Suresh v The Queen P39/1997 [1997] HCATrans 369 (13 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P39 of 1997

B e t w e e n -

KUNNAKATIL JOHN SURESH

Appellant

and

THE QUEEN

Respondent

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 NOVEMBER 1997, AT 10.17 AM

Copyright in the High Court of Australia

MR J. COURTIS: If your Honours please, I appear for the appellant. (instructed by Wojtowicz Kelly)

MR J.R. McKECHNIE, QC: With my learned friend, MR J. MACTAGGART, I represent the Crown. (instructed by the Director of Public Prosecutions (Western Australia))

MR COURTIS: If your Honours please, this is an appeal that comes from the Court of Criminal Appeal in Western Australia after a finding by that court that evidence of recent complaint that had been led in evidence at the trial had been wrongly admitted, but, notwithstanding that it had been wrongly admitted the court, nevertheless, applied the proviso in section 689 of the Criminal Code.

Your Honours, the short point is that approximately eight months after the last of the offences alleged on the indictment, the complainant, a little girl, told two of her friends at school that an uncle had sexually abused her in a variety of ways. The evidence on the statements that were given to defence counsel was to that effect; that an uncle - that is, not the accused named expressly, but an uncle had committed these offences.

Your Honours, may I begin with a concession, and that is that the question of this evidence was raised by counsel for the accused prior to the trial commencing, and there was a pre-trial discussion by way of an application by defence counsel under section 36BC of the Evidence Act, namely for leave to cross-examine on the prior sexual history of the complainant, with particular reference to cross-examining her on the basis that some other man had committed these offences on her, rather than the accused. That appears in the appeal book, volume one, from about page 45 on to page 50.

Your Honours, at page 45, the question of whether this was recent complaint was actually raised. If I can, perhaps, take your Honours to the - well, I will start from the top, where Mr Illara, counsel for the accused, says:

Your Honour, I do have some matters -

and then raises the issue. And then he goes on, in the second paragraph:

In cross-examining the complainant I wish to examine the identify of the uncle. I am conscious of the fact that that may impinge upon section 36BC of the Evidence Act and it may require your Honour's ruling.

and then he goes on and discusses the matter. And then, further down the page, your Honours, next to line 25, the trial judge asks the question:

How is it otherwise admissible?

And counsel says that:

That the statements are admissible, do you mean?

The judge:

How would the evidence of these children be admissible?

And these are the children to whom the complaint was made, your Honours, and the answer was:

I believe my friend is leading it by way of recent complaint.

So, I start off by conceding two things, in fact.

GUMMOW J: Just slow down a minute. What page are you reading from, in appeal book page numbers?

MR COURTIS: I am sorry, your Honour, page 45. They are the stamp numbers, your Honour. I realise there is confusion. They are the stamped numbers on the top right-hand corner of the pages, and the page I am referring to has a typed page number 36 but, immediately under, is the stamped page number - - -

GUMMOW J: Yes, thank you.

MR COURTIS: Thank you. At the bottom of that page, counsel for the accused says:

I believe my friend is leading it by way of recent complaint.

So, the issue of recent complaint was raised before the learned trial judge at the very commencement, before the evidence was called, or, indeed, any evidence was called, and it was raised in the context of an application under section 36BC; that is, to cross-examine the complainant as to prior sexual experience.

So, the concession I make is that the evidence when it was led was led without objection by counsel and, indeed, I have to concede it was obviously led on the basis that counsel for the accused thought there was a forensic advantage for his client. So, it may well be accepted that counsel for the accused made a considered tactical decision to have the evidence go in, although a question of recent complaint was obviously in the air.

GAUDRON J: Well, the trial judge seems to be wondering whether it is admissible.

MR COURTIS: In any event, yes, that is right, your Honour. I am mindful of authorities that go to the proposition that where counsel for the accused makes a considered tactical decision that the trial judge ought not to lightly deal with that in another way. But I will come to that, if I may, in due course. I start on this basis because I just want to start on the correct factual and legal basis and this is the background of how the evidence came in.

KIRBY J: Is there any other indication that the trial counsel was aware of the principles relating to the recency of the complaint, the need for it to be recent?

MR COURTIS: Not that I can find, your Honour. The cross-examination indicates that he is, shall I say, aware that there is an issue about the time. But you see the problem is he focuses on the question of whether this is the uncle, or I should say whether the uncle is Suresh, the accused, or whether it is another uncle, whether it is Uncle Norman or Uncle Michael, both names appear in the cross-examination, but it is never taken beyond that.

KIRBY J: I asked the question because when the judge raised the matter, obviously he was a little anxious about it, the answer to the question was also another question. It did not seem to indicate that they were ad idem about the problem that maybe the judge was signalling.

MR COURTIS: Is your Honour referring over the page at 46?

KIRBY J: No, 45 at 25.

MR COURTIS: Yes.

How would the evidence of these children be admissible?

The answer was:

I believe my friend is leading it by way of recent complaint.

KIRBY J: How is it otherwise admissible? Statements are admissible, do you mean?

MR COURTIS: Yes.

KIRBY J: You seem to, sort of not be contemplating that they might be inadmissible.

MR COURTIS: It was not raised at that part of the pre-trial discussion as to the length of time between the complaint and the last account on the indictment.

KIRBY J: There may be no significance in it. It is just that I had not read that passage of the transcript before.

MR COURTIS: Yes, but in any event it did come out in evidence in cross-examination. There was roughly an eight month period between the last count and the indictment and the complaint itself. So if I can therefore begin on that basis, your Honours, that this, with respect, puts the matter in the proper context. Now the accused was convicted of nine counts of sexual offences against the complainant and particulars of that are in the appeal book at pages 31 to 33, and I am now referring to my written submissions, your Honours, and I will briefly summarise those at paragraph 2 of my submissions as to 23 December, one sexual penetration and two indecent assaults; 25 December 1990, one indecent assault and then on a date unknown between January and March 1992 one indecent assault and on another date unknown, one indecent dealing, one indecent assault, and then 28 March, one sexual penetration and one indecent dealing.

