W v The Queen

[1992] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A12 of 1992

B e t w e e n -

H

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

MCHUGH J

w 14 1/9/92

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 1 SEPTEMBER 1992. AT 10.00 AM

(Continued from 31/8/92)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Braithwaite.

MR BRAITHWAITE:  Your Honours, yesterday I was citing

Domonic's case and, before leaving it, wish to

fefer to the judgment of Justice Franklyn. I

~uggest his approach is a proper approach by an

appellate court and would necessary have led to an

acquittal in the case at bar. His approach is set

out at page 30 of the materials books,

Your Honours, which is part of the judgment in

Domonic.	He says in the second paragraph on that
page:
The obligation of the trial judge under

s 101 is to form his opinion as to the child's

understanding of the nature of the oath in a

judicial manner and on the whole of the

evidence and information available to him,

including the answers given to the questions

put to the child and the manner and demeanour

of the child. The forming of the opinion is

in fact an exercise in drawing an inference of

fact and if an appeal court decides that a

wrong inference has been drawn from the

undisputed facts then it should give effect to

the inference it would draw from the same:

Warren v Coombs (1979) 142 CLR 531 at 549-553.

It is clear that the trial judge having

examined the boy Hookway, drew an inference

from the answers given to him which prevented

him forming the opinion that the boy did not

understand the nature of the oath. The

questions and answers on which this decision

was based are set out in full earlier herein.

In my view the answers to such questions could

only lead to the conclusion that the boy did

not understand the nature of an oath. That is

what the boy himself said and nothing else

appears to justify drawing a different

conclusion. The questions and answers do

reveal that the boy understood the duty of

speaking the truth and possibly (my

reservation being prompted by the leading

nature of the questions put to him), that in

giving evidence at the trial he understood

that he had an "added responsibility to tell

the truth".

That inference is then given effect to. At the bottom of page 30 His Honour goes on:

Had his Honour formed the opinion which I

hold was the only opinion open to him on the evidence that the boy did not understand the

nature of the oath, the boy's evidence could

not have been received under oath and the

w 15 1/9/92

provisions of s 101(2) would have applied,

with the result that in his charge to the jury

his Honour was bound to instruct that the

accused could not be convicted of the offence

charged on the testimony of the child unless

--	that testimony was corroborated by other
evidence in some material particular. As it
was the jury was not so instructed, and was
left with the warning that it was dangerous to
convict on the uncorroborated testimony of the
boy, but if satisfied that such testimony was
true, it could be accepted.

MASON CJ: But that would not be the case here, would it,

if in fact section 12(2) was satisfied.

MR BRAITHWAITE:  No, that would not be the case,

Your Honour.

MASON CJ: That is still an outstanding question then.

MR BRAITHWAITE: Yes, I am coming back to that shortly,

Your Honour.

The point that I wish to make about this case

is the Court of Appeal in the case at bar
correctly, I would submit with respect, inferred

from the questions asked that the boy could not

have taken the oath and correctly inferred the

examination was insufficient to satisfy a judge,

the evidence ought to have been treated in the same

way as evidence given on oath and I will come back

to that shortly, and that is leaving aside the

proposition that a child can only give evidence
pursuant to subsection (2) if it is shown he is not
required to take an oath.

Your Honours, section 12 is at page 2 of the

materials book. Section 12 makes receivable all
the admissible evidence of young children, no

matter what degree of cognitive development or

evidence to be received pursuant to subsection (3),	competence. There is no test to be passed for	it merely states that any evidence which is unsworn and not assimilated pursuant to section 12(2) is by
that fact evidence for the purpose of the purpose of subsection (3). So, the Court of Criminal
Appeal, having inferred it was not evidence
pursuant to (1) or subsection (2) should not have
shrunk from giving effect to that inference and the
effect is that the evidence was evidence for the
purposes of subsection (3).

This means that provided the accused gave

evidence on oath denying the offences, which he
did, and there was no corroborative evidence, which

there was not, he could not have been convicted.

w 16 1/9/92

There was in that sense, a fatal misdirection, a

proper direction where as here, the Crown has led

evidence which is incapable at law of sustaining a

conviction is a direction to acquit.

_ On appeal in such circumstances the correct

approach has been set out in Gerakiteys. There is

no need to go to the case but I suggest its

authority for this axiom that where convictions

have been quashed because of insufficient evidence,

the accused is entitled as of right to an

acquittal, there is no ground for ordering a new

trial on an indictment when no sufficient evidence

to support it has been called at the trial.

