Reg v M

[1993] HCATrans 148

~

~ -,~··~

IN THE HIGH COURT OF AUSTRALIA

Registry

No C6 of 1993

B e t w e e n -

THE QUEEN

Applicant

and

M

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

Copyright in the High Court of Australia 1 11/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 JUNE 1993, AT 10.17 AM

MR K.J. CRISPIN, QC:  May it please Your Honours, I appear

with my learned friend, MR J.E. IBBOTSON, for the

applicant in that matter. (instructed by the

Director of Public Prosecutions (Australian Capital

Territory))

MR J.H. BREWSTER: If the Court please, I appear for the

respondent. (instructed by C.J. Staniforth, Legal

Aid Office (ACT))

BRENNAN J: Yes, Mr Crispin?

MR CRISPIN:  May it please Your Honours, there is one

preliminary matter. This is a matter involving an

allegation of the sexual molestation of a quite

young child and, in the circumstances, we would

seek an order suppressing publication of the names

of the parties.

TOOHEY J: Such an order was made below, was it, Mr Crispin?

MR CRISPIN: It was made at trial, Your Honour; I am not

certain that it was made in the Federal Court.	I
must confess I was not in those proceedings.

TOOHEY J: It is just that the application book has

something on the face which would suggest the

existence of a non-publication order.

MR CRISPIN: The hearing of this matter was foreshadowed in

this morning's Canberra Times, Your Honour; there

has been some interest in the matter. We would

simply wish to minimize any publicity that might

adversely affect the child.

BRENNAN J: There has been no publicity of the names thus

far?

MR CRISPIN:  I think that is correct, Your Honour.

BRENNAN J:  Can you assist us, Mr Brewster?

MR BREWSTER: There has not been, Your Honour, but it may be

that this case could get reported in law reports

and the like and go beyond the media.	In that case
the - - -

BRENNAN J: Yes, the fact of the proceedings, of course, are

obviously a matter of public record·and of public

interest, but the names of the individuals, one

would think, is not a matter of public interest.

But it is necessary to ensure that we do not make an order which is futile, in the sense that there

has been some previous publication.

• 2 11/6/93

MR BREWSTER:  There has been no previous publication of any

names in the proceedings, Your Honour.

BRENNAN J: Yes, and it will be necessary to conduct the

argument on the basis of the initials of the

parties rather than the names of the persons.

MR BREWSTER:  Yes.

BRENNAN J: Yes, very well, the order will be made as

sought.

MR BREWSTER:	May it please Your Honours.
MR CRISPIN:	May it please the Court, I seek to hand up four

copies of an outline of submissions. Your Honours,

it will be necessary to advert briefly, I may not
need to take Your Honours physically to the
document, but to advert briefly to the course of
argument before the Federal Court. That was not

included in the application book and I would seek

Your Honours' leave to hand that up. I understand

my learned friend has no objection to that course.

TOOHEY J:  Is that for the purpose of the second ground

referred to in the draft notice of appeal,

Mr Crispin?

MR CRISPIN: Yes, Your Honour, it has two aspects of

significance. The first is that, as Your Honours

will see if need be, there is an error in the

transcript which was corrected by agreement before

the Federal Court. The second is that there is an

issue upon which we rely as to the manner in which

the trial was conducted. Essentially, it will be

our submission that what the Federal Court did in

this case was to decide the matter on an issue that

had never been an issue before the trial, but had

rather been common ground, and it was again common

ground before the Federal Court.

TOOHEY J: Well, no doubt that can be developed. Yes, thank

you .

MR CRISPIN: Yes. Could I also indicate to Your Honours

that the outline of submissions is rather more

fulsome than one would normally have because there

account some inconsistencies on the.part of the child, in giving evidence at the trial, but we

is a minor complication in the matter in that

would submit that the nature of those

inconsistencies was not decisive and I do not

propose to take any time on them orally, unless

Your Honours wish me to do so, but we have set them

out in writing so that it is plain that they have

11/6/93

not been ignored and that they can be addressed,

should that be necessary.

BRENNAN J:  Mr Crispin, what is it that identifies this case

as one which commands the grant of special leave?

MR CRISPIN: It is this, Your Honour, that the previous

authorities, of course, make it plain that it is

necessary for an appellant court to make its own

independent appraisal of the evidence and to

determine whether in the light of that appraisal, a

reasonable jury, properly instructed, would have

been entitled to come to the view about the matter

that they did. In this case however, Their Honours

departed from the normal approach in a number of

respects. Essentially what they did was to say,

"Given the complaint said to have been made to the

mother, her response to that complaint was

inadequate. Given that inadequacy, we are not

prepared to be satisfied that the complaint was in

fact made. We therefore discount the mother's

evidence; we therefore discount the child's

evidence on the same point and we therefore

discount the child's evidence generally and hold

that it was not open to a jury to come to that

conclusion."

Now, there was several problems about that.

The first of them was that there had never been any

dispute about that at the trial. The child was not

cross-examined in any manner which disputed the

fact that the complaint had been made. The mother

was not cross-examined to suggest that the

complaint was not received by her and, furthermore,

there was a separate complaint made to the father

which was again unchallenged.

The issue at the trial was simply this: it

was contended by my learned friend that given the

complaints the mother's perceived inadequacy of

response could only be explained in terms of the

And so the mother's approach to the matter was fact that the mother had not believed the child.	relied upon to undermine the child's credibility.
But there had never been the faintest suggestion in
the case that the complaint had not been made.

Again, when the matter was argued before the

Federal Court, the same proposition was advanced by my learned friend. There was no suggestion in the debate that took place as to whether or not a

complaint had been made, and for the first time in

a reserved judgment, in the majority judgment,

because there was a dissenting judgment, one finds

that this has been an issue in Their Honours' minds

which was never an issue at the trial or before

them in debate .

4   11/6/93

DAWSON J:  What is the matter of principle that you raise? I

mean, I should preface that question by pointing

out to you as you undoubtedly know that this is an

application by the Crown and for a long time it has

been held in this Court that you have to show some

exceptional circumstances to justify the grant of

special leave after an acquittal by a Court of

Criminal Appeal, starting with Wilkes' case.

MR CRISPIN:  Indeed. Your Honour we submit that the point

of general public importance arises in relation to

the question of how an appellate court may approach

that independent appraisal and, indeed, what is the

ambit of that independent appraisal. Is an

appellate court to, as it were, stand in the shoes

of the jury and consider the matter on the basis of

the issues that were run at the trial and approach

it in the way that the jury would have been bound

to approach it? Or is the Court of Appeal, in

making an independent appraisal of the evidence,

entitled to stand aloof, as it were, from the

tactics employed at the trial and approach the

matter almost on the basis that a royal

commissioner might approach it?

DAWSON J:  It is obvious, is it not, the Court of Appeal has

to make an independent assessment of the evidence

and in so doing see whether a reasonable jury must

have had a doubt in the circumstances.

MR CRISPIN: Yes, but in this case, Your Honour, that seems

to have been enlarged by Their Honours to go beyond

that -

DAWSON J: They may have gone wrong, but the principle is

not in doubt.

MR CRISPIN: Well, Your Honour, the general nature of the

exercise is not in doubt.	The question is what are
its limits.

