Stevenson v The Queen

[1994] HCATrans 291

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P33 of 1993

B e t w e e n -

JOSEPH GEORGE STEVENSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 11. 35 AM

Copyright in the High Court of Australia

Stevenson 1 22/4/94

MR L.W. ROBERTS-SMITH, QC:  May it please the Court, I

appear for the applicant. (instructed by Downings

Barker Gosling)

MR J.R. McKECHNIE, QC:  May it please the Court, I appear

with my learned friend, MS Z.A. BOYATZIS, for the respondent. (instructed by the Director of Public Prosecutions (Western Australia))

MR ROBERTS-SMITH:  Your Honours, it is crucial to see the

special leave points raised by this matter, which

are set out at paragraph 2 of our summary and,
indeed, to see the proposed arguments on appeal

which are at paragraphs 16 to 20 in the context

that credibility was absolutely fundamental to this

case. That, indeed, was recognized by His Honour

the trial judge at page 7 of the application book, lines 6 to 8.

The issue of credibility was not peripheral.

It was not a case in which the elements of the

offence could have been established by other

evidence irrespective of the jury's assessment of

credibility.

GAUDRON J: Whose credibility are we concerned with?

MR ROBERTS-SMITH:  We are concerned, Your Honour, with the

credibility of, really, the only two witnesses as

to the events in the whole case, they being the

complainant girl and the accused himself. It has

to be remembered that the offences alleged here and

of which he was convicted - three of which he was convicted - were four counts of sexual assault on

the daughter when she was aged respectively

nine years and 12 years, and she was 13 years old
at trial. She and the accused - the accused, of

course, who gave evidence on oath, having made

denials throughout and repeated those denials on

oath - were the only witnesses as to the events

themselves.

It is our submission that the credibility of

the complainant in this context was wrongly
buttressed at the trial by a number of matters,
perhaps the most salient of which were the learned
trial judge's omission to properly direct, on the

evidence of Dr Bredemeyer. His Honour's direction

on the evidence is set out at page 9, lines 12 to

18 of the application book.

GAUDRON J:  Was any other direction sought?

MR ROBERTS-SMITH: There was discussion about the direction

that was sought but the end result, in our

submission, was inconclusive. The learned trial

Stevenson 2

judge took the view that, really, all he need do

was to set out the submissions which had been made

to the jury by the defence counsel and the

prosecution respectively and that - - -

GAUDRON J:  If it were a matter of credibility only, that

would seem to be right.

MR ROBERTS-SMITH: Except, with respect, Your Honour, the

difficulty there was His Honour did not point out

what, in our submission, clearly appears from the

nature of the evidence itself was a complete

deficiency in terms of the evidence being able to

be used by the jury for the purpose advocated by

the prosecutor. The prosecution proposition to the

jury was, effectively, that the evidence of

Dr Bredemeyer could be used to establish or,

indeed, could be accepted to find that there was a

probability of penetration and, indeed, more than

that. As His Honour Justice Franklyn concluded,

they could have well used that evidence to find

that it supported that it was evidence of digital

sexual abuse of the girl.

Now, in our submission, the evidence simply

could not have been used for that purpose because

there was no objective basis upon which the .doctor

could have properly formed that opinion, even

though she was allowed to express it. Now, in that

context, we say, His Honour the trial judge',s duty

was to do more than simply recite the submissions

of the prosecution and the defence and leave. it to

the jury. His Honour was obliged, so we sa~ and we	submit to Your Honours, to say, "You cannot use the
evidence the way the prosecution has asked you to
look at it. It cannot be used to establish or
support a probability of penetration and, certainly, not a probability of digital sexual abuse."

GAUDRON J: But the prosecution did not ask them to consider

it as doing the latter of those things, did it?

MR ROBERTS-SMITH: Perhaps if I could take you to that, Your

Honours, at page 9. It is a relevant direction.

Lines 12 to 18:

Mrs Maxwell -

the prosecutor -

would say that it is evidence, circumstantial

evidence, that shows a probability, putting it

no higher than that, that at some time prior

to the examination by Dr Bredemeyer some

penetration had occurred to the girl's vagina.

Stevenson 3 MR ROBERTS-SMITH, QC 22/4/94

Mr Percy would say it is proof of nothing

against his client.

Now, His Honour then said nothing more about the

matter. The evil of that - the difficulty with

that was well recognized by His Honour

Mr Justice Franklyn at page - - -

BRENNAN J: Just pausing with what His Honour said, there is

no inaccuracy in what His Honour said, is there?

MR ROBERTS-SMITH:  There is no inaccuracy in what His Honour

said in terms of reciting what the submissions to

the jury were.

BRENNAN J:  No, in reciting what the evidence was.

MR ROBERTS-SMITH: Well, in reciting what the evidence was,

but that, of course, is part of the difficulty

because, as we submit and, indeed, as His Honour Mr Justice Franklyn concluded, the doctor should

not have been allowed to express that opinion

because there was no basis upon which she could

have formed it.

