The King v Ryan Churchill (a pseudonym)
[2025] HCATrans 10
[2025] HCATrans 010
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M94 of 2024
B e t w e e n -
THE KING
Appellant
and
RYAN CHURCHILL (A PSEUDONYM)
Respondent
GAGELER CJ
GORDON J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 14 FEBRUARY 2025, AT 9.59 AM
Copyright in the High Court of Australia
MR B.F. KISSANE, KC: May it please the Court, I appear with my learned friend MS S.C. CLANCY for the appellant. (instructed by Office of Public Prosecutions (Vic))
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends MS R.B. SHANN, SC and MS H.L. CANHAM for the respondent. (instructed by Doogue + George Defence Lawyers)
MR KISSANE: Thank you, Mr Walker. Mr Kissane.
MR KISSANE: Thank you, your Honour. This appeal raises the question of the use of distress evidence in a sexual assault trial and what the court is required to direct the jury about that evidence.
This was a case where the trial judge was obliged to direct the jury about the use of distress evidence, and the reason for that is that the request was made by the prosecutor pursuant to section 12 of the Jury Directions Act. The scheme of giving directions in Victoria is governed by that Act, and there are three principal sections that set out how the court goes about determining that. They are found in the joint book of authorities at pages 32, 33 and 34 ‑ ‑ ‑
GAGELER CJ: We have separate prints.
MR KISSANE: You have the Act, which is probably easier to use, your Honours – section 12. The way it works is that section 12 requires the prosecution and defence to “request” that the trial judge give a direction in relation to the:
(a)matters in issue; and
(b)the evidence in trial relevant to the matters in issue.
And in this case the prosecutor requested a direction in relation to the distress evidence. What happened in the particular trial was that the judge, having heard the request, said, well, I will wait to hear what counsel say in their final addresses to the jury and then I will make a decision about that. And his Honour ultimately decided to give a direction relating to distress. It is perhaps useful, when considering this case, to keep in mind the direction that his Honour gave.
GAGELER CJ: Before you get there, you were taking us to the Act. You said there were three sections in play.
MR KISSANE: Yes, certainly, your Honour.
GAGELER CJ: You started with section 12.
MR KISSANE: Section 12. Section 14 is simply that the trial judge has to give the directions that are requested.
GORDON J:
unless there are good reasons for not doing so.
MR KISSANE: Yes, indeed. So, it means the trial judge has to consider the application, and generally speaking, unless there are good reasons not to give the direction, then the direction would be given. Then the third – perhaps section 15 is relevant, to the extent that it says:
the trial judge must not give . . . a direction that has not been requested –
Then section 16 is a sort of catch‑all to avoid a substantial miscarriage of justice, in the sense ‑ ‑ ‑
GAGELER CJ: Is that said to be engaged here?
MR KISSANE: It was said by the Court of Appeal to be engaged. Our argument is that it ought not have been engaged in this particular case, but it is said to have been engaged in the sense that the Court of Appeal found that the trial judge should have given two additional directions. One, that the evidence of distress carries little weight – although the Court of Appeal added an extra word to that direction, that the evidence of distress “generally” carries little weight.
The Court of Appeal also found that the judge was required to give a direction to the jury that they needed to be satisfied there was a nexus between the distress evidence and the offending. In our submission, neither of those two additional directions were required, and they were certainly not mandated by section 16.
BEECH‑JONES J: Mr Kissane, just on the content of 12 to 16, I think the effect of one of Mr Walker’s points is to say the direction that is given is not specified. So, if the Crown asks for what is said to be a distress direction, that brings with it the warnings that must accompany the distress direction so that you are not in section 16, it is just part of the obligation in 12 to 14.
MR KISSANE: Yes. If there are any additional obligations to give warnings.
BEECH‑JONES J: Do you accept that?
MR KISSANE: Yes, I accept that if you make a request to seek a direction and if there are warnings required to be given, then those warnings would need to be given and considered, but, of course ‑ ‑ ‑
GORDON J: Is that because counsel have requested them, under section 12, or is that because some other section comes into play?
MR KISSANE: Well, it would be because counsel requested it under section 12. So, if there is a need, for example, for an unreliability warning – and I will come to that – then that would be something that would be requested, and requested under section 12. So, if it is not – if the additional warnings are not requested and then they are not mandated by section 16, then, in our submission, the judge is not required to give those additional warnings.
So, to the extent that a request under section 12 may be broader than simply a request for a direction, if there is a particular need for a particular warning to be given, then our submission is that that is the sort of direction that would be requested by counsel, so that – leaving aside the issue as to whether a direction that distress carries little weight is a direction that ought be given – if counsel wanted a direction of that nature, then, in our submission, counsel ought to seek that direction.
GORDON J: You may be coming to this. The direction which was given here, at the time, which you set out in the core appeal book, as I understand it, at pages 13 to 14, is that consistent with the charge book at the time, not that it may not matter?
MR KISSANE: It was close to the charge book at the time – it may not matter. The Court of Appeal set out the various stages of the charge book. It was consistent with the charge book that it was indirect evidence, I think that remained in the charge book. The Court of Appeal set out, in its ‑ ‑ ‑
GORDON J: Can I ask another question then. In relation to the charge which was given at pages 13 to 14, is your submission that that is the appropriate charge?
MR KISSANE: Yes, our submission is that that was the charge that was all that needed to be given in these circumstances, that it was appropriate and that it explained to the jury the use that could be made of distress evidence as indirect evidence. It set out the competing arguments that were put by counsel and then left the evidence to the jury to, as part of what we would say is part of the circumstantial evidence that the jury were entitled to ‑ ‑ ‑
GORDON J: It did a bit more than that, did it not? What do we do about the caution paragraph?
MR KISSANE: It went on – I presume your Honour is referring to page 14 ‑ ‑ ‑
GORDON J: Lines 18 to 24.
MR KISSANE: Line 18, to where the judge then goes and cautions the jury about drawing conclusions from indirect evidence.
GORDON J: Is that part of the requested direction?
MR KISSANE: Well, the requested direction was more general about – the requested direction initially was the direction about the stress. His Honour then went through the direction he was going to give with counsel before he gave it, but that direction of taking care about drawing conclusions from indirect evidence as a standard sort of direction that would be given.
GORDON J: Thank you.
MR KISSANE: It was, in our submission, appropriate that, given that his Honour had used indirect evidence as the example – so, he had used distress evidence as the example of indirect evidence – it was appropriate to give that direction at that time. It was a direction that directed the jury to exercise caution in effectively drawing conclusions from indirect evidence.
GAGELER CJ: I am sorry, are you saying that that was a required direction?
MR KISSANE: Well, it is pretty much a standard direction I would have thought, your Honour, if there is an issue of circumstantial or indirect evidence.
BEECH‑JONES J: If there is an inference to be drawn
MR KISSANE: Yes, there is an inference to be drawn, and the jury needs to be directed about drawing inferences, they need to be directed about not making guesses and the like. The standard direction is to include an example of catching a plane from Melbourne to Sydney, and the like, was the standard way it was done, but nonetheless, the jury do need to be directed about drawing inferences, and the way that it was sought to use the distress evidence as indirect evidence or circumstantial evidence that supports the charges, supports the happening of the events that were described by the complainant.
GAGELER CJ: Yes. So, when a request is made under section 12, presumably it is made in a shorthand way by reference to the standard directions in the charge book, is that the way it normally happens?
MR KISSANE: I think the way it normally happens – well, first of all, there are standard directions that are given and obviously a jury has to be satisfied beyond reasonable doubt. There are standard directions that nobody would ever bother telling a judge that you have to direct along these lines. But if there are particular directions that relate to the way that the case has evolved, in relation to the matters at the issue, and they are the factors that are out in section 12, and that is in issue and the evidence in the trial relevant to matters and issues. So, we are not talking about general directions about how juries go about their task, we are talking about directions that are confined to the issues in the trial.
So, they are the ones that the discussion will be about, and this was one of those occasions where the evidence of the distress of the complainant had been given by the mother of the complainant and the complainant herself, to some extent, and so the request was made to give that direction.
GLEESON J: When the evidence was admitted, was it clear that the prosecution sought to use it as indirect evidence?
MR KISSANE: As indirect evidence – I think the prosecutor said he wanted a direction on distress. By this stage, of course, your Honour, there had been some – the direction that had been given for some time in Victoria, which is set out at paragraph 39 of page 73, there had been some cases in Victoria that had criticised that direction, and so the prosecutor, I think, was keen to get a direction that meant that he could use the evidence without falling foul of the way the law was developing.
GLEESON J: I am trying to understand – the notice of contention raises an issue about the use of the evidence rather than the admissibility of the evidence, so on your case is there any dispute about whether the evidence was admitted for the purpose of – or as indirect evidence?
MR KISSANE: There does not seem to be any dispute that it was admitted as indirect evidence. That does not seem to have been raised and the Court of Appeal in effect found that it was open to the jury to use the evidence as indirect evidence, and so that does seem to have been in dispute. When the judge read out the direction that he was proposing to give, which said that it was to be used as indirect evidence, there was no dissent from either counsel that that was an appropriate direction to be given.
GORDON J: So, the issue is quite narrow – well, narrow in one sense; that is, what is the jury to be told they are to make of this evidence, or how are they to use it?
MR KISSANE: That is right, your Honour. Yes, quite narrow, and that is why we say the direction that his Honour gave that they could use it as indirect evidence, putting forward the arguments that were put by counsel about the evidence, was sufficient in this case and there was no need to go into the further directions that the Court of Appeal found ought to have been given.
GORDON J: Distress evidence is not one of the matters listed as unreliable under section 31.
MR KISSANE: I was coming to section 31, your Honour, and that is where, coming back to Justice Beech‑Jones’ question, that if it was desired that there be an additional warning in relation to the use of distress evidence, then the appropriate way of dealing with that is under section – it is to make an application under section 31. It is not one of the matters that are listed in section 31, but section 31 is not an exclusive definition:
evidence of a kind that may be unreliable includes –
It was a section that was originally found in section 165 of the uniform Evidence Act, but in Victoria has been moved into section 31 – so, in New South Wales I think it would still be section 165. But if there are additional directions that are required, in our submission, that is the appropriate way of dealing ‑ ‑ ‑
GORDON J: By section 32?
MR KISSANE: By section 32.
GORDON J: Requesting a direction about unreliability.
MR KISSANE: Yes, yes. Rather than simply a direction which we say ought not be given that the evidence of distress carries little weight, which comes from the common law, our submission is that if there is some need to give any special direction about it – and it was a direction about unreliability of the complainant given in this case – then application is made. Of course, what section 32 does is that if the application is made, it is necessary to specify the matters that make the evidence unreliable so that there is then a discussion as to what it is.
So, in the context of distress evidence, there may be a reason, theoretically, why it is unreliable. Then you would raise it with the judge and say, we request a direction not just that the complainant is unreliable, but she is particularly unreliable in relation to this piece of evidence, for these reasons. Then the court – then it is exposed as to why it is that the evidence is unreliable, and the jury can be directed about that matter – whatever that is.
Then, of course, the jury is not then warned that the evidence is generally considered or considered to be of little weight, whichever format you adopt, but the jury is cautioned or is warned to exercise caution in determining whether to accept the evidence and the weight to be given to it.
GAGELER CJ: Mr Kissane, what is the relationship between section 32 and section 16? Is there an overlap in the subject ‑ ‑ ‑
MR KISSANE: Section 16?
GAGELER CJ: Yes. Are you saying that Division 3, which centrally includes section 32, is the only way that unreliability is to be considered? It is not something that a judge can take up independently under section 16?
MR KISSANE: A judge could take it up under section 16 if there were “substantial and compelling reasons for doing so”. So, if the judge was sitting there, listening to the case, and thought that this particular piece of evidence – distress evidence, for example – was unreliable, and neither counsel had raised it, and there was a substantial and compelling reason to give a direction of the kind set out in section 32, then the judge would be obliged to do so. That is relationship, your Honour. It then comes back to whether there were “substantial and compelling reasons” under section 16.
GAGELER CJ: Yes.
MR KISSANE: So, in a sense, if there is a need to give a direction about distress as a species of evidence that in some way is unreliable, then the application would be made under section 32. Presumably, if a judge thought that section 16 was enlivened, then the judge would come back to the parties and say look, actually, I am proposing to give a direction in relation to the unreliability of this particular evidence, because I consider there are compelling and substantial – substantial and compelling reasons. Then that would be before the parties, they would know it was coming, and, presumably, if the judge made that decision, then he or she would go ahead and give that direction.
GAGELER CJ: So, putting the issue in this case in statutory terms, it is really a question of whether there were substantial and compelling reasons for giving the additional two elements of the direction that the Court of Appeal found.
MR KISSANE: Yes, yes. Our submission is that there is not, because the Court of Appeal was not analysing it that way, they were analysing it in terms of, firstly, the sort of – if I can put it this way – the seeming return to the common law in relation to distress, and at common law, of course, since Flannery, the courts have held that juries should be warned that distress evidence carries little weight. Flannery and those cases also refer to a need for there to be a nexus between distress evidence, and we would submit that the nexus here is just plain and obvious.
BEECH-JONES J: Your submission about the nexus includes that it was accompanied by a complaint, is it not?
MR KISSANE: Yes, and one of the things that happened in Victoria ‑ ‑ ‑
BEECH-JONES J: In Flannery, they used to exclude the complaint, because that was not treated as evidence of the events being complained about, but now it is. So, you do not look at the complaint and the distress, in terms of its potential connection to the charge, separately.
MR KISSANE: That is our submission, your Honour. What happened in Victoria was that that is the way I think it was dealt with, until some return to the common law, and judges started saying there needs to be a direction that distress carries little weight. Our submission is that, since the introduction of the Evidence Act – and, really, since Papakosmas, where this Court held that complaint evidence was no longer limited to consistency or credibility but could be used as evidence of the happening of the event – then distress evidence, in our submission, is in the same category.
GLEESON J: It is independent evidence of the offending.
MR KISSANE: It depends on where it comes from, as to whether it is independent, but it does not need to be – I mean, independent, again, was – when one was considering Flannery and the common law cases, then the reason why there was a distinction between distress evidence and complaint evidence was that complaint evidence could never be independent of the complainant, but distress evidence could be independent of the complainant because it could be given by someone else, and so, therefore, it was capable of amounting to corroboration.
BEECH-JONES J: Mr Kissane, do I understand that the point you were just making was that since the Evidence Act and Papakosmas, that because the complaint is substantive evidence of the events at the threshold of admissibility, the complaint can be included in determining the admissibility of distress evidence as to whether there is a rational connection between the distress and the alleged offence?
MR KISSANE: Yes.
BEECH-JONES J: Right, I understand.
MR KISSANE: In our submission – although, of course, there is always the example of Redpath thrown up, where the distress was observed by somebody completely independently, without any reference to a complaint – but in general, distress evidence would almost always be attached to a complaint. One can perhaps think of ‑ ‑ ‑
BEECH-JONES J: There might be cases where someone is so traumatised, for example, they cannot speak in the immediate days, but that would be a ‑ ‑ ‑
MR KISSANE: But in the main, this form of evidence would come about because somebody says, as occurred here, I was raped. And the evidence of the mother is that when that complaint was made, she was distressed. In that sense, it is independent evidence in the sense that it comes from the mother, but our submission is that under the Evidence Act, that – the independence was a concept that really came about in relation to the distinction between complaint evidence and distress evidence.
