Ugle v The Queen

[1989] HCATrans 248

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P20 of 1989

Between-

LINTON DALE UGLE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN ACJ
DAWSON J
TOOHEY J
GAUDRON J

Ugle

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 1989, AT 11.32 AM

Copyright in the High Court of Australia

PlTS/1/PLC 1 24/10/89

MR T.N. CULLITY: If Your Honours please, I appear for the

applicant in this matter. (instructed by

Flanigan & Flanigan)

MR M.J. MURRAY, ~C:  If it please the Court, I appear for the

respon ent with my learned friend, MR I. PETTIT.

(instructed by the Crown Solicitor for Western

Australia)

BRENNAN ACJ:  Mr Cullity.

MR CULLITY:  Thank you, Your Honour. I have an outline of

the applicant's submissions in this matter which

I would hand to the Court.	I have five copies of
those.

BRENNAN ACJ:	Yes, Mr Cullity?
MR CULLITY:	Your Honours, this matter arises out of two

alleged offences on 14 March 1988 of sexual penetration with circumstances of aggravation. These offences were alleged to have been committed on that date by the

applicant who was then aged 18\ years old. The

complainant at the time was 15 years and 9 months

old and the only issue at the trial which took place in the supreme court in February 1989 was whether or not the alleged acts of intercourse were consensual.

The complainant did not appear at the trial,

she being at school in France and apparently unwilling

to return. The only evidence of lack of consent as to the two admitted acts of sexual penetration were the out-of-court statements allegedly made by the

applicant to police. These out-of-court statements

were disputed by the applicant at trial. He gave

evidence to the effect that although he said the
things that were alleged by the police officers to
the court in their evidence he was with them from

4 pm in the afternoon until 10.30 in the evening;

that he was frightened; that he was overborne and
that the police officers continually put allegations

which he understood to have been made by the

complainant to him and in the end he agreed with

this account as put forward by the police. Now, that

was the only evidence of lack of consent that was led

in the trial.

The Crown case as suggested in the record of interview, which appears between pages 163 and 169

of volume II of the application book, was that the

applicant had met the complainant who was living by herself in Wilson - which is a suburb of Perth - in

the mid-afternoon of 14 March 1988 and struck up a conversation in the street near the house at which

she was living; the evidence being that she was living

there by herself, her father being away for two weeks

on business in the eastern States.

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The Crown case was that the applicant asked

if he could come into the complainant's house to use

the toilet. After a short amount of conversation,
the complainant, according to the record of interview,
was dragged to the bedroom by her hair, sexually

penetrated without her consent in the bedroom and

again in the bathroom and all the while the applicant

using a plastic shopping bag with an elastic band
as a makeshift condom to protect himself from AIDS

which the complainant said she had to try and put him

off doing what he did. And that was essentially the

Crown case as emerged from the mouths of the police

officers who interviewed the applicant.

On the other hand, the applicant's evidence was

to the effect that the complainant had invited him

into the house and after a short conversation had

asked him if he had any condoms. He had gone to a

nearby shop looking for condoms with some money that

had been supplied by the complainant. When he was

unable to procure condoms he came back and the

complainant procured this shopping bag, provided an

elastic band off a recepticle off the table,

consensual intercourse took place and that thereafter

he left taking with him a telephone number supplied

by the complainant and his evidence was that

subsequently he called to see her by telephone and

on 24 March, in person -the offence alleged to have

happened on 14 March, on 24 March when he arrived,

the father was there but not the daughter; he was

chased away by the father. He subsequently rang again

the complainant's premises on or about 29 March and

was invited to come around to the premises by the

complainant but by this time the police, it seems,

were lying in wait and on 29 March the applicant was

arrested at the premises.

So, that was the evidence in a nutshell, if you

like, given by the applicant. And, as I say, the

central issue was whether or not there was consensual

intercourse.

At the trial, aside from the evidence of the

police officers, evidence was led from a Sarah Jane Morgan

who was a 24-year-old woman and a friend of the

complainant. She gave evidence, and this appears at

page 83 of the application book - if we could turn to
that - her evidence conn:nences at page 82 of the

application book. Perhaps I will pick it up from

between 40 and 50 at page 82. It was in-chief:

In any event, what time did you get to her

house on that night?---About 12 o'clock,

midnight.

Was she alone in the house at that time?---Yes.

Did she let you in?---Pardon?

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Did she let you inside the house?---Yes.

On entering the house, what, if anything, did you notice about her condition or appearance?---She looked distressed and frightened. Confused.

Did you sit down and talk to her?---Yes.

This is over on page 83.

Did you have a cup of coffee with her?---Yes.

After you'd been talking to her for some

length of time, did she tell you something

which surprised you?---Yes.

What did she say?---She said, "I've been raped."

Now, the basis for the admission of that evidence was discussed by the learned trial judge and counsel before the trial commenced or before the empanelment of the

jury. It really starts at page 15 of the application

book where His Honour has already ruled that the
statement of the complainant would not be - he would
not allow that to be read to the jury pursuant to

section 107 of the JUSTICES ACT for fear of prejudice,

and they go on to discuss the question of the evidence

of Sarah Jane Morgan between 50 and 60 on page 15.

Certainly, it was objected to by counsel for the applicant at about 70 on page 15. His Honour

asked why and then he was told why at 80:

On the basis that the primary witness in

this trial, that is the complainant, is

not here to give evidence -

et cetera. And then over on to page 16 at 10

there is the first inkling of a theme that is going

to develop right throughout the trial.

HIS HONOUR:  Right. The fact that there has

been a complaint comes not only through

Sarah Jane Morgan but also through the

detective, Ballantyne, doesn't it?

And that comment of His Honour at 10 on page 16 is
picked up by the Crown prosecutor between 80 and 90

on page 16 when he is telling His Honour what evidence

will be led. And he says:

MR MULLER:  Evidence will emerge that the

girl made a statement to the police

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but the contents of that statement of

course won't be revealed to the jury.

I take Your Honour's point - that the evidence would be admissible to show that

the girl's conduct was consistent with that

of a girl who had been sexually assaulted

and had made a statement subsequently to

the police.

So, although it was objected to by counsel for the

applicant, the evidence - His Honour did rule that -

perhaps I can paraphrase it - the evidence of the

complainant, that is, the statement would not be

admitted but to balance things, the evidence of the

complaint by Sarah Jane Morgan would be admitted.

In the Court of Criminal Appeal, the

hearing was in May of this year, it was argued that the evidence of Morgan as to the complaint, that is

to say "I've been raped" was inadmissible and the

primary authority relied upon for that proposition

was the case of SPARKS which is referred to in the

list of authorities at No 4.

BRENNAN ACJ:	Before you go to that, could I just ask you what was the evidence that was given as to the complainant's
statement to the police?
MR CULLITY:	Yes, you have to start, Your Honour, at page 34

of the application book and I think if you look

between 50 and 70 at page 34. This is the evidence

of Harrison, that he had got hold of this plastic

bag, and then between 50 and 60:

Having found that particular item, I

understand that you took the complainant,

Corine Syllebranque, to police headquarters

in Perth?---That's correct, yes.

Did the complainant make a statement to

you on that day, or not?---Yes, she did.

had been sexually assaulted?---Yes, she did. Did she make a complaint to you that she

GAUDRON J: That was not objected to at all?

MR CULLITY:  No, it was not but, of course, it is my submission

an.dwas in the Court of Criminal Appeal, that that

was hearsay - should not have been admitted.

The next thing to look at about that is to turn to about page 40 - yes, indeed, page 40 of the

application book and around about 20 Harrison is

giving the evidence of interview of the applicant as

saying:

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"Linton, I have been told that you played

with her hair. Can you tell me about that?"

He said, "All I did was, like, I told her

that she had nice hair and asked if I could

plait it."

I said, "I have been told that you grabbed

her by the hair and pushed her on to the floor.

Is that true?" He said, "No. She sat down

and I just started stroking it."

He goes on at 60:

"I have been told that she told you to go

and that she didn't like you touching her

hair. What do you have to say about that?"

The accused shrugged his shoulders and didn't

answer.

I said, "Did she tell you that she was a

lesbian and that she didn't like men." He

said, "Yeah, she told me in the lounge room." And down at the bottom at 100:

"She has told me that you	dragged her into
the bedroom by the hair.	Is that true?"

He said, "No. I had hold of her hair but

I thought she wanted it."

So, there is evidence, essentially, not only of the

fact that she has made a complaint and signed it but

also it is quite clear from the point of view of the

jury that what is happening is here is that the

complainant's allegations are being put to the accused

through the mouth of the police officers and so the

jury is able to infer what was in the statement by

the nature of the questions that had been asked.

And, of course, if Your Honours wanted me to just

finish off this thread of the application, you could

then turn to see what His Honour the trial judge said

about this matter and that starts off at page 171

of the application book in volume II. His Honour

says:

The criminal law exists to protect not

only the victim of a crime but the

cormnunity, and once a complaint is

made, the police are required to inquire

into it in their role as custodians of

the law and your safety. That is their

task. If the evidence revealed by virtue

of their inquiry discloses the existence of

a charge, then they have the responsibility

to prosecute.