Instead of following this course, the

Court of Criminal Appeal, finding the evidence was not admissible to subsection (1) or subsection (2),

said it was a mistake of such magnitude, it

invalidated the trial and in these circumstances a

retrial is inevitable. I suggest with respect,

that is wrong in law; indeed, if there was

sufficient other evidence the conviction could have

been confirmed even if the evidence was wrongly

sworn. That is precisely what happened in Brown.

It is therefore a bad precedent in an area of

law where all other States have like provisions to

varying effects and in the interest of the

administration of justice it ought to be corrected.

I come now to the section 12(2) point and concede that if the Court considered that that test

was satisfied on the basis of the questions asked

by the judge, then the applicant has no right to

anything other than a retrial.

Your Honour, I will not repeat my submissions

of yesterday, but wish to add a number of points:

first and most obvious - - -

MASON CJ: What if that matter was not established at the

trial, but the position is that is that it could be

established on a new trial?

MR BRAITHWAITE: With respect, that places the accused in

double jeopardy; it falls foul of the law in

Gerakiteys case. The Crown, at the trial - and

this appears at page 40 of the appeal book - having

heard these few questions asked defence counsel

said, when the trial judge intimated that he was

going to allow the child to be sworn, at line 11:

I wonder whether, pursuant to the Act,

your Honour should address some questions to

the issue of understanding the nature of the

oath, as opposed to simply telling the truth.

w 17 1/9/92

Then the Crown Prosecutor, Ms Kelly, responded by

saying:

There is clear authority that the only

matter about which your Honour needs to be

satisfied is that the child understands the

obligation of telling the truth.

His Honour agreed and so further inquiry at the

behest of the Crown was forestalled, though counsel

for the defence asked for further inquiry to be

made to perhaps satisfy the query that Your Honour

has addressed to me now. The Crown, with respect,

must be bound by its conduct there. It is the

Crown's responsibility to present evidence in a

fashion where a conviction can properly follow. It

has not done so in this case and I rely on the fact

that the Crown has forestalled any further inquiry

in this manner.

DAWSON J:  I am sorry, I do not understand that last

proposition, forestalled anything?

MR BRAITHWAITE:  Over the objection of defence counsel has

said to the judge you need make no further inquiry.

DAWSON J:  I see, yes.

McHUGH J: But supposing you had a case where the conviction

depended upon expert evidence given by a person

whom the Court of Criminal Appeal held lacked the

qualification to give that expert evidence, would

you then say that the correct remedy was the entry

of a verdict of acquittal as opposed to the

ordering of a new trial?

MR BRAITHWAITE:  I would say that, Your Honour, if the

expert evidence, or the purported expert evidence

was the only evidence which could underlie a

conviction and there was no other evidence, because

in that event the appellant would have been

convicted on inadmissible evidence and there would

have been no evidence at all. But if there has
been confirmatory evidence upon which a jury might

have convicted, then, yes, it should go back for a

retrial.

DAWSON J: The evidence here was not inadmissible because it

was irrelevant or for some reason such as that, it

was not irrevocably inadmissible, it was merely

because of a technical defect in the manner of

calling the evidence which is the difference

between this and Gerakiteys.

MR BRAITHWAITE:  I accept that the evidence is inherently

admissible, Your Honour, but it is not a technical

defect - "technical" may be an unfortunate word but

18   1/9/92

it is something which may be corrected. With

respect, it involves a Court in speculation about

what the result of further inquiries might have
been, and that is normally remitted for a retrial
so that a jury can re-examine the verdict free of
perhaps misdirection and inadmissible evidence -

nave another look at it.

It is not, in my respectful submission, proper

to send it back merely to have some preliminary

point gone into again allowing the Crown, as it

were, to split its case; fresh inquiries made to

been seen if a different result can be got, on the
off chance that it can be.

So, I would submit it is not a proper exercise

of the discretion to order a retrial, particularly
where the case has proceeded precisely as the Crown
wanted it to proceed over objection on that point.

It may be when it goes back, that the girl did not

understand the nature of an oath or, indeed, of the

obligation to tell the truth. Where does that

leave us, that preliminary inquiry having been

made? It must be clear then that there should not

have been a retrial.

The other points, and I do not want to repeat

anything I said yesterday, I wanted to make about

12(2) were that first it is obvious that there was

no cross appeal or notice that the respondent

wishes to disagree or ventilate any rulings of the

Court of Criminal Appeal.