TOOHEY J:  It just seems to me that you are running two

arguments together, Mr Crispin. One is the way in

which the Court of Appeal, the Full Court, should

have gone about its task of reviewing the evidence;

and another ground, which maybe is caught up in

that but which seems to stand as an independent

ground, namely that the Full Court, without

invitation from the present respondent, determined

this matter by reference to an argument which it
had not been invited to take into account which, I
take it, is what is meant by the natural justice
argument in the second ground of the draft notice

of appeal.

MR CRISPIN: Yes, essentially that is so, Your Honour,

although there is a little more to it than that.

..

11/6/93

It involves issues, for example, about whether an appellate court is entitled to, for example, hold

that the credibility of a witness is impugned on

the basis of matters not put to her; whether an

appellate court in determining an unsafe and

unsatisfactory ground is entitled to speculate

about matters which were not before the court,

which is what Their Honours did. As Your Honours

will see in the judgment they said things like,

"The dynamics of the relationship between the

mother and the accused were not explored at the

trial, perhaps counsel thought them irrelevant, but

none the less, there is more to the case than meets

the eye, more than is revealed in the evidence, and

therefore we cannot be satisfied". Now, it is

issues of that sort which we submit are matters of

general public importance. How far may an

appellate court go in making its own appraisal.

BRENNAN J: Well, you would need, if you were going to take

that line, to be able to articulate the principle

which you seek to have this Court lay down. It is

not sufficient to say the question involves how far

may a court go. What is the principle which you

contend for which was breached by how far this

court, that is the Full Court of the-Federal Court,

went .

MR CRISPIN: The principle for which I would contend,

Your Honour, is that in entertaining an appeal of

this kind, an appellate court is charged with no

greater a responsibility than to appraise the

evidence in the context of the manner in which the

case was conducted at the trial and determine, in

relation to the particular issues that were raised,
whether or not the verdict was reasonably open to

the jury.

BRENNAN J: That, I would have thought, was a proposition

that would not get court room, if I might say so,

with respect. One can think of cases which were so

poorly conducted on the part of the defence that a

defence manifestly open was never put and thus

there would be a case where the Full Court should

intervene. But if you were to put it on the basis

that the appellate court was not entitled to

consider arguments of fact which had not been

raised before it, which was the point that

Justice Toohey was making, then you have got a different ground altogether. And I .. think you have

articulated yet a third basis, and that is that in

a case of a sexual nature where evidence of recent

complaint is admissible, the conduct of the person

to whom the complaint is made is not in itself a

ground for impugning the credibility of the

complainant.

6   11/6/93

MR CRISPIN: Yes, especially in a sexual case, Your Honour,

especially in the case where the complainant is a

child. It is a melancholy fact of life that in

quite a large percentage of cases where a child is

sexually assaulted, the immediate parental response

will be inadequate. If it were to be accepted, as

Their Honours appeared to have accepted, that in

all such cases that fact alone necessarily means

that the jury must have a reasonable doubt about

the truthfulness of the child, then that would have

quite a significant impact upon - - -

BRENNAN J: What you need to do is, perhaps, not so much to

develop the Chidiac problem, because Their Honours,

as Justice Dawson has pointed out, have applied

Chidiac, but to develop these other two points, your natural justice point and your complainant

point .

MR CRISPIN: Perhaps then, Your Honours, I could return to

the outline of submissions and passing over the

inconsistencies for reasons that I will develop as

I go. Firstly, Your Honour, this was a case where,

as Their Honours acknowledged, the complainant's

account of the incident was not inherently

improbable, that the jury had preferred it to the

appellant's denial, and that the complainant was

apparently an impressive witness.

Mr Justice Davies, who dissented, went beyond

that, and said he saw no indicia whatever of any

unreliability and was left with the impression that

the complainant was an excellent witness. Her

evidence was supported by an earlier complaint made

within hours of the event - first thing the

following morning - and by evidence of distress.

Accordingly, as Mr Justice Davies found, it was a

straightforward and substantial prosecution case

and, indeed, we make the point that it was typical

of the type of evidence normally available to the

prosecution in cases of this kind.

Indeed, to some extent it went beyond that

which would be available in many cases because in	this case there was evidence from the child as to
prior acts from the same accused. There had been
prior complaints and there was evidence of a change
of behaviour, evidenced by a reluctance to return
to the accused's house. We mention that there were
some inconsistencies in the matters. Their Honours
were not troubled by them all, they-acknowledged
and, we would submit, rightly, that many witnesses,
especially small children, may remember vividly a particular incident but be inconsistent in analysis, particularly as to details and so forth.

Their Honours took the view that one would

expect a clear memory of more significant

incidents, even in an eight year old, and on that

.. 11/6/93

basis were troubled by three matters which we have

dealt with in writing and I do not wish to take up

the Court's time with. We make the point that they

are all incapable of themselves of supporting

Their Honours' conclusions and, indeed, when one

reads the judgment as a whole it does not seem they

had that effect because Their Honours acknowledge

that if a profoundly disturbing incident had taken

place the previous evening, it would be easier to

accept those inconsistencies, and we have provided

the reference to these passages, though in this
case they held that because of inadequacies in the

mother's response they were not able to conclude

that such an event had occurred. So that we would

submit that it is plain that in this case the

decisive factor in Their Honours' minds was their
perception as to the mother's response. In

essence, Their Honours concluded - - -

DAWSON J: What they did was, they said they did not believe

the mother, is that right, in effect?

MR CRISPIN: Yes, essentially that is right, Your Honour.

DAWSON J: Were they entitled, on the material before them,

to conclude that she was not a credible witness?

MR CRISPIN:	No, Your Honour, in my submission not.
DAWSON J:	Why not?

MR CRISPIN: Because they concluded that she was not a

credible witness in relation to her evidence that a

complaint had been received by her from the

complainant. That proposition had never been
challenged .

DAWSON J: Could you say that again.

MR CRISPIN:	In essence they held that she was not credible in relation to her evidence that the child had
complained to her. That was simply not an issue at the trial. There was never any question put to her
to that effect in the evidence, there was never any
question put to the child to that effect, and there
was evidence called from the husband, which was
also not challenged, about the fact that the child
had made a similar complaint to him.

So it appeared that Their Honours took the

view that they were entitled to disregard, or to

hold as sufficiently unreliable as not to be

capable of being acted upon, evidence which was
undisputed, corroborated and unchallenged. It was

only on that basis that they then reasoned that if

that evidence could not be accepted from the

mother, then it could not accepted from the child.

11/6/93

DAWSON J: Did they go about that task in an impermissible

way? One may even assume that they were wrong in

corning to the conclusion they did, but that does

not raise any point of principle. Was it open to

them to examine the other evidence and conclude

that it threw doubt on the evidence of the mother

as to complaint?

MR CRISPIN:	I would submit not, Your Honour.
DAWSON J:	Why not?

MR CRISPIN: Essentially, Your Honour, because of the way in

which the trial was conducted. If an appellate

court is to simply disregard the way in which cases

are conducted at trial and treat every proposition

as open to review, no matter what the approach is,

especially as to matters of credit, then it has

profound implications for the way in which trials

must be conducted in the future.

