Thorne v The Queen

[1996] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M41 of 1995

B e t w e e n -

GEORGE FREDERICK THORNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 16 APRIL 1996, AT 12.08 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with my learned friend, MR R. STARY, for the applicant.  (instructed by Stary & George)

MR J. McARDLE:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Mr P.C. Wood, Solicitor for Public Prosecutions (Victoria))

MR GRACE:   With the Court’s leave, I seek to argue the third ground of appeal which relates to the only remaining conviction.  That is the conviction on count 8, the gross indecency count.  The complaint is that the learned trial judge failed to give a Longman warning which was a complaint acknowledged as being correct by the learned trial judge in his report to the ‑ ‑ ‑

GAUDRON J:   Which was not requested at trial?

MR GRACE:   It was not requested at trial.  But it was not requested at trial in relation to all counts, yet the Court of Criminal Appeal held that in respect of all counts, with the exception of this count, that failure was not a matter that in the circumstances of this case would cause the application for leave to appeal against conviction to be refused.  In fact it was allowed and a retrial ordered on every count except for this count.

Before the jury could use the evidence of the brother and mother on this count as corroborative of the complainant and vice versa, it would first have to find that the complainant’s evidence was intrinsically credible; secondly, that the evidence ‑ ‑ ‑

GAUDRON J:   Why is that?  There is no principle to that effect.  One considers the evidence as a whole.

MR GRACE:   Yes, but the basis of the Court of Criminal Appeal’s decision was that the evidence of the mother and the brother was corroborative of the complainant on this point.  To meet the test for corroboration, in my submission, the complainant’s evidence would first have to be decided upon by the jury as to its credibility; secondly, the mother and the brother’s evidence would have to be looked upon in terms of its intrinsic credibility; and thirdly, find that each one’s evidence was independent of the other.  In all three issues ‑ ‑ ‑

GAUDRON J:   Why do you say that?

MR GRACE:   In order to find corroboration?

GAUDRON J:   Yes.  Why was that necessary in this particular case?  Surely it was open to the jury to have regard to all of the evidence relevant to this charge and to look at it quite globally without going through the niceties that you now propound.

MR GRACE:   First of all, there was no corroboration warning given in this case, and indeed it may be thought that in respect of this count there are in fact three victims - the complainant, the mother and the brother - or perhaps the mother was even an accomplice.  But no direction was sought in respect of a corroboration warning and certainly no Longman-type direction was sought.  The complaint is that a Longman-type direction ought to have been given in respect of each of the evidence of the complainant, the mother and the brother because of the defects that each suffered from.

GAUDRON J:   Precisely what direction do you say should have been given, albeit that it was never requested?

MR GRACE:   A Longman-type warning.

GAUDRON J:   Yes, but what is that in its application to the facts of this case?

MR GRACE:   The delay, the great deal of time between the date of the alleged commission of the offence and the date of complaint by the complainant.

GAUDRON J:   But was not one of the bases on which it was said in Longman that the warning had to be given was the particular circumstances of the complainant at the time when the incident was said to have occurred?

MR GRACE:   Yes, but also the fact that in Longman it was over 20 years of delay.

GAUDRON J:   But it was not simply the delay that attracted the direction in Longman.

MR GRACE:   But the straw that, perhaps, broke the camel’s back in Longman was the fact of delay; the fact that it was so long after the alleged event that that type of warning was required.  If I could refer your Honours to a short extract in Longman 168 CLR 79, at page 91 in the joint judgment of their Honours Justices Brennan, Dawson and Toohey, line 5:

But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them:  see Reg v Spencer.  That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.

GAUDRON J:   That warning was not at all appropriate in the circumstances of count 8 unless you went on to say, “If you reject the evidence of the mother and her brother then you wouldn’t convict” but there was no direction asked of that kind.

MR GRACE:   There was no direction asked but, in our submission ‑ ‑ ‑

GAUDRON J:   And you would have to tailor it in any event.

MR GRACE:   It would have to be tailored but that type of warning, it is submitted, would attach to the evidence of all three.  Everything that was said in Longman’s Case in terms of that warning was applicable to the evidence of all three victims of that particular offence.  The fact that the learned trial judge himself, in his report to the Court of Criminal Appeal, said that he was in error in failing to give a Longman warning on this count also is, in our submission, indicative of the feelings of the learned trial judge or the opinion of the learned trial judge that there was a serious wanting in the directions given to the jury in respect of this count.

It is important to note, your Honours, in respect of count 14 which was a count of indecent assault, the evidence of which was not from the complainant but was from another person, another woman, who observed something happening to the complainant. 

KIRBY J:   This was a school friend who came along early?

