry from the doctor as to

whether Anna was going to attend the appointment.

If that was to be done, it would have to be with

Anna's mother because Anna was sufficiently young

not to be able to attend by herself. Violetta had

indicated that her mother was not home with Anna by

that time and it was conceded that there was then a

discussion as to fixing another appointment for

Anna on the following day, that is, 11 February.

Thereafter, there is divergence between what

Violetta had to tell the court and what the accused had to tell the court.

McHUGH J:	Mr Winneke, was there any evidence that the applicant knew Violetta?
MR WINNEKE:	Yes, there was evidence that she had been a

patient of the applicant for some two years,

Your Honour, and that she would very often come to

the surgery with other members of her family to act

as an interpreter between, certainly, the doctor

and mother and father whose knowledge of English

was somewhat limited, I gather.

TOOHEY J: When you describe it as a divergence, Mr Winneke,

it was really a bit more than that, was it not?

MR WINNEKE:  Yes.

TOOHEY J:  On the girl's version, for no apparent reason the doctor asked her to come down to the surgery.

MR WINNEKE:  Yes, the girl said that out of the blue and

after that conversation the doctor said to her, "I

want you to come to the surgery and bring your

Medicare card with you". The doctor denied that

that conversation had occurred and said that at the

end of the conversation that I have described as

being conceded, the girl said to him, "But I would

like to see you now" - words to that effect - to

which he had responded, "Well, you'd better be

quick. I can see you now if you come now". Now,

that, of course, was a critical question in this

trial.

Pahuja 4 21/8/90

Then, the next thing that happened was the events at the surgery. The girl claimed that she

jogged to the surgery and that when she got there

she saw the doctor who invited her into the surgery

- he was coming out from the consulting room part

of the premises - and that he, in effect, said to

her, "I want to give you a check up", to which she

responded, words to the effect, "Well, I'm not

sick", to which he said, according to her, "I know

that". But, none the less, she said that she did

as she was bidden, she went into the consulting

room, she got up on the consulting couch, she
lifted up her tank top and she undid her bra -

which was a front appending bra, apparently - and

that the doctor then massaged, as she called it,

her breasts with his hand, lifted up her right knee

to, as she described it, a right angle, rubbed her

stomach and patted her face and as he did so,

murmured such words as, "nice" or "beautiful" and

then, she said, at the end of that the doctor said

to her, "Come on" and kissed her at which stage she

pushed him away, ran out of the surgery and ran

home. And she said that when she got home she saw

her brother Tom there, she started to cry when she

got home. Tom asked her what had happened; as she

said, "The doctor made a pass at me".

TOOHEY J: You may have missed a step. She was seen, was

she not, leaving the surgery holding her top?

MR WINNEKE:  Yes, Your Honour, I was going to come to that.

She was seen running home some 25 metres from the

surgery and she ran past and according to the

witness who saw her she was clutching her clothes

in this position with her, I think, he said, left

hand.

McHUGH J: And looked as if she had been crying.

MR WINNEKE:  He said, "looked as if she had been crying" and

said that he had had a glance of her. She said,

when she got home Tom was sitting there in the kitchen; she commenced to cry, Tom said, "What's	happened?" and she said words to the effect, "The
doctor made a pass at me". Tom said, "Well, what
do you mean by that?" and she said, "He massaged my
breasts and kissed me". Later, shortly after her parents came home, Tom went out to see them and then on the following day the father went to see
the police in circumstances that I shall briefly
describe.
Now, as opposed to that, the accused's version of events was that this was a legitimate, medical
examination made by him in his rooms, of this girl,
in response to a complaint which she - - -

Pahuja 5 21/8/90

TOOHEY J: Could I just interrupt you, Mr Winneke, because

my recollection - and I have just been checking it

- was that she had not mentioned the kiss to her

brother.

MR WINNEKE: Well, she said she did, but her brother - this

is one of the points - in his evidence said that

she did not, but she claimed that she did,

Your Honour. In her evidence, she said that when

she got home she used, effectively, the words -

perhaps if I can take Your Honour to that - it is

at page 70 of the appeal book, Your Honour. She

was asked this question in examination-in-chief, at

about line 15:

Q.	And what did you do in the kitchen.
A.	I started crying.
Q.	And at some stage did someone come in.
A.	Yes, my brother came in a couple of

later.

Q.	And did you speak to your brother.
A.	Yes, he asked me what was wrong.
Q.	What did you say.
A.	I said the doctor made a pass at me and he

didn't know what I meant by it and he asked me

'like what' or something like that and I said

'Well, the doctor did some massage on my

breast and he kissed me'.

TOOHEY J: And, what, the brother could not recall that

latter part having been said, is that the position?

MR WINNEKE:  The brother's evidence was, Your Honour, that

when the sister came in, she started to cry and he asked her what the matter was and she said to him, "The doctor made a pass at me" and when he said,

"What's that mean?", she said, "The doctor tried to

touch me", or she might have said, "He touched me"

and that was a matter of some significance at the

trial and before the Court of Criminal Appeal.

of the applicant was very different and essentially The version, as I have indicated to the Court, he said that he had conducted a perfectly

legitimate medical examination of Violetta in his

rooms at her request and his evidence can be

described, I think, in summary as follows: that he

was pressed for time and he was due to go to his

surgery at Christies Beach - there is no dispute

about the fact that he did go to Christies Beach

and he did carry out his consultations at Christies

Beach - but, he said, that when the time had come and his last but one consultation had finished, he was aware of the fact that Anna, Violetta's sister, was due to come and he rang up the house at about

quarter to five. He says that, having spoken about

the whereabouts of Anna and having made a further

Pahuja 6 21/8/90

appointment for the morrow, she, Violetta, said to

him, "I'd like to see you", to which he said words to the effect, "Well, if you come now, you can, or

you can leave it until tomorrow". She said she

would come now. She then came down and he says

that when she came into the consulting room, he

said to her words to the effect, "Hello, Violetta,

what's the matter; what's wrong with you?" and she

said, words to the effect, "I've been short of

breath today" and he took that as being a

complaint, her shortness of breath of sudden onset,

and he said to her, "Well, I think you'd better

have a check up" and he asked her to get up on to

the consulting couch.

He said that he took his stethoscope, he took

the family history card with him into the room, and

he then carried out what he claimed to have been a

legitimate and appropriate medical examination of

the chest, having asked her to lift up her top and

take off her bra. He conducted that with his

stethoscope and his hands palpating in the area of the breasts and also listening in those areas. He

also said that it was necessary for him to take the

carotid artery pulse and his proposition was that
that action on his part must have been misconstrued
by her as a patting or stroking of the face. He
also said that he does not recall moving her leg
but he may well have done so if it was necessary to

put her squarely on the consulting table.

He said that he denies consciously rubbing her

stomach but he may well have been, that his hand

was in that area when he was palpating her, and he

also says that before the examination began he

moved her head away from him towards the wall,

something which he contends he always does as a

precautionary measure.	The girl conceded that such
a movement was made.	The clear defining act that

he denied was that he kissed the girl and that was,

of course, something that was an unequivocal act

that he denied and continued to deny.	He says that
at the end of the consultation he had a

conversation with her in which he said that he did

not think there was much wrong with her but she had

better come back tomorrow when the sister was

coming and he says that she then got dressed and

left his consulting rooms in a composed condition.

TOOHEY J:  Mr Winneke, did the applicant offer any

explanation for the absence of a nurse at the time

of the examination?

MR WINNEKE:  Just that he says that in his particular

conditions it quite often happens that he does not

have a nurse at his consulting rooms; it is just

something that he does not have, Your Honour, but

Pahuja 7 21/8/90

there was no nurse there and, no doubt, one of the

problems but, in any event, that was broadly what

the applicant said.

He called medical evidence from two very

senior medical practitioners in this State, a

Dr Kennedy and a Dr Radeski, the former a general

s~rgeon, the latter a psychiatrist. The thrust of

each of their evidence was that the complaint that

he claimed had been made by the girl was, in fact,

a complaint which would warrant the sort of

examination that he claimed to have carried out

and, secondly, they gave evidence to the effect

that this sort of examination for the first time

carried out on a girl of this age might well be

misinterpreted by a girl at the stage of

development that she was at and that it was not

unknown for girls of that age and stage of

development to seek to embroider or embellish the

with allegations such as, in this case, the kiss, complaint that they believed was a just complaint

to persons in authority to them. So that was

basically the evidence that was given on behalf of

the accused in support of the case that he made.

It is probably, so far as the evidence of

Violetta is concerned, desirable that I should, to

put it in its proper context and in the light of

what the accused was contending, to look at the

evidence that she gave in cross-examination,

evidence that starts at approximately page 79,

Your Honours.

MASON CJ:  You will remember this is a special leave application?

MR WINNEKE:  Yes, I am, Your Honour; I remember that. I do

not want to get carried away, Your Honour, but this

part of the cross-examination, we respectfully

submit, is a matter of some significance having

regard to what we will hereafter submit is a matter

of some importance in this ·case. But, basically we

say there was to be found in this piece of cross-

examination concessions made by the girl that

tended to support what the accused man was saying

as to who invited whom to the surgery and what

happened at the surgery. In other words, it was,

we respectfully submit, on these pieces of

evidence, concessions that made it look very much

more like a medical examination than an indecent

assault. It starts at about line 13:

Q. The fact is as soon as you put the phone down you said to your brother you were going

to the doctor's surgery, did you not.

A.	Yes.
Q.	And you left straight away.

Pahuja 21/8/90

A.	Yes.
Q.	You took with you the Medicare card from

the family chest, is that so.

A.	Beg your pardon?
Q.	You went and got the Medicare card and

carried it with you.

A. Yes.

Q. When you got to the consulting rooms I

think you said that the doctor was not in the

reception area.

A. No, he wasn't.

Q. But did you see him coming through from

the consulting rooms.

A. From the surgery part, yes, he came out

from there.

