Lipsett v The Queen B50/1996 [1997] HCATrans 208 (26 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B50 of 1996

B e t w e e n -

RAYMOND JOHN LIPSETT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 26 JUNE 1997, AT 11.55 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD QC: I appear for the applicant. (instructed by R.F.G. Finlayson and Associates)

MR M.J. BYRNE QC: If the Court pleases, I appear with my learned colleague, MRS L.J. CLARE, for the respondent. (instructed by R.N Miller, QC, Director of Public Prosecution)

BRENNAN CJ: Yes, Mr Greenwood.

MR GREENWOOD: May it please the Court, if the application for special leave is to succeed we concede that, in the language of Sir Anthony Mason in Morris v The Queen, we must accommodate a position. He, the then Chief Justice, put it this way, in the course of his judgment:

Accordingly, if all that the applicant asks us to do in the present case is to re-exercise the function of the Court of Criminal Appeal in reviewing the verdict of guilty, I would not grant special leave to appeal on this ground simply because it involves no more than a question of fact. However, it seems to me that there is another important question at stake. That is the question whether the Court of Criminal Appeal performed its duty to make an independent assessment of the evidence as required by Chamberlain.

We have to submit to the Court that that was not done in the instant case and we seek to turn immediately to the - by way of additional comment over and above that which has been filed in writing, we ask the Court to turn to the judgment of the Court of Criminal Appeal, which appears at page 38 of the application book. It is, in very short compass, of some three pages and a little bit.

TOOHEY J: Mr Greenwood, I am not entirely clear as to the way in which this argument is being put. I mean, the grounds of appeal in the draft notice of course focus on the verdict being "unsafe and unsatisfactory", and ground 2 by reason of the uncorroborated nature of the complainant's evidence. Are you now saying that in effect the Court of Appeal made no independent examination of the evidence?

MR GREENWOOD: Yes, your Honour.

TOOHEY J: Thank you.

MR GREENWOOD: We say that that is self-evidently the case and that is why we begin by asking the Court to go to the judgment.

BRENNAN CJ: The applicant's written summary of argument conceals this ground fairly successfully.

MR GREENWOOD: Your Honours, there had been an independent assessment - - -

BRENNAN CJ: But your argument, as I understand it, is about the admissibility of the evidence of complaint.

MR GREENWOOD: Yes, your Honour, in substance, but if the - what I am doing - and perhaps I am going too far too soon - I am anticipating is an argument: "But, look, the Court of Criminal Appeal have already considered your unsafe and unsatisfactory ground" and reject my application on that basis. In order to meet that I sought to grasp what I can perceive to be my most difficult nettle hurdle.

BRENNAN CJ: Yes, all right.

MR GREENWOOD: The judgment merely, at page 39 of the application book, speaks of the evidence and inconsistencies without dealing with them, without even enumerating them, and dismisses them as going to no more than one would expect from an honest person recollecting events, et cetera. So we say there is nothing on the face of the judgment which shows an independent review of the material. The judgment deals with, at page 40:

Other matters relied upon by the appellant were that the complainant's evidence was uncorroborated, that the evidence of fresh complaints in respect of the rape came only from the complainant and that there was opportunity to complain to her mother on numerous occasions, and indeed to others, and that was not done.

That is highlighted but, again, no where do we find that there is a true review. We say that the second matter which the judgment is susceptible to is in so far as the language at the conclusion, beginning at the bottom of page 40 of the application book and on to page 41, gives rise to a proposition that what the Court of Criminal Appeal was saying is that:

Neither the absence of corroboration nor the fact that the only evidence of recent complaint came from the complainant in the circumstances of this case in our opinion gave any cause for thinking that the verdict was unsafe.

Finally, in the last paragraph:

In summary, neither separately nor taken together were the above matters sufficient to enable this Court to say -

not so much the second, but the language that the matters of recent complaint and corroboration did not give any cause for thinking that the verdict was unsafe, in our respectful submission, seems to be a basic error of principle.

KIRBY J: But they tie it into the facts or the circumstances of this particular case, they do not appear to be stating some absolute proposition.

MR GREENWOOD: There are two ways of looking at it.

KIRBY J: Do you suggest that there is an absolute rule that the person to whom the complaint was made has to be called by the Crown?

MR GREENWOOD: No. Has to be called by the Crown?

KIRBY J: Yes. That would be contrary to the authority of the courts of Queensland, as I understand it, and elsewhere.