Yesterday it was suggested, looking at the

girl's evidence in retrospect to see if

section 12(2) was satisfied.	I have stated my
objections to that course yesterday.	I will not

repeat them, but would add this: that if

Your Honours were minded to do so in this case, to

look in retrospect at the evidence of the girl to

case or I would submit, in any other, be satisfied	see if it satisfied 12(2), you could never in this
that she understood what it was to tell the truth
and had an understanding of an obligation to tell
the truth.
The girl's evidence was not accepted by the jury at all on some counts. Two members of the
jury doubted her evidence on all counts. There may
have been misdirection. Even in her evidence she
said "I know what the truth is and I promise to
tell it". The accused contested that and said
"You are not telling the truth". In other words,
Your Honours would have to be satisfied her
evidence was true before relying on it and
Your Honours could never, from a retrospective view

w 19 1/9/92

of the evidence, be satisfied of that second limb

of 12(2), that is:

The child promises to tell the truth and

appears to understand the obligations entailed

.:  by that promise •

You would have to assume she was telling the truth

or investigate other evidence in the case, and

perhaps, with respect, this underpins the

prohibition on appellate courts drawing inferences

from disputed evidence.

If Your Honours accept that, one then is

driven back to the bare bones of the questions

asked by the trial judge. These questions appear

as page 39 of the appeal book. The examination is

there set out in full. There are 11 questions,

nine of them are answered by the word "yes". I

suggest, with respect, that examination should not

have this Court's imprimatur. It does not reflect

the care needed in deciding whether or not a very important protection, that is, the requirement of

corroboration should be taken away from an accused

in a particular case. That is the outcome of such

inquiry. That is the manner then, I suggest with

respect, in which it should be approached. It is
known to be an area of dangerous evidence, if you

like, and it is a very large step to take to remove

that protection.

Perhaps I could test that in another way. If

in another type of case counsel suggested certain

matters were proved in his case because he had

presented those matters in a leading form to a

child witness and that child had assented, such an

approach would ordinarily I would submit with

respect, be derided. My submission on whether or

not it complies with section 12(2) is that it does

not, it does not reflect anything like the way such

an inquiry should be gone about.

DAWSON J: 

I suppose the strongest way you could put your

case is to say, "The child did not qualify under
subsection (1) - - -

MR BRAITHWAITE: Yes, Your Honour.

DAWSON J:  - - - the trial judge did not reach the

conclusion which is necessary for the application

of subsection (2), therefore in the events which

happened the judge ought to have directed the jury

to acquit because there was no evidence having

regard to subsection (3) against him." He did not

do so and therefore your client would not only have

lost a chance of acquittal but lost certain

acquittal if the trial had taken - if the judge

w 20 1/9/92

given direction he ought to have given, that is the

way you put.

MR BRAITHWAITE: Yes, thank you, Your Honour. I will

respectfully adopt that and it is the point I am

_.:trying to make.

DAWSON J:  I am just putting it to you, that is the

strongest way you put your case.

MR BRAITHWAITE: That is the way I put it, that he was

entitled an acquittal as of right in those

circumstances.

DAWSON J:	In the events which took place at the trial.
MR BRAITHWAITE:	In the event which took place at the trial,

yes.

That is all I wish to say about ground one

Your Honours.

McHUGH J: The difficulty with that last proposition though

is that subsection (3) refers to unsworn evidence.

This was not unsworn evidence, was it? It was

wrongly sworn evidence.

MR BRAITHWAITE: Yes, that is right, Your Honour, but with

respect, it was evidence that did not comply with

12 ( 1) •

Mc HUGH J:	Yes •
MR BRAITHWAITE:	One could, I suppose, have a definitional

argument: that ought to be properly described as -

whether there is a distinction between unsworn and

not properly sworn, by force of the statute, I
suggest with respect, does not matter.

Section 12(3) catches evidence which is not

receivable pursuant to 12(1). This was not, the

Appeal Court correctly decided, so it is not to the

point, I would submit with respect, that the trial

judge made a mistake. He has still lost a chance

of an acquittal which he should - - -

DAWSON J: But if you are right, he just did not lose a

chance, he lost a certainty.