Over the page at 172:

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In this case, the evidence before you

comes from the accused. It is not for

the police to decide who is telling the

truth. They receive a complaint from

one of you, they look at it, and unless

it is abundantly clear that it is

false, they are required to proceed upon

it. They then go to the person accused

in the complaint and get his side of the

story and if, in that process, there

is revealed the possible cormnission of a crime, the police must prosecute. Then, if the accused person says, "I'm-not

guilty," or alternatively insists upon

his right to have the charge proven in a court of law, we have the trial that you

.	'	are experiencing today. That's the
way the system works.

And	then you move to page 177, again in the charge,
and	this, of course, is the subject of a separate ground
but	it is relevant to the impression the jury had,
and	this is between 20 and 40:

So what you really have is the contest

as to who is telling the truth - the three

detectives who acted upon the complainant's

complaint or the accused? Now, it is true

that the police don't have a mortgage on

the truth but they do represent the law and

it would indeed be a serious crime for each

of them to have knowingly and falsely

charged the accused with these serious crimes

if what is contained in the record of interview

was not given to them, as they say, fairly

and without pressure.

And then down at 70:

The prosecution of course says that the accuser has been heard. What she had to say

has been put to the accused fairly by

Detective Harrison and the accused has

confessed to the crimes to the extent

revealed in his answers to the questions

posed orally and typed in the record of

interview.

So that really completes that thread; not only the

evidence that was there but also what His Honour did

say about it. And, of course, we would argue in the light,

for example, of cormnents by Justice Deane in WHITEHORJ.~,

in particular at pages 667 to 668.

Now that, of course, was a case where evidence of a

complaint by a young girl emerged, as it were, in

cross-examination and not in-chief and His Honour

Justice Deane refers to the evidence of Detective Jenkins

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at the bottom of page 667 and over on to 668 and,

in particular, the last question of that extract

from the record of interview:

I said, '[the child] has alleged in her statement that Cheryl was in the toilet -

et cetera, and His Honour, of course, said:

It is difficult to conceive of any

justification for Detective Jenkins' action

in asking a question in the highly prejudicial

form of that which is last set out in the

above extract. The leading of evidence of

that question at the trial did more than

merely stress to the jury that the child

had complained that she had been indecently

assaulted by the applicant.

And, of course, the whole thrust of the prosecution

case and, in my submission, assisted in that by

comments from His Honour to the jury was, "Really,

you do not need the complainant. You've heard what

she had to say from the police who are, as it were,

her mouthpiece, if you like.'·' And we, of course, say

that that is quite wrong.

GAUDRON J:  But you did not object to the evidence, did you,

or did not ask that any aspect - any statements in the

record of interview be deleted?

MR CULLITY:	No, Your Honour, we did not.
GAUDRON J:	Was there complaint made of the summing up?

MR CULLITY:  No, Your Honour, not in that aspect; indeed, not

in any aspect. The only objection that was made, of

course, was in relation to the evidence of Sarah Jane Morge

which was, indeed, admitted. And, of course, what we

would say about that evidence is to say where, simply,

the evidence of lack of consent is based upon no more

than disputed allegations from out-of-court statements

by police officers, to allow evidence of a complaint

from a complainant to a third party to the effect,

"I have been raped" is, of course, highly prejudicial

in those circumstances and should never have been

allowed.

TOOHEY J:  Mr Cullity, I am not clear as to whatyd:tl:E special

leave point is. Is it that in the absence of oral

testimony from the complainant, Sarah Jane Morgan

should not have been allowed to give evidence of the

statement made to her by the complainant, "I've been

raped"? Does it go beyond that or is it something

other than that?

MR CULLITY: Well, I think it does go beyond that because, of

course, technically the Court of Criminal Appeal found

by a majority that the evidence of Sarah Jane Morgan

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was not admissible. Brinsden J, who was one of the

majority for dismissing the appeal, found that the

evidence was inadmissible but said that in his view

that there was no reason in logic or policy for -

and perhaps one should turn to page 214 of the application
book just to pick up exactly what was said about that

half-way down page 214 where His Honour says: Consistency of conduct is therefore

not to include evidence, if it be

available, that the complainant

made a proximate complaint to a third

party and also made a complaint to
police officers where the complainant

herself does not give evidence. I must say, for myself, I cannot see any reason in logic or policy which

should deny the admission of such

evidence, and in this case deny the

admission of the evidence of Morgan

which I am compelled to say was
wrongly admitted.

I have had the advantage of reading the reasons of Pidgeon J. to be delivered

in this matter. I agree with much that

he has said but I depart from him only

at KILBY V R which I believe, unless

and until overruled, renders inadmissible

evidence of the fact of complaint as

well as evidence of the details of a

complaint when the complainant has not

given evidence.

TOOHEY J: Just pausing there, if that be the case then it is

difficult to see how there is a special leave point

in the admission of the statement made by Sarah Jane

Morgan when the Court of Criminal Appeal, as I

understand it, proceeded on the basis that that

statement had been wrongly admitted but nevertheless

concluded that there was no miscarriage of justice.

MR CULLITY:  Yes. What I would say about that, Your Honour,

is that the view that His Honour took that

there was no reason in logic or policy for the law

as suggested in SPARKS and KILBY led him to take a

view of the proviso which perhaps otherwise he would

not have taken and that, really, in combination

the judgments of Pidgeon J and Brinsden J erode

the principle set out in SPARKS and commented upon

favourably by the former Chief Justice Sir Garfield Barwick

in KILBY's case and also commented upon favourably by

Justices Murphy and Deane in WHITEHORN but that the decision is unsatisfactory and although, as I say,

technically, you will find the majority with the

proposition that the evidence was inadmissible, that
this Court exercising its supervisory role in these

matters could, given the view of the law that has

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been taken particularly by Brinsden J which impacts

upon the proviso, step in and look at the question

of the admissibility of the complaint and the reasons
in logic and policy for what the applicant would say
or what I would submit on the applicant's behalf

is the exclusion of hearsay complaints except within

very narrow grounds which are well and truly set out.

What I would say, too, is that neither KILBY

nor WHITEHORN, the two cases in which, in recent

times, that this Court has looked at the question -

neither of them really are in point of law authority

for the proposition that evidence of recent complaint
in the absence of the complainant is not admissible.

KILBY was a case where the complainant did give evidence

and the question was whether lack of a recent

complaint was evidence of consent.	The Court held
there that it was not.

TOOHEY J:  But it would not help you to make good that proposition,

would it, that KILBY is not authority for the principle

which Justice Brinsden said it was authority for?

I do not really understand at the moment quite the way

in which the application is being put to us. You seemed

to come fairly close to saying a few minutes ago that

was applied because, although there was authority rendering the statement made to

the real complaint lies in the application by the proviso

Sarah Jane Morgan inadmissible nevertheless in logic

or in policy there were good reasons why such a statement should be admissible and that in some way this influenced the Court of Criminal Appeal in its application of the

proviso.

MR CULLITY: Yes. Well, I think that certainly, in my submission, th,

it did. The fact was that although technically there is
a majority for the proposition that the evidence was
inadmissible, Brinsden, of course, saying that it was
admissible, the appeal is against the result and the

result is that the applicant has not got a retrial

and we would see the view - we would say, with all due

respect, a rather idiosyncratic view of

Mr Justice Brinsden, in the light of the authorities,

that there is no reason in logic or policy for excluding

this as a cardinal factor in the result and also a

factor that is wrong or a view of the law that is

wrong. It is for that reason that we suggest that

even though there is a technical majority for the

proposition that the evidence was inadmissible, that
nevertheless the Court can look at the reasons

for logic and policy and, we would say, reaffirm the

principle because we would see the decisions of

Mr Justice Brinsden and Mr Justice Pidgeon as eroding

the law and inviting, effectively, circumvention of it.

That would be, basically, the view I take.

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It is, I suppose, really, the tact that we are

complaining about the result and the means and the wrong view of the effect of the evidence of recent

complaint by those in the nominal majority, that is,
in the majority dismissing the appeal that we would

complain about.

The other point that I should mention in relation

to this aspect of the matter, that is to say, the

evidence of recent complaint is the charge, again,

from the charge of the jury and I probably neglected

to point out this passage when I was referring earlier

in response to His Honour Justice Brennan's request

for the evidence. I went on to talk of the corrn:nent

as well, but at page 178 of the charge at between 10

and 30:

From an evidentiary point of view,

there is one portion of the evidence that

I should mention. You have heard from

Sarah Jane Morgan of her conversation with

the complainant at midnight on the day the sexual assaults took place. That evidence

would, in normal circumstances, not be

admissible. It is a very good example of

what we call hearsay evidence. The accused

was not there; it was given by the

complainant to Sarah Jane Morgan. However,

the rule is that in cases of sexual assault,

connnon human experience has taught us that

a woman so offended will complain and she

will be heard to complain. It does not

mean that what the complainant said to

Sarah Jane Morgan confirms each of the

sexual assaults of which she complains. It

is not supporting evidence because the

complainant cannot support herself.

What it does mean is that there is a

consistency about the complainant's story

to Sarah Jane Morgan and to the police which

is more likely to be true than false.