Once that falls away, which we say it has, because of Papakosmas and the cases that follow that, which I can come to in due course, there is no need to really worry about whether the distress evidence is independent. In this case, we say it is independent in the sense that it comes from the mother, but there is lots of evidence that is admitted under the Evidence Act that goes in as supporting evidence that is not necessarily independent of the complainant.
So, for example, this Court in Roder dealt more recently with tendency evidence and how that was dealt with, and tendency evidence almost always comes from a complainant, but its use for a tendency purpose would seem to be supportive of the evidence given by the complainant, and in the same way since Papakosmas, complaint evidence now goes in for both consistency and credibility purposes and also for use as evidence of the happening of the event. So, that is evidence that comes from the complainant. That is not independent of – that goes in as supporting evidence, but that evidence is not independent ‑ ‑ ‑
GAGELER CJ: So, here, in terms of – perhaps it overlaps to some extent, but am I right in thinking there is distress evidence directly from the complainant?
MR KISSANE: Yes, there was evidence from the complainant about the stress, and the complainant was cross‑examined about that.
GAGELER CJ: Then there was evidence from the mother which was in part direct observation and in part hearsay. Is that right?
MR KISSANE: Yes.
GAGELER CJ: Yes.
MR KISSANE: So, direct observation of distress, and hearsay in the sense that she says – the mother’s evidence is at the time that she says she was raped and she appeared to be “very, very distressed”. The statement is hearsay, but of course, we would submit – and there was no argument about this on the trial – that that hearsay statement goes in under section 66 of the Act as a hearsay statement, that then, under Papakosmas and IMM and Bauer that follows, is evidence of not just that the statement was made but evidence that – the complaint that is evidence of the matter set out in the complaint. So, it goes in for all purposes, in effect. Whilst there is a hearsay element and a direct observation element, they both go in, in our submission, as evidence that is supportive of the complainant’s statements in relation to the incest charges.
GAGELER CJ: And therefore, the evidence that is relevant according to the test in section 55, and you say that is it?
MR KISSANE: Yes. That is the starting point. It is relevant. The complaint evidence has to get through the additional hurdle of section 66 because it is hearsay evidence.
GAGELER CJ: Yes.
MR KISSANE: And there are criteria set out in section 66 in terms of “fresh in the memory” and then, of course, post‑Graham, that was amended with section 66(2A), which meant that the complaint evidence was not confined to a complaint that was immediately after the event.
GORDON J: In effect, it amended the temporal requirement.
MR KISSANE: Yes, it affected the temporal requirement, your Honour. So, in IMM, it was three or four months after the event; in Bauer, when the case dealt with complaint evidence, the evidence was 12 months after the happening of the last event, and that was said to be evidence that was admissible under section 66. So, there is still a hurdle to go through in terms of it is years and years later, or if it is in another context. There is still a hurdle to go through, but once you get through section 55 and, for the hearsay component, once one gets through section 66, then the evidence is admissible. That is where we say it ends, effectively.
GORDON J: There are two parts, are there not? There is the 55 for all of the evidence, and then you only go to 66 for the hearsay.
MR KISSANE: That is right, your Honour, yes. As I have indicated, 66 was – I think it is 66(2A) was as a result of this Court’s decision in Graham about – and as result of that, the hearsay, in terms of the “fresh in the memory” test, has expanded and there is now not the requirement of immediacy that existed prior to the introduction of subsection (2A). But our submission is that because here and in most cases the distress that is observed is connected to the complaint, then the fact that now the complaint evidence can be taken into account in an expanded version then it follows that there is no reason why distress would be limited to distress immediately after the happening of the alleged event.
GLEESON J: Mr Kissane, it seemed as though the prosecutor relied on the distress evidence in two ways. One was that the distress led to a spontaneous complaint. In other words, the distress caused perhaps a degree of inhibition which led to the complaint, and the prosecutor referred to the complaint being blurted out. That was a use of the distress evidence that really did not depend on any timing issue. Then there was a second point, which was that there was a connection between the complaint and the distress. That is, that by recalling the alleged events that that itself was productive of distress. Do you accept that distinction?
MR KISSANE: Well, I think the first point, he certainly said that – and this is at page 39 of the appellant’s further materials ‑ ‑ ‑
GLEESON J: But my real question is in relation to that. In both senses the evidence is being used one way or another as evidence of the offending conduct, in one case to bolster the credibility of the complaint but in the other case to suggest that it is evidence itself of the offending.
MR KISSANE: Yes, and that is why we say that it was entitled to be used. It is obviously evidence that bolsters the credit of the complainant in that sense, it is evidence that is supportive, but also as direct evidence of – or indirect evidence, I should say, because it is not observed, but indirect evidence of the happening of the events that are complained of. His Honour did not direct in this way, but if one goes back to the decision – this is at core appeal book 73 – one finds the original charge that was used, and the original charge said that if the complainant was distressed when the event happened, and recount the circumstances of the distressed:
the prosecution invites you to use this as indirect evidence that supports the complainant’s account that –
And then that the events occurred:
In other words, the prosecution says that the distress supports a conclusion that NOC was remembering and recounting a traumatic event.
It can become difficult to entangle the two of them, in the sense that the evidence has both effects and both supports the evidence of the complainant in relation to reliability and credibility, but the fact that she is distressed when she is saying that she was raped, in our submission, is indirect evidence of the happening of a traumatic event.
BEECH‑JONES J: Mr Kissane, can I ask you just a quick detail question. The representations made by the complainant at the Children’s Court, are they admissible under 66(2)(b)(ii), or both that and (2A)? Was she under 18? I assume she was at the Children’s Court because she was under 18.
MR KISSANE: She was – sorry 66(2) ‑ ‑ ‑
BEECH‑JONES J: Subsection (b)(ii), which I do not think has a counterpart in the Commonwealth ‑ ‑ ‑
MR KISSANE: I think we would say it is admissible under both of those, (i) and (ii), because she was under 18 at the time. That makes it a bit easier in terms of freshening the memory, I suppose, but ‑ ‑ ‑
GORDON J: So, what was your answer then, Mr Kissane?
MR KISSANE: That there was a blunder in either and both of those because she was under 16 at the time of the representation – and of the representation at the time of the rape.
BEECH‑JONES J: My second question is what exactly is a jury told in giving effect to a warning that the evidence carries generally little weight? Is it actually those words?
MR KISSANE: Well, the “generally” was added by this Court in Churchill. The “generally” was never in the direction before, it was just simply that the jury was warned that this evidence carries little weight.
BEECH‑JONES J: Is there any other category of evidence where a direction like that to that effect is given, as opposed to one warning, you should be cautious, it has this feature, and so forth.
MR KISSANE: Not that we know of, your Honour. That is because it is a warning that comes from a time when corroboration was required ‑ ‑ ‑
BEECH‑JONES J: Well, from Flannery, probably.
MR KISSANE: From Flannery – and collaboration was required and generally ‑ ‑ ‑
BEECH‑JONES J: But accomplices never used to get a warning like that, did they? I mean, the warning – was it not – was you should be cautious in only convicting on the basis of an accomplice given their interest and involvement in the crime. Did it ever get as far? I am generally asking – I do not know – did it ever get as far as to say, you should give accomplices’ evidence less weight?
MR KISSANE: I do not know that it ever went that far, your Honour, no, not less weight – I mean generally. And the warning went so far – warnings in sexual assault cases went so far as, you know, it would be dangerous to convict on the evidence of the complainant in these circumstances, and that has all now been abolished. There were certainly other directions that were given in sexual assault cases that were not of this ilk, but ‑ ‑ ‑
BEECH‑JONES J: Even that, did it not get to the point of saying it would be dangerous but if you consider that it carries that it is so compelling that it warrants it, then do it?
MR KISSANE: Yes. It was dangerous to convict but the jury could still go ahead and do it – which obviously is different words, but section 31 of the Jury Directions Act now uses a much more neutral warning of the jury of the need for caution in particular circumstances.
BEECH‑JONES J: “May be unreliable”.
MR KISSANE: Yes, “may be unreliable” are the words used.
BEECH‑JONES J: Or “need for caution”, that is in 32(3)(c).
MR KISSANE: Yes. In relation to other evidence, that would be generally as high as it gets, other than perhaps post‑offence conduct evidence where there are special rules in the Jury Directions Act about that, but that is not this case.
In the end, what we submit is that there was no requirement for the jury to be warned that evidence carries little weight or, to use the revamped version of the Court of Appeal in this case, that the “evidence generally carries little weight”. There is a particular vice, we submit, in the use of the words “generally carries little weight”, because of course how does a jury determine? The jury is told that the evidence generally carries little weight. How does the jury determine whether they are in a category of cases that it does carry little weight or it does not carry little weight, and what does that all mean?
Then, of course, if the jury asks the judge a question as to, well, is this a case where it does carry little weight? You say it generally carries little weight, but is this a case where it does carry weight? Then the judge is in the territory of it is perhaps giving them a reason, and if the reason is that there has been a delay in the complaint and a delay in the observation of the distress, then we get into the territory of section 51 of the Jury Directions Act, which is ‑ ‑ ‑
GORDON J: This is the prohibition about statements of delay and complaints.
MR KISSANE: Yes, because if you – if the rationale behind giving the direction that the evidence carries little weight – if the jury want to know why that is the case, because they have been told it generally carries little weight, if they want to know whether they are in that category, then the rationale behind that is that a complaint was not made immediately, and so then you get into the territory of a judge potentially giving a direction that is prohibited under section 51.
GORDON J: Does it work the other way, where it generally carries little weight, and that the trial judge then has to justify why this – or identify why it might actually carry some weight?
MR KISSANE: Yes. And that might again mean that the judge is going down the path of discussing matters with the jury about delay in complaining, for example. So it could potentially work the other way, but at the end of the day one of the other reasons why we submit that this sort of direction carries little is because of section 51 of the Jury Directions Act and the sort of territory it gets into, and the addition of the words “generally carries little weight” in Churchill increases that potential because a jury – I mean, it is a very strange direction to give to a jury, at any rate, that something generally carries little weight. What are the jury supposed to make of it?
And if they then ask a question about it, you are potentially in the territory of either saying it is because complainants are an unreliable class of witnesses or because there has been a delay in the complaint, remembering that the direction was originally thought to be appropriate in Flannery because it was said that complainants might put on an act in terms of distress.
GORDON J: But your short point is that is the common law that has been dealt with and it might explain the past, but one should put that to one side.
MR KISSANE: Yes, that is the short point, your Honour, that goes to one side, and it is an additional reason as to why that is the case. One of the additional issues – and I think I have dealt with sections 31 and 32 of the Jury Directions Act. What we submit is that the weight to be given to any particular piece of evidence is a matter for the jury. It is quintessentially a matter for the jury, and a judge should not be directing a jury, particularly in relation to a piece of evidence such as this, as to the weight that should be accorded to it.
The Court of Appeal then says that it would be necessary for the jury to be directed that they could only act on the evidence of distress if they found there was a nexus between the distress and the events complained of. In our submission, that is a direction that also ought not be given. One of the principal vices in relation to that is that it invites the jury, firstly, to assess the evidence in isolation.
What we are talking about is a piece of indirect or circumstantial evidence that supports the complainant’s case, and to give a direction that the jury can only act on that if they are satisfied there is a nexus between the distress and the events has the vice that the jury are asked not to consider the evidence as a piece of circumstantial evidence, but to look at the evidence and to, in effect, decide whether there is a nexus before they can use it.
In our submission, that is not either an appropriate direction or an appropriate way to go about it, particularly in these circumstances where the evidence of distress is given alongside the evidence of the complaint. Then, in my outline – I am not sure, perhaps I do need to turn to these, but I have turned, under this heading to the cases of Papakosmas, IMM and Bauer. They are all cases where the evidence of distress was considered and went in as evidence of the happening of the event. Perhaps if I could briefly take the Court to, firstly, Papakosmas. It is page 291 of the joint book of authorities.
If the Court is using the version in the bound volumes, then, first of all, I would like to take the Court to paragraph 20, where the – this, of course, in Papakosmas, this was a complaint that was immediately after the happening of the alleged events – commencing three‑quarters of the way down paragraph 20:
There was evidence, from the complainant herself, and from a number of witnesses, that almost immediately after the intercourse had occurred, the complainant was in a very distressed condition, crying uncontrollably, and saying that she had been raped. Evidence of her condition, and her distress, was admissible, and in the circumstances could be considered by the jury in determining whether or not she was telling the truth when she said that she had not consented to what occurred. However, when it came to the matter of her statements that she had been raped, at common law a jury would have been directed that they could consider such evidence, not as evidence of the truth of what she was asserting, but as evidence which had a bearing upon her credibility –
Certainly, Justices Gleeson and Hayne in Papakosmas considered that evidence of distress was evidence that was admissible in determining whether the events had occurred. Justice McHugh, at paragraph 78 of Papakosmas, at page 307 of the joint book of authorities, said:
So far as relevance is concerned, no distinction can be drawn between complaint of sexual assault and other forms of evidence that are always regarded as relevant to proof of the charge. Evidence of distress on the part of a complainant is always relevant, within the meaning of s 55(1), to a charge of sexual assault. A complainant who has been sexually assaulted may, but will not necessarily, display outward signs of distress after the assault. Evidence of distress tends to prove that the complainant had been sexually assaulted.
So, that was at a time before the introduction of section 66(2A) and before the changes that were made by Graham. Then I have referred the Court to IMM, which is at 175 of the joint book of authorities, or at page 320 of the Commonwealth Law Reports, at paragraph 73. The Court said:
The complaint evidence was tendered for the purpose of proving the acts charged. Given the content of the evidence, the evident distress of the complainant in making the complaint and the timing of the earlier complaint, it cannot be said that its probative value was low. It was potentially significant.
There, the Court dealt with complaint and distress evidence. That was some time after – not years, but months after the happening of the event. Interestingly, I think it is said against me that there is a potential to misuse complaint evidence. Interestingly, at paragraph 74 of IMM, the Court went on to, in effect, find that there was no reasons to think that the jury would misapply the evidence. So, in our submission, that applies ‑ ‑ ‑
GORDON J: That is predicated on what had happened at that trial.
MR KISSANE: Yes. We say there is no risk that the jury would misapply the evidence in this case, and I will come to that in due course. Just to finish this ‑ ‑ ‑
BEECH‑JONES J: In IMM, was the distress evidence sought to be relied on as something independent of the value to be given to the complaint evidence? I hate to use the word “independent” – separate from, as it were.
MR KISSANE: Separate from, yes. Well, often it is bound up in the complaint evidence. In one sense, to the extent that it supports the complainant, it can do so in both, we say, in directly supporting the happening of the event but also in supporting reliability and credibility, which includes the complaint evidence. So, the courts in these cases were not specifically dealing with distress evidence but this generally indicates that, as a species of evidence, it is evidence that is, in our submission, admissible under section 55.
