Scott v The Queen

[1998] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 1997

B e t w e e n -

NORMAN JOHN SCOTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 11.03 AM

Copyright in the High Court of Australia

McHUGH J:   The further hearing of Scott v The Queen can be adjourned until the conclusion of the list.

AT 11.05 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.18 PM:

McHUGH J:   The view which I am about to express are those of Justice Callinan and myself.

Special leave to appeal should be refused in this case. It is true that there was considerable divergence between the evidence given by the complainant at the trial and the statements made by her and video-taped out of court and then admitted pursuant to s 93A of the Evidence Act 1977 (Qld). It is also true that the conviction can only be supported by reference to that video-tape evidence. However, s 93A expressly provides for the reception of evidence in this form in the case of a complainant who is under 12 years of age, as the complainant was in this case. That being so, the admissibility of that evidence is not relevant in determining whether the accused has had a fair trial according to law. Plainly she had a trial according to law. Furthermore, the trial judge gave the jury a clear warning in relation to the evidence and otherwise conducted a meticulously fair trial.

There is no basis upon which special leave to appeal could be granted in this case.  Accordingly, special leave must be refused.

KIRBY J:   I would grant special leave although I acknowledge that the task of this Court has been made difficult by the absence of oral submissions.  Written submissions were filed by both parties.  The applicant’s submissions were filed by solicitors.  However, no one appeared today to support his argument with oral submissions.  In the Court of Appeal, the record shows that the applicant appeared in person, unrepresented.  In that Court, a majority (McPherson JA and Fryberg J; Fitzgerald P dissenting) affirmed the applicant’s conviction.  By inference, the applicant is presently serving his sentence.  That is primarily why he is not here today. 

I share the same sense of disquiet expressed by Fitzgerald P in the Court of Appeal.  Whether or not that concern would ultimately have been converted into an order allowing the appeal is a question which will not now be decided because of the dismissal of the application.  However, I consider an important question is raised.  In case it arises again, I will briefly say why.

The applicant was convicted on three of four counts of indecent dealing with his step-daughter.  There was no independent evidence corroborating the offences.  The Crown relied substantially on the oral testimony of the complainant, aged 12 years at the trial, and on the replaying of two video-tapes of interviews of the complainant conducted by the police.  The interviews were conducted in the absence of the applicant.  No complaint was made in the Court of Appeal or in the written submissions to this Court about the trial judge’s directions.  The complaint is that the jury’s verdicts of guilty, resulting in the applicant’s convictions, are unreasonable in the sense of unsafe. Criminal Code(Q), s 668E(1)

As the majority acknowledged in the Court of Appeal:

“...Both in quality and extent [the complainant’s] evidence at the trial fell far short of the standard of the second [video] interview.  It is possible, but only with considerable difficulty to identify events in her sworn testimony with events recounted in her interviews.  Furthermore, at the trial she gave evidence of only three instances of alleged indecent dealing, one of which was the incident.....as to which the applicant was acquitted. 

At the trial, the complainant admitted that she harboured a sense of grievance against her step-father arising out of his acts of discipline and his requirement that she perform domestic tasks.  There was also evidence that, in the past, she had made a false report to her school principal concerning an alleged attempt of abduction of a school child.  As the majority accepted, these were matters capable of affording a motive for fabricating charges and evidence.  In the reasons of Fitzgerald P, and of the majority, the apparently flawed evidence of the complainant before the jury is set out.  I will not repeat it. 

The inference is almost inescapable that the applicant was convicted solely or substantially on the basis of the video-tape interviews, especially the second.  Under the Evidence Act 1977 (Qld), s 93A, the evidence was admissible. The use of video-taped evidence of children making allegations of sexual abuse, conducted close to the events complained of and away from the accused and the potentially frightening circumstances of a courtroom, is a recent advance of great potential utility. Section 93A has counterparts throughout Australia and overseas. It affords a facility to the prosecution which the Parliament of Queensland has permitted. However, in this country in a court of justice the statutory provision would have to be used in a way compatible with the accused’s fundamental right to a fair trial. Parliament would not be taken to have intended otherwise. Normally, this right includes the right of an accused to confront an accuser giving evidence and to question the accuser. Although the applicant secured that right at this trial, arguably such right could not effectively meet the testimony recorded at the police station. As Fitzgerald P remarked:

This case confirms [my] concerns and causes me to question whether the most important part of some criminal trials is taking place in interview rooms in police stations in the absence of the accused and the jury, instead of in court rooms.

It is possible that, in the light of the legislation, nothing could be done to redress the potential for injustice.  But we live in an age of television in which events there portrayed assume virtual reality and authenticity for much of the population.  If there is a risk that video recordings will outweigh the evidence of witnesses in Australian courtrooms, that would certainly be a subject upon which this Court should give some guidance.  The guidance could include special judicial directions and even possibly a control of the use made of the video evidence once admitted.  But it could also relate to the functions of courts of criminal appeal where, as in this case, the oral testimony in court was weak and disquieting and unarguably only the video evidence supported the convictions. 

Criminal trials will properly involve in the future increased use of technological evidence.  Against the background of a relatively weak case against the applicant, I would have favoured the grant of special leave in the expectation that, on the appeal, this Court would have had the assistance of oral argument as it has not had today.

McHUGH J:   When the matter was called earlier, I said that the matter would be dealt with at the conclusion of the list and I had in mind at that time that we would probably do it at 2.15.  The list is not concluded but there is no appearance of the parties before us and notwithstanding that I earlier said the matter would be moved to the end of the list, I see no difficulty in pronouncing the orders of the Court now.

The order of the Court is special leave to appeal is dismissed.

AT 2.26 PM THE MATTER WAS CONCLUDED