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High Court of Australia Transcripts |
Office of the Registry
Hobart No H4 of 1997
B e t w e e n -
ALAN ARTHUR FARRELL
Appellant
and
THE QUEEN
Respondent
GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT HOBART ON TUESDAY, 31 MARCH 1998, AT 10.17 AM
(Continued from 30/3/98)
Copyright in the High Court of Australia
MR MacGREGOR: Your Honours, we have prepared overnight what we have called a summary of the submissions that we were making yesterday. We do not wish to amend the notice of appeal. The summary suggests that the argument which we have advanced is encompassed by the existing ground 5. May I hand copies up. It is referred to as an amended notice of appeal ground 5. No one should be misled by that. The notice of appeal was amended because it contained a sentence appeal when leave to appeal was not given to appeal against sentence.
Your Honours, I do not propose to read the document but merely to identify the general submission that we make in paragraph 2. In paragraph 3 we stress that there was an independent diagnosis by Dr Sale and other diagnoses by qualified practitioners set out in exhibit 49. In paragraphs 4 through 8 we set out the precise references to the diagnosis and to the consequent sequelae which can be observed in patients suffering from the disabilities which were diagnosed. There are specific statements of the evidence and specific page references given in relation to them.
The general submission that we make is articulated in paragraph 10, that the appellant was entitled to have the relevance and force of Dr Sale's diagnoses and opinion associated with the reliability of the complainant's testimony as the credibility of the complainant was central to the defence case. He was entitled to have the evidence which Dr Sale identified as the basis for the diagnosis and the consequences of these conditions and the complainant's history identified as supportive of the diagnoses. It is submitted that these conditions and their consequences were not, as was clearly recognised by Justice Brennan, as he then was, in Bromley, a matter of general knowledge. To suggest that general knowledge of drunkenness is a substitute for Dr Sale's expert psychiatric opinion is, we submit, to trivialise the science of psychiatry and to undermine the worth of his evidence.
In answer to the proposition during argument that the judge's warning was sufficient, it is submitted that the appellant was entitled, for the reasons identified by Justice Brennan in Bromley, to have it vividly and more authoritatively brought home to the jury than merely a judicial warning on the danger of acting upon the witness's evidence without corroboration because, as the present Chief Justice recognised, "the Courts have no scientific knowledge about the danger of acting on evidence given under the influence of mental disorders of various kinds and degrees, nor have they acquired any experience of the danger of acting on evidence given by persons suffering from a mental disorder wider than the experience of the general public".
In answer to the comment arguendo that there was no request by trial counsel to the judge to withdraw or modify the impugned instruction, our submission is that that should make no difference when there has been a demonstrable miscarriage of justice. This criticism was not made by the Crown in the Court of Criminal Appeal, no doubt in recognition of this principle, and was not a subject of criticism by the Court of Criminal Appeal. We set out the specific criticisms made by Justice Wright and by Justice Slicer who would have upheld the appeal on that ground in the Court of Criminal Appeal.
KIRBY J: Justice Wright would not, would he? Justice Wright was critical of the judges but he would not have - - -
MR MacGREGOR: He was critical of the summing up but would not have upheld the appeal for other reasons.
KIRBY J: Only Justice Slicer upheld the appeal.
MR MacGREGOR: Indeed, your Honour.
HAYNE J: Do you accept that the common law is that counsel should take exception if exception is to be taken later?
MR MacGREGOR: Indeed, your Honour, but it is not always fatal. When this Court has previously recognised a demonstrable miscarriage of justice where an objection has not been taken, appeals have been upheld.
McHUGH J: In your summary you talk about three mental disorders. Can you identify those for me?
MR MacGREGOR: Yes, your Honour: alcohol and poly substance abuse as one; an antisocial personality disorder as two - - -
McHUGH J: That is the one that I have some difficulty with. There is an ambiguous answer at page 819. The doctor identified alcohol dependence and poly substance abuse as a mental disorder and then Mr Wendler asked, "Any other?", and the witness said:
He also suffers from a personality disorder.
That is capable on one view perhaps of meaning that it is another mental disorder, but over the page the doctor said:
A personality disorder is a - perhaps more like a disability than an illness.
MR MacGREGOR: Yes, your Honour. What he means by the distinction between a disability and an illness is not clear. All illnesses, I suppose, are to a certain extent disabling. But he does identify further the circumstances in which he made the particular diagnoses and he refers to the textbook or the book that they use for the purposes of identifying psychiatric illnesses at pages 835 to 836. I said yesterday that the judge complimented Dr Sale on the facility of his simple, if not simplistic, description, and that occurs at page 834. He was describing a borderline personality disorder and he said:
First of all it's important to know that borderline doesn't indicate that their halfway somewhere. It's a rather strange American term that seems to have stuck. A person with a borderline personality disorder characteristically has stormy relationships and stormy moods - and they are usually impulsive and they are frequently attempting suicide or threatening suicide.
The judge interrupted:
Right. Just a minute. So, if you had someone who did all those things - you could say, well, that's an example of a borderline personality disorder?
WITNESS: Yes, your Honour.
HIS HONOUR: Could you give the jury some assistance with the other one, then? Anti-social personality disorder - in the same way.
WITNESS: If it's of any help, your Honour, I actually have the DSM with me and I could actually read - the criteria?
HIS HONOUR: Oh, I'd rather not do that. You were doing very well in the first one, can you not do it again?
The witness said:
A person with an anti-social personality disorder is a person who habitually deviates from cultural norms regarding social behaviour such that they frequently have an extensive criminal record, they frequently have a poor occupational record, they tend to exploit or to con others, they are often regarded as deceitful.
HIS HONOUR: Right, is that - yes thank you, right thank you Doctor.
Then Mr Wendler asked a question and his Honour said:
So it was your diagnosis?
He said:
I believe that the material contained in the file was consistent with that diagnosis and therefore would agree with the people who have made that diagnosis in the past.
HIS HONOUR: So it was your diagnosis?
WITNESS: Yes, your Honour.
MR WENDLER (Resuming): And in relation to the other condition, borderline personality disorder, was it your opinion that Mr Coppleman suffered from that particular disorder?.......I believe it is probable, in that particular case I couldn't reach all the criteria required by the DSM4.
He went on to explain DSM4 on the next page:
Well according to the DSM4 you are required to satisfy five criteria for the borderline personality disorder, I was comfortable that there was enough material in the file to clearly satisfy four of those five criteria. The fact that it didn't satisfy the others is because I didn't have all the information that I probably should have.
And the borderline personality disorder condition are you able to give some examples of this sort of behaviour that is manifested in that type of condition?.....Well it applies to this man; and that is the presentation at Emergency Services threatening suicide or having made some suicidal attempt. That would be a very frequent presentation for borderline personality disorder and applies to this particular individual.
I should for completeness indicate how the matter ended in cross-examination by prosecuting counsel. That appears at the bottom of appeal book page 841. He said:
It's a firm opinion that alcohol or benzodiazepams can effect memory.
May effect?.......Yes.
Or can effect. But you can not say that it does effect in this case?.......No, I can not say that it does effect.
HIS HONOUR: It effects your short term memory, doesn't it?
WITNESS: It effects both - while you are using it, both alcohol and benzodiazepams, cause amnesia if you use them excessively. Especially if you combine their use. But there can also be a long term effect if you abuse alcohol over many years.
Then his Honour introduced again organic change after a reference to drinking too much red wine, which I will not pursue. At the bottom of the page his Honour said:
Yes, quite so. But - and of course, if you damage your brain by constantly abusing it, through ingestion of alcohol or substance abuse, then it might have a more serious and permanent effect on the memory?
WITNESS: That's right, your Honour. There is then a persistent defect of short term memory.
HIS HONOUR: But you're not in a position to express an opinion that such damage to the brain had occurred in Mr Coppleman's case, are you, as I -
WITNESS: No, I'm not, your Honour.
HIS HONOUR: No. Right.
My learned friend asked another question about hallucinations which I do not propose to read. At the bottom of the page:
And is it your evidence that your diagnosis of anti-social - or the two types of personality disorder rests upon the diagnosis of other practitioners?.......Plus the fact that the material in the files is consistent with those diagnosis.
Yes. Is there sufficient material in the files for you, not having regard to any other diagnosis, for you to conclude that such disorder exists?.......Yes.
And you're firm in that opinion, doctor?.......Yes.
And - are you able to say who the other doctors were -
They are identified. At the bottom of the page:
And, doctor, do any of these conditions that you've described seriously impair Mr Coppleman's capacity to give evidence?.......I can only say that they can do -
His Honour then asked a question and on the next page:
Bearing in mind that ordinary frailties of memory will distort accuracy to some degree but we're talking about a capacity in the ordinary sense to recall events, and to recount them to the Jury with all the ordinary frailties of the human memory. That's what you're talking about isn't it?
MR STODDART: That's so your Honour.
HIS HONOUR: Now what you're asking him whether any of these diagnosed conditions effect that:
MR STODDART: Yes.
WITNESS: Well my answer would be that alcohol and benzodiazepine abuse because of their impact on memory can affect that capacity.
HIS HONOUR: But whether it did in this case, and I will put to you again, you don't know do you?
WITNESS: No I don't your Honour.
Our response to that is of course that it is not necessary for there to be evidence of a concluded view that a particular patient's reliability is impaired because that would require in most cases clinical testing and clinical testing which would not always, one contemplates, supply answers.
KIRBY J: If we look at the reasons why the Court of Criminal Appeal rejected the appeal, two of the judges there said that there was an error in this respect. The Chief Justice, on the other hand, said that the doctor, Dr Sale, was unable to express a firm opinion that the complainant suffered a factitious disorder at all. Is that a term of art, factitious, or is it just factual? He said:
But in any event, such a disorder was not shown to be one depriving the patient of the capacity to recollect or to recount the truth.
He goes on at the top of page 1017:
In my opinion, the learned trial judge rightly excluded the evidence.....but even if I am wrong about that, I can see no possible injustice to the appellant in view of what the psychiatrist was permitted to say.
Assume that one is of the opinion with the majority in the Court of Criminal Appeal that there was an error here, that the direction given was erroneous, the ultimate hurdle you have to jump is that last one the Chief Justice refers to, that it really did not cause an injustice. It is true if you rely on what Justice Brennan said, that - - -
MR MacGREGOR: And we rely upon the fact - first of all, our submission is that the evidence was admissible. If it was admissible, it ought to have been dealt with by the trial judge in the summing up.
KIRBY J: That is what, a Longman point, is it, or what?
MR MacGREGOR: Longman and a stream of cases, your Honour, referred to in the documents: Penn and Alford v Magee and cases of that kind. There is a stream of cases. The first proposition is that if the evidence was admissible and relevant - and we say it was critical because it went to reliability, was a central issue in the case - it ought to have been dealt with by the trial judge, it ought to have been dealt with appropriately by the trial judge and the trial judge was dismissive of it. He rendered it nil, and instead of the jury having the benefit of being reminded of what the doctor said about his own diagnosis and the possible consequences, because the judge believed that you had to demonstrate an actual failure of recollection - and that was consistently demonstrated by his questioning and the way he dealt with it in his summing up, and we say that was wrong, then that, coupled with his Honour saying Dr Sale's evidence does not amount to anything, removed entirely from the jury the benefit of the admissible psychiatric evidence.
Your Honours, in relation to the other matters, I just want to very shortly identify some evidentiary matters. First of all, it is important to understand that we submit that there was never any positive identification of the appellant by the complainant and that the DNA evidence - - -
HAYNE J: But was there any dispute at trial that the accused had taken the complainant home?
MR MacGREGOR: No, your Honour.
HAYNE J: What is the identification point that you now raise?
MR MacGREGOR: As to who assaulted him physically and sexually abused him in the home.
GAUDRON J: Does it also go to the reliability of his evidence?