MR GRACE:   This was a school friend.  The Court of Criminal Appeal held that a Longman-type warning was appropriate to be given to the uncorroborated evidence of that particular person.  So, the Court of Criminal Appeal has itself extended the operation of the Longman-type warning to non-complainants and it said that it fell into error in misdirecting itself in respect of count 8 because of the fact that there were three witnesses to that count in failing to see the need for a Longman‑type warning attaching to the evidence of those three persons.

In Radford’s Case 66 A Crim R 210, which is a case referred to in the outline of submissions, a decision of the Victorian Court of Criminal Appeal, a similar situation arose in relation to an accomplice warning. At page 238 of the report in the joint judgment of his Honour the Chief Justice and Justice Eames, at the fifth line, their Honours said this:

The first complaint of the appellant is that although the jury could properly find that the evidence of an accomplice was corroborated the fact that the jury does find that there is such corroboration does not therefore mean that the warning attracted by the evidence of an accomplice ceases to have effect.  We agree that that is so.  To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case.  The direction given by his Honour that “no particular problem” arose once the jury found there was corroboration and that the evidence of the witness should thereafter be treated in exactly the same way as that of any other witness was in terms almost identical to the terms of the charge which the Full Court considered deficient in the case of Radford. 

We submit that the principle enunciated by the Court of Criminal Appeal in Radford was not followed by the Court of Criminal Appeal in this case in applying that principle to the Longman-type warning which should attract to the evidence of the complainant, the mother and her brother in respect of this count.

If I could now turn to the first and second grounds of appeal and argue those together.  They relate to the complaint that the majority of the Court of Criminal Appeal was in error in failing to find that for the reasons enunciated by his Honour Mr Justice Ashley in dissent, in effect, that the verdicts on counts 1 to 7 inclusive and 9 to 13 inclusive were unsafe or unsatisfactory.  If I could refer your Honours to page 349 of the application book in the judgment of his Honour Mr Justice Ashley in dissent, which encapsulates the dichotomy between himself and the judges in the majority, at line 20 his Honour said this:

Mandie, J. has expressed the opinion that this trial was not conducted upon the basis of recovery of repressed memory; that it did not involve consideration by the jury of the validity of techniques intended to recover or enhance memory.  I have reached, at least in part, a different conclusion.  In my opinion, despite the complainant’s evidence that she had always believed she had been abused, and that “flashbacks (were) memories”, she gave considerable evidence concerning memory-recovery techniques practised, at least, by Ms Cutts.  She gave evidence of reading a book - which she reviewed in the Association newsletter - which proposed, in part, working from a tiny feeling, an intuition, trusting that inner voice and working from there.  She could not recall reading the particular passage; but her course of counselling by Ms Cutts seems to have been at least consistent with it.  In my view the complainant’s evidence was, at least in part, shown to have been based upon memory-recovery techniques employed by a person whose qualifications were unknown.  There was no full description of those techniques.  There was no expert evidence as to their reliability.  The issue of their reliability was an issue in the trial, but only by cross-examination of the complainant.  For reasons described earlier the applicant was in practical terms not able to call the applicant’s therapists to fully describe the techniques employed; and in the absence of such description it must have been at least difficult to adduce expert evidence as to their reliability.

It should be added, for sake of completeness, that there is controversy whether early childhood memories of sexual abuse can be recovered by therapists. 

So, the dichotomy between his Honour Mr Justice Ashley and the majority was, to a large part, based upon the views as to whether the memories or the evidence given by the complainant was related or depended upon the use of memory recovery techniques.  Added to that - - -

KIRBY J:   Would you just tell me what the English court and the New Zealand court said, just very briefly, in Norman and Reg v R?  Did they express caution or - - -

MR GRACE:   It was the Ontario Court of Appeal in Norman.

KIRBY J:   I am sorry, yes, it is Canada.  I apologise.

MR GRACE:   Yes, caution was certainly expressed and the recent United States experience has also expressed a great deal of caution about the reception into evidence.

GAUDRON J:   But we have here the problem that there is no real evidence - there is no basis for any assumption as to what techniques were used; whether they were reliable or not, for some reason, which I do not quite understand.  I certainly do not understand the reference to “in practical terms, the applicant was not able to call the applicant’s therapists to describe the techniques employed”.

MR GRACE:   The answer to that question, your Honour, appears at page 348, just a few pages before in the judgment.  It commences at line 15 and continues all the way down that page on to page 349.

KIRBY J:   This is a very important issue and we are going to see more of it but this does not seem to be the case to bring it up because it was not challenged when the complainant gave evidence.  The actual therapist was not called.  There is no expert evidence offered from your side.  I mean, this will present itself but this does not seem to be the right case.

MR GRACE:   Just to complete the answer that I was going to give your Honour Justice Gaudron, at line 5, the explanation as to why the evidence was not called was given and this might be the situation that repeats itself in the future, your Honour Justice Kirby.