For example, suppose a witness is called and

not cross-examined at all. Must counsel for the light of my learned friend's unwillingness to

cross-examine, I seek leave to re-examine to reopen

the evidence in-chief so that I may explore all

matters conceivably relevant as to credit because,

if I don't, on appeal Their Honours might say, 'Oh

well, we can impugn the credibility of the witness

anyway. The fact that she hasn't been -

DAWSON J: They would have to make an independent assessment

of the evidence.	Is that not what they were doing?
You say they were	doing it wrongly and corning to a
wrong conclusion,	but is that not what they were
doing?

MR CRISPIN:  In a sense it is what they were doing,

Your Honour. They were looking at a delay in

reporting the matter, they were looking at the fact

that the child had been taken back the next
morning.	An explanation for those matters had been

it as irrelevant, but it went no further

given and then left unexplored because regarded

than	that .
Now, what they then did was to say, well,

although the explanation was not pursued, and we do
not understand the dynamics of the·relationship
between these people because they were not explored

at the trial, none the less, the fact that they

were not explored leaves us in a position where we

think it is all very odd and therefore these people

are not to be believed and, in my respectful

submission, that is not a permissible way to go

• 9 11/6/93

•

about it. It was not merely a matter of being

wrong; it was rather a matter of extending the

appraisal into an area that would not have been

open at trial and would not have been fairly open

to Their Honours on appeal. And, it was compounded

by the fact that there was no opportunity given to

the Crown to deal with the matter nor, for that

matter, was there any opportunity given to

Mr Brewster to deal with the matter; it simply

arrived for the first time in a reserve judgment.

TOOHEY J:  It seems to me that the failure by the mother to

act upon the complaint, Mr Crispin, can operate in

one of two ways: it may go to the proposition that

no complaint was made, but as to that I think you

say that was not challenged.

MR CRISPIN: Yes.

TOOHEY J:  It may also go to the mother's belief in the

credibility of the complaint. In other words, the

complaint was made, but the mother took no notice

of it because she did not believe it. It rather

seems that the majority in the Full Court
approached the matter by reference to the first

explanation, rather than the second; is that right?

MR CRISPIN: Yes, that is so, Your Honour.

TOOHEY J:  In other words, they regarded the failure by the

mother to act upon the complaint, the existence of

the complaint not having been challenged, as going

to whether or not a complaint had, in fact, been

made •

MR CRISPIN: Yes. In fact, Your Honour, it went even

slightly further than t_hat, because at the trial

the evidence of the complaint was not led by the

prosecution in-chief; it was rather elicited by the

defence and relied upon to support the second of

those propositions. So that it was, in fact,

implicitly accepted in the approach the defence had

made; it was, in fact, common ground by the time

the matter went to the jury that the complaint had

been made. The dispute between the parties lay in

the implications to be drawn from that, having

regard to the mother's behaviour, and even

there -

BRENNAN J:  Am I right in thinking that your .. production of

the transcript of argument this morning is in order
to demonstrate that this question was not raised

for consideration before the Full Court?

MR CRISPIN: Yes, and also at the trial, Your Honour. I can

do that, I think, fairly quickly if it would be

convenient. If Your Honours go to page 77 of the

• 10 11/6/93

argument, Your Honours will see the last paragraph

on that page where my learned friend is addressing

the Court and it commences with the words:

Well, it is difficult. We said at the trial,

it is obvious from the charge of his Honour

that one thing is manifestly clear is that at

least in relation to the earlier sexual

allegations, the mother did not believe the

child. That must be the case, we said,

because otherwise no mother, no reasonable

mother, certainly not one who is education,

indeed has qualifications or has attended a

course in child sexual abuse, would send the

child back to be minded unless she

disbelieved, totally disbelieved the child,

and that even after the incident in the

house -

and that is the complaint to which we refer -

having sent her back that morning and having

continued some contact, admitted contact, to

the extent that it is disputed, contact with
the family, she plainly was, we said, acting

out of caution.

Now, that is the way in which it was conducted at

the trial and that is the way in which the issue

was approached before the Federal Court. I might

say that the evidence about the child being sent

back in the morning was that she was minded by the
accused's wife until school started at 9 am and

that during the course of that day the mother made alternate arrangements and attended at the home of

the accused that night in order to inform them that

the child would not be returning.

DAWSON J:  I notice Mr Justice Wilcox says in the preceding

passage that they were:

told by the High Court in Chidiac that we

should not interfere on the basis of

credibility.

Of course, that is not accurate, is it?

MR CRISPIN:  No, it is not, Your Honour.

DAWSON J: They should not interfere on the-basis of

credibility, where credibility depends upon the

observation of the witness but, of course, these

matters go beyond observation.

MR CRISPIN: They do, Your Honour, but they do in a somewhat

curious way because the proposition is, or appears

to be that because of the perceived inadequacy of

•• 11 11/6/93

the mother's response to receiving a complaint the

Court would be justified in saying that a

reasonable jury properly instructed would not only

not have been entitled to believe the mother, but

not be entitled to believe the child. Now that, we

would submit, is a quite remarkable proposition.

Suppose it had been the case that at the end

of the Crown case the prosecution had said to the
jury, "Look, ignore the mother completely. Accept

for the moment that she has behaved totally

inadequately, that she has lied, she has been a

party to sexual molestation, accept whatever you

like about the mother, but we have a child here who

has put forward, has given evidence on oath, you
have had the opportunity to make a complete

evaluation of her creditability, you have done so."

We ask in those circumstances why would a jury not

be entitled to believe the child.

DAWSON J:  No doubt you put these arguments to the Federal

Court?

MR CRISPIN:	No, Your Honour, with respect, because the opportunity was not given.
DAWSON J:	Mr Brewster seems to have raised the question

there .

MR CRISPIN:  Mr Brewster, in effect, invited the court to

exercise some care about the way the child's

evidence should be treated on the basis that the

mother did not believe her and to say in essence,

"Well, look, the jury believed her but her own

mother did not" and therefore you would be cautious

about about. But Their Honours, of course, went

further than that and significantly so.

DAWSON J: For the moment, all I am suggesting to you is the

matter of the mother's behavior was raised before

the Federal Court.

MR CRISPIN: Indeed, but what was not raised was the

proposition that the mother's behaviour provided
not merely an alternative opinion, an alternative

assessment of the child's credibility, but the

mother's behaviour provided objective evidence

which could be used to provide a contradiction - an

inference could be drawn from that which

contradicted what the child said, objectively.

Now, that was never put.	No opportunity to deal
with that was ever offered.	It was rather a sort

of derivative infection of credibility, on the

basis that if the mother had not acted that way,

therefore the complaint could not have been made,

therefore the child could not have been telling the

• 12 11/6/93

truth about it. Now, that was a very significant

matter and it was one that was never put.

BRENNAN J: What would you have said if Their Honours'

judgment had said, "Having regard to the

extraordinary conduct of the mother, we think that

it is explicable only on the basis that there could

be no substance in the child's allegations. No

mother would act this way if there were any truth

in that and there is nothing to show that the

mother did not have the interests of the child at
heart. Therefore, we conclude that on the whole of

the evidence it was unsafe and unsatisfactory"?

MR CRISPIN:  Your Honour, had the case been approached on

that basis - - -

BRENNAN J: Well, it was approached on that basis by the

appellant at the Full Court, was it not?