In Bauer, if I could turn to that, there was a discussion in Bauer about this and, again, the issue of distress evidence as separate evidence was not the issue but, nonetheless, if I could go to the joint book of authorities at page 316, which is page 102, paragraph 92. In Bauer, the issue was the – this is under the heading of “Fresh in the memory” – so, it was, in general, the issue of admissibility under section 66. In Bauer the complaint was approximately 12 months after the happening of the last alleged act. The Court said in Bauer, too, in dealing with the representations:
To the contrary, given the nature of the sexual acts alleged ‑ ‑ ‑
GORDON J: I am sorry, Mr Kissane, where are you reading?
MR KISSANE: From page 102. Is your Honour is dealing with the joint book of authorities?
GORDON J: Just the report.
MR KISSANE: Paragraph 92 of the report, from just over halfway through that paragraph.
GORDON J: Yes, thank you. I understand now, I apologise.
MR KISSANE: That is not a problem, your Honour:
To the contrary, given the nature of the sexual acts alleged, the fact that they were repeated time and again over a period of years, the fact that it seems they continued up to less than a year before the conversation with AF, and RC’s highly emotional state at the time of the conversation with AF, it is very probable that the events disclosed to AF were vivid in RC’s recollection at the time of the conversation and would remain so for years –
In terms of RC’s highly emotion state, then there were various passages set out earlier in this section, particularly at paragraph 90, that details the emotional state. It details how it was said that RC was “upset and crying”, et cetera, et cetera. I do not think I need to go through that. The Court then went on, at paragraph 98 in Bauer, to find that – this is at halfway through paragraph 98:
For the reasons already given, the jury were at least as much entitled to conclude that RC’s representations to AF had the compelling ring of truth and reliability about them and hence that AF’s testimony significantly supported the credibility and reliability of RC’s testimony concerning the charged offences.
We take that to read, “for the reasons already given”, a reference back to the matters set out in paragraphs 90 and 92, that is, that the nature of the acts, they were repeated over time, the highly emotion state of AF.
So, there is no suggestion, in our submission, in any of those cases that were dealt with in this Court post‑the Evidence Act that there was any need to warn a jury that distress carries little weight or any need to particularly say to a trial that they could only act on that evidence if they are satisfied there is a nexus between that and the charged acts. So, in our submission, the evidence in this case that the complainant was distressed, and it particularly does come from the mother, was highly relevant, highly admissible and not evidence that was of limited weight, as the court – and, thus, there was no need for such a direction.
What we then submit is that once it is recognised that the distress evidence is to be considered together with the complaint evidence – and that was the nature of the evidence in this case – there is no need for a jury to be directed that they can only act on it if they find a causal link. The link between the distress and a complaint about a traumatic event is obvious and simply a matter, we would submit, of ordinary human experience.
What we submit is that the fact that there are other possible causes of distress does not make the evidence incapable of being used as indirect support of the charges, and this is, as I understand it, the notice of contention that has been raised, that here the evidence or the quality of the evidence is such that it was incapable of being used to support the direct – as indirect support of the charges. Our submission is that the fact that there may be other possible causes of distress does not either make the evidence inadmissible, nor does it require the jury to be directed that they can only act on the evidence if they find a nexus or they can only act on the evidence if they exclude all other reasonable explanations for the distress.
What we submit is that it simply ought to be treated as a piece of evidence – indirect, obviously, because it is not evidence of observation of the happening of the event. It is not a requirement that the jury can only act on that evidence if they can exclude all other reasonable explanations for the distress, because that is essentially a requirement that they can only act on that particular piece of evidence if they are satisfied beyond reasonable doubt of the evidence, and our submission is that it actually is not the case. It is a piece of circumstantial evidence that goes in as part of the case. The jury can give it what weight they determine is appropriate. It is certainly not a case where a jury can only act on the evidence if they can exclude all other reasonable explanations.
Our submission is that that is putting it too highly, it is, as a piece of evidence, it would be – I think the Court dealt with in Roder – it is prohibited by section 61 of the Jury Directions Act to direct a jury that they would have to be satisfied of this particular piece of evidence beyond reasonable doubt before they acted on it. In addition to section 61, it is also inconsistent with – and the Court in Roder went on to consider the common law – the case of Shepherd v The Queen, if I could take the Court briefly to that.
JAGOT J: Are we going to Roder or Shepherd, sorry?
MR KISSANE: I am not going to – I am going to Shepherd at the moment, your Honour.
JAGOT J: Yes, okay. Thanks.
MR KISSANE: At page 417 of the joint book of authorities, this is at page 578 of the report, from the top of the page:
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances . . . Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial involved is slight, a direction in those terms may be confusing . . . there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence.
So, what we say is that to require a direction for the jury, which I think it is said against us to some extent, that the jury needs to exclude all other reasonable explanations, is tantamount to requiring the jury to consider that piece of evidence beyond reasonable doubt. I wondered if I could – I took this out of the book of further authorities, but I did want to refer to the case of Doney v The Queen. I can hand that up, if necessary.
GAGELER CJ: Do we need to look at it, or can you just refer us to ‑ ‑ ‑
MR KISSANE: Well, perhaps you do not. I can read it out, your Honour. Your Honours may not need to look at it.
GAGELER CJ: Yes, I think that is good enough.
MR KISSANE: In Doney at page 211:
It is well settled that corroboration may be in the form of circumstantial evidence –
Starting at that paragraph:
Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred.
It then goes on to say that:
Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded . . . But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved –
So, what we submit is that, yes ‑ ‑ ‑
GORDON J: It is the next sentence, which is important too, is it not:
It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt.
MR KISSANE: Yes, yes. That is, we say, well settled. We say that this is a piece of evidence that goes in as a piece of evidence to be used by the jury. Of course, since Doney – although Doney is, as her Honour points out, authority for the proposition that another explanation does not have to be excluded beyond reasonable doubt – the Evidence Act (Vic) in section 61 now precludes the jury being told that they need to be satisfied of something beyond reasonable doubt unless it is the ultimate issue or the element that the jury is concerned with.
Then, to the extent that this concept of intractable neutrality arises, we submit that it is not an approach that really comes from the Evidence Act. It is a term that, from time to time, has been used in Victoria, particularly – it comes from a case called Ciantar – particularly in circumstances where a piece of evidence, such as post‑offence conduct, can be said to equally apply to a more serious charge and a less serious charge, so therefore it is intractably neutral between the charges.
It seems to have found its way into this, and, certainly in the most recent Court of Appeal decision in Tsalkos – the court there went down the path of considering evidence to be intractably neutral – but we submit that that is not an appropriate way to deal with this. The question is whether it is admissible with their other explanations, then that is simply a matter for the jury. This is not a case where the concept of intractable neutrality should apply.
GAGELER CJ: Mr Kissane, you just mentioned this case of Tsalkos.
MR KISSANE: Yes.
GAGELER CJ: We understand that an application for special leave to appeal has been made.
MR KISSANE: Yes.
GAGELER CJ: What, if any, impact do you say that procedural development has on the determination of this case?
MR KISSANE: Well, it does not – obviously, this Court is not bound by the case. We have sought special leave – it may be, depending, because there is a notice of contention here – which we will come to more fully, but because there is a notice of contention, many of the issues that are raised in Tsalkos may well be dealt with by this Court, so it may end up being a visitation case, depending on how things develop.
BEECH‑JONES J: The ultimate holding of Tsalkos, as I understand it, was that the distress evidence in that case was inadmissible.
MR KISSANE: Yes.
BEECH‑JONES J: On the three judges. So, that is why you say they overlap with Mr Walker’s notice of contention?
MR KISSANE: Yes, on the basis that – because, in Tsalkos, the court said it was inadmissible because it was intractably neutral, and one of the arguments Mr Walker is making, I think, is that the evidence here is intractably neutral. So, in that sense it overlaps ‑ ‑ ‑
BEECH‑JONES J: It also may overlap because it may be that, on the raising, the question of its connection was not done by having regard to the fact that the distress accompanied the complaint, as I understand it, which is one of your points.
MR KISSANE: Yes. It is, your Honour. And in most cases – I think I said in almost all cases – distress and complaint are tied together. But I am not sure I can answer your Honour the Chief Justice’s question any further than that. We have appealed it, it will play out, but it may be that it will play out differently because of the Court decision in this case.
But certainly, as his Honour Justice Beech‑Jones points out, the issue of intractably neutral and the use of that concept is one that at least in part overlaps with the notice of contention in this case. As to the unfortunate timing, we were up to the reply stage before the appeal – the decision in that case was late last year; the reply was due on the same day that, I think, we lodge the notice of appeal.
GORDON J: The reply in this case?
MR KISSANE: The reply in this case, yes, and the date for hearing had been well set. So, that is why I say it may be that it will proceed as a visitation case, depending on – or maybe it will be sent back to the Court of Appeal, but, I mean, that is a question, I think, for another day your Honour. But what we submit is that that concept of intractable neutrality is not one that arises under the Evidence Act and it is not, although it has been a term that is used, but I think it came – it probably comes, in Tsalkos, from the decision that is before this Court, Flora, which talked about intractable neutrality in this case, and made a comparison between evidence of distress and evidence of post‑offence conduct, I think. I might be wrong about that.
In any event, what we submit is that Doney and Shepherd are authorities for the proposition that other possible causes of distress do not make the evidence incapable of being indirect support for the charges. Then, finally, in terms of dealing with this concept of whether the evidence is intractably neutral ‑ ‑ ‑
GORDON J: Do I understand your submission to be that that identification of it being intractably neutral is usurping the jury’s function, or is it at the earlier stage of, in effect, redoing the section 55, 66 analysis? I do not actually understand at what point that intractable neutrality question is supposed to arise. If you start, as the authorities and I understand your submission, with section 55 and relevance, then it is admissible. So, the intractable neutrality arises, notwithstanding it is admissible. So, is it a jury usurpation function or is it a redoing of the 55 and 66 or is it something else?
MR KISSANE: We say it is potentially both, your Honour. It could be a redoing of 55 and 66, or it could be usurping the jury’s function to determine the weight to be given to the evidence. But ultimately what we submit is that it is not a concept that ought to gain any credence in this Court, because what this Court should do is to look at the evidence through the prism of admissibility in the Evidence Act, and section 55 and 56 and that once, if it passes that test, then it is a matter for the jury, and you do not separately take it from the jury. I think, because of that concept – I think, in Tsalkos, the court ultimately said that by deciding it was intractably neutral, it meant it was no longer admissible.
GORDON J: That I why I am asking.
MR KISSANE: So, they were going back to section 55 and imposing on the admissibility of evidence, but not only the requirements in section 55 but, in order to be admissible, it cannot be intractably neutral – which, we submit, is not the way the Evidence Act works.
GORDON J: Thank you.
GLEESON J: Presumably, we are not dealing admissibility, here, we are dealing with use according to the notice of contention. And that is because there are two ways in which the distress evidence is relevant, which are the two that I described before – and the use as evidence of a spontaneous and therefore true complaint is not affected by the intractable neutrality point at all, is it?
MR KISSANE: We would say no, your Honour. It is evidence that we say is admissible and then the jury can give it what weight it determines. It is admissible for both purposes. And if there is an alternative explanation – which is where the intractable neutrality concept comes from, I suppose – if there is an alternative explanation, then that is well within the jury’s province to determine and to decide what use to make of the evidence – not to decide whether it is intractably neutral or not, but to decide what they are going to do with the evidence. It is a concept that can become quite knotty, your Honour. But to finish, if I may, I just wanted to return to what the evidence in this case actually is.
GAGELER CJ: Mr Kissane, how much longer is the balance of your submissions?
MR KISSANE: No more than 10 minutes, your Honour.
GAGELER CJ: We will take the morning adjournment at this stage.
AT 11.19 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.35 AM:
MR KISSANE: Thank you, your Honour. Finally, in terms of dealing with the issue as to other possible causes of distress, I wanted to take the Court to, actually, the evidence in this case, starting with the evidence of the complainant’s mother, which is – if one needs to make a distinction between independent evidence and non‑independent evidence, it is the independent evidence. Page 23 of the appellant’s book of further materials, starting at, effectively line 23:
Sorry, do you recall anything specifically that [the complainant] said to you at the Children’s Court?‑‑‑Yes, I do. She – do you want me to elaborate?
. . . Yes, okay. She told me that [the respondent] had raped her.
And she did give any other details about that ‑ ‑ ‑
GAGELER CJ: Is there a difficulty with mentioning these names?
MR KISSANE: I probably should not have done that, your Honour. There probably is – yes, apologies. I will use “ the complainant”, I think, if that is ‑ ‑ ‑
GAGELER CJ: Yes, and the names will be struck from the transcript.
MR KISSANE: Yes. I am grateful to your Honour for that reminder:
do you recall anything specifically –
the complainant:
said to you at the Children’s Court?‑‑‑Yes, I do. She – do you want me to elaborate?
. . . She told me that –
the accused:
had raped her.
At this point, she says she cannot remember, and then over the page, on page 24, she is asked this:
Do you recall the manner when she said that to you?‑‑‑Yeah, she was very upset, very, very distressed.
She answered the next question:
She was yelling and I now can remember a few more things she said.
Then, in the next question:
I remember her telling me that it was my fault because I brought –
the accused:
into our lives.
Our submission is that, as a discrete piece of evidence, that well and truly is admissible and establishes the distress of the complainant, and can be used both in terms of the credibility and reliability of the statement that she had been raped and as evidence that the traumatic event had occurred. If I can then take the Court to the cross‑examination of the mother, it starts at page 26 and there is general cross‑examination:
It was not long after that:
the complainant’s – this is at the bottom of page 26:
behaviour started to seriously deteriorate . . .
And by late 2006 she had run away from home?‑‑‑Yes, again I can’t remember dates.
Then there is some cross‑examination:
at the Children’s Court and you’ve described her having what you called a meltdown, do you remember saying that?‑‑‑Yes.
The mother, in her evidence, did not say “meltdown” but she certainly conceded that the use of that word – there is a general – there is then questions about describing:
her behaviour . . . as erratic, violent and psychotic –
She says:
Yes, I did use the words psychotic and I don’t think it was the right word to use. It was just crazy, it was just out there.
Then there is a series of questions in that page about those words that finishes over the page, on page 26, where it is – after talking about all those matters, it is then said:
Anyway, you ultimately ended up at the Children’s Court after the Department of Human Services had got involved and there was the incident you’ve described with –
the complainant:
shouting at you in the waiting ‑ ‑ ‑
BEECH‑JONES J: Sorry, Mr Kissane, where are you reading from, what page, again?
MR KISSANE: Page 28 now, your Honour.
BEECH‑JONES J: Page 28, about how far down?
MR KISSANE: From line 6.
BEECH‑JONES J: Thank you. I see.
MR KISSANE: So, the submission I make about that is that it was open to the accused to put forward a separate – a different explanation for the distress, but the evidence goes from the general to the particular and back again, and it was equally open to the jury, we would submit, to reject that evidence, some of which was about what happened at the Children’s Court, but some of which was just about general behaviour, not specifically related to the event that the mother has described. The same can be said in the respondent’s book of further materials. There is discussion in there, which is at page 4:
I’ve got six diagnosed mental health conditions –
Then the six are set out:
Borderline personality disorder, panic disorder with agoraphobia, generalised anxiety disorder, social anxiety disorder, and major depressive disorder.
I simply want to make the point that that seems to be in the present tense, and at the time of the VARE – and, in fact ‑ ‑ ‑
GAGELER CJ: What is the context of this?