So, what His Honour has done is highlighted that theme which started when the complainant was taken down to

the police station and made to sign a statement through
the evidence of the record of interview or the oral

statements of the accused and into the charge. And

ground (b), although it was not put as a separate

ground in the court below was argued as part and

parcel of ground (a) which was in ground (b) before

this Court, all that has happened is that that

particular aspect of the argument was given separate

treatment in a ground but, certainly, it was argued

in the context of ground (a). And, of course, what

we would say about it is that it is wrong and that it

simply exacerbates the problems that had developed

from an early stage in the trial.

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That, Your Honours, was all that I wanted to say about grounds (a) and (b). I have cited in the

list of the authorities a number of cases just to

look at them very briefly and without necessarily

reading from them to save time.	LILLYMAN, of course,
was the root case - - -

BRENNAN ACJ:  You will have to give us the references to these

so that they can be recorded in the transcript, Mr Cullit)

MR CULLITY: I am sorry, Your Honour. Yes, LILLYMAN, (1896)

2 QB 16 7 at page 170 was simply _the base statE!!!lEil.t,	if you
like, of the law in relation to this matter and
it appears in the second paragraph on page 170
where it is said:

It is necessary, in the first place, to

have a clear understanding as to the

principles upon which evidence of such a

complaint, not on oath, nor made in the

presence of the prisoner, nor forming part

of the res gestae, can be admitted. It
clearly is not admissible as evidence of

the facts complained of: those facts must

therefore be established, if at all, upon

oath by the prosecutrix or other credible

witness, and, strictly speaking, evidence

of them ought to be given before evidence

of the complaint is admitted. The complaint

can only be used as evidence of the consistency

of the conduct of the prosecutrix with the

story told by her in the witness-box, and as

being inconsistent with her consent to that

of which she complains.

And, of course, what His Honour the former Chief Justice

said in KILBY at pages 469 to 471 was that that

double-limb comment by Hawkins J is not to be taken

as setting up two independent limbs of admissibility.

And, of course, if it did then it would leave open

the question of complaint evidence being given without

1the evidence of the complainant as being inconsistent with a consent to that of which

he complains was regarded as a separate limb.

•	SPARKS, (1964) AC 964 is the leading authority
in England.	I have given the reference at page 979

to page 980 because it is there that Lord Morris of

Borth-Y-Gest sets out the principle which militates

against the admission of this sort of evidence and
that is, to paraphrase, simply that it is considered

to be wiser and better that hearsay should not be

admitted in criminal trials. And that, really. is

what. I would submit is the logic and policy behind

the decision which His Honour Mr Justice Brinsden

could not, with respect to him, see.

WALLWORK, (1958) 42 Cr App R 153, was a case

where a small child, a five-year-old girl, was put in

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the witness-box, could not give any evidence at all,

and was stood down and her grandmother came along and gave evidence of the complaint. The court there held that the complaint was not admissible and it went on

to consider whether any evidence could have been given

of the approach by the small child to her grandmother

and it was said in that case - and I will ju~t pick it

up, and this is at page 167 of the report - - -

BRENNAN ACJ:	Page 167 of which report?
MR CULLITY:	Of the report of WALLWORK.

TOOHEY J: It does not seem to go that far, Mr Cullity.

MR CULLITY:  Yes, unfortunately, my numbers seem to be cut off

my page.

McHUGH J: It is probably page 161.

MR CULLITY:  Yes, I am referring to Goddard, the Lord Chief Justice

at about half-way down - well, I cannot say the page -

I oresume it is - - -

BRENNAN ACJ:	Would you tell us what the paragraph starts with?
MR CULLITY:	Yes.

There would have been no objection to the

grandmother saying: "The little girl made

a complaint to me" and she could have been

asked: "In consequence of that complaint

what did you do?" - and the answer would have

been "I took her to the doctor and later to

the police."

I do apologise for this, Your Honours.

So, His Honour there, the Lord Chief Justice,

seems to be countenancing a sort of a back-handed way

of getting the complaint of the missing prosecutrix

before the jury in a way rather similar to this because,

of course, the jury can infer from the actions as to

what the nature of the complaint was.

There is, I should mention, something which is

not on the list of authorities, which I found just

this morning in the Law Quarterly Review of July 1958

at volume 74. It is a comment on WALLWORK's case by

Rupert Cross.

BRENNAN ACJ:  At what page?

MR CULLITY:  At page 352, Your Honour. In WALLWORK's case there

was a conclusion that there was no substantial miscarriage
of justice even though the complaint was held wrongly

admitted. I should just mention the reasons for that.

It was not a case where consent was involved. The child

was only five and it was a case of incest, effectively.

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But there was evidence of semen on the pyjaims of the

accu8ed; matching semen on the underpants of the

child, and the child had been sleeping in the same

bed as the accused, so, the proviso was exercised in

this case.	But I do not think that the evidence in
our case is like WALLWORK.	Rupert Cross does say
half-way down page 354:

It is appreciated that the practice of counsel in formulating their questions

to witnesses at assizes and quarter

sessions exercises an important influence

on this part of the law of evidence, but

it is difficult to believe that the

cases in which the prosecutrix has not

given evidence on a charge of a sexual

offence since the judgment in RV LILLYMAN

was delivered have been sufficiently

numerous to warrant the conclusion that

the device condemned by Hawkins J is
sanctioned by modern usage.

And the device, of course, was the asking of questions to overcome the hearsay rule and Rupert Cross says

that he hopes that the decision in RV WALLWORK, in so
far as it relates to that aspect of the matter, will

be relegated to the realm of doubtful dicta. But, of course, what is happening here is much the same in the sense that the complainant's statement is

getting through to the jury by inference and directly

as well. So, that really completed what I wanted to

say about ground 1 of the ~rounds of appeal, Your Honours.

. • -- -+he oth_e-r grouads, of course,. -crave put the th_eme -

and'appreciated, from my point of view, that the

ground (c)(i) does relate to a question of fact.
The only difference - the only question of principle

that might arise is the fact that the complainant

was simply not present and that if you make comments

which are, effectively, damaging or, in my submission, verJ

prejudicial - and we will come to them in a minute -

about the defence evidence and about the defence case

which reflect upon the likelihood of things occurring,

but that the jury have not been able to see the

complainant and assess her credibility, then certainly

that is a matter that takes it out of the normal run
of comments which one has heard spoken of in the
cases such as DUKE and other cases that I have cited

on the list of authorities.

But just to deal with the particular comments

that were complained of, one starts at page 172

of the application book - - -

BRENNAN ACJ: This is hardly a special leave point, is it,

Mr Cullity?

l?.1T6/4/PLC	14	24/10/89
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MR CULLITY: Well, it may be relevant to the question of

whether the conviction was unsafe and unsatisfactory.

BRENNAN ACJ: Well, that may be so but, again, that is scarcely

a special leave point.

MR CULLITY: Well, again, it could be, Your Honour, if it turned

out that the Court of Criminal Appeal had applied the

wrnng test or had not properly considered the position -

and it would be my submission that they have not - and

these points, although they are factual, are none the

less important when considering the overall question,

in my submission. I will not delay Your Honours too

much with them but if one looks at page 172 of the

application book you will see that there is a fairly

standard direction to the jury, between 29 and 40,

about the role of the jury and that nothing that the

learned trial judge might say about the facts, Your Honour,

they have to accept. In fact, he goes on to say:

The only area in which you have to take

notice of anything which any one of us

has to say is what is contained in the

instructions I give you about the law

involved. You, at all stages, are the

sole judges of matters of fact.

That is the only reference to "it is for you to determine questions of fact".

Moving then to page 174 of the application book

between 60 and 70:

If, for example, you accept the

prosecution evidence that the accused held
Corine's hair throughout, and you must

refer to the record of interview for that

evidence, then it is open to you to conclude

that force was used. The accused of course says that he did not force Corine to submit

to him. On the contrary, there is onlv one

way to construe his evidence and that is that this 15-years-and-9-months-old girl seduced him.

And then on page 176 at 70:

He says that he never requested the complainant to permit him to use the toilet in her house; that in fact she was the prime mover in their sexual activity;

that she led him into the bedroom, undressed

herself, asked him to take his clothes off,

twice in fact, lubricated herself and obtained
the plastic bag and then the lackey from a

receptacle beside her bed. Indeed, this young

girl was a veritable promiscuous femme fatale.

PlT6/5/PLC	15	24/10/89
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And then at page 177 at 40:

What you must ask yourself is the

likelihood of this 15-and-three-quarter-year-
old seductress having tempted the accused

into her boudoir and there seduced him,

making compalint to the police that she had

been raped.

Even if that strikes you as unlikely,

and even if you believe the police, always remember that the accused is the person on

trial -

et cetera. The point we make there is that while

they were very strong conllllents, very sarcastic

and disparaging conllllents - and of course the authorities

that we have cited, KERR, No 8 on the list, UMANSKI,

No 9 on the list, and BOURKE, No 10 on the list

all suggest that strong conllllent can be made - it is

emphasized that throughout the trial judge should keep
emphasizing that the questions of fact are for him.

These conllllents left no doubt as to His Honour's views in the matter and they were views which were

formulated in the absence of the complainant. It is
not enough simply to say that, "Well, that's a fair

view of what his storv was." Given that it is

disparaging, it should not have been as strong as that

in the absence of the complainant because the jury

could well have taken the view had the complainant

been there that it was just the very thing that this

particular individual might have been likely to do.

So that was all I wanted to say about that aspect of it.