MR CRISPIN: Yes, it was. In relation to that issue,

Your Honour, we would have said this: that it

would only be possible to suggest that the jury's

verdict should be impugned if two things could

occur. The first would be that the court would

have to conclude that the mother's assessment of a

complaint made by the child was so cogent as to

deny the jury the opportunity of being satisfied

beyond reasonable doubt on the basis of their own

assessment of the child's credibility in relation

to the sworn evidence which she gave at the trial.

Secondly, that that could not have been done in

this case because of the explanation which the

mother	gave .
The explanation which the mother gave was, "Look, this was a very difficult time for me.	My
marriage was breaking down.	I had known the
accused for many years.	He had a very close and

supportive relationship with me". She said in her

evidence that she regarded him as closer than her

own father. Now, in those circumstances the

complaint is made at breakfast time. By the close

of the day, the child is taken away and another

child minding centre is found.

Now, Their Honours found that behaviour on the

part of the mother extraordinary.	We would have
asked rhetorically, "Why?"	No doubt, if one views

these things through the lens of coid hard logic,

the sensible thing would have been to have taken

the child away in the first instance, but one knows

that people are emotional beings, they are not

purely cold computers. When there is a very close

and a very trusting relationship like that one may

go through a time when one believes the allegation

.. 13 11/6/93

that is made but at the same time there is an

emotional reaction to it.

BRENNAN J:  I am endeavouring to get to a question of

principle here in relation to the assessment of the

evidence of a child in a sexual case. Would it

have been permissible to have asked the mother this

question: "Did you believe what the child said to

you when she made the complaint?", and the mother's

reply: "No, I did not." Would that evidence have

been admissible and if not, why not?

MR CRISPIN:  We submit it would not have been admissible,

Your Honour, because it would simply have been

asking somebody else their opinion as to the

credibility of a particular witness.

BRENNAN J: Is that so? In the case of the admissibility of

evidence of a complaint by a child to its mother, a

case like this, the purpose of admitting the
complaint is in order to show consistency between

the child's testimony and her conduct. If it is a question of putting a complexion on the conduct of the child, is it material to discover what, to use Their Honours' words, is "the dynamics of the

family relationship"?

MR CRISPIN:  The classic answer to that, Your Honour, I

would submit, is no, it is not; that evidence of

complaint is admitted on the basis that it is

·consistent, as Your Honour has fairly put, with

what is said to the jury. In other words, it

demonstrates that the child, who is the witness in

the case, has not merely made these allegations now

but has acted consistently in relation to them at

an earlier time. To go beyond that and ask the

mother what she thought of the complaint, or some
other person what she thought of the complaint, has

never been regarded as part of the admissible law

of

evidence •

says that when the complaint is made to a mother, There is no authority of which I am aware that

rather than a taxi driver or a nurse in a hospital
or someone else, that the matter is to be treated
materially differently. It would certainly
revolutionize the law of evidence to have Crown

prosecutors asking taxi drivers whether they

thought the complainant was telling the truth.

DAWSON J: But the complaint is a little different, is it

not, because the complaint is not evidence of the

matters complained of?

MR CRISPIN: That is so, Your Honour.

..

14   11/6/93

DAWSON J:  So the reaction of a person to whom the complaint

is made is surely of some relevance.

MR CRISPIN: It may be of some relevance, Your Honour, but

of course there may be all sorts of things which

are of some relevance which are none the less not

admissible. We would submit it offends the

cardinal rule that one may not call evidence as to

whether a witness is to be believed; in the same

way that one may not call a psychiatrist, for

example, to give evidence as to whether a person

charged with perjury genuinely believed what he

said .

DAWSON J: But that is what I am pointing out, you see,

because the complaint is not evidence of the

matters complained of. To ask a witness did she

believe it really is not going to the matters of

the complaint at all; it is going to something

different. It is not going to the credibility of

the witness because no one is questioning in those

circumstances that the complaint was made.

TOOHEY J:  On that basis there should presumably be no

cross-examination of the mother as to any of her

conduct after the complaint was made.

MR CRISPIN: That may well be so, Your Honour, yes.

BRENNAN J: That follows inevitably, does it not?

MR CRISPIN: Yes, it does, and I would submit that is the

case, save to the extent - - -

BRENNAN J: That means that the argument that Mr Brewster

was purporting to put was neither admissible on the

evidence nor open to the Court of Criminal Appeal

to consider.

MR CRISPIN: Yes, I would make that submission, Your Honour.

BRENNAN J: Now, I can understand the submission. It just

seems to - - -

MR CRISPIN: It is not necessary for me to go that far.

BRENNAN J:  - - - lack a certain reality about it.

MR CRISPIN: Your Honour, there may be circumstances in

which the conduct was relevant, because the

behaviour of the child would be inexplicably tied

up with it.

TOOHEY J: Well, may be, and of course, if we are concerned

with the mother's visits to the present respondent

in the company of the child, you can see readily

that that could be relevant as throwing light upon

15   11/6/93

the child's own reaction to the situation in which

she found herself, but if you divorce that and just

look at the conduct of the mother alone, on your

proposition, it is difficult to see how any

evidence touching that could be admissive.

MR CRISPIN: In my submission, that is correct. Suppose it

were a reaction that the Crown sought to lead;

suppose it were the mother had flown into a rage

and made various statements about the accused,

"This terrible person is obviously guilty; my

daughter would never lie." Plainly that could

never be put before a jury.

DAWSON J:  You have to go as far as that because otherwise

you cannot discern any point of principle. You are

merely saying, "Well,look, in this particular case,

the court came to a wrong conclusion" and this

Court may agree with that, but that would not be

enough to justify, in an application by the Crown

involving, in some people's view, double-jeopardy,

special leave. This is not a Court of Criminal

Appeal and where the Crown applies, it has been a

long-held principle, some point of importance has

to arise, not just some disagreement on the facts

of the particular case. In other words, we could

go through the same exercise as the Court of

Criminal Appeal, that the Federal Court went

through, and come to a different conclusion, but

that, of itself, is not enough to justify special

leave.

MR CRISPIN:  No, I accept that, Your Honour.

TOOHEY J: But I thought your argument was that we should

not go through the same exercise as the Court of

Appeal went through.

MR CRISPIN:  No, I am not asking the Court to do that,

Your Honour.

TOOHEY J: No, perhaps I put that badly; I thought your

argument was that it would be wrong to go through

the same exercise that the Full Court went through

because the Full Court took into account matters

which it had not been asked to take into account.

MR CRISPIN: Yes. Perhaps if I could paraphrase that

slightly. I would submit it would be unnecessary,

or wrong, to go through the exercis.e that the

Federal Court went through in argument, but

manifestly wrong to come to a conclusion which, of

course, had not been ventilated in that argument.

That is why I say it may not be necessary to

really - - -

16   11/6/93

DAWSON J:  I thought where I entered into the fray you were

saying that you could only establish a point of

principle if you could establish the proposition

that the mother ought not to have been

cross-examined about her reaction to the complaint.

Now, if that proposition cannot be sustained, it

merely becomes a question of fact.