Q. And what conversation had past between you

at that stage.

A. Well, I can't remember if he said anything

else but I know I said that I ran there and

that I was puffed out a bit and he asked for

the Medicare car.

Q. Did you say 'Good afternoon' or did he say 'Hullo Violetta'.

A. Yes, probably.

Q. Is it not the case that he said to you what is the matter.	·
A.	Yeah, he might have said it.
Q.	And did you not say to him words to the

effect 'I am short of breath today'.

A. ~.

Q. Did you not say anything about your

shortness of breath at all.

A. I said I ran and that I was puffed out but

it wasn't that I was short of breath the whole

dey;

Q. Did you say anything to him which included the words 'shortness of breath'.

A. Yes, probably something like that.

Q. And did he say to you 'anything else' or

words to that effect.

A. No.

Q. Did he not say anything like that.

A. ~.

Q. You see, I suggest to you that when you

were last asked about this you were asked these questions. 'He said "Anything else

wrong".' Your answer was 'I don't think so.'

Question 'Possible though' answer 'Could be'.

Did you say that.

A. Yes.

Q. That is the truth, is it not, that he

could have asked you 'Anything else wrong', is

that so.

A.	He could have, yes.
Q.	And you said no, is that so.

A. Yes.

Pahuja 9 21/8/90

Q. Whilst you were there he took the Medicare

card from you, did he.

A. Yes.

Q. And made an impression of it out in the reception area.

A. Yes.

Q. He then asked you to come with him into

the consulting room.

A. Yes.

Q. And when he went into the consulting room

did you see what he did with the Medicare

card.

A. Yes, he put it on the desk.

Q. Did he not also take with him the family medical history card.

A.	I don't remember that.
Q.	You know that he keeps medical history

cards of the family, don't you.

A. Yes.

Q. And do you not recall him taking with him

or getting out of an index file the family

history card.

A.	No, I don't recall.
Q.	Whilst you were in the consulting room he

said to you, did he not, .'I will give you a

check-up' or words to that effect.

A. Did he say it?

Q. Did he not say that to you 'I will give

you a check-up'.

A. Yes.

Q. Did he not then ask you after he said that to 'hop up on the couch' or 'get up o the

couch'.

A. Yes.

Q. ·He said that to you.

A. Yes.

Q. Did he not then get his stethoscope.

A. Yes, he got his stethoscope.

Q.	He asked you to lift up your top.
A.	I am not quite sure if it was I lifted up

my top or if it was him.

Q. Whichever it was the fact was that your

top was lifted up at that stage.

A. Yes.

Q. It was a loose fitting tank top.

A.	Yes, it was.
Q.	Did he then ask you undo your bra.
A.	Yes.
Q.	And you responded by doing that, did you

not.

A.	Yes.
Q.	And did he then say to you 'Would you

please turn your head towards the wall'.

A. ~.

Q. Did he move your head towards the wall.

A. Yes.

Pahuja 10 21/8/90

Q. And it was after you had moved your head towards the wall that you became conscious of

him exploring with his hands the region of

your breast, is that so.

A. Yes.

Q. That was a strange experience to you,

wasn't it.

A.	Yes.
Q.	It had never happened to you in a medical

consulting room before, had it.

A. No.

Q. Do you know where your carotid pulse is.

A. No.

Q.	You don't know where the carotid artery
is.

A. No.

Q. But do you know that a pulse can be taken

in the neck.

A.	Yes, I do.
Q.	He had his hand on your neck, didn't he.
A.	No.

Your Honours, the Crown led evidence from two other

sources. The first one was evidence from two

police officers and they gave evidence of the fact

that they had gone to the accused's rooms at

Hackharn West on the following day at about

5 o'clock in the evening. At the time when they

arrived there the applicant was in the company of a

patient. The patient was put into a consulting

room and they said they had a quick, quiet and

short conversation with the applicant. In the

course of that conversation they said they asked

him, or they put to him, the allegation made by

Violetta of what had occurred at the rooms the preceding night. Having had that quick conversation they said they went back to their

police station at Christies Beach at which station

the applicant said that he would go after had had

finished consulting with his patients but that he

would not be able to get there until about

6 o'clock.

The applicant, in fact, did arrive at the

Christies Beach police station at about 6 o'clock

and when he got there the two officers handed to

him a typescript of what they said had been the

conversation between themselves and him at his

surgery some half to three-quarters of an hour

earlier. In that typescript, which the applicant

was asked and did read, it had written that the

police officers had said to him at the surgery,

"Violetta complains that you made a sexual assault

on her last night" or words to that effect and his

response was recorded as, "She wasn't here last
night". When that typescript was shown to him at

Christies Beach at 6 o'clock and he read it, he

Pahuja 11 21/8/90

said, "That's not what I said. I said, I saw her

last night" and the police officers then accepted

that, correction was made, they went on to take a

record of interview with him and in that record of interview he described the version of events as he

saw them in a way which, I think it is fair to say,

is entirely consistent with the version that he has

maintained ever since in the record of interview.

That evidence of the police officers was the subject of objection prior to the trial on the

basis that it was so inherently unreliable because

one of the police officers at the prior trial,

Mr Carr, and indeed at this trial again, had

conceded that it was possible that he might have

misheard the doctor who had a fairly distinct

Indian accent and was also speaking fairly quietly.

On the basis of that an application had been made

to exclude that evidence but the evidence was not

excluded and it was the subject of a great deal of
comment not only during the opening but during
cross-examination of the accused and also during
addresses. His Honour ultimately directed the jury

that they were entitled to use the evidence of the

police officers as evidence upon which they could,

if they so desired, find a consciousness of his

guilt of this offence on his part.

The other aspect of the evidence that was led

by the Crown was evidence of complaint and

distress. The evidence of distress came from three

areas: first of all, the witness, Mirko, who was

the person past whom the complainant had run when

she came out of the surgery. He said that he was

coming out of a delicatessen some 25 metres down

the way, he looked up and saw her when she was some

6-10 feet away. He got a glance of her. He

thought that she was crying and she was running

past clutching her top with her left hand in the

vicinity of the neck.

The other evidence came from Tom, who gave evidence not only of distress but he also gave

evidence that he was the recipient of the
complaint.	The terms of that complaint, I have

already indicated to Your Honours, which were, in

our respectful submission, significantly different

from what the complainant had said she had said to

Tom. And, finally, there was the evidence of the father who said that when he arrived home she was

still crying and in a distressed condition. That

evidence was also the subject of an application,

prior to the trial by the accused, to have the

evidence of distress omitted because it really was

incapable of being used for the purpose for which

it was led in the sense that it was equivocal that

it was equally consistent with a belief or a

Pahuja 12 21/8/90

misconstruction of a legitimate medical examination

as it was with an indecent assault. None the less,

the evidence was admitted and His Honour the trial

judge directed the jury, both in respect of the

evidence of distress and the complaint of Tom, that

they could use it because it demonstrated

consistency on the part of the complainant.

That, I think, is a fairly brief version of

the way in which the trial developed and the various hot points in the trial, if we might

respectfully call them that. What we contend is

that it raises - perhaps I ought to say this: that

at the end of all the evidence, His Honour was

asked to make a direction directing the jury that

it would be dangerous to convict on the

uncorroborated evidence of the complainant. He was

also asked to direct the jury that there was no

evidence capable of amounting to corroboration.

His Honour, with the consent of the Crown, acceded
to that application and Your Honours will find

His Honour's ruling - the application was made at

page 266. The Crown Prosecutor, at about line 13,

asked His Honour to:

err on the side of caution -

because of what the majority had said in the first

Pahuja trial and to give, what she called:

a full corroboration warning on the basis that

she is a child.

Then, at page 267, at line 6, the Crown said:

Mr Winneke asked Your Honour to find that

there is no corroboration in this case.

Mr Winneke suggests to Your Honour that there

is no corroboration in this case. As to that

I would not ask you not to leave the alleged

false denials to the police as

corroboration ..... I would not ask you to leave that as

potential corroboration. In my submission

it's a difficult area and the directions are

complex and in my submission, though it's

important evidence, I don't ask Your Honour to

throw it into the balance in corroboration.

But she did go on to ask His Honour to leave

Mirko's evidence as corroboration. His Honour, at

page 269 at line 9, said:

I will not leave to the jury the prejudicial

effect of what they might think was an untruth

Pahuja 13 21/8/90

told by the accused to the police when they

first spoke to him.

Then, at page 270, after the prosecutor had made a

further application in respect of Mirko's evidence, His Honour said at line 19:

You see my own strict view without hearing any

of you when I thought this matter over and as

I have since I first was told that I was to be

the presiding judge of this trial I've been

thinking about it, I was inclined to the view

that there wasn't really anything that I could

say was corroborative or confirmatory, that's
the view I took. But I realize that if the
old law must apply then and you ask me to,

then I'd be prepared to say to the jury 'Well,

you decide whether you think it's

corroborative' but under the circumstances if

there is any limitation to be imposed I think

I just say there is no evidence capable of corroboration. Once you add that bit on I

think that destroys it and that's the view I

take. Do you want further time to get

yourself ready?

Then, there was an application that the accused

should have the right of reply and addresses but

that was refused and it was determined that we

should address the jury before the Crown.

It is contended on behalf of the applicant,

Your Honours, that there are four matters arising

out of this trial which warrant the attention of

this Court through special leave. The first one,

we respectfully submit, is the nature of the

corroboration warning which ought to be given in

the case of a young child and, in particular, its

relationship to the directions given as to the

manner in which the jury should approach its task.

The corroboration warning given here has been

the subject of consideration by not only this Court

of Criminal Appeal, but subsequently by another

Court of Criminal Appeal in South Australia in a

case of Allison and, although the warning was in
almost identical terms, the Court of Criminal

Appeal in Allison's case, we will submit, took a different view of the sufficiency of the warning to the Court of Criminal Appeal in this case. So that there is, in our respectful submission, a

difference of views between different Courts of
Criminal Appeal about this type of warning in this

case.

