The Queen v Jolly

[1999] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M39 of 1998

B e t w e e n -

THE QUEEN

Applicant

and

RODNEY JAMES JOLLY

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 11.08 AM

Copyright in the High Court of Australia

MR G.R. FLATMAN, QC:   May it please the Court, I appear with MS K.E. JUDD for the applicant.  (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

MR D. GRACE, QC:   If the Court pleases, I appear with MR J.P. DICKINSON for the respondent.  (instructed by Wallington-Brand)

GLEESON CJ:   Yes, Mr Flatman.

MR FLATMAN:   May it please the Court, this case raises questions concerning the terms of a warning to be given by a trial judge pursuant to the principles set out in Longman’s Case.  In particular, it raises questions relating to whether and in what circumstances the warning needs to include the words that it is “dangerous” or “unsafe” to convict on the uncorroborated evidence of the complainant.  It also raises questions about the need to give the trial judge the flexibility to give warnings that truly reflect the justice of the individual case.

It is basic to this application that a direction that expresses or connotes that it would be dangerous or unsafe to convict on the evidence of the complainant alone may often be unjustified.  It is clearly accepted, as envisaged by Longman, there will often be cases where there is a perceptible risk of a miscarriage of justice if the existence of the danger is not readily apparent to a jury.

However, it is our submission that once the jury is made alive to the danger, the circumstances may be such that it is not dangerous to convict on the uncorroborated evidence of a complainant at all.  In many cases, it is our submission, to so instruct the jury would upset the balance of a fair trial.  It is all very well to direct a jury that it would be dangerous or unsafe to convict on the evidence of a complainant alone but it is, in our submission, a reality that such a direction could also be saying to the jury that “If you convict on the uncorroborated evidence of the complainant, the conviction would be dangerous or unsafe.”  It is our submission that in those circumstances the direction in those terms is tantamount to a direction to acquit.

This is not the first time a concern has been raised between the difference about warning a jury about scrutinising a witness’s evidence with care and the need to put it in the precise terms that it is unsafe or dangerous to convict on the uncorroborated evidence of a complainant.  In Pahuja, (1987) 49 SASR, which is referred to in Longman, specifically, in the judgment of Mr Justice Cox, at page 214, he noted the question:

There is an obvious and substantial merit in giving some kind of warning in many sexual cases, but the terms required by the case law were often inappropriate.  In some cases the use of the expression “Dangerous to convict” was calculated to throw the case out of balance, particularly where the accused himself chose not to give sworn evidence.

Which, in fact, is the case in the case before this Court.

In my opinion, the subsection should be interpreted as a complete abrogation of the old requirement, and I cannot see any justification for implying a limitation of the kind –

He went on to consider the Victorian legislation as it then was.

GLEESON CJ:   But what the Court of Appeal decided in this case, as I understand it, was that the actual remarks that were made to the jury by the trial judge were insufficient to comply with the requirements of Longman.  That is a decision that seems to turn on the detail of what happened and what was said in this case.  Your concern seems to be rather with some dicta, in particular, of Mr Justice Ormiston.

MR FLATMAN:   I appreciate that perspective, your Honour, but it is our submission, in fact, it is more than dicta.  We say that it was, in fact, central to this case and central to the issue that went on appeal to the Court of Appeal.  The question of Longman arose immediately at the close of the Crown case.  His Honour directed and gave warnings.  He was concerned that a warning should be given and referred to delay in complaint; criticisms by the defence, and argued that the evidence was tainted and the fact that the complainant is a child.

GLEESON CJ:   Have a look at the reasoning of Justice Kenny between pages 195 and 197.  Where is the error in that?

MR FLATMAN:   The error is contained in holding that the directions given by the trial judge were insufficient.

GLEESON CJ:   Her reasoning turned not upon any general question of principle, as I understand it, but on a close analysis of what had actually happened at the trial and the words that were used.