The short summary of the situation is that the appellant and his family arrived from India as migrants on 21 December 1990 and the next day they commenced their stay at the Beechboro house which is the complainant's family's house. They were given a bedroom in the house and on the Crown case, of course, a number of offences occurred almost immediately, that is, within two or three days. Then, on the Crown case, further offences occurred over a period of months. Of course, it is also part of the Crown case that the offences alleged on the indictment were representative of similar acts continuing until October 1992, and that is significant because the complaint of recent complaint was made in October 1992 and there was some discussion as to whether the complaint was about an offence allegedly occurring close to October 1992 or whether the complaint was in relation to the offences on the indictment.

Now, the issue for the accused, your Honours, or the appellant, I should say, is the application of the proviso because the Court of Criminal Appeal by a majority - - -

HAYNE J: Why is that the issue? Why is not the issue whether the accused should be bound by the conduct of his counsel below when it is conduct consciously undertaken to obtain forensic advantage? It is not suggested, as I understand it, that this is one of those rare cases of incompetent counsel. Counsel have made a conscious decision. Why do we ever get to the proviso?

MR COURTIS: Because, your Honour, it is my submission that although there is great force in what your Honour says, nevertheless, the ultimate question for this Court is to as whether there has been a miscarriage of justice.

GAUDRON J: Which means whether there was a chance of acquittal that was fairly open, but do you not run this risk: when you take a conscious decision to run a case in a particular way, that may have the consequence that there was not a chance of acquittal that was fairly open?

MR COURTIS: With respect, my answer to that is - and I am fortified by this - that the Court of Criminal Appeal by majority decided that the evidence was wrongly admitted. Now, in applying the proviso they did not expressly say that they applied it because defence counsel had taken this particular course.

McHUGH J: But are you not concentrating on the wrong issue from your client's point of view? Even if this evidence had been rejected as recent complaint, counsel appearing for your client would have wanted to lead it on the credibility issue. What you should be complaining about, it seems to me, is the direction as to how the jury was to make use of the evidence about what she said. If, for example, it had been rejected as evidence of complaint but admitted in cross-examination on a credibility issue, you would have been entitled to a direction that it could only be used for the purposes of credibility and not for the purposes of consistency. So is that not your real issue and, if you approach it in that way, it may be that counsel's failure to object does not wear the same damaging complexion from your point of view as it might otherwise? I just put that to you for your - - -

MR COURTIS: Your Honour, might I, with great gratitude, adopt your Honour's point and I am mindful that it is not, of course, on the grounds of appeal, but to be fair I had not considered that, I do admit that. But it is a fair point and in the interests, I suppose, of my client and in the interests of justice, I respectfully adopt that if I may.

KIRBY J: That will require an amendment to the grounds of appeal.

MR COURTIS: Yes, it will.

HAYNE J: Speaking only for myself, I will require persuasion of why you should now be permitted to raise it when it is a point that it was not taken at the trial, not taken on appeal and is now sought to be raised now.

MR COURTIS: Again, your Honour, I acknowledge the force of your Honour's comment, and I can only say, I suppose, to use the time worn old adage about the interests of justice and whether a miscarriage has occurred. It is a matter of your Honours, of course, at the end of the day to decide whether in all the circumstances a miscarriage did occur and if it did, is it of a kind that would overcome all of the procedural steps that were taken or not taken by every counsel from the start to the finish. I do not think I can take that point any further, your Honour. Of course, we have formally appealed in relation to the exercise of the proviso because that is the way in which the Court of Criminal Appeal - - -

KIRBY J: The point that Justice McHugh was making was that there was a step anterior and either you are going to seek leave of the Court to amend the notice of appeal or you are not. If you are - - -

MR COURTIS: I do. I seek to - - -

KIRBY J: - - - you will have to seek to add a ground that the trial judge misdirected or failed adequately to direct the jury in relation to the use that they might make of the evidence of the complainant as to her complaint. I have not looked at the matter from this point of view because of the fact that it was raised, as Justice Hayne pointed out, at the trial, the appeal, or the special leave application.

MR COURTIS: Yes, again, I acknowledge the force of that point, your Honour.

KIRBY J: But you will have to get the record in order or you will have to seek to get the record in order if you are going to embrace the point that is raised.

MR COURTIS: Yes, well I formally seek leave and I will have to - - -

McHUGH J: You had better make sure that that point was taken. The judge did give a standard complaint direction. I have a vague recollection of reading that.

MR McKECHNIE: It is pages 492 to 493, your Honour.

MR COURTIS: I am greatly indebted to my learned friend, your Honours. If my learned friend is referring to the bottom of page 492 at about 25, the trial judge says this to the jury:

This may be of some particular significance and you will need to deal with this, I would have thought, with some care; and you do need to do that because it surrounds and concerns this issue of complaint - and I should tell you something specifically about that. In the first place, ordinarily one would not be permitted to led in evidence before a court the fact that a witness not only says now that such things happened and that there was an offence committed against that witness, but that the witness has said that the offence was committed at other occasions before coming to the court to give the evidence. The relevant thing is simply the evidence given. Did the thing occur or not occur and what do you think about the witness telling you that?

It wouldn't help to make your judgment about that that you know that the witness has been telling the same story for months; particularly is that so in relation to what we call self-serving material; in other words, material which is favourable to the position of that witness, not against that witness's interest in the case.

And then His Honour goes on to explain in effect about evidence of recent complaint:

But in cases where the offences are of this character an exception is made to that general rule, which allows the giving of evidence by the complainant and by persons to whom she has spoken, which is designed to demonstrate that she has acted consistently throughout. It is because human experience suggests that very often it is the case that where a complainant has been offended against by the commission of a sexual offence, then that person will make a complaint and will bring it to the notice of others.