The other matter that is allied to it, in our

respectful submission, the warning having been

Pahuja 14 21/8/90

given and His Honour having let it go, then sent

the jury out on their task with the, in essence,

suggestion to them that when they come to consider

their task in this case they should first of all

consider what the accused had to say and if they

came to the view that he could be accepted without

reservation, then they should acquit. If they came

to a different view, they should then ask

themselves, "Can we accept what he tells us as a

reasonable possibility?" and if that was so, they

should acquit as well. But then, if they got past

both those hurdles and were accepting the evidence

of the complainant beyond reasonable doubt, then

they should convict.

It is our contention that that type of

direction to the jury in a case where a
corroboration warning has been given and where the jury ought to be asked to scrutize with great care

in order to be thoroughly convinced of the truth

and reliability of the complainant's evidence, that

sort of direction to the jury nullifies the effect

of the warning which has been given and, we

respectfully submit, that that is an area which is

of significance and which is worthy of special

leave in this Court.

The next matter that we submit that arises

from this trial is whether in a case where the

trial judge has determined and expressed his view

that he intends to direct the jury that there is no

evidence capable of amounting to corroboration of
the complainant's evidence, whether it is
appropriate for him then to invite the jury to
consider whether or not the accused has lied to

police officers for the purposes of determining

whether he has demonstrated a consciousness of

guilt. Thirdly, we submit, it is a matter of

importance arising out of the circumstances of this

case as to the nature of directions which ought to

be given by a trial judge as. to the use that a jury

might make of evidence of distress and recent

complaint where that evidence is or might be

equivocal in the sense that it is consistent with

the case made both by the Crown and the accused.

Finally, we submit that special leave ought to

be granted because of the way in which the Court of been no curial determination as to whether or not

the case was one for the application of the proviso

and, in our respectful submission, allied to that

is that in applying the proviso, and being the only

justice who did apply the proviso, His Honour

Mr Justice White appears to have misconstrued the

reasons given by His Honour Mr Justice Prior when

Mr Justice Prior said that there had been

Pahuja 15 21/8/90

misdirection by the trial judge in relation to the

questions 6f recent complaint and distress so that,

we respectfully submit, there has not been any

determination on two significant issues in this

case. They are the matters that we would seek to

argue arising out of that background, Your Honours.

MASON CJ: Very well, Mr Winneke, we will adjourn now and we

will resume at 2.00 o'clock.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ: Yes, Mr Winneke.

MR WINNEKE:  May it please the Court. Your Honours, it is

our contention that the nature of the corroboration

warning given by the trial judge in this case said by the Court of Criminal Appeal to be satisfactory

is seriously in error, particularly having regard

to the circumstances of this case. The nature of

His Honour's warning is to be found at page 281 of

the appeal book. His Honour said this at line 15:

Now, ladies and gentlemen, I also have to

tell you something else about the law. I have

to tell you something about what is called the

law of corroboration. I have to tell you this

in this case, and it is this; I warn you that

it is dangerous to convict on the

uncorroborated evidence of Violetta, and I so

warn you, ladies and gentlemen. I do so on

the basis that Violetta at the time of this

incident, alleged incident was a girl of only

12 and a half. That her powers of observation

were those of a child, that her memory looking back now is that of a young person, that her	powers of expression were those of a child and
that there is always a possibility of
misinterpretation by a child. And so, ladies
and gentlemen, because she is a child with
those limitations, common perhaps to a child,
I give you the warning. You are at liberty,
ladies and gentlemen, if you desire, to
convict notwithstanding that warning, that is
to say if you believe that part of the girl,
Violetta's evidence which says that the
accused indecently assaulted her, you may in that event, not ignoring the warning but
having considered the warning, you would be at

Pahuja 16 21/8/90

liberty if you decide, if you so desire to

believe her evidence and act upon it. It is

my duty to decide whether there is evidence

capable of being corroboration and it is your duty then to decide whether you will use that

evidence for that purpose. The purpose of the

warning is to assist you in deciding what you

will believe. When you have made up your mind

as to what you believe, if it should be that

you believe Violetta, then the warning is not

intended to deter you from acting upon the

evidence you so believe. The purpose of the
warning is so that you will properly evaluate

the evidence in relation to the other evidence

in the case. Now, corroboration means some

evidence independent of the complainant, that

is Violetta's evidence, and it must be

evidence of some material fact which

implicates the accused and tends to confirm

that he guilty of the charge laid against him.

It has to be something that points to guilt and not to innocence. That is, it has to be

unequivocal. It must point to guilt and only

to guilt. And that means all the

circumstantial evidence in this case and I

will refer to that later. I now direct you

that there is no such evidence, no such

corroborating evidence and so you will take

note of my warning. That is, there is no

evidence capable of corroborating Violetta's

evidence, so therefore you will scrutinise

carefully that evidence and having done so,
ladies and gentlemen, if you believe Violetta
as to the indecent assault you are entitled to

act upon that evidence.

Nothing more was said by His Honour about

corroboration and at the end of his charge, at

page 311, and just before His Honour sent the jury

out, he said, at line 14:

Now, ladies and gentlemen, may I suggest

this to you, when you go into the jury room,

discuss this case amongst yourselves, what the various witnesses have said and ask yourselves

and decide what you are satisfied about beyond

reasonable doubt. It might be well for you to

consider first of all whether you accept

without reservation what the accused has told

you. If you do, ladies and gentlemen, then
you must come straight out and say not guilty.

But, ladies and gentlemen, if you do not

accept what he says without reservation then,

ladies and gentlemen, you will have to look

again and ask yourselves whether what he has

told you, having regard to all the evidence,

was reasonably possible. That is, that what

Pahuja 17 21/8/90

he has told you is reasonably possible, that

what he has told you happened did happen in

the way he said it happened and not the way

Violetta said it happened. You see, ladies

and gentlemen, you can be suspicious of his

story, you can be very suspicious of his story

but if you think looking at the whole of the

evidence that it is reasonably possible that

things happened the way the accused said they

happened, and he did what he said he did and

only what he said he did, if you think that is

reasonably possible on the evidence he is

entitled to an acquittal. But, ladies and

gentlemen, if you accept Violetta's evidence

and if you are satisfied beyond reasonable

doubt that the accused did to her what she

said he did to her, of course, ladies and

gentlemen, your verdict would be guilty.

Your Honours, we say that the combination of the

direction as to corroboration combined with the way

in which the jury were assigned to their task was

quite inadequate in the circumstances of this case

to bring home to the jury's mind precisely the

danger that they had to avert and was calculated,

in our respectful submission, to get them to
operate in a way which would be diametrically

opposed to the way in which they ought to have

operated if a proper warning had been given to them

and they had followed it.

Firstly, in our respectful submission, the statement of the warning by His Honour is

deficient, first, as to, we respectfully submit,

the reasons why the warning is given. We

respectfully submit that what His Honour is, in

effect, saying to the jury is, "Well, look, I've

got to tell you this:  it would be dangerous to act

on the uncorroborated evidence of the child," and

he gives then a reason which he says, "because she

is looking at it through the eyes of a child and

that a child might misconstrue events that have

happened to her."

In the circumstances of this case, in our

respectful submission, that did not go far enough

because what really was being alleged here was that

because of the combined fact of the age of the

child and the state of development of the child as

a female, she was inclined not only to misconstrue

but also to embellish or exaggerate and that not
only was that a matter that His Honour ought to

have told the jury about as a reason for the

warning but, in our respectful submission, it took

on particular significance in this case because of

the way in which the applicant was running his

defence. He was not saying, "I say that Violetta

Pahuja 18 21/8/90

is a deliberate liar". What he was saying was, "I

say that she must have misconstrued a perfectly

legitimate medical examination that I gave her and

that that must be because of peculiarities which

are attributable to her age and state of

development".

TOOHEY J: That submission would have a great deal of force

if it were not for the description given by the

girl of being kissed by the applicant and that is a

matter about which there could really be no room

for misunderstanding; either she was telling the

truth or she was not.

MR WINNEKE:	Your Honour Mr Justice Toohey is right but the point about that is this, that the applicant's case
on the kiss was that that was something that she
had done to embellish or bolster up what she
believed to be a just complaint.

McHUGH J: But what about the issue as to who initiated the

visit?

MR WINNEKE:  Your Honour, true. It is a matter that is

indeed relevant and that is why we respectfully

submit if you send a jury out saying, "Well, first

of all have a look at what he tells you.", not only

is that an invitation for the jury to start, as it
were, by looking at the accused, the jury just

having been given directions about whether or not

they should treat him as a liar or not but,

secondly, it takes, as it were, their eye off their

critical task and that is to put the evidence of

Violetta under the microscope.

If they had followed that charge, for example, what they would have done was to say to themselves,

"Well, can we accept without reservation what this

man tells us?", and if they come to the conclusion
they cannot, they then ask themselves, "Can we

accept that it is reasonably possible what

he" - - - .

McHUGH J:  It is very much like Chamberlain's case where, in

effect, everything focuses on the dingo without

looking at the weakness in the Crown's case.

MR WINNEKE:  I agree, with respect, and the danger of it

here, Your Honour, is this: if they had gone about

their task properly directed that they were to

scrutinise with great care and caution the evidence

of Violetta, the complainant, which was, according

to the judge, uncorroborated, the first thing they

probably would have said is, "Well, is there any

doubt or question mark about the reliability of

it?", and one of the things they would have looked

at is the passage of evidence that I read to the

Pahuja 19 21/8/90

Court this morning in which it appears to be that

she is conceding when she got to the surgery the

doctor said, "What's the matter? Is there anything

else wrong?"

Now, if, indeed, that is in fact what happened

when she got to the surgery, it can only be

consistent, in our respectful submission, with the

version of events as given by the doctor as opposed to the version of events given by her. Her version

was that when she got there the doctor immediately

said, "I want to give you a check-up." She said,

"I'm not sick." He said, "I know."

