W v The Queen

[1992] HCATrans 251

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A12 of 1992

B e t w e e n -

il

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY. 31 AUGUST 1992. AT 3.44 PM

Copyright in the High Court of Australia

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MR W.F. BRAITHWAITE:  May it please the Court, I appear with

my friend, MR J.J. DADDS, for the applicant.

(instructed by Sykes Bidstrup)

MR P.J.L. ROFE. OC:  If the Court pleases, I appear with my

learned friend, MS W.J. ABRAHAM, for the

respondent. (instructed by the Director of Public

Prosecutions (South Australia)).

MASON CJ: Mr Braithwaite.

MR BRAITHWAITE:  Your Honours, I have handed up some

materials, and also, during the short break, an

outline of argument.

MASON CJ: Yes, we have the outline of argument.

MR BRAITHWAITE:  Your Honours, this is an application for

special leave against the decision of the Court of

Criminal Appeal of South Australia to order a

retrial in this matter. We say that was an error

and either that section 12(3) of the South

Australian Evidence Act operated - - -

DEANE J: But, Mr Braithwaite, I notice in the Court of

Criminal Appeal care was taken to ensure that the

child's name was not mentioned. Why has not

similar care been taken in this Court?

MR BRAITHWAITE: In relation to - - -?

DEANE J: The child seems to be just simply named in all the

documents.

MR BRAITHWAITE: I see. Yes, I am sorry, Your Honour, that

is something that certainly escaped my attention.

DEANE J: Is that the custom here?

MR BRAITHWAITE:  It is the custom here to have the matter

listed as "W".

DEANE J: And to ensure that the names do not appear

anywhere.

MR BRAITHWAITE: Yes, in judgments or anywhere else.

DEANE J:  Does that mean that an order should be made

precluding any mention of names in reports of the

case in this Court?

MR BRAITHWAITE:  I would ask for such an order for that

reason, Your Honour.

MASON CJ: An order to that effect will be made. The name

of the applicant must not be published.

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Should we not make an order, Mr Braithwaite,

that the proceedings should be retitled so that

only the initial letter of the surname appears?

MR BRAITHWAITE:  "W", yes, Your Honour. I would seek an

order in those terms as well.

MASON CJ: Yes.

MR BRAITHWAITE:  Your Honours, we say that the correct order

for the Court of Criminal Appeal to make in this

case was an order quashing the conviction and

substituting an acquittal rather than a retrial.

We say that because section 12(3) of the Evidence

Act, we say, operated and would have operated in

this case to bar an offence. So that an order for

a retrial was impermissible, and we rely for that

on the case of Gerakiteys.

If I could take Your Honours to page 2 of the

materials book which contains the relevant section,
section 12. In the case, the witness was a girl

aged 12 who was accordingly, by section 4 of the South Australian Evidence Act, a young child and thus her evidence was governed by section 12.

The learned trial judge asked a number of questions and allowed her to give evidence on oath.

The Court of Criminal Appeal said that the evidence

should not have been given on oath nor, on the

questions asked by the judge on the voir dire,

could the trial judge have been satisfied that her

evidence could be assimilated pursuant to

section 12(2). Had it been assimilated pursuant to

that section, then her evidence would have been

treated in the same way as evidence given on oath

~nd the important thing about that is that it would

not have required corroboration in those

circumstances and could have stood alone.

Having, we say with respect, correctly drawn

those inferences, the evidence then should have

been viewed as being admitted by force of logic and

law pursuant to section 12(3). The accused in the

case gave evidence on oath and denied each of the

offences and, of course, was cross-examined. As it

was common ground both at the trial and in the

Court of Criminal Appeal that there was no

corroboration in the case, section 12(3) should

have operated and a correct order would have been a

retrial.

GAUDRON J: Mr Braithwaite, I do not read the judgments in

the Court of Criminal Appeal as saying that if

further questions had been asked, the child might

not have been sworn.

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MR BRAITHWAITE:	No, but in this case, Your Honour - - -
GAUDRON J:	I am looking at page 13 of the application book.
MR BRAITHWAITE:	Yes.
GAUDRON J:	I had understood your submission to be that the

child could not be sworn.