MR CRISPIN: Well, I would submit that that is not quite

right, Your Honour, with respect. One does have in

this case, apart from many other points, a similar

point although in a rather smaller compass to the

one that arose in the case of Reg v Lewis where a

new ground of appeal was raised at the last moment

before the Norther Territory Court of Appeal and

the Crown simply was not heard. Now in that case,

of course, special leave ultimately was not

granted, but the Court held that it normally would

have been in those circumstances. There were

difficulties about the fact that the evidence in

that case was perceived as being inadequate to

justify the conviction in any event and, as the

Court held, it was a discretionary remedy. But

there is that point, there is the natural justice

point •

We submit we do not have to go so far as to

say that the mother should not have been able to be

cross-examined. Whether she should have been
cross-examined or not she, in fact, was - that was

done without objection - I do not know that I am

entitled to complain about that at this stage, but

what we do say is that that was an argument which

was incapable, we would submit, of being sustained. sustained by the Federal Court.

DAWSON J: That is the point. It was not sustained because

it was not a good argument on the facts. But that

does not raise a point of principle for special

leave, you see.

MR CRISPIN:	No, Your Honour, but what we submit does is that having, albeit tacitly, acknowledged that it
was not a good argument, Their Honours then step
from that into some other proposition which, we
would submit, is logically indefensible and, more
importantly, one which was discovered for the first
time in the reserve judgment. Now that, we submit,
is an important matter and we submit that not only is that an important matter but that the manner in
which that was reached involves quite serious implications for future prosecutions generally and future prosecutions of sexual cases in particular.
BRENNAN J:	The notice of appeal does not raise that point

as such because it deals with the natural justice

17   11/6/93

bit and there is the 2.2 ground deals with the
natural justice point but you were not heard on it,

but it does not raise the question of principle

which I understand you now wish to raise and that

is that the conduct of the mother was not evidence

from which it was open to the court to conclude

that the complaint was not made. Is that right?

MR CRISPIN: Your Honour, excuse me just a moment. Well,

Your Honour, ground 2.1 is in very general terms as

is 2.2.

BRENNAN J: Well, 2.1 is so general that it would not

command the grant of special leave, Mr Crispin.

MR CRISPIN:  The point is raised in the affidavit,

Your Honour, it is not a matter as to which there

has been no notice.

I was just making the point, Your Honour, that

it is certainly not a matter as to which my learned

friend has been caught by surprise. It has been

canvassed in at least two or three places in the

course of the affidavit filed in support of the

application.

BRENNAN J:  Yes, that may be so but if you are to be granted

special leave the notice of appeal has to be in a

satisfactory form.

MR CRISPIN: Yes.

BRENNAN J:  I think we have seized of the argument that you

wish to put. Whether it is reproduced in the

grounds of the notice of appeal is another matter

but it will be necessary at all events to hear

Mr Brewster.

MR CRISPIN: Yes.

BRENNAN J:  If you have got nothing further to add you can

turn you attention to drafting that while

Mr Brewster is addressing.

MR CRISPIN:  I will certainly do that, Your Honour.

BRENNAN J: Yes, Mr Brewster.

MR BREWSTER:  Could I hand up to the Court some authorities to which I may refer.

I would start if I may just by very briefly

drawing to Your Honours' attention the test which

His Honour Justice Dawson has mentioned in relation

to special leave applications by the Crown and the

two authorities to which I refer are Reg v Glennon,
173 CLR 592, the most recent reported case in this

18   11/6/93

matter, and	Reg v Benz and Another, 168 CLR 110.
The test in	Glennon, Their Honours the Chief
Justice and	Justice Toohey at 595, the last
paragraph,	expressed it thus:

When the Crown seeks special leave to

appeal in criminal matters, its position is

different from that of a convicted person

seeking leave. The Court is naturally

reluctant to grant an application by the Crown

and will require a very strong case of public

importance concerning the administration of

justice to be made out.

With that judgment, Your Honour

Justice Brennan agreed and Your Honour

Justice Dawson agreed with Justice Brennan.

TOOHEY J:  The sting really is in the lines that follow, I

suppose, Mr Brewster:

In deciding whether such a case has been made

out, it is important to bear in mind that this

Court has a responsibility to declare the

common law for Australia and cannot allow an

error of principle on the part of a court of

criminal appeal to remain uncorrected when

that error may be perpetuated and become the

source of further error.

MR BREWSTER:  Yes, a point of principle and of law, not a

misapprehension of the facts or the utilization of

the facts in an inappropriate manner, unless that

devolves into a question of law. Just further ori

this principle, I would submit that when looking at

Crown appeals there are two classes of Crown

appeals: there are those which are brought against

a decision of the Court of Criminal Appeal to order

a new trial, and those which are brought against an

order of the Court of Criminal Appeal directing a

verdict of acquittal.

That distinction was recognized by His Honour

Justice Deane in Benz's case, at 119, after referring to the judgment of the Court in R v Lee

at the beginning of His Honour's judgment, he said

that:

That statement -

made in Lee -

was made in the context of an application by

the Crown for special leave to appeal from a
decision of a Court of Criminal Appeal

quashing convictions and ordering a new trial.

The position is even clearer in a case where

..

19   11/6/93

the application for special leave to appeal is

from orders of a Court of Criminal Appeal that

a conviction be quashed and a judgment and

verdict of acquittal be entered.

And without reading it, I refer Your Honours to

what follows in that paragraph, that this is not

empty rhetoric but an important principle to be

borne in mind. With that caveat, Your Honours,

this is the -

DAWSON J: And one can see the sort of case in which special

leave is appropriate on the application of the

Crown when one looks to cases like Darby which

involved inconsistency of authority; O'Connor's

case, which involved special considerations on the

basis of intoxication; and they will be

circumstances which transcend the particulars of

the instant case.

MR BREWSTER: Yes, exceptional cases.

DAWSON J: Very exceptional cases.

MR BREWSTER: Very exceptional cases of particularly great

public importance. The decision in this case,

first of all, Your Honours, was not approached in

any cavalier fashion, the decision to allow the
appeal on the grounds that it was unsafe and

unsatisfactory, and at page 128 of the appeal book
the majority says, in relation to the ground of

unsafe and unsatisfactory, that:

This ground must be approached with caution.

And then referred extensively to - - -

BRENNAN J: There is no question about that. It seems to me

that there are two problems that are raised by

Mr Crispin. One relates to the natural justice

point, and the other is the relationship of the

view that the mother's evidence was unreliable to

the reliability of the child's evidence.

MR BREWSTER: Could I go back to those in reverse order

then, Your Honour?

BRENNAN J:	Of course.
MR BREWSTER:	In my submission, it cannot be-· said as a

matter of principle that in no case can the

reaction of a third party to an alleged event be

irrelevant to the determination of whether that

alleged event occurred. For example, if one had a

complainant saying, "My next door neighbour beat me

severely, caused me grievous bodily harm, I was in

hospital for weeks and my mother saw it happen",

20   11/6/93

and the mother gives corroborative evidence, then

it is shown that the mother went out to dinner that

evening with the alleged assailant, would that not

be relevant? That is to take an extreme example.

So the principle that Your Honour has endorsed that

under no circumstances can the reaction of a third

party to an event be relevant to whether that event

occurred, in my respectful submission, is not

tenable .

One might say in this particular case the

reaction of the mother was irrelevant - I do not
endorse that proposition in any way - but that is a

facts issue.