There is a very wide difference between that

and the initial confrontation in which he says.

"Hello, Violetta, what's the matter?" and she says
something that included "shortness of breath" and

he said, "Anything else wrong?" and she said, "No". So that is the point that we make,

Your Honour, that it is not only that fact but one

has to have a look at all the surrounding

circumstances. Whatever else you say about it,
this might be thought, if you are looking at her
evidence, a pretty odd indecent assault where a man
takes an impression of her card, takes her into the

surgery, takes his stethoscope and then moves his

hands around in the breast area.

I agree with you entirely. There is one thing

that is descriptive only of an indecent assault and
that is the kiss and that was a matter of great

significance but the point that was being made by

the accused on his trial was that that was an

embellishment and the point the accused was seeking

to make was that the jury might well have thought

that was an embellishment if they accepted the

evidence of the brother, Tom, who said that her

complaint to him, as he heard it, did not include

any allegation of a kiss but only of a touch or a

try to touch.

The difficulty here was that once the jury was

asked to go out and look at it from the wrong end

of the stick, as it were, or the other side of the

coin - let us concentrate on what this man has told

us - not only do they then have to look at him in

the light of a large amount of evidence that has

been given and directions which had been given

suggesting that they might like to find that he is

a liar and has a consciousness of guilt but they

then, in effect, totally ignore what their real

task is and that is to put her evidence under the

scope, as it were, to see whether or not that

evidence stands up to the test of being thoroughly

convincing and reliable. And by doing that the

Pahuja 20 21/8/90

judge really removed from the jury the whole trust

of the defence case. That is really the only

defence that he had. He was not saying that, "She

is a liar." or a deliberate liar. What he was saying was, "She has misconstrued a legitimate

medical examination and then sought to bolster what

she believed to be a just complaint by adding the

kiss. "

That was his defence and if the jury was asked

to really scrutinize that with care, because it was

uncorroborated, they would have to have had a look

at a large number of things which they could not

have looked at or would not perhaps have looked at

if they had followed the directions given to them

by the judge when he sent them out about their

task.

DEANE J: In one sense, though, the direction was more

favourable to your client than would be accepted as

appropriate now, I would have thought, and that is
the whole starting point that as an unqualified

proposition it is dangerous to convict on

uncorroborated evidence and what His Honour was

trying to do was to - it would seem to me to be -

bring that unacceptable proposition for which there

was a lot of authority into the context of a little

bit of common sense.

MR WINNEKE:  Your Honour, that is one way of looking at what His Honour said. We would respectfully submit that

when you look at the totality of what His Honour

said it was highly confusing because although he

did start off in that way and no doubt the accused

could not possibly complain of that aspect of his
charge, as he went on and he talked about "The

purpose of this is to get you to evaluate the

evidence", as it were, or "The purpose of this is

to, as it were, enable you to assess the

evidence.", in our respectful submission, it just

became a very confusing charge to the jury and as a

totality it would have left the jury, in our

respectful submission, in a quandary as to exactly

what danger it was that they were meant to be

looking out for.

But, in our respectful submission, although we

submit that the charge was deficient on its own in

that respect and should have been a lot clearer and

a lot more definite in explaining what the danger

was that they had to avoid, when he then sends them

out about their task with the directions that he

did, then, in our respectful submission, the

accused lost the entire benefit or whatever benefit
there might have been flowing from the warning

because it took, as it were, the jury's eye off the

task and rather invited them to concentrate not

Pahuja 21 21/8/90

upon her evidence but on his evidence and in doing

of the accused man's case. that the jury was likely to miss the whole thrust

DEANE J: Yes, except I notice there was objection taken

immediately but the way His Honour put it is the

way defence counsel normally put it, "You've heard

my client; if you believe him that's the end of

it, you won't have to worry for another minute;	if
you don't believe him we then come to this."

MR WINNEKE:  Your Honour, exactly, defence counsel - - -

McHUGH J:  I must have been less confident. When I used to

appear in those cases I never ever put it that way.

MR WINNEKE:  Defence counsel might do that in cases unlike

this one where, really, the only feather the

accused really has to fly with is very adequate and

careful directions which provide the protections of

the law. It is not easy when a man is saying,

"Well, look, I have been caught and I am really in

a cleft stick. I know I have - as it were,

conducted a perfectly legitimate medical

examination. I have a girl here who I am not

saying is anything else than a decent girl who's

saying that I've committed an indecent assault and

she's also saying I've kissed her."

The only thing a defendant in those

circumstances can really do is to rely very heavily

upon the protections given to him by the law and

the adequacy and carefulness of proper directions

which provide those protections. And that is what

he failed to get in this case, in our respectful

submission.

If I could indicate to Your Honours the case of Allison which is the case reported in this

State, 152 LSJS, I think Your Honours have that in

the bundle of cases that we provided to you. That

is a decision of the Court of Criminal Appeal in

this State but differently constituted and it was

given on 20 June 1989 which is approximately two

months after the decision in this case. And in the

judgment of His Honour Mr Justice Duggan at

page 98, Your Honours will see the nature of the

warning that was there being considered.

That was, again, an indecent assault case and

it was again a girl who was aged about

12-and-a-half and it was again being contended that

the accused had not indecently assaulted her but

had touched her in circumstances that did not

border on indecency. The court had to consider

this warning which, as I read it to the Court,

Pahuja 22 21/8/90

rings very much the same bell as the one given

here. It says:

"Now I think it is necessary in this case to

tell you something else about the law. It is

something that is called corroboration and I

tell you that in this case that it is

dangerous to convict on the uncorroborated

evidence of Simorne and I so warn you. I do

so on the basis that Simorne at the time of

this incident or alleged incident was a girl

of only 12 and a half, that her powers of

observation were those of a child, that her

memory looking back now is that of a young

person, that her powers of expression were

those of a child and there is always a

possibility of misinterpretation by a child

and so because she is a child with those

possible limitations common perhaps to a child

I give you the warning. You are at liberty if

you desire to convict notwithstanding that

warning, that is to say if you believe that

part of Simorne's evidence which says that the

accused indecently assaulted her. You may in

that event not ignoring the warning but having

considered it, you would be at liberty if you

so desired to believe her evidence and act

upon it.

It is my duty to decide whether there is

evidence capable of being corroboration and it

is your duty when to decide whether you will

use that evidence for that purpose. The

purpose of the warning is to assist you in

deciding what you will believe. When you have
made up your mind as to what you believe, if

it should be that you believe Simorne then the

warning is not intended to deter you from

acting on the evidence you believe. The

purpose of the warning is so that you will
properly evaluate the evidence in relation to

the other evidence in the case.	Now
corroboration means some evidence independent of the complainant, that is independent of	Simorne and it must be evidence of a material
fact which implicates the accused and tends to confirm that he is guilty of the charge laid against him. It has to be something that
points to guilt and not to innocence, that is,
it has to be unequivocal, it must point to
guilt and only to guilt and that means all the
circumstantial evidence in any case."

MASON CJ: Well, at that point, mutatis mutandis, it is word

for word.

Pahuja 23 21/8/90

MR WINNEKE:  Word for word, it is. And then it diverges

because in that case he found that there was

evidence capable of being corroboration and he then

points to that. And then he goes on, at page 99

and says:

"There you are, I have given you the

warning, if you don't want to use that

evidence which I direct you is capable of

corroborating or supporting Simorne's
evidence, then you will heed my warning if you
decide that you don't regard that as
corroborative although it is capable in law of

being corroborative then you will consider my

warning and having considered it you will then

go ahead and do what you consider is proper,

it is not intended to deter you from accepting

or rejecting Simorne's evidence, it is simply

a warning."

Then Their Honours go on to say:

These directions took place in the

earlier part of the summing up and His Honour

did not return to the subject of
corroboration. It is a matter of some regret,
perhaps, that he did not remind the jury of

the importance of corroboration when

summarizing the onus and standard of proof at

the conclusion of the summing up.

Nevertheless it was not essential that the

trial judge adopt this course.

And refers to the decision of the Court of Criminal

Appeal in this case.

The decision to give the warning and to

use the word "corroboration" having been made

it became important to explain that term to

the jury. As for the warning itself, whilst

recognising that there is no "legalistic

ritual to be automatically recited by the

judge", it was nevertheless necessary to

explain to the jury the reason for the warning

and to direct their attention to evidence

capable of amounting to corroboration.

Furthermore, the jury had to be told that their assessment of the evidence capable of

amounting to corroboration involved deciding

whether that evidence was credible in addition

to being confirmatory of the girl's version of

indecency by the appellant.

The warning given by the trial judge at

the commencement of his remarks on this topic,

namely, that "it is dangerous to convict on

the uncorroborated evidence of Simorne (the

Pahuja 24 21/8/90

prosecution) and I so warn you" cannot be

criticised. However, I am of the view that

the explanation which followed should have

been more comprehensive. Limitations on
powers of observation and expression and the

possibility of misinterpretation are only some

of the reasons why such evidence may be

unreliable. In the circumstances of the

present case and bearing in mind the

allegations of fabrication, it would have been

more pertinent to direct the jury's attention

to the dangers of imagination and invention.

In R v Pahuja (No 1), Justice Cox, referring

to R v Schlaefer said:

"The learned Chief Justice quoted Lord

Diplock's words in Hester about the

comprehension and powers of expression of

children. However, His Honour also referred

to the English case of R v Dossi where the
possibility of small children being under the
influence of others - sometimes their

parents - and being apt to allow their

imaginations to run away with them and to

invent untrue stories, was also seen as a

danger. Usually it could be expected that the

warning would take such matters into account,

as well as the matter of comprehension."

