RR v The Queen

[2008] HCATrans 293

[2008] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2008

B e t w e e n -

RR

Applicant

and

THE QUEEN

Respondent

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 8 AUGUST 2008, AT 10.41 AM

Copyright in the High Court of Australia

MR P.A. CUTHBERTSON, QC:   If the Court please, I appear for the applicant.  (instructed by Legal Services Commission – Adelaide)

MR M.G. HINTON, QC:   If the Court pleases, I appear with MS H.H.L. DUONG for the respondent.  (instructed by Director of Public Prosecutions (SA))

MR CUTHBERTSON:   If the Court pleases, the argument before the Court of Criminal Appeal was that both the Crown and the defence should have introduced further evidence and that with that further evidence it could clearly be seen that the verdict was unsafe, that a miscarriage had occurred.  The Full Court received the evidence and the argument that we mount before your Honours is that having received the evidence and having considered it, the Court should have held that there was a miscarriage because the additional evidence, together with the evidence led at trial, demonstrated that the conviction was unsafe and that at the very least there was a real chance of an acquittal.

If I can just deal, in the time available, with the four main points if I may, they are these.  The first point which is in my outline of argument as paragraph 22(5) is the question of statements from a Nurse Mills.  They are contained in the supplementary book at page 1.  Nurse Mills was deceased at the time of the trial.  The relevant facts from the statement of Ms Mills, we say could and should have been introduced were firstly that the complainant was hanging around the clinic at Amata on Monday, 14 February.

I should say that on 18 February, a Friday, the complainant went to the clinic and was taken to Alice Springs and medically examined.  Her evidence was that the offence against her had occurred the night before which makes it the Thursday night, the 17th.  She did say, however, on an earlier occasion, that the night it occurred “she was watching Blue Heelers on TV”.  If that was correct, it would have made it ‑ ‑ ‑

GUMMOW J:   That was on another night.

MR CUTHBERTSON:   That was Wednesday, the 16th.  On Monday, the 14th, she is “hanging around”, if I can put it that way, the clinic.  On Tuesday, the 15th, she comes to the clinic expressing concern about sexually transmitted diseases and having the appellant and his brother in her mind as sexual aggressors.  What she said to the nurse, relevantly, was that she lives in her grandmother’s house with the two men, the appellant and his brother, who habitually have sex with her and hit her with rocks and sticks when she says no or is sick; in other words, that it was more than one and that they hit her with rocks and sticks when she was sick or said no, which would not make it the occasion she is complaining of because on that occasion she did not complain of being hit with rocks and sticks.

Now, it is not correct that these two men lived in the house with her.  She herself asserted in her evidence that she was living with her grandmother, sister and father, both in evidence and in a statement that she provided.  The defence should have led this material, even though the nurse was deceased, by other means of getting the statement in, not to prove the truth of them, on the contrary to prove the untruth of it.

It was a prior, inconsistent statement of monumental proportions, but it was relevant for the defence to prove it to show (1) she had a totally wrong and demented belief that these two men were living with her and habitually interfering with her; (2) her credibility could not be relied on; (3) she had an idea or fixation in her mind about the appellant and his brother, even before the offence is supposed to have occurred; and, finally, she has a concern about sexually transmitted diseases, and may have had a motive to lie or perhaps that was part of a deluded belief.

It is unlikely that language difficulties, which the prosecution rely on, can explain the reference to the two appellants being made before the offence is supposed to have occurred.  This is dealt with by the Full Court at page 119 of the application book and, in our submission, with respect to them, they have missed the point.  At the top of page 119 they say:

Counsel submits that these materials go to the question of whether W concocted the accusations against the appellants out of concern that they were exposing her to sexually transmitted diseases in the course of a consensual sexual relationship -

with respect, not that they were, but perhaps that someone might have been exposing her to sexually transmitted diseases, and she was concerned about that.  The fact of the matter is that the accused’s instructions were – and they got before the Full Court in the report of counsel who conducted the trial – that there was no prior sexual relationship.  Then halfway down page 119:

The decision not to cross‑examine . . . was a forensic tactical decision made by trial counsel . . . it was wholly reasonable . . . 

Counsel for R submits the evidence from Nurse Mills’ notes and statements tends to show that W was unhappy in her relationship with the appellants and endeavoured to end it by means of concocting false accusations of rape.

With respect again, that is missing the point.  The point is not that they were having a relationship.  The point is that she was deluded in saying that they were having a relationship and this was significant evidence as to her credit and to make out a case that she was suffering from some sort of psychiatric illness.  At page 120, their Honours make the point at line 10:

It was not suggested at trial that W was or had been in a relationship with R or L. 