MR KISSANE: Simply that no weight ought to be put on the alternative explanations.
GAGELER CJ: I am sorry, whose evidence is this?
MR KISSANE: Sorry, your Honour, the VARE, that is the evidence‑in‑chief, in effect, of the complainant.
GAGELER CJ: Thank you.
MR KISSANE: So, the VARE being the recorded evidence that is played as evidence‑in‑chief. I am simply making the point that, in relation to that, that that is at the time of the VARE, the making of VARE, not necessarily at the time of the complaint, which was some time earlier.
In any event, we accept there was cross‑examination. It was open to the respondent to posit another theory about the distress evidence. But we would submit that it remains the case that the evidence of distress was admissible and a matter for the jury. What we contend – so, what we submit is that it was admissible. At the end of the day, the respondent’s case before a jury, as we perceive it, was that the complainant’s evidence was made up. One sees that in the final cross‑examination of the complainant, at page 21 of the appellant’s book of further material, where it is put to the complainant, from line 3:
you never told anybody until the Children’s Court incident in 2007 because there was nothing to tell. Nothing happened between you and [the respondent]?‑‑‑No. It did. It absolutely did.
Then, at line 11, when she rejects the suggestion that the complaints did not occur, at line 11 it is suggested:
you’re making all of this up and you made all of this up in 2007 to blame [the respondent] for your (indistinct) behaviour at that time?‑‑‑Absolutely not.
So, that was the issue that was before the jury, and we say, in determining that issue, the distress evidence was relevant and admissible.
If I can just come back briefly to the discussion that we had earlier with Justice Gordon. In terms of the direction that was given by the court in this case, I perhaps should have pointed out at the time that in the definitions section of the Jury Directions Act, there is a list of general directions in section 3, and it includes:
the drawing of conclusions and the distinction between direct and circumstantial evidence –
indirect evidence, and then, at section 10 of the Jury Directions Act, the discussion in section 12 does not apply to the general directions. So, there ends up being a scheme in the Act where the general directions are ones that the judge is required to give and are not subject to the discussion.
Whilst I submitted at the outset that, at the end of the day, we submit that the judge did not make an error in the direction that he gave in relation to this evidence and that there was no warrant for the Court of Appeal to impose the additional directions that they said were required, in terms of this case having ramifications beyond this case, then our submission is that the direction that was in the charge book, which is set out in the judgment of the court below that was in play before 2021, is the appropriate way of dealing with this evidence.
GORDON J: You mean what was in paragraph 39 – is that what you mean?
MR KISSANE: That is the one, yes, your Honour. So, because of what had occurred, his Honour did not give the direction in those terms, but we submit that the direction in the terms that was originally in the charge book in paragraph 39 is, subject to whatever happens in the case, is not an inappropriate direction to be given.
BEECH-JONES J: Do you mean that direction in 39 as part of a direction about inferences?
MR KISSANE: Yes. Well, it could fit there – in distress evidence – I mean, in some ways, in distress evidence, if the direction is asked for it may be more that was not done in this case, it would seem to be separated off from complaint, but you may move from complaint evidence to distress evidence since they are tied, and give that direction straight after that. If that answers your Honour’s ‑ ‑ ‑
BEECH-JONES J: It is more a matter of, if the prosecution is saying you can found an inference based on the distress ‑ ‑ ‑
MR KISSANE: Yes.
BEECH‑JONES J: It would seem to me you would need to give it, in the context – I am just suggesting maybe then you would give it in the context of the inference.
MR KISSANE: Yes.
BEECH-JONES J: If the prosecution is not saying that, and it is bound up purely with the complaint, then that might be different. That is my view.
MR KISSANE: Yes, it would fall away. But if the direction is asked for, then that would be an appropriate direction to give, we submit.
GORDON J: I am asking some very basic questions, but that means that the answer you have given is subject to the requirements of section 10, which is the reason why, I assume, you are taking us to other – in other words, there would still have to be the requirement for the general direction about the drawing of conclusions and the distinction between direct and circumstantial evidence.
MR KISSANE: Yes, that would be required.
GORDON J: And what about the caution paragraph that is in the current – in the directions subject to this appeal? I am breaking it up into components, and that is possibly not the appropriate way to do it, but I just want to be clear in my mind. Section 10, I understand what you say about the general directions. Then we have what you say is the preferable charge in respect of the distress, in paragraph 39. But then what we have is then another paragraph which deals with caution.
MR KISSANE: Yes, and that may or may not be – in this case, there was a paragraph that deals with caution about use of indirect evidence, which ‑ ‑ ‑
GORDON J: What I am asking is, in the charge book, as part of the drawing of conclusions and distinction, was there a caution paragraph that was attached to that, or was a caution paragraph attached to distress?
MR KISSANE: The caution paragraph was attached to circumstantial evidence and inferences in the charge book.
GORDON J: Thank you.
MR KISSANE: So, it was not specifically attached to distress, but what his Honour was trying to do, here, was to work out a way through this, and obviously saw that, having given an example of indirect evidence, it was then appropriate to give, immediately following that, the warning about the use of indirect evident. So, not all charges would be constructed in the same way, obviously, but it is part of the charge book that that direction would be given, as we understand it.
GORDON J: Thank you.
MR KISSANE: That completes the submissions for the appellant.
GAGELER CJ: Thank you. Mr Walker.
MR WALKER: Please the Court. Your Honours, could we start, in direct response to matters that have fallen out during my friend’s address, with framing both the way in which the appeal was determined below, the way in which we seek – including with our notice of contention – to defend that outcome here, in light of the way the trial unfolded as described and understood by the Court of Appeal below.
Your Honours do not need to be reminded, factually, that this is one of those of cases – not alone, alas – where a great deal of time had elapsed by the time of trial from the time of the alleged conduct the subject of the charge. It is a case which has its own facts, not particularly peculiar but particular to it, concerning, in turn, the timing of the complaint evidence in question. It was not complaint evidence in close temporal proximity to the conduct, it was about a year.
It was also, and for related factual reasons, not a case where there was distress, that is, apart from or separated from the occasion of the alleged complaint which was proved, for the purposes to which it can properly be put in such a case, being distress that closely accompanied the alleged offending – there being well known and paradigm cases where the distress almost immediately after the alleged conduct has, as your Honours would readily appreciate, a role in the assembly of all the admissible evidence and its consideration by the jury which simply could never be regarded as negligible or, as it were, inherently or a priori suspect.
BEECH‑JONES J: By that submission, you mean some type of distress evidence without complaint, but in the immediate aftermath?
MR WALKER: That is right. So, the discovery of a physically incapable, dishevelled and utterly distressed young woman in a particular location at a particular time is not, in any way, the object of any of our arguments that succeeded below and which we seek to defend with the contention here concerning either admissibility – which was not in question – or use, which might lead to a 136 restriction, but could obviously also be the subject of prior arrangements – if I can put them that way – between judge and counsel in the absence of the jury, to some of which I will be coming in this case.
This is not a case concerning distress of that kind. One of the problems – the difficulties in the course taken by Bench and Bar at the trial in this case was that – not, probably, for the first time; I fear not for the last time – shorthand does not always aid efficiency, because the shorthand reference to “the distress direction” really begged the question as to what content, particularly as the best estimate we can give you, from the materials exhaustively assembled by the Court of Appeal, is that there was no distress direction which would have been apposite to the matters which were the subject of debate between trial judge and counsel in the passages to which I am going to come.
It was not just distress of a kind which, as I say, in the paradigm case, need not be accompanied by a complaint at all. Indeed, the distress may be of a kind which would render it quite inappropriate to expect anything to be articulated by a person heavily distressed. So, no complaint, but distress – admissible? Yes. We are not about that kind of case. Neither are we about altering standard directions, rewriting Bench Books – which have their uses, but do not make the law, and obviously, as is quite graphically shown in this case, get to be rewritten, perhaps not always appropriately, in the light and understanding of up‑to‑date appellate decisions in the relevant jurisdiction. That happened in this case; I am going to come to some of that detail.
One of the reasons why we are not concerned with something at that level of generality and the consideration of the correctness – that is, the absence of error – of the Court of Appeal’s decision in this case is, of course, highlighted by the way in which the Court of Appeal spelled out the consequences of the outcome which they had reached. It was that there would be a retrial, but not with any Court of Appeal prescribed form of words which would have to be uttered by way of a jury direction, shaped in accordance with the statutory provisions culminating in 16 – to which I will come – at all.
They said, understandably, that bearing in mind that the evidence would, no doubt, not be exactly the same – and if between the lines your Honours would also read – and bearing in mind that there would be more self‑conscious consideration of certain matters in the retrial, it would be a matter for the trial judge to consider in the circumstances then obtaining, after evidence had been adduced, where defence counsel makes whatever decisions he or she then considers appropriate concerning objections to admissibility, or an imposition of restrictions on use, or even that particular form of objection to admissibility, which is 137 – all of those were possibilities that were just hypothetical, not the subject of the Court of Appeal, but not precluded in a retrial.
As to the matters where error had been shown at trial, according to the Court of Appeal’s decision, they, of course, focused in particular upon, what I am going to call – I hope not neutrally; certainly not intractably neutrally – the use to be made of the evidence of the distress accompanying framing, couching the complaint in question. To remind you, that is the, I will call it, outburst in the so‑called meltdown variously described – I will come to some of that detail later – in which the allegation of rape was among those assertions understood by the mother at the time to be reasons why she, the mother, was responsible for the straits in which the daughter found herself. It does not matter that later the daughter reaches, apparently, a different view about the extent, if any, to which the mother was responsible. That is how the mother understood it – the daughter accepts that is how it appeared what she was doing.
As your Honours know all of that, in circumstances where – as the Court of Appeal has catalogued and collected in a passage, to which I will come later – there were very evident, weighty explanations for the distress – I am not talking about the complaint – other than sexual penetration about a year beforehand – criminal penetration. That highlights what, in our submission, is critical in the differences between the parties before your Honours about the issues in this case.
When one focusses on the use of the distress material, you cannot, of course, factually – or, in the context of this case – divorce it from the complaint which was advanced in the behaviour, which also included the distress. There is speech and physical and appearance phenomena, all of which combined; there is semantic content, that is the complaint; and then there is what I will call “demonstrative affect”, which is the distress. It is at that point that, as another general proposition concerning the way in which our friend has addressed, I want to say this as a general response.
Of course it is true – you will see it in even more in the various reasons in Tsalkos – that the directions, which evolved in the manner I am going to come to in the Court of Appeal in this case, derive from authorities which advance judicial views about what I am going to call the ways of the world as they may be differently seen by lay people and by those who preside over contested trials on indictment where the caution is institutional – that is, the location of the burden of proof and its standard.
In the days of corroboration necessary for offences of certain kinds, which notoriously included sexual offences, they required, in order that the particular or defining characteristic of corroboration be made out, what came not very helpfully to be called a requirement of independence. Justice Beech‑Jones has drawn to attention that if that word was ever useful in times of corroboration as a gateway, it has certainly lost its use now and it may, in any event, be too ambiguous.
But, in our submission, what is valuable for jurisprudence today concerning the use and therefore warnings or directions that might be required concerning distress evidence accompanying a complaint, is that in the old days when something needed to be corroborative in order to be admissible or, more to the point, it was a threshold question concerning the viability of the Crown case that there is corroboration, obviously close attention was paid in an adversarial way to what was necessary in order for something to answer that description.
This quality – it is not nebulous, but it is not precisely described – of independence was absolutely essential in order to avoid the bootstraps exercise that courts had been observing about certain shortcomings in trials for decades, maybe more than a century. That is a familiar proposition whereby self‑corroboration is not corroboration for the purposes of the then legal document requiring corroboration.
At the same time, of course, one has in tandem operating the former regime before section 66 of the Evidence Act, before its explication in Papakosmas, concerning the limited use that could be put to the reception of the out‑of‑court statement, the hearsay, of a complainant, consistent or not with the case advanced through the testimony of the complainant in the trial itself. And your Honours remember, and Papakosmas contains, with respect, a piquant description of the distinctions which those principles inevitably require to be drawn, and queries about whether that accorded with a robust approach to the trial in contemporary society of such matters.
In any event, again, that had the valuable mental discipline of requiring an understanding of what use was being proposed to be made of the advancing of the evidence of an out‑of‑court complaint said by the Crown to be consistent – or sufficiently consistent – with the case now made based on the testimony of the complainant.
It is not the case that warnings against circularity or self‑corroboration, or an illusion of greater strength being added by repetition when the question is whether the story is true or not – it is not a matter of those fading as very important considerations for the court by reason of corroboration having been removed, and by reason of section 66 having affected the use of such hearsay. Because it is inherent in the nature of the factual reasoning – not legal questions – by a jury about such material as, how can I use this, what does this add by way of supporting or strengthening the Crown case.
That is why, in our submission – pace something that your Honour Justice Beech‑Jones raised with my friend – it is not a case of section 66 in light of Papakosmas meaning that there is no need for caution or there is no need for restraint in looking at the semantic content of the complaint accompanied by distress in order to answer the question of whether the distress is indicative of the original offending. As your Honours may or may not know, that is a matter which divided their Honours, the majority favouring the approach that recourse could not be had to the complaint when considering whether the distress in question was sufficiently linked to the conduct about which the complaint was being made – that is in Tsalkos.
That accorded with in a consistent line of authority, traced in Tsalkos – there are references in our written submissions; I will come to highlight some of them a bit later – as to how that had continued after corroboration had gone, after section 66 had made the hearsay evidence of the truth of the representations in it, and by courts, which were by no means unmindful of those changes, fully taking them into account, but properly regarding the question, what use can be made of this material, as not depending upon what regime there was for corroborative evidence being required for certain offences and what regime there was for whether hearsay could be used as evidence of the truth of the representations contained in it, but rather, as to the factual logic, not legal in its essential character, as to how certain material might answer the descriptions now contained in sections 55 and 56 which are at the heart of the matter. We accept that.
BEECH‑JONES J: Mr Walker, if the question of evidence is already in and the question arises whether a use is permitted, do you agree that that is then governed by asking a question: could it have been admitted solely for that purpose?
MR WALKER: I am not sure that I would put that as a screening question, but that will be one of the ways in which you can look at the question – yes.
BEECH‑JONES J: Certainly part of the inquiry.
MR WALKER: Absolutely. You do not have, in this case, a trial where there was an objection to admissibility, a direction sought as to restricted use, nor a particular form of objection to admissibility which, as it were, concedes the relevance but points to the balance of factors in section 137. So, we did not have any of that, and so ours is a case – which the Court of Appeal appreciated – was to be understood as the evidence is in and now the question is should there have been different, we would say, better directions than were given.
Could I, at that point, again as a general matter in answering the way in which my friend has addressed, respond to a matter which both parties have put in writing concerning what is sometimes called – perhaps only grandiloquently – the constitutional role of the jury. Yes, the jury is the fact‑finding tribunal, but it is not true that judges do not have a role in that, and I do not need to rehearse the citations we have given in our written submissions. Of course judges have a role. It is because the jury has that large task that it is proper, and in some cases necessary, and in even other cases required by statute, that they have certain directions given to them with the authority of the presiding judge, that is, other than the persuasiveness of the counsel at the Bar table.