MR MacGREGOR: Indeed, additionally it goes to reliability, your Honour.
KIRBY J: Can I just ask about the hood. The hood was put on after he left the house, was it?
MR MacGREGOR: Yes, your Honour.
KIRBY J: This was allegedly to prevent identification of the venue?
MR MacGREGOR: One would assume so, your Honour.
KIRBY J: But there was no hood on during the alleged encounters in the house?
MR MacGREGOR: At paragraph 1.6 we say that at the conclusion of this attack by both men, the complainant had his hands tied with a neck tie and a cloth hood was placed over his head. I am informed by trial counsel that it happened just as he was being taken out to be put in the car, the allegation was. But the point that I was making was that he subjected himself - he made available samples of material for DNA testing. There was DNA testing and the semen found in the anus of the complainant was not by evidence associated with the appellant.
KIRBY J: Is there an obligation under the Code to provide the sample in Tasmania?
MR MacGREGOR: No, your Honour, as I understand it. It was volunteered.
MR BUGG: There is a statutory provision which makes it compulsory.
MR MacGREGOR: I am sorry if I have misled the Court. I understood to the contrary. But he did provide it and the DNA evidence, if I can give your Honours a reference to it, because it is useful only in a negative way, is set out at appeal book page 525. Dr Aitchison's evidence is set out there and he said the purpose of the DNA identification technique was "to exclude people rather than include him". He received three anal swabs and a surgical glove used by the complainant's examining doctor. All three items were DNA tested and Dr Aitchison said at appeal book pages 535 to 536 that the DNA extracted from these items matched the complainant and did not come from the appellant.
GAUDRON J: And did not come?
MR MacGREGOR: Did not come.
GAUDRON J: I am sorry, I read it differently. I am looking at page 536 and the reference to the blood stain.
MR MacGREGOR: Yes, your Honour. The passage that I was referring your Honours to is at page 535, line 29:
from the three anal swabs separately, items one and three gave a profile in the first three systems which was the only three which I analysed for those three, which matched Coppleman and didn't come from Farrell.
GAUDRON J: So is that positive exclusion of the appellant?
MR MacGREGOR: Well, there was no evidence of the existence of DNA of the appellant.
KIRBY J: No, it is a different thing. I did not understand this. At page 535, the passage you have read:
That was DNA extracted from the three anal swabs.....I analysed for those three, which matched Coppleman and didn't come from Farrell.
"didn't come".
GAUDRON J: That would seem to be positive evidence of exclusion.
MR MacGREGOR: That is what I rather hoped I was - - -
HAYNE J: Does this evidence go further than showing that the material analysed, to the extent that it matched the victim, contained DNA consistent with that of the victim - - -
MR MacGREGOR: Yes, your Honour.
HAYNE J: - - - which in turn is consistent simply with the fact that the swab site was a site within the victim?
MR MacGREGOR: For whatever reason, there is no medical evidence linking the person of the appellant with the person of the complainant.
HAYNE J: Let me understand it. Is the position that the DNA evidence does not implicate the accused?
MR MacGREGOR: Yes, your Honour.
HAYNE J: The DNA evidence does not exclude the accused?
MR MacGREGOR: That has to be right, yes, your Honour.
KIRBY J: And that, I think the Crown says in its submissions, is because the sample was so small or it was not a large sample. Is that your understanding of the facts?
MR MacGREGOR: My understanding, your Honour, is that there were problems associated with swamping and technical matters which the evidence refers to, but in the end result all that we wish to suggest is that the trial judge instructed the jury at page 904 that you cannot tell where the DNA has come from, and we would not quarrel with that. Further, at appeal book 985 the trial judge directed the jury that the DNA evidence did not implicate the accused. There is criticism of a passage in our outline about the failure of an out of court identification by the complainant.
HAYNE J: Again, I do not understand for the moment where the question of identification comes in. I can understand it if you are saying that the accused denied assaulting the victim, but the accused admitted that he had taken the victim home.
MR MacGREGOR: It goes very much to reliability.
HAYNE J: But reliability of what?
MR MacGREGOR: On the complainant's case he was there for six hours and during that course of time he was taken for urination purposes. There was close association between him and the appellant on his case. The nature and extent of that association is set out in paragraph 2.3 on page 4. He testified that he was in the company of his two assailants for a period of approximately six hours. During that time the complainant alleged there was intimate sexual contact, conversations, the giving of cigarettes and alcohol and being personally escorted by the appellant to the toilet on more than one occasion. Then we say however, the complainant was unable to identify the appellant in court or on two separate occasions out of court and our learned friends point to the fact that when the out of court identification is there referred to, in fact the complainant was sitting in a motor car with police officers and it is suggested that the complainant did not observe the appellant because the appellant most time during those periods was in the sight of the complainant, and we do not wish to dispute that suggestion.
In the next point we indicate that the complainant was unable to give any description of the appellant, even though he has a distinctive voice and the complainant maintained he had conversations with both men. In paragraph 2.13 on page 5 - - -
KIRBY J: Was the distinctiveness of the voice described as having something to do with an accent or something to do with quality?
MR MacGREGOR: It was educated Australian, your Honour. He refers to it being like a radio announcer's voice. I will come to that in a moment if I may. I just wanted to refer your Honours to the factual material referred to in paragraph 2.13 on page 5. The complainant alleged that he was in absolutely no doubt that lubrication was used to facilitate sexual contact with him. However, exhaustive scientific evidence detected no such lubrication.
GAUDRON J: Did it exclude it? That would go directly, would it not, to some of the counts? I mean, it may be if the Court were against you on the broader issues, there might nonetheless be room for doubting the satisfactoriness of some of the particular verdicts.
MR MacGREGOR: There is a reference at page 497 point 14 - this is of the analyst who attended the scene and made a forensic examination:
Now, when you examined some of the items like the - the sheet, bedspread, the clothing - various clothing - did you ever pick up any, what might be described loosely as - lubricant?.......No, I didn't see any stains that may have been lubricant. Had I have done so then they would have been tested.
Prosecuting counsel at page 500:
And you were asked by my learned friend about testing for lubricants. Can you indicate to the court why that wasn't done?.......If I'd seen any stains which I felt - were lubricant or could possibly be lubricant then I would have them specifically tested by the chemistry department in the laboratory - but I saw no such stains.
GAUDRON J: What about medical examination?
MR MacGREGOR: The complainant's evidence in relation to lubricant is in appeal book page 179. He spoke of "intense pain":
Did you say that there was some lubrication or something used yesterday, did you say that?.......Yes.
Now there is no doubt in your mind is there that lubrication was used?.......No doubt whatsoever.
Are you able to say whether it was a large amount or?.......Yes it was a large amount, I was lubricated at least three times over that night.
.....Three separate occasions, yes.....
You tell us do you that there is no doubt at all that lubrication was used?.......No doubt whatsoever.
Now how long did you say yesterday you were in this room?.......About six hours.
GAUDRON J: Any medical evidence on that matter?
MR MacGREGOR: No, your Honour, not beyond the negative evidence that Miss Boyd did not observe material and therefore did not test for it.
McHUGH J: There was evidence, was there not, that there was a jar of Nivea cream in a drawer alongside the bed?
MR MacGREGOR: I am unaware of that, your Honour.
GAUDRON J: I think that was in relation to the former occasion when the police officers visited.
MR MacGREGOR: I propose to deal with that shortly in relation to the tie evidence. Can I just, penultimately perhaps, refer your Honours to what is referred to at paragraph 2.15 on page 5, that the complainant suggested that his wrists had been tied tightly for a period of approximately six hours. However, when he was medically examined no bruising was detected to his wrists.
KIRBY J: But he could not have tied the bonding himself, could he? I think the suggestion is that it was not physically possible for him to tie the knot his brother found when he presented - - -
MR MacGREGOR: No, your Honour. If that evidence is accepted by the jury, it follows either that he was attacked by someone else after he was left by the appellant or he and some other person contrived to put him in that condition but, because of the presence of semen in his anus, it would seem more likely and more open to the jury to conclude and more open for anyone to conclude that he was attacked subsequently in the evening if the appellant's case - - -
KIRBY J: It does not necessarily indicate attack; it indicates a sexual encounter.
MR MacGREGOR: I am sorry, your Honour. If he has been tied up by other people, it would infer an attack. We have to accept that. May I just say something about the tie. In relation to the tie, we concede that the tie was admissible but, given the problems associated with the Crown case in the rejection by the jury entirely of the presence of a third individual and given the failure of the trial judge, in our submission, adequately to deal with the evidence of Dr Sale, the evidence of the tie was likely to be overwhelming. There was no evidence to the extent to which ties of this description, whatever the description was - the Crown suggests in its documents that the jury would have been entitled to conclude that they were identical. Might I have access to the tie and the - - -
KIRBY J: We have the photograph of the tie on the previous occasion but I have not seen the tie that was - the remnant found by the brother.
MR MacGREGOR: It is exhibit P8, your Honour. I do not know whether your Honours want to see it, but it is there with your Honours' staff.
KIRBY J: What is the page of the photograph?
MR MacGREGOR: Page 887. His Honour the trial judge and the Crown appropriately did not seek to lead the circumstances in which the photograph of the tie was taken by the police before the circumstances of this case, but the appellant himself introduced the question. Our submission in relation to the tie is that, absent any evidence of the extent to which such ties could clearly have been purchased at the Salamanca Market tie rack or - - -
KIRBY J: This is the weakest part of your case. I think it is just a fantasy to say that if the tie is there and the tie is the same as was in the photograph, that it was not available to the jury to pass upon it for whatever value it had.
MR MacGREGOR: We accept, your Honour, that it was admissible. The case that we seek to make is that, absent any evidence of - there being no other evidence linking the appellant with the offences beyond mere evidence of opportunity, the judge in the exercise of his discretion ought to have rejected it.
KIRBY J: Mr MacGregor, this is not the same tie as is in the photograph. There is no doubt. This is not the same tie. Have a look at the photograph. The photograph has curls and rings. It is the same colour.
MR BUGG: I am sorry, your Honour. What your Honour is looking at in the broad part of the tie in the photograph is the reverse with the split down it.
KIRBY J: I am sorry?
MR MacGREGOR: I think he means the back of the tie, your Honour.
KIRBY J: No, but it is not the back of the tie. The back of the tie has a large black cube on an orange background. It is, if I might say so, the same vulgar colour scheme but it is not the same tie.
MR MacGREGOR: We have no submission based on the aesthetics of the tie, your Honour, but I am assisted by your Honour's independent observation of it.
MR MacGREGOR: I think my learned friend will wish to say something about that, your Honour.
McHUGH J: You astonish me.
KIRBY J: Yes, it may be that the angulation of the ties distorts the pattern of the cubes. My first impression was that it was not the same tie, but it may well be.
McHUGH J: But you have got to deal with the cutting as well, do you not, because that tie has cuts, apart from the single cut that the brother inflicted on it, and that confirms the complainant's story that he attempted to cut himself free with a knife in the - - -
MR MacGREGOR: Yes, your Honour. The jury could well have been invited, or could be invited, in the circumstances of the case to assume that the tie was stolen from the home of the appellant, taken from his home.
GAUDRON J: By the complainant?
MR MacGREGOR: At some stage or that this was another tie, certainly that it was another tie.
McHUGH J: But circumstantial evidence works cumulatively by - - -
MR MacGREGOR: I accept that, your Honour.
McHUGH J: And you have the complainant in the bedroom itself. You have his detailed account of the furnishings in the bedroom, about the toilet. Your client said he never took him to the toilet. Are you going to deal with the sketch?
MR MacGREGOR: Your Honour, all of that is consistent with his presence in the house. None of it establishes sexual assault on him by the appellant.
McHUGH J: You add to that lies on your client's part, and it tends to strengthen the case.