Whilst explaining to the jury that it was

dangerous to act upon the uncorroborated

evidence of the girl, his Honour said nothing

more as to the way in which they should

approach their task in the event of a finding

that there was no corroborative evidence. In

Hargen v R Barton J suggested that the jury

should not convict in such circumstances

"unless after the most careful scrutiny" and in Kelleher v R Barwick CJ spoke of bringing

home to the jury the fact that the question in

issue "should only be 4ecided against the

accused on the evidence of the prosecutrix

alone after the exercise of great caution."

Their Honours then went on to discuss the adequacy of that part of the warning that does not repeat

itself in this case but we respectfully submit that

the court in that case was critical of this sort of

a warning and we respectfully submit rightly

critical because when one looks at the warning as a

totality it does not serve the purpose, we

respectfully submit, which it is designed to serve

and that is that the jury should go away knowing
and being well told that their primary task is to

scrutinize with great care the evidence of the

complainant for reasons which ought to be put

before them suggesting that the evidence is in a

Pahuja 25 21/8/90

category of evidence which is prima facie

unreliable and they ought to be told that they

should not convict at all on the uncorroborated

evidence unless they are convinced of its truth and

reliability after such scrutiny with care.

We respectfully submit that when one looks at

the charge in this case, bearing as it does a

warning which, in our respectful submission, is

deficient in a number of respects as we have

indicated, combined with the way in which the jury

was sent about their task, this jury would not have

been in a position to carry out the task which by

law they were required to carry out.

Your Honours, the next submission that we

desire to make is that in this case the majority of

the Court of Criminal Appeal - that was

Justice White and Prior - concluded that the trial

judge had misdirected the jury in relation to the

suggested lie which had been told by the accused to

the police o'f ficer.

I think it is fair to say, Your Honours, that this question of the lie that was said to be told

by the accused to police officers developed a

momentum of its own during the course of this

trial. As I have indicated to the Court before, an

application had been made that the evidence ought

to be not admitted or rejected prior to the trial

and it was done on the basis that it was known from

previous trials that one of the police officers was

prepared to concede that it was quite possible that

the accused, in the conversation, had not said that

she was.not here but had said that she was here and

that it was submitted to the trial judge that that

was a thoroughly unreliable basis - - -

MASON CJ: Well, you told us that before, there is no need

to recover that.

MR WINNEKE:  Yes, may it please Your Honour. What we submit

was this, that once the trial judge had determined

that he would not leave to the jury as a matter for
their consideration the prejudicial effect of the

suggested lie told by the applicant and that he was

going to direct the jury that there was no evidence

capable of amounting to corroboration, then he was
not entitled to direct the jury as he did that they
could use that evidence for the purposes of

determining for themselves that the accused man had

told a lie and that that was demonstrative of his

consciousness of guilt.

McHUGH J: Why not? I mean, the matter of surprise is that

having left the lie to the jury the judge did not

leave it as corroboration.

Pahuja 26 21/8/90

MR WINNEKE:  Your Honour, corroboration as we would

apprehend it - really if the judge says, "I propose	to direct the jury that there is no evidence
capable of amounting to corroboration.", that is the equivalent of saying that the lie is not capable of amounting to or being used to
demonstrate consciousness of guilt.

McHUGH J: ·r accept that, that is right, but it seems to me

that is beneficial from your point of view.

Consciousness of guilt is often left to juries in

cases where corroboration has got nothing to do

with the case, but the lie could have been used as

evidence of corroboration and it was to your

advantage.

MR WINNEKE: Well, Your Honour, we respectfully submit that

it is not really to the advantage. That was

suggested by the Court of Appeal, but we

respectfully submit that what we are entitled to,

consistently with what His Honour had ruled, was a

direction that the jury could not use that evidence

as evidence of the consciousness of guilt of the

accused. Because in essence, what the trial judge

was saying when he ruled that there was no evidence

capable of amounting to corroboration, or in this

particular case he would not leave the prejudicial

aspect of the lie to the jury, he was really

saying, we respectfully submit, that that evidence

is not sufficient for one reason or another to enable this jury to use it for the purposes of

showing consciousness of guilt. And effectively,

what the trial judge had done was to say, "Well, I

propose to tell the jury that there is no evidence

capable.of amounting to corroboration.	I propose
to tell the jury that they cannot use the

prejudicial aspect of the lie in that regard."

We would respectfully submit that that was

tantamount really to saying there is no basis upon

which that evidence could be left to the jury upon
which they could say, "This shows a consciousness

of the accused man's guilt." And that

consistently with the task that he had set for

himself, he really ought to have told the jury that

there was no basis upon which the jury could say

that that evidence led to a demonstration of guilt.

We agree with Your Honour that the sleight of

hand in all this does come in the form that

Your Honour put to us because that is what was said

by some of the judges in the Court of Criminal

Appeal. "Well, it was beneficial to your client to

have the direction that there was no evidence

capable of being corroborative, and therefore you,

as it were, had to wear a direction that the jury

could use this evidence, this self same evidence,

Pahuja 27 21/8/90

not as corroboration of the girl's story, but as

independent evidence demonstrating guilt."

But in our respectful submission, although it

is quite obvious that consciousness of guilt can be

demonstrated by lies told out of court in cases

. where corroboration is not a requirement, that does

not mean that in cases where corroboration is a

requirement it changes its colour. The evidence is

the same except that in one case it amounts to
corroboration; whereas in the other case where
corroboration is not required it amounts to

evidence of guilt standing on its own. But indeed,
as Mr Justice Bollen in the Court of Criminal

Appeal said, and I think it was at page 370,
Your Honour, about half-way down the page:

I do not think that any "failure" to leave the

lie as capable of corroborating the girl's

evidence can be put aside in considering the

direction on "lies". The jury had been told

that this lie (if so found to be) could not

corroborate her story. They knew that. They were correctly told that a lie, if "motivated by consciousness of guilt", could lead to a

finding that the lie was told by a guilty
person. But they were warned about the need

for caution and the need to be satisfied of

that "motivation" beyond reasonable doubt.

They were left with the clear knowledge that

there were reasons other than consciousness of

guilt for lying, even though examples were not

stated. So, as the Solicitor-General said,

with the favourable failure to leave "the lie"

as corroboration the "summing up is not open

to criticism". No doubt the recitation of

some examples of reasons for lying would have

been a good idea. But it was not imperative in

this case.

Now, freely translated, that seems to mean, in

our respectful submission, ·that it was favourable

that there was no evidence capable of amounting to	to the accused for the judge to have told the jury
corroboration. If he had done that perhaps it
would have been necessary to give more specific
directions as to the way in which the jury should
have used the evidence of the lie before they could use it as being evidence of the accused's consciousness of guilt.

So it is not really a favourable result for

the accused. On either view the accused misses

out. It would have been far more favourable for the judge to have left it on that basis as

corroboration, because as Mr Justice Bollen says in

those circumstances it might have been necessary to

Pahuja 28 21/8/90

go into more detail and more specifics and to give

a more favourable direction about it. And in our respectful submission, the misconception about it

is this: that once the judge has said that that

evidence is not capable of amounting to

corroboration, in our respectful submission, really

what he is saying is it is not capable of being

used as independent evidence showing consciousness

of guilt on behalf of the accused. So that on any

view it becomes a very unfavourable direction, in
our respectful submission, to the accused.

Your Honours, we respectfully submit that the majority of the Court of Criminal Appeal was

correct in determining that the direction which the

judge gave to the jury about the use that they

could make of the lie was correct. In essence, both Mr Justice White and Mr Justice Prior said

that in accordance with authority, once the judge

had embarked upon the task of leaving this issue to

the jury, he should have told them in the

circumstances of this case that there were a number
of reasons why they might find that this evidence

did not demonstrate a consciousness of guilt of the

accused. And, in our respectful submission, that
must be right, because the evidence was based on
any view on a fairly tenuous thread. And as the

trial proceeded it took on a new dimension because

the accused was saying, "I did not tell the police

when they first came to my surgery that she was not

here last night." He said, "I told them that she

was here last night, and they must have misheard

me, but I corrected that - - -

MASON CJ: Well, you are covering ground already dealt with.

MR WINNEKE:  I wanted to go on to another matter,

Your Honour.

MASON CJ: Very well, you might proceed to that.

DEANE J:  Mr Winneke, could I divert you before you go on to

your other matter? If your client had not given

evidence would his statement to the police have

itself been corroboration?

MR WINNEKE: Well, I suppose it would have been open to the

Crown to say that the statement that he made to the

police was demonstrative of the consciousness of

guilt. But they would have to take into account in

determining that, I suppose Your Honour, the

evidence given by the police officers.

DEANE J: What if the jury took the view that your client's

explanation as to how the girl came to be there was

simply incredible or unacceptable, taking the fact

that she is a 12 year-old girl and so on, would his

Pahuja 29 21/8/90

statement then, and his own evidence, have been

corroboration?

MR WINNEKE:  Your Honour, in our respectful submission, if

the jury had taken the view that his evidence about

how the girl came to be at the surgery was false,

it would be very difficult, in our respectful

submission, to say that they could use that as

corroboration of her statement that - - -

McHUGH J: But there is authority in the Full Court of

Victoria, is there not, that lies in the witness

box can constitute corroboration?

MR WINNEKE:  Yes, in Freeman's case there is authority, but

by the same token I think it is attended by a

number of qualifications, Your Honour.

DEANE J:  It is a bit going round in circles in one sense,

is it not?

MR WINNEKE:  Yes, by no amount of torturing can the

statement and evidence that "I did not do the deed"

be turned into "I did do the deed".

DEANE J: But I was directed really to.his statement to the

police. I mean, if the explanation given for the

presence of the girl is seen as obviously

unacceptable - I am not saying it is, but just

querying - would the statement itself be

corroboration in so far as it confirms a lot of the

events involved?

MR WINNEKE:  It may well be that in those circumstances it

could be, Your Honour. But if the jury had decided

for reasons outside the making of the statement

that there were indications that the statement was

false, and if they concluded upon proper directions

that a false statement was made because of a desire

to conceal guilt, then in those circumstances I

suppose that they could. But it would have to be

accompanied by very careful directions.