I have already touched on the question of what

is said ahour thP po1icP which is the subject of

ground (c)(ii); again, a question of fact that possibly

again relevant to the question of whether or not the

verdict was unsafe or unsatisfactory. I have already

read the passage that has been complained of which

appears at page 177 between 20 and 30 of the application

book and I will not read it again. I have listed the authorities there, none of

which I intend to touch upon. They are all well known

to the Court, that is, in relation to ground (c)(ii).

Moving then to ground (d) which is a ground which some reliance is placed upon~ it is

submitted; as per the summary of argument which

Your Honours have before you, that the wrongly received evidence "I've been raped" at page 83 was highly

prejudicial and flawed the trial irredeemably when

the only issue was one of consent, the only evidence

of lack of consent was the evidence of alleged admissions

made by the applicant which were disputed.

PlT6/6/PLC	16	24/10/89
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Over the page on page 4 I have identified the

places in which the admissions, that is to say the

oral admissions and the record of interview can be
found and also the evidence of the applicant, which

I have paraphrased earlier as being one of admitting

that the words were said but denying - but saying, in effec
that he was overborne, and I will not take you directly

to those passages of the transcript.

What I do argue in relation to this ground is that His Honour Mr Justice Brinsden, in exercising

the proviso to section 689(1), applied the wrong test

and if one looks at his reasons in that regard
which appear at page 218 of volume II of the application
book:

As to ground 3 this court is required to carry out an independent assessment of the weight and credibility of the evidence

in order to decide whether there is credible

evidence upon which the jury could reasonably

convict, even though there might be

sufficient evidence not necessarily credible

to support the verdict -

and relies on WHITEHORN V REG, CHAMBERLAIN V REG

and MORRIS V REG.

Putting aside evidence of complaint to

Morgan, in my view there was abundant

credible evidence to support the

indictment on both counts. The story

as told by the appellant in the witness

box, seems to be distinctly unlikely.

I say that even bearing in mind that the

verdict to convict on both counts, was a
majority verdict of 10 to 2. These

observations lead me to say that there

is nothing in ground 3 and further that

even though I have found ground 1 made

out, I do not believe any substantial

miscarriage of justice has actually

occurred at the trial, referring, of

course, to the proviso to s. 689(1) of
the Code.

Now, it is submitted that given that he has

rejected the argument put forward at the hearing

that the verdict was unsafe and unsatisfactory and

given that he has found that the evidence of

Sarah Jane Morgan to the effect "I've been raped"

was inadmissible, that instead of putting aside

evidence of complaint to Morgan, as he said at the

bottom of page 208, he should have considered whether

or not a jury properly instructed would have come to
the same conclusion without doubt if that evidence

had not been led, that is to say, the test in

PlT6/7/PLC	17	24/10/89
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DRISCOLL and MARIC, ·and not putting aside evidence of

complaint, in my view, there was abundant credible

evidence, in effect, His Honour, has become, as it

were, a jury in that decision.

BRENNAN ACJ:  He seems to have applied the test of unsafe and

unsatisfactory to the proviso.

MR CULLITY:  Yes. That, of course, may raise a question as to

how the proviso or the test of unsafe and unsatisfactory

relates to the proviso. I know that there were

certainly certain comments by some members of this

Court in MORRIS which seemed to bear upon that

question to some degree. In MORRIS, which is cited

on the list of authorities, at - - -

BRENNAN ACJ:  But the problem here is a different one, is it not?

Here the problem is that there is, on this hypothesis,

a wrongful admission of evidence.

MR CULLITY:	Yes.
BRENNAN ACJ:	And the problem is not one therefore of unsafe

and unsatisfactory. There was a miscarriage in point

of law in the trial and therefore the onus is on the
prosecution to establish that there was no substantial

miscarriage of justice.

MR CULLITY:  Yes. Well, of course, the question of the proviso

was never argued at the hearing in the Court of

Criminal Appeal. No one mentioned the proviso.

Everybody worked on the assumption that if the ground that - if the words "I've been raped" were admitterl

wrongfully in the circumstances then it should follow

that the judgment would be one for a retrial rather

than anything else. That, really, is the position and,

of course, that exercise of the proviso in

circumstances where His Honour had said that there

was no logical policy in the rule denying the

admissibility of the evidence of recent complaint is

significant and, of course, is very significant to

the applicant. (Continued on page 19)

PlT6/8/PLC	18	24/10/89
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MR CULLI'TY (continuing):  I will not take Your Honours to

the test laid down in DRISCOLL and MARIC but it

is really restated in the ground of appeal itself

and, I think, is clear law and so we say that he

was wrong in the way that he exercised the proviso;

he applied the wrong test.

Finally, then, moving to ground (e) and, again,

I think this is probably tryin~ to stretch the frontiers of things a bi 4 too, basing the ground on the recent

decision of JONES V REG, which is referred to on

pages 4 and 5 of the summary of argument. What

the applicant says here is that the decision was r~ally

iust unsatisfactory in the sense that there was
always an issue of whether or not the proviso to

section 689(1) of the Code should be applied and

it was never determined by the Court of Criminal

Appeal as a whole. As I have already indicated,

neither counsel adverted to the proviso in argument

before the Court of Criminal Appeal nor was it

mentioned during the argument by any of

Their Honours. We allege that His Honour

Mr Justice Brinsden did exercise it using a wrong

test and His Honour Mr Justice Pidgeon never came

to consider it because he was in error in holding

that the challenged evidence admis~ible and, of

course, Justice Rowland came to the conclusion that

the verdict was unsafe and unsatisfactory because

of various factors adverted to between pages 244

and 249 and therefore the question of the proviso

never arose.

I will come back to what His Honour said about

that in a minute but just to finish off the point
that I was making about JONES, that JONES is authority
for the proposition that the appeal court is required

to adjudicate on all grounds of appeal before it

and, although not a ground, the exercise of the

proviso was always an issue and the question was

not considered because one member of the Court,

namely, Pidgeon J, was in error in holding the
disputed evidence admissible.	Had Pidgeon J not

been in error, he would then have had to consider

the question of the exercise of the proviso and
may well have decided not to exercise it, having

applied the test in DRISCOLL and MARIC and, of

course, because the court went off or because one -

effectively, the court went off in different

directions particularly as between the majority,

between Justice Brinsden on the one hand and

Justice Pidgeon on the other, that that issue,

although not a ground, was never properly determined
by the court and that, of course, at the end of

the day, is of great significance to this particular

applicant.

PlT7/l/SH	19	24/10/89
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But, just to deal, finally, with what His Honour Mr Justice Rowland had to say about the

matter, at page 245, in coming to the conclusion

that the decision was unsafe and unsatisfactory,

at the bottom of the page:

What are the objective facts disclosed

by the evidence? A girl aged 15 years and
9 months who may look older and more mature
than a photograph taken when she was either
two or four years younger, had been left at

home by herself for a fortnight by her father

who said that she was attending school. The

girl meets a complete stranger in mid-afternoon

and allows him into her house and evidently

sits inside talking to him for some time.

Intercourse occurs and the girl complained

that it was forced. The complaint is that

it occurred on Monday, 14th March, and that

seems to be accepted by the appellant.	A
plastic bag was used as a condom.	Miss Morgan,

who is aged 24 years and who described herself

as a close friend of the complainant, said

that she called at midnight on Saturday,

24th March, to see how the complainant was.

The complainant told her that she had been

raped that afternoon and she appeared distressed.

Miss M~rgan left the complainant by herself

about an hour and a half later. She conceded

in cross-examination that she had said that

she was there on a Monday night, but in fact

she had not said that. Perhaps she said that

in a previous statement. It was not before

the jury. The 24th March was, in fact, i

Thursday. The complainant's father arrived

home possibly on Thursday, 24th March, and

the complainant may have complained to him

when she arrived home perhaps on the Saturday

or Sunday.	The complainant contacted the
police on Monday, 28th. March.	On Thursday,

24th March, the appellant and others decided to

tall on the girl, but the complainant ran

away when her father answered the door. On

Tuesday, 29th March, the appellant telephoned the complainant and asked her whether he

could visit her. She agreed. I assume that

the complainant alerted the police. The

appellant arrived with a friend and was invited

inside. The complainant left the two alone

and shortly after that a constable with a

drawn revolver entered and the two young men

ran.

Then, on page 248:

P1T7/2/SH	20	24/10/89
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In my view, the following matters cause

concern -

1.       None of the evidence of Miss Morgan

concerning her conversation with the
complainant was admissible, either as
evidence of recent complaint or as part of
the res gestae.

2.      What may have been a misleading photograph

of the complainant had been allowed to go
before the jury who were then asked, in the

context of the complainant not being available

for cross-examination, or even to be seen

by the jury, to consider the likelihood of

a girl aged 15 years and 9 months behaving

in the manner suggested by the appellant.

3. The inability of the appellant to cross-examine the complainant on any of these

matters also impinged on the next matter,

namely,

4.       The direction by his Honour which was

inclined to suggest that the police might
be put into a special category of witness.

5.       The added emphasis placed on the evidence

of Miss Morgan insofar as it suggested that it supported the complainant's statement to the police.

6.       The unexplained behaviour of the appellant

who, despite it being alleged that he had

intercourse with the girl against her consent,

nonetheless telephoned her and asked to see

her and, in fact, called to see her on the

afternoon of 29th March.