MR BRAITHWAITE: Well, lost a certainty, yes. he is

entitled now to an acquittal as of right, Your

Honour. Indeed, I have just been reminded that in

Brown's case, Acting Chief Justice Wanstall, having

looked at the evidence, decided that the child

should not have been sworn, then went on to say,

"The child though, could have affirmed, but the

trial judge did not turn his mind to that so I will

not." Then went on to say that therefore the

w 21 1/9/92

evidence that was received had the character of

unsworn evidence. His Honour made that plain and,

indeed, in the last judgment in Brown's case, of

Justice Williams, which is the approach which was

picked up in Domonic's case, His Honour there, Your

~onours will recall, considered that the inference

that he would draw from the examination was not

like the trial judge, that the child could give

evidence on oath, but that the child could have

affirmed.

He went on to say that, "Therefore, I will

uphold the conviction, apply the proviso because

there is not much difference between what the jury

did here and should have heard." But he did say

the result in that case would have been different

if the judge could have, and should have, admitted

the evidence unsworn, but he doubted whether in

Queensland one could have unsworn evidence in that

sense. He did not, with respect, for a moment

suggest the evidence received was somehow sworn

evidence.

Your Honours, I could leave that ground now

and go quickly to ground 2. I rely on Jones' case,

a decision of this Court, and the complaint is that

the Court of Criminal Appeal did not decide a

number of the grounds argued. Those grounds are

set out at page 3 of the appeal book, and page 4.

There are eight of them.

Perhaps I should say this too in relation to

ground 1 of this appeal. It is agreed that counsel

took in the corporeal eye of the point that is
taken now that an acquittal should have followed,

not a retrial.

In relation to ground 2, the grounds appear on

page 3 of the appeal book - ground 1, complaining

of inconsistency of verdicts was argued fully by

both appellant and respondent. If successful in	that ground then an acquittal may have followed.	I
note it is not suggested in my friend's amended
summary of argument that has been filed that this
ground is plainly untenable. It is suggested that
the ground was decided.

DEANE J: Can I ask you a few questions about that because I

have a doubt about it not being plainly untenable?

MR BRAITHWAITE: Yes, Your Honour.

DEANE J: Can I take you to page 59 of the appeal book, and

this relates to the two counts on which your client

was acquitted which both specified offence between

mid-December and 31 January 1991.

w 22 1/9/92

MR BRAITHWAITE:  Yes.

DEANE J: This is the complainant's evidence and at line 8

she is asked, or before that - line 5, to give the

date and she, without qualification says "15

.:February" which was outside the period of the

alleged offences. If you go from there to page 127

you find that even though the judge and counsel may

not have been conscious of the problem, the jury

plainly was in that they come back and they say:

Jury requires confirmation of date Kelly,

Alan and Alvin visited and stayed at the

Kessler and Richardson house -

and add:

This is the date of the alleged first and

second offences against Kelly by the accused. His Honour gives them, in answer to that specific

query, instructions that the complainant says the

date was 15 February which, as the jury have

pointed out, is outside the dates of the alleged

offences. Now, in that context, when you get

unanimous verdicts, is it not obvious what has

happened, that the jury have simply seen that the

complainant's evidence, if accepted, led in terms
of the manner in which the charges were framed,

inevitably to acquittals of those two counts.

MR BRAITHWAITE:  Your Honour, that might be the explanation.

DEANE J: But if it is, the argument of inconsistent

· verdicts is simply untenable if it is open.

MR BRAITHWAITE:  I would agree that that may well explain

~he inconsistency, with respect. There might be

other explanations as well.

DEANE J: Is that not enough? If there is an explanation of

those two verdicts that positively hits you in the

eye, if you read what happens, does not the

argument about inconsistent verdict simply

disappear?

MR BRAITHWAITE: Yes, if the explanation is obvious,

Your Honour, but it may not be that obvious, with

respect. Could I take your Honour to page 127 of

the appeal book? It says:

Ladies and gentlemen, it does not matter

when it happened. The thing is, did it

happen? Whether it happened on the 17th, or

the 18th, it does not matter because the crown

has alleged that it occurred between

w 23 1/9/92

18 December 1990 and 31 January 1991, in both

cases.

DEANE J: But His Honour is not suggesting it does not

matter if the complainant's evidence is clear that

she thought the date was 15 February. His Honour

-simply does not seem to have appreciated the great

force of the jury's question.

MR BRAITHWAITE:  That may be so but nevertheless he has told

them that she can be mistaken about the date.

DEANE J: But then if you read on page 128, counsel for the

defence points out that the evidence was

15 February and His Honour adopts what counsel for

the defence has said.

