Papakosmas v The Queen S8/1998 [1998] HCATrans 334 (11 September 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S8 of 1998

B e t w e e n -

CHRISTOS PAPAKOSMAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 10.37 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC: I appear with MR G.P. CRADDOCK for the applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKAMORE: I appear for the respondent, if the Court pleases. (instructed by S.E. O'Connor, Solicitor for the Public Prosecutions (New South Wales))

GAUDRON J: Yes, Mr Barker.

MR BARKER: Your Honours, the Court of Criminal Appeal in this State has held that evidence of recent complaint may now be treated by a jury as evidence of the fact complained of which overturns 100 years of common law authority deriving from Lillyman.

GAUDRON J: But it is based on the Evidence Act itself rather than disregard of authority.

MR BARKER: We say not, your Honour, for this reason. The common law was, and is, that evidence of complaint is no more than evidence of consistency of conduct which thereby buttresses the complainant's credit. That much was said by this Court in Suresh and in Jones. The Evidence Act maintains the distinction between evidence going to facts in issue and evidence going merely to credit because section 102 makes evidence relating only to credibility inadmissible.

GAUDRON J: So do you say that evidence of complaint is no longer admissible unless certain other conditions are satisfied?

MR BARKER: Yes, we say if evidence of complaint gets in it gets in under section 108. That is where fabrication is alleged, 108(3)(b).

GAUDRON J: But section 108 would operate, would it not, in any case in which there is a plea of not guilty?

MR BARKER: Yes, your Honour, but the important distinction between that and section 66 is that section 108, one sees from the headnote, is a section re-establishing credibility. As it is intended that it would re-establish credibility, it would normally, one would think, be accompanied by a limitation given pursuant to section 136.

GAUDRON J: What is that?

MR BARKER: That is that the Court may limit the use to be made of evidence if there is a danger that a particular use of evidence might (a), be unfairly prejudicial to a party or, (b), be misleading or confusing.

GAUDRON J: So how do you say it would be limited?

MR BARKER: It would be limited so that it was evidence only going to credibility.

GAUDRON J: What direction would then come about?

MR BARKER: He would be the same direction which was given before the Evidence Act.

GAUDRON J: Which would be less favourable, would it not, than the rather half-hearted direction that was given by Judge Gibson, "Oh well, it is some evidence of the fact." He seems to have said, "some evidence of the fact".

MR BARKER: That is the trouble. It was a convoluted direction and it - - -

GAUDRON J: It did not seem to urge the jury to give it great weight.

MR BARKER: No. But the vice in it was that he said, if you accept that it is true, it is some evidence of the fact. If the jury accepted it as true, they would not have to worry about the fact; the fact would be proved. That is the problem with it all.

GAUDRON J: His direction really was not to that effect, was it, Mr Barker? Perhaps you had better take us to it.

MR BARKER: Yes, certainly. At page 8 of the application book, line 5:

Stephens, Fahey and Avadia give what is called "hearsay evidence" because the accused complains to them that she has been raped by the accused.

That should be, obviously the complainant complains to them that she has been raped by the accused.

The complainant complained that she had been raped by the accused. Counsel for the accused said yesterday that "intercourse" had not been used by Jessica Stephens, and that is quite true.

Further down:

What had been used were the words, "I have been raped", which is a fairly clear description, you might think, of what the allegation was.

Under the law in this State, the hearsay evidence, as it is called, is some evidence of the fact that the incident did take place. Once again, you have got to be careful because you will understand that, if you are lying about it originally, then the fact that you keep repeating it does not make it any less of a lie but, if you are telling the truth about it, then it is some evidence of the fact. It is a matter for you as to whether you accept it or not, but it is evidence of the fact of the proof of the truth of the allegation that was being made - that is, that she had not consented to having intercourse with this man, that she had been raped.

Now, he is thinking of section 60.

GAUDRON J: But that direction is not contrasted with a direction that, well, the evidence is clear that she complained to these people and you are entitled to take that into account in assessing her credibility. Now, that would seem to be a much less beneficial direction than the one you have got.

MR BARKER: Your Honour, the big difference is it does not go to the fact of the rape.