It may be an unlikely story that has

been put forward by the appellant. It may

even be more unlikely that him going back to

s~P the girl quite openly if her allegations

are correct; but the cumulative effect of

the wrongful admission of the evidence of
Miss Morgan and the twofold effect claimed
for it by his Honour, combined with the emphasis
given to the validity of police evidence has,
in my view, when looked at in the other
circumstances I have outlined, led me to the

conclusion that the verdict is unsafe.

Now, that analysis of the evidence, I submit, has

to be contrasted with the analysis of His Honour

Mr Justice Brinsden and, of course, Mr Justice Pidgeon

simply agreed with that when he said that the story,

P1T7/3/SH	21	24/10/89
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as I have already indicated -that he really did not

go into in any great detail at all, any analysis

of the weight or credibility of the evidence in
reaching the conclusion that the verdict was not
unsafe and unsatisfactory and that there was nothing
in ground 3 and that the majority of the court did

not really do the analysis that is required for

when this ground is being considered and that,

accordingly, not only has Mr Justice Brinsden applied

the wrong test in relation to the proviso, he also

has not really, with respect, analysed the evidence

as required by the authorities and, in particular,

by CARR and MORRIS and WHITEHORN, to come to an

independent assessment. It certainly cannot be

seen to be done reading his reasons for decision.

So, in my submission, on ground (d), that

it is not just a question of fact but, rather, a

question of whether or not the right procedure has

been gone through by the court and my submission

is that is has not in this case. I think that is

all I wanted to say at this juncture, Your Honour.

BRENNAN ACJ:  Thank you, Mr Cullity. Mr Murray, how long

do you expect your submissions would take?

MR MURRAY:  Perhaps, three-quarters of an hour, if it please,

Your Honour.

BRENNAN ACJ:  Do you have some notes of argument, Mr Murray?

MR MURRAY: If it please the Court.

BRENNAN ACJ: If you could provide us with those, we will

then adjourn until two o'clock this afternoon.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:
BRENNAN ACJ:	Yes, Mr Murray.
MR MURRAY: May it please Your Honours.	If it pleases the

Court, the outline really starts with a proposition

which I think I would not spend any time on at all,

if I may be forgiven, and that is that the evidence

which was led from the witness Morgan was, in our

submission, inadmissible in fact, one would have

thought simply having regard to the decisions of

this Court, notably those that were cited to

P1T7/4/SH	24/10/89
Ugle	22

from that point of view, with respect, and it seems

Your Honours this morning by my learned friend,

to us that the Court of Criminal Appeal has started

from that point of view in that that was clearly

the view of Mr Justice Rowland and it was, we think,

also the view of Mr Justice Brinsden despite the

fact that he added some observations that it appeared

to him that there was little to merit the rule in
terms of logic or matters of that description but,

none the less -

TOOHEY J: Mr Murray, is the concession that the evidence

is inadmissible for end purpose?

MR MURRAY: No.

If if please Your Honour, it is just simply

in the circumstances of this case and for any purpose
in this case.

TOOHEY J: Well, yes.

MR MURRAY:  Yes. Have I got that properly? The point about

it was, I think, that it was material which was

led in terms of an act of rape, of a complaint of

a particular character and matters of that sort

and it was simply not material which, as we understand it, could, in the way in which this case was developed and the issues of this case, have any materiality

beyond that which the authorities would secure for

it in relation to the assessment of the credit of

a complainant who gave evidence and the buttress

which it might provide to the credit of such a

witness and so the matter comes before this Court

upon the basis, we think, of the affirmation of

that in the context of the case by the majority

of the Court of Criminal Appeal.

We have simply made an observation about the

reasoning of His Honour Mr Justice Pidgeon in respect

of that matter which perhaps does not need to detain

us. So, one started from there and then, as we

have seen, the matter as it developed from there
was one which required, in our respectful submission,

consideration of whether the introduction of that

evidence so flawed the trial process that by its

very fact of introduction it was a matter which

should have secured the setting aside of the

conviction and consideration as to whether the matter

should be retried and, as to that, we would have

said if it came to that point that there was very clear

evidence upon which the matter should certainly

have been retried but, in any event, the question

would then be whether it was alternatively right

to apply the proviso, having regard to the nature

of the evidence which remained and putting that

P1T7/5/SH	23	24/10/89
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evidence to one side, giving consideration to whether

the jury would have come to the same result absent

that evidence in the way that the matter was dealt

with at trial and so we have sought to develop that

and the proposition which we advance is that it

would have been right in those circumstances to

apply the proviso and, of course, it is so; that

the only member of the Full Court who came to

consider that was His Honour Mr Justice Brinsden

but, by reason of the view he took, although it

seems clear in our submission that had it been

necessary Mr Justice Pidgeon would have taken the

same view in relation to the result which would

have been secured upon the evidence, absent this

material of complaint from the witness, Miss Morgan.

If it is convenient, I would simply deal at this point, if I may, with the proposition that

His Honour Mr Justice Pidgeon may have confused

his consideration of the case at this point, by

taking Your Honours again to that short passage

of the judgment of His Honour which appears at

pages 218 and 219. The submission we make about

that is that His Honour commences in that material

dealing with the question of the general ground,

ground 3, · ~hich provided the short assertion

that in all the circumstances, the conviction was

unsafe and unsatisfactory without further

particularizing that and if Your Honours needed

to be reminded about the way in which that was
expressed, the ground itself appears at page 203
of the papers, simply in the form that:

The verdict of the Jury was in all the circumstances unsafe and unsatisfactory

and accordingly the conviction based on

that verdict should not be allowed to

stand.

Expressed in that way, the ground was, we suppose,

capable of simply giving rise to that general

assessment of the safety and evaluation of the

evidence, properly admissible for the purpose of

arriving at a conclusion as to whether the verdict

was safe and satisfactory or upon the contrary view.

Indeed, that is the sort of consideration

which this Court has spoken of consistently in the

authorities, not only those authorities to which

His Honour Mr Justice Brinsden refers, at page 218,

but in other cases. His Honour starts off:

As to ground 3 this court is required -

and then sets out what is a proper shorthand statement

of the process which is to be undertaken in our

respectful submission. Then, significantly:

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Putting aside evidence of complaint to

Morgan, in my view there was abundant

credible evidence to support the indictment

on both counts. The story as told by the

appellant in the witness box, seems to be

distinctly unlikely. I say that even bearing

in mind that the verdict to convict on both

counts, was a majority verdict of 10 to 2.

These observations lead me to say that there

is nothing in ground 3 -

and we make the submission that His Honour is there,

clearly, not seeking to, at that point, completely

review all the factual material to which he has

previously adverted in his judgment and the more

detailed collection of that material and the reference

to the facts is to be found in the papers, in the

earlier part of His Honour's reasons, commencing

at page 207 and carrying through to the middle of

page 210, line 30, when His Honour commenced a

consideration of ground 1. So, it is simply a

very short description of the fact, in our submission,

that His Honour has undertaken the process and he

makes reference to a major aspect of the matter

which seemed to him to bear upon it.	His Honour
then went on to say:

and further that even though I have found

ground 1 made out, I do not believe any

substantial miscarriage of justice has

actually occurred at the trial, referring,

of course, to the proviso to s. 689(1) of

the Code.

Now, His Honour does not there observe what tests he is applying with respect to section 689(1) but,

in our respectful submission, there is nothing to

indicate that His Honour has misdirected himself

in relation to any test - in relation to his consideration

of that issue and, as we have learned, of course, from

my learned friend's opening of this application,

His Honour was the only one of the three judges

who would have been disposed to that conclusion.

BRENNAN ACJ:  The difficulty about that approach, Mr Murray,

is that the sentence which commences, "These

observations" - this is on page 219 - because

the observations were those which were directed
to ground 3 and His Honour goes on to say:

And further that even though I have found ground 1 made out -

et cetera -

I do not -

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and that may mean that the reasons why His Honour

applied the proviso were the observations that

appeared earlier in that paragraph.

MR MURRAY:  Yes. Our interpretation, of course, has been,

has it not, that His Honour has there, at the

very tail-end of his judgment, so to speak, simply
adverted to the application of the proviso to
section 689 without saying any more about it than

that, having disposed of all the grounds and

finishing with ground 3.

In other words, what we are saying, I suppose,

is it would have been better for clarity if

His Honour had deleted the "and" and given the

"further" a capital F, or put it into a new

paragraph. That is really all we are - - -

BRENNAN ACJ:  Yes, well, that may be the preferable reading.

It does raise this problem, does it not, and that

is that had the Crown in the Court of Criminal

Appeal adopted the approach which you have adopted

in your submisions here, then attention would have

been focuserl on the operation of the proviso?

MR MURRAY:  No doubt that would have been so, Your Honour,

yes.

BRENNAN ACJ: And, is it not necessary for us, then, to do

what it would seem was not done in the Court of

Criminal Appeal and that is to consider whether

this evidence, being wrongly admitted, it was a

case for the proviso?