What happened was, of course, during the course of this trial, the accused himself having

said - and this was one of the difficulties about

it because it took on a dimension all of its own -

"I did not tell the police that she was not there.

I told them that she was there". Then it was put

to him in cross-examination, "Well, what the

statement says is you saw her there, and that is

different from you saying, 'she was there'." And

then that took on another dimension because really

what was being alleged was a further lie, one told

in the witness box, "When you say as part of your

evidence that you told the police that she was

there, you cannot be believed about that because

Pahuja 30 21/8/90

when we look at your statement, you said, 'I said I

saw her'."

Now, the difficulty about that, of course, was

that there was no evidence to suggest that when the

police were interviewing the man and when he made

the correction he was directing his mind to the

precise form of words that were being used. So

this whole thing took on another dimension.	And it
was not just one lie.	It became two lies. And

that is why the Court of Criminal Appeal - late in

the judgment His Honour Mr Justice White, and I
think His Honour Mr Justice Prior - they said far

too much was made of this, and we would

respectfully submit that that is right.	The thing
got out of hand.	And it was all based on what we

would respectfully - - -

DEANE J:  I think I have brought you back to the point where

the Chief Justice directed you on to your next

point.

MR WINNEKE:  Yes, and that was really the point I wanted to

make. So we would respectfully submit that the

majority were quite right in saying that this

direction given by the judge about the lie was an inadequate direction because in the circumstances

in which the evidence was given and the way in

which it developed during the trial, it became very

clear that the basis for suggesting that there was

one lie and then another was a very flimsy basis

indeed. And it was quite open and proper, we

respectfully submit, for the court to say that in

not reminding the jury of the various circumstances

in which so-called lies might come to be told and

that they might have a very innocent context to

them, Their Honours Mr Justice White and

Mr Justice Prior were quite correct.

The next point, Your Honours, that we make is

this: and that is that the directions given to the

jury by the trial judge as to the evidence of the

complainant's distress and her complaint to her

brother were, in the circumstances of this case,

clearly deficient. And we respectfully submit that

they were deficient for the reasons that are set

out in the judgment of His Honour Mr Justice Prior

at page 391. What His Honour said towards the

bottom of the page was:

Two further grounds of appeal relate to

the evidence of distress. It is alleged that the trial judge erred in his direction to the jury as to the proper use of evidence of the

girl's distressed condition. It is submitted

that the father's evidence about his visit to

the appellant's surgery and as to the girl's

Pahuja 31 21/8/90

distress was wrongly admitted and that the

on the proper use of evidence of recent	trial judge did not correctly direct the jury
complaint.

Evidence of the girl's apparent distress

came from the friend who saw her going to and

from the surgery, the girl's brother and her

father. Her father came home with his wife

and small daughter to find his twelve year old

daughter in the kitchen crying and, "upset,

totally upset". The father's observations of

his daughter were subsequent to those observed

and deposed to by her brother. Given the

appellant's answer to the charge, no evidence

of distress could be corroborative of the

girl's testimony. It was, like the evidence

of the complaint, admissible only as evidence of consistency in the girl's behaviour and as part of the whole circumstances surrounding

the visit to the surgery. The directions to

the jury on this topic were given after a

summary of the defence case and before the

judge reminded the jury of the Crown case.	He
said:

"I have already talked about the

propensity for a victim in a sexual case to

misinterpret, to embellish. That is evidence

before you. That is common knowledge. We all

know that young people and especially victims

of sexual offences might do such a thing, it

is quite possible.

The next thing I have to tell you is that

the law allows the Crown to give evidence of
the victim's complaint, not to prove the truth

of the complaint but simply to show there is

consistency on the part of the complaint, that

is, Violetta's complaint to Tom. It doesn't

prove that what she told Tom is true, that is

as plain as a pike staff, what it does it

demonstrates she was consistent in making a

complaint at the earliest opportunity. That

is the value of that.

Similarly, the evidence of Mirko as to

her distress, that again doesn't prove that

she was indecently assaulted in the doctor's
surgery, it simply shows that she was

consistent in as much as if she said what

happened happened in the surgery then one

wouldn't be surprised she was in the state she
was in, that Mirko says she was in when he saw

her. There again it doesn't prove the case at

all, it shows Violetta was consistent in her

conduct following her complaint."

Pahuja 32 21/8/90

Then His Honour goes on:

The observation of Mirko preceded her

complaint to her brother. The error in the

last sentence quoted would have been obvious

to the jury. The trial judge said that the

complaint demonstrated that the girl was

consistent in making a complaint at the

earliest opportunity. For that to be a

correct direction, that had to be understood

by the jury to mean that it may serve to
demonstrate consistency, just as, in the next

paragraph, when speaking of distress, the

direction had to be read as the trial judge

telling them that that evidence may be

accepted by them as showing consistency.

Whilst evidence of a complaint and

observed distress may be consistent with the
girl's story, in this case it was for the jury

to consider whether it was equally consistent

with what the appellant was saying.

TOOHEY J: Could I just stop you there, Mr Winneke. What

directions do you suggest the trial judge ought to

have given the jury as to their consideration of

whether the girl's condition as observed by Mirko

and as observed by her brother and by her father

was equally consistent with the applicant's account

of what happened?

MR WINNEKE: Well, what he should have told them, in our

respectful submission, Your Honour, was that they

could not use that evidence to bolster the credit

of Violetta unless and until they had determined

that her evidence was true. In other words, it was

not something that they could use to bolster her

credibility until they had removed from their

consideration the proposition that the accused had

carried out a perfectly legitimate medical

examination.

TOOHEY J:  I did not understand that to be the way in which

Mr Justice Prior was putting the matter on that

page. He is speaking of it in terms of

consistency. What was there about the evidence of

the complaint, assuming that evidence was accepted,

that was in any way consistent with the applicant's

account of what happened?

MR WINNEKE: Well, the evidence of the complaint depends on

what the jury found as to what the complaint was,

Your Honour. You see, the evidence of the

complaint from the recipient of the complaint,

namely Tom, was that the girl said that she had

been touched, or the doctor had tried to touch her.

Now, that raised, in our respectful submission,

Pahuja 33 21/8/90

this question of how that evidence was to be used,

and the trial judge really pre-empted the jury's

task about that in the passage to which I am about
to come; because the girl had given evidence

herself saying that the complaint that she made to

Torn was in significantly different terms and in

terms that were really quite pointed against the

accused. But it was Tom's evidence, as the
recipient of the complaint, which was the evidence received for the purposes of bolstering the credit of the witness. But the jury first of all had to
decide, in our respectful submission, before they
could use that evidence at all, just exactly what

was said by Violetta to Torn. And that was a matter

for them which His Honour pre-empted, in our

respectful submission.

TOOHEY J: Yes, I understand that, and it may be that the

jury rejected that evidence. But it is the notion
of the complaint and observed distress being

equally consistent with the applicant's account of

what happened that I am having difficulty with.

MR WINNEKE:  Well, Your Honour, because if indeed there

was

TOOHEY J: Could I just take it step by step? What was

observed by Mirko, assuming that that

evidence - - -

MR WINNEKE: Just that she was in a distressed condition.

TOOHEY J: Well, she was running, clutching her clothes, the

top of her clothes, a tank top - was there

anything in that that was in any way, or could be

in any way consistent with the applicant's account

of what happened?

MR WINNEKE:  Yes, in our respectful submission, it could.

It could be consistent with the proposition that

the applicant had carried out a perfectly

appropriate medical examination that the girl had

misconstrued.

McHUGH J: Yes, but I have great difficult with this. I

know you often see it, and there may even be high

authority for it, but it seems to depend on the

proposition that the accused can negative evidence
of corroboration by his line of defence. Take a
case of rape where there is a lot of bruising of

the girl. The accused says, "Oh yes, I grabbed her

between the legs. It was all by consent. She was

quite happy with it. That is how the bruising got

there". That surely cannot prevent the bruising

being left as corroboration.

Pahuja 34 21/8/90

MR WINNEKE:  No, Your Honour, in our respectful submission

the distinction between that case and this is that there was a dispute, a factual dispute between the

maker of the complaint - and we are now talking

about the complaint - and the receiver of the

complaint. What the judge did was to tell the jury

that they, as it were, ought to use the

complainant's evidence on this point as being

accurate, and that they ought to use that to
bolster her credibility.

Now, in our respectful submission, that is really going beyond what he ought to have directed

the jury to do.

McHUGH J: Well, suppose she was seen running away grinning?

You would have gone to the jury as a strong

indication that nothing had occurred.

MR WINNEKE: Well, Your Honour - - -

McHUGH J:  So if she goes away in distress why is that not

evidence to confirm her - - -

MR WINNEKE: Well because, Your Honour, I suppose it is

equally consistent with the entire case being made by the defendant. He is saying in essence, "Look,

I carried out a legitimate medical examination.

This girl must have misconstrued it." If she did,

a fortiori she will be distressed.

TOOHEY J:  You say she must have misconstrued it. But he

does not say as I understand the evidence, "She

appeared to misconstrue it". Again, that might be

a different situation. If he said, "I was in the

course of carrying out this examination when all of

a sudden the girl leaped off the couch, rushed out

of the room." Now, in that event her observed

condition as she ran down the street might be

equally consistent with his account of what

happened as with the complainant's. But as I

understand the applicant's evidence, it is that it

was a perfectly routine medical examination at the	end of which the girl got off the couch and simply
went out in the ordinary way from the surgery.

MR WINNEKE:  Your Honour, that is true and in our respectful

submission, the problem is that if you say well,
one can use her evidence of a distressed condition

to, as it were, support the proposition that she

left the surgery in a distressed condition, what

that means really is that he is telling a lie and

you get - - -

McHUGH J: Well, I must say at the moment I tend to think

that the distress should have been left as evidence

of corroboration as well.