GAUDRON J: I know what the difference is but I am looking at it in "some evidence", but if it is a lie in the first place, it is still a lie.

MR BARKER: But if she is telling the truth - - -

GAUDRON J: It is some evidence. That is what he says, "it is some evidence of the fact".

MR BARKER: Your Honour, the issue of principle here - - -

GAUDRON J: I can see the issue of principle but I think you really have to address the question whether there is a miscarriage of justice.

MR BARKER: If one goes to page 9, line 10:

So that you have got that evidence concerning the complaint, as I say, that is hearsay evidence but it is some evidence of the fact. If you accept it, in relation to what took place on this night, that goes to support what the complainant says occurred.

If that is right, it means that evidence of complaint is now corroborative of the complainant's other evidence. If the Court of Criminal Appeal is right in BD, which is a case we say was wrongly decided, then evidence of recent complaint, even though it ought to be only regarded as evidence of credibility, gets in under section 66 as evidence of the fact complained of. In my respectful submission, section 66 is not the appropriate vehicle for letting such evidence in. If it gets in at all, it should be under section 108 in the response to an allegation of fabrication and should always be accompanied by a limiting direction.

Now, may I just take you briefly to The Queen v BD?

GAUDRON J: We are familiar with that case. You can take us to it, too, but before you do, could you just say why it is you say "should always be accompanied by a direction", then it is evidence only going to credibility.

MR BARKER: The Evidence Act does not provide any mechanism for distinguishing - for labelling evidence as being evidence of credibility or otherwise. It simply says what you do with it if it is evidence of credibility. For 100 years it has been regarded as evidence of credibility. Section 108 is directed to the restoration of credibility and therefore, if evidence of the complaint is let in under section 108, either in anticipation of an attack alleging fabrication or after it, it ought not be elevated above - - -

GAUDRON J: The purpose for which it is admitted.

MR BARKER: Credibility.

GAUDRON J: Yes. I follow that, thank you.

CALLINAN J: In some jurisdictions, of course, it is - as a matter of statute - in other jurisdictions anticipating this Act, it has been proof of the facts as well. For example, in Queensland for some years, on the basis, as I think most of the Law Reform Commission's reports say, that juries do not in fact make the distinction.

MR BARKER: Your Honour has the advantage about the Queensland position.

CALLINAN J: But I think there are other jurisdictions too, Mr Barker. But the underlying theory is, of course, that juries do not make the distinction anyway, but I suppose you say that just makes it more important that the judge give an appropriate direction.

MR BARKER: And this Court has said so very firmly in quite recent times.

GAUDRON J: In Suresh.

MR BARKER: In Suresh, and also in Jones. Your Honours, have the argument.

GAUDRON J: Did you want to say anything about BD?

MR BARKER: Only that the passage at - it is (1997) 94 A Crim R 131. At page 138 point 3 his Honour Justice Hunt said:

First, and notwithstanding the arguments put by the appellant to the contrary, the evidence of "complaint" was admissible in any event as "first hand" hearsay pursuant to s 66 of the Act in the circumstances of this case. It was thus evidence of the truth of what was said -

Now, we submit that that is wrong.

GAUDRON J: And that has been acted upon by the Court of Criminal Appeal, the Full Court, more recently, I think.

MR BARKER: Justice Smart, at page 147, whilst accepting that, wrongly we submit, section 66 could be relevant, he referred to section 102:

Section 102 of the Evidence Act provides that evidence that is relevant only to a witness's credibility is not admissible. Complaint evidence was relevant only to the prosecutrix' credibility. Where the complaint is accompanied by distress -

that is not relevant. Then he talks about section 108. At the bottom of page 147 - - -

GAUDRON J: To succeed, really, you have to make good your argument that the direction - that evidence admitted under 108 would always attract a limiting direction.

MR BARKER: Yes.

GAUDRON J: Or should in this case have attracted a limiting direction.

MR BARKER: I have to say it was not asked for. It should have been but it was not.

GAUDRON J: Did the parties realise that the Evidence Act applied? They probably did not. We have had cases before where they were conducted without any regard to the fact that the Evidence Act had come into operation.

MR BARKER: I can tell you that counsel did not know about section 108.

