McLennan v The Queen B36/1997 [1998] HCATrans 432 (20 November 1998)

THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B36 of 1997

B e t w e e n -

JASON MARK McLENNAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 20 NOVEMBER 1998, AT 10.37 AM

Copyright in the High Court of Australia

MR S.J. HAMLYN-HARRIS: If the Court pleases, I appear for the applicant. (instructed by Legal Aid (Queensland))

MR J.D. HENRY: If the Court pleases, I appear with my learned friend, MS L.J. CLARE, for the respondents. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: Your Honours, the special leave point in this case is whether it is essential to a fair trial that an accused be able to cross-examine a Crown witness whose answers might affect the verdict. The applicant, Mr McLennan, was originally convicted of three offences: rape, indecent assault by anal intercourse and assault causing bodily harm. The Court of Appeal set aside the rape conviction essentially on the basis that the jury could not reasonably be satisfied of the element of consent, but the other two offences remain: indecent assault by anal intercourse and assault causing bodily harm.

Your Honours, I would like to deal with those two offences separately, because the conviction for the offence of indecent assault depends upon the evidence of the complainant, whereas, in relation to the offence of assault causing bodily harm, there was independent evidence of that and, in fact, quite good independence evidence of that.

GUMMOW J: What do you say about what appears at page 267 of the application book, paragraph 2.11, in the respondent's outline of argument, as to the conduct of the trial; the way this turned out? It seems rather important.

MR HAMLYN-HARRIS: At which point, I am sorry, your Honour?

GUMMOW J: Page 267, point 2.11.

MR HAMLYN-HARRIS: Yes, thank you, your Honour.

GUMMOW J: In particular the comment of Justice Davies at 2.13.

MR HAMLYN-HARRIS: Well, your Honour, the Crown says that this is not a suitable vehicle for the application for special leave, essentially because the Crown says that defence counsel was not prevented from cross-examining the complainant about matters relating to the offences, as opposed to the background matters but, your Honour, my submission is that that is simply not supportable on an examination of the transcript and, in fact, your Honour, that passage, which is quoted by the respondent on page 267, the quotation from the Crown Prosecutor at the trial, is really a concession by the Crown Prosecutor - I am sorry, the quotation is from the defence counsel but it followed a concession by the Crown Prosecutor that he would not take any technical points about the defence case not being put to the complainant and, in my submission, that really is an acknowledgment by him that defence counsel was not able to cross-examine the complainant.

So it was implicitly acknowledged by the Crown at the trial that that was the case and it was very explicitly acknowledged by the trial judge, both in the course of argument, but also in his directions to the jury, to the effect that defence counsel was unable to cross-examine the complainant and to test her evidence by cross-examination. So, your Honours, in my submission, the contention that this is not a suitable vehicle because, in fact, the defence could have cross-examined the complainant, is simply not made out on the transcript of what occurred at the trial.

GLEESON CJ: Mr Hamlyn-Harris, on page 238 of the application book, Justice Davies refers to the course of the trial and draws a particular conclusion from it. What submission do you make about that?

MR HAMLYN-HARRIS: Well, your Honour, if I could take your Honours to about line 6 on that page, his Honour said:

It is significant in this respect that, ask I have pointed out, the appellant's counsel did not put to Craig -

who was the independent witness -

that the appellant did not have vaginal intercourse with the appellant, that he did not have anal intercourse with her as the complainant said he did, that he did not persist in intercourse after she had cried and screamed for him to stop or that he did not assault her.

In relation to the vaginal intercourse, it was really acknowledged by the form of the cross-examination of Mr Craig that there had been vaginal intercourse, so that is not an issue, but the contention that he should have put to Mr Craig that the applicant did not have anal intercourse with the complainant, is not, in my respectful submission, a sound one, because Mr Craig did not say that the applicant had anal intercourse with the complainant. So that it would be quite unnecessary for defence counsel to cross-examine Mr Craig on that point.

The reasoning which his Honour Mr Justice Davies applied, is that because these matters, and in particular, that matter, was not put to the witness, Mr Craig, counsel was unable to put that because his instructions would not have allowed him to do that and my respectful submission is that that conclusion cannot be drawn. His Honour really returned to that point on page 240, just after line 10, where his Honour said - - -

GLEESON CJ: Before you go to page 240, on page 239, between lines 10 and 20, he said that, having regard to the way the case was conducted, what occurred, in relation to the matter of which you complain:

tended to favour the appellant rather than the prosecution.

MR HAMLYN-HARRIS: Yes, well, your Honour, again, my respectful submission is that that is not made out. His Honour bases that conclusion on what his Honour says at just after line 10, where his Honour says the course of the trial:

did not inhibit the appellant from asking her about the circumstances of the alleged rape and sodomy.

His Honour is really suggesting there that had defence counsel wanted to, he could have cross-examined but, if I could refer your Honours to what defence counsel said at the conclusion of his second attempt to cross-examine, on page 85 of the trial transcript in the record book, defence counsel, Mr Fellows, said:

Your Honour, we have not even begun to cross-examine this witness about any matter or controversy.

He may have meant, any matter of controversy.

She will not answer questions either from myself or yourself as to essentially background detail.

So counsel is making the point there that, even on background detail, he could not get responsive answers and he had not even started to get to the point of cross-examining on matters of substance. His Honour said, at line 55 on the same page:

she has certainly indicated that to my satisfaction at this stage that she doesn't propose to cooperate.

Your Honours, I concede that if, in fact, counsel was able to cross-examine her, as the Crown contend, then we do not have any basis for this application, but my submission is that that, as I say, is not borne out by the transcript.

Your Honours, the reasoning which the Court of Appeal adopted, and principally in the main judgment of his Honour Justice Davies, was that there was evidence upon which a jury could convict and, on that basis, in essence, the Court of Appeal appeared to have determined that the verdict was not unsafe and unsatisfactory and in aid of that his Honour Justice Davies, referred to the questions in cross-examination as some indication of what defence counsel's instructions were, but, your Honours, my submission is that that avoids the issue which is raised by this application, which is that the inability to cross-examine the complainant constituted a fundamental defect in the trial.

Your Honours, there are four cases that are referred to in the summary of argument, which are cases where something similar occurred. The cases of Stretton & McAllion and R v Wyatt, were cases where cross-examination did take place, but was curtailed, and in both of those cases the Court of Appeal in England held that there was no miscarriage of justice and that the warnings to the jury were adequate but, in the cases of Blaise v Blaise and Unterpertinger v Austria, there was no cross-examination, for different reasons: in Blaise v Blaise because the magistrate refused to allow it; in Unterpertinger v Austria because Austrian law permitted the witness not to submit to cross-examination.

The point I seek to make in relation to that is that, in my submission, the reason why the party is unable to cross-examine is not a relevant consideration. At the trial, and also in the decision of the Court of Appeal, it was considered to be relevant to consider why it was that the complainant would not answer the questions. My submission is that the reason does not affect the question of whether a miscarriage of justice has resulted from the inability to cross-examine.

Your Honours, the case of Unterpertinger v Austria was one in which the European Convention on Human Rights was applied; the relevant article being Article 6, which is in very similar terms to the International Covenant on Civil and Political Rights, Article 14, to which Australia is a party, although, of course, the fact that Australia is a party to that international covenant does not incorporate the principle into domestic Australian law. My submission is that the same right, that is, the right to cross-examine an important witness, should be recognised to be part of the common law in Australia and, in my submission, it is, in fact, probably assumed to be part of the common law in Australia by the very way in which our courts operate and by the very fact that cross-examination is an integral part of the way in which the courts operate.

My submission, in conclusion, your Honours, is that if the decision of the Court of Appeal is correct, it means that the ability to cross-examine a critical or essential witness is not essential to a fair trial, even where the Crown case is dependant upon the untested evidence of that witness and, if that is correct, what has been assumed probably to be a basic right under the common law is somewhat illusory. In my submission, that is a fundamental error in principle and, for that reason, special leave should be granted in order to correct that error.

GLEESON CJ: Thank you, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: Could I just say in conclusion, your Honours, that the argument is a lot less strong in relation to the count of assault causing bodily harm. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Hamlyn-Harris. We do not need to hear you, Mr Hendry.

The decision of the Court of Appeal involved the application of established principle to the particular facts and circumstances of the case. No issue sufficient to warrant the grant of special leave to appeal arises and there is no sufficient reason to doubt the correctness of the Court of Appeal's decision. Special leave to appeal is refused.

AT 10.51 AM THE MATTER WAS CONCLUDED