BRENNAN J: That is not a good example. The case you give

there is one where the mother is a witness saying

"I observed the altercation", and her conduct,

which is inconsistent with her testimony. The

problem that you have got here is the testimony of

the mother, relevant to the credibility of the

other witness. So that to make your example

relevant, you would have to say, "Here is the

allegation that I was beaten up by my neighbour",

and then the production of evidence to show that

the complainant's mother went out to dinner with

the neighbour that evening when the mother was not

called to give evidence. You have got to relate

the conduct to the credibility of another witness.

MR BREWSTER:  One has got to look at the overall picture.

One, in my submission, cannot divide a case into artificial barriers and just look in isolation at

the evidence of the child and then in isolation at the evidence and reactions of the mother; it is an

overall mosaic, in my submission. This particular

case is quite an extreme case, just to relate it to

the facts which might bring the principle of law

into focus. The mother was a para-professional

woman, working in a hospital, who had some training

in matters of child sexual abuse. Her child, on

her evidence, explicitly complained constantly,

over a long period of time, of sexual abuse by the
respondent.	The child, she says, exhibited classic

behaviour of a child sexually abused, yet she

continued over a long period of time to send the

child for child minding at the respondent's house,

where these assaults were alleged to be occurring.

Her reason for doing that is that it would not have

been easy to find alternate baby-s±tting

arrangements.

In my submission, Your Honours, that is an

extraordinary state of affairs which a court would

be entitled to regard as relevant. We are dealing

with an extreme situation. There is no principle

of law involved, in my submission, that under no

..

21   11/6/93

circumstances can the reactions of a mother in

these circumstances be evidence of the truth of the

assertions. And we are not dealing with the

reactions of a taxi driver; we are dealing with the

reactions of the child's mother.

On the natural justice point, Your Honours,

the issue was agitated at length in the Federal

Court. It commences at page 68, the issue of the conduct of the mother, and goes through to page 71.

And at page 68 at line 40 - this is exhibit C to
which I am referring, Your Honour - His Honour

Mr Justice Wilcox comments in relation to the

evidence concerning the reactions of the mother:

I suppose the relevance of all this is not to criticize the mother but to cause one to

wonder whether or not which evidence can be

relied upon.

True it is that is stated in fairly general terms,

but it clearly indicates that His Honour was taking

a wider view of the relevance of the mother's

evidence than I did on appeal or in the trial,

invited a comment from the Crown. And the issue of

the general significance of the conduct of the

mother was ventilated at length.

TOOHEY J: But the natural justice point arises, as I

understand it, Mr Brewster, in a fairly particular

way. It is that the fact of the complaint by the

child not having been challenged, either in

cross-examination of the child or cross-examination of the mother, the Court of Appeal, the Full Court,

erred in then using the mother's conduct,

post-complaint, to reject the evidence that a

complaint had been made. That seems to be the way

in which it is put at the foot of 143 and across to

the top of 144.

MR BREWSTER: Imagine, as one of Your Honours raised the

point in argument with my learned friend, that

the - maybe we are not imagining it, maybe it

happened - that the trial was conducted

incompetently by inexperienced or incompetent

counsel. It raised all the relevant facts but then

had not done the Browne v Dunn exercise, if I may

call it that, in having said, "I put to you, I put

to you" - perhaps that is not even incompetence.

Would the Court of Criminal Appeal be unable

to say, "It was not challenged, but all	the facts
are there on which a doubt can arise"?	Do they
have to dismiss anything?

DAWSON J: Well, in any event, a jury trial is a very

different thing to an argument on appeal, and there

.. 22 11/6/93

are reasons for not taking certain courses before a

court . jury which simply do not apply in an appellate

MR BREWSTER: There are. Secondly, Your Honour, is this,

that all the facts were raised at the trial. The

submissions that may or may not have been made to

the jury are another matter, but all the facts were

there, raised by the defence. The defence raised

the conduct of the mother as a significant issue
and, as has been pointed out, if the first

proposition of law advanced is the case, the mother

could not have been cross-examined on that. The

defence raised it as a significant issue, raised

all facts necessary, we would have hoped to have

raised a reasonabl~ doubt of some sort before a

jury or before a Court of Criminal Appeal;

approached us in one particular way in submissions,

that is, that the mother must not have believed the

child but, I submit, that does not preclude a Court

of Criminal Appeal from deciding it on another

basis, where all the facts have been raised that

can lead to that inference, simply because no

address was made to the jury concerning that. The

jury can obviously take into account matters that

are not the subject to addresses and., so, in my

submission, can a Court of Criminal Appeal.

If natural justice was denied, it was on a

particularly narrow issue. The facts were

ventilated before the Federal Court, all the

relevant facts. Through the words that I quoted by

His Honour Mr Justice Wilcox, in general terms the

problem casts doubt on what evidence we can accept,
but the very specific point that it creates a doubt

as to whether these complaints were made was not
raised by the Federal Court.

In my submission, it is not the law, it cannot be the law and it should not be the law, if appeals are to be not encouraged unduly, that a judge can

either only follow the line taken in submissions

before him or, if he proposes to take a particular

view of the evidence, he must specifically raise

exactly that view to counsel and invite

submissions.

There would be, in my submission, an explosion

of appeals if every time a judge takes a view of a
witness that has not been argued before him in

specific terms, although he may have foreshadowed

in general terms that there should be a successful

appeal. That, in my submission, cannot be the law.

TOOHEY J:  I think that is putting it on a fairly technical

basis. It is not so much a matter of whether

particular questions were directed in

11/6/93

• 23

cross-examination but that the trial proceeded, and

it would seem that the appeal proceeded, on the

basis that there was no challenge to the fact that

a complaint had been made.

There was, of course, challenge to the fact

that the offences had been committed, but then the

Full Court seems to have converted that into a

proposition that the conduct of the mother throws

the evidence of the child regarding the complaint,

and indeed the evidence of the mother regarding the
complaint, into doubt to the point where the Full

Court rejects that evidence.

MR BREWSTER:  Your Honour is sort of merging the first point

raised by His Honour Justice Brennan and the

second, the natural justice point. It is not a challenge, Your Honour. It is in some ways not

incumbent on a defence to challenge these sorts of

matters because there can be no instructions. The

defence can have no instructions on whether this

child complained or whether this child did not

complain. The defence instruction is that no

indecent assault occurred. The accused cannot know

what the child said to her mother.

So in many ways, in my submission, it would be

improper to say to the child, "I put it to you that

you did not complain to your mother", because one

is putting something that is not on instructions.

So the fact that it is unchallenged, in my

submission, means nothing. All the facts are

raised by which a jury or a Court of Criminal

Appeal can draw inferences. The fact that one has

not gone the last step and gone beyond one's

instructions and said, "I put it to you that it

wasn't made", in my s~bmission counts for nothing.

TOOHEY J:  I was trying to avoid that approach in suggesting

to you that it was not just a matter of a technique

of cross-examination, but rather that the case had

proceeded on the basis, and more importantly, that

the argument to the Full Court had proceeded on the

basis that the fact of the complaint was not in

issue, yet the Full Court relied upon the conduct of the mother to, in effect, destroy any evidence

that a complaint had been made.