MR BRAITHWAITE: Yes, and, indeed, that is what the Court of

Criminal Appeal decided, Your Honour.

GAUDRON J: Well, that the questions asked did not allow the

child to be sworn.

MR BRAITHWAITE: Yes, I am sorry, that is correct. I

understand what Your Honour is saying. That is so

but, of course, in this case the Crown forestalled

further inquiry. Defence counsel invited further

inquiry along those lines to see if - obviously,
being of the opinion, that the questions asked did
not satisfy 12(1), that is, an understanding of the

obligation of an oath.

DEANE J: But is it as simple as that? If you look at

section 12, the case is not a 12(3) case because

there was no unsworn evidence and you only have to

read the evidence of the child for it to be clear

beyond argument that if it was not a 12(1) case, it

was a 12(2) case.

MR BRAITHWAITE:  I say, with respect, that one cannot read a

child's evidence, in these circumstances, to be

satisfied that the evidence should have been

admitted pursuant to section 12(2).

DEANE J: But, look at it:

(a) the child appears to ••••• reached a level

of cognitive development that enables the

child - (i) to understand and respond rationally to

questions; and

(ii) to give an intelligible account of his or

her experiences.

Well now, no one could read the evidence and have

the slightest doubt about those two matters.

MR BRAITHWAITE:	I concede that, Your Honour.
DEANE J:	(b) the child promises to tell the truth -

which she did, although possibly in words she did

not fully understand -

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and appears to understand the obligations

entailed by that promise.

Well, she has already given preliminary evidence

that she understands what telling the truth is.

MR BRAITHWAITE:  Your Honour, firstly, we do not agitate

that question. I will come back to it in a moment.

I do acknowledge though that if this Court was of

the view that the evidence could rightly have been

admitted pursuant to section 12(2) then this appeal

would be dismissed.

Your Honour, there are a number of

considerations that stand in the way though of

looking retrospectively at evidence in that manner.

Firstly, the matter raised by Justice Olsson in the

Court of Criminal Appeal, the statutory argument

that it is a condition precedent, any person -

section 12(1) and 12(2) say who is to give evidence

before a court. It is something that has to be

decided as a condition precedent, and the reasons

for that are clear, that defence counsel really

must know before the complainant gives evidence how

to approach the case, whether corroboration is

going to be necessary or not.

Indeed, some support can be found for that in

the judgment of Justice Windeyer in Da Costa, which

is on the authorities - I might come to that

later - who simply says that in that case the

matters that had to be gone into before two

Aboriginal witnesses could give evidence were a condition precedent.

Secondly, in this particular case, the

evidence asked by the trial judge were

insufficient, in my respectful opinion, to allow

evidence under section 12(2), because one may only

give evidence under section 12(2) if one is not

not, I would suggest, establish even that, that required to take an oath. Now, His Honour, did	here was a person who was not required to take an
oath. Further questions may have elicited the proper knowledge, the relevant knowledge and understanding. So that that is a bar in this case
to moving on to 12(2).

DEANE J: Yes, but what you say may all be unanswerable in

so far as it gets to the stage where the evidence

should not have been taken under 12(1) or (2), but
once you have reached that stage and the verdict is

quashed and the question is, "Should there be a new

trial or an acquittal entered?", it is surely

relevant that the case seems to be obviously one

where, if correct procedures have been followed,

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the evidence, at the least, would have been

receivable under 12(2).

MR BRAITHWAITE: Firstly, Your Honour, I would suggest, with

respect, that this much is obvious, before coming

back to that, that this was a case where the

evidence led at the trial was insufficient to found

a conviction and by force of law, he is entitled to

an acquittal on appeal. But it may be that if a

matter is sent back, as it were, for further

questions to be asked on the assumption that those

fresh inquiries will lead to a fresh decision, she

may have been able to have been sworn, indeed, or

have her evidence received under 12(2). But I

would suggest, with respect, given Gerakiteys'
case, that is not proper in this case for the

reasons stated.

It is sending it back, really, for the

re-examination of some preliminary issue rather

than a re-evaluation of evidence by a jury in the

light of admissible evidence free from the

influence of inadmissible evidence or misdirection

which, I would submit with respect, is not a proper

exercise of that discretion.

Could I say this, too, Your Honour, about

retrospectively, as it were, looking at a person's

evidence to see if it could satisfy some other

criteria, here section 12(2)? A Court of Appeal

can really only draw inferences from undisputed

facts, obviously here from the voir dire, but ought

not, I would submit with respect, as a matter of

principle, have a look at evidence and try and draw

inferences from that and inferences which, of

course, were for the judge to draw - it was his responsibility - ought not be shifted to a jury

because, of course, that would perhaps require

looking at other evidence as well. Her evidence

here was hotly contested.

So, I would submit, with respect, for those

reasons that is not a permissible approach. There
is no warrant to assume, with respect, that she was

telling the truth and, indeed, in this case the

jury doubted her evidence in relation to two counts

and were not even unanimous on the other three. So

that looking at her evidence and assuming that she

is telling the truth, it is not something that a

court can do.

By way of general comment, if Your Honours are

minded, perhaps, to look at that aspect, whether it

satisfied 12(2), I would suggest that the

examination here fell far short of it. The proper

approach should be quite thorough and it ought to be approached in this way: the judge should say,

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"Am I so satisfied that this witness understands

the truth, the distinction between lies and the

truth and the obligations of telling the truth,

that I am prepared to remove from the accused the

protection of the requirement of corroboration?"

Obviously, it is axiomatic that a child's evidence

is often suspect. They are very suggestible,

particularly to adults, parents in this case. It

is clear she had gone through her evidence a number

of times with her parents, that it was an

acquisition made. I do not know whether it

preceded but certainly continued through the course of a custody battle between the mother of this girl

and her stepfather or from another child who was

the child of both of them.

It is easy to imagine that a child in that

circumstance does not want to upset someone that is

relied upon for shelter, warmth and everything

else. They are very suggestible and could quite

easily think that it is just as important to say

what Mum wants said here as it is to tell the truth

about Uncle Bertie or whatever it is.

If, upon inquiry, there is some doubt about whether a child understands the truth, there is

nothing lost, the case can be adjourned for a short

time and some disinterested third party can sit

down with the child and explain either the

obligation of an oath or, more likely, the

obligation to tell the truth and the difference

between truth and lies and the importance of it.

So, there is no reason, really, not to approach the

matter thoroughly and properly and end up being

quite satisfied, having no doubt that this is a

case in which the protection of corroboration can

properly be taken away from this accused.

The examination here was perfunctory. It

consisted, I think, of 11 questions. The answer to

nine of them was "Yes" and the two that required

some explanation were just - I think she said she

sometimes went to church and something else.

I would suggest, with great respect, that this

Court ought to be very careful about giving an imprimatur to an examination like that and say that

that satisfies the requirements of section 12(2).

Your Honours might notice some coincidence between

the questions asked there and the questions asked

in Hayes' case, the English case. The questions

reported in Hayes in the judgments or - it is made

clear that they are just a few of the questions

asked; that they were preceded by a very length examination. But now it would appear that that
examination, which must have only just passed

muster really, has become - or if Your Honours gave

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it an imprimatur in this case, the norm and enough;

no further inquiry is necessary and corroboration

requirements can be removed on the most perfunctory

of inquiries and there is no need for it, with

respect to Your Honours. It can be done properly.

So, I would suggest that on any view of that,

it would not be proper to find that it satisfied
12(2). But, in any event, of course, we do not say

that there was anything wrong with the Court of

Criminal Appeal judgment there.

I agree, Your Honours, that you can determine what "cognitive development" is, the stage that

that has reached et cetera; ability to tell a story
in a rational manner by looking at it but the

understanding of the truth, the difference between

truth and lies et cetera, could not, I would

suggest with respect, be inferred from contested
evidence.

In the Court of Criminal Appeal in both the case at bar and a previous case of Schlaefer the

court talks of the inevitability of a retrial when,
as it has called it, an error of this magnitude is

made, that is, where a complainant's evidence is

sworn where it should not have been sworn.	Indeed,
in the case at bar Justice Ollson said in the
application book at page 137, about line 15:

it must be accepted that the procedure adopted

constituted an error of such magnitude and

importance that, on the published authorities,

it inevitably leads to a need for a re-trial -

and at another place I am confident that His Honour

uses the word "invalidate" that such a - yes, at

page 138 at the top:

I would only wish to add that whilst, in my

view, such a situation, for the reasons

expressed in Schlaefer -

much the same sorts of reasons as here -

was sufficient to invalidate the trial of the

appellant -

and then goes on to say there were other matters in

the trial as well which gave him concern.

That talk of invalidation of the trial is, in

my respectful opinion, the only reason consonant

with authority which would found not substituting

an acquittal here, a finding that perhaps the first

trial was a nullity, invalid, and the accused had

never been in jeopardy.

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In any event, I suggest that the proper way to

go about it is the way that these matters have been

gone about in Brown's case and, indeed, Dominic

and it is to see what impact the error has had on

the trial.

Now, you will see, Your Honours, that in my

outline I have suggested that the relevant question

for the court here was: what is the effect of

non-compliance with section 12 of the Evidence Act?

I suggest it is not always inevitably that there is

a retrial and it is certainly not the case that the

trial is invalidated, even if the evidence was

considered to be simply inadmissible. If 12(3)

does not come into play then the evidence was
simply inadmissible. The Crown would be bound by

its course of conduct. It has forestalled further

inquiry and led evidence insufficient to found a

conviction.

If it was inadmissible, then it would also

lead to an acquittal because it was the only

evidence capable of founding a conviction. It was

completely uncorroborated. But I would suggest it

was not inadmissible.

Your Honours, Brown's case, which I will take

you to briefly if I may, is at page 32 of the

materials that I handed up. In this case,

non-compliance with the section, a similar section
in Queensland, has led to two different effects.

It was a case in which the trial judge allowed two young ones to make an oath. They were intelligent;

they understood the duty to tell the truth but

neither child was shown to have a belief in God. that to qualify to take the oath, one needs a belief in God and in divine reward or

punishment.	Now, that was common ground between
the judges.

Acting Chief Justice wanstall, at page 34,

took this view, just below A, that they could not

have taken the oath but they could have, pursuant

to the Oaths Act in Queensland at that time,

affirmed:

It is my view that His Honour, on hearing

their answers to his questions, and assisted

by the view he formed of their demeanour,

would have been entitled, in the exercise of

his discretion, to reach the conclusion that

each understood she would be liable to be
punished if she did not tell the truth, and

that each was qualified by intellect to give

evidence on affirmation. However, it is clear

that His Honour did not apply those tests -

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and it would seem, with respect, that he then does

not, as it were, give effect to that inference he
has drawn from the same examination and treat the

evidence as evidence given on affirmation. But at

the bottom of the page at G, he says this:

There remains the question whether in this case the proviso to s 668E(l) of the

Criminal Code should be applied. The test is

either this court is satisfied that a

reasonable jury, properly directed, would, on

the evidence properly admissible, without

doubt convict.

And then goes on to say:

Apart from the impugned evidence the

Crown case was strong indeed.

It was and the proviso was applied. But His Honour

there seems to have approached that decision on the

basis that no reference should be had to the

impugned evidence - in other words, it was

admissible when applying the proviso - and has

applied it quite apart from that evidence.

Justice Williams though took a different view.

He applied the proviso for a different reason. At

page 51 of the book, he has reviewed the law,

himself come to the conclusion a belief in God is
necessary; himself come to the conclusion that

under the Oaths Act in Queensland, relying on

Cheers v Porter, an affirmation could have been

taken from these children, and that they clearly

qualified, given the answers they took. He said:

In the final result therefore, if the

children were to give evidence, two courses

only were open to His Honour depending on the

result of his examination of the children - an

oath or an affirmation. Each has a sanction

built into it. The jury heard that contained

in the oath. Would their decision have been

any different had they heard the sanction

contained in the usual form of affirmation? I
cannot think that in the circumstances of this

case it could have been. The situation would

have been different had His Honour had the

power to and should have let the children

given evidence unsworn. In my view on this

ground of appeal it would not be dangerous to

allow this conviction to stand.

In other words, His Honour has, from the same

examination as the trial judge, inferred that an

affirmation could have been taken by these

children. He has, as it were, given effect to

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that, looked at the evidence in that light and

said, "What the jury should have heard here was an

affirmation, not the oath." So, in this case,

given the mountain, apparently, of confirmatory

evidence, the slight difference in wording between
the affirmation and the oath in no way make the

verdict unsafe. But that appears to be a different

approach than that taken by, indeed, the other two

judges in the case. Justice Campbell, although he

ordered a retrial, seems to have considered the

matter on the basis that no regard is to be had to

the impugned evidence when making that decision.

Your Honours, in the case of Dominic, which is

at page 24, the courts there pick up on, really, the approach taken by Justice Williams in Brown.

They rely on Brown's case as correctly stating the

law as it relates to the oath and agree it requires

a believe in God and a binding of the conscience in
a religious sense. In that case, an 11-year-old

boy gave sworn evidence. The Court of Criminal

Appeal said he should not have been sworn.

Actually, unlike the case at bar, the examination

was quite thorough and one could infer from it that

there was no obligation to take an oath and that

the oath should not have been taken. It was not a

perfunctory examination. So, the evidence was

incorrectly sworn.

The court there looked at what impact that has

on the case. There was no suggestion at all that

it was inevitable that there be a retrial, no talk

of invalidating the trial, et cetera, as is the

case in the case at bar. The judges in that case -

and I think it is fair to say, all of them -

inferred that the boy, to quote page 24,

Chief Justice Burt:

His evidence could nevertheless be received

though not given on oath if in the opinion of

the trial judge he was possessed of sufficient

intelligence to justify the reception of the

evidence and understood the duty of speaking

the truth.

In that case, if that test was satisfied, the

law is unlike our law here, corroboration would

have been required. If the person understands the

duty to tell the truth here, it is not. So, what

happened was that it was looked upon as a

misdirection; the jury were directed that they

could convict on the uncorroborated evidence of the

boy if they so wished. That was a misdirection.

He was not qualified to take the oath; it required corroboration. So that was a similar case to the one presented at bar.

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The headnote, I would suggest with respect, of

this case is wrong. It says that the evidence was

uncorroborated as well in this case which would, of

course, be at odds with the proposition I am now

advancing. But if I could take Your Honours to

page 27, the judgment of Justice Franklyn, at the

top of the page. He says this:

Ground 4 alleges that "it was

unreasonable of the jury to convict on the

evidence of the complainant on the grounds

that:

(A)	that the finding by the trial judge that
the complainant Barry Joseph Hookway was capable of understanding the nature of the oath; and

(B) the complainant's evidence was unreliable

and of proven inaccuracy" in certain

specified particulars.

Paragraph A of ground 4 is quite inappropriate

to the ground of "unreasonableness" on the

part of the jury, and par B does not

constitute a proper ground for any finding

that the verdict of the jury was unreasonable,

the questions of credibility and reliability

of witnesses and evidence being matters for

the jury -

and this is the important bit -

and the jury having before it other evidence

than that referred to in par Bon which it

could reach its verdict.

Paragraph B refers to the complainant's evidence.

It would seem to suggest that there was in that

case confirmatory evidence. It may be that the

author of that headnote has been misled to a degree

by the way the matter is put on page 31 in the

judgment, the last sentence:

As it was the jury was no so instructed -

that is that corroboration was required -

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

without corroboration.

Of course, a jury would be told that, whether there

was corroborative evidence or not, it would be for

the jury to determine whether they accept it.

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MASON CJ:	Mr Braithwaite, we will adjourn now.	We will

adjourn until 10 o'clock tomorrow morning.

AT 4.30 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 1 SEPTEMBER 1992

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