MR FLATMAN:   That is, certainly, one perspective that can be taken of the judgment but, in our submission, it is implicit in the judgment that the words “dangerous to convict” were necessary.

GLEESON CJ:   But where is that said in this judgment?

MR FLATMAN:   Certainly it is said, your Honour, when it refers to the expression at line 20, page 196 of the application book:

The use of the expression “the potential for error” was held by this Court in Young to be an inadequate guard against the danger to be met by a direction of this kind.  So too in this case. 

Defence counsel properly took exception to the direction and this led the trial judge to charge the jury again, in the following terms –

and went on to say:

there is a potential of error in cases where it is sometimes said it is dangerous to convict in cases –

It is our submission that it is implicit in the judgment of Justice Kenny that by saying that “potential for error” was an inadequate safeguard, in the context of this case, the only alternative was to go further and say it would be dangerous to convict on the uncorroborated evidence of the complainant alone or the uncorroborated evidence of a complainant.  She said the “defence counsel properly took exception to the direction” and she said, at page 195, that he was required to give:

them the full appreciation of the danger of proceeding to convict on the evidence of the complainant - - -

GLEESON CJ:   What about a warning requiring the jury to “scrutinise with great care the evidence” of a witness?

MR FLATMAN:   But he has given that warning, your Honour.  The difficulty is when you look at the judgment there is no obvious error of principle because the principles in Longman are certainly reproduced.

GLEESON CJ:   What you want to do is shift the dictum of Mr Justice Ormiston.

MR FLATMAN:   No, no, I say that it is necessary - in a true reading of the judgment of Justice Kenny, it can only mean that because there is no other warning that could have been given by the trial judge in this case.  He has alerted the jury to all of the facts that were germane.  She even says that:  “He refers to all of the relevant facts.”  He has said that “There is a risk of potential for error” and he went on to say, in the redirection, to even use the words “dangerous to convict”.  This arose out of an exception to the charge where the whole focus of counsel for the defence and the judge was on whether or not the words “dangerous to convict” ought to be used.  Counsel for the defence said, “But it is always used” and called on the prosecutor to support her and he said, “Yes, it is always used”, and his Honour said, “But that’s just the problem.  It is tantamount to inviting a jury to acquit.” 

Indeed, the passage starting at page 153 of the application book really crystallises the exception and the problem.  At the bottom of the page, Mrs Williams, for the defence:

I can say this, every case I have been in where a Longman warning has been given, that’s been the formula that was used.

HIS HONOUR:  I’ve given a week or a month of Longman warnings in Ballarat, set pieces up there.

MRS WILLIAMS:   Yes.

HIS HONOUR:  Then I have counsel saying, “Look at the words ‘dangerous to convict’” as if they’re part of the 11th Commandment:  No jury shall convict in the circumstances where there’s not supporting evidence or there’s been a delay; look at the strength of words and I don’t know whether the Full Court ever intended that the words “dangerous to convict” should be belted home to the jury like “Thou shalt not kill” but that’s what happens…..

There is a risk for potential for error, it’s not a slogan, it’s a meaningful phrase.

And that is the expression he used.  He said, “You’ve got to scrutinise the evidence carefully because there’s a potential for error” and he pointed out that there had been a delay and he pointed out that - - -

GLEESON CJ:   Potential for error on whose part?

MR FLATMAN:   A potential for error in a jury verdict, in a conviction.

GLEESON CJ:   Which is a different thing, for example, from a potential for error in the evidence of a witness.

MR FLATMAN:   It is a different thing to an error in a witness, yes, but when he goes to redirect I think he uses that expression.  He has summarised the reasons for why there is a potential for error in the complainant’s evidence because he speaks about her age, “The fact that you’re seeing her as a 15-year-old now, not as a 10-year-old when it occurred.  She might assume a false - - -“

GLEESON CJ:   Yes, but that is a potential for error on the part of the witness.

MR FLATMAN:   Yes.