BRENNAN J:	How do we know that?
MR ROBERTS-SMITH:	We know that -
BRENNAN J:	We know from page 15 what the evidence was.

There was no objection taken to the question asked

or the answer given. The doctor was asked for her

opinion with regard to it and answered it in that

way.

MR ROBERTS-SMITH: That is so, but if one looks at the

evidence which, in fact, was given by the doctor -

this was an examination which was some two months

after the latest alleged assault - the physical

observations which the doctor made were that there

was something which may have been a partial tear of

the hymen. She acknowledged it may not even have

been a tear at all. There was some redness about

the opening of the hymen. Her conclusion was,

based on her physical observations, her

observations were consistent with sexual abuse;

were consistent with penetration. Now; we do not

dispute that they were consistent with penetration
but, of course, the question was what kind of
penetration. And for her to go on then and say,

not only was it consistent with digital sexual

abuse but that, in her view, it was probable that

it was caused by digital sexual abuse - - -

BRENNAN J:  She did not say that. Nor did His Honour tell

the jury that she said that. What she said is that

Stevenson 4

she thought it was likely "that there had been

penetration from an outside force".

MR ROBERTS-SMITH:  Yes.

BRENNAN J: And what your proposition is is because of her

evidence of the primary facts as to what she

observed, she was wrong or, at least, had no basis

for reaching that conclusion.

MR ROBERTS-SMITH:  We say that it was wrong for her to say

that it was probable or "likely" - was the first

word she used - that it was caused by "penetration

from an outside" source because there was no basis

upon which, in our submission, she could express

that view based on her observations.	There had to
be something more.	It had to be a view which was

formed from somewhere else; from her past

experience or her medical knowledge or whatever

which remained unstated and for which, in our

submission, there was no foundation in the

evidence. That was the danger, and it was a danger

which His Honour Mr Justice Franklyn saw and well

recognized, particularly in the context of this

case where credibility was the issue. We say that,

put at its highest, the doctor's evidence was

merely consistent with penetration. It could not

be said to have been more likely than not caused by

penetration of any kind.

The majority had no difficulty with that. For

example, Mr Justice Pidgeon at page 16 took the

view, at about line 8, that:

it would be open to the doctor to express her

professional view as to whether a possible

cause is a likely one or a remote one. She expressed this view after conceding that it

was possible that there was no some sexual

abuse.

Going on, His Honour said, in the middle, between

lines 10 and 15:

it supports the complainant's account that she

had been interfered with in the way she had

described.

Now, in our submission, that simply cannot be

right.	It was no evidence at all that she had been
interfered with in the way she had described.	It

could not support - it was not inconsistent with it

but there is a vast difference between something

not being inconsistent and something providing

positive support, particularly in the way she had

described which, again, was the problem which

Mr Justice Franklyn saw with it.

Stevenson 5

His Honour went on to see a further use for

the evidence:

If the penetration to cause the disorders

found had been by the father, the jury would

be entitled to act on the basis that this

would not be an innocent penetration unless

there was an explanation as to why it might

have occurred.

Now, again, of course, the only possible basis upon

which the jury could have found that the

penetration was by the father was by accepting the

evidence of the girl in the context of the charge.

I am speaking there, of course, of the expression

of "the penetration to cause the disorders found".

His Honour, on that basis, concluded that the

evidence had been.properly admitted.

Mr Justice Rowland dealt with it at page 33

and simply pointed out that:

his Honour explained the Crown's view that, at

its highest, the Crown was submitting that

there was a probability that some penetration

had occurred, whereas the defence was saying

it was proof of nothing.

And then went on to say this was not a case in

which the trial judge had to give the court's

imprimatur to events or consequences. Again, that

is, in our submission, where Their Honours went

wrong because the trial judge ought to have

directed the jury that although that is what the

prosecution had asked them to accept of

Dr Bredemeyer's evidence and the way in which she

said - the prosecution said it could be used, in

fact, the jury could not use it to find

probabilities and in that way support or buttress

the complainant's credibility.

Now, that approach, if an expert witness is

permitted to express a view about probabilities or

likelihoods in this sort of context, particularly

in a case where credibility is so critical, then,

in our submission, there is a grave danger of

miscarriages in future cases. It is quite clear,

in our submission, or ought to be made quite clear

that the expressions of opinion by an expert

witness such as a doctor, as in this case, must be

founded and can only be founded on the

observations, the examinations, the factual

information known to the expert rather than on the

basis of some unexpressed assumption or perception,

particularly where that goes to such a critical

issue as here.

Stevenson 6

His Honour Mr Justice Franklyn, as I have

mentioned a number of times, saw that particular

problem and that is referred to by His Honour at
page 48, lines 10 to 20 of the application book and

page 57.

GAUDRON J: Is that first sentence at line 10 correct?

MR ROBERTS-SMITH:  Yes, it is, Your Honour. Penetration was

not in dispute which, again, enhances the problem

here because of this evidence.

GAUDRON J: Well, it does not, does it? It almost

eliminates it, does it not, given the nature of the

evidence about which you complain; given that it is

said only penetration from an outside source?