Pahuja 35 21/8/90

MR WINNEKE: Well, that is the problem. But it would have to

be accompanied, Your Honour, by very careful

directions as to how it could be used, and in our

respectful submission, it just was not done. But

what we do contend is that in the circumstances of

this case - I mean, Your Honour Mr Justice Toohey

says that really if Mirko gives evidence that she

is running down the street clutching her top that

that is evidence that she left the surgery in a

distressed condition, we would respectfully submit

that it is equally consistent that she started to

run when she left the surgery. One just does not

know.

McHUGH J: Yes, well what Mr Justice Toohey has put to you

is a powerful point against you, is it not really,

because if it is true it is totally inconsistent

with your client's case up to the moment she left

the surgery, and it is only 25 metres away or

something.

MR WINNEKE:  With respect, it is not, because there are two

reasons for it. It may be that it is consistent
with the fact that he lied about the way she left

the surgery. But that, in our respectful

submission, is a different point. It is not, in

our respectful submission, independent evidence

showing that the girl was indecently assaulted in

the surgery. It may be that he lied about that for

all sorts of reasons. But if it is evidence of

anything it can only be evidence that he lied about

the way in which she left the surgery.

Now, there was no suggestion that that case

ought to be made and, of course, no directions

about that were given.

McHUGH J: But the point is it goes - and it is again

favourable to you because the distress is not only

making her evidence more probable than not, but it

would also indicate a consciousness of guilt on

your client's part in terms of the circumstances in

which she left the surgery.

MR WINNEKE: Well, Your Honour, that may well have been

capable of being put. I do not know. But if it

was to be put it would have to be accompanied by

very careful directions as to the way in which the

jury will use it.

But, Your Honour, the real thrust of the point

we make about this distress and complaint is that

there was an acute dispute over what it was that

she said to her brother Tom. The accused was

saying that she said to her brother Tom what Tom

says she told him, and the law is that the evidence

of a complainant's complaint recently made can be

Pahuja 36 21/8/90

used to bolster the credibility of the witness in

the witness box. Her credibility was a matter of

vital issue between her and the accused.

McHUGH J: But your client was not really saying what she

told Tom was correct, was she? Because Tom

referred to massage, did he not?

MR WINNEKE:  No.

McHUGH J: Oh, she referred to - - -

MR WINNEKE:  Tom said the complaint he received from

Violetta was that the accused made a pass at her,

and when pressed as to what that meant he said, "He

tried to touch me", or as he said, "He touched me".

Now, what the accused was saying was, "You cannot

use that evidence to bolster the credit or

credibility of Violetta as a witness because she

has tried to gild the lily here by saying, 'I said

to Tom that he kissed me'. Now that became a very

important issue in this case, but it was an issue

which, by his directions, the judge really removed

from the jury altogether. It became a very

critical point because the kiss was the
discriminating factor, and really what the accused

was saying was, "Well, she must have invented the

kiss once she got past Tom and into people of

authority to bolster what she believed to be a just

complaint." But it was very important from the

accused's point of view that the discrepancy

between the evidence of the complainant and Tom be

squarely put to the jury and left for them to

consider.

And that is not what the judge did in this

case because what he did was to tell the jury they should really accept the fact that Tom did not get all her story properly, just told them that. Now,

in our respectful submission, then said that they

can use that evidence as consistency on her part.

Now, we respectfully submit that in doing that

he overstepped the bounds in this case that he was

really required to keep within, that he took from

the accused a very critical part of a case that he

was seeking to make. Because the allegation that

the doctor kissed her was such a focal point in the

case, without proof of which really the whole case

would have to go the ground, the nature of the

complaint that she made to Tom became a critical

feature in the case and that, really, was just taken away by the judge from the jury with his statement, in essence, "That you ought to accept

that Tom missed the full circumstances of the

complaint" .

Pahuja 37 21/8/90

GAUDRON J:  Mr Winneke, I did not understand the trial judge

to be saying that at all. Are you sure that that

is exactly what was being said?

MR WINNEKE:  Your Honour, if I can take you to the top of

page 394 where His Honour Mr Justice Prior is

continuing the recitation of the charge - perhaps

at the bottom of page 393, Your Honour, he says

this:

the trial judge then said:

"I simply refer now to Mirko who saw her and

told you that he saw her clutching her breast

and he told you about how she seemed to be

distressed and that she ran past him and up

towards her home faster when he saw her after
the surgery than she did on her way to the

surgery and then, of course, the matter of the

complaint. Now, I have told you of the use

you can make of the complaint but this is the

complaint to Tom. All I want to say about

that is that like all the other evidence,

ladies and gentlemen, you will not look at it

in isolation. You will look at it in relation

to the other evidence in the case. For

instance you go out let us hope by next Monday

when it is a nice sunny day. You walk out the

door first thing in the morning. You do not

just see the earth and the objects on it and

the sun up above, you see everything

sunbathed, ladies and gentlemen - - -

MASON CJ: It is not necessary to read all of this, is it,

Mr Winneke?

MR WINNEKE:  Your Honour, if I can just go to the bottom of

the page -

GAUDRON J: But, Mr Winneke, the question of the use to

which this might be put was. undoubtedly agitated by

counsel?

MR WINNEKE: Yes, it was.
GAUDRON J:	I should imagine it would have taken up a very considerable part of the addresses and His Honour
simply left one - suggested that there might be a
particular explanation and that it did not alter
the fact that there was complaint. All His Honour was saying, as I read that passage, is, "Whatever
was actually said it does not alter the fact that
there was complaint when she got home and the fact
that she complained may be used as evidence that
she has been consistent in her reaction to this
matter at all stages."

Pahuja 38 21/8/90

MR WINNEKE:  Your Honour, we say there are two aspects to

it. Certainly, there was a complaint; no doubt

about that. But, secondly, the terms of the

complaint and that was the matter that was of

critical importance to the accused. In our

respectful submission, what the judge was doing

here was twofold. He was saying, "Certainly,

there's a complaint and it is a recent complaint

but you mightn't be surprised if Torn has failed to

get the terms of that complaint properly."

Now, we respectfully submit that in doing that

His Honour was taking away from the jury a critical

issue of fact. He was not putting it to the jury

for a determination by them. It was a very

important fact from the point of view of the

accused as to what the complaint was.

GAUDRON J:  You are saying His Honour was putting his own

view of the facts in circumstances that simply were

not open to him in that particular case.

MR WINNEKE:  No, that His Honour -

GAUDRON J: Well, what else can be the complaint?

MR WINNEKE: Well, he should have done it by at least

putting to the jury, Your Honour, that this, as it

were, argument of fact was there for them to

determine.

GAUDRON J: And, undoubtedly, counsel had spent a lot of

time doing just that.

MR WINNEKE:  Your.Honour, in our respectful submission, it

is one thing to talk about "well counsel had done a
lot of that"; of course counsel had put it, but

counsel for the accused had addressed first and he

had been followed by counsel for the Crown and then

this charge. What we complain about, Your Honour,

is that in giving a charge of this sort, His Honour

failed to put squarely before the jury for their

determined by them and, in essence, pre-empted determination the issue of fact that had to be that.

GAUDRON J: Well, what was that issue of fact that you

MR WINNEKE:  The issue of fact, what was the term of the

complaint.

GAUDRON J:  Why? I mean, that is simply in the context of

what His Honour the trial judge was there saying,

that is not the point at all. The point is that

there was early complaint. There was distress and

the question of what was said or not said was

Pahuja 39 21/8/90

relevant to another issue, namely, whether the

complainant had tried to bolster, on your view,

what she thought was a just complaint by making up

a story about the kissing.

MR WINNEKE:	Your Honour, the complaint and the terms of the complaint, in our respectful submission, both go to
the question of the credibility of the complainant in the witness box. It is not only the fact of the complaint but also the terms of the complaint. They are the matters that the jury has to look at,
in our respectful submission, in determining
whether to use the evidence to bolster the
credibility of the complainant.

GAUDRON J: Well, I imagine you would have to go to great

lengths to confuse a jury so that they would not

recognize that in the context of this case.

MR WINNEKE:  Your Honour, I understand what Your Honour says

but it was, we respectfully submit, a misdirection

and it was just one - - -

GAUDRON J:	Was it a misdirection of law, was it?
MR WINNEKE:	Your Honour, it was not a misdirection of law.

GAUDRON J: Or about the onus of proof?

MR WINNEKE:  It came down to this, Your Honour, with

respect, that, really, there was an issue that had

to be decided by the jury before they could

determine what to make of the credibility of the

complainant. That issue was really removed from

them by His Honour, we would respectfully submit.

So the jury really did not even have to begin to consider that particular issue as a precedent to then determining what credibility they would attach

to the evidence of the complainant.

So, in that respect, it was, we respectfully

submit, a very fundamental matter. But I
understand what Your Honour says.	None the less in

the context of this charge we respectfully submit

that the jury were likely to have simply received

that as a proposition, "Well, look, we can accept this girl has been consistent, the judge has told us that, we can accept the fact that her brother

must have got it wrong and therefore we can accept

her consistency on the terms of the complaint as
well as the fact of the complaint."

Now, the terms of the complaint were a matter

of great issue between the parties and we
respectfully submit that issue was not properly

left by the trial judge to the jury. We also put

this, Your Honours, that because of the way in

Pahuja 40 21/8/90

which the Court of Criminal Appeal has divided in

this case, there has been no real determination

upon whether or not the proviso found in

section 353 of the Criminal Law Consolidation Act

was applicable and that is because the only person

to have - or the only - there are two - His Honour

Mr Justice Prior found that the proviso was not

applicable. He did that on the basis of his

finding, firstly, that there was a misdirection or a non-direction by the trial judge on the question of the falsehood and also on the basis that there

was a misdirection by the trial judge to the jury

on the use that they could make of the complaint

and distress evidence.