GAUDRON J:   But it is within the control of defence counsel to a large extent.

MR GRACE:   Yes, it is.

GAUDRON J:   It is not entirely accurate to say, for practical reasons, it could not be explored.

KIRBY J:   Does that mean that the practical reasons would open up the whole - is this the practical reason that is being hinted at, that it would open up the whole issue of repressed memory and its nature?

MR GRACE:   Yes.

KIRBY J:   But unless it is opened up it is difficult for an appellate court.  Did that happen in the New Zealand and Ontario cases or was there a clash of evidence that presented the case in a right fashion to the appellate court?

MR GRACE:   At least in one of them there was a clash of evidence, as I understand it.  Certainly, in Australia, in the Bunbury case I understand there was a clash of evidence.  Perhaps, understandably, at page 349 - when I say “understandably”, his Honour Justice Ashley fully understood counsel for the applicant’s position at trial where he said:

Counsel for the applicant was then in the foresically hopeless position of either accepting the denials, or alternatively calling one or more witnesses who must surely have supported the techniques that had been employed; and must surely have categorised as reliable any recollections asserted by the complainant in the course of counselling.

GAUDRON J:   That is an assumption though.

MR GRACE:   Yes.

GAUDRON J:   That is totally assumed.

MR GRACE:   It is speculative in the absence of the evidence, that is certainly conceded.  But the answer to the question as to whether the verdicts were unsafe or unsatisfactory is not solely founded upon that dichotomy between his Honour Mr Justice Ashley and the majority of the court.  It is also founded upon his Honour finding adversely to the complainant that the manner of her giving her evidence was so imprecise, so evasive in part, that it could not be safely relied upon as to its credibility;  the form that the allegations took, that is, the lack of particularity, the lack of circumstantial detail; the evidence itself not conforming with particulars of the case.  His Honour at page 331 - - -

GAUDRON J:   Are you not in this situation, Mr Grace:  the evidence has been examined; it has been examined with great care, with different consequences by different members of the Bench.  Is it not par excellence the situation in which the evidence should be determined by a jury with proper directions?

MR GRACE:   Yes.  That has not occurred and I have argued that already in respect of count 8. 

GAUDRON J:   You have got to go further.  You have to go to the point where you can say no jury could do other than entertain a reasonable doubt.

MR GRACE:   Yes, and certainly I do go further and say that in the submissions and certainly they are repeated at paragraph 6.4 of the outline.

GAUDRON J:   And you have to do it in circumstances where you do not have the background factor or a background factor akin to that considered in Morris.

MR GRACE:   No, there is not that factor here.  But the factors that are, in effect, outlined by his Honour Mr Justice Ashley, we submit, are compelling factors which indicate that the Court of Criminal Appeal, the majority of it, was in error in its assessment of the evidence as being sufficient to support findings of guilt beyond reasonable doubt.

The trial judge, who is in as good a position as the jury to take in the atmosphere of the trial, to take in the nuances of the witnesses and their evidence, he formed the view that the verdicts were unsafe or unsatisfactory and that was a matter that - - -

McHUGH J:   So, what follows from that?  It is nothing to do with him.  The community gives it to juries to determine these questions.

MR GRACE:   Yes, I appreciate that, but the Court of Criminal Appeal itself, the majority said that those views are entitled to weight.

McHUGH J:   Obviously they are, but I do not know that they lead very far.  I have expressed my views in M on this question about interfering with juries’ verdicts, particularly in these cases.

MR GRACE:   Yes.  But, in my submission, where you have a strong report from a trial judge in circumstances where a jury had not been cautioned properly, coupled with a very strong dissenting judgment from an experienced member of the Supreme Court of Victoria who expresses in that judgment a great deal of reservations and explains why he has these reservations about the verdicts of guilty and forms the view also that the verdicts were unsafe or unsatisfactory, that, in my submission, is indicative

of a case which this Court could review to ascertain whether there has been a substantial miscarriage of justice which is asserted.

I cannot put the matter any higher than that.  In the outline of submissions at paragraph 6.4.1 to 6.4.8 the summary of the issues raised by his Honour Mr Justice Ashley in dissent are articulated and we, with respect, adopt those reasons in support of this application.

GAUDRON J:   Thank you, Mr Grace.  We need not trouble you, Mr McArdle.

Having regard to the manner in which this trial was conducted, the applicant’s conviction on count 8 in the presentment does not involve any miscarriage of justice.  So far as the other counts are concerned, there is no error of principle in the decision of the majority of the Court of Criminal Appeal that the verdicts on those counts are not unsafe or unsatisfactory.  Nor is this case a suitable vehicle for the consideration of recovered or assisted memories of sexual abuse.  Special leave is refused.

AT 12.30 PM THE MATTER WAS CONCLUDED