MR MURRAY:  Yes, it think that is - with respect, Your Honour,

we would adopt that view, if it please you and so

it is necessary, then, to look at the way in which

the matter was handled at trial; see what impact

the admission of this evidence had and consider

very briefly as we think might be done, the

material which was available to support the conclusion

that this was a proper case for the application

of the proviso~ the basis that, absent the

material, wrongly admitted, the jury's verdict

would have been the same and the reference that
we have made to that conveniently stated is to

the decision of this Court in WILDE's case, which

I think sets it out with clarity, with respect,

and so I would want to deal with that. And what

else we should say to this Court, in our respectful

submission, is that the other matters of which

complaint is made by themselves or separately

in relation to the comments that were made upon

those factual matters by His Honour the trial judge

would not lead this Court to conclude that, in

respect of either of them, there has been a

miscarriage of justice or that they raise any

P1T7/8/SH	26	24/ 10/ 8 9
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difficulty which would lead to the grant of special

leave.

Perhaps, then, before I come back to the

evaluation of the strength and the nature of the

case without the evidence in relation to the recent complaint material, I should just deal very briefly with those other matters and, perhaps, firstly

address quickly if I may the complaint that is

made with respect to the comments His Honour made

in the form, really, of an invitation to the jury
to consider or a suggestion that they would
undoubtedly consider the likelihood of the story
which had been advanced to them in the evaluation

of the evidence, particularly the evidence of the

..	applicant. That material we have looked at this
morning and my learned friend has taken the Court
through that and, just simply to indicate to
Your Honours the view that we have taken about that, it is material which appears at pages 174 and 176,
and tuen 177 of the papers and, in our respectful
submission, His Honour, for example, at page 174, between linffi 60 and 80, is doing no more than
simply making a statement which is a shorthand description for the evaluation of the jury and, if it is a matter of assistance for them, of the
construction which would have to be placed upon his
evidence and, indeed, in our respectful submission,
that was not an unfair or misleading sort of comment
to make with respect to the material and it was no more than a shorthand description of the evidence
which had been given and His Honour, as we have
seen, elaborated that by some more detailed reference
to the evidence at page 176, between lines 60 and
80, again.

So, all that was being done there, in our

submission, was to simply say to the jury that this

was a way in which the evidence of the applicant

would be described and it was for the jury to consider

that evidence and make their findings of fact and

they were told at the outset of His Honour's reasons,
as we have noted at page 172, line 40, that they
were not bound to accept anything that either counsel
or His Honour had to say about the facts and that
they were "the sole judges of matters of fact".

When His Honour came to it again, at the conclusion of his observations about matters of

evidence, at page 178, line 80, that was the

note upon which His Honour finished.	In that
paragraph, at about that line:

All that I can tell you to assist you in making

up your minds.	You are the sole judges of
the facts.	You reach your verdict on the

evidence adduced in this court.

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And so, that material, viewed in that way, in our

submission, would not lead the court to conclude

that there was any misdirection involved in those

comments and that was the view that was taken by

the Court of Criminal Appeal; indeed, I think

all of Their Honours on the Court of Criminal

Appeal. None of them, in fact, placed any great

emphasis upon that material and specifically, for

example, it is not material which His Honour

Mr Justice Rowland, in dissent, mentioned specifically

in his category of matters which had caused him

concern, at page 248 of the papers.

GAUDR0N J: Mr Murray, could I interrupt you there?

MR MURRAY:	Yes.
GAUDR0N J:	You said there was nothing about the summing up

that could be the subject of complaint but, at

page 178, line 40, in the particular context of

the absence of the complainant's evidence, does
not some question arise as to this, where the trial

judge said:

What it does mean is that there is a

consistency about the complainant's story

to Sarah Jane Morgan and to the police -

and then what seems to me to be something of a worry

are the next words:

which is to be more likely to be true than

false.

MR MURRAY:  Yes, and yet His Honour had been, at that time,

telling the jury that they were to make no use of

that material to establish the truth of what ~ad occurred

and he spent some time doing that in those two

paragraphs, particularly in the previous paragraph

and so the observation that we would make is, in

fact, that it seems to us, read as a whole, that

material would lead the jury to the view that they

were only to make use of that inadmissible evidence

for the particularly limited purpose of noting that

there was a consistency about the story to Morgan

and to the police and what they would make of that

other observation to which Your Honour has particularly

drawn attention needs, in our respectful submission,

to be seen in the context of the whole of that

material but the tenor of it overall, in our

submission, is saved by the observation which had

previously been made, for example, in that sentence

at line 28:

It does not mean that what the complainant

said to S:irah Jane Morgan confirms each of the sexual assaults of which she complains.

P1T7/10/SH	28	24/10/89
Ugle

So, in that sense, in our respectful submission,

it is helpful to see that that material was dealt

with in that way because it meant, in our submission,

that the jury would then approach the question

as His Honour otherwise told them they must, of

the question of conviction or acquittal upon the

basis of the evaluation of the confessional material

and that brings me to - - -

(Continued on page 30)

P1T7 /11 /SH	29	24/10/89
Ugle

BRENNAN A.CJ:  Before you go to the next part of it, is it

right to say that although no objection was

taken the evidence at page 34 that she made a

complaint to the police that she had been

sexually assaulted was not in itself admissible

evidence? Page 34, line 68.

MR MURRAY:	Yes, Your Honour, that would follow, in our submission.
BRENNAN ACJ:	Could I take you back to the passage to

which Justice Gaudron drew your attention at
page 178, because it would then be that there

would not have been before the jury any of the

complainant's story to Sarah Jane Morgan and to

the oolice.

MR MURRAY:	There would in fact have been a considerable ~ortion of what she said in the questions
that were asked and the answers that were given.

BRENNAN ACJ: That would not have

MR MURRAY: I need to deal with that more directly,	do I not?
BRENNAN A.CJ:	But would that have been evidence of her

story, or would it have been evidence simply

of what the police said was her story?

MR MURRAY: 

Yes, quite.

BRENNAN A.CJ: 

So that if there was none of her story before

the jury it would have been impossible to make
the observation that the comolainant's storv

was more likely to be true than false, because
there would have been no story there to

consider?

MR MURRAY:  Yes, that would follow, Your Honour. I do

not quarrel with that observation but what

saves that situation, in our resoectful submission,

is the context in which His Honour outs all that.

BRENNAN ACJ:	Yes.
MR MURRAY:	And that is,with resDect,to the sDecific

warning that he gives them as to the limited

use that that evidence might be put to, ziven,

of course, that the evidence should not have

been there and that it would have been

necessary to say nothing about it at all had

the evidence not been led.

TOOHEY J:  Mr Murray, there is a question of fact too

that arises in this situation. The statement

made to Sarah Jane Morgan ·was in terms that

the complainant had been raped and that the

PIT8/l/JM	30	24/10/89
Ugle

incident had occurred that afternoon, that is

as recounted, of course, by Sarah Jane Mor~an.

MR MURRAY:	Yes, indeed, Your Honour.
TOOHEY J:	But is it the fact that there was a lapse of

some 10 to 14 days between the incident and

the conversation between the complainant

and the other woman.

MR MURRAY:  No, Your Honour, as I have understood it,

it was accepted on all sides that her confusion

was in relation to the dates and not to the

fact that a complaint was being made to her

about something which had happened that afternoon.

·TOOHEY J:	Whose confusion about what dates?
MR MURRAY:	The witness's confusion was about the dates

rather than the fact that a complaint was being

made to her about an incident which had

occurred earlier the same afternoon, Ms Mor~an's

confusion.	I am sorry, Your Honour, I haveput it
very badly.	In point of fact, as I am instructed,

it was not dealt with at trial upon that basis,

that she was speaking 10 days after the events

were supposed to have occurred.	So that was
not the area of disoutation about it.	The

evidence was that she was not entitled to sneak

about it at all, or the point of objection.-

To look more particularly at the way in

which the jury were invited to approach their

task, and the proper way, one needs to go back

in His Honour's charge to them to an earlier

stage. It is picked up at page 172 of the

papers where, as Your Honours will see at the

very top of the page, having dealt with general

matters and introducing it to the evidence,

His Honour said to the jury:

In this case, the evidence before you

comes from the accused.

Then he makes some observations about the duty of

police officers; and some observations to which

I have drawn attention about the role of the

jury and what they should do in examining the

matter; a direction about burden of nroof; and

then a direction of some importance: specifically

with respect to the accused at about line 80 on

::,age 172, that:

the accused has exercised his right to go

into the witness box, and when that hannens

he is in no different a position to any-other

PIT8/2/JM

Uo-le 31 24/10/89

witness. Your task is to study the witnesses

as they give their evidence, both in

examination-in-chief and cross-examination.

Then His Honour went on to develop that rule in a way in which, in our submission, would lead the

jury to conclude that all of the witnesses were

to be treated in the same way and evaluated in
the same way by them and that it was solely their

responsibility. His Honour developed that again -

or a little more, in that short page, page 173,

which follows,and their assessment of the evidence

and then went to matters of law, returning in

that context to the fact that the jury did not

have the important evidence of the complaint.

TOOHEY J:  The difficulty with that proposition is that

there are a couple of passages in the charge to

the jury which rather suggests that they did

have that evidence. If you look at page 177,

line 70:

The prosecution of course says that

the accuser has been heard.

MR MURRAY:  Yes.

TOOHEY J: Then, on page 178, at about line 82:

¼'hat the prosecution. says is that she is,

in fact, nere because -

she is speaking through the mouth of the detective

who conducts the interview with the accused.

