Ryan v The Queen

[1999] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 1997

B e t w e e n -

DAVID RALPH RYAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 2.01 PM

Copyright in the High Court of Australia

MR J.A. GRIFFIN, QC:   May it please the Court, I appear with my learned friend, MR P.J. DAVIS, for the applicant (instructed by Russo & Coburn).

MR D.L. MEREDITH:   May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent (instructed by the Director of Public Prosecutions (Queensland)).

KIRBY J:   Yes, Mr Griffin.

MR GRIFFIN:   As your Honours will have seen from our outline, in this case highly significant fresh evidence has come to light since the hearing of an unsuccessful appeal by the applicant against his convictions in relation to alleged sexual abuse of the female complainant.  She was a young physically handicapped girl.  She was just under 12 years of age at the time.  The conviction occurred on 11 August 1995.  There was an appeal to the Court of Criminal Appeal which was dismissed on 12 December 1995 and an appeal against sentence was successful.  The sentence was reduced from 10 years to eight years.

The evidence in question only emerged in the course of a subsequent trial, that is, subsequent to the appeal in the D’s matter in March 1996.  A central feature of the evidence in the D’s trial was that the complainant had taken a police officer to a cemetery where, so it was alleged, the applicant had taken the female complainant during the period of the alleged abuse.  There he was alleged to have abused her but, perhaps more importantly, it was alleged at the trial that he showed the female complainant there a tombstone ‑ ‑ ‑

KIRBY J:   Could I just interrupt you to say that it might be wise if we do not use the name of the complainant and she is just referred to as the “female complainant”.  I do not think it would be appropriate that any mention should be made of her name.

MR GRIFFIN:    If your Honour pleases.  The allegation was that he showed her a tombstone with the name “Ryan” on it, threatened her with a gun, and told her that if she ever disclosed the relationship she would be killed and would end up buried in the same place.

The way that evidence was presented at the trial was that shortly before the trial, the female complainant indicated to her mother that she would be able to identify the cemetery and the grave.  It was then arranged that the investigating police officer should join the complainant’s mother and the complainant for the purpose of this occurring.  It was presented to the trial by the female complainant and her mother and the police officer, that the female complainant had directed them to the cemetery.  That she was there removed from the car and placed in her wheelchair and that she then took the police officer and her mother to a gravestone which bore the name “Ryan”

The way the matter was presented at the trial was that the female complainant had never been to the cemetery between the time the applicant had allegedly taken her there and this occasion.  In particular, it was stated by her mother in evidence, which is quoted at page 6 of the application book, that she had never taken the female complaint there prior to that day.

What emerged at the trial of the male complainant, subsequently, was that on 6 February 1995, the female complainant’s mother and the male complainant’s mother had taken their children all in the one group to the cemetery.  This evidence emerged from the evidence of the male complainant’s mother at the trial involving her son.  Now, the discovery of this prior visit was crucial in the context of the trial with which we are concerned.  It was a case ‑ ‑ ‑

HAYNE J:   Can I interrupt you and ask you:  exactly what do you say would be the evidence that would be led and would go to, putting it generally, the safety of conviction?

MR GRIFFIN:    Your Honour, the evidence that would be led would be that between the time that the female complainant was allegedly at the cemetery with the accused, and the time that she went there with the police officer, she had gone there previously with her mother, with the other complainant, that is the male complainant, and the male complainant’s mother, and had there ‑ ‑ ‑

HAYNE J:   The difficulty I have with that lies in the use of “gone there”.  At page 48 of the application book, it is said that when the male complainant went, the cemetery was locked and that he got into the cemetery by climbing the fence.  Assumedly, correct me if I am wrong, the female complainant did not get into the boundaries of the cemetery.

MR GRIFFIN:    Your Honour, there are two things about that.  First of all, the male complainant testified that they all went to the grave and, secondly, the evidence was of those that said that the female complainant stayed outside, that the gravestone was within a relatively short distance of the car and was visible from that area.  Thirdly, I should add this, that it was the evidence of all parties that there was a full discussion about what had happened after they all got back into the car.

KIRBY J:   I thought the evidence was that the female complainant remained behind in the car with the mother of the male complainant.  Is that correct, or not?

MR GRIFFIN:   That was the evidence that, certainly, the male complainant’s mother gave.

KIRBY J:   Yes.

MR GRIFFIN:    But the male complainant himself suggested that they had all gone into the cemetery.

KIRBY J:   That seems unlikely given the wheel-bound condition of the female complainant, does it not?

MR GRIFFIN:    That does seem unlikely, perhaps.  It is certainly unlikely if the cemetery was locked.  Now, your Honours, it was very much a case of the complainant’s word against the applicant’s.

HAYNE J:   Again, can I interrupt you and can I take you back.  You say that this evidence first came to light in his way.  It is put against you that the answers given by the mother of the female at the first trial were answers that could have invited further questioning?  I refer, particularly, to the answer at page 47, line 24.

MR GRIFFIN:   Would your Honours look at page 36, because at page 36 the subsequent question and answer are also supplied, and the question and answer relied on was:

Had you ever seen that gravestone before?

A. I was directed by another child one day, yes so I had seen it but –

the female complainant –

told us where it was.

Mr Long: Had you ever taken –

the female complainant –

there to that gravestone before that day?

A: Never. Never.

Now, my learned friends say ‑ ‑ ‑

KIRBY J:   That would be factually accurate, although not the full story, but it would be factually accurate if the position was that, in fact, the female complainant remained behind with the mother of the male complainant, would it not?