MR MacGREGOR: We concede that the tie was strictly admissible but in all of the circumstances of the case, it being impossible for the jury to conclude that they were the same tie, it was likely to be seen by the jury out of all proportion to its essential probative value.
GAUDRON J: What was the appellant's evidence about the tie?
MR MacGREGOR: He did not produce a tie, his tie, at the trial. His evidence was that - - -
GAUDRON J: Did he not say - it might have been in the video recording - that he bundled up the ties and put them in a neighbourhood clothing bin or something?
MR MacGREGOR: There was some suggestion that his tie had been disposed of but he did not produce it at the trial and it would have been, of course, to his advantage if he had been able to do so, I concede that. One of your Honours observed that the tie point is not the strongest part of our case.
KIRBY J: It certainly is not.
MR MacGREGOR: Its difficulties are evident but it is, of course, not determinant of the case. It is an aspect of the case which the jury, once the evidence was admitted, they were entitled to have regard to it for its cumulative effect, but that - - -
KIRBY J: Was there an objection to the admission of the tie?
MR MacGREGOR: Yes, your Honour, there was. The tie was admitted over objection.
GAUDRON J: And it was not suggested in the course of cross-examination or in submissions to the jury that the complainant may have stolen this tie?
MR MacGREGOR: No it was not, your Honour and that is why I backed away from that when I suggested the alternative thesis is possible, that it was another tie. I mean, absent any evidence of the availability of such ties, and I do not say it lightly, I would refer to the tie racks at the Salamanca market. One just does not know. It may not be everyone's choice of tie but its availability and the extent to which it is favoured in Hobart is entirely speculative and I do not wish to say anything more about that.
It will have become apparent to your Honours that the substantial ground which we have sought to argue is the ground relating to ground 5. We rearticulated that in the document overnight. They are our submissions.
GAUDRON J: Thank you Mr MacGregor. Yes, Mr Bugg.
MR BUGG: Yes, thank you, your Honour. Your Honours, perhaps if I could just deal with the tie at this stage whilst it is still available. Your Honour Justice Kirby expressed the view that this may not be the same tie as that in the photograph which is contained in the appeal book. If I could just obtain the tie back, please.
As presented to the jury, the tie was still knotted and one can only assume that appellate review has resulted in the tie being undone but, in any event, the portions of the tie to which I would ask your Honours to pay particular note are, first of all, that portion which is creased with the rather distinctive joining of the pattern through the stitching in the tie which can be seen about halfway along the length of the tie, the narrow section of the tie, if I could just pass that up to your Honours.
KIRBY J: The things that led me to say that it might not be the same tie were first, the quality of the material looks like rayon and not the fibre material that is demonstrated by the actual tie that is the exhibit. Secondly, the black cubes appear to be much more angular in the tie you are holding than in the photograph, that they appear to be more rounded, but I think, as Justice Gaudron suggested to me, that might be because of the way it is crumpled in the photograph and that that has given an image of it that is slightly different to when you lay it out flat.
MR BUGG: Yes.
KIRBY J: So I am content that it is the same tie.
MR BUGG: Your Honour, the odd pattern that can be seen just upwards of the seat of the chair where there is a dark round pattern on the outside and then a rather S-shaped darker portion, that is on the reverse or the back of the tie which can be seen there, because - - -
GAUDRON J: Why were we looking at the shorter part, Mr Bugg?
MR BUGG: Because, your Honour, the shorter part which has the single cut through it, your Honour will see about halfway along the horizontal length of the tie there is a section where there is the lighter coloured circle; and then to the right of it there is a dark portion which is oddly patterned and that corresponds with the join in the fabric of the tie which Justice Kirby now has.
KIRBY J: The reason that I am willing to concede that it is the same tie is that I cannot believe that, even with the imagination of modern art creations, that there could be two such similar ties.
MR BUGG: Your Honour, I would go so far as to say that somewhere between 8.45 pm, which is the approximate time on the Tuesday evening, which the appellant says he left the complainant in North Hobart, and 4 am the following morning, to suggest that the complainant who when he was left was intoxicated and on his own had the resources to find a tie like that somewhere in North Hobart - - -
KIRBY J: No, but the alternative hypothesis is either that the appellant threw it out and somebody else used it or, secondly, that the appellant was not guilty of this sexual assault but that he had some association with people who have sexual encounters of a consensual kind in bondage and that somehow that tie fell into the hands of those persons. That would be consistent with the fact that the semen did not identify the appellant as it might have and it would be consistent with his innocence of the particular assault which he has denied. People stand for trial on the crime of which they are accused, not on the basis of their general sexual activity.
MR BUGG: No, I was not suggesting that at all, your Honour. But what I was suggesting in so far as this tie is concerned is that it was suggested to the complainant at trial and put to the jury that he had made this story up, that the assault had not even happened upon him, let alone happened within the home of the appellant. The suggestion, therefore, was that the tie was part of the fabrication by the complainant of the allegation of sexual assault upon him within the home of the appellant. It was squarely put to him in cross-examination and put as part of the closing by the appellant. It was not - - -
KIRBY J: That is now withdrawn, but it would be consistent, assuming, as the law requires, that the appellant is innocent and he is faced with a person making these accusations against him, one possible theory is that it is a complete falsehood, a theory which, at least, would be consistent with a person with a long history of making sexual complaints, and alcoholism, and other drug abuse. But it is now accepted that some sexual encounter, probably an assault, took place on the accused and that line of questioning is no longer relevant.
MR BUGG: Then the suggestion is that the sexual assault upon him occurred. The probability of it being a sexual assault, in my submission, is borne out by the fact that, first of all, he had over his head a pillowcase because there was a blood staining on the interior of the pillowcase which matched that of the complainant, and that was found at the first residence he attempted to gain entry and some assistance from his brother, there being clear support for the proposition that, at that point, his hands were tied behind his back because there was damage to the back door of the house consistent with the kicking which the complainant told the court he had had to effect to try and gain his brother's attention.
KIRBY J: That is damage to the brother's house back door?
MR BUGG: That is the first house in Elizabeth Street, North Hobart.
KIRBY J: Again, that is consistent with an assault occurring. It is not necessarily indicative that the perpetrator is the appellant.
MR BUGG: Yes, I was only directing my attention to your Honour's proposition that, ignoring now the fact that the appellant appears to accept that there was some sexual conduct and in some probability a sexual assault upon the complainant because of the hands being tied, I said there is support for it being an assault because there was blood on the interior of the pillowcase which was found at the brother's house which makes the complainant - and the unchallenged evidence of the forensic scientist who examined it was that the blood came from the inside of the pillowcase. It is certainly consistent with an assault, so the jury then is confronted with the proposition that the complainant was sexually assaulted. His hands were tied with a necktie and that that necktie was in the residence of the complainant four months previously.
When cross-examined about it and asked about it by the police he, first of all, claimed that he did not have a tie, he would not own a tie like that - orange was not his colour. He then opined that it was possible that it went out with some clothing which he put out to the op shop at the local church hall. Evidence was called to suggest that that occurred after the assault and not before, that being the evidence of Mrs Bennett which is an addition to the appeal book material that is before the Court, Mrs Bennett being the yoga teacher who used the church hall for her classes, who also observed in the church hall on her return from holiday in early March not only a bag of clothing which was linked to the appellant, but also an antique bed warmer, which was also identified as being property of the appellant which the complainant had clearly described and identified to the police as being in the home of the appellant at the time the assault occurred. The jury was - - -
KIRBY J: That is a bit like - that is the converse of the points that Justice Hayne was asking of Mr MacGregor, that there is no doubt that the complainant was in the appellant's home and saw a bed warmer. So, what does that prove?
MR BUGG: He not only saw it, your Honour, he spoke to the appellant about it which then adds some significance to the fact that the appellant moves an antique bed warmer into a secluded and hidden spot - it was in a locked room, not in the op shop area of the hall - some time after the assault, together with some items of clothing.
McHUGH J: But the main point that you draw from the complainant's accurate description of the contents of the bedroom and the toilet and so on is to show that it is totally inconsistent with the appellant's contention that he was there, dead drunk, for three quarters of an hour, and then taken away. And, also, the fact that the appellant is able to recall with such accurate detail all these other facts tends to indicate that his evidence is not as unreliable as might otherwise be thought.
MR BUGG: Quite right, your Honour, and that is why you will see in the outline of submissions that reference is made to the proposition that if a person was in this paralytic state, as the appellant suggested, for only three quarters of an hour in the house, he retained a remarkable amount of information and was able to give a very accurate description of it. I do not know whether your Honours have examined those sketches that are contained in the additional material.
McHUGH J: Yes, I have. There was some notations on them. Were they put on by a policeman?
MR BUGG: No, they are the complainant's as well.
McHUGH J: Were they?
MR BUGG: Yes. That is the handwriting of the complainant and your Honours may recall reading in portion of the transcript where he said that the other - - -
McHUGH J: What page is it again, Mr Bugg?
MR BUGG: Page 70 in the fifth volume.
MR BUGG: You see, he gives the two names "Tom the gent" and "Frank the animal" at the top. That is his own brown leather lounge. Of course, the jury had with it as well photographs taken of the interior of the appellant's residence and there was, if I could turn to the third page of those sketches, a photograph which should be with the exhibit material. The evidence of the appellant was - - -
McHUGH J: Can I just interrupt you to say what confused me was that 72 - that sketch at 72, whose is that?
MR BUGG: That is the complainant's.
McHUGH J: What about this writing down at the bottom, something about a paper for who appearing at court?
MR BUGG: Yes, they are his notes and he gave evidence about it. He was in hospital at ward 6A in the Royal Hobart Hospital and he made these notes. He said "Check for who is appearing at court and get paper reports of the assault". He explained what he meant by that. I can draw your Honour's attention to it if I have a moment.
McHUGH J: Yes.
MR BUGG: Photograph 42.
KIRBY J: He was in hospital for detoxification?
MR BUGG: He was, yes. I might say, your Honour Justice Kirby said that there was this history of making allegations of sexual assaults. In fact, the summary of material that was placed before the Court yesterday of the medical history and reports did also refer specifically on the last page - which I must say I had not seen; it had not come through on the fax machine - to two fairly extensive and detailed reports which were provided after these assaults and clearly, I would be submitting, the concentration and attention of those persons counselling this man after this incident would be focusing upon his distress and concern about what had happened to him and therefore, obviously, there would be some emphasis in questioning him about that and why it had upset him and what have you, and it is the only assault upon him that he had made allegations about that was contained in the report.
KIRBY J: I thought the record showed he made a complaint about an assault by his brother when he was a child.
MR BUGG: Yes, I am sorry, your Honour.
KIRBY J: A complaint against his mother in relation to a sexual assault when he was 18; a complaint against two people on the roadside who threw him out of the car at 18; a complaint when he was 23, and they were a sort of a series; and then this complaint.
MR BUGG: I do not think he had ever made a complaint that he was sexually assaulted at the age of 23.
KIRBY J: That is the one of working backwards from the date he made the complaint and saying it happened four years before, I think.
MR BUGG: Could I just draw your attention - Justice Gaudron, you now have the photographs but at photograph 40 in that bundle was before the jury. This is the bedroom in which it is alleged that the assaults took place. Your Honours will see the sketch has two spotlights which are on a strip spotlighting system. There is a bedside chest of drawers. There is also the opposite bedside chest of drawers in one of the earlier photographs - photograph 42. Of course, this material is before the jury and the appellant is telling the court that he, with some difficulty, helped the complainant up to this room, who was paralytic, placed him on the bed, and he slept until - he then left him there for three-quarters of an hour and came back and woke him up, put his shoes on and took him downstairs, the suggestion being that he was effectively in a drunken stupor or sleep for the three-quarters of an hour that he was there.
KIRBY J: But presumably also sufficiently recovered to take him and put him back on the street?
MR BUGG: That is addressed in the outline of submissions, your Honour, and certainly it seemed to be the case that the appellant was saying he was only marginally better in terms of his level of sobriety or an improvement on his level of intoxication.