Of course, it may not be the case, and here it is said that although the complaint was made shortly after the last of some incident of this character, it wasn't made until November of 1992 and, therefore, there would have been regarded as being some delay, not only from the last of the offences which are charged in the indictment but, certainly, earlier offences.

So it is proper that you should consider also that there was delay in the complaint; but, of course, be careful with that, particularly, I would have thought, when one is dealing with a young child as a victim. There may be many good reasons, of course, why a person should delay in making a complaint or not seek to make a complaint at all. In this case the child's evidence was quite clear that, in fact, there seems to have been no conscious decision upon her part to make a complaint at any time; it just came out.

It seems perfectly natural that such a thing might occur if one was feeling down and one was a 9-year-old girl talking to one's best friend. But it is a matter entirely for you to make a judgment about how you think the delay in complaint and the fact of complaint itself bears either positively or negatively upon you assessment of the credibility, and your capacity to believe the child's evidence as to what occurred.

Perhaps for completeness, your Honours:

You should understand that the fact of complaint and what she says by way of complaint is not itself evidence of the facts because it is coming from her and because it adds nothing to the account she gives in the witness box. Its purpose is to relate to her credibility and to see how she has behaved after the incidents because that may assist one way or the other to help you to make a judgment about whether you can believe her story and whether you place reliance upon her evidence as a witness of truth.

Then, of course, you know what she said - a very brief account given to both of the children. That is to Katie Harvey and Jodie Platon, and I think there was some reference to a boy called Lyndon Charlesworth at some time being there to hear the complaint. Of course, there is another significance which is placed upon this material which has been discussed with you at some length from the bar table and it is proper for you to consider, but you need to approach it with considerable care, and that is the reference to the uncle - to "my uncle" - as being the person who had committed the offences when the complaint was made.

I don't want to discuss with you at all the evidence about whether there was a term which might or might not have been used by the child when speaking of or thinking about Mr Suresh. You will make your own judgments about that as to the use of the term and upon a very considerable body of evidence about its significance and the way in which it may be used in the circumstances of this case, but the suggestion which is put by way of cross-examination of the child and her mother would seem to give to the circumstances of the complaint some different significance and it is suggested that it may raise doubt in your mind that the child was a genuine and truthful witness.

It is done effectively by attributing the commission of offences to a person who was really her uncle and to suggest that that is open and something which would therefore raise very considerable doubt as to whether the perpetrator of the offences was the accused - something that needs to be approached with great care. It is a very serious thing to do and I invite your careful consideration to it.

GAUDRON J: That seems a perfectly proper direction in the circumstances, does it not?

MR COURTIS: I would have to concede that, your Honour.

GAUDRON J: So you do not maintain your application.

MR COURTIS: No. Thank you. Which means, of course, I am left with the ground that was brought, or has been brought, and that if I can proceed with that - - -

KIRBY J: Is the answer to the question that Justice Hayne raised, namely, whether you should be locked into how counsel has conducted the case, that the Parliament has enacted a provision that addresses the attention of the appellate court to the miscarriage of justice, that that involves the possibility that can occur in some case, even cases short of incompetent counsel, that by reason of a strategy that was adopted, a miscarriage of justice has occurred.

MR COURTIS: Yes.

KIRBY J: But it is no one's particular fault, but that at the end of the day the objective question is "Has there been an injustice?", rather than, "Has this game been played according to the rules?", and should you be fixed with the rules. Is there authority on that point? Because it must have happened many times that people have been hanged because of a strategic decision of their counsel, and then they climb up to courts of criminal appeal, and they have said, "That is the decision. You are fixed with it. That is the rules of the game".

MR COURTIS: Well, my learned friend has very kindly referred to some decisions which I will refer to. The matter of Jukov, your Honours - it is on the respondent's list of authorities and, at page 361 of that decision - - -

KIRBY J: Where is that reported?

MR COURTIS: Jukov (1994) 76 A Crim R 353. I am looking at page 361 and, about the middle of the page 361, the court is citing, with approval, the case of Sarek (1982) VR, and the quote is this:

Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial. In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself. Nevertheless the fundamental question must always be whether the conviction involves or has brought about a miscarriage of justice -

GAUDRON J: But does not that really come back to the question I asked, whether, in the light of the strategy taken, or the deliberate decision, it can be said that the accused was deprived of a chance of acquittal that was fairly open?

MR COURTIS: Yes. If I can say yes to that, and for this reason; that the Court of Criminal Appeal itself, in handing down its reasons for decision, made the point that evidence of recent complaint is exceptional. It is an exception against the rule against hearsay. It is prejudicial. It is not led for the purpose of asserting the truth of the evidence itself but, rather, to prove or to demonstrate consistency of conduct; that is, a person who has been sexually abused in some way will, in terms of normal human behaviour, complain, or usually complain to someone else about it. So, it is led in to buttress credibility.

So, the purpose of recent complaint evidence is to buttress the credibility of the complainant as an exception to the rule against hearsay. Now, that, with respect, is the simple point of our appeal. We say that the Court of Criminal Appeal, having found that it was wrongly admitted, it must follow logically that it was prejudicial without being probative.

McHUGH J: No. But your client was going to cross-examine and get this material out anyway.

HAYNE J: Why is it wrongly admitted if there is no objection? Is it a matter for objection, or is it a matter for the court to take?

MR COURTIS: I have to concede, not only was there no objection, in fact, I think it goes - it is worse than that, from our point of view. I think it is quite clear, from the transcript, counsel at the trial positively wanted to cross-examine on it. Again, I keep emphasising, I acknowledge the force of the comment your Honours are making, but my answer to that, for better or for worse, is that the Court of Criminal Appeal, having found that it was wrongly admitted - it is our submission we go past the question of whether counsel should have objected, or should not have objected. We have gone past that. That is my fundamental argument in this appeal.