That is why, in our submission, caution should be felt by this Court in regarding the cliché that that is a matter for the jury, or that is the jury’s job, as somehow excluding a role of judges, because the job of the jury is one which does require appropriate assistance from time to time by the judge. Now, to come to a point, which we accept is significant, as our learned friend has emphasised in address, part of our case and part of the Court of Appeal’s detection of a miscarriage requiring a retrial, concerned this direction about weight. Without fishing around in screwed‑up drafts, it suffices to say that the word “generally” has been introduced, and the Court of Appeal was aware of its history, and I will take you to it.
It is to be recalled that the outcome in this case which we are seeking to uphold is for a retrial without any prescription as to what the directions should be rather because of deficiencies in the directions or non‑directions that did occur. But without the court compelling a retrial to be heard with any particular form of words and, indeed, even allowing that, depending upon how matters fell out at the retrial, both in evidentiary and argumentative terms, and obviously the particular judge’s assessment of the particular jury, there might not be any such direction in terms of generally of little weight, et cetera – particularly with that, I accept, problematic word “generally”.
My friend is right to point out that the word “generally” begs the question of what are the cases that fall within the general position. In our submission, however, that does not show error in the Court of Appeal, because the effect of their holding is not to compel a retrial to be held with that form of words at all, but rather for a do‑over, bearing in mind that what did happen in the way I am going to show was deficient.
Now, the great value, if I may say so with great respect, of this Court visiting the matter at this stage – that is, before the retrial has been had – is that if there is more caution than even the Court of Appeal noted ought to be felt about what form of words would actually be necessary, then that can be taken into account to the advantage of the administration of justice.
GLEESON J: The finding at the end of paragraph 42, which is that the circumstances:
required the trial judge to direct the jury –
in certain ways, is that not relevant to the order that the convictions are set aside?
MR WALKER: I am so sorry, your Honour ‑ ‑ ‑
GLEESON J: Did I say 52?
BEECH‑JONES J: You said 42.
GLEESON J: I meant 52.
GORDON J: Top of page 78, Mr Walker.
GLEESON J: You are saying that that does not involve error?
MR WALKER: That is right. In our submission ‑ ‑ ‑
BEECH‑JONES J: Unless we know what they had in mind, how do we know the trial judge got it wrong? You are going to come to that?
MR WALKER: I will come to an answer to that and to Justice Gleeson’s question immediately. What paragraph 52 does is address together the double aspect of the error that was argued below. The second of them – the order does not matter – is the one I am talking about at the moment, namely, the:
evidence generally carries little weight.
Your Honours know that that has to be read in light, as I have been somewhat laboring, of paragraph 55.
GLEESON J: But also 53.
MR WALKER: No, your Honour, of course I am not leaving it out. I can only deal with them one at a time. But it all ends up in 55. We detect error, what will be needed at a retrial will depend upon that.
Now, the question about weight can hardly be divorced from the exigencies of a particular trial with its particular evidence. That, if I may say so with respect, is one of the reasons why the adverb “generally” might be problematic. But then, that is a matter which can and should be left to the judge at retrial after hearing appropriate argument. We can and should retain the benefit of the outcome because the trial, for the reasons I am going to come to, regardless of what might be problematic about the notion of a direction that such evidence “generally carries little weight”, was deficient, particularly concerning the way in which there was a failure properly to identify the consequences of the use to which the prosecution eventually sought to put this evidence.
That, of course, very largely focuses on how one can use distress as evidence – albeit indirect – of the offending conduct, as opposed to one of the other familiar ways to use such evidence: context either of somebody’s observation of a victim almost immediately after the offence, which is not this case, or if the distress is accompanying a complaint as context, as it is sometimes called, of the complaint itself.
GAGELER CJ: Mr Walker, can I just go back a step or so. As I understand the structure of the Court of Appeal’s reasoning, it is pretty simple. It is that there was a miscarriage within the meaning of – I think it is section 276(1)(a) of the Criminal Procedure Act, the miscarriage being a failure to comply with section 16 of the Jury Directions Act.
MR WALKER: Yes, if I may say so, that is a very compressed version, but yes, your Honour. Yes.
GAGELER CJ: By reason of the failure to give the two specific directions identified in paragraph 52.
MR WALKER: Yes, is the answer.
GAGELER CJ: Are you defending that, or are you adding a direction or are you modifying the directions?
MR WALKER: Not modifying a direction. I am pointing out that the outcome includes 55. In other words, it does not say in order to be properly conducted, a retrial must have that form of words.
GAGELER CJ: But we are at the earlier stage of the miscarriage ‑ ‑ ‑
MR WALKER: Certainly. But I am here defending an order for a retrial.
GAGELER CJ: Yes. That is derivative.
MR WALKER: Of course. We only got the retrial in the Court of Appeal because of sufficient – I will call vaguely error so as to amount to the statutory miscarriage with its appropriate character, so as to give rise to the need for a retrial.
BEECH-JONES J: Mr Walker, are you saying, look, read literally, 55 may overstate the nature of the omission in the direction? Would that be ‑ ‑ ‑
MR WALKER: Of 52 – 52 might.
BEECH-JONES J: Yes. Would that be an unfair characterisation?
MR WALKER: No, it is not.
BEECH-JONES J: Okay, I understand.
MR WALKER: In fact, what I am leading up to this is that there is correctness in the order for a retrial, particularly as it is accompanied by 55. That is, it is not saying in order to be proper, a retrial has to have that. What it did say about the trial that was had – which was, if I may say so, exiguous in the attention paid by the participants to these questions – it is saying bout that there were missing – and then I have to deal with the fact that what is said to be deficient also includes the words that follow, “and also”, in the last two lines of 52. I know that. That is why I have come straight to the point.
But it will suffice if the direction concerning a rational causal link should have been made – and I am going to come to why the trial judge really erred in not doing that, and the Court of Appeal was right so to detect – and that is more than sufficient to justify leaving the retrial, particularly as the Court of Appeal was at pains to say that that which might have appeared to the reader to be a requisite of the retrial if you had stopped reading at the last sentence of 52, was not to be a requisite of a fair trial – see 55.
Your Honours appreciate that it is for those reasons that it is significant – and with some differences between us at the Bar table – to go back to the question of how did this happen at the trial, and in what statutory setting was it occurring, because there are shorthands and shortcuts and implicit understandings that are necessary to appreciate in order to track what happened.
Could I remind your Honours that we put with our notice of contention an alternative possibility – either would suffice, for our purposes – concerning the responsibility of, ultimately, the trial judge with respect to directions. The regime is triggered by counsel’s assistance in section 11. In light of that, section 12 provides the occasion for directions to be identified. Section 14 continues this theme of the responsibility of counsel by making counsel’s request in what is written as if it were the primary case as decisive – but, of course, it is not, because if there are good reasons, so‑called, counsel’s request need not result in the direction.
Nothing in 12 and 14 signifies what the directions should be. That is because – and it did not happen very effectively in our case – under section 12, what is called “particular directions” as opposed to “general directions”, which is defined, are required, obviously, to be spelled out. That could be done by shorthand; it could be done by reference to Bench Books, no doubt. Whether it was done in that fashion in this case is doubtful, for reasons I will come to.
Under section 15, the scheme is emphatically one in which – no doubt with a view to constraining a later appellant complaint – those are the directions that will exhaust the matter. But, of course, ordinary and systemic understanding of the administration of criminal justice would make that of dubious value, and so section 16, to which section 15 is subjected, retains in a transmogrified way the trial judge’s duties and functions with respect to ensuring a fair trial.
The phrasing “substantial and compelling reasons” are the ones that form the basis of the decision in this case, and the alternative to them, simply filling in the content of what section 12 required, is the burden of our notice of contention. So, that is the statutory setting in which the events, to which I am about to come, in court took place
GAGELER CJ: Mr Walker, just so that I can follow this in relation to your notice of contention, you have an amended notice of contention now?
MR WALKER: Yes, I have.
GAGELER CJ: Do you press all grounds of that, including ground 1, which does not seem to be quite of the same nature?
MR WALKER: No, your Honour, I think the answer is ground 1 has been overtaken.
GAGELER CJ: All right, but you press grounds 2, 3 and 4?
MR WALKER: Yes, your Honour.
GAGELER CJ: Thank you.
MR WALKER: Can I in a nutshell explain how, in our submission, “substantial and compelling reasons” combines with the appellate notion of miscarriage and substantial miscarriage in a way that ought to produce a dismissal of this appeal so as to preserve the retrial order. It is appropriately approached through the familiar formula of inquiring whether, for want of the appropriate direction, the accused was deprived of a real chance of acquittal and, in our submission, bearing in mind that this was a case utterly depending upon credibility and reliability, but very much credibility, of the complainant’s testimony, then all matters that go to supporting that testimony by reference to complaint or distress are matters which lie at the heart of the forensic contest.
Appropriate directions engendering rigour in requiring a link between distress and original offending is an essential part of the armoury in the accused through counsel arguing and seeking to seeking to persuade the jury that the Crown has not made it out to the requisite standard. Can I remind your Honours that this is a case where the whole of the offending – there is no question of consent – the sexual intercourse in question, was contested; it did not happen. So, that meant that the fact in issue, to which evidence was being marshalled, is whether it happened. That is important because it means that testimony that it happened is obviously evidence that it did, and the question is whether distress accompanying a complaint to that effect adds anything.
Could I take you, first of all, to the way in which the matter was raised. Could I take you in the appellant’s further materials to page 30. This is discussion by the judge with counsel which starts, as you will see at the top of that page, with an inquiry about section 53. That is a provision that does not really play any role in this case – it is about a prosecution request for a section 12 directions about good reasons why a person may not complain or may delay in complaining – so we do not need to be troubled with it. Obviously enough, his Honour was interested in, is there anything more, and he raised the question of section 53:
any other directions you seek?
And back comes the admirably concise answer:
The distress.
. . .
And specifically, the distress that the mother describes.
And the judge, correctly:
The distress at the time when she makes the complaint?
MR KOUNNAS: Yes.
Then there is a reference to the distress being:
on two occasions, one is the Children’s Court . . . the other . . . at the family home –
I do not need to go further in down that. It is the Children’s Court that, in particular, is important for the Court of Appeal:
both of those disclosures demonstrate distress . . . the evidence of her distress . . . goes to credibility.
That is, credibility in a probably two‑stage step of reasoning: credibility of the complaint, which in turn, in an old‑fashioned but still current way, goes to the credibility of the testimony – not only to that now, but obviously does go to the credibility.
His Honour then raises the question of model directions, and we think, with respect, his Honour is there referring to probably what the Court of Appeal – well, we are not sure. It is difficult – we cannot be definitive about, one, what his Honour may have had in mind, but whatever it was, it was distress during the course of giving their evidence. Now, that is of some significance, bearing in mind some of the comments of our learned friend, because there has been after this case a legislative articulation of the position in 54K, which you will find in the authorities bundle Part A, volume 1, pages 53 and 54.
GORDON J: Before you get to that, Mr Walker, I had, on my part, read the bottom of page 30 a bit differently for this reason, that at line 30 his Honour continues:
which is not what you’re talking about.
MR WALKER: I agree. So, it starts off and it sort of misfires because ‑ ‑ ‑
GORDON J: I do not think it misfires, I think he says:
HIS HONOUR: I appreciate there’s been some authorities – there’s been some discussion recently –
in the context, as you say:
distress of a complainant . . . giving their evidence ‑ ‑ ‑
. . .
HIS HONOUR: ‑ ‑ ‑ which is not what you are talking about.
MR WALKER: That is right.
GORDON J: It is put to one side.
MR WALKER: That is put to one side, but you have to then work out what was in question ‑ ‑ ‑
GORDON J: Thank you, I understand, now.
MR WALKER: ‑ ‑ ‑ because it is really quite obscure. But if you will forgive me, just to complete that digression:
distress of a complainant during the course of giving their evidence –
as it happens, after the event of this case, has been the subject of a particular direction in 54K, and could I draw attention in particular to paragraph 54K(5)(b) where there is a legislative obligation, statutory obligation, to “inform the jury” that:
both truthful and untruthful accounts . . . may be given with or without obvious signs of emotion or distress.
In other words, a singled‑out understanding of the inherently or intrinsically ambiguous or obscure explanation of distress or no distress, the former vulgar notion that a person not distressed could not have had perpetrated upon her, as it normally was, the things she was narrating, because she was not sufficiently distressed. That had been dealt with in other ways as well, but Parliament recently, very recently, has made that clear. Then, questions of probativeness – admittedly obscurely, whether it is to do with the requested direction or not – is raised by the Crown at the foot of 30:
No, no and the authorities say it’s –
that, I think, is distress:
it’s not particular probative and it’s far after the event and recalling it has its own difficulties.
So that sounds as if it is referring to testimony. But, of course, in our case, we have “far after the event” as well, here. And then he says:
But this is distress specifically when making that disclosure at the Children’s Court and making that disclosure to the family at large saying that is the cause of some of my problems.
Bearing in mind that the question, the issue, the fact in issue is: was there a rape? You do not simply jump to the question: there being a rape, did it cause things? That would be to assume the conclusion. The judge then returns to raise a matter which, with respect, is about the matter which might loosely be called res gestae, in other words, distress at or almost immediately after the offending, which is not the point.
Then his Honour correctly raises, it is a year here. It would appear that the Crown then responds, in which might be called a manner that might be redolent to some of the arguments about “fresh in the memory”, but you will not find anything more than that. And, not surprisingly, the requirement for “fresh in the memory” for the complaint evidence being admitted, as opposed to a direction about distress, will not be found in the record because you did not need “fresh in the memory”; you had under 18.
So, after that irrelevancy is done, the judge then does come to a matter which, in our submission, ought to have been the subject of direction, not just argument by defence counsel:
the circumstances in which the complainant says this happened is that she ran away from home. There were issues with drugs and alcohol that ended up involving the police and –
the Department of Human Services:
she has what she calls –
that is, the complainant:
a meltdown which as I understood her ascribes that to psychological problems that she had been experiencing.
In terms which, as I shall show, are more than, as it were, immediate transitory distress, but that would appear to be something in the nature of persisting mental disease. Having raised that with counsel, his Honour then asks the question:
how do you say that that distress that she talks about there is probative of either of the charges on the indictment?
That is, indicative that the criminal penetration had occurred. The answer is, in our submission, one that really does not address the question properly of the use, only highlighting the need for a direction:
Contextually, she is blaming those problems . . . on what had happened to her –
Now, you cannot assume that it had happened to her and then add the fact that she blames that for her current plight. That would be – just in lay terms, not legal terms – a bootstraps exercise which would defeat a fair trial of the question: well, did it happen at all? Then the Crown obviously appreciates the weight of referring to these matters which were present, immediate, a year after the alleged offending:
running away, having drug and alcohol . . . a meltdown . . . euphemism for a symptom of her autism or other mental health difficulties, that that is not particularly probative –
Then there is the expression:
it’s well symptomatic of all of that.
I am not quite sure what that means, but all of that obscurity really only added up to an urgent occasion for the court to ensure that this material was not used in a way which would lead to the absurdity of a bootstraps and circular approach. Then the argument which we understand our friends to be still urging here emerges from line 17 and following on page 32:
because she says that she is blaming those problems that she is like that and then later goes on to explain in the special hearing –
that is, before the trial, but long after the supposed complaint:
‘I understand now that it’s no excuse for my behaviour at the time but I at the time thought it was an excuse for my behaviour, I blurted it out’, contextually it becomes relevant there.