MR BREWSTER:  To say that the overall picture is one that

disturbed them, and made them feel that the verdict

was unsatisfactory, true, one aspect of that was to

query whether, indeed, the complaints were made or

were made in the terms that were alleged.

DAWSON J:	Was there a corroboration here?
MR BREWSTER:	Of the complaint?

11/6/93

-

DAWSON J:	No, not of the complaint.
MR BREWSTER:	No, there was no corroboration, Your Honour,

at all. The trial judge correctly instructed the

jury accordingly and instructed them that it would

be dangerous to convict. The Federal Court's

decision has to be seen against the matrix of the

fact that we have a verdict which relies on

uncorroborated evidence of a child where it is

dangerous to convict and where there are a number

of inconsistencies in the child's evidence, and

they are referred to specifically by the Federal

Court as being a factor in their decision.

Then, along with those inconsistencies, we

have this puzzling issue, inexplicable issue, of

the mother's reactions, and it is the whole matrix

that is what counts as far as the Federal Court is

concerned. I think it is at page 135, I have a

note as to where the Federal Court summarized why

they allowed the appeal. Page 131, at the first

full paragraph:

we have reached the conclusion that the

verdict is unsafe and unsatisfactory. There

are important inconsistencies in the
complainant's evidence and several puzzling

aspects of the surrounding circumstances.

It is the "puzzling aspects" that this attack

today is made on although that does not, by any

means, form the total picture of why the appeal was
allowed. The Federal Court chose as one of those

puzzling aspects the query, could the complaint

have been made. That is the one they picked on.

In my submission, so far as the natural justice aspect is concerned, that has been

sufficiently flagged by His Honour Justice Wilcox saying, "Well, it leaves one to wonder whether or

not which evidence can be relied on".

BRENNAN J:  Mr Brewster, it seems to me that there may be

two questions which you need to address, which can

be at least attired with the appearance of

questions of principle. The first is whether the

conduct of a mother to a child's complaint of a

sexual offence is admissible to impeach the credit

of the child. The second is whether a Court of

Criminal Appeal may conclude that a conviction is

unsafe and unsatisfactory by a process of reasoning that involves the discounting of evidence of a fact

that is common ground without giving the parties an

opportunity to deal with that fact. The fact, of

course, in the second case is whether the complaint

was made .

25   11/6/93

MR BREWSTER: 

I have addressed Your Honours on the first of

those, I am not sure that there is more I can say
without repeating myself and I will not do that.

BRENNAN J: Yes.

MR BREWSTER:  In relation to the second, again I say that

the common ground, it has been described as common

ground that these complaints were made, to the

extent that there was no specific challenge to

them, it was never said to the complainant, "I put
it to you there was no complaints", never said to

the mother, "I put it to you there was no

complaints". That is true but, in my submission,

one does not have to go that far. The defence only

has to raise all the relevant facts and then say

well this looks inexplicable but it is not

incumbent on the defence to provide - - -

DAWSON J:  It is a matter of whether a complaint was made or

whether a genuine complaint was made.

MR BREWSTER:	We say there is no genuine complaint.
DAWSON J:	Yes .

MR BREWSTER: It is true.

DAWSON J:  It is not a question of credit of the child

because you are not concerned with the truth of

what was said, because the complaint is not
evidence of that, it is just a question whether a

genuine complaint was made, the fact.

MR BREWSTER:	We say whether the complaint is genuine one must look at all the surrounding circumstances,
including the reaction of the child's mother.

DAWSON J: That is a complaint which is consistent with the

other evidence and of course to be so it must be

genuine.

MR BREWSTER:  Yes. Could I return just very briefly to the

challenge issue, if I can call it that. I refer

Your Honours briefly to a case which I do not have

copies to hand to you but it is a very short
passage of Stafford v Director of Public

Prosecutions, (1974) AC 878, I quote from the speech of Lord Kilbrandon at page 913 where he

says:

First, it need hardly be said that the

defence is under no obligation to produce a

plausible theory which will account for all

the aspects of a perplexing series of

incidents.

,,.

26   11/6/93

The defence has no need to explain the perplexing

series of incidents. It need, in my submission,

merely raise all the facts which can lead a number

of inferences to be drawn including, we would

suggest, doubt as to whether the complaint was ever

made, and leave it at that.

Finally, going back to the natural justice point, let me assume, contrary to my submissions,

that there was a denial of natural justice,

nevertheless in this case I would submit the Court should not intervene. I would rely on the case of

Lewis, 164 CLR 12, which I have handed to

Your Honours. That was an extreme case. It was a

case of sexual assault in the Northern Territory

where the appellant filed a notice of appeal which

did not include a ground that the verdict was

unsafe and unsatisfactory.

It came before the Court of Criminal Appeal on

and when it handed down its decision, the Crown came along expecting that the court would either grant or refuse leave and if it granted leave, the matters raised in the notice of appeal

the basis of an application for leave to appeal. leave

would be fully ventilated. Instead, the court

first gave the appellant leave to amend his notice

of appeal; secondly, without asking whether he

wished to avail himself of that opportunity,

amended it for him; thirdly, allowed the appeal on

the basis that the verdict was unsafe and

unsatisfactory.

DAWSON J:  He was in custody at the time, was he?

MR BREWSTER:  No, he was not. I will come to that. They

gave him leave to amend his notice of appeal to
include a ground of unsafe and unsatisfactory, then
they allowed the appeal. The basis of this,

although it does not appear precisely in the

report, was that there was forensic evidence about

bite marks which had never been agitated before the

Court of Appeal at all. The Court of Appeal said

that that was unsatisfactory, unsafe evidence and

allowed the appeal. The Crown had absolutely no

opportunity to - they were ambushed, completely and

utterly ambushed .

BRENNAN J:  The problem there was, amongst other things, one

of delay, was it not?

MR BREWSTER:  Your Honours, that came before this Court in

1988 and the respondent had been charged in 1985.

Some three years had elapsed since the charge and

the disposition of this application. In Lewis's

case the respondent had been imprisoned and had

..

27   11/6/93

served a sentence of imprisonment, had been

released upon the Court of Criminal Appeal quashing

a conviction and was at liberty when this Court

considered the application.

BRENNAN J:  He had served 14 months in custody and been at liberty for 10 months.

MR BREWSTER: This respondent - we cannot go that far - but

he did serve four and a half months in custody.

DAWSON J:	Who are we talking about now?
MR BREWSTER:	The respondent to this appeal.

DAWSON J: In this case?

MR BREWSTER:	Yes, in this case.
DAWSON J:	And has been released?

MR BREWSTER:  He was imprisoned on 1 December following the sentence of His Honour Chief Justice Miles. He was

released following - the Federal Court handed down
its decision on 15 April and he was subsequently

released - I cannot tell Your Honours the date but

I believe it was promptly - and he is at present at

liberty. He has served half of his non-parole term

which was nine months.

BRENNAN J:	What was the sentence imposed?
MR BREWSTER:	The non-parole period was nine months, I think the sentence was two and a half years.
BRENNAN J:	And how much of that did he serve?
MR BREWSTER:	He served four and a half months, which is

about half the non-parole period.

TOOHEY J:  Do remissions operate on the non-parole period?