GAUDRON J: Did not know?

MR BARKER: About 136, I mean. But Justice Smart said at the bottom of page 147 - he referred to section 136:

Even a prompt complaint may not add much of substance to her substantive evidence of rape. However, as there are cases where a prompt complaint may be useful evidence, delay in or absence of complaint is often important and, comparatively, often has greater weight than the making of a prompt complaint. Everything depends on the circumstances. Notwithstanding the warning which the judge gives under s 165 that the hearsay evidence may be unreliable it is my view that to admit complaint evidence as evidence of the fact contained in it is usually unfairly prejudicial to an accused as it allows a complainant to shore up the Crown case. Evidence of a complaint should not be elevated. At the very least there is a danger that the use of the statements in the complaint as evidence of the truth of the facts will be unfairly prejudicial.

He was in the minority and his view has not found acceptance in later cases, including this one. He said, in the middle of page 148:

A mild dilemma may arise. If evidence of the complaint is admitted because it does not fall within the prohibition in s 102 or because s 108 applies that evidence would be admitted as evidence of the statements made and not as evidence of the truth of the facts in the statement.

Just pausing there, he does not seem to take account of section 60 but he treats it, clearly, as being evidence only going to credibility. Then he says:

Assuming the same complaints are also admissible under s 66, then in the absence of a direction under s 136, the statements would be evidence of the facts which they assert. In such a case, the better course will usually be to admit the statements or representations and direct that they are to be used as evidence that such statements were made and not of truth of the facts asserted in the statements.

So he found unpalatable the notion that the Evidence Act should be treated as having wrought such a significant change in the law.

In my submission, in the instant case, as there were three complaints the evidence about which was quite colourful, had they been the subject of a proper direction, that is limiting their use, the result might have been different. But what the jury were told was not only that - I know what your Honour says about the "some evidence" but - - -

GAUDRON J: They were told it three times.

MR BARKER: Not only could they use it as evidence of the fact but, if they accepted the truth of it, really they did not need to go anywhere else. They did not need to look at the facts. There was therefore a miscarriage of justice. If the Court pleases.

GAUDRON J: Thank you, Mr Barker. Yes, Mr Blackmore.

MR BLACKMORE: Your Honours, we accept that this may be a matter of public importance but our submission is that in this case the applicant cannot demonstrate a miscarriage of justice, given the summing up.

GAUDRON J: Well, it has been held to be a miscarriage of justice before, has it not, where the evidence of complaint has been left in an unqualified manner?

MR BLACKMORE: Yes, and I need to take your Honours to the summing up itself to explain that submission.

GAUDRON J: Yes.

MR BLACKMORE: Essentially it is the same submission we make in the written submission, but perhaps if I can just elaborate on it. This is application book page 8 again. We are reading the same material. Perhaps if I start about point 4.

Under the law in this State, the hearsay evidence -

and I pause there to say it was clear that this case was one which was conducted under the Evidence Act because the reference to hearsay evidence was clearly a reference to the Evidence Act -

as it is called, is some evidence of the fact that the incident did take place.

We say the next passage is the important one:

Once again, you have got to be careful because you will understand that, if you are lying about it originally, then the fact that you keep repeating it does not make it any less of a lie but, if you are telling the truth about it, then it is some evidence of the fact.

Now, our submission is that in fact put the complainant in a worse position than she would have been under the common law. Under the common law, she would have been entitled to have her complaint, which was reasonably prompt in this case, given the circumstances, considered in assessing her credibility. That is before it was decided whether or not she had told the truth. Here, we are left with a situation where the jury have to conclude that she is telling the truth before they can even take it into consideration. The only issue in this case was consent. Given that was the only issue, the jury had to be satisfied she was telling the truth.

GAUDRON J: In cases of this kind, that is always the case.

MR BLACKMORE: Of course it can be. We submit that had - - -

GAUDRON J: And it is in consent cases that evidence of complaint has its most critical focus.

MR BLACKMORE: Yes. And it is critical - it was critical, with respect, under the common law because you could use it to both derogate from the credibility of the complainant and, in cases where it was prompt, to assist the credibility. We submit in this case this was prompt complaint, appropriate complaint, given almost spontaneously after the event, and that it was something that the jury ought to have had - if it was under the common law, ought to have had so that it could consider it in terms of credibility.