With respect, of course not, because it was never the instructions, at least in respect of my client, that he was involved in such a relationship: 

In my view, defence counsel’s decision not to cross‑examine on these materials did not deny R a real chance of acquittal.

Given that one of the formulating issues was psychosis, it was a very important issue.  It was dealt with ‑ ‑ ‑

KIEFEL J:   Were there not some risks, though?  If counsel had cross‑examined on the materials, were there not some risks inherent, and does not that explain the forensic decision to which their Honours refer?

MR CUTHBERTSON:   It is difficult to see what risks.  Counsel would have, no doubt, or should have, asked the prosecution what does the complainant say about this, and if needs be, counsel could have or should have asked for a statement or even a Basha inquiry to take place before it was led as evidence.

KIEFEL J:   But would not counsel have been cross‑examining on conduct which was similar?

MR CUTHBERTSON:   Yes, but you see, it was inconsistent with the complainant’s evidence.  The complainant was not asserting in her evidence that there had been a prior relationship.  Indeed, the complainant’s evidence was that she was living, not with these two but, rather, her grandmother, her sister and her brother, and this occurred because the opportunity arose because the family had gone camping and left her alone this night and ‑ ‑ ‑

KIEFEL J:   Putting aside the accuracy of where she was living and her evidence about that, counsel would have had to have cross‑examined on the relationship and as to potentially prior occasions on which the accused had attacked the complainant.  Is that not the case, necessarily would have had to do that to establish the other inconsistencies?

MR CUTHBERTSON:   Counsel would have cross‑examined the complainant.  “This is the only time you have had intercourse with them, is it not, when they came there?” and if she was consistent with the evidence she had already given in‑chief, she would say yes.  Then “Did you say to Nurse Mills that you had been having a relationship and living there over the previous days?” and if she said, no, then you have a monumental prior inconsistent statement, and if she said yes – in the odd circumstances that she said yes – that would be inconsistent with the evidence she had been giving at trial, and presumably would spark an inquiry about family going away which was another complaint we made about there was no evidence confirming that.

KIEFEL J:   I suppose the other point of view which the Court of Appeal seems to have taken was that it was not suggested by the defence that she had been in any relationship with them before, so the contrary was not put to her?

MR CUTHBERTSON:   It would not be put to her as the truth.  The defence would never put, “I put it to you that this relationship existed” because the defence instructions were that it did not exist.

KIEFEL J:   That is the inconsistency.

MR CUTHBERTSON:   In the supplementary application book, trial counsel has given his explanation at page 198 and, that is, as you can see, A18, halfway down page 198:

Mr Raymond’s instructions were that he denied this assertion.  As I did not know what the Complainant’s evidence would be . . . coupled with the inherent caution . . . I determined that there was more potential for damage –

Now, with respect, he did know what the complainant’s evidence would be because she had given it in‑chief.  If he had had any doubt he would have asked the prosecutor what are her instructions on this, and indeed, one might have thought when the prosecutor hands over the statement, there might have been something forthcoming about what she says about this.  So it never gets used, and the trial judge never gets to use it when considering whether there is a real possibility that this person suffers from a demented belief.

KIEFEL J:   But are you not viewing the potential for a prior inconsistent statement without taking into account the potential which trial counsel obviously did for there to be an explanation and then for the evidence to have a more damaging impact?  You are assuming that there could have been no explanation as to her evidence‑in‑chief.

MR CUTHBERTSON:   The complainant’s evidence-in-chief?

KIEFEL J:   Yes.

MR CUTHBERTSON:   Well, with respect, it is difficult to see how it could be ‑ ‑ ‑

KIEFEL J:   That is the territory the trial counsel did not want to go into.

MR CUTHBERTSON:   No, but, you see, trial counsel should have asked the prosecution, like I did, and find out the answer before embarking on the questioning, or if the prosecution is not forthcoming asking the judge for a Basha inquiry to find out.  If I can leave that point and go to the next point.  The next point is at subparagraph (12) on paragraph 22 of my outline and it relates to what I called Uncle Donald.  You see, the complainant told police and the doctor on the Friday ‑ ‑ ‑

GUMMOW J:   We know he is not an uncle in European cultural understanding.

MR CUTHBERTSON:   No, but he was identified as an individual who was present who came upon the rape and intervened.  Now, that was what she said to the doctor and the police officer.  Again, questions might arise from my learned friend about translations and all that, but it would be unlikely that the police officer and the doctor have both misunderstood a suggestion that Uncle Donald intervened while the rape was occurring.