MR MURRAY:  Yes, I am - - -

TOOHEY J: That tends to equate what the detective ~ut to

the accused as, as it were, possessing the same

sort of strength that the evidence of the

complainant herself might have possessed, although

she was not there and susceptible to cross-examination.

MR MURRAY:  Except that that is dealt with in a particular

way at both of those points, if it please

Your Honour, and it is a way which is of some

importance and I would, with respect, readily

agree with the ~reposition that it was an

observation which had some dangerous element to

it. But what His Honour says is:

The prosecution of course says that

the accuser has been heard.

It is a rather, 9erhaps, rhetorical observation.

What she had to say has been put to the accused fairlv by Detective Harrison and

PIT8/3/JM	32	24/10/89
Ugle

the accused has confessed to the crimes

to the extent revealed in_his answers

to the questions posed orally and typed

in the record of interview.

So, His Honour is pulling the jury back at that	point to the proposition that the evidentiary
value of the material is in the answers which
the accused has given and their evaluation of
that. So it is done also in the following page
because what she had to say is contained in the
record of interview which is fairly put to the
accused and whose answers therein contained are
the truth. So they are brought back in that way
to their evaluation. The submission we make
then really is capable of ending at that point
in this area in respect of the approach to the
police evidence because His Honour concludes
there, reminding the jury that they were the
sole judges of the facts, and:

You reach your verdict on the evidence

adduced in this court.

Which is where he started, upon the evidence adduced in the court, and it was the evaluation of that which was the matter before them.

Our submission about all that is that what His Honour said about the police reaches its

strongest point of complaint in that nassage

that appears on the previous page, page 177

starting at about line 20, when he snoke of

the contest as to the truth. If he-had left it

at that passage, of course, there would have been

difficulty. If His Honour had not then gone back

to remind the jury that they had to, even if
they believed the police, be satisfied - I take

Your Honours to line 50:

even if you believe the police, always

remember that the accused is the oerson on	trial and it is the Crown's responsibility
to satisfy you that he is guilty of the
crimes alleged.

Going back to that paragraph starting at line 20,

His Honour said:

Now, it is true that the oolice don't have

a mortgage on the truth but they do represent

the law and it would indeed be a serious crime

for each of them to have knowingly and falsely

charged the accused with these serious crimes

if what is contained in the record of

in~erview is not given to them, as they say,

fairly and without pressure.

PIT8/4/JM	33	24/10/89
Ugle

That was being posed in contradistinction to the

proposition which is articulated at the bottom

of that page:

Your task is to decide whether the

accused is euilty on the evidence adduced.

Itis not to engage in conjecture at all

and you may do that -

that is, decide upon the evidence -

if you accept the evidence contained in

the record of interview as the truth.

If you are satisfied beyond reasonable

doubt that the questions posed were the

sole questions asked and the answers given

were the truth - not that he gave the

answers therein, as he said he did, but

the answers are untrue - then your duty

is to return verdicts of guilty in respect

of each count.

His Honour at all times, in our respectful submission,

comes back to a proper approach to the matter which

the jury were obliged to take and the reason we

return to that submission is, of course, the

proposition that His Honour's remarks in the whole
of their context, in our submission, would not
lead an appellate court to conclude that the
jury were in danger of being diverted from their
proper task to a consideration of some other or

side issue, such as whether the police officers

concerned were guilty of serious crimes, or matters

of that sort.

In the cases that have come before the courts

very much more pointed and dangerous observations

have been held, in their context, not to reveal

a sufficient danger of that character to require

the court to hold that a miscarriage of justice

has occurred.	The test and the proper approach to
that issue and those questions, in our respectful

submission, comes most convenientlv to Your Honours

by the reminder about this Court's· decisions

most recently in DUKE V REG,(1989) 63 ALJR 139

and the following decision.	As the headnote notes
it in DUKE, so reported:

In his s1.1I!m1ing up, the judge made it clear

that he gave no credence to part of the

defence case alleging fabrication of the confession and improper treatment of the applicant by the Queensland police; yet the

judge emphasized that it was solely for

the jury to assess the facts.

It cited a number of passages from the reasons

and perhaps, with respect, the most complete of

them is that material which appears at pages 142

PIT8/5/JM	34	24/10/89
Ugle

and 143 in the opinion of Your Honour Justice Brennan

where the test in that paragraph around line Eon

page 143 is, I hope, as we have articulated it and indeed as it was repeated by this Court in

MURPHY's case (1989) 86 ALR 35 and most conveniently

at paee 44 within that authority and I do not want

to take Your Honours to this particular case.

So, the question in relation to that sort of material and that sort of complaint, in our

respectful submission, comes back to the

proposition whether the jury had been affirmed

in the task that was properly before them by the

remarks made by His Honour in their context, or
whether they had been diverted from their proper

did not create miscarriage of justice in

task to some other and extraneous consideration. held

either respect, it is perhaps necessary for me

to come finally to the observations about the
sufficiency of the case in terms of the ap~roDriate

test in relation to the proviso as articulated

by this Court in WILDE's-case. I would wish

to delay Your Honours only a very little time in

resoect of that, but to start with the observation

that the decision for the jury really in this

case was stark.. There was no dispute about what

he had said, which was the only material available

to the jury, with respect, which provided the

detail upon which the jury might convict. The

dispute between the parties was as to why he had

said it and in relation to that, as my friend

has opened the matter to Your Honours, the choice

was between a voluntarily provided series of

confessional statements, or statements which had

been made out of fear whether or not by being

overborne in any sort of direct sense but out of fear arising from the manner of his apprehension

at least, and out of an expressed unwillingness

on the part of the officers questioning him to

accept any attempt at denial of any implicating

material so that, as Your Honours are reminded,

he went on to simply agree with what was being

put or to say what was wanted of him.

That really required, particularly with

respect to the record of interview, the conclusion
that other questions had been asked and other
matters had been put, other answers had been

attempted to be given and these had been simply

not recorded, because if one looks to the record
of interview, as I will take Your Honours very
briefly to in a minute, one sees that there is

no hint or suggestion of any cross-examination

or anything which would cause concern in the

way in which that material was elicited by police

investigation. Nor we thinkin the end is there

any problem with respect to the way in which the

PIT8/6/JM	35	24/10/89
Ugle

oral confessional material which preceded the

taking of the record of interview elicited in

any way which would cause concern. The task

for the jury was then one particularly of a

stark character of that description; they

had little else. All they had was the finding

of the plastic bag which had been used as the

makeshift condom, which had seminal material

consistent with having come from a person

with his groupings and the conclusions that

they might draw from the use of such an implement

as that and the way in which that came into

operation, as my learned friend opened it to

Your Honours this morning, upon what seems to

be an almost agreed basis that she had spoken

of AIDS, and whether the jury were entitled to

conclude that she did that in an attempt to

divert him from his proposed attack upon her,

or whether it was a matter which reflected

some of her promiscuity. So there was that sort

of material and little else.

GAUDRON J:	Mr Murray, can I interrupt you there?
MR MURRAY:	Yes, if it olease Your Honour.

GAUDRON J: There is some indication in the record of

interview that there was an earlier conversation

which is not recorded in it.

MR MURRAY:  I am sorry, Your Honour, evidence was given

of that and I will take you to it.

GAUDRON J:	In particular at page 166 it is here at least that earlier in the course of the day the
defendant had made mention of the complainant's having said she was a lesbian.
MR MURRAY:	Yes.

GAUDRON J: Which, of course, does not emerge - one would

think would not have emerged except on the

giving of an account or the attempt of the
giving of an account at some other time and

a different account from that which is in the

record of interview.

MR MURRAY:	The evidence which was led about that, Your Honour, was the material which commences, I think, at
page 35 of the oaDers. It is the evidence of the detective, Harrison, who, if memory serves me
correctly was also said to be the questioner
throughout. That officer spoke of his interview
which he conducted on 28 March. It starts, I
suppose at line 12:

I then spoke to the accused, Mr Ugle ..... "Do you know why we are here?" He said, "Yes,

it's about the girl."

PIT8/7/JM

36   24/10/89

Ugle

"That's right, can you tell me what happened?"

"I've really gone over the top this time."

"What do you mean?" "I got a missus and kid.

I've really done it this time."

Page 36:

"Linton, it is important that I know exactly

what happened." "I rooted her, that's all."

I said, "Did he let you do this?" and the

accused just shrugged his shoulders and

didn't answer. I said, "Linton, there are

a few things that I have to do here."

It was suspended at that point, it would seem and

returned to at page 38 after speaking of the
taking of a series of photographs which apparently
showed the scene generally and also the accused

was depicted showing various parts of the place.

Nothing much was developed about the photographs

and I presume they were in relation to indicating

the front door and places where he entered, and

matters of that sort, not that that seems to have

had any evidentiary value of great significance

as it turned out. But then Your Honours will

see_ at line 60 the witness said he cautioned

the accused and recorrnnenced an interview

saying to him that he was going to be charged
with the sexual assault of the girl and took

him then to various Dlaces; the forensic

section of the State.health laboratories and then

finally to the CIB office in Armadale. He was

spoken to again and the material starts around

line 80 of page 39 and that is preliminary

sort of materials. It is developed on the

top of the following page to the point of going

into the house, sitting, talking.