The case, though, was considered under the Evidence Act and, therefore, there was a direction, which follows on over the page, that it may be considered as some evidence of the fact. Even that term was not explained to the jury. We submit, though, that once the jury were on top of the direction that they had to accept the girl's evidence as true, really there was no other issue that the complaint went to.

GAUDRON J: Was there any direction as to how the jury was to assess whom they were to believe?

MR BLACKMORE: Whom they were to believe? No. There were general directions given as to witnesses but none that precisely drew their attention as to how they would use this evidence of the fact - I am not sure if this answers your Honour's question - but in determining the issue in any case, which is perhaps an interesting question itself. But there were general directions about how you assess witnesses.

GAUDRON J: Any request for directions?

MR BLACKMORE: Not on this issue, your Honour, and we say that is very significant in this case. If counsel was not aware - and I am not in a position to gainsay that - he ought to have been. There had been a decision of the Court of Criminal Appeal in Hall which had been decided at that time. It was unreported, but decided and handed down, which drew attention to this issue. It was then the leading case on this area. Section 136 could have been sought. We submit that it was not sought - or at least one inference is it was not sought because counsel well knew that he had the best direction he could possibly get, given the facts of this case. How could he do better than to say, "You've got to believe the girl. Don't worry about anything else. You've got to believe the girl." And that is what they were left with. If it is a lie - - -

GAUDRON J: Where do we find this?

MR BLACKMORE: This is again at page 8 of the application book, about point 5:

Once again, you have got to be careful because you will understand that, if you are lying about it originally, then the fact that you keep repeating it does not make it any less of a lie but, if you are telling the truth about it, then it is some evidence of the fact.

It is clear, very clear, very clear understandable logical direction, with respect to his Honour, that you cannot just keep repeating the fact of an allegation, it does not make it any more true by repeating it. You have to accept the girl. If you accept her, what she says in complaint becomes some evidence of the fact.

We submit that that, in itself, is sufficient to dispose of the issue for this Court. This was not a matter that a miscarriage of justice arose. If I can just briefly - - -

GAUDRON J: That is really the only basis on which you can resist a grant of special leave in this matter, is it not?

MR BLACKMORE: It is, with respect, yes, and it is otherwise a matter of some importance. I accept that. Might I just say a couple of other submissions in relation to section 66. I will be very brief about these. I realise your Honours have the point. The Law Reform Commission did anticipate this operation for section 66 specifically. That is an issue. Secondly, the point that this evidence could be corroboration is simply, with respect, a bootstraps argument. There is no issue in this case about corroboration. Corroboration as a concept was all but abolished under section 164 of the Evidence Act. Nobody mentioned corroboration in this case and under the Evidence Act corroboration does not become an issue. It is not required in any of these cases.

GAUDRON J: Except that his Honour says it goes to support what the complainant says occurred and does seem to be corroboration, even if the term is not used.

MR BLACKMORE: But only after you believe the complainant, which is of course not corroboration, because corroboration as a term of art had to be independent of the person delivering it.

GAUDRON J: Yes, but it does seem as though his Honour might have invited the jury to participate in an erroneous or circular pattern of reasoning.

MR BLACKMORE: In a sense, with respect to my friend, that is his argument, that it is in essence that the Act produces a circular result. With respect, we just come back to our miscarriage of justice argument, though I am saying not in this case, though.

GAUDRON J: But what I am putting to you is that what his Honour said to the jury did invite a pattern of circular reasoning in which they may not have stopped critically to say, well, do I believe her in the critical allegation - - -

MR BLACKMORE: I accept what your Honour says. Our submission is, though, the direction he gave in relation to believing was the primary and the first direction that he gave. And it was all given within a very short space of time, in less than two pages of a judgment. They could not have been under any misapprehension, that before they could accept any of this evidence of complaint from the complainant, that they had to believe her. That is our submission.

GAUDRON J: Yes, thank you.

There will be a grant of special leave in this case, Mr Barker.

AT 11.02 AM THE MATTER WAS CONCLUDED