KIRBY J: Did he give him coffee? There was some uncertainty about that.
MR BUGG: It is suggested in the outline of submissions that he was given a cup of coffee before he was taken away. That is just not so.
MR MacGREGOR: He says that in the record of interview. He says in the record of interview which was in evidence, and I can give you the page reference.
MR BUGG: I will be assisted by my learned friend on this one.
MR MacGREGOR: Page 900 point 5.
KIRBY J: Because, otherwise, the question is: what is the whole point of taking him to the place?
MR BUGG: Yes.
KIRBY J: If he just going to keep him there for three-quarters of an hour and then put him back, basically, where he found him, what was the whole point of the exercise?
MR BUGG: And, your Honour, therefore, the implausibility of his explanation for one, putting him in the bedroom and, two, taking him away. He suggested at one stage to the police when he was interviewed that the reason he took him back and put him on the street was that he thought he might go out and have a meal. I am told page 900 point 5.
HAYNE J: The appellant appears to have made a cup of coffee which, according to this version of events, the victim did not drink, but perhaps I am mistaken.
MR BUGG: That is correct, your Honour, and in fact that is when he first brought him to the house. He brought him to the house, placed him in the chair, made the cup of coffee and he turned around and he was asleep, so he did not drink the cup of coffee. He then took him up to his room. Then brought him back down three-quarters of an hour later and took him straight out - no visit to the toilet. This man is able to sketch, as your Honours will see from the photographs, the location of the cistern and the toilet and the window in a toilet that he did not even enter.
McHUGH J: The complainant had urinated in his clothes, had he not?
MR BUGG: Yes.
McHUGH J: Was he stripped? Does the appellant say anything about his state of dress when he was put up there in this bedroom?
MR BUGG: He took his shoes off.
McHUGH J: Only his shoes off?
MR BUGG: Yes, it was put to him, did he take any of his clothes off because of his shorts which he had urinated in; and he said, "No, certainly not".
McHUGH J: Mr Bugg, let it be assumed that it was open to the jury to be satisfied beyond reasonable doubt that this appellant had lied his head off, that he had actually gone and got his car for the purpose of taking the complainant there, that the complainant was raped there. The fact is the jury acquitted the appellant of the charges of being an accessory. Why is the verdict safe and satisfactory in respect of the specific counts upon which he was convicted? May not it have been that it was "Frank" or "the animal" that penetrated him? What evidence is there that makes it safe to think that it was the appellant that committed these particular offences? After all, the appellant was not charged with conspiracy to rape. If he had been, there would seem to be a powerful case but you are stuck with verdicts on these individual counts by somebody whose evidence may be regarded as very unreliable.
MR BUGG: I accept that, your Honour, and I have endeavoured in summary form obviously to explain that in the outline of submissions. Might I just take your Honours as an introductory step to addressing that particular issue to his Honour's directions to the jury on this very issue.
KIRBY J: Who was the trial judge in this case?
MR BUGG: Justice Underwood.
KIRBY J: Is it a convention in this State not to mention the trial judge? I notice - it was a mystery. I could not find it.
MR BUGG: I am unaware of it, your Honour. I think everyone stands up to be counted but it is just that we do not have a separate appeal court, so I suppose, you know one day it is going to be your lot as well.
McHUGH J: I knew it was Justice Underwood. I do not know where I got that from, I must have got it from somewhere in the appeal books.
MR BUGG: Your Honour, I - - -
KIRBY J: Justice McHugh is a better detective than I am.
MR BUGG: I cannot say that it would be through familiarity of his work before this Court, your Honour.
MR MacGREGOR: It appears in line 2 of our outline.
MR BUGG: Might I take you to page 947 of volume 4 of the appeal book, your Honours. At the foot of the page his Honour starts to give the jury a direction about the issue concerning the co-offender, and he says at the top of page 948:
Secondly that the accused was purposely present at the time of the commission of the crime and by that presence and/or words and/or behaviour he intended to encourage the principal offender, that's Frank, to commit the crime charged, thirdly that the accused in fact encouraged Frank to commit that crime and at the time he intended to encourage.
It is this direction on the issue of abetting that, in my submission, makes the jury verdict quite understandable and not apparently inconsistent with the flow of the verdicts which were returned. If I could take your Honours now - - -
McHUGH J: But the point I was putting to you is not a point of inconsistency, it is a point that the accused has been acquitted himself of being an accessory. That is not necessarily inconsistent with finding that Frank had committed a rape on this person.
MR BUGG: That is right. What I am saying is that the acquittal is merely a lack of satisfaction to the requisite degree that, at the time the appellant was in the room, he was providing the encouragement and intending to provide the encouragement by mere presence. If I could take the Court now to page 949 - - -
KIRBY J: Can I just ask you was there any evidence that the appellant was named or known as Tom, that it was a nickname of some kind?
MR BUGG: No, there was no evidence about any of his prior background or history where the name Tom had been used as a nickname, your Honour.
KIRBY J: Was there any evidence of his having any friend named Frank?
MR BUGG: No, there was not. If I could take your Honours to page 949, in answer to that question from Justice McHugh, at about line 26, his Honour said:
Now, the evidence from the complainant simply was that Tom came up and said "Frank's going to have intercourse with you now" and then he detailed the indecent assault and he detailed the rape.
And then at line 34, his Honour said:
The law is that mere presence at the scene of a crime does not amount to abetting. So if you were walking through the park -
et cetera, and he continues - - -
KIRBY J: But the case for the complainant was not mere presence. This is never a case of him just being there. The case was one of a dual activity, encouragement, participation, really a joint enterprise. Objectively, the DNA is not there and therefore it is very much in the hands of the truth telling of the complainant. Obviously, the jury had real doubts about the Frank case because not a single Frank count got up and therefore that has to be assumed that that was rejected or not found to be proved to the requisite standard. The only objective element is the tie.
MR BUGG: I just wanted to say to your Honour about this Frank count, when your Honour talks about the Frank count, it is consistent with the jury verdict of not guilty on those counts, that they were not satisfied beyond a reasonable doubt that the appellant, who was only in the room at the time - the complainant gave no evidence that he, in some way, abetted by words or in some way by actions, encouraged Frank in what was happening at the time. Your Honours would conclude when you read the pages I have just referred Justice McHugh to, concluding at the top of page 951, that his Honour was almost directing the jury that there was insufficient evidence for them to be satisfied of positive acts of encouragement or intended acts of encouragement sufficient to ground verdicts of guilty of those two counts.
KIRBY J: It seems very hard for me to accept because, if they are in a room and sexual encounters are allegedly taking place and the victim is tied, it is a little unreal to say that the person is just there standing by looking. It has the flavour of a joint enterprise.
MR BUGG: The evidence on that is in volume 1 of the appeal book at page 52:
And was he in the room the whole time?.......Yes he was.
Was he saying anything?.......No, he wasn't saying anything.
Did you observe him do anything?.......No, not really, no.
So, his Honour is confronted with a neutral position, shall we say, as far as this person is concerned and the directions which he gave the jury and I can read them out in their entirety, but I invite your Honours to examine them because what - - -
KIRBY J: But was there not some evidence that Frank said, "No, I'm not into that", and that there was some suggestion that, as it were, Tom was helping Frank to do something and Frank said he was not - I only read this very quickly and I may have misunderstood it.
MR BUGG: Yes, that is at the top of page 50.
KIRBY J: It just seems a trifle unreal in a sexual encounter of this kind to say, "Oh, well, he just happens to be there"; it is as if he has caught the bus and he has just walked in. It just does not seem real.
MR BUGG: I understand that, your Honour, but might I just take you to page 950 because this Court in MacKenzie said that, obviously, in examining the jury verdicts, if there are apparent inconsistencies, there may be a number of explanations and one of them identified and recognised by the Court was of course the way in which the jury was directed by the trial judge, and at line 30, his Honour is there talking about Frank and he says:
"We are satisfied beyond reasonable doubt that he was there on purpose, and he stayed there on purpose and by staying there he intended to encourage the commission of the crime and it in fact had that right effect." Now if you go back to the elements, with that explanation, you will see the importance of element B which uses that word "purposely" present at the time of the commission of the crime. You would have to be satisfied about that and by that presence and/or words "Frank's going to have intercourse with you now", and/or behaviour, which is really only presence, on the evidence, he intended to encourage and he in fact encouraged. Let me put it to you finally in this way, it's not enough to prove that the accused's presence in fact gave Frank encouragement to commit the crimes, it must also be proved that the accused intended to give that encouragement, that he wilfully encouraged.
And then he concludes, and at the foot of the page, or towards the foot of the page, line 27:
But in this case, apart from the evidence that "Frank's going to have intercourse -
in quotations:
apart from that, the only evidence is of mere presence so you must be very careful to be satisfied beyond reasonable doubt that by his presence the accused intended to give encouragement and in fact gave it. I won't go through it again. Have I made that clear to you?
And, clearly, he gets an affirmative response from the jury and he says:
All right, thank you. It needs very careful attention.
Now, with that direction and the identification of such an issue as being a very important factor in an appellate court review of the consistency of verdicts in MacKenzie, in my submission, the not guilty verdict on the Frank counts are quite consistent and understandable. If you walked into a summing up and heard that, you would clearly, in my submission, reach the conclusion that there is a person who perhaps has not been there for the entire trial, but the trial judge was saying to the jury, "Look, be very careful of these two because you have not only got to be satisfied of that, you have got to be satisfied of this".
McHUGH J: I know, but I may not have made myself plain. You still have not met my difficulty at the moment. Given that the sperm was found in his anus, given that he was tied up, there is an overpowering case that he was raped by somebody. Having regard to his description and the fact that he was there, one might say there is an overpowering case he was raped in this home, but whether he was raped by the appellant in the end, it seems to me, to depend entirely on his word, having regard to the fact that this other man, Frank, was there. No Frank, no problems, but why is it not all explicable, that is the objective evidence, the sperm, consistent with Frank or the other person being the person who had intercourse with him? That is why I asked you as to whether or not these verdicts are not unreliable or unsafe having regard to the fact that in the end it really depends on his evidence.
MR BUGG: And, of course, obviously the jury's careful treatment of the evidence of the appellant and in terms, as your Honour said, that they would reach or it was quite open to them to reach the conclusion that he had lied his head off.
McHUGH J: Well, that is right. It may be the consciousness of guilt evidenced by the lies is enough to make it not unsafe and unsatisfactory.
MR BUGG: I mean, when you put it all in the balance and you have got a person who removes a bed warmer from the house and puts it in the church hall and the complainant says that the person Tom, "I spoke to him about the bed warmer."
McHUGH J: I appreciate that, but it is all consistent, nevertheless, with an incident having happened there.
MR BUGG: Yes, and you link - you identify the appellant as the person who collected him from the hotel or from the footpath outside the hotel, the strange circumstances which the jury was entitled to conclude was strange and the period of time it took him to get his car if it was only 100 metres down the road - sorry, in the same street, but the women who were standing with the complainant were looking and wondering where he had gone to.
McHUGH J: The theory of the Crown case was that he did not have his car there. He had gone home to get the car so he could drive him there - - -
MR BUGG: An opportunity presented itself. He went home and got the car and picked him up. I think the use of the term "picked him up" was criticised at the special leave hearing, but it was in that context that it was used in the outline of submissions.
KIRBY J: I do not quite understand the use of the car. What was the theory behind his going off, given that his home was so close to the hotel? Was this to allay the women who had attended to the complainant?
MR BUGG: The Crown case was that he had preyed upon the complainant, that he was apparent and obvious to him within the bar. In fact I was a little generous to the appellant in the outline of submissions. I said there were approximately 11 people. If you excluded bar staff, the estimates were for three to eight people from the three people working in the hotel at the time.
KIRBY J: And that consistent with this was the fact that he left a full schooner of beer, I think.