MR ROBERTS-SMITH:  Yes, but the context - if one sees that

as a probability, a likelihood, and in the context of the doctor's evidence where she has referred to

sexual abuse, child sexual abuse and digital

penetration, if one looks at it in the context as a

whole, as His Honour Mr Justice Franklyn did, then

the conclusion must be, in our respectful

submission, that to which His Honour came at

page 48, about.line 13 or 14:

The unfairness of the medical evidence as

given however, is that it emphasised the

perceived consistency of the state of _the

vagina at the time of examination with

previous digital penetration and sexual abuse

and that such was a likelihood or probability.

GAUDRON J:	I think that misstates the evidence.
MR ROBERTS-SMITH:	In our respectful submission, it does if

one looks at the express answers given by the

doctor in an isolated way. But if one looks at the

overall effect of her evidence, in our submission,

and particularly her references to child sexual

abuse and digital penetration, that is a fair

reflection of the effect of her evidence. As I

say, as His Honour said, it goes directly to

buttressing the complainant's credibility.

If it is accepted that those matters that we

have raised in the outline of argument do represent

a difficulty then, in our submission, they clearly

go to a fundamental aspect of this trial and it

cannot be said and could not have been said by the
Court of Criminal Appeal that there was no

substantial miscarriage of justice because it

cannot be said that had the jury been directed

properly in relation to these matters of

credibility they would inevitably have arrived at

Stevenson

the same decision. In fact, the contrary may well

have been the case.

If I could turn very quickly to the question of the content of the police interview. I shall

not trouble to take Your Honours to the authorities

which, I think, are both clear and common ground

between the respondent and the applicant, but it is

to be noted that the respondent, both in the court

below and, as I understand it, here, effectively

concedes that the evidence of the police interview
was strictly inadmissible in so far as it consisted

of putting the allegations to the accused and him

simply denying their truth. The directions were

given by the trial judge at page 8, lines 12 to 22

and there were confined to simply references to a

possible lie about him going into the child's

bedroom, and at page 10, lines 12 to 16, where His

Honour directed the jury they could draw no adverse

inference from a refusal to answer questions.

His Honour said absolutely nothing at all

about not being able to take into account the fact
of the questions being put to the accused and that

they were no evidence at all as to the facts of the

allegations contained in them. Again, given that

the contest here was between the applicant and the

complainant in terms of credibility, that was

critical and, as His Honour - - -

GAUDRON J: There was no objection to the record of

interview going in, was there?

MR ROBERTS-SMITH:  No, there was not, Your Honour.

GAUDRON J: And there was nothing in the record of interview

which could in any way be treated as an admission,

was there?

MR ROBERTS-SMITH:  No, subject only to the possible

difficulty about what was said to be a lie but I

doubt that that affects Your Honour's observation.

That is so and, of course, that really, in one

sense, makes it all the more important for

His Honour to have sakid to the jury there is nothing - you cannot in any way rely upon the fact

that this girl clearly made the same allegations to

the police and that they were put to the accused as

buttressing or enhancing her credibility.

GAUDRON J:  Nobody said that they could rely on it, did

they?

MR ROBERTS-SMITH:  No, they did not.

GAUDRON J: And no direction was sought.

Stevenson	8
MR ROBERTS-SMITH:	No, no direction was sought.

GAUDRON J: And the direction was given that they had to

determine guilt or innocence on the evidence given

in the case.

MR ROBERTS-SMITH:  Yes, that is so but, of course, the

evidence of the conversation was evidence given in

the case. The point simply is - and it is a short

point, clearly, in relation to that issue - that in

those circumstances it is or should be incumbent

upon a trial judge to indicate that that evidence

is not evidence of the facts.

Finally, the question as to the proviso, in

our submission, is an important one here because

the Court of Criminal Appeal relied upon the jury's

assessment of the credibility of the witnesses to

conclude that there was no miscarriage of justice.

Now, it is our submission that where a verdict

depends on credibility and the alleged errors of

law may have affected an assessment of credibility

then, as a matter of principle, it ought to be the

case - and, we would submit, is the case - that

there is then simply no scope for the application

of the proviso and that that is certainly a special

leave point which requires decision by this Court.

If Your Honours please.

BRENNAN J: Thank you, Mr Roberts-Smith. We need not

trouble you, Mr McKechnie.

There is no substance in ground l(a) of the

proposed notice of appeal. As to ground l(b),

there was no objection taken to the admission of

the evidence of the police interview. As to

ground 2, the evidence by the mother of the

complainant relating to the mother's previous

consistent statements tendered in response to

cross-examination designed to establish a prior

inconsistent statement was not objected to. A

majority of the Court of Criminal Appeal was of the

view that that evidence "was of minimal

significance".

Having regard to the evidence and the manner

in which the defence was conducted, there is not

sufficient reason to doubt the view of the Court of

Criminal Appeal that there was no miscarriage of

justice in this case. Accordingly, special leave

will be refused.

AT 11.56 AM THE MATTER WAS ADJOURNED SINE DIE

Stevenson 9 22/4/94