Well, none of that explains what it is relevant to. It could only be to the proposition that what she blurted out is indicative, as a matter of evidence, of the occurrence of the criminal penetration which is the nature of the charge, and the only way that could be so, as to the accompanying distress, is if the distress can be linked to that occurrence. Now, the Crown fairly, at least at that point, made it clear that it was not cut and dried:
she has other problems . . . must be conceded and there is an alternative version of why she may be so distressed –
and then the assertion is simply made:
because of how she specifically contextualises it –
that is, her own words – her own self‑description of the matter:
and later explains . . . that it can still enliven –
and then we come back to where we started:
the distress direction.
And the actual content of the direction to deal with the matters that have fallen out between judge and counsel is, in our submission, ineffably obscure at that point – and it does not get better.
GAGELER CJ: Mr Walker, where are we at, here? Is this the discussion that occurs at the end of the evidence, or the subsequent discussion – is the context of this discussion between counsel ‑ ‑ ‑
MR WALKER: This is for directions. This is after evidence.
BEECH‑JONES J: Is it post‑submissions – addresses, or is it post‑addresses?
MR WALKER: Yes. No, no, I am sorry ‑ ‑ ‑
GORDON J: No, no, it is pre‑.
MR WALKER: This is pre‑, then, and it leads up to the conclusion: I am going to hear addresses.
GORDON J: But the judge says, in the next couple of pages, I am going to reserve, we can wait to hear what you actually say in the course of submissions to determine the course I am going to take.
MR WALKER: Yes. Yes, I am about to come to the passage ‑ ‑ ‑
GAGELER CJ: So, there is ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ it is on page 35. So, this is after evidence, it is before addresses, and it turns out to be the first instalment, as it were, because it ends up by saying, this is all too hard, I will hear what you are going to say.
GAGELER CJ: So, all of this is summarised in the Court of Appeal – and we are at paragraph 19, I think, of the Court of Appeal’s summary of the sequence of events, I think.
MR WALKER: Yes, your Honour.
GAGELER CJ: Yes.
MR WALKER: That is exactly right. But your Honours will note that in that summary all we are told – or you could be told on the basis of that – is the prosecutor of the question for the judge to give a direction about the mother’s evidence of the distress at the Children’s Court. What actually was requested is really very obscure indeed and, in our submission, that is an explanation as to how the matter was left in the way it was, which the Court of Appeal correctly appreciated, produced a miscarriage because the jury did not get the assistance they needed as to the intended use of this material.
The discussion of the model direction on page 33 is obviously a discussion of a direction that is not tied to distress accompanying a complaint. At least, that is how I read lines 5 to 21. So, he returns to the question in this ‑ ‑ ‑
BEECH-JONES J: Not necessarily tied to.
MR WALKER: Not necessarily, because obviously it is a matter of the ordinary way in which life proceeds; “distress” and “complaint” may often go together. Of course, they need not – see 54K. The judge at that point decided, and correctly – see the foot of 33, the top of 34 – that is not a direction:
that suits the circumstances here.
So, it left open entirely – the Crown seems to agree with that – the question of what was to be done, and unsatisfactorily, the judge, having established the request is maintained – what for, of course, has not been established – appreciates, with respect to section 14, a need for good reasons not to do it. At that point, with great respect, the intended regime has fallen apart, because he is not being told what it is that he is being requested to direct, under section 12.
How you can have good reason, or any reason, with respect to something that is not explained, as to whether you should do it or not – the wisdom of hindsight that is available to counsel here – would suggest that obviously it would have been straightforward for the judge to say, look, before we go any further, could you just tell me, in words, what is the direction you say I should give, because your role under section 12, bolstered as this is by the intention of section 14, is critical, so tell me what it is. That did not happen. You then see the expedient which was adopted at page 34, having raised the:
need to have good reasons not to give the direction –
Which had not in fact been specified, but we would say had not really been requested:
At the moment, I’m unsure about that and I think I would benefit if I heard what you said to the jury about it.
If I may so, that is a lopsided way of proceeding with respect to the judge’s approach. It might have been appropriate, with respect, to have said, perhaps you can tell you me what you intend to tell the jury about it. In any event, the assessment was made to let that happen. Then, again, there is a reference, at line 14, to “the direction”. Still, you will not be able to ascertain what that direction was at that point. That is reserved.
Then, at the foot at that page, the judge reflects on the so‑called very difficult area and, at the top of the page – line 5 – the quality of such evidence of being:
so equivocal in certain circumstances . . . an issue that ought be approached with some caution –
I think his Honour meant by the judge, not specifically the jury. Then, reserving, by way of demonstrated that caution, his Honour then permitted the argument to be made.
JAGOT J: The argument starts at 194.
MR WALKER: Yes, I just wanted to take you first, however ‑ ‑ ‑
GAGELER CJ: When we reach an appropriate point in your argument, we will take the luncheon adjournment.
MR WALKER: I left you at AFM 35. You need then to go – to complete that, because the other side was heard – to RFM at pages 6 and 7. So, line 7 on RFM 6, the Crown is told by the judge that he will hear from defence counsel:
about this issue and also that issue of distress –
Then at line 17, defence counsel is asked about the:
application with respect to the direction as to distress?
And immediately raises:
The difficulty . . . the nature of the evidence and the causal connection . . . too remote . . . too tenuous.
I will not read on, your Honours will have seen that. But she was not permitted to develop her response. It was, to use the judge’s words, short‑circuited, line 7 on the next page. Grappling with the issue, to use his expression, was going to be deferred until after the jury had heard what counsel were going to say about this material.
It is for those reasons, in our submission, that when you look at what had actually happened – I will come after the break to the denouement – this was an entirely unsatisfactory way in which to approach the question of the use of material which had been admitted to support the occurrence of the conduct in question. Is that a convenient time, your Honour?
GAGELER CJ: Yes. We will take the luncheon adjournment.
AT 12.52 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
GAGELER CJ: Mr Walker.
MR WALKER: Your Honours, I had completed the way in which matters fell out at the trial, which eventually produced the directions with which you are familiar. Just to give the reference in the further materials, as opposed to the Court of Appeal reasons, at AFM 13 and 14, one finds what might be called the first passage in the address. Your Honours are well familiar with it. What I want to stress for the purposes of my argument, particularly concerning the reasoning of the Court of Appeal, is on page 13 in the transcript, picking it up at line 21 down to line 31, general propositions concerning so‑called direct and indirect evidence.
BEECH-JONES J: Do you mean the summing‑up, Mr Walker?
MR WALKER: I am so sorry, the summing‑up, yes.
GORDON J: This is in the core appeal book, is it not?
MR WALKER: It is in the core appeal book at page 13 – I said further materials, these are the materials; they are not further at all. The core ‑ ‑ ‑
GORDON J: That is all right. We just had to get the right book.
MR WALKER: I am sorry.
GORDON J: No, it is Friday afternoon. We are all good.
MR WALKER: They are all white covered books. I am sorry, I have slipped. Yes, in the core materials, page 13 – so sorry – line 21. Moving from the general propositions about direct and indirect evidence, and then indirect or circumstantial evidence and some chestnut about it being weaker:
It can be just as strong or even stronger. What matters is how strong or weak the particular evidence is, not whether it is direct or indirect.
Then, moving straight into the distress question, so, the jury can be in no doubt that this is evidence that might be just as strong or even stronger. Now, it is to be recalled that this is a charge which follows debate between Bench and Bar in the course of which – and this is AFM 32, line 15, I showed it to you before the break – where the Crown had said, of distress evidence, in precisely the context which is the matter in issue here, that it:
is not particularly probative –
So, it can be seen that questions of what I will call cogency, just to avoid the loaded word “weight” for the moment, were plainly real and substantial in connection with the distress evidence. Now, your Honours know from the core book page 27 and following that there was quite some separation in the structure of the charge, including an adjournment, before the question of complaint came about in which there is what might be called, at line 10 on page 27, a passing reference to her being “distressed”, otherwise no discussion of how the jury might use any distress, simply about they might use the complaint itself.
Might I, in that connection, so as to link it up with something I have said before the break, at page 28, draw to attention lines 12 to 23 where there is a direction – we do not understand this to be regarded as wrong by the Crown – to ensure that the mother’s narration of the daughter’s complaint was not seen as, as it were, separate from or independent of, the daughter’s complaint, and you see that in the direction, lines 22 to 23:
you must not mistake it for independent evidence of the offence.
Now, that is another reason, of course, why you would not use the content of a complaint as confirmatory or indicative of its accompanying distress itself indicating that the conduct had taken place when the accuracy of the complaint, that is, the accuracy of the Crown case that something had taken place, is the very fact in issue to be proved one way or the other, in light of all the evidence, including admissible distress.
BEECH-JONES J: Did anyone suggest that it was independent evidence, or use that phrase, other than – to my understanding, that is the only reference, in the summing‑up.
MR WALKER: I could not find any other ‑ ‑ ‑
BEECH-JONES J: So, the Crown did not say ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ and that is one of the reasons why I do not suppose the Crown says that was wrong.
BEECH-JONES J: Perhaps. But to the extent there is a complaint saying – not necessarily from you – that this did not meet a test of independent evidence, this does not matter, because no one said it was.
MR WALKER: I think that is right, except, for now, the matter has moved, in particular, to the question of distress. This is a living survival from the corroboration days, where the one and the same person – usually the complainant – their words would not be independent, in the sense understood, to produce available corroboration, but their supposedly involuntary or instinctive, et cetera, emotional responses – distress – could be so regarded. Calling it “independent” really stretched the ordinary understanding of that word; but it was, perhaps, independent in the sense of unwilled.
Now, there may be a lot of psychology going on in that kind of jurisprudence, but that was the way in which it worked. And that is no doubt the way in which his Honour was thinking, in traditional terms, when – and we do not complain about this – using the expression “independent” in the passage I drew to attention. You are right, there was – of course, one has to be careful. Some of the terms of art that are used do not assist a jury to understand. If you talk about something being “indirect”, you obviously indicate – perhaps inculcate – the impression that it is standing apart from direct evidence or from an event.
GORDON J: But here, the trial judge explained or sought to explain by example, before the passage we have just been to, the distinction between “direct” and “indirect”.
MR WALKER: Quite. I was about to say, this matter and some of the problems that were experienced both during the corroboration period and after corroboration was abolished are discussed in Tsalkos at 9, but I do not want to go down that side route at the moment.
For present purposes, what, in our submission, is significant is this, that one cannot see in these directions, notwithstanding that it was understood, as plain as a pikestaff, that the accused’s counsel said the problem with putting this to the jury as evidence of the occurrence of the incest, the penetration, is that there is not only the temporal gap – a year; much less than that has proved too much in other cases – but not only is there that, but there are graphic, factually incontestable descriptions of matters which are intrinsically capable of explaining an emotional reaction that got to the extent of, at one point, being called “psychotic”, admittedly by amateur self‑diagnosis, and a meltdown.
BEECH-JONES J: Mr Walker, just for me, I can well understand that problem in a case where the distress did not accompany a complaint about the very acts said to constitute the crime.
MR WALKER: But, your Honour, that would never arise in reality. We are not talking about distress at the time of the crime. It is a year later and, if there is no complaint, section 55 would appear to be a bar against any such – you would not be able to lead evidence that somebody’s moods have gone up and down.
BEECH-JONES J: Perhaps. I mean, there might be differences with what that may mean about a youth, but let us put that aside – well, let us accept that. But then, when it is accompanied by a complaint that directly links it, or is capable of directly linking it to the crime, what is the problem?
MR WALKER: Because you can only do that if you say, if the jury is invited to reason, the meltdown is because she was raped.
BEECH-JONES J: Well, that is for them. But if the evidence is ‑ ‑ ‑
MR WALKER: That is for them, but the only evidence they would have is her complaint that she was.
BEECH‑JONES J: And that is evidence of that fact?
MR WALKER: It is evidence – the complaint is evidence of that fact. It is the boost that is sought to be obtained from the accompanying distress which is the subject matter of the Court of Appeal’s reasoning. So, what should have been done about that – and nothing was done about it appropriately – it was simply left on the basis, it might even be stronger. There was nothing said at all about the matters inherent or implicit in reasoning from demeanour, present demeanour, as to past history.
The longer the time, the more things that have happened in the person’s life, the more imponderable is the question of whether or not someone’s anger or sorrow is caused by the fact that something charged in the proceedings occurred a year ago, as opposed to all the other things, if proved, that might be available to explain it. The more rigorous a factual examination of those possibilities is, obviously, the less weight the distress itself – I am not talking about the complaint – the distress itself has by way of lending weight to the Crown case. That is what we complain was left entirely unexplained to the jury, who had no assistance whatever concerning that matter. Now it is ‑ ‑ ‑
GORDON J: Sorry, and that matter is the failure to – direct the jury?
MR WALKER: There are two aspects; we have two aspects, and they are, of course, not unrelated. The first is that unless you are satisfied the, I will call it distress, is caused by the fact of the offending – no doubt with the intervening memory and emotional response – unless you are satisfied of that, then, obviously, you cannot use the distress to prove that the offending took place. Obviously.
GORDON J: That is the causal link argument.
MR WALKER: That is the causal link argument.
GORDON J: And when you say “you are satisfied”?
MR WALKER: The jury. There is no admissibility argument in this case.
BEECH-JONES J: And to what standard of proof must they be satisfied of that?
MR WALKER: That – as they say in the classics – I am glad your Honour asked that question. I was pondering that matter in a not completely different context, which was Edwards lies. As this Court made clear, in order for them to be used as consciousness of guilt and contributing to proof of the offence, there has to be consideration of what might – other than consciousness of guilt, because you have committed the offence – explain that lie.
But this Court – and I am particularly referring to the passage in the reasons of Justices Deane, Dawson and Gaudron at Edwards 178 CLR 194 at 210, about point 5 on the page, the passage commencing:
But ordinarily a lie –
Your Honours probably know it by heart, that includes the notion that the satisfaction of that necessary quality of the lie – that is, it is not to be explained other than by the consciousness of guilt that comes from having committed the offence – is a matter of accepting:
that evidence without applying any particular standard of proof –
Then you put it, together with everything else, to the overall question of whether the accused is or is not guilty beyond reasonable doubt. Or, to put it another way, picking up the beginning of that sentence, it would be absurd – my word, not their Honours’ – to have to conclude that the piece of evidence is not just a clincher, but also a complete making out of the case in order for it to be used at all. They put it this way:
The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt.
And that puts the cart before the horse, obviously. So, in answer to Justice Beech‑Jones’ question and in answer to what we think, with respect, borders on a travesty of our position by our friends, of course we are not saying that there had to be satisfaction beyond reasonable doubt of there being no explanation other than sexual penetration a year ago for the distress at the Children’s Court with all the other things that were going on at that time. Of course, we are not saying that. It is in principle indefensible, and you do not find the Court of Appeal going anywhere near that.
GORDON J: Can I ask one other question about the causal link?
MR WALKER: Yes, your Honour.
GORDON J: When it says “caused by”, does it have to be the sole cause?
MR WALKER: Almost certainly not. In our submission, certainly not. And your Honour anticipates something I am going to say briefly. You will find scattered throughout the authorities, which, between us, we have drawn to the Court’s attention – I do not need to trawl through them in address – different phrasings for this notion that the distress needs to be – my words, not the authorities’ words – explained by offending, as opposed to something else, in order to be used as evidence of the offending.
Some of those phrases which use emphatic words like “only” and “not anything else” are in danger of, if read rapidly or out of context, or perhaps simply because this is as vice they have, of making it look as if you have to prove those things beyond reasonable doubt. That is wrong. What has to appear is that there is the reasonable capacity of the material to make out the necessary proposition, before you can reason from distress of the commission of the offence. Namely, that the distress is caused by the commission of the offence.
No one would tolerate for a moment that a person whose life has fallen apart in several different ways therefore obtains, as it were – I do not say this wrongly against them – that, in the system, they are therefore seen as somebody whose grievous state of being is evidence against somebody against whom an allegation is made of a wrong against that person. That could not be correct.
Yes, it is true that a terrible offence against a person can cause, in ordinary experience, sequelae including distress upon, one way or the other, the matter coming to light or being talked about, if the thing had happened. But when whether the thing had happened is in question, one cannot, with respect, reason backwards and simply say consistency is probability, because a plethora – an unlimited number of things – are consistent with offences which have no possibility, within sections 55 and 56 terms, of affecting the probability of a thing having occurred.
It is for those reasons that, in our submission, and now switching to the second of the defects, namely, the question about weight, that, in our submission, for the reasons I have put and do not want to return to before the adjournment, you would not hold it as a ground for upholding the appeal here that it would be unfortunate – and wrong, perhaps – if a direction concerning generally is of little weight was to be given at a retrial. As we have said, that is not the thrust of a proper reading of the passage which concludes with 55.
It may be that the genesis of that expression, which is one of several by which judicial law, made law, and parliamentary law, conveys warnings and cautions about kinds of evidence. It may be that in this case, there has been something taken from a passage by Justice Nettle on the Court of Appeal in Brdarovski 166 A Crim R 366. If your Honours have the books, the particular passage is at page 674.
GORDON J: Is this the bit at paragraph 42?
MR WALKER: Paragraph 42. In his Honour’s 42, this sentence appears:
Although evidence of distress is capable of corroborating –
and this was a corroboration here:
a complainant’s testimony, authority suggests that it generally carries little weight –
so that is fairly evocative language:
and as a matter of prudence juries should ordinarily –
Now, they should not ordinarily be warned that it generally carries little weight, says his Honour. Rather, they should generally:
be warned of its inherent limitations.
In our submission, that obviously would need to be tied to the circumstances of a particular case, including the issues nowadays identified in accordance with section 11 and ‑ ‑ ‑
GORDON J: Does that not work against you?
MR WALKER: I hope not, your Honour. I am drawing it to attention for this reason: it shows that the notion that there should be something said by the judge with the judge’s authority to the jury about this kind of demeanour evidence is not strange, is not alien, it is certainly not a cuckoo in the nest coming from nowhere; there was a long tradition of demeanour, including distress, being understood to be something which did not lend itself to the same ease of factual reasoning – including by inference – as, for example, what a person says as opposed to the tone of voice in which they said it.
GORDON J: The reason why I ask is that you took us to 54K before lunch.
MR WALKER: Yes.
GORDON J: That is in a form where, as I read it:
the trial judge must inform the jury that experience shows that—
. . . trauma affects people differently –
and it can:
be given with or without –
There is nothing there about weight, there is nothing there about ‑ ‑ ‑
MR WALKER: No, your Honour is quite right, which is why I have to go to section 32 as well. Now, section 32 is about a category which, as my friend correctly pointed out, is illustrated but not closed by the examples in the definition in section 31. And in our submission, reasoning from distress as to the occurrence of an event which is contested, depending upon the circumstances of a particular case, could very easily be regarded as apt to have a section 12 request concerning its unreliability under section 32.
Under section 32(3), a mandatory element in the outcome of such a decision by the trial judge is a warning, (a), of the need for caution in determining whether to accept it, and (b), the weight to be given to it. Now, I will try to work out the English there. I think it means:
warn the jury of the need for caution in determining . . . the weight to be given to it.
And I accept, as I think I did in opening on this matter, that is not the same as saying it either always is – which seems absurd – of little weight, perhaps not all that much more helpfully, it is generally of little weight, which, as I say, begs the question: is this the general case? But in our submission, that provenance – and by the way, post abolition of corroboration, exactly similar considerations – I will not take your Honours to it, you have it in the bundle in Seccul in the Court of Appeal. It starts at 764 of the bundle, the citation is [2022] VSCA 219, in paragraph 53 and 100. There are similar and, in our submission, clear indications that a warning which relates to weight ought to be given. The expression in the first of the citations from Seccull is:
an appropriate warning directed to the limitations of such evidence.
Now, on any view of it, limitations of such evidence is likely in most cases, once relevance has been overcome, to be a matter of weight. That is, how do you use it? And that same expression, “limitations”, is found in 100.
Of course, in further response to what Justice Gordon has raised with me, one thing to be said about the new 54K is that the admonition to the jury to adapt from something Justice Niall has said in Tsalkos: some people are stoic; some are not. So, that is contained in the new 54K. The effect of that is a warning against giving too much weight – or perhaps any weight – to the calm dignity with which one complainant gives evidence and the near hysteria with which another one gives evidence, and that there is an evident social policy which is now part of the law in that regard. It is, with respect, not easy to see why that does not involve inherently, perhaps dominantly, an admonition about weight.
The virtue, however, of it being open‑ended like that is that it allows for the position that the trial judge understood in this case – alas, did nothing about – that it will depend upon circumstances as to whether it may be more or less weight. What we submit is that because no retrial would be bound by the notion of “generally carries little weight”, rather a direction as to the limitation of such evidence, which calls in aid the matters that the authorities have discussed and which are, with respect, not difficult to understand – Parliament seems to regard it as significant; see 54K – that is an insufficient reason to detect such error in the Court of Appeal as to say that the outcome in this case – the order should be set aside, namely for a retrial. Your Honours, could I ‑ ‑ ‑
BEECH‑JONES J: What were the limitations here? One of them was the other possible causes.
MR WALKER: That is a very considerable one. The other one that has not perhaps had as much attention as it might have had is that the distress itself we have very inexactly described. There was such a long period between the episode of which evidence was given and when the evidence was given about it, respectively through mother and daughter, that as your Honours will recall, indeed, you have the daughter not remembering it, then the mother not remembering it, and on any event, the daughter having very little memory of it – “blurry”, et cetera – and the mother’s recollection being really very bare, indeed, of it. All of that is set out in the Court of Appeal and in our written submissions.
It means that you do not know the circumstances in which what is called the meltdown started. You do not know what might have, by a post hoc propter hoc form of reasoning, triggered it. We know that that is speculative because she had mental health problems. We know that – and trying hard not to give any weight in favour of the Crown case or against the Crown case to the self‑diagnosis oddly permitted to be given by the complainant, we know that there is something called autism coming in. It suffices to say – and “psychotic” is language used – there is nothing concerning the temporal, circumstantial or qualitative nature of the so‑called meltdown that would even begin to enable anyone to sort out what is the source or reason for this upset.
Now, in a case where making an allegation is said by us to be the making of a false allegation, whether by delusion or by dishonesty – it does not matter for present purposes – you obviously cannot use the repetition of the allegation in order to assign a causal link between it and distress – that is, the event and distress. In this case, there is added to the usual imponderable nature of attributing current distress to a historical event – which gets, as has been said, I think, particularly pungently by Justice McPherson in Queensland, the longer the time that expires, the more things that have happened and are available as explanations.
In this case, the very considerable overlay of mental disturbance that is not just an emotional reaction is, in our submission, a very powerful reason for why, not surprisingly, at first, the Crown said it is not particularly probative. In our submission, that needed to be taken up, and the limitations, to use the other authorities’ expression, of such evidence needed to be warned about, and inevitably and properly that would have resulted, either in terms or in effect, to be a warning about weight.
GAGELER CJ: Mr Walker, is it part of your case to say that we are here in a category of unreliable evidence, within the meaning of section 32?
MR WALKER: Again, with hindsight, because there was no such ‑ ‑ ‑
GAGELER CJ: There was no application, of course.
MR WALKER: There is no such structuring. So, there was an application, but manifestly, the Crown was not making – sorry, I am not saying the Crown should not have, but the Crown did not make a section 32 application.
GORDON J: But defence counsel can also request one.
MR WALKER: I know. I appreciate that entirely. In respect to that and its impact on matters, that has been dealt by with the Court of Appeal, and in our respectful submission, with respect to substantial miscarriage, appropriately. There was no section 32 debate at all.
GAGELER CJ: There is a note to section 32 that refers you to section 16. So, presumably, under section 16, a substantial and compelling reason for giving a direction ‑ ‑ ‑
MR WALKER: Section 32.
GAGELER CJ: ‑ ‑ ‑ can be the considerations that are in section 32. As I am listening to these submissions, in effect, I think you are saying that we are within the considerations in section 32.
MR WALKER: Yes, the way I put it is this way – it is like Monsieur Jourdain and prose – arguments initially by counsel about the causation problem; commentary in the observations, I should say, in the Court of Appeal about the need for a warning about unreliability. Now, unreliability necessarily raises, as a moment’s thought about 54K would suggest, that one has to be careful about whether you are talking about what might be called categorical unreliability, which is falling into close to disuse – thank goodness – and what I might call particular, that is, instant unreliability, in a particular case ‑ ‑ ‑
GAGELER CJ: Situational.
MR WALKER: Situational. Thank you, your Honour. Section 32, however, is a bit of a hybrid of the two. It recognises that there are, as it were, prejudices, some of which are well founded, some of which are not. It suffices to say that it preserves a role for a judge, not just a jury; it is not just left to the jury, as the constitutional tribunal, calling in aid their knowledge of the world; the judge is there to assist, because Parliament thinks certain things should be done, and in section 32, it will include questions of weight.
Yes, this is a case where, on one of the available views of it, on the way we put it, it was because distress evidence without satisfaction of the causal link is obviously unreliable as evidence of the occurrence of the event that there should have been the double‑barrelled warning with which the Court of Appeal concluded in paragraph 52.
For the reasons I do not need to go further on, there are some shortcomings in the second part of that at least, but they are not shortcomings which show that the order was wrong for a retrial. And, in our submission, on any view of it, what happened at trial was so devoid of anything about limitations on this kind of evidence or its unreliability that there is a miscarriage.
The fact that that might be attributed to deficiencies on the part of each of the judge and both counsel is really not to the point, because this is not a punitive jurisdiction to punish people for the shortcomings of procedures. Neither is this an appropriate case where, as it were, forensic choices have been made in a way which procedural fairness requires to be enforced. None of that arose, and none of that troubled the Court of Appeal. So, I think that is a very long‑winded way of saying yes to your Honour the Chief Justice – yes, with confessions concerning the absence of a history of overt consideration of it.
Your Honours, in proposition 2 of our outline, we have catalogued, and you see the references – may I urge in particular, in paragraph 67 of our written submissions, which I am not going to dwell on, there are details given as to the very telling ways in which, there, it remains utterly, truly a matter of speculation as to whether this distress could be attributed – without using the content of the complaint accompanying it – to the earlier offending.
And in 2(e) in particular – I have already referred to this, I need to emphasise what we have spelled out in paragraph 72 of our written submissions. The foundation for all of this is highly unsatisfactory, in terms of precision and completeness, accounts of the demeanour, the behaviour, the emotion which is said to be a means by which a jury can legitimately infer from it that an event took place a year before, being the criminal penetration.
In proposition 5 we draw to your Honours’ attention the way in which developments, including, most recently, 54K, rather show that the caution, if that be the right word, that we urge should have been directed and was not with respect to the distress as proof of the event. That is not some vestige of old prejudices that marred the law. To the contrary, what we are urging is evaluating and interpreting demeanour regardless of the person or the so‑called kind of person – whether that be age, level of education, social or economic status, sex, language – that evaluating and interpreting demeanour is, as we put it, difficult and imprecise.
Now, those are the hallmarks about an exercise in which the jury – perhaps doing it for the first time in their lives, and maybe the only time in their lives, and never having done it before – ought to be warned about those difficulties and imprecisions. Imprecisions, of course, are calculated to reduce the weight of evidence from which inferences are sought to be drawn.
Proposition 5(b) very much chimes with what we have said about 54K and with a more general change in practice in criminal courts. And 5(c) looks in particular to the reason why there needs to be special regard, and that is because we are emotional beings, whether judges, counsel or jurors, or witnesses or complainants. So, there needs to be an appreciation that the force of emotional evidence could mislead a jury by – as it might be put – according too much weight to the proposition that the bad thing must have happened because of the distress exhibited when, 12 months later, among other things, grievances were raised which included an allegation that it had happened.
GLEESON J: The definition of “general directions” in the Act includes directions about:
the assessment of witnesses –
MR WALKER: Yes.
GLEESON J: Is this not just within that umbrella?
MR WALKER: No. No, this is particular evidence, your Honour. So, I take your Honour’s point, there are general directions concerning care about demeanour, for example, but that would not prevent, as falling within particular directions, something – or a judge determining under section 16 – a matter arising in the running of a trial concerning particular evidence. Now, why general directions cannot suffice is that that would suggest 54K was redundant, and 54K is manifestly not redundant.
BEECH‑JONES J: Mr Walker, where you have a general direction – and in this case, there was a general direction about direct and circumstantial evidence and the drawing of inferences – and then you have a decision by the trial judge to give an example of something from the trial that falls within it, is that a particular direction or a general direction?
MR WALKER: I do not know.
BEECH‑JONES J: Nor do I, that is why I asked.
MR WALKER: If I may say so, it is more likely to be both: here is my general direction, and here is a particular direction. If I may say so, only mildly, there is to be deprecated, using an example from the very trial when the characterisation given for the purposes of the example may well be something that the jury is seized of as hotly contested. It would be a pity for the judge to indicate a view for how such things might work.
BEECH‑JONES J: Well, no, but it is more normal to focus – well, it is a practice that with general directions at trial, to refer to something that is raised in the trial.
MR WALKER: But never so as to suggest how the judge thinks it ought to be decided.
BEECH‑JONES J: Of course not.
MR WALKER: No.
BEECH‑JONES J: No, no, I am not suggesting that, but I am saying that, as occurred here, what happened was there was a general direction about inferences that said: the Crown seeks this inference. And then they are given the rest of the general direction about inferences: you have to be cautious in doing so. But in terms of the process under this Act, I am wondering whether that is just the giving of a general direction, or a mixture of a general direction and a particular direction, that is all.
MR WALKER: On any view, it has the character of general, the only question is whether it has some other character as well. We do not suggest that there are cut and dried limits to how a general direction should be addressed, but I can only offer something as vague as: it should be presented so as not to cease being general, which may mean there needs to be careful consideration to using examples from a particular case.
But, certainly, we say that the difference between general or particular does not prevent or cut across or deny the scheme which can start in 12, but also in 16, when there are the appropriate reasons for doing something in the interests of a fair trial. That will be particular, always, in our submission.