MR BRAITHWAITE:  Yes, and indeed that, with respect, was an

accurate summation of the evidence but nevertheless

the jury were told, if they accepted it, that was

simply a mistake that they could convict, but I

agree that if that is an apparent and obvious

explanation of the verdicts, that is the end of the

matter, but I do not, with respect, given what the

judge said to the jury, accept it is as obvious as

that.

None of the other grounds would have led to an

acquittal but I do submit, with respect, that some

of them would almost necessarily arise on a

retrial. Grounds 2, 3 and 4 are to do with the

admissibility of evidence and there is little doubt

that the Crown would seek to lead it on any

retrial.

I would submit, with respect, that in those

circumstances an appellate court ought to decide in
the interests of the good administration of

justice, those grounds, particularly in a case like

this. The first trial is generally upsetting

enough, the second obviously, can be quite

harrowing for everybody and everyone should make
sure there is not going to be a third.	The reasons

in a case like that could, of course, be quite

brief and blunt such as there is no merit in

ground 3, that is it would be sufficient guidance

to a trial judge on a retrial but what happened in
the judgment in this case, with respect, was that

Justice Olsson, at page 138 of the appeal book,

said this at the top:

I would only with to add that whilst, in my

view, such a situation, for the reasons

expressed in Schlaefer, was sufficient to

invalidate the trial of the appellant, there are other matters which have been identified in the course of argument which add to such a

w 24 1/9/92

consideration, by creating some further ground

for unease.

I do not, for myself, find it necessary

at this time to deal with those in any

detail - other than to express the view that,
certainly, the portion of the summing up which

appears at p 28 of the Appeal Book, did have

the potential - the very strong potential - to

confuse the jury as to the proper approach to

onus of proof.

His Honour has, deliberately as it were, refrained

from deciding those grounds though a retrial is in

prospect.

Before leaving this ground, the point I wish

to make about the inconsistency of verdicts is

this; that the accused was acquitted on the counts

at Eden Valley and they are counts upon which other

witnesses, apart from the accused and the

complainant, gave evidence. It happened at the house as is evident from the girl's evidence of

other people who gave evidence and so there might

be other explanations as well as to why the accused

was acquitted on those counts and it might be to do
with the fact that there was contradictory

evidence. Those are my submissions on ground 2.

DEANE J:  Mr Braithwaite, it is a bit obscure in terms of

its relevance, but looking at ground 4, was

objection taken to that evidence? It is not in the

appeal book but it seems quite extraordinary that

the Crown would seek to lead that evidence.

MR BRAITHWAITE: Yes, I am instructed by my instructing

solicitor it was objected to.

DEANE J:  On this sort of trial the trial judge ruled that

evidence of magazines relating to normal

relationships was somehow admissible against an

accused.

MR BRAITHWAITE: Yes, and as I understand it, over

objection, Your Honour. Of course, it would be a

bad thing if such evidence got in at the retrial,
and some guidance on matters like that where a

retrial is in prospect ought to be given to a trial judge, Your Honour. May it please the Court, those

are my submissions.

MASON CJ: Court will take a short adjournment in order to

consider the course it will take in this matter.

AT 10.33 AM SHORT ADJOURNMENT

w 25 1/9/92

UPON RESUMING AT 10.38 AM:

MASON CJ:  Mr Rofe, the only matter we want to take up with

you is the admissibility of these magazines. Does

the Crown intend, on a new trial, to adduce that

evidence?

MR ROFE:  If I could explain the circumstances, Your Honour,

it came as the result of questioning of the child's

mother as to the child's knowledge of sexual

matters in terms of, "Have you ever given her

instructions as to sexual matters; has she been

allowed to read books on sexual matters; have you

ever had magazines around that the child had access

to?" The answer to that was no, which was the

answer expected, but the mother then went on to

say, "There were, but they were out of the way and

they were the accused's." Clearly as a result of

that, the Crown would not seek to lead that again

on a retrial.

MASON CJ: The Court need not trouble you further, Mr Rofe.

The Court considers that the Court of Criminal

Appeal was, in the circumstances of this case, correct in ordering a new trial. The only other ground that requires any attention is the suggestion that there were inconsistent verdicts.

So far as that ground is concerned, the Court is of

opinion that there is no substance in it.

Accordingly, the application for special leave to

appeal is refused.

AT 10.39 AM THE MATTER WAS ADJOURNED SINE DIE

Wehr 26 1/9/92