McHUGH J: But the problem is, from your point view, that he wanted permission under 36BC to cross-examine on this. So, even if the Crown had not attempted to lead it, the matter would have got before the jury. Now, what I suggested to you earlier - perhaps I did not make myself clear - is that once the evidence got in, it could be used in your favour on the question of identity of the uncle, but it could not be used to bolster the Crown case to show consistency of conduct. The passage at 492 through to 495 has the two way effect; the Crown get the benefit of it, but the judge also puts the use you seek to make of it. But the evidence is going to get in one way or the other. You wanted it in.

MR COURTIS: Yes.

McHUGH J: Even if the Crown had not led it, it was going to be admitted. So it seems to me your only complaint can conceivably be that the Crown was allowed to use it to bolster the consistency of the complainant's evidence and that is the only legal issue that is left having regard to the way you wanted to conduct the case.

MR COURTIS: Yes.

McHUGH J: Well, that is not much of a point, is it?

HAYNE J: While on the subject of decisions of counsel, you have taken us to Sarek. Reference might also be made to Birks 19 NSWLR 677 in the New South Wales Court of Appeal where Chief Justice Gleeson examines the effect of conscious decisions of counsel; in the Court of Appeal in Victoria to Miletic (1997) 1 VR 593 and to the cases that are cited throughout Birks and Miletic.

MR COURTIS: Again, I am left with the same response, if your Honours please, that I acknowledge the force of the point that your Honours make.

KIRBY J: Well, I ask again, because I have learnt from Justice Toohey the importance of the record: are you seeking to raise a ground of appeal that complains that the judge did not give differential instruction to the jury of the limited use upon which the evidence of complaint was to be admitted or not?

MR COURTIS: Yes, your Honour, I do and I will obviously have to draft a ground when I get back to Perth and seek - - -

GAUDRON J: No, you will have to do it now, I am afraid.

MR COURTIS: I see.

GAUDRON J: If you want to seek leave, we cannot attend to it without knowing - - -

GUMMOW J: I thought five minutes ago you said you were not.

MR COURTIS: Well, yes, but I am - - -

GUMMOW J: Well, you had better reach some point of fixity.

MR COURTIS: Yes, your Honour, could I have a few minutes to do that? I do not know that I can usefully or properly do it at the Bar table, as it were.

KIRBY J: Why could you not just sit down and we will sit quietly?

MR COURTIS: I will try that now, your Honours, thank you.

GAUDRON J: We will allow you 10 minutes. The Court will adjourn.

AT 10.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.59 AM:

GAUDRON J: Yes, thank you, Mr Courtis.

MR COURTIS: Thank you, your Honour.

GAUDRON J: Could we have your application read to us now?

MR COURTIS: Yes, thank you, your Honour. I am grateful for your Honours' indulgence. Your Honours, I seek leave - I have handwritten it out in my awful handwriting but I will read it out first - I seek leave to add a ground of appeal as follows: that the trial judge erred in misdirecting the jury as to the use of evidence of recent complaint by failing to direct them to disregard it as evidence of consistency and to use it only as a matter that went to the complainant's credibility. And under the heading "Particulars", (a) at appeal book 493 he directs as to consistency which unfairly bolsters the Crown case in that the evidence was wrongly admitted as to that matter,

(b) at appeal book 494 and 495 he directs as to credibility without limiting the evidence to that matter. At (c) it cannot be said the effect of the error is unimportant - and I will come back in a moment to speak of Zorad's Case on that point - and (d) this Court cannot be satisfied that the appellant has not been deprived of a fair trial.

If your Honours please, that is the ground and if I can then refer your Honours to the case of Zorad - - -

GAUDRON J: Have you finished with the - that is your application, is it?

MR COURTIS: Yes, I am sorry, your Honour.

GAUDRON J: We will hear what Mr McKechnie says on that matter.

MR McKECHNIE: If your Honours please, I cannot understand the ground. The question which - and you will have to forgive me, this has not actually happened to me before in this Court. Normally, one would not wish to stand in the way of an appellant in a Court of Criminal Appeal amending to argue whatever they want. However, this ground, it would seem to us, goes beyond the limited grant of special leave and, as I understand it, would require a grant of special leave by this Court to argue.

GAUDRON J: What do you say to whether - - -

MR McKECHNIE: If that is the case, we would say that there is nothing about this particular ground which would put in a special category, that is to say, there is nothing about it which would affect the general administration of the criminal law nor, in the circumstances of this case, be sufficient to intervene particularly when the point does not appear to have been directly raised in the court below.

GAUDRON J: I wonder whether it does not raise a special matter in this sense, Mr McKechnie: the law thus far has proceeded on much the same basis for child complainants as it has for adult complainants and I wonder if that is correct. I wonder if the proposed ground of appeal does not directly bring that into consideration.

MR McKECHNIE: Your Honour, as your Honour might have seen from our last submissions, were one to be given the opportunity, although I would contend this is not, in fact, the appropriate vehicle, it is probably time for this Court in the appropriate vehicle, at least, to examine the whole question of complaint having regard to children, having regard to the fact that all States now have similar forms of warnings required to be given and having regard to the fact that now, following Queensland this year, in every jurisdiction in the country there is no longer any requirement for corroboration in sexual offences.

The buttressing of fresh complaints might be seen, historically, to relate to an amelioration, as it were, as to the harshness of the corroboration rule. In this country now, with the proliferation of old offences now being reported and the increase of offences against children, it may well be, in some case, an appropriate argument for the point that your Honour has raised with me.

But we would say this case in this particular ground is specific. It does not directly raise it and also your Honours would then be proceeding without the assistance of the analysis of a Court of Appeal below of the problem which is often important. So, we would oppose a grant of special leave to raise this ground.

McHUGH J: But in this case, although technically speaking, a ground of appeal is required, to some extent it is an argumentative ground, is it not, on the proviso, in the same way as yesterday, Mr Redlich sought to rely on Trudgeon's Case.

MR McKECHNIE: Your Honour, if my friend was going to argue it with the assistance of your Honour's lead as to the point, I would be happy to respond to it in relation to the ground, but he is now seeking to actually put it as a ground and that is what I am opposing.