MR BREWSTER:  No. The case is similar to Lewis, but if

Lewis could not attract a grant of special leave on

the natural justice point, then this case certainly

cannot because Lewis was far more extreme. This is

a very narrow point. The issue of the mother's

conduct was ventilated, and ventilated by the Full

Court, as very significant. The precise point on

which part of their decision was reached was not

specifically, precisely ventilated, although it was

in general terms. If Lewis could not attract

special leave, Your Honour, this case certainly

cannot. They are my submissions.

BRENNAN J:  Mr Crispin.

,Ii

28   11/6/93

MR CRISPIN:  Your Honour, we say in reply, simply that

Lewis's case was a different case, not merely for the reasons advanced by my learned friend, but

because on any view of the evidence in that case it

was a matter where it would have been very

difficult to sustain a conviction, and the

criticism, as I understand it, of Their Honours'

decision was that they reached the decision in the

wrong way, but it was a very dubious verdict in the

first place.

Whereas in this case, the consequence of not

allowi~g the Crown to be heard in relation to the

matter is that, with very great respect to

Their Honours, they have come out with a decision

that, at face value, seems indefensible in that it

disregards the sworn evidence of three people in

circumstances where, following the complaint and

during the course of the same day, the mother has

made arrangements to take the child away and

provide alternative child minding. Now, I suppose

it is conceivable that she did that for some quirk

that was never explored in the evidence - - -

DAWSON J: But, again, we are getting into the facts of the

case.

MR CRISPIN:  We are, Your Honour, but I simply point out it

is not the same sort of case as in Lewis.

Your Honours, the - - -

BRENNAN J: Well, it is certainly not as grievous a failure

to accord natural justice as in Lewis.

MR CRISPIN: In a sense it is, Your Honour, with respect.

BRENNAN J:	Oh, in a sense, but I mean, if there is an absence of natural justice here, it is in relation
to a fact which is an intermediate step in
Their Honours' reasoning.
MR CRISPIN:	Yes .
BRENNAN J: There is the conduct of the mother, there is the

credibility of the child in relation to the

principal allegation, and that can be impugned in

one of two ways: that the conduct of the mother

reveals either that the child's complaint was not

to be taken seriously in her view, or that the

complaint was not made. The defence put the

submission on the first basis, the Court of

Criminal Appeal found the second. Well, I mean,

that is your natural justice point.

MR CRISPIN: Yes, that is so, Your Honour.

BRENNAN J: It is not as serious as Lewis's case.

• 11/6/93

• 29

MR CRISPIN:  No, in that sense, Your Honour, we would have

to concede that.

BRENNAN J:	You have got, it seems to me, to pin your flag to the question of the admissibility of the
evidence of the mother's conduct.

MR CRISPIN: Yes. Well, Your Honour, the further factor is

that this is not a case where we would be

submitting that it would be necessary to, as in

Lewis, to go back and re-examine the whole of the
evidence in a detailed fashion before a Court of

Appeal. This is a case where the approach that

Their Honours have taken is in fairly narrow

compass and we would submit that it could be

decided here.

DAWSON J:	No objection was taken to the cross-examination of the mother on the basis that her behaviour was
unusual?

MR CRISPIN:  I believe that is so, Your Honour. But the

point I make is simply that in Lewis one of the
reasons for declining special leave was that it was
the sort of case which could not be resolved here

but would have involved remitting it back to a

Court of Appeal, with the necessary corollary that

there would be further delay, further argument, and

all this was going on at the time when somebody had

already been out of prison for 10 months. Now, that sort of consideration does not apply here.

There is, perhaps, an extant appeal against

severity of sentence that may come up in due course

but that, of course, has nothing to do with these proceedings. Your Honours, the only other matter

is that - - -

BRENNAN J: But you must take cognizance of the fact that if

special leave were granted, time would necessarily

elapse before any judgment was given in this case

and so the present respondent would be at liberty

at least until the time that that judgment is

given •

MR CRISPIN: Yes, that is so, Your Honour.

BRENNAN J: And that time is likely to be comparable with

the period which Lewis was at liberty.

MR CRISPIN: Except that - - -

BRENNAN J: All this goes to show, of course, is the

severity of the burden that rests upon the Crown

when it seeks to obtain a grant of special leave

after an acquittal by an intermediate Court of

Appeal.

..

30   11/6/93

MR CRISPIN: Yes.

BRENNAN J: In other words, this Court is not really here,

except in the most exceptional cases, to deal with

the rectification of errors by Courts of Criminal

Appeal in the ordinary administration of the

criminal law.

MR CRISPIN: Yes, I accept that, Your Honour, but this is a

case in which we submit that the precedent value of

this decision is significant and it will have quite

a profound influence -

BRENNAN J: In relation to what point?

MR CRISPIN: In relation, Your Honour, to the whole manner

in which the special leave point was approached.

Special leave applications have mushroomed in recent times so that in - at least in the

Australian Capital Territory - something in excess

of three-quarters of all appeals against conviction

there is a special leave ground.

BRENNAN J:  You mean there is an appeal.

MR CRISPIN: At least in three-quarters of all cases where there is an appeal against conviction, one of the

grounds is special leave.

DAWSON J: Leave, you mean?

MR CRISPIN:  I am sorry, there is an allegation it is unsafe

and unsatisfactory.

DAWSON J: This Court may have something to do with that.

MR CRISPIN: It has been a long morning, Your Honour. Of

course, back in the earlier days when special leave

grounds were first discussed in cases like Davies

and Cody and so forth, they were a comparatively

rarely encountered phenomenon within the criminal

prominence. And it is important, we would submit, law; these days they are assuming a far greater	that when one has a case like this which radically
expands the normal way in which such grounds of appeal have been determined, it is very important
that that be corrected.

BRENNAN J:  I think you have made that point so far as you

need to. Whether it is a radical expansion is

another matter.

MR CRISPIN:  Your Honour, the only further matter that I

would wish to do would be to seek Your Honours'

leave to amend the notice of appeal in order to add

one ground .

31   11/6/93

BRENNAN J:	And what is the proposal?
MR CRISPIN:	I had taken Your Honour's hint and drafted one

but having heard Your Honour Justice Brennan

formulate it, I rather like Your Honour's
formulation better than mine and I thought, with

Your Honour's leave, I might shamelessly plagiarize

it. So the ground would be, "Whether the conduct

of the mother in response to the child's complaint

of a sexual offence is admissible to impeach the

credit of the child".

BRENNAN J: Yes.

MR CRISPIN:	May it please Your Honours.
BRENNAN J:	The Court will consider its decision in this

matter and hopes to be in a position to deliver its

decision at 2.15 pm.

MR CRISPIN:  May it please Your Honour.

AT 11.42 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

BRENNAN J: In this matter, the Court proposes to adjourn

the present application to a date to be fixed to be

renewed before a Full Bench of this Court.

Have you any submissions to make as to that

course, Mr Crispin.

MR CRISPIN:  No, Your Honour, we are content with that

course.

BRENNAN J:

I do not think that is a matter which concerns

you, Mr Brewster, or which can properly concern
you.

Accordingly, the order of the Court is that the matter should stand adjourned to be renewed

before a Full Bench of this Court.

MR CRISPIN:  May it please the Court.

MR BREWSTER: If the Court pleases.

AT 2.17 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

..

32   11/6/93