MR BUGG: Yes, walked out leaving a full beer in the hotel when the complainant had obviously collapsed on the roadside because there was some conversation in the bar about a person being on the street. The barman Taylor gave some evidence about that. The appellant leaves, leaving an untouched beer on the bar. I do not think it was a schooner, your Honour. Our beers are slightly smaller down here. It was a seven-ounce beer and the proposition being that he went out and the opportunity then presented itself for him to get this person and take him back to his house. So he walked to his home, collected his car and returned.
KIRBY J: It could have been needed to get a person who was obviously very affected by alcohol back to the home.
MR BUGG: Paralytic, yes.
McHUGH J: And to make it easier to get him into the car in any event, otherwise you are going to have to - he would not have got him to go with him probably unless you have got the car.
KIRBY J: Of course we have all learned the story of the good Samaritan. It could be an act of kindness on the part of a minister of religion, but that does not square nicely with taking him back virtually an hour later.
MR BUGG: That is the inconsistency there, your Honour, which he has addressed in the outline of submissions, that if that was his intention, to look after him and it was a genuine and frank act of kindness, why did he feel so concerned about having him in his living room that some people may see him there and either be apprehensive for his well-being or draw some adverse inference against him. So he removed him from there in that condition to put him on his bed.
McHUGH J: Did the appellant give any explanation as to why he woke him up, the complainant having fallen asleep downstairs?
MR BUGG: Yes, there were three - well, sorry, the first explanation was that he was untidy sitting there, so he thought he would move him out of the way. The second one was that he thought that Miss Withington, his secretary, may come to the house and because of what had happened to him in the house approximately four months previously, she would be apprehensive about the fact that he had a drunk in the house. When cross-examined about that, and that is addressed in the outline, your Honour, his response was, "Did you expect Miss Withington to come to the house?", he said, "No." When asked why he put him on his bed and not the bed in the spare room, he said there was washing on the bed in the spare room and it would have been difficult to move that off the bed and put him on - - -
KIRBY J: This is a person who had already urinated in his clothing and had some blood, I think- - -
MR BUGG: That is right and had gashed knees from where he had fallen over off his pushbike making his way home from one of the parks he had been in that day. The matter which just springs to mind in response to something my learned friend put to you about the examination of the bedspread or the bedding, that occurred approximately eight days after the event and after the bed warmer had been removed and some clothing.
KIRBY J: Is this the examination for the lubricant?
MR BUGG: Yes.
KIRBY J: I see.
McHUGH J: There was evidence in his record of interview that he did have Nivea creme in the bathroom and there was evidence about it being in a drawer, but that was crossed out of the record of interview. Did the police officers give evidence of observing it there?
MR BUGG: There was a significant amount of material removed from the record of interview following submissions by the appellant's counsel at trial because the evidence of that earlier incident in October the previous year was excised from the transcript of interview and the actual video tape of the interview. Later when the appellant gave evidence, of course, he gave evidence about it, about the incident and so it all came back in. So having objected to it and having had it excluded, which is why you have those passages of transcript with the markings across them and that, your Honour, is why, but as I understand it, and I can confirm that obviously before concluding my submissions, but the situation so far as the Nivea creme is concerned, it was in the drawer in the bedside table at the October incident and there is a photograph of it in the set of exhibit photographs tendered, but the appellant's evidence at the time of search of the house was that it was in the bathroom.
KIRBY J: Is this not a bit like the KY jelly in a recent case involving a school teacher. I think we have to be a little careful about people can have these things for their own sexual use and it has just got nothing to do with establishing that they are guilty of a serious offence of rape.
MR BUGG: Your Honour, there is no mention in the outline of submissions of Nivea creme.
KIRBY J: Some people use Nivea creme for their faces.
MR BUGG: Well, that was the appellant's explanation, that he suffered from chapped lips after shaving and he needed it for that and, I am sorry, it is not a matter of which any point is made in the respondent's submissions, but certainly that, your Honour Justice McHugh, is why there is that excision of it from the transcript in the material in the appeal book.
GAUDRON J: And it did not go back into evidence?
MR BUGG: The only extent to which it went back into evidence was that there was cross-examination about precisely what had happened to the appellant at the time of the assault, namely that his hands were tied with neckties, his neckties, and that a knife was held to his throat. I should just address those other two verdicts because of the question of inconsistency. They are discussed in the outline of submissions and the explanations put as to why a jury may have entertained a reasonable doubt about that and, in my submission, it is critical to any examination of the question of inconsistency for the Court to read the entirety of his Honour's directions to the jury about the way in which they should exercise care before being satisfied beyond a reasonable doubt.
It appears on a number of occasions through his Honour's summing up and in the case of the not guilty verdict on the count of oral rape it must be remembered that that complaint was not made until after he had been examined by the doctor. He was examined by the medical practitioner at about 5.30 in the morning, recalling that he went to his brother's house at approximately 4.00 am. So about an hour and a half he had visited his brother's home, his second brother, he was medically examined and at that time he made no allegation of oral rape. It was only later that he made that allegation.
Secondly, in relation to the allegation of assault with the knife, there was very little evidence about that other than that he said the knife was held to his throat, nothing was said, and it was dealt with out of chronology when he gave his evidence. He came back to it within the transcript almost as an afterthought and when his Honour addressed that in his summing up to the jury at the foot of page 975 he says:
Chronologically he did not deal with count 10, the knife assault, first.
He then details the evidence at page 976 and the page references are contained in the outline of submissions, but at line 30 on page 976 he says:
"At one stage in the night Tom came up with a knife and held it to my throat" and that was his evidence about count 10 -
that was all and there is no objective evidence to support either of those counts and his Honour, of course, was directing the jury throughout to look for that objective evidence to support the account given by the complainant, which, of course, he had given a very careful warning to them about.
KIRBY J: There was not a lot of objective evidence in relation to the appellant though, was there?
MR BUGG: No, there was not.
KIRBY J: There was no sperm and there was just really the tie. The description of the house was consistent with his being there in a lesser state of intoxication and effectively it all depended on the acceptance of the complainant and that is what made the direction about Dr Sale so important.
MR BUGG: Yes. Obviously I will come to that, your Honour. If I could just give you by way of a couple of illustrations the return to this caution about the complainant's evidence and then I will move on and deal with the question of Dr Sale's evidence, but take, for example, it is in volume 4 of the appeal books at page 971 at line 4. He is talking there about the necktie, that is line 4 to line 10, and then at page 967 at the foot of the page at about line 34 he says:
That's why I say to you the bottom line is you've got to be satisfied about the complainant's account. But you can test that by looking at all the other evidence that you accept,
and - - -
GAUDRON J: What page was that, Mr Bugg?
MR BUGG: I am sorry, 967, your Honour, line 34. Page 979 - and there are a number of these references - line 10:
So you see you come back to the proposition well if he was tied up with his hands behind his back, query the pillow, case, with semen in his anus, how did all this happen? And you're back again to the central question about whether you accept his evidence as being an accurate account.
And he deals with the evidence of the blood, the bloodstain being on the inside and once again relates that to this need to look for objective support for the complainant's account on the previous page, 978, at about line 14, and there are, as I say in the outline of submissions, other illustrations of matters akin to that. His Honour, of course, gave very careful, before moving off that ground of appeal - I do say that there are five grounds in the notice, but it appears from the outline of submissions only three are now in contention before this Court. His Honour's directions as to lies are contained on pages 956 to 958 and his direction, Shepherd direction, as to the tie is contained on pages 959 to 962.
In terms of the relevance of the inconsistency of the verdicts, if it is suggested that they are inconsistent after that explanation then, in my submission, careful consideration of his Honour's very careful direction to the jury as to how they should deal with each of these matters gives an indication - - -
KIRBY J: I think in MacKenzie the Court rather suggested that the price of the high specificity of counts and the need to give particular directions and to take particular attention to particular accounts is that it will be a rational possibility that juries will take different views about particular counts.
MR BUGG: And that is precisely what his Honour did. He dealt with each individual count and gave them a directed acquittal in relation to the last of the counts, of anal rape alleged against the appellant, and obviously from his directions pointed them in that direction in relation to the then remaining last count and identified the four separate occasions of anal rape that the complainant had given evidence about and he dealt with each count individually, addressed the evidence relevant to it and, as I say, gave those, one might say from the appellant's point of view, encouraging and, from the Crown's point of view, discouraging directions in relation to the abetting culpability of the appellant in relation to the last two counts on the indictment.
If I could turn now to the evidence of Dr Sale. I have tried in the outline of submissions to fairly put the evidence of Dr Sale at its high-water mark. I was concerned that my learned friend yesterday was submitting that before his Honour the Crown had relied upon the judgment of Justice Brennan in the report of Bromley where the application for special leave was refused, but in fact there seemed to be no difference between counsel that the submissions made by the Crown in relation to the relevance of those particular passages from Bromley was correct because, if I could just take your Honours' attention to page 817 in volume 4 of the appeal book, having made submissions about Justice Brennan's reported judgment in Bromley, his Honour invited the learned trial counsel for the appellant to respond and he said at line 15 on page 817:
I don't disagree with any principle of law mentioned by my friend -
Well, his Honour clearly had an acceptance of what now appears is being suggested is either an inappropriate or unfair presentation of the purport of the rejection of the special leave application - - -
KIRBY J: I do not think the complaint is unfairness. It can hardly be so in the light of that concession. The complaint is inaccuracy; that Justice Brennan rather reflecting MacKenney and Toohey has taken a view that it has to be established that there is a medical condition. That seems to be the view that Justice Underwood took whereas the majority in Bromley seems to suggest that because of the imprecision of this area of discipline you have to allow for a possibility.
MR BUGG: Yes, it is difficult to draw a majority view of Bromley because in reality the other three members of the Court were agreeing with the reasoning for refusing special leave given by the then Chief Justice which, of course, had more to do with the adequacy of the trial judge's direction as to the care which the jury should take and, of course, the significance of Bromley is here is Carter, a florid schizophrenic, giving evidence in court and there was no expert evidence about either his schizophrenia or the impact that may have had on his ability to recall, record or accurately identify the evidence he was giving as a memory record of the incident.
The evidence of his schizophrenia was actually presented to the court by his sister and his mother and, I suppose, assisted by the fact that he claimed that he had seen the devil on that night as well, but in any event the existence of a disorder, schizophrenia, was acknowledged, not supported by any expert evidence, and the directions given by the trial judge, accepted in the Court of Criminal Appeal, and obviously identified as being adequate in the circumstances because of the rejection of the application for special leave and it seemed to me that if you looked for some basis of obtaining a majority view from those two judgments there is little to assist from the concurring comments of the other three members of the Court that they have made a distinction and given some acceptance to that distinction of treatment that can be - - -
KIRBY J: But is not the view that Chief Justice Gibbs expressed the correct one, given the imprecision of this area of discipline, that you cannot expect it to be cut and dried as you can, say, with a subdural haematoma, that this is not that sort of condition and upon it, it would be unrealistic and unfair to demand absolute certainty?