MR GREENWOOD: If we can take it step by step. That would not, with respect, be contrary to Duell, because in Duell's Case the recipient of the complaint was in fact called. She was the elderly grandmother of the complainant girl and she did not in fact say that the complainant girl did not complain to her. The circumstances were such that she said that the little girl came up to her and she told her to keep quiet and keep running, or words to that effect. She could not recall - and it was fairly clear that she was elderly and it was a very emotional and factual situation - could not recall specific - - -

KIRBY J: Looking at this matter forensically, the complaint was alleged to have been made to your client's daughter, is that correct?

MR GREENWOOD: That is correct.

KIRBY J: I could understand a jury perhaps considering that if the complaint is made and if you do not call the daughter in your case - although there is no obligation on you to do that - the jury might draw an inference.

MR GREENWOOD: They were not in any way assisted in either drawing an inference or not drawing an inference by any directions from his Honour.

KIRBY J: But you did not seek any redirection at the trial and, as I understand it, did not complain about the directions of the Court of Appeal.

MR GREENWOOD: I am not saying we did, your Honour; I cannot say that we did. There was no evidence, of course, beyond a mere relationship, and just as there are loving daughters, there are unloving daughters. It was not open to the inference that she was not called for any such reasons as to be reluctant to put her father in, as it were.

BRENNAN CJ: Mr Greenwood, your argument is that the Court of Criminal Appeal did not perform its function of reviewing the evidence, is that right?

MR GREENWOOD: Yes, your Honour.

BRENNAN CJ: And that is to be gleaned from the reasons stated by the Court of Criminal Appeal?

MR GREENWOOD: Yes.

BRENNAN CJ: Is there anything that you can add to that?

MR GREENWOOD: To that specific proposition?

BRENNAN CJ: Yes.

MR GREENWOOD: From a reading of the summing up, no, your Honour. From the reading of the judgment, no. We say it is plain, on the face of the judgment, that no such review was made.

BRENNAN CJ: If the Court is against you on that, is that the end of the case?

MR GREENWOOD: We would say that we could not succeed on special leave without that, yes.

BRENNAN CJ: I must say, speaking for myself, it seems to me that the Court did give consideration to the various factors to which you are now drawing our attention: the fact that the complainant's evidence was uncorroborated; they looked at the circumstances; they saw the differential versions that had been given; what more was the court to do?

MR GREENWOOD: Your Honour, we say that the court certainly did not address the question of the inconsistencies in the testimony, except - - -

BRENNAN CJ: They did, but they did not set out it out; they said the inconsistencies themselves were no more than one would expect.

MR GREENWOOD: Yes, your Honour, but if they do not set them out, then we take the point that no one can say that they addressed them.

BRENNAN CJ: I see.

MR GREENWOOD: If the duty is well founded - as we say it obviously is for the Court to carry out the exercise - then it must, we respectfully suggest, be manifest on the face of the judgment. That is what a judgment is for: so that an appellate court, this Court, can look at the judgment - that is all it can do - in order to satisfy itself that the court below has done its duty. We say that in setting out this very shorthand form of review this Court is not in a position to be able to be satisfied that the court below did do its duty in accordance with Chamberlain, et cetera.

KIRBY J: How could one lay that down as a general rule? That would be a proposition of duty. A formula would be duty equals x pages. That cannot be correct. It would not be a good proposition or a right proposition for this Court to lay down. What we have to do is to look at the reasons and to see whether or not the Court has addressed itself to the issues that were raised. Though it is done very briefly here, in three and a half pages, the issues all appear to have been mentioned. This seems, on the face of things, to have been a hard verdict, so far as your client is concerned - - -

MR GREENWOOD: A what, I am sorry?

KIRBY J: A hard verdict, because no complaints were made at the time to the mother or to other people. But the matter went to the jury. There is no complaint about the directions said to be unsafe; the Court of Appeal looked at the issues; it does not raise any new issue of principle. This is not, as has been repeatedly said, a super Court of Criminal Appeal.

MR GREENWOOD: Yes. I have to come back to the proposition that, because the proper examination is not manifest on the face of the judgment then it cannot be safely assumed to have happened. That is the point and the only point, your Honours.

BRENNAN CJ: Thank you, Mr Greenwood. We need not trouble you, Mr Byrne.

No error of principle appears in the judgment of the Court of Appeal. Accordingly, the case does not warrant a grant of special leave to appeal. Special leave is refused.

AT 12.09 PM THE MATTER WAS CONCLUDED