GLEESON CJ:   Which is a different thing from a potential for error on the part of a jury.

MR FLATMAN:   Yes.

McHUGH J:   In a case calling for a Longman warning, the most favourable view from the accused point is in the majority judgment in the judgment of Justices Brennan, Dawson and Toohey in Longman.  Justice Deane and I were a bit more cautious, but I do not know why trial judges, in a case calling for a Longman warning, do not stick to what Justices Brennan, Dawson and Toohey said, that a jury ought to be directed that it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering all the circumstances relevant to it, were satisfied as to its truth and accuracy.  That is what their Honours said.

MR FLATMAN:   That is right, but it is certainly not a warning that is an appropriate warning in all cases.  In fact, Longman was a very special case.  It was 25 years ‑ ‑ ‑

McHUGH J:   I know it is.

MR FLATMAN:   This is entirely different.  First of all, the accused not only failed to give evidence on oath, he did not even give a record of interview.  Here is a case where the girl has come to court, committal proceedings, and given evidence on oath and been cross‑examined; at trial given evidence on oath and a voir dire and been cross‑examined, been cross‑examined again during the trial and the matter falls because of what is really a substitution, in our submission, of the Court of Appeal’s exercise of discretion for that of the trial judge’s.  The trial judge was in the position to make an assessment of what was an appropriate warning to warn the jury of the hidden dangers that might be in the trial.  He did that.  The effect of this particular judgment will be that in all cases that is what will happen.  What will happen is the jury will be told that it is unsafe to convict on the uncorroborated evidence of the complainant.  That, in our submission, will throw out consistently the balance of warnings in cases where the principles in Longman’s Case arise.

GLEESON CJ:   But the decision here turned on a narrower point, did it not?  Here you had a trial judge who, as you have just shown us, had had an experience with a succession of counsel addressing juries and building an argument on the terms of a Longman warning which the trial judge did not like and he sought to find a solution by using a verbal formula related to “potential for error”, and the reason for decision of the Court of Appeal was that that particular formula that he used, in the circumstances of the case, was inappropriate.  Now, that is what this case turned on, is it not, the confusion that was said to be implicit in this expression “potential for error” that he used.

MR FLATMAN:   But we would say that it was not open to the Court of Appeal to make that conclusion and in drawing that conclusion and in the obiter, if it is obiter, of Mr Justice Ormiston, it leaves a clear message then to judges in the County Court in Victoria that they are required to use the full Longman warning in terms of, “It would be dangerous to convict unless you have corroborating evidence”.  If “a potential for error” was not sufficient in this case, it is our submission it could not be a sufficient or adequate warning in any case because this is a case where the complaint was only three years old.  The evidence was in fact corroborated on both counts and the accused did not give evidence so that it was not oath against oath.  The whole concept of the need for this kind of warning is where you have two different versions, oath against oath, and there may be some hidden danger lurking in the evidence that the jury might not be aware of as in Bromley’s Case and Spencer’s Case, that it be drawn to the attention of the jury so that when they come about their task they can make it, fully apprised of all of the issues.

If you go further and you say, “Well, tell the jury that it’s unsafe to convict on the uncorroborated evidence”, you are throwing it, in our submission, out of kilter because it may not be unsafe.  In this case, in our submission, it clearly was not unsafe and if it goes back for a retrial it will be an inappropriate direction because that is undermining the evidence of the complainant.  It is, in a way, suggesting that she is part of a class of witness – not so much a class of witness but she, as a witness, has some problem because she needs corroboration, it is unsafe to convict on her evidence alone.  That is not right.  A true analysis of the law and, indeed, the judgments of Justice Deane and your Honour Justice McHugh in Longman recognise that it is not necessary to always go further and say that it is dangerous to convict.  That is a matter for the trial judge in the justice of the case.