His Honour Mr Justice White found that there

was a misdirection or non-direction on the question
of the falsehood but he found that the proviso was
applicable because, as he put it, it paled into
insignificance beside what the jury must have

regarded as an overwhelming case against the

accused. On the other hand, the remaining judge,

His Honour Mr Justice Boylan did not have any need

to consider the question because he dismissed all
the grounds of appeal and took the view that there

was no need, therefore, to consider this question

of the proviso.

Now, we respectfully submit, Your Honours,

that in this case it was not appropriate to apply

the proviso. Firstly, we respectfully submit, that

the Court has not fully considered the matters that

motivated His Honour Mr Justice Prior not to apply

the proviso and that is because, we respectfully

submit, that His Honour Mr Justice White, in

determining whether the proviso was applicable,

misunderstood the nature of the reasons of

His Honour Mr Justice Prier's decision in respect

of complaint and distress. I can take Your Honour

to page 355 of the appeal book. The reasons given

by His Honour Mr Justice White for the application

of the proviso, about half-way down the page where

he says: 

In my opinion there can be no reasonable

apprehension that there was a miscarriage of

justice as a result of the non-direction.

That is as to the lie.

After all, His Honour did not leave the lie to

them directly as a matter which could be used
by them to undermine his credibility. If he
had done that (which he could have done

legitimately), it would, I think, have been much more damaging than to leave the lie to

them in the more indirect way that it could

Pahuja 41 21/8/90

arise from a consciousness of guilt. I find

it difficult to conceive how the jury could

have used such a short-lived lie, if it was a

lie, as an indirect means of accepting her

evidence by noting this slight diminution in the strength of the material for the defence

which stood against her word. I think that

acceptance of her word beyond reasonable doubt

must have stood upon a fundamentally firmer

basis than the comfort to be derived in this

indirect manner. The lie might well not have

been treated by the jury as a lie at all.

This was a hotly debated issue in the

addresses. His Honour fully directed the jury
about the matters that might lead them to the

conclusion that the appellant had not lied at

all. I think that it should not be too

readily assumed that the jury was satisfied

beyond reasonable doubt that he told a lie.

It seems to me to be only a remote possibility

that the jury found beyond reasonable doubt

that he lied and then used (as one of the

foundation stones for acceptance of the girl's

story beyond reasonable doubt) his

consciousness of guilt. A realistic

appreciation of the addresses of counsel and

of the summing up indicates that the jury must

have understood clearly that the crucial issue

was whether they accepted beyond reasonable

doubt the essential aspects of the girl's

story and believed her over the warning and

over the medical evidence as to imaginative

embellishment by girls of this age.

All kinds of lies are discussed in the

decided cases, lies which loom more or less

large in the circumstances of a given case.

At times, there are monstrous lies, tall lies,

lies which are persisted in from beginning to

end, lies which have an important bearing on

the outcome of a case. If the jury happened

have been considered by it to be at the very	to be satisfied that this was a lie, it must
lowest end of the spectrum of lies. I think
it was mistake for - - -

MASON CJ: Well, is it necessary to read more?

MR WINNEKE: Well, just the next paragraph, Your Honour.

I think it was a mistake for the prosecution

to have paid such extended attention to the

lie.

Now, Your Honours, we respectfully submit, that

there is a circularity of reasoning about that.

That, in essence, what His Honour was saying was

Pahuja 42 21/8/90

that much had been made of this lie by the

prosecution, more than should have been made of it.

In our respectful submission, in the circumstances

in which this matter was left to the jury, where

they were being asked to consider, first of all,

whether they could accept what the accused had said
without reservation, the fact that the matter of

the lie had been left to the jury at all, and

without the necessary attendant cautions to it, in

our respectful submission, became a matter of some

moment for the accused in this case. And, when

His Honour says that this is not a lie of any great

significance, in our respectful submission, really

what he is doing is to confuse the fact that the

lie itself was based on tenuous evidence, but

notwithstanding the fact that the lie was based on

tenuous evidence, a great deal was made of this lie

at the trial and it is what is made of the lie, and

not what its foundation stone is, which, in our

respectful submission, should have weighed with

His Honour in determining whether or not the

accused really had a fair trial as a consequence of

it.

And we respectfully submit that His Honour is really saying here, "There was not much in this

lie. It was a short-lived lie," and not only that,

perhaps the jury would have found that he had not

told a lie at all and then categorized the lie as

one of no real moment, but the fact of the matter

is, as His Honour has pointed out, much was made at

the trial of this lie, the jury was sent out to

consider its verdict, with the urging by the judge

that they should start their consideration by

looking at what the accused man had told them and

whether they could accept him without reservation.

In those circumstances, we would respectfully

submit, that it would be very difficult to conclude

- and we submit that His Honour erred in so

concluding - that this lie did not play a

sufficiently significant part in this case so as to

deprive the accused of the chance of an acquittal.

And, in addition to that, His Honour said at page

362 of the appeal book that:

Since writing the above I have become

aware of the draft reasons for decision of

Prior J. in this case.	I was about to discuss
the grounds of appeal relating to distress.	I

will not set out the passages in the summing

up as Prior J. has done so. Suffice it to say

that evidence of distress came from Mirko,

from the girl's brother Tom and from her

father. The trial judge did not suggest that

the evidence of distress was capable of being

corroborative. He suggested merely that it

was consistent with what one might expect.

Pahuja 43 21/8/90

Distress was consistent with her complaint.
Prior J. refers to a number of cases which

discuss various formulae which might be put to the jury about the significance of evidence of

complaint ..... such as that complaint (and

distress) are "not probative but only aids to

the credibility of the girl" -

et cetera. And His Honour continues to refer to

those, and about a third of the way down 363 says:

These are statements from the authorities

which tend to give a status to evidence of

complaint higher than that given by

his Honour. The appellant cannot complain if

his Honour played down the significance of

evidence of complaint. As to distress,

neither counsel nor the trial judge suggested

it was of any significance other than

consistent conduct. The direction was not
inconsistent with The Queen v Schlaefer.

Now, Your Honour, we respectfully submit that that passage reveals that His Honour

Mr Justice White did not, we respectfully submit,

understand the thrust of the points being made by

His Honour Mr Justice Prior in condemning the

direction as to complaint and distress because the

whole thrust of that paragraph of His Honour

Mr Justice Prior's reasons for decision dealt with

the failure of the trial judge to adequately direct

the jury on this question of the equivocality of

complaint and distress and the failure of the judge

to properly direct the jury as to the making or the

terms of the complaint.

In our respectful submission, what His Honour

Mr Justice White is doing here is misunderstanding,

or misreading, the thrust of the arguments which

are accepted by His Honour Mr Justice White. So

that what the Court is left with, we respectfully

submit, is a situation where the accused man has

had an appeal in which the members of the appellate

court have divided; there has not been a decision

taken by the appellate court on the question of the

applicability of the proviso; the judge, in our

respectful submission, has said that the proviso is

applicable; we would respectfully submit has
applied it for reasons that were inadequate in the

circumstances of this case. We would respectfully

submit to the Court, in the circumstances, that it

would be appropriate in this case if the Court were

themselves to determine, in the light of the
material which is now before it, that there was, in

fact, a significant omission from the proper terms

of direction by the trial judge and that it would

be inappropriate in all the circumstances of the

Pahuja 44 21/8/90

case to apply the proviso to be found in

section 353 of the Act.

I think, Your Honour, that that is the

submission that we desire to make. My learned

junior also reminds me, Your Honours, that one of

the grounds of appeal that was put to the Court of

Criminal Appeal was, that in all the circumstances

of this case the verdict was unsafe and

unsatisfactory. That ground was not dealt with by

His Honour Mr Justice Prior because His Honour had

decided the appeal on other grounds. The matter

was referred to by His Honour Mr Justice White in

circumstances where His Honour indicated that he

did not think it was a worthy point. His Honour

Mr Justice Boylan simply agreed except in respect

of the two points where Mr Justice Prior had upheld

the appeal with the reasons for decision of

Mr Justice Prior. So that those grounds of appeal

were not the subject of a determination by the

court on that ground of appeal and, we respectfully

submit, that in that respect as well the court

failed, as it were, to carry out its final

function.

We submit, Your Honours, for the reasons that

we have indicated already, that it was an

unsatisfactory verdict having regard to the way in

which the trial judge had invited the jury to go

about its task. But the jury was misdirected, not
only as to the nature of the corroboration warning,

but also as to the manner in which they should

carry out their task, but it is open to say that
the jury was so far removed from giving proper

consideration to its function in accordance with

proper directions that any verdict that it gave was

an unsafe and unsatisfactory verdict. Now those

were matters that we put to the Court of Criminal

Appeal and, we respectfully submit, that in that

area as well the court has failed to make a

determination on that matte.r.

In all the circumstances, we submit to this

Court that leave to appeal ought to be granted for

the reasons that we submit and that the Court ought

to allow the appeal and quash the conviction.

GAUDRON J:  Mr Winneke, do you put in support of your ground

of appeal in the Full Court, anything more than you

have put to us today in relation to the other

grounds, that is, the unsafe and unsatisfactory

ground? Do you advance anything in support of that

over and above what else has been said today?

MR WINNEKE:  No, Your Honour. I think it is fair to say

that we simply put the same arguments that we put

in respect of the other grounds, particularly,

Pahuja 45 21/8/90

Your Honour, going to the question of corroboration

warning and the way in which the jury were asked to

go about its task.

GAUDRON J: Yes.

MASON C~:  The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 3.24 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.30 PM:

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

are not persuaded that in the particular

circumstances of this case and having regard to the

entirety of the directions given to the jury, that

the case raises for consideration any question of

general principle. Nor are we persuaded that there

was any miscarriage of justice, or that the

conviction was unsafe or unsatisfactory.

Accordingly the application for special leave will

be refused.

AT 3.30 PM THE MATTER WAS ADJOURNED SINE DIE

Pahuja 46 21/8/90