Now, that would be terribly significant evidence.  Of course, he was dead at the time of the trial, but in her evidence she denied that she said it and she denied that it actually happened, that Uncle Donald intervened.  So the evidence should have been used, one, to profoundly affect her credibility because she denied ever having said it, and two, to cause more suspicion of a delusion because if she did say to believe at the time she said it on the Friday and not when she gives evidence that Uncle Donald intervened that would tend to really suggest that there may have been a delusion.

Now, how was it dealt with?  It was dealt with by the Full Court at page 114, and their way of dealing with it was to simply say at line 20:

the inconsistencies in W’s evidence may, at least partly, be related to W’s mental condition which, as I have said, was properly and thoroughly considered by the trial Judge.

But, with respect, it was not properly and thoroughly considered by the trial judge if the trial judge did not have before her the evidence from Nurse Mills and did not have before her – put to her as an issue that this statement profoundly affects credibility and may affect the question of whether there is a delusion.

Now, it was never put by the defence in the way it should have been and never considered by the trial judge in the way it should have been.  Counsel’s explanation at the supplementary application book 198 is that in order to have demonstrated it was a hallucination would have required Donald W who was deceased.  With respect, that is wrong because the complainant admitted in evidence it did not happen and went further and she said she did not even say it.

The next matter is she said in a statement to the police that after this offence she went to her girlfriend’s place, KH, where she stayed until reporting the rapes in the morning.  At the trial she said she went and slept outside the store after the rapes till the morning.  But defence have been provided with a statement from KH who made it clear that she was in Adelaide and could not possibly have been visited that morning, but that was dealt with by the Full Court at 112 and 113 of the application book.

GUMMOW J:   That is by Justice Sulan, is that right?

MR CUTHBERTSON:   Yes, he wrote the main judgment.  That is at line 30 on page 112.  His Honour says at about line 38:

I agree that cross-examination on this topic would have likely elicited further evidence of W’s mental ill health.  But this was not a case in which W was accepted as a mentally stable witness and evidence tending to show she suffered from delusional episodes not explored.

But again, with respect, they were not fully explored because these matters were not before her Honour.  The only matters that the learned trial judge had touching on the question of delusion around the time of the events was that Dr Bagar said that at one stage she said, “I thought I was dreaming this”.  At another time she gave evidence that she heard noises outside and that these were her imagining things, and she heard voices later telling her to go bush, get away from these people.  They were the only matters that the trial judge had considered.  These other weighty matters that went to delusion were not before the trial judge.

The next point is the report of Dr Raeside, which was provided, and the report of Dr Raeside is at the supplementary book page 184, and the relevant material from the report of Dr Raeside is that this person was under‑medicated, and that was never known when her Honour came to consider these matters.  But note at page 191 he says that she would be:

at increased risk of psychotic relapse in the months prior to the alleged offence . . . 

As noted above, in my opinion, even a four week interval would have been inadequate, particularly at such a low dose.

Over the page, he says in that passage at “Conclusion and Recommendations”:

This would have increased the likelihood of an acute relapse of psychosis with delusional thinking and hallucinations.  If this was the case then the accuracy of Ms Williamson’s perceptions would be questionable.

Then importantly, because the Full Court quote the next line, 16 or line 28 in the High Court pagination:

However, having so said, it is unlikely that someone would hallucinate a sexual assault upon them.

But what they leave out - the Full Court - is the last sentence:

A more likely explanation would be a delusional belief that they had been sexually assaulted.

So none of that is before her Honour when she comes to consider, with these other matters I have mentioned, the question of whether there is a delusion, and so all the other matters I set out in paragraphs 22 and 23 of my outline of argument - paragraph 22 sets out essentially matters that relate to psychosis – with a person who is at risk of psychosis and when that is a real issue ‑ ‑ ‑

GUMMOW J:   You are in full flight, Mr Cuthbertson.  You have to get back to earth, you have the red light.

MR CUTHBERTSON:   I am sorry, if the Court pleases.

GUMMOW J:   Now, is there anything else you want to say by way of summing‑up?

MR CUTHBERTSON:   No, I think I have said it all.  I just make the point that with a psychosis like this you look to circumstances where reality can be shown, and none of the things that she says are supported by any corroborative type evidence.  If the Court pleases.

GUMMOW J:   We do not need to call on you, Mr Hinton.

We see no error in the approach adopted in the Court of Criminal Appeal of South Australia in dismissing the appeal for conviction at trial before Justice Layton of the Supreme Court sitting without a jury.  The interests of justice do not call for a grant of special leave.  Special leave is refused.

We will adjourn to reconstitute.

AT 11.03 AM THE MATTER WAS CONCLUDED