MR BUGG: Yes, I would not seek to argue that that particular issue from his Honour the former Chief Justice's judgment is correct, but the position, when one looks at what his Honour the Chief Justice was examining, he obviously considered the question of whether a witness may be potentially unreliable and my learned friend seemed to place some emphasis on those words "may be potentially" which occur at page 319 of the report about 14 lines from the top of the page, but the next paragraph of his Honour's judgment reads:
If it appears that a witness whose evidence is important has some mental disability -
in other words, not may have, if it appears that the witness has some mental disability, and that is why his Honour Justice Underwood, in my submission, was insistent that the witness give evidence where the witness had an opinion that this particular complainant had a particular disorder which may affect his or her capacity and his Honour was not seeking an indication from the witness that it did affect the evidence they had given, but it may affect the capacity to give evidence or it did affect the capacity to give evidence or:
to give reliable evidence, common sense clearly dictates that the jury should be given a warning,
Now, his Honour was confronted, if I can take you back now to page 817, with this proposition as to the evidence which was to be given by Dr Sale at line 20 - I am sorry, I will read that whole passage. Having acknowledged or agreed with the correctness, or not disagreed with the correctness, in principle of the submissions from the Crown he then went on to say:
this evidence is admissible, the challenge here really is a challenge to its weight -
its weight being the weight of the complainant's evidence -
It's a question of what weight the jury are prepared to put on it. The witness -
and this time it is Dr Sale -
can give evidence that in the material he was provided with that was a basis for which to draw certain inferences from which he made a, or was able to form observations concerning possible clinical states and what he saw in that material was consistent with possible clinical - identifiable possible clinical states. That's admissible, in my respectful submission.
And his Honour said:
Well, I suppose anything is possible -
and that was a response to the proposition that this evidence was going to talk about possibilities, possible clinical states and what have you. So his Honour then invited defence counsel to question the witness and the jury is still present and the jury was present throughout the entirety of those submissions that precede that particular point of transcript and at the foot of the next page his Honour says:
The question is what mental disorder did you opine he suffered from on the material you read?
And that followed a lengthy exchange between defence counsel and the witness where his Honour had said at the foot of the previous page:
ask him the question first of all whether he was able to form an opinion about whether the complainant had any mental disorder, based on the material that he's read?
So he then takes over and, in my submission, if one reads what went on beforehand it was necessary for his Honour to take over:
Right, your Honour, sorry. He suffers from alcohol dependence and poly substance abuse.
And over the next few pages of transcript the witness was asked a number of questions about the disorders that either he observed, having seen part of the evidence given by the complainant, having read the transcript of the evidence given by the complainant, having seen the material which was tendered and is now before your Honours and read the reports and expressions of opinion by other clinicians who had examined the complainant he gives poly substance abuse and alcohol abuse. His Honour interrupted when the witness at page 826 tried to talk about the effects of long-term alcohol abuse resulting in a Korsakoff state and quite correctly his Honour said, "Well, look, just a moment. Did you form the opinion that he had a Korsakoff state?" And he said, "No, I was unable to form that opinion." And he said, "So the answer is you don't have that opinion?" Then at the foot of page 827 - - -
KIRBY J: Was that because the doctor could not examine the complainant or was it for any other reason?
MR BUGG: Well, he did not - - -
KIRBY J: Because there is some indication, not necessarily Korsakoff, but in the medical records of repeated complaints of memory loss. It is mentioned several times in the medical reports.
MR BUGG: And blackouts, yes. Yes, I accept that, your Honour, but the doctor does not take that material so far as to say, "This is a Korsakoff state." And I could not find anywhere where he mentioned confabulation either, which was put to this Court yesterday, which, of course, was the problem with Morris and a confabulation was never a proposition which the doctor either expressed an opinion about or suggested was apparent or evident from the material which he had examined.
Now, I take your Honours to the outline of submissions which commences at page 10 and there contains a summary of the relevant passages from the evidence given by Dr Sale. He expressed the opinion that the complainant suffered from a personality disorder which fell into two categories, but his description of personality disorder at the top of page 820 that:
A personality disorder is a - perhaps more like a disability than an illness. It's a situation where an individual has a characteristic way of behaving, of responding to situations, of doing things that is mal-adaptive -
so it is a characteristic way of behaviour and, of course, he then described the two personality disorders from which it was his opinion the complainant suffered, the first one being borderline personality disorder. I take your Honours to page 838 where, at line 6 on page 838, when he was asked to confine it to something that was attributable to personality disorder and he said:
Other than the suicidal behaviour the substance abuse is a frequent manifestation of borderline personality disorder and clearly seems to be present in this case.
So you have got suicidal behaviour and substance abuse being manifestations of this man's borderline personality disorder. He specifically rejected the proposition then put to him by defence counsel in the next question that borderline personality disorder had something to do with deceitful behaviour or conduct and he said, no:
That's with the anti-social personality disorder.
He was then asked:
Did you see anything in the literature concerning -
and he is now moving on to anti-social personality disorder and his Honour took him back away from that to clarify this question of borderline personality disorder the ultimate clarification of which was at page 840 where he said:
A borderline personality disorder will have no impact upon memory or reporting.
That is at the foot of the page, "will have no impact upon". So - - -
KIRBY J: But is that the same for anti-social personality disorder?
MR BUGG: Anti-social, he goes on to clarify that, your Honour, and I wanted to try and confine it to the two categories of personality disorder that the doctor expressed an opinion about.
KIRBY J: You accept that these are, for want of a better word, syndromes or established medical categories?
MR BUGG: The point was not taken at trial that the doctor's suggestion that these were mental disorders, your Honour.
KIRBY J: You mean no point of objection was taken?
MR BUGG: No objections were - - -
KIRBY J: Outside the speciality this was just generalities.
MR BUGG: There is a significant debate within schools of psychiatry from the United Kingdom and the United States. DSM4, the diagnostic manual used by this doctor, is an American publication. In the United Kingdom there is still a strong school of thought that a personality disorder is not a mental disorder but a behavioural question or characteristic and that is why you see Lord Justice Ackner in MacKenney, one of the authorities to which I have referred the Court, drawing the distinction between a personality disorder and a mental disorder for the purposes of the admission of expert evidence to aid the jury in that particular trial.
I will come back to that in a moment but, in so far as the question of the antisocial personality disorder is concerned, his Honour having had the illustrations from the doctor midway through page 838 where I moved away from to conclude the doctor's evidence about borderline personality disorder, at line 15 he was asked this question:
Did you see anything in the literature -
being the material that was before the court and is before this Court -
concerning Mr. Coppleman, concerning that aspect or manifestation of this condition known as the anti-social personality disorder?
and that was deceitfulness, and he said:
Yes, there were concerns expressed in the files about the reliability, the information that Mr. Coppleman was providing them.
His Honour says:
What's somebody's got in effect, "I doubt if this is true" or "We wonder whether he's telling us the truth."
The witness responded:
Yes, your Honour, one of the alcohol and drug service doctors said, "Information gained was very vague and no credence can be placed on it being the truth was one example that I picked up.
His Honour then said:
So.....on that, you would say he's a deceitful person would you?
and he says:
Well, no, your Honour, that was one example. Another Doctor described him as evasive, another file note made mention of initial history not entirely accurate and then went on to say how the history changed.
So his identification of the manifestation of this characteristic to be deceitful gathered from the material relates to these notations about the accuracy of the history provided by the complainant to the medical practitioners or social workers who had made notes which were recorded in the material before the court. At page 840 his Honour at line 20 said:
Very well. That is to say, in your opinion, in Mr. Coppleman's case, do either of the two diagnosed conditions affect his capac - the capacity of his memory?
WITNESS: The alcohol and substance abuse may effect capacity for memory.
HIS HONOUR: But not the other two? Not the anti social.
He says:
A borderline personality disorder will have no impact upon memory or reporting. The anti social personality -
and I am concentrating now on that particular issue -
will not actually effect the structure of a person's memory, but it may have an impact on what they report.
Then when he was asked by defence counsel to explain that, at line 11 he said:
they are inherently less truthful than the average person.
McHUGH J: That is the real problem you have in this case, is it not? The judge directed the jury that there was a real risk that the complainant's evidence might be unreliable and that the jury must be careful to take account of that risk which, in this particular case, was over and above that of ordinary witnesses. But nevertheless, the judge's directions withdrew from the jury expert opinion that persons like the complainant are inherently less truthful than the average person.
Now, that seems to me at the moment to be a misdirection. The question that is occupying my mind is is it sufficiently erroneous a misdirection that, applying the common law principles, that one could be confident that it is effectively the verdict so as to constitute a miscarriage of justice. The difference between rule 4 in the mainland States and here simply being the question of onus of proof was once you have a misdirection at common law the onus is on the party seeking to justify the verdict to show that it did not affect it and that really seems to be much the same as rule 4 in any event.
MR BUGG: Yes. Your Honour, I am not avoiding that question.
McHUGH J: No.
MR BUGG: I realise it is the significant issue.
McHUGH J: I think when you analyse it comes down to this very narrow issue that notwithstanding the judge's direction about reliability, the effect of his evidence, two pages, was to withdraw Dr Sale's expert opinion that persons like the complainant are inherently untruthful.
MR BUGG: Yes. To answer that question, your Honour, might I just step back one pace and take you through the material that was presented to the court and upon which the doctor relied to express his opinion. I will try and do that briefly. I do not want to rely upon the summary which was tendered yesterday because that tended to address those issues of manifestation of - - -
McHUGH J: But does it matter? You were going to deal with it on the miscarriage point rather than misdirection.
MR BUGG: I propose to deal with it on two bases. The first one, the miscarriage point and secondly, the misdirection, because it would be my submission the tenor of the evidence of the doctor was that this person was capable of telling the truth but he may choose not to. In other words, his capacity to accurately recount was there but he may, because of this characteristic observable in his history, be a person who will be dishonest or deceitful.
In other words, he will choose not to tell the truth, not through some flaw in his makeup, that is he lacks the capacity to tell the truth, he has the capacity to tell the truth but he may choose not to exercise that capacity and may seek to deceive. That that is not a misdirection if his Honour gave that direction based upon the distillation of these particular issues by Lord Justice Ackner in MacKenney which, of course, I have referred to and I will take your Honours to that, but as a necessary step precedent to that it is necessary to understand just what the evidence and material was about prior diagnosis of the personality disorder and the reliance by the doctor upon it because what his Honour had to deal with in this case, in my submission, was evidence which started out on the basis of this witness will be able to express an opinion that this man suffers from mental disorders which will impact upon his capacity to recall because, if you will recall, that is the concession made by defence counsel after submissions from Crown counsel.
His Honour also had, on voir dire, this witness's evidence in a challenge to the admissibility of the complainant's evidence per se because of an inherent unreliability. So his Honour chose to hear the submissions and the ongoing testing of the evidence of the doctor in the presence of the jury.
At the conclusion of that, in my submission, it was obvious that the evidence of the doctor took this matter no further than the ordinary experience of the jury because the doctor's expression of opinion relied upon the history of this particular man. In other words, his antisocial personality disorder diagnosed by the doctor flows from the behavioural patterns he could observe, the characteristics he could observe from the history.
McHUGH J: Accepting that, the fact is, nevertheless, it was open to the jury to find, having regard to Dr Sale's evidence, that he did have this antisocial personality disorder but what made Dr Sale's evidence arguably important from the defence was that he said that persons who do have this disorder are inherently less truthful than the average person. Now, that is not something that judge or jury knows as a matter of common knowledge. I did not, anyway. I do not know whether I am average but I did not know that.
MR BUGG: The proposition, your Honours - - -
McHUGH J: I mean, one knows that drunks, alcoholics can be terrible liars but the fact that people who have this antisocial personality disorder are inherently less truthful than the average person is not something that I was conscious of.
MR BUGG: When you see how the doctor arrives at his opinion, that is he says these personality disorders are disabilities or shall we say characteristics or patterns from people's behaviour, he says, "I discern that this person has in the past been dishonest or less than reliable because of these notations in his record." That is the only basis upon which he forms the opinion, supported by the expressions of opinion that are contained in the record and that is why I think it is important that I take you to that point first. It will not take very long, your Honours.
KIRBY J: You read out a passage that triggered Justice McHugh's question and I was listening but I did not quite find - - -
MR BUGG: Page 841 line 10, your Honour.
KIRBY J: Thank you, yes, I see. Most citizens would not have any contact with people who are dependent on benzodiazepine, things of that kind, or at least there would be many citizens who would not have any contact with people who are as heavily drug dependent, poly substance abusers as this young man was.