GAUDRON J: But there you are,again at page 40, you see

there is an indication of an attempt at an

account different from that in the record of

interview.

MR MURRAY:	Where, Your Honour, at line 30?
GAUDRON J:	I am sorry, line 20 - sorry, line 30:

I have been told that you grabbed her by

the hair ..... Is that true?" "No. She

sat down and I just started stroking it."

MR MURRAY:  Your Honour seizes upon a point which is of

particular significance, we would have thought,

in relation to the evaluation of this material

by the jury and that is throughout, from this

point and on through the record of interview

PIT8/8/JM	37	24/10/89
Ugle

one finds a mixture of material which contains

material which is of a confessional and adverse

nature and material which is to a degree

self-serving. That, we would have thought,

would have been perhaps the most important

area of the evaluation of the matter by the jury

in considering the contention which was being

advanced by the applicant that the police showed
an unwillingness to say anything which was to
allow him to say anything which was of a

self-serving character, but they only wanted a particular story. One sees, right at that point and further on right through that page,

the reference not only - and the point I was

taking myself slowly to it was to pick up the point for Your Honour that it was there in that conversation that there was reference

to the fact that she was a lesbian and that she

did not like men. I direct Your Honour to line 70.

GAUDRON J:	Yes.
MR MURRAY:	And so on down that page one sees entirely the way in which the conversation was developed including material which is certainly putting an account which has been given
but getting answers which vecy often have a mixture. Line 30 ,
line 50, line 80, line 100 are examples of areas
where he would wish to say something exculpatory
in the course of the debate and, as Your Honour
has noted, the record of interview is very much
in the same sort of character. It would seem,
in our respectful submission, abundantly clear that the jury were directed to the evaluation of
that evidence and to find as an important conclusion
that where there was confessional material within
this evidence it was a confession made unforced
and because it represented the truth. And only
if they found themselves persuaded of that
beyond a reasonable doubt, was it said that it would be open to them to convict.

In our respectful submission, the jury must

then, against that background, have firstly put

to one side, because they were told that it would

be only useful for a limited purpose and not in

the general assessment of the case, the evidence

of complaint which had been given to them -Your

Honours point out, at two points and not solely

at one - and they had then gone on to the evaluation

of all the testimony and must have concluded that

the account which was being given by the accused

was positively untrue and that they accepted that
the confessional material, which certainly establishes

within it all of the elements which were necessary to prove beyond a reasonable doubt each of the two offences charged in the indictment, was material

which was voluntarily and freely provided and

represented the truth.

PIT8/9/JM	38	24/10/89
Ugle

BRENNAN ACJ: It is a very curious story, though, is it

not? I mean, he goes into the toilet and comes

out and gets a plastic bag because he did not wish to get AIDS, which seems to suggest that before he went into the toilet there had been

some conversation about sexual intercourse and

AIDS.

MR MURRAY:  Yes, and there was a question as to when that

had occurred; whether it occurred actually in
the bedroom,as he was saying at one point, after

he had come back with the plastic bag, or whether

it had occurred rather earlier, as he said at

another point. But no doubt it was useful

to the jury to know that there was a conversation of that sort and to think whether it was part of a

general statement of her's in the course of an	active invitation to him, or whether it was something
that was said by her, at whatever precise point of
time it was said, to disuade him from 9ursuing it
further. But all of those matters were matters
for the jury, in our respectful submission, upon
which it seemed that there is nothing to establish
that they were diverted from a proper approach
and evaluation of that evidence. The important
thing, with respect, in relation to this aspect of the matter for this Court is to simply observe
that that process of evaluation was precisely
what the jury were invited to do and that it was done against a background which was set to
one side as being irrelevant to that consideration, the question of the complaint that the girl had
made. Once one comes to that point, our
submission is that one can see that the jury reached their verdict without reference to that
material and would have undoubtedly have done
the same properly instructed, as they were, if that material had not been led.

So they really are the submissions, I think,

that we would make in respect of that.

BRENNAN ACJ:  Mr Murray, if your submissions should fail

as to the proviso the question would then arise

as to whether the Court should order a retrial

or whether it should enter a verdict of acquittal?

MR MURRAY:	Yes.
BRENNAN ACJ:	In considering the second of those alternatives

I suppose one would have to consider the stren8th

of the prosecution case shorn, as it were, of the

inadmissible material. Would it be right to say

that the strength of the prosecution case depends

solely upon the passages to which you have been

directing our attention, that is the confessional

passages, oral and written?

PIT8/10/JM	39	24/10/89
Ugle

MR MURRAY:  Yes, it does, Your Honour, in our respectful

submission, put together with the competing

view of the facts which was advanced by the

accused.

BRENNAN ACJ:  And the cross-examination, I suppose, of

him?

MR MURRAY:	Yes, but particularly the nature of the story that he was telling which, as we have seen,
Their Honours on the Court of Criminal Appeal
found to be inherently unlikely. The material
really starts from page 95 and perhaps through
to page 104. In view of the time, I do not
take Your Honours directly through that, if I
nay be forgiven.

BRENNAN ACJ:  Yes. It will be necessary for us to read

it if we come to that point.

MR MURRAY:	I am sorry, sir?
BRENNAN ACJ:	It will be necessary for us to read it in

any event.

MR MURRAY: If it please the Court. Of course, our submission

about that has been that. it is against that

background that one can see that if the confessional

material was reasonably capable of acceptance

and it was accepted then it provided

clear evidence of both off enc es charged and

provided a background against which the Crown

can make this submission that it would be Droper

to order a retrial because the case was strong

upon that basis. If it please, Your Honours.

BRENNAN ACJ:  Thank you, Mr Murray. Mr Cullity?

MR CULLITY:  Your Honours, just one or two small ooints.

The question of AIDS: there are two competing

views in the evidence about AIDS.

view was that the complainant had said to The CrO'wn

the applicant, "I've got AIDS" as though to

nut him off and that he orocured the olastic

bag, as it were, to provide a shield against

the AIDS; he was going to have his way anyway.

BRENNAN ACJ:  Was there any evidence on which the Crown

relied to show where it was that this

conversation about AIDS took olace?

McHUGH J: There was evidence in his record of interview.

MR CULLITY:	Evidence in the record of interview, yes.
BRENNAN ACJ:	If it was in the bedroom it was after he

had taken her in there by force and then acquired the plastic bag from the kitchen.

PIT8/ll/JM	40	24/10/89
Ugle

MR CULLITY:  I think the Crown case was that he produced

the olastic bag from his pocket, together with

the iackey band which he had on hand. Of course

he said - his view of the evidence was quite

the contrary.	He said, "I went down the shor,
to try and get some condoms.	They didn't sell
condoms down there.	I said, 'Have you got
any plastic?'	She said to me, 'Well, you
haven't got AIDS, have you?'	I said, 'No, but

have you eot some plastic?'" So she procured some shopping bag from some other part of the

house and produced it to him and then got, as His Honour

called it,'~ lackey ban~'fron a receptacle on the

table and he was then accoutred in that fashion.

McHUGH J:  The fact that it is common ground that they

spoke about AIDS is very strong evidence against

your client, is it not? I mean, your client's

story was that this 15-year-old girl, in effect,

seduced the applicant.

MR CULLITY:  Yes.

McHUGH J: It is hardly likely that if she had those sorts

of inclinations that she would be telling him

that she had AIDS.

MR CULLITY:  That is true, but, of course, my client's

version is that she did not tell him about

AIDS at all, but that she just said, no doubt
in the context of this casual liaison, "You

haven't got AIDS, have you?"

McHUGH J: That isin the witness-box.

MR CULLITY:	Yes.
McHUGH J:	But that was not the version he gave to the

police in the record of interview?

MR CULLITY:  No, well, that is right. But all I am

saying, the only point I am making, is that

there are two competing stories about the

significance of AIDS on the evidence.

The other point, and it really comes back

to the question of the exercise of the proviso

and the significance of the challenged or

inadmissible evidence, "I've been raped", given

the way that the evidence was developed, that is

to say the evidence of the police, as it were,

being the m:,uthpieces of the absent complainant, that

the real danger, although there was a direction

by His Honour that "You shouldn't use it as to

the truth", but, of course, bearing in mind

that he has talked about consistency between the

police evidence on the one hand and the complaint

from the girl, the evidence "I've been raped"

PIT8/12/JM	41	24/10/89
Ugle

is like a porthole for the jury into some

oorthole back into the events that actuallv
occurred. Instead of the disputed evidence of

the confessional material, you have got a witness

coming along and saying, "She told me, 'I've been

raped'." If there was a dispute - if there was

doubt about the confessional evidence, what more

natural way would a jury be swayed to sav, "Well,

at least there's som:body back then who was canolained

to, ' I 've been raped' . That helps us. '' Maybe that

is wrong, but the point is that they should not

have had that porthole. The applicant should not

have had to run that risk that they would ta.ke

that view. That is why, in my submission, this

is not a case where the proviso should ever

have been exercised.	They would be	my submissions,
Your Honour.

BRENNAN ACJ: Thank you, Mr Cullity. The Court will consider

its decision in this matter.

AT 2.55 PM THE MATTER WAS ADJOURNED SINE DIE

PITS/13/JM	42
Ugle	24/10/Sg