McHUGH J: Yes.

KIRBY J: But one has to weigh the question of an amendment with certain principles in mind. The matter is now before us and the Court has granted special leave, so one has to look at the addition of a ground at a different way than one would if it were coming up as the ground for application for special leave all of its own. Speaking for myself, I have some sympathy for your submission that there is a differential position in relation to children and other complainants, but if that is so, if that is what the Court is ultimately led to say, may it not add emphasis to the need for accuracy in the judge's directions as to the way in which the evidence of complaint, once received, may be used and that is tendered by the added ground of appeal?

MR McKECHNIE: I could not, with respect, disagree with the second part of what your Honour has put to me. As to the first part, however, with great respect, it would have more force if this was an unlimited grant of special leave but at the special leave grant, there were many matters raised and the court refused special leave as another way of putting it, on all of them save this. So, with great respect, that may not carry such force but - - -

KIRBY J: But it as Justice McHugh says, really nearly the shining of a new intelligence upon the matter which is here to be argued and we are looking at the matter in a different light, with a little bit of help from his Honour.

MR McKECHNIE: If that is the case, your Honour, if it is comprehended within the argument as to the proviso, then I am prepared to deal with it as part of that, but the actual applications for an amendment of the ground, it is that which I am opposing.

GAUDRON J: Yes, because the ground of appeal goes beyond the proviso, it does require a determination as to whether or not a direction to that effect should have been given.

MR McKECHNIE: Yes. Well, the way we would seek to argue it, if the ground was in the way that I have outlined, but those would be my submissions in opposing what we would see to be the need for special leave to add the ground, if your Honours please.

GAUDRON J: And you do not claim any particular prejudice though?

MR McKECHNIE: No, your Honour.

GAUDRON J: No. Do you have anything to say in reply?

MR COURTIS: Only one point, your Honour, that in relation to the principle of general application, it is my submission this is a matter of general application important to the whole of Australia because of the frequency of these sorts of offences, the fact little children are involved and all the legal issues that arise from them. It is a matter of general application, therefore, special leave ought to be granted.

GAUDRON J: By majority, Mr Courtis, your application is refused. You may, however, advance it as far as you can in relation to the proviso.

MR COURTIS: Thank you, your Honour. That being the case then, of course, I have to argue it from the direction of the proviso, that being the ground of special leave that was granted. Doing it from that direction, can I refer your Honours to the case of Zorad (1990) 47 A Crim R 211 at page 228, which is on our list of authorities. The short point is it was a drug trial. It had to do with robbery and also supplying cannabis and the question was whether a confession was voluntary, but going directly to the point of the use of the proviso, in this case the New South Wales proviso, at page 227, at the bottom of the page:

As we said at the beginning of this judgment, a number of errors were made by the judge and, whilst many of them (taken individually) led to no miscarriage of justice, the question which arises in the end is whether the cumulative effect of all the errors made has been such as to have denied the appellant a fair trial.

Every accused is entitled to a fair trial, one in which the relevant law has been correctly explained to the jury and in which the rules of procedure and the laws of evidence have been properly followed. If there has been a failure in any such respect, and if the accused may thereby have lost a real chance (or a chance that was fairly open to him) of being acquitted, there has been a miscarriage of justice. Once an appellant has persuaded this Court that there has been an error made at the trial, the onus lies upon the Crown to persuade this Court that there has been no such miscarriage - that an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct directions of law, would inevitably have convicted the appellant.

Your Honours, his Honour then specifically refers to the proviso and says:

The proviso may be applied if the Crown case is undoubtedly a strong one, if the effect of the error is in the circumstances an unimportant one and if this Court is satisfied that overall the appellant has not been deprived of a fair trial.

I will just pause there, your Honours, because there are two related issues with a proviso. This is the first one. There are three elements to the application of the proviso. One, only, is that the Crown case is undoubtedly strong.

GAUDRON J: That is not consonant with the decisions of this Court, is it, that statement? The decisions of this Court are that the proviso cannot be applied if the defendant has been deprived of a chance of acquittal that was fairly open, but it can be applied if he was not deprived of a chance that was fairly open, and that is all there is to it, is it not, according to the decisions of this Court?

MR COURTIS: Yes. Yes, thank you, your Honour, I accept that. So, therefore, the question, I suppose, then crystallises immediately to that question: has this accused been deprived of a fair trial by reason of the evidence of recent complaint having been admitted? Our submission in answer to that question is, given that it is exceptional in the law of evidence in that it is an exception to the rule against hearsay, given that it is prejudicial without being probative in the sense that it is not evidence of the truth of what it says but, rather, evidence of consistency of behaviour - so, it is exceptional, it is prejudicial, it is not probative, and the Court of Criminal Appeal has said it was wrongly admitted, although, admittedly, because of the length of time it is said that it is not recent complaint because it came about eight months after the last offence charged on the indictment.

Although that was the factual reason for the error in admitting the evidence, nevertheless, it is my submission that the court, having found that it was wrongly admitted, that then answers the question, "Has the accused been deprived of a chance of an acquittal?" My answer is, with respect, yes, he has been, for those reasons. If your Honours please, that really summarises my argument. I do not know that I can assist - I mean, I could take you through my written submissions, but I do not know that it adds anything at all.

KIRBY J: Can I ask, given that your predecessor at the trial was insisting on having the evidence because of the possible forensic use of distinguishing uncle A from uncle B, and given that he needed to get a specific discretion exercised in his favour for that purpose, and given that the application was then made for that purpose, and given that it would have been extremely difficult for the trial judge, where a person is competently legally represented, to say, "Well, notwithstanding the statute, here it is being urged, because of the specific issue of the uncle, that I will not let it in", and given that it is, therefore, before the jury, and given that you have been denied the opportunity of the argument on the differential instruction to the jury, how can one say that he lost a chance of acquittal when you were the ones who were insisting that it be there for one particular purpose relevant to the trial, which it would have been very difficult for the judge to hold out?

MR COURTIS: Again, conceding the force of your Honour's comment, I have to concede the only - the strong point of our case, if there is a strong point, is the finding by the Court of Criminal Appeal that it was wrongly admitted. We say that once the court came to that decision then that court has taken the matter beyond the question of whether - - -

GAUDRON J: Maybe that decision has to be, itself, considered. You say the court says it was wrongly admitted but does that mean that the trial judge should have exercised his discretion against the defendant? You would have been appealing that, too.

MR COURTIS: We do not know, your Honour.

GAUDRON J: Assuming the same outcome, that would have been a complaint, too.

MR COURTIS: I do not know; I cannot say.

KIRBY J: The delay after the last incident to the complaint was, you told us, eight months.

MR COURTIS: About eight months, yes.

KIRBY J: In a child of, what, the age was then 10, was it?

MR COURTIS: Yes, it would have been 10, yes.

KIRBY J: A delay of eight months in a child of 10 is very different from a delay of eight months in a person of say 17 or 20.

MR COURTIS: To be fair, that is the kind of approach that the dissenting judge took. Again, I would make that concession. Again, I can only say - and I am left, I think, with only this - that the majority came to the view that the evidence was wrongly admitted and, hence, it is my submission that it all follows logically. Once you come to that view, that it was wrongly admitted, and you look at and you see that it is exceptional in the law of evidence, it is prejudicial without being probative, and all of those issues, then at the end of the day it is my submission that the accused was deprived of a fair trial. Because, what we have is the complainant, and we have the two other children in relation to the comment, "my uncle did this", or words to that effect, and then we have, of course - that is the point, is it not?

It is the bolstering of the evidence of the complainant against the accused. So, you have the accused man by himself saying, "No, I did not do it", and then you have the child with two other witnesses bolstering her credibility. Because the central issue of the trial was credibility. It all went on credibility. That is why it is my submission that he was deprived of a fair trial because, on the point of credibility, on the issue of credibility, evidence was wrongly admitted which was prejudicial without being probative. Again, your Honours, I think I am going around in circles now. That is my argument.

KIRBY J: So, what would the trial judge do? He has this application. He says, "You apply for it but I am not going to admit it because I consider that it would be inadmissible on the basis that it was not sufficiently recent. Even though you are the one who is protected by that rule, and even though you are, in a sense, waiving it, and you are applying for the evidence to be admitted, I am not going to admit it out of the court's desire to protect the accused", which is generally the business of counsel representing the accused.

MR COURTIS: Yes, but, of course, the trial judge has a higher duty to make sure the trial goes according to law, and that includes that the rules of evidence - - -

KIRBY J: But the trial judge does not know all the detail that the accused's counsel knows. He would not know why, in detail, the accused wanted to have the differential evidence about the uncles.

MR COURTIS: But of course, in this case, there was discussion, albeit limited in some degree, but there was pre-trial discussion on the point. So, the point was raised, and I have referred your Honours to the transcript.

KIRBY J: I do not know, your Honour, that I can take it any further.

GAUDRON J: Mr Courtis, you have conducted your argument on the assumption that you can rely on the finding of the Court of Criminal Appeal that the evidence was wrongly admitted. Now, that is not a self-evident correct proposition - - -

MR COURTIS: Well, except - can I respond?

GAUDRON J: Before you do - - -

MR COURTIS: Sorry.

GAUDRON J: One course that might be open to this Court, if it came to the view that that was not a self evident proposition, would be to provoke special leave. Now, I think, perhaps it might be in your interests to say whatever you have to say in support of the proposition that, in the circumstances, that evidence was wrongly admitted.

MR COURTIS: Yes. I certainly maintain that proposition. But, can I say in answer to an earlier proposition of your Honour, the Crown has not

cross-appealed. The Crown ought to have cross-appealed in relation to - - -

GAUDRON J: I am not talking about dismissing an appeal by reason of that, I am talking about the revocation of special leave as a possibility. Because, if the premise on which special is granted is false, then I think there are very considerable difficulties in the way of proceeding further.

MR COURTIS: Yes.

GAUDRON J: So I am inviting you to say anything you have to say in support of the proposition that the evidence was wrongly admitted in the circumstances that have emerged.

MR COURTIS: Yes. Well, without directly relying upon the Court of Criminal Appeal itself, I simply point to the fact that recent complaint is an exception to the rule against hearsay. It is not evidence of the truth of what the evidence contains. It is, at best, only evidence of consistency of conduct which, in turn, goes to the question of the credibility of the complainant. So it is led by the Crown to bolster the credibility of the complainant and, therefore, given its exceptional nature and prejudicial nature, it ought only to be admitted when the rules of law are fully complied with. Now, one of the rules here is that it has to be recent and, therefore, it is a question of - - -

GAUDRON J: My question was not directed so much to the recency of the material as, in view of your predecessor's application to cross-examine, as to the content, if you like, on the uncle point. For that application to succeed the evidence had to be in. One could well understand, if your application to cross-examine had been refused, that there would be a good case that the evidence was not admissible. But, in light of the application itself to cross-examine, is it or is it not, admissible? Your argument, I think, must go to the point that the trial judge knowing of that application should, of his own initiative, said, "Well, I am not going to let the evidence in".

MR COURTIS: Yes. From the transcript, your Honour, it is clear that the judge was on notice that it was evidence of recent complaint and, in fact, if I can again refer to page 45 of the appeal book at the very bottom of the page, his Honour asks the question:

How is it otherwise admissible?

ILLARI, MR: That the statements are admissible, do you mean?

MURRAY J: How would the evidence of these children be admissible?

ILLARI, MR: I believe my friend is leading it by way of recent complaint.

Now, it does not go much beyond that in relation to the point we are discussing but, I suppose, the only comfort I can draw from that is to say that his Honour was on notice, his Honour was alerted, and his Honour ought, in our submission, to have taken a higher view of the matter and said, "Well, alright I know that you want it led for your forensic purpose but, having considered the overall nature of the evidence, I do not think it is admissible because it would not be recent" but, of course, that was not done. That was not said. I cannot go beyond the transcript, your Honour,and the transcript is what it is. I can - - -

HAYNE J: May it be necessary to distinguish between whether the evidence was open to objection and whether, absent objection, the evidence was then properly received? If an accused, for example, for some perceived forensic advantage, wants to put his or her prior criminal history before the jury, assumedly the accused can do that even though if the Crown had wanted to lead it that might have been the subject of valid objection. If the evidence is led at the wish of the accused, it may be said that if things were otherwise, the accused could have objected, but does that make the evidence inadmissible?

MR COURTIS: It is a discretion, I would have thought. My submission is that the trial judge has a duty to ensure the trial goes according to law and part of that duty means that he must, especially here where he is on notice that there is evidence of recent complaint, consider whether that evidence is properly admissible having regard to my submissions on the nature of that evidence. In other words, his Honour ought reasonably to be on notice that, because of its exceptional nature and prejudicial nature, he must apply his mind as to whether the evidence is properly admissible.

KIRBY J: What a robust judge you are conjuring up here. You have got an accused begging to let this evidence in, well represented, saying, "It is crucial to show I am not the uncle, there is another uncle" and you say the judge would say, "No, I think it is going to be too prejudicial. I will not allow it in." I mean, this paragon does not exist because generally judges realise that the case has to be presented by the counsel that know a lot more about it than they do.

MR COURTIS: Your Honour, I do not think I can take the matter further, with respect. Thank you, your Honour.

GAUDRON J: Thank you, Mr Courtis. Yes, Mr McKechnie.

MR McKECHNIE: If your Honours please, to the list of cases to which your Honour Justice Hayne referred might be added, and we have supplied your Honours with a copy but I do not propose to read from it, the case of Varney where Justice Ipp - coincidentally this decision of Varney was handed down one day after the decision presently before your Honours - analyses in some detail from page 10 on this very question and discusses the cases in some detail including Visser and Birks, extracting from Birks the principle at page 12 and 13.

KIRBY J: The fact that you are legally represented by a counsel who passes the threshold test cannot put you out of court for the discretion?

MR McKECHNIE: No, of course not.

KIRBY J: The discretion is the reserve that the Courts of Criminal Appeal have to protect against miscarriage and it is the fact that in Australia, under the instruction of this Court, it is taken seriously that we have been spared many of the problems that have occurred in England and I really could never go along with the notion that because counsel opt for a course, that you cannot raise the matter on a Court of Criminal Appeal.

MR McKECHNIE: I would not have gone so far, and my submissions do not go so far, your Honours, but there may be a difference too and some of the cases, Pemble is an example, where counsel is faced with a difficulty by way of presenting inconsistent defences, for example, accident and provocation in a murder. Counsel might then make a tactical decision to present the case as an accident but, of course, in that case if a judge then failed to direct a jury as to the other defences, then the person has not had a trial according to law.

There may well, however, be a difference between that sort of case where the tactical decision of counsel is, as it were, forced on and the case involving the admission of evidence where there is a legitimate purpose for it and if this case, if I could just have a moment to illustrate what we saw was the legitimate purpose, your Honours have referred to some of them. If I could refer by reference to the application book itself. There were a number of points which counsel seemed to be making, one of which was, and I will take your Honour to the reference precisely, to the mother.

One of the suggestions which counsel were putting was that the story by the complainant was cooked up at the instigation of the mother because when, as a fact, the story had got out from the family into the schoolyard and others knew about it, the mother, in order to protect a family member, asked the girl to make up the story against the appellant.

Now, that portion of the transcript is in application book No one and the reference is at page 198, your Honours, actually from 197 on. The cross-examination of the mother on this point is from lines 25 on page 197:

I suggest to you, Mrs Rowland, that in fact when you first became aware that your daughter had said something at the school.....that you became fearful that she was referring to a relative of yours? - - -Absolutely not.

And I suggest to you that you subsequently did everything in your power to try and divert any attention from a possible relative of yours?---This is sick. This is a sick allegation and it is not true.

And I suggest to you that you saw Mr Suresh as an easy target?---Why would I pick him.

So, that was the point that was being made there. It is aligned with, but slightly different point, from a point which was made earlier to her and her daughter as to whom the daughter, in fact, first complained of. In the daughter's cross-examination - and I will take your Honours to it - inconsistencies in accounts were put to the daughter and one of the inconsistencies was as to who she complained of to at first. She apparently, nominating in her police statement, a boy by the name of Lyndon, and in her evidence she said, I think, Katie was first person.

At page 196, the matter is put about Lyndon Charlesworth, really again commences at 195 from about line 15 on the page. Lyndon Charlesworth's mother was a Mrs Linda Pereira and so, at 195, there is "Did she ring Mrs Pereira?" She did. And then at 196, it was put:

Do you remember telling Mrs Pereira that a far relative had done something to your daughter?

There is a denial of that. She said Suresh:

You don't recall saying to Mrs Pereira a far relative had done something to your daughter?---Absolutely not.

Not referring to the Suresh family.

That, as I say, is in line with the later allegation. The significance is that the call to Mrs Pereira was made following the disclosure to Lyndon, the son, at the time of the complaint. In the complainant's evidence herself, in the cross-examination, the pages of which we have set out in our submissions, your Honours will see that there is a cross-examination about her and the way that it was put to the girl as to the inconsistencies about the complaint that she had made and the facts that she referred to uncle, and who she was referring to.

It is apparent both from the transcript and from the judgment of Justice Anderson in the Court of Criminal Appeal that although the last count on the indictment was March 1992, the complainant had, in fact, given evidence - the Crown was permitted to lead evidence of other sexual misconduct which went up to October 1992.