MR BUGG: I understand that but the witness had never expressed an opinion about the reliability of the evidence that the complainant may give as a result of poly substance abuse. He said, "I am not in a position to express an opinion about that."
KIRBY J: Let me understand the Crown's position. Do you essentially - do you take Chief Justice Cox's position that there was nothing wrong in the direction?
MR BUGG: Yes.
KIRBY J: Or do you take Justice Wright's position that it is unfortunate that it was said and it was a mistake on balance and in context it did not matter.
MR BUGG: No, I take the Chief Justice's position and that is contained in the submissions.
KIRBY J: I thought that was the position you took.
MR BUGG: Yes.
KIRBY J: It might be more seductive if you took Justice Wright's position.
MR BUGG: Justice Wright, with respect, appears to seek some reason by the inferences he draws from the way in which his Honour gave the direction as to why he would have done so but, of course, my position is that his Honour had the material before the jury so the jury had heard the evidence, it had this evidence of his background and information with them in the jury room and his Honour - - -
KIRBY J: He is pretty strong. He says it is incomplete, it is ambiguous and later he says it is inaccurate - Justice Wright, but notwithstanding that it was not one that called for intervention in what is otherwise a pretty strong Crown case.
MR BUGG: Yes.
KIRBY J: Anyway, you have nailed your flag to a mast and the galleon must just sail on.
MR BUGG: I will sail with the Chief Justice for the moment, your Honour, but if I could just - - -
GAUDRON J: You will address miscarriage of justice as an alternative?
MR BUGG: Yes, I will.
GAUDRON J: Yes, thank you.
MR BUGG: Certainly. Just briefly - - -
McHUGH J: Just before you do, before you go on to your topic, just to clarify for me. I read that answer at 841 line 10 as meaning that whatever a person with this condition reports, any information that they give is inherently less likely to be truthful whereas, before reading this, my natural inclination was you would not trust anything these people said where their own interests were concerned or where they had a motive to lie or where their own interests are affected but it seems to be an even wider statement that their capacity to report information is itself inherently unreliable, or am I wrong?
MR BUGG: I do not believe that what the witness was saying, that their capacity to report was inherently unreliable. He says they are inherently less truthful and that is the distinction upon which I will ultimately take your Honours to the MacKenney position and that is where you have a disorder which does not affect capacity. It may be a disability, it may be a characteristic, however you wish to identify this personality disorder. What it does, in the hands of the person or in the mind of the person who suffers from it, is provide them with maybe an incentive to be untruthful. It may be an incentive to be inaccurate, however you wish to describe it, but it is not as a result of an incapacity to tell the truth. It is that they may, for whatever reason, decide to be untruthful or to be less than careful with the facts.
McHUGH J: Can I just illustrate it by two concrete illustrations? Supposing I employ such a person and I said to that person, "Why did you not perform this work as I instructed you to?" Uninstructed by expert evidence and knowing of this sort of background, I would be very suspicious about the answer that I would get - the reliability of such an answer. But does it go further than that so that if I said to that person, "What is the weather like today?" they may, for no accountable reason, just decide to tell me a lie. Is that what it means?
MR BUGG: I do not know, your Honour.
McHUGH J: It is the use of the word "inherently" less truthful that - - -
MR BUGG: Yes.
HAYNE J: And the inquiries that Justice McHugh is making of you may well lead on, at least in my mind, to the further question, assume the doctor's evidence is given full weight in the most ample sense reflected in the inquiries Justice McHugh has been putting to you. What then is the judge to do with it? Assume his Honour was wrong to say to the jury, "Dr Sale's evidence is of no account." Assume he had said, "Dr Sale's evidence is very important. It is important to you members of the jury because -" Unless and until we fill in that last clause I, for my part, am not yet able to identify whether there has been a misdirection.
MR BUGG: The question of miscarriage, of course, in my submission - - -
HAYNE J: No, not proviso. Whether there has been a misdirection?
MR BUGG: Yes, I am sorry, your Honour. Yes, the proposition that I put are these, that firstly this evidence was, strictly speaking, not admissible. That is obviously a proviso point, arguably, but there are three stages. It was not admissible; having had it admitted in the way in which it occurred, his Honour gave a sufficient direction and there was no misdirection in what his Honour told the jury about this particular witness.
HAYNE J: But, may I perhaps interrupt you and say that on one view of the direction the judge took the point away from the jury but took it away from them in favour of the accused by saying, "Forget what Sale has told you. Do not judge whether Sale is to be believed or not. I tell you this man is not to be believed save where corroborated."
MR BUGG: And your Honour, that is precisely what his Honour said. It is not because of what Dr Sale, it is I direct you and as, Justice McHugh said yesterday, what he gave it was the strength of a direction in law and that is why, in my submission, there was no misdirection. Then, finally, of course, the question of miscarriage which I will address.
Your Honours, if I could just say this in relation to the question of this evidence, that is the admissibility of expert evidence to say that a person who has a criminal record, a person who, in the opinion of an expert, is someone who has a personality disorder and is therefore, if it is an antisocial personality disorder, likely to be untruthful, if that type of expert evidence can be given to assist the jury in its assessment of whether a person is going to be truthful or not before them and in determining the issue that is ultimately theirs to determine, it is quite open to the Crown to have sitting in the back of the court when an accused person gives evidence, an expert who then is called to give evidence and say, "Look I have observed him. He suffers from a personality disorder of antisocial type and he is the sort of person who is likely to tell lies. His evidence may be inherently unreliable."
KIRBY J: I just do not understand why the trial judge, who was otherwise scrupulous in the way he conducted this trial, if I can say so, with respect, did not just leave it to the jury and say, "We have got this doctor who is an expert psychiatrist. He said this. He said it is medical. You have heard him. You have your own commonsense. You know that people who are given to alcohol addiction are inclined to tell lies. You have got to look at this very carefully and you know that and he said that there is this and it is up to you to decide what you make of it." It would have been then so much better if that had been done, I am presently inclined to think.
MR BUGG: Your Honour, I would submit that the situation was that the learned trial judge found himself in a position where the evidence, once given, did not satisfy the test of admissibility in terms of being expert evidence on a topic or issue for which the jury required some additional assistance beyond that which they themselves could deal with. In other words, "This man is likely to be dishonest. Look at his record. It is on his record that I am telling you he is likely to be dishonest" which is precisely what his Honour told them.
KIRBY J: It is not quite that. He says, "On his record I diagnose, from my specialty, a known medical condition and he has that condition. I say he has it. I say it is a medical condition and people of that medical condition are less likely to be truthful inherently and that is my expert opinion." That is not - - -
MR BUGG: Yes, and the basis upon which he makes that diagnosis is the factual material on the file, that is there are comments about the reliability - - -
KIRBY J: Yes, but he links it up. He is not just a layman like the jury, he is a psychiatrist who says, "I say to you from my expertise" - I mean, one might have some scepticism about this but he is allowed to give this evidence, it goes in and then he gives it and then the jury are told to disregard it.
MR BUGG: Because the evidence was not heard on the voir dire, it goes in, the jury hear it and his Honour, in taking stock of it, concludes that it is not material which arguably should have been before the jury so - - -
KIRBY J: It is not on the voir dire, you were on notice this was coming. You could have taken objection to this.
MR BUGG: The objection was taken and his Honour continued to hear the evidence in the presence of the jury because it was suggested that the witness could express an opinion that the complainant suffered from a mental disorder which the jury could take into account in assessing the weight of the complainant's evidence. It did not ever get there.
McHUGH J: I know, but what has happened is that Dr Sale's evidence gave content to the judge's direction that there was a real risk that this evidence might be unreliable. Take the point that Justice Hayne has put, the "because" clause might be this evidence may be unreliable because this person is a person who is likely to be inherently untruthful, not because he cannot recall, not because he has got bad eyesight, not because of this or that but because they have this intrinsic mark of being inherently less truthful.
MR BUGG: His Honour said, "Look, it is not a question of what this expert says and you do not have to accept what an expert says but accept what I say and I direct you as a matter of law that this is what you must do." So he elevated it to an even higher plane.
McHUGH J: I am not sure about that. What I am saying is that the evidence gave content to the direction that the evidence might be unreliable. The jury says, "It might be unreliable, in what way?" I do not know, except that I am told what I know about alcoholics, people who tell lies, people who do this and do that, but this gave very specific evidence that people who have this disorder are inherently less truthful than the average person. That seems to me to be a very important statement from a jury's point of view which they were deprived of by the judge's direction.
MR BUGG: Might I take you, your Honour, to the Court of Appeal decision in MacKenney which is contained in the fifth volume which was handed in yesterday. It is the first entry in that book and without pausing to go through it in detail the appellants had attempted at trial - - -
KIRBY J: Why are we looking at this foreign authority, given that we have got Bromley?
MR BUGG: I suppose one is attracted to the judgment of Lord Ackner because I notice that the former Chief Justice referred to his speech in another matter in his judgment in Bromley but, in any event, what I suggest is that Lord Ackner's consideration of the Toohey decision and his comments about when a jury should be provided with assistance of an expert nature are quite relevant to the issue which obviously this Court must consider in this particular issue.
In other words, does evidence which suggests that a person has the capacity to tell the truth, expert evidence, but may choose to not tell the truth for whatever reason or not be accurate for whatever reason, become immediately admissible or should it be still left as a matter for the jury so that trials do not become an issue of an ever swelling body of expert opinion which takes over that function for the jury. The relevant passage from the judgment is on page 275 where His Lordship says:
If Mr. Irving is entitled to give medical evidence -
and this is avoiding any questions of professional title because he was a psychologist and not a psychiatrist -
and if his report does amount to a diagnosis of some mental illness, then it is not a mental disease or abnormality of the kind referred to by Lord Pearce in Toohey's Case. In his speech at pp. 162 and 618 of the respective reports, Lord Pearce said: "But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them....So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise."
At the top of p. 7 - - -
KIRBY J: But is not the distinction here between those mental conditions or syndromes which block the mind and the person just cannot remember - it is a bit like senility, I suppose, that it is just not able to get out - and those of which this is said by the doctor to be one where there is a disorder that causes people, as it were, not to be given to telling the truth. It is just part of their disorder.
MR BUGG: Can I then take your Honour to not the next paragraph but the following one where he says:
We agree with the learned judge that if a witness is suffering from a mental disability it may, in a proper case, well be permissible to call psychiatric evidence to show that the witness is incapable of giving reliable evidence. We are prepared to accept that the mental illness need not be such as to make the witness totally incapable of giving accurate evidence, but it must substantially affect the witness's capacity to give reliable evidence. But this is very different from calling psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who may well choose not to do so. If the witness is mentally capable of giving reliable evidence, it is for the jury, with all the warnings from counsel and the court which the law requires to decide whether or not that witness is giving reliable evidence.
That, your Honour, is the distinction and, in my submission, the reason why in this particular instance his Honour, for whatever reason, gave the direction which he did because this witness did not ever get to a stage where he said, "This man lacks a capacity to give truthful evidence." What he says is that his capacity is unaffected but his evidence, because he is an antisocial personality, is inherently unreliable and that is a different proposition altogether to saying, "The jury will not understand this. Why would not this man be capable of giving truthful evidence because he fantasises, because he suffers from some hysteric reaction?"
McHUGH J: I follow the force of that but, for my part, the appeal may well turn on the question of whether or not that statement at 276 is an accurate statement of the law. If it is, you may well be home. If it is not accurate, you may be in trouble. It is the part where His Lordship says:
But this is very different from calling psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who may well choose not to do so.
MR BUGG: That is why this witness's evidence, that is Dr Sales' evidence, about what he says about antisocial personality disorders, what was led from him, and how he said that affected this particular complainant is quite relevant because he did not take it beyond that point, your Honour.
McHUGH J: Irrelevant, really.
MR BUGG: I am sorry.
McHUGH J: Irrelevant. Based on MacKenney this evidence would be inadmissible, would it not?
