Winning v The Queen

[1999] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 1998

B e t w e e n -

JOHN WINNING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 9.33 AM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with MR D.J. WARDLE, for the applicant.  (instructed by Douglas Wardle)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear with MR K.G. LESSES, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

MS POWELL:   Your Honours, the applicant was convicted after trial by judge alone of three counts of indecent assault and five counts of incest upon his daughter who was 36 years of age at the time of the trial.  The trial judge found no case to answer with respect to one count of indecent assault and, on appeal, the majority quashed two further counts of incest.

There are some platform matters that we would like to refer to before moving to the point that we complain about.  The complainant was an adult of 22 years at the time alleged in the first count.  No complaint was made by her until 11 years after the first offending charge and some six years after the last charged incident.  No reason was given by her as to why she failed to complain or report the matter to police any earlier than she did.  There was no corroboration of her story.

There were admitted inconsistencies with what she said in evidence and what she told the police and those inconsistencies are set out in the dissenting judgment at page 60 and 61 of the application book.  There were inconsistencies between her evidence and the evidence of other witnesses as to objective surrounding facts and her story, as was said by the trial judge, was bizarre in many respects.  In the dissenting judgment it was described as inherently incredible.  Finally, there was evidence of a continuing and good relationship between the applicant and the complainant following the time of the alleged offences, including the fact that she left the applicant to baby-sit her own child on several occasions.

Now, that combination of factors is not new to this Court.  Many of those factors were matters which were dealt with by this Court in cases where convictions have been found to be unsafe and unsatisfactory such as Jones v The Queen.  But what we submit is that those seven factors provide the platform for the consideration of the way in which the majority in the court below approached the question of credibility assessment in this case.  What the majority did, we say, was to juxtaposition the problems associated with cases like this where, of course, the approach is well established with one part of the test of, as set out in M v The Queen, and the part of the test that we talk about is particularly that the Court must pay full regard to the consideration that the trial judge has had the benefit of seeing and hearing the witnesses and therein, we submit ‑ ‑ ‑

GLEESON CJ:   These matters that you raise, Ms Powell, are substantial issues of fact ‑ ‑ ‑

MS POWELL:   Yes.

GLEESON CJ:    ‑ ‑ ‑ that were considered by the trial judge and by the Court of Criminal Appeal, but what is the point of principle that you say should arise for this Court’s consideration?

MS POWELL:   The point of principle that we say is this:  where a trial judge in his reasons, in his judgment, is shown to have been wrong in his assessment of credibility - and by that I mean in the process which he adopted for assessing credibility - then no longer can the Court of Appeal simply apply the principle in M v The Queen, and particularly that part of the principle which requires full weight to be given to the fact that he has had the advantage of seeing and hearing the witnesses at trial.  Put another way, why should the trial judge be given the full allowance for the advantages enjoyed by the jury – to use the words of this Court in M v The Queen – or his advantage in this respect be fully recognised, as was said by the majority in the court below, or full regard to be paid to that consideration when he misused that advantage and he was found to have, in fact, been in error in that respect?

GLEESON CJ:   Did anything more happen in this case in that respect than that the Court of Criminal Appeal, in considering the whole of the factual reasoning of the trial judge, disagreed with one aspect of his factual reasoning?

MS POWELL:   No.  We say it went further than merely one aspect of his factual reasoning.  Rather, we say, he was found to have erred in the approach which he took to credibility assessment.  Now, once that error is identified, then there can be no assumption that, in fact, he is to have the advantage which would ordinarily apply to the trier of fact, namely that is the benefit of seeing and hearing the witnesses.  At least it has to be a qualified advantage.  At worst, if it is a misuse of the advantage, it is no advantage at all, and we say that ‑ ‑ ‑

GLEESON CJ:   But all that happened in this case was, was it not, that they disagreed with the observation that the judge made about the credibility of some of the defence witnesses in relation to the inference that they had been shown a copy of the accused’s statement?  That is the point, is it not?

MS POWELL:   Can I perhaps move to what we say was identified by the majority and which we say should have led to some qualification of the test in M v The Queen.  Firstly, as your Honour the Chief Justice has said, the learned trial judge was found to have been wrong in the way in which he dealt with defence witnesses, and we ‑ ‑ ‑

GLEESON CJ:   What page is this, page?

McHUGH J:   Page 37, is it?

MS POWELL:   That is at 37, thank you, your Honour.

GLEESON CJ:   Thank you.

MS POWELL:   He characterised their evidence, first of all, as peripheral; and in that respect we say he was wrong and that was a wrong characterisation.  In a trial for offences which are of such a long time ago, then obviously the only way in which an accused person can challenge the assertions – and when, of course, there is no corroboration – is by reference to surrounding circumstances, where the ‑ ‑ ‑

GLEESON CJ:   But it all turns, does it not, upon the last sentence on page 37?

MS POWELL:   We say it does not turn on the last sentence on page 37 because although the majority say that:

it does not seem this was a crucial step in the trial judge’s assessment of these witnesses –

in fact, if I can take you back to the trial judge’s findings with respect to that which appear on page – excuse me, your Honours.

McHUGH J:   Are you talking about the findings about credibility?

MS POWELL:   Yes, and that starts at the bottom of page 7.

McHUGH J:   They are set out at page 30.

MS POWELL:   Where he says, “Their evidence mainly related to peripheral issues”, and then he outlines what he describes as “peripheral issues”.  There is only one peripheral issue which he makes a specific finding with respect to, or what he calls peripheral issues, and that is the Canesten cream.  That incident was not the subject of a charge.  He makes no findings with respect to the other ones and, of course, he has not identified all of them, and he says as much.  He says:

It is not necessary for me to identify each of the peripheral issues and indicate my specific finding –

They:

all left me with the impression –

et cetera, and went on to say why he considers that their evidence was tainted and “their objectivity was tarnished” and finds that they ‑ ‑ ‑

McHUGH J:   This was a case depending on credibility, was it not, and the trial judge took the view that the complainant was not a sophisticated young woman, that she had grown up as a somewhat naïve country girl, and he concluded that she gullible and that she was an honest witness; and on the other hand, he was not impressed by the accused, he did not accept he was a witness of truth.

MS POWELL:   And all of that was based upon his assessment of the witnesses in the box.

McHUGH J:   Yes.

MS POWELL:   We say that clearly – to start with, if I can return to what your Honour the Chief Justice says, the majority said that his assessment of the evidence of the defence witnesses was based on other relevant considerations.  There are no other considerations referred to, apart from assessment of credit on demeanour.  Apart from that error, the second error that his Honour ‑ ‑ ‑

McHUGH J:   No, what the Full Court said was that his general view of the reliability of the complainant’s evidence was based on other relevant considerations.

MS POWELL:   No, the bottom of page 37:

in contrast to his assessment of the evidence of the defence witnesses –

I am sorry, your Honour, I understand what you are saying.  In that case the majority identified no reason for rejection of the defence witnesses, apart from this question of tarnishing.

The other matter which we point to is the fact that the learned trial judge found no case to answer with respect to one of the counts.  Now, the circumstances of the finding of no case are set out in the majority judgment on page 31 of the application book.  Put simply, the complainant said that counts 4, 5 and 6 occurred when she was living in a caravan on her employer’s farm from February 1984 and she was required to do so because she was employed as a supervisor.  Now the defence called the payroll administrator of her employer who said she was not employed in that period.  Her employment finished on 6 February 1984.  She was not required to live on the property and she had never been employed as a supervisor.  I am sorry, I was wrong about that, it was the Crown who called the payroll administrator first.  As your Honours will see from page 32, second paragraph of the application book, the trial judge was invited:

to find that there was no case to answer in relation to counts 4, 5 and 6.

In fact, clearly if she had left the caravan in early February, the offences alleged in counts 4 and 5 could not have taken place in about February 1984 any more than the offence in count 6 could have taken place at that time.  His Honour found no case with respect to count 6, but then went on to convict with respect to counts 4 and 5; and, indeed, the majority eventually concluded, at the bottom of page 33, that those counts could stand neither in the face of that contradictory evidence.  What we submit is ‑ ‑ ‑

McHUGH J:   But the Full Court’s view was that your client was rather lucky to get the “no case” submission upheld.

MS POWELL:   To contrary, your Honour.  We say that the trial judge in the majority - there is only one finding open from that contradictory evidence within the Crown case and that was that her evidence on the topic was wrong, contradicted not only as to dates but as to the reason why she said that she was living in the circumstances she was living and should have been considered for that purpose for an assessment of credibility and reliability against her rather than simply brushed under the rug, if you like. 

In addition to that, the trial judge confused the facts of count 4 and count 6 on ‑ ‑ ‑

McHUGH J:   But the trial judge recognised there were inconsistencies.  He said in his assessment of it:

There were some inconsistencies.  She was mistaken in some respects, her memory was defective in others and she exaggerated a little at times –

he said –

But, at the end of the day, her credibility was intact.

MS POWELL:   Your Honour, there is a distinction.  He did not refer to the issue, he only referred to the employer evidence with respect to timing.  He completely overlooked the fact that she was contradicted as to the reason why she was there and the fact that she was proved to have been inaccurate about that.  The employer was called by the Crown.  In other words, within its own case, it called contradictory evidence as to what she had said. 

The final matter is, of course, that the trial judge confused the facts of the counts.  Despite the finding of no case to answer on count 6, he founded the conviction on count 4 on the facts of count 6 and we say, at the very least, that should have indicated to the Court of Appeal an inappropriate grasp of the evidence which must, in turn, impinge upon the presumption in favour of the primary advantage of seeing and hearing the witnesses.  In the majority judgment, full weight - not discounted weight, but full weight was given to that advantage.

Having identified the correct test for determining whether a verdict is unsafe or unsatisfactory, it is our submission that the majority failed to qualify that test in a trial by judge alone where the reasoning of the judge as to matters of credibility is explicit and capable of analysis and found to be erroneous.  We say that once that advantage is diminished or qualified, it is no longer appropriate to make full allowance for it.  Indeed, we submit that the majority judgment relied entirely upon the trial judge’s assessment of credibility.  They regarded it as crucial, as your Honour Justice McHugh has identified, and they said so at page 37, line 23.

We say that although the majority said that it was required to make its own assessment, nowhere in the judgment were those issues of contradicted evidence, inherent unlikelihood, delay in complaint, inconsistency within the complainant’s evidence, inconsistency with respect to other witnesses as to fact who were simply just completely discounted, lack of opportunity, as was deposed to by defence witnesses, and contradiction with respect to surrounding circumstances, and inconsistencies in what the complainant told the police as against her evidence, and behaviour inconsistent with allegations of offending such as her conduct subsequently.  We submit that the proper analysis, that is, the discounted advantage, was given by the dissenting judgment.  We say that proper analysis was undertaken in his judgment and we say that M v The Queen, with that full advantage recognised within the test, cannot be said to apply to trial by judge alone where there is explicit erroneous methodology of credit assessment.  If the Court pleases.

GLEESON CJ:   Thank you, Ms Powell.  We do not need to hear you, Mr Millsteed.

The case turned on the application of well-settled principles to the particular facts and circumstances.  The main criticism made of the reasoning of the majority in the Court of Criminal Appeal was directed to a factual assessment as to the significance of one particular aspect of the evidence and to the trial judge’s reasoning about that matter.  The view taken by the majority as to that matter was one that was reasonably open to them.  The case raises no issue that warrants the grant of special leave to appeal and the application is dismissed.

AT 9.54 AM THE MATTER WAS CONCLUDED