KIRBY J: This is beyond the matters charged in the indictment?

MR McKECHNIE: Beyond the matters charged.

KIRBY J: Well, that is not something you should be boasting of, I think, because that can do a lot of prejudice, generalised evidence of a sexual kind.

MR McKECHNIE: It can if handled improperly, your Honour. There is no complaint of that here. I am not boasting of it. I am merely putting it forward because, although in a sense it does not directly relate here, it will be remembered by your Honours that Justice Rowland in dissent was far from convinced that there was no recent complaint and it does raise that question, where there is repeated conduct, at what point the complaint is. I say that simply in expansion of the point that we make at paragraph 4 of our submissions.

KIRBY J: Has there been any consideration in Canada or in New Zealand or other jurisdictions about differential treatment of the complaints of children of tender years from complaints of teenagers and adults?

MR McKECHNIE: I am not sure of New Zealand. Canada has examined it in the Supreme Court and I am just unable for the moment, although I have read it - - -

KIRBY J: Is that Seaboyer's Case?

MR McKECHNIE: Yes, your Honour, and I just at the moment cannot remember which way it goes. In South Australia there is now in section 29CA of the Evidence Act, the South Australian Evidence Act now deals specifically with the evidence of a young child and its admission and, as it were, in effect, changes the rules and allows its admission if it is probative in the opinion of the court, which is interesting in itself as it is not held as probative anywhere else, but the South Australian approach is an approach which might in due course either be adopted by legislatures or in the appropriate case, as I indicated, your Honours might give consideration to in the way that your Honours have been, I might say with respect, flagging in such cases as your Honours' judgment in M v The Queen, the passage of which was referred to by Justice Rowland in dissent.

In the circumstances of this case, your Honours, the Court of Criminal Appeal did not err in applying the proviso. There is another difference. I have already pointed to one. There is a difference between a mere failure of counsel to object to something in which case a court might be more ready to, as it were, overlook that error to a case where a counsel positively does not object but positively wants the evidence in for an actual forensic advantage, and there was here, as I have indicated. In such a case as in different circumstances relating to fresh evidence but in a statement generally applicable, the then Chief Justice Sir Garfield Barwick quoting with approval Justice Smith in Re Ratten in Victoria said, in effect, if the trial is run according to the way it is, there will not be a miscarriage.

While your Honour has said and, with respect, I agree, that it is not a question of working out whether the game has been played entirely according to the rules, it is, nevertheless, relevant, if counsel take particular views and do particular things as part of what they are doing, it is a very difficult thing to say there has been a miscarriage of justice. Justice is, in fact, carried in the way that the accused would want. So, in our respectful submission, this case is a world apart from those examples of mere failure to object.

The passage to which attention has been drawn, at page 294 and 295 of the summing up, was dealt with by their Honours in the court below, specifically the passage at page 294, as part of their Honours' consideration as to whether the proviso would apply, and their Honours did that at page 540 of the application book. So, their Honours had in mind, and considered, the effect of the summing up in regard to the total trial in concluding that the proviso would apply. In our respectful submission, having regard to the way in which the trial proceeded, their Honours' consideration was not in error. Although, as I said, had leave been granted, I would have liked to open up the area, it was not, and I will not. If your Honours please, those would be our submissions.

GAUDRON J: Thank you, Mr McKechnie.

KIRBY J: In the event that the appeal were to succeed, there is an application for the orders that should be made. Do you wish to say anything about that?

MR McKECHNIE: Yes, I overlooked that. I note in the appeal seeks an order for a retrial. The submissions indicate that there should be no order for a retrial. The submissions, in my view, overlook the fact that, although the custodial term of the sentence may have been served by the time that a decision is made, there is, nevertheless, the non-custodial term and that there would be a public interest if this trial has miscarried in the resolution of the matter one way or another in court. No doubt a factor is the fact that a person has served the custodial term, but not, of course, the whole term of the sentence imposed. If your Honours please.

GAUDRON J: Yes, thank you.

MR COURTIS: If your Honours please, I have no submissions in reply, but I am expressly instructed by my client at this stage to raise one point, and that is the question of bail, that is, bail pending your Honours' decision, and, of course, I am making a presumption here which could be wrong about whether or not your Honours might reserve. But, if you do not, that disposes of the matter, but, if you are minded to reserve, I am instructed to ask for bail, and your Honours have a copy of my client's affidavit which he swore in support of an application for bail which, of course, was refused. I have nothing to add to the matters raised in his affidavit.

The strong point, if there is one, is that he has completed his minimum non-parole period. He is in custody because he refuses to acknowledge or admit that he did anything wrong, therefore, cannot take the sex offenders courses and, because he has not taken the sex offenders courses, he is not being granted parole.

KIRBY J: Will that hold for the whole of his sentence, or - - -

MR COURTIS: I think the way it works is that it goes to - in fact, there is a date in the affidavit. If I can just - if your Honours will forgive me, I will just put my hand on it. He does have a date for release and that is 4 June 1999.

KIRBY J: Yes, I thought I had seen a date.

MR COURTIS: Yes, 4 June 1999, if the present status quo was to remain.

KIRBY J: So the position is that even on 4 February 1999 he will not have served his full sentence?

MR COURTIS: That is my understanding, yes.

KIRBY J: There would remain the full sentence, but that on that date he would be allowed out even though he will not go to the sex instructions - - -.

MR COURTIS: Yes, that is right, that is my understanding.

KIRBY J: He does not feel able to go to those classes with a mental reservation about their applicability to him?

MR COURTIS: The instructions I have, your Honour, are that it is a matter of principle. That is as far as I can take that point. Thank you.

GAUDRON J: The Court does propose to consider its decision in this matter, but your application for bail is refused.

MR COURTIS: Thank you, your Honour.

GAUDRON J: The Court will consider its decision in this matter and will now adjourn until 9.30 am tomorrow in Sydney and in Melbourne.

AT 11.46 AM THE MATTER WAS ADJOURNED