The real difficulty is these cases are going on.  You have only to read the argument here, in the County Courts every day and that warning is given.  Here is a judge who tries to balance it in accordance with the comments that your Honour makes in the judgment in Longman.  He said, “No, that’s inappropriate.”  There was no question that this case, the warning will have now have to be given and in virtually every other case before the - - -

McHUGH J:   The passage that seems to most strongly favour that is in Justice Kenny’s judgment at 195 where, having set out the particular facts, she then says it required a warning which in fact is in terms identical with what was said in Longman by the majority.

MR FLATMAN:   The warning by the majority in Longman might have been appropriate in Longman.  In fact, the other two judgments said that it was not necessarily.  Two different reasonable minds can get different views about what the proper terms of a warning should be.

GLEESON CJ:   But you are not urging that the reason special leave should be granted here is so that the High Court can have an opportunity to reconsider Longman?

MR FLATMAN:   I am, because there is the other case that is going up from Queensland of Robinson where, on a fact situation much, much more calling for a warning than this one, special leave was granted.  No warning was given at all.  In terms of similar legislation, no warning was given to the jury and two judges said that was all right.  Here, not only was a warning given but it has now been sent back for a retrial in circumstances were – in the one in Queensland, there was no corroboration.  The child was eight when it happened; 11 when he gave his evidence; and there was oath upon oath, and there was a great deal of problem in the articulation of the evidence by the child.  I see my time has expired.

GLEESON CJ:   Thank you.  Yes, Mr Grace.

MR GRACE:   Could I indicate that in that judgment of Robinson from Queensland there was no reference, it appears, in argument nor in the judgment to the relatively recent then case of Crofts decided by this Court in 1996.  If there had been reference to that case, then much of the problems that were encountered in the discussion in the judgments in Robinson may have been avoided.  Whether that would come to the fore in the argument in the High Court on special leave, I am not sure.

In a case called McNair, which is an unreported decision of the Supreme Court of Victoria Court of Appeal delivered on 8 May 1997, Justice Calloway said this, at page 6 of the short judgment:

In the first place, “dangerous” and “unsafe” are plainly not used in a synonymous sense.  Secondly, when it is said that it is dangerous to convict, that means that it is a dangerous course.  It does not mean that it is a course from which the jury may not emerge safely.  To adopt what Hotspur said in Henry the Fourth, Pt I, out of the nettle, danger, it is possible to pluck the flower, safely.

Now, those words have to be considered in the framework of the applicant’s argument in this case.

It has never been the law in Victoria nor is it the law in Australia, as I understand it, for a trial judge to be required, as a matter of law, to direct the jury in accordance with what the majority judgments in the matter of Longman said.  It is sufficient if the words used by the trial judge connote the message that has to go to the jury.  What occurred in this case - - -

McHUGH J:   Does that not raise the problem:  a view seems to have grown up that a warning is always required in these cases.  Is there anything in Longman that supports that?  Longman was an extraordinary case.  What was it, 20 years or something, since the incidents happened and the girl was half a sleep.

MR GRACE:   There is nothing in Longman that necessarily directs itself to whether a warning has to be given in every case.  Indeed, that was considered in Crofts.

McHUGH J:   Remind me again.  Does Victoria have the statute like there is in - - -

MR GRACE:   Yes.

McHUGH J:   It does, yes.

MR GRACE:   In Crofts, at page 451, in the joint judgment of Justices Toohey, Gaudron, Gummow and Kirby, at line 2, after considering Longman, their Honours said:

That decision makes it clear that the purpose of such legislation –

that your Honour just mentioned –

properly understood, was to reform the balance of jury instruction not to remove the balance.

So, their Honours were looking at it from a different point of view where the existence of that subsection, although in Crofts at first instance before the Court of Appeal had resulted in the Court of Appeal coming to the conclusion that the legislation had abrogated the need for a Longman-type warning in cases of delay, here, the High Court, in its judgment in 1996 said that the balance is something that has to be maintained and in an appropriate case – it did not say in every case – in an appropriate case a warning has to be given.

McHUGH J:   But take the passage at 195 in Justice Kenny’s judgment.  She seems to be saying the case against the accused depends upon the complainant alone; there is no corroboration and the charges arose because she “had been talked into discussing the content of her ‘secret’ note” and that required a warning.  Well, that comes very close, does it not, to turning the statute on its head.  The statute was designed, in effect, to do away with the automatic warnings that were given in these cases where there was uncorroborated evidence of a complainant in a sexual case.

MR GRACE:   Delay is only one issue.

McHUGH J:   It is not much delay, really, is it?

MR GRACE:   Well, there is three years.

McHUGH J:   Three years.

MR GRACE:   Between offence and complaint and another two years until trial. 

GLEESON CJ:   Just remind us what her Honour is talking about at line 15 where she says:

The charges had arisen largely because the complainant had been talked into discussing the contends of her “secrete” note with the student welfare co-ordinator –

What is that about?

MR GRACE:   What happened was that the complainant made no complaint at the time of the offence.  Three years later, whilst at school, she passed a note to a girlfriend and in that note to the girlfriend she made certain allegations against the accused.  That girlfriend then took those allegations to the student welfare co-ordinator who then persuaded the complainant to make an official complaint.  That is what that sentence is about.  I am not sure whether it is conceded by the Crown, but the necessity for the giving of the Longman warning does not just arise in circumstances where there has been delay in the making of the complaint and, indeed, Longman’s Case makes that particularly clear.

Delay in prosecution and delay in complaint certainly give rise to the need for a Longman warning but the age of the complainant at the time of the events is a relevant factor to take into account.  The absence of complaint is a matter to be taken into account.  The loss of opportunity of testing the allegations by the accused man is a matter to be taken into account.  The method of the police obtaining the evidence is a matter to be taken into account and the absence at all of complaint.  Perhaps I have mentioned that.  But the categories are not closed, so delay is only one aspect of the matter.  It would be wrong, in my submission, to focus primarily on that aspect of the need for a warning in a case such as this.

Now, your Honours will no doubt be aware that in Benz Justice Deane cited with approval the statement made by all five members of this Court in Lee where his Honour said that special leave should be granted to the Crown to appeal in criminal matters “only in very exceptional circumstances”.  Lee was a case where a retrial had been ordered after a decision by the Court of Criminal Appeal.

GLEESON CJ:   May I ask you:  at the trial, did the Crown dispute that this was a proper case for a Longman warning?

MR GRACE:   As I understand it, no.

GLEESON CJ:   And was there any dispute in the Court of Appeal that this was a proper case for a Longman warning?

MR GRACE:   No.  The issue was whether the form of the warning that was given was proper, so that the issue was not whether the principles that were identified by the Court of Appeal were wrong or incorrect or the trial judge had applied any wrong or incorrect principles, the complaint was that in the circumstances of this case, in applying the principles to the facts of this case, the Crown in the Court of Appeal said, “No, the form of the warning was adequate”.  It covered all contingencies.  The accused applicant in the Court of Appeal said, “No, it did not.”  The Court of Appeal, obviously, found in favour of the accused.  Ordered a retrial.

What we say is that there is no doubt as to the correctness of the statements of principle enunciated by the members of the Court of Appeal

and there is insufficient doubt as to the application of those principles by the Court of Appeal in its judgments and, primarily, judgments, of course, of Justice Kenny and, in part, Justice Ormiston.

Now, as to the form of words to be used in a warning, there is clear authority in Victoria to the effect that there is no set formula.  So, the Crown’s suggested danger that is going to arise in Victoria as a result of this judgment really cannot be borne out on the state of the authorities in Victoria.  If I could commence by referring to a case in which the learned Director was for the other side, that is for the applicant convict, a case of Francis, in which he argued – this is an unreported decision of the Court of Criminal Appeal of Victoria on 13 December 1991.  At page 13, the Director argued – and he was not the Director at that stage, for the accused:

He submitted that the learned trial judge erred in not including the words “dangerous to convict” in his warning to the jury, and in not setting out all of the circumstances relevant to the jury’s evaluation of the evidence.

GLEESON CJ:   What the trial judge actually said in the present case, in his redirection, was that there was “a potential of error in cases where it is said it is dangerous to convict.”  Well then, that is capable of being understood as meaning, I would have thought, “It is erroneous to say it is dangerous to convict”.

MR GRACE:   Yes, and that is highlighted by what Justice Kenny had to say subsequent to that passage where her Honour says:

these observations were more likely than not to have confused the jury further.

GLEESON CJ:   I thought that this case turned upon the conclusion that what the judge said when he redirected the jury was worse, from the accused point of view, than what he had said in the first place, about “potential for error”.

MR GRACE:   Yes.  Well, that was certainly one of the issues.  But let me go on.  In Francis - - -

GLEESON CJ:   We do not need to hear you further.  Mr Flatman, do you want to say anything in reply?

MR FLATMAN:   Your Honours, that redirection was introduced at the request of the counsel for the defence because she was saying that it had not gone far enough. 

GLEESON CJ:   Yes, but she did not propose that formula, did she?

MR FLATMAN:   She did not propose that formula but - - -

GLEESON CJ:   What Justice Kenny says at lines 33 and 34 of page 196 is right, is it not?

MR FLATMAN:   But Justice Kenny, at page 196 is suggesting that that made things worse, if anything, because it undermined it.  But she had already taken the view prior to that that:

his Honour did not, in plain and unambiguous terms, direct that these matters were germane to the danger against which the direction is to guard.

GLEESON CJ:   Yes, but this case would be a very unsuitable vehicle, would it not, for agitating or reagitating the entire issue of Longman if the outcome of the case is likely to turn upon what the judge actually said in his redirection?  The case would then establish nothing.

MR FLATMAN:   Your Honour, it is our submission that that redirection, in the context of the whole of the charge, could not have been misunderstood in the way of undermining it because it followed a passage at page 172 where he was summarising the argument made by counsel for the prosecutor and at line 16, summarising the argument put by the prosecutor, because the prosecutor had put it in those terms:

He said the failure to make a complaint does not mean these things did not happen, he says you should accept what she says, carefully analyse the evidence, remembering the warnings that it may be dangerous to convict.

And then he went on at the end of summarising the defence counsel’s argument in putting that particular direction:

the law says there is a potential of error in cases where it is sometimes said it is dangerous to convict in cases where you have the unsupported evidence of a witness making an accusation against another –

That, in our submission, ought not to be interpreted as necessarily undermining the situation at all.  We would say that it was not in fact the case in which it was dangerous to convict if ever there was a case.

McHUGH J:   I know, but in so far as there was, the problem with this case is that the judge never really directed them as to how the danger arose.  You just get this sort of slogan which says you have to scrutinise the evidence and there is a potential for error and the jury is thinking - - -

MR FLATMAN:   At page 130 he did.  He said: 

you have a delay in the making of a complaint, where you have a witness of tender years and the case depends in many ways upon her evidence alone, there are risks for a jury in bringing back a verdict of guilty without the presence of some other evidence that corroborates – or supports…..the accused’s evidence.

McHUGH J:   Yes, but that is what I am pointing out.  Should not the judge, as we have said in Longman – at least some of us did – that you should really explain why delay may produce error, why the fact that she had been urged to make this complaint because of the “secret notes” she passed on may indicate her evidence as unreliable.  But, instead, you are just getting the slogan put to the jury.

MR FLATMAN:   But he does say that at page 139.  He talks about it is difficult to assess the credit of the girl because you are looking at her as a 15-year-old instead of a 10-year-old, but at page 139, he says:

In relation to delayed complaints, I should also say this to you, you must also remember that with the passage of time, people against whom allegations are made, sometimes lose the means of defending themselves. 

He had difficulty in going into that in great detail as he pointed out to counsel for the defence because the accused had not given any evidence. 

It is quite different to Jones’ Case, for example, where there was a real issue because one of the witnesses, one of the key witnesses for the defence had a difficulty in remembering whether she was there on a particular day.  When viewed as a whole, I can see why it is attractive to say, “Look, the redirection undermines” but when you look at the whole of the warning, he has tried very, very hard to give the appropriate warnings that the justice of the case demanded.  This was not a case where you should simply mouth a Longman warning, if ever there was a case.

McHUGH J:   You may have a plausible argument that the Court of Criminal Appeal should not have interfered but it is not a case, it seems to me at the moment, that raises any – that is a satisfactory vehicle for looking at this question.  You might have to get a better case.

MR FLATMAN:   Can I say this:  in our submission, Longman has dominated the courts for the last 10 years.  All appeals come from the defence.  They never come from the Crown.  My learned friend raised Benz Case.  This is the third application for leave to appeal to the High Court by the Crown since 1994.  The other two were not successful.  I put exactly the opposite argument, as he pointed out, in Francis.  I was not successful when I was on the other side.  The Court told me I was wrong.

GLEESON CJ:   This is a desperate argument, Mr Flatman, flinging yourself on our mercy.

MR FLATMAN:   No, I am saying that this is a vehicle because this is terribly important.  All cases involving a Longman warning involves sexual offences against children.  A huge number of those involve sexual offences by people who know the children.  They are on friendly relations with the children.  Most of the time, if not all of the time, there is a delay in complaint.  Most of the time there is a problem about it being a child giving evidence.  They are the two issues that arise time and again.  If this case stands, we will always be told that it is dangerous to convict on the uncorroborated evidence of children in these cases.

GLEESON CJ:   “Complaint” can be a fairly misleading word to apply to the circumstances of this disclosure.  A schoolgirl passes a note to another schoolgirl.

MR FLATMAN:   A classic way, your Honour.

GLEESON CJ:   And without her intending it, gets into the hands of the authorities.

MR FLATMAN:   Yes, exactly the way it came up.  In the Queensland case he was talking to other scouts - - -

GLEESON CJ:   That is not what most people understand by the meaning of the word “complaint”.

MR FLATMAN:   No.  It is the same as saying as when it came to light, when the complaint was ultimately made to the police.  Usually these people – it is circumstances like this that is a catalyst for the complaint coming out.  But it is a huge difficulty for the criminal justice system to accommodate these kinds of cases.  People are encouraged to come forward and complain and we realise the problems with it.  But to let this – in my submission, it is an ideal vehicle to take because it is right on the point about what are the terms of the direction.  The Queensland case is almost

the same facts:  is whether or not there should be a direction.  It was conceded in the lower court that the direction should be given.  It had to be conceded because it would not have survived the Court of Appeal.  It was within the discretion of the judge to give a direction; of course it was because you can give a direction in all kinds of cases where there is something special about the case.  And there was.  This was a 15-year-old girl talking about things that happened to her when she was 10.  This, in our respectful submission, is really taking the law in Victoria - - -

McHUGH J:   Well, I think your time is up.

MR FLATMAN:   I appreciate it, your Honour.

GLEESON CJ:   The outcome of this case in the Court of Appeal turned upon the particular words of a specific direction and, more especially, a redirection given by the trial judge.  The Court is of the view that the case does not raise any issue of principle suitable to the grant of special leave and the application is refused.

MR GRACE:   Could I apply for costs?

GLEESON CJ:   What do you say about that, Mr Flatman?

MR FLATMAN:   It is a matter for the Court.

GLEESON CJ:   Yes.  The applicant should pay the costs of the respondent.  We will adjourn for a short time to reconstitute.

AT 11.49 AM THE MATTER WAS CONCLUDED