Now, your Honours, some weight was laid by our learned friend on previous utterances in this Court – Bauer and IMM in particular, we would single out. As we say in proposition 7, and as is contained in the written submissions that we there reference, this Court was not there addressing any of the issues that arise in this case concerning such material. And, in particular, care has to be taken to ensure that the statements in those cases about distress, with or without an accompanying complaint, are not understood as being statements concerning appropriate directions. They were not; that was not the issue in the case.
In proposition 8, we advance the loaded proposition that the material – and we call in aid the catalogue that I have referred to in our proposition 2 – comprising the distress was “intractably neutral”. If you forgive me just a minute or so on that matter, the provenance of the phrase we may not have completely traced, but your Honours will see it in the sort of back‑engineered way in paragraph 74, and I think it is footnote 69 of Baden‑Clay 258 CLR 308 in this Court.
There is a reference to – I am going to get the pronunciation wrong – Ciantar in Victoria. That is the passage, particularly at 38 to 40 in Ciantar which explain that something is not intractably neutral merely because it is:
reasonably susceptible of another possible explanation.
But not dismissing the notion of intractably neutral as something to beware of as material that should not be relied upon was approved in this Court – that is so far as we read that part of Baden‑Clay. It is before Baden‑Clay and Ciantar, of course; you will also see the reference to it or to the linguistic usage by Justice Gaudron in BRS 191 CLR 275 at 297, but not in terms that need further elaboration by me.
The concept that we would urge is this, and it comes back to the start of all of this – sections 55 and 56. If the material is not such as to assist in forming the necessary preference, in the criminal case so as to dispel any reasonable doubt, if it cannot contribute – I do not mean if it does not clinch, or win I just mean if it cannot contribute – sometimes people say because it is equality consistent, sometimes people say because it is equivocal; “intractably neutral” is an expression we understand that means it does not matter how hard you try, putting it with all the other evidence – it is not an isolation question – this simply does not affect the balance. Then, in our submission, it is intractably neutral.
GAGELER CJ: Meaning irrelevant?
MR WALKER: I am sorry?
GAGELER CJ: Irrelevant.
MR WALKER: And that is why I say it goes back to section 55. Our argument here is not framed as – it cannot be framed as an admissibility or a relevance question in terms of admissibility. But, in our submission, it will often be the case that material is introduced appropriately which, upon material reflection in the context of all the evidence in the case, simply does not contribute one way or the other to the adjudication of the issues, taking into account onus and standard.
If I may say so, otherwise – perhaps in a slightly downbeat fashion – I am not sure that the phrase “intractably neutral” is worth the trouble that has been devoted to it either in this or in other proceedings because, at the end of the day, it is about either admissibility, which is not in this case – that is why many a proffered Edwards lie will not be admitted into evidence; intractably neutral – or it will be a matter concerning, say, an unreasonable verdict case in which you do not need badges like “intractably neutral” in order to point out the deficiencies in the whole of the evidence.
I have already, I hope, emphasised the significance that we are certainly not saying that there is some cameo or isolated part of the case that attracts its own self‑contained standard of beyond reasonable doubt. That is our proposition 10. Propositions 11 and 12 can be passed over quickly. They are, in our submission, correct, because when one looks at the record to which I have taken you, this is not a case where the conduct of counsel should produce an effect which the Court of Appeal certainly did not contemplate it should produce, namely, that something which ex hypothesi would otherwise have been the source of miscarriage ought not to be corrected. Your Honours saw the way in which the trial judge, no doubt with the best will in the world, sought to short‑circuit things in a way that meant that opposition to the use of this material in the way the Crown had proposed it by the defence counsel was cut off.
Could I just return to a question that I think was first raised by Justice Beech‑Jones, and it concerns in the fact‑finding which we submit needed to be guided by the kind of directions that the Court of Appeal proposed with the qualifications I have expressed, whether or not in discerning sufficiently a link between the distress and the occurrence of the offence, the conduct comprising the offence, one can in a case such as the present – that is, of a complaint here a year after the alleged event – take into account to make good that link.
The content and the truth of the content has been true of the very complaint counted in that distressed way. I do not want to repeat myself as to why you cannot do that for the reasons all the cases that have said you cannot do it say, which amount to avoiding bootstraps and circularity.
BEECH-JONES J: Those cases, actually, are they not predicated on the non-admissibility of the complaint to proof of the facts in issue, including all the pre-Evidence Act cases in Victoria?
MR WALKER: Some of them are. That is why, when I opened, I said that this case under its jurisprudence straddles two things: corroboration and its abolition; and not proof of the contents for a prior consistent statement and its abolition. No, the answer is no, and I will not give chapter and verse because that is set out in our written submissions and in the Court of Appeal’s citation of authority.
BEECH-JONES J: But just in essence, why under the Evidence Act do you not assess the admissibility of one bit of evidence, and therefore its use, by reference to all the evidence, including the content of the complaint?
MR WALKER: Well, as a general proposition, that is an approach which is in danger of multiple bootstrapping. In other words, with none of the caution that a provisional admission might permit. Let me explain. Where the occurrence of a fact is in contest, as here, where it turns on the credibility of a complainant, as here – there is no other evidence – and where there is evidence of complaint – contested evidence of complaint, that is, contested as to its truth but it is not contested as of having been said – we do not contest that the complaint is, since section 66 – understood in light of Papakosmas – evidence of the truth; evidence of the truth “he raped me”. That is not what this case is about and it is not what the Court of Appeal saw the case as being about. In Tsalkos that difference is spelled out all the more.
This is whether you can get – not nowadays for the purposes of it constituting the so‑called independent evidence which is corroboration, but because of its possible emotional effect on a jury so that an accused is entitled to be protected against that and, more to the point, the administration of justice ought to proceed without it playing an undue role – you cannot assume the truth of the offending when asking the question: is the distress such as to indicate that the offending took place? You can only answer that question if you can see some reason, apart from speculation and possibilities that are no greater than any other possibilities concerning why the person appeared to be so distressed.
If you took that into account – the content of the complaint, which was in this case not the only thing that was “blurted out”, so to speak, there were other things – then you would be using an assumption of the truth of that account in order to render as an extra support to the truth of the testimony of the event the distress with which it was expressed, or in the course of which it was expressed. That, in our submission, is the bootstraps of circularity that has been identified.
All the cases, to date, that have looked at this as we have drawn to attention, in our written submissions, say, of course you cannot use the content of the complaint in assessing whether the reliability evidence that you want to adduce in support of the truth of the complaint is, itself, true. You cannot do that, because in order to use the distress evidence as evidence that the thing happened, you are, of course, necessarily saying the complaint was true, and it is for those reasons the circularity appears.
I drew attention to the inexactness of the evidence from mother and daughter concerning the episode at the court – the meltdown, so‑called. Unless one knew more or had been told more about the emotional state that we are calling “distress”, some called at the time “meltdown”, when it occurred, and in what circumstances it occurred apropos what, then the notion of attributing it to the offending is, in our submission, completely
untethered from any factual or logical reasoning, hence the need for warnings.
In this case, the complainant was – as a child, as a juvenile – in a position where she was faced with either going into institutional care or going to her father, against whom she also made allegations of abusive conduct. Just as a matter of ordinary human experience, the instant immediate pressure and disaster that that threatens is obviously accounted to explain why you have a meltdown.
It is for those reasons that, on any view of it, this material – perhaps as sensed by the Crown when first saying, not very appropriate – was required by either of the two routes, 12 or 16, to be subject of an appropriate warning: first of all, be satisfied that this distress is attributable to the offending before you can use it to contribute to a beyond reasonable doubt finding of guilt; and, second, reasoning from demeanour or display of emotion is something you should be very wary of, and you should be careful about what weight you give to it. In other words, in line with the spirit of the not‑then‑promulgated 54K, and particularly in line with the spirit of 32.
May it please the Court.
GAGELER CJ: Thank you, Mr Walker. Mr Kissane.
MR KISSANE: Thank you, your Honour. We submit that there was no evidence upon which the judge in this case could have given a section 32 unreliability warning. This was a case where the evidence of complaint and stress came from the mother, as well as from the complainant. It was not the statement, as my learned friend has, I think, agreed was not challenged in any way. The fact that she was distressed and the linking of that distress to the evidence of the complainant claiming that she was raped was not challenged in any way. It was not sought to undermine any part of that evidence.
So, when one looks at the strictures of section 31 and section 32 and the sorts of evidence that require unreliability evidence warnings, our submission is that, in this case, the evidence was such that none was required – certainly, none was asked for, but it was not required by the judge, and I think we discussed this earlier with the learned Chief Justice in relation to the interplay between section 32 and section 16, but our submission is that there was no requirement in this case ultimately for the judge to give an unreliability evidence warning in relation to the distress evidence. There was, of course, an unreliability warning given generally by the judge in relation to the evidence of the complainant. That was there, but there was no requirement to link that to the evidence of complaint and distress.
I took the Court earlier to the evidence of the mother where the complaint is linked to the distress. There is evidence from the complainant – which is found at page 10 of the appellant’s book of further materials – where, when she is giving her VARE, she talks about her mother being at the Children’s Court. She talks about the reason for running away. But, importantly, at question 154, she says:
I just wanted to be away from the family, because every time I was around the family, it just reminded me of everything.
When one looks at the evidence of the complainant together with the evidence of the mother, in our submission, this is not a case where it reaches the level where the judge was required to give an unreliability warning.
My learned friend referred to Edwards as an example where one might go beyond just putting all the evidence into the mix and weighing it up. But, of course, consciousness of guilt evidence is dealt with in a particular way in the Jury Directions Act. Section 61 refers to:
Unless an enactment otherwise provides –
before talking about a judge directing the jury beyond reasonable doubt. Section 21 of the Jury Directions Act contains provisions that relate to the use of incriminating conduct evidence, as it is now called, as opposed to consciousness of guilt, as it was in Edwards. In section 21, of course – in section 21(1), one finds the need to give a direction about:
the only reasonable explanation of the conduct is that the accused held that belief –
That is an exception to section 61, so, in our submission, Edwards is of no assistance in determining what the burden of proof is in relation to distress evidence, which I think was a question that was asked of my learned friend. There has been some discussion about ‑ ‑ ‑
BEECH‑JONES J: Just understanding the rationale, is that Edwards was effectively a line of authorities dealing with admissions and concerns over admissions. So, even if we are outside the Jury Directions Act, you say, the type of concerns about the use of that evidence do not flow over to this area of discourse. Is that the ‑ ‑ ‑
MR KISSANE: Yes, effectively. Yes, it does not flow over into the use of distress evidence, and particularly distress evidence that is related to complaint. My learned friend has attempted to disentangle the two, but in having disentangled them, to say that therefore there is a requirement for a section 32 unreliable evidence direction. In our submission, it is artificial to disentangle the evidence of complaint from the evidence of distress, in this case ‑ ‑ ‑
GORDON J: In this case?
MR KISSANE: In this case.
GORDON J: But there will be some instances where it will be possible?
MR KISSANE: Yes, there will be some instances where – and particularly where the distress evidence is early in the piece and observed by someone else where it is disentangled. But in this case, it is not disentangled, and when one looks at the direction that I think we refer to in paragraph 39, your Honours, it does refer to evidence of distress in the context of complaint. That was the way the direction was phrased. There was I think another direction that dealt with evidence that was soon after the event that was not necessarily in the context of complaint. But that direction in section 39 was evidence of distress in the context of complaint.
There was also some discussion about the independence of the evidence and the direction that was given in relation to the independence of the complaint evidence. Those directions come about also because of the Jury Directions Act. Section 44B talks about previous representations. Section 44C(2):
The trial judge is not required to direct the jury that the evidence of the previous representation does not independently confirm the victim’s evidence of the commission of the alleged offence.
So, that does not mean that a direction cannot be given and, presumably, because it was given in this case, it must have been asked for, along with the complaint direction, which was presumably also asked for. But, in our submission, the fact that there was a direction about independence of evidence in relation to complaint says nothing about the need for any direction of that kind in relation to the distress evidence. So, there was nothing wrong with the way the judge set out the charge of dealing with the distress evidence in the context of indirect evidence and then dealing with the complaint evidence at a latter stage, with a direction that the complaint evidence was not from, of course, an independent source.
In our submission, there was no lack of clarity in the request for a direction. In trials it is common for counsel and jury to talk in shorthand, and at the end of the day, there was nothing wrong with the judge putting off giving the direction until after he had heard the addresses of counsel. By that stage, everybody knew how the case was being put, in relation to the distress evidence.
The judge then read out the direction that he was proposing to give to the jury, and there was no objection taken to that direction. So, although my learned friend criticises the way that the discussion about the distress direction under the Jury Directions Act, and how that developed, by the time the judge came to direct the jury, there ought to have been no misapprehension in anyone’s mind as to how he was going to direct the jury. And, of course, by that stage both counsel had addressed the jury, and it was the way they addressed the jury that prompted the judge to say, yes, I need to a give a direction in this case.
As I said earlier, in our submission, there was no – there was nothing in the direction that can be criticised, or certainly nothing that ought to have led the Court of Appeal to order a retrial in this case. At one stage, my learned friend ventured into the area of context evidence, in the sense that the use of the evidence might be admissible not as evidence that supports the complainant, which is the way we say it can be used, but simply as context for the complaint evidence.
In our submission, that is not the way that distress evidence has ever been dealt with. To limit to context of the complaint evidence will, of course, require a limiting direction under section 136 and an application for that. But, in our submission, the evidence is more than just context; it is evidence that supports the complaint of the complainant, it is evidence that supports the happening of the event or the trauma, that the complainant had suffered trauma.
In our submission, one should not just treat that evidence as some form of context of the complaint evidence. That would be limiting its use. That would be, in effect, saying that the evidence does not support the evidence of the complainant under section 55, but it is only relevant to provide context as to the complaint.
Context evidence often comes about in terms of lead‑up evidence, so it is often said that something in the lead up is led so that the jury see the evidence in its complete context, and it is not out of the blue. Presumably it is something similar in relation to the context of the complaint but, in our submission, that would be limiting the weight of the evidence in a way that is not anticipated by the Evidence Act, because the evidence of complaint
and the evidence of distress at the time of the complaint is evidence that can rationally affect the findings that a jury are entitled to make.
GAGELER CJ: He might have used the word “context”, but he was, really, mainly talking about demeanour. He was talking about the way in
which the complaint was made – in a distressed state. He was really saying, I understood that the distress was part of the communication – it was a physical part of the communication that was occurring.
MR KISSANE: Yes. And that is the argument that you have to pull them apart and work out the distress in isolation from the complaint. We submit that that is an artificial way of going about it. Here you have – and I think as I said this morning, almost all distress evidence, apart from the Redpath example or the example where somebody is seen coming out of the bushes, is seen to be distressed – even then, they presumably have to say that they have been raped or sexually assaulted or something for the evidence to have force, but generally speaking, the evidence of distress gets its force from the complaint that is made.
In our submission, it is a case of treating the complaint evidence as circumstantial evidence that supports the terms of the complaint, but also supports the happening, that a traumatic event has occurred.
Unless I can be of any further assistance, your Honours.
GAGELER CJ: Thank you, Mr Kissane. The Court will consider its decision in this matter and will adjourn until 10.00 am on 4 March 2025.
AT 3.29 PM THE MATTER WAS ADJOURNED