MR GRIFFIN:    If one looked at it in that literal way, yes.  But that clearly would have suggested to the jury that the girl had never been there before, in our submission, particularly with the emphasis on “Never.  Never”.  So when that is looked at as a whole, the way the jury would take that is that the female complainant’s mother had been there but there was certainly no suggestion, and in fact the clear implication is that the female complainant was never there.

Now, your Honours, it was a situation in which there was no medical evidence which positively supported the fact that the girl had been interfered with.  I say immediately, I am not suggesting that the medical evidence negated that prospect, but it did not support it.  The female complainant’s mother claimed to have seen redness around the female complainant’s genitalia, but the medical evidence was to the effect that there was no abnormality.

So it was very much a case in which it was one person’s word against the other.  The crucial nature of the gravestone incident to the resolution of the credibility issue, is demonstrated by the summing up.  If your Honours would look at the application book at pages 7 to 8 - - -

KIRBY J:   So, is your theory of the case that these two school children, disabled children, made up this whole story and went scouring the gravestones of the graveyard and just happen to find a gravestone with the name of your client?  It is a bit far-fetched, is it not?

MR GRIFFIN:    One of the features, or one of the aspects of the case is the prospect that the two of them got their heads together with the mothers.

KIRBY J:   But, also, that they went into the cemetery and found the gravestone which, just by chance, had the name of your client on it.

MR GRIFFIN:    Yes.  But then also, there is the question of the involvement of the mothers in the pursuit of the investigation of the case.

KIRBY J:   Yes, but they cannot put a gravestone in the cemetery.

MR GRIFFIN:    No, that is true, but they can identify one.

KIRBY J:   Anyway, press on.  What were you going to take us to now?

MR GRIFFIN:    The page I was going to take your Honours to is actually page 8 of our outline, but it is at page 38 of the application book.  This is the last in the series of quotations from the summing up.  Here his Honour says:

“There is also the piece of evidence about the female complainant going stiff when frightened or apprehensive.  You are reminded of that.  You are reminded of the redness seen on one occasion and then the argument dwelt on the cemetery and the stone with ‘Ryan’ on it.

The prosecution says to you, that cannot be downplayed.  You are taken to the female complainant’s evidence in that regard.  The question was posed, how could this little girl take others to the Ryan grave?  What possible opportunity would she have had in going into that cemetery and finding that gravestone?  Say the prosecution, this handicapped girl, this girl who needs assistance to do almost anything, certainly to go almost anywhere.”

So what he is saying to the jury, of course, is how could this girl possibly have done these things.  How could she have possibly taken a police officer ‑ ‑ ‑

KIRBY J:   But your theory of the case must be that the handicapped girl was taken there but, in some way, by another child who had mischievously made up this story and just happened to run in this very vivid image forward and jump over the wall, the cemetery being closed, and finding the self same gravestone, he not being under a physical disability to find it.

MR GRIFFIN:    Well, one does not know what the lead up was to the visit early in 1995 by the two mothers and the two children.  But, certainly, what we say is that there is a highly realistic prospect that there was something behind it.  Now whether it came from the other complainant or whether it was something that built up through discussions with the mothers of the complainants, is simply something upon which one can speculate.  But, in our submission, it is not idle speculation in a case like this, particularly when the case has been presented, as it was in our submission, on the footing that there was no such opportunity.  These matters, really, did cry out for investigation by defence counsel and because of the fact that the disclosure was not made, no such investigation occurred.

Now, the evidence in our submission quite plainly satisfies all prerequisites in relation to fresh evidence.  It was not available, in our submission, at the trial of the female complainant.  I have dealt with that proposition that it was or that it should be inferred from the female complainant’s mother’s answer that maybe the female complainant had been there, but that really is not a realistic interpretation, in our submission.

KIRBY J:   There is, of course, a constitutional question as to whether, within an appeal under the Constitution, fresh evidence can be received in this Court. That is a matter which was argued recently in the case of Eastman and stands for judgment in the Court.

MR GRIFFIN:    Yes, your Honour.

KIRBY J:   Were you aware of that issue and of the argument in the Court in Eastman?

MR GRIFFIN:    I was certainly aware of the issue.  I was not aware of the case of Eastman.

KIRBY J:   Yes, it was argued about two weeks ago in the Court.  Judgment has been reserved.

MR GRIFFIN:    Yes. 

HAYNE J:   Do you say that the evidence, as it presently stands, raises any doubt about the conviction of the accused?  Or does it do no more than this: present a fertile ground for a cross‑examiner to explore?

MR GRIFFIN:    No.  It goes to the conviction of the accused, particularly when that conviction is looked at against the background of that summing up.  The summing up, as I have said, presented that incident as the point of distinction between the evidence of the complainant and the evidence of the accused.  In our submission, the evidence plainly satisfies that part of the test and we have addressed that at page 42 of the application book. 

There was no evidence capable of corroborating the evidence of the complainant, there had been no ruling to that effect.  The applicant gave evidence and it was a case of the complainant’s sworn evidence against the accused’s sworn evidence.  The tombstone incident was not only a major part of the Crown’s case but it was presented as the central point of distinction between the two versions by the trial judge.  Those are our submissions, if the Court pleases.

KIRBY J:   Thank you very much, Mr Griffin.  Mr Meredith, the Court does not need your assistance in this application.

MR MEREDITH:   Thank you, your Honour.

KIRBY J:   Even if the evidence which the applicant would seek to adduce, for the first time in this Court were admitted (and upon that question we express no view) an appeal would not, in our view, have sufficient prospects of success to warrant the grant of special leave to appeal.  Accordingly, special leave is refused.

That completes the applications for today.  The Court will now adjourn until Monday, 3 May 1999 at 2.15 pm in Canberra.

AT 2.19 PM THE MATTER WAS CONCLUDED