MR BUGG: Yes.
McHUGH J: Yes.
KIRBY J: Lord Justice Ackner twice mentions capacity as distinct from willingness or inability to tell the truth.
MR BUGG: Yes.
KIRBY J: Capacity, I suppose, is ability.
GAUDRON J: Well we are probably talking about a predisposition rather than capacity in this case, or inability. A predisposition to tell lies.
MR BUGG: Inherently untruthful.
HAYNE J: Or the blinding glimpse of the obvious that somebody who is antisocial does not tell you the truth.
MR BUGG: Yes, which is precisely what his Honour was saying to the jury. It is as obvious to you and to me that the man with this history is the sort of person whose word you are going to be very careful about. I realise it is a foreign judgment, but it may very well be the law if this Court chooses to adopt that as an appropriate dividing line between the admissibility of the evidence that was spoken about in Bromley and the rejection of expert assistance to juries in areas where that fundamental question is this person telling the truth. They do not have a deficit that prevents them from telling the truth. They are an antisocial personality and they are likely to be untruthful and that is precisely what his Honour told them.
The starting point, in my submission, is that his Honour was not in error. The difficulty he was confronted with, quite candidly, was that this evidence was heard in the presence of the jury and therefore he had to carefully direct the jury in a way that gave greater weight to the concern and the reason for that concern, that is this is a matter for you to assess, not to determine because an expert has come in and said this witness is inherently unreliable or untruthful but because you are to make that judgment yourself. He then does not, in fact, elevate the doctor's opinion. He says, "Look it is not what the doctor did. He is an expert and you can ignore that opinion but it is what I tell you."
He went that further step, in my submission, for the very reason that what he had at the end and on, no doubt, reviewing that material because, as you can see from the most meticulous way he directed the jury over all the issues that occurred in this trial, that on a review of that material, he says, "He really does not get beyond that. He is not telling you he has got a mental disorder that affects his capacity to tell the truth or to remember or to record. He has got a mental disorder called a personality disorder that makes him an unreliable person but we know that anyway." and for that reason - - -
GAUDRON J: Before you go on with the factual analysis, as it were, has MacKenney been subsequently considered in the United Kingdom or applied or distinguished? Has there been any development in that regard?
MR BUGG: I could find no record of any, your Honour.
GAUDRON J: Canada? Any consideration in Canada?
MR BUGG: There is a slightly different consideration in Canada because of the Charter and I must say I gave up on my researches because Charter issues tend to be - - -
GAUDRON J: Why would the Charter affect what really is a basic rule of admissibility?
MR BUGG: Your Honour, certainly as far as issues akin to the giving of expert evidence about effects of disorders has been broadened greatly in Canada by the provisions or the chapters of the Charter. An example of the equivalent provision under the Canadian Code dealing with intoxication has been found to infringe the provisions of the Charter such that a broader and position akin to the common law has been adopted in that country. If one is talking about expert evidence about admissibility of evidence against an accused person, the Charter obviously has some considerable part to play and I certainly could not find any matters in the brief research I undertook in it and I - - -
GAUDRON J: Yes, but has the issue arisen in Canada?
MR BUGG: I am unaware of it having arisen.
GAUDRON J: Yes, thank you.
McHUGH J: The sort of evidence given by Dr Sale would be admitted almost as of course in the United States, would it not?
MR BUGG: Yes.
McHUGH J: Yes.
MR BUGG: And I could imagine it being more of the expansive type that the psychologist was talking about in MacKenney which obviously was a matter of concern to Lord Ackner. The ruling of the trial judge in MacKenney is, in fact, referred to, or I thought it was referred to in the passage cited from the judgment of the present Chief Justice in Bromley. It is referred to in the extract from Archbold's Pleading, Evidence and Practice in Criminal Cases which is referred to by Justice Brennan, as he then was, at page 322 about two-thirds of the way down the page.
KIRBY J: If one looks at this as a matter of principle, because we are not bound by what the English Court of Appeal said, on the one hand you can see the strength of the proposition that Lord Justice Ackner is putting that we must not allow witnesses to usurp the role of juries and bundle up their evidence and waste a lot of time in criminal trials on what is essentially a lay question. On the other hand, if there are patterns and syndromes which people who are specialists in psychiatry see, ought that not be allowed to be placed before a jury if it is going to be helpful in the determination of a question for trial?
May not the resolution of the two points of principle be that you allow it in, but you warn the jury that ultimately the question of truthfulness is a matter for them and they have to take into account what the doctor says but it is their duty to form their own conclusion and the problem here is it was subtracted.
MR BUGG: I suppose the concern, your Honour, is that if you broaden the scope and permit evidence to be given across a range of areas, you reach the point which is not that ridiculous that I suggested earlier, that in fact the Crown may call evidence in rebuttal and say, "Look, the jury should be assisted that this man's eye movement, his hand movements and what have you is all consistent with a person who is not telling the truth."
KIRBY J: But the common law has always been a bit suspicious about mental conditions. I mean, we see it in nervous shock cases and the law of insanity and it is not the proudest hour of the common law, the way it deals with this, but I just ask myself, if there is a syndrome like this and that a psychiatrist sees illustrations of it, ought that syndrome not be able to be placed before the decision maker of fact?
MR BUGG: I would say no, your Honour, for this reason. The court should measure and control the use to which evidence of that nature should be put for this very reason, that the jury should not be influenced by the reputation, qualification, whatever, of an expert who seeks to give the jury some assistance in that very area that the jury is regarded as best qualified to deal with and the careful warning - and that is why Lord Ackner has said that in this particular area which we are now focussing on, give the addresses, give the warning or caution from the Bench and that is a sufficient guideline and assistance to the jury to deal with the matter that it is confronted with, that it has a person who has the capacity to tell the truth but chooses not to.
McHUGH J: But capacity is the term also adopted by Chief Justice Gibbs in Bromley, but it does seem a little narrow. Could expert evidence be given as to the general unreliability of small children or members of a particular ethnic group in terms of their truthfulness as opposed to capacity?
MR BUGG: I suppose you have to look at the expansion of those categories of special witnesses that Kilbourne and Hester and this Court in McKinney and Judge has examined. You are not saying that we are expanding the range or the group because of any particular deficit in their make up, but rather because of long curial experience and that is really the issue, your Honour, that there has been this reluctance and Bromley identifies the need for a caution where there is a disorder which affects capacity and is something which the jury may not understand.
McHUGH J: Take identification evidence, which is perhaps an interesting category. I think evidence has been called on a number of occasions to my knowledge from psychologists about the difficulty of identification evidence.
MR BUGG: The court itself has recognised the inherent difficulty in accepting this evidence and obviously this Court alone has set down some fairly easily, but sometimes not often followed, guidelines as to how to deal with this very sensitive and vulnerable area of reporting and the Court, in my submission, would be correct to guard carefully against an uncontrolled expansion of that group.
McHUGH J: Well, there may be a policy question rather than a question of principle involved in it.
KIRBY J: I was trying to avoid that word.
McHUGH J: I know, but one has the feeling that the use of the term "capacity" is an introduction of a policy determination by the courts rather than an application of principle to particular classes of evidence. I mean, we let evidence in and we give directions about identification evidence; we give warnings about children; in an earlier age we used to give about complainants in sexual cases. They have got nothing to do with capacity. It is, rather, stereotype.
MR BUGG: Yes. When Lord Ackner spoke of this issue, he did refer to that passage of the speech of Lord Pearce in Toohey where he spoke of a vital hidden fact, it seems to me that if what you had is nothing that is hidden in terms of a deficit of capacity but rather a susceptibility to tell untruths and inherent unreliability, which is identifiable from the characteristics of that person based on their antecedents, which is clearly what the doctor was saying here and clearly what his Honour said, then it is not a vital hidden factor. It is something upon which they do not need that expert assistance. I do not believe it becomes an issue of policy then if you equate capacity in the way in which obviously Lord Pearce was considering it in terms of a hidden factor which, of course, formed the basis of the support for the conclusions reached in Bromley.
GAUDRON J: The Court must adjourn now, Mr Bugg, until 2.15. How much longer will your submissions take?
MR BUGG: That is dependent on - I am sorry, your Honour, about 20 minutes at the most I would think
GAUDRON J: 20 minutes, thank you. The Court will now adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GAUDRON J: Yes, thank you, Mr Bugg.
MR BUGG: Thank you, your Honour. Your Honour, I may be able to provide some Canadian assistance to you this afternoon.
GAUDRON J: Thank you.
MR BUGG: During the luncheon adjournment, your Honour, I did take the opportunity, frenzied though it was, to make some further inquiries into that area and, in the process, I found a report of the decision of this Court rejecting an application for special leave, in relation to a matter that your Honour Justice McHugh raised with me this morning. It is the matter Smith v The Queen (1990) 64 ALJR, at page 588 - and I do not have copies, I will merely read from it and that is all the Court would need to have.
The question which was being raised by way of an application for special leave was the question of whether or not expert evidence was admissible as to a process whereby the jury could be assisted in understanding those processes used by normal persons in the identification of features and what have you, and the decision of the Court, which was delivered by Justice Deane, who was the President of that court, said that there was a submission that there had been a miscarriage of justice and the evidence which was placed before the Court of Criminal Appeal was not admissible and:
It has been long accepted in this country that evidence of the kind which the applicant desired to lead is inadmissible. It is basic to the operation of the jury system that general questions as to the credit and reliability of the evidence of witnesses, including the reliability of identification evidence, are, subject to special exceptions, matters which are within the range of human experience which must be determined by the assessment of the jury. We think that evidence of the kind for which the applicant contends would be contrary to this long-established rule and was rightly rejected.
So, in fact, it seems that there has not - I cannot find anything since then, your Honour, but it would seem that, based on that rejection, there would be a well-held view in this country that such evidence would not be admissible, certainly in criminal - - -
KIRBY J: Would you just give me that citation again, please?
MR BUGG: I am sorry. Smith v The Queen (1990) 64 ALJR, page 588.
KIRBY J: That was a case, I assume, from the short summary you have read, where the evidence was not tendered at the trial, but was offered in the Court of Criminal Appeal and related to the issue of identification - risks of identification evidence.
MR BUGG: The evidence was sought to be led at the court of trial, I thought, your Honour. It is only a very brief report. It only spans one page in the Law Journal Report. Your Honours, I will cite a reference to a Court of Criminal Appeal decision from New Zealand, where the judgment of Lord Ackner in MacKenney was referred to. I had examined that report. I found, with respect to their Honours, the report of little assistance. It is Reg v B (1987) 1 NZLR. I do not have a page reference for it but, your Honours, as I say, there was little that, in my submission, could be gathered from that report. There are two Canadian decisions: one is being copied and brought here, the other one I have copies avail - I am sorry, it is here. If I could pass copies to your Honours.
KIRBY J: This is what is called the vast resources of the Crown.
MR BUGG: Some of them are still warm, your Honour. Your Honours, I cannot, in the time I have had available, do justice to the Supreme Court decision in Marquard, 85 CCC (3d) 193, copies of which your Honours now have. But the judgment of Justice McLachlin is the one to which I draw your Honours' attention, and the relevant portion of the judgment is at page 223, commencing with the letter f under the subheading:
Opinion evidence outside the area of the witnesses' expertise
and significantly that passage commencing at page 227, under the heading:
Expert comment on the credibility of the child
The passage which I will read to the Court commences at page 228, where her Honour says:
It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. This court affirmed that proposition in R. v. Beland.....in rejecting the use of polygraph examinations as a tool to determine the credibility of witnesses.
Her Honour went on, at letter d:
A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself -
and so on. It is that passage, your Honours, to which I refer you. The other Canadian decision is a Court of Criminal Appeal decision from the British Columbia Court of Appeal. It is the matter of Reg v Hedstrom 63 CCC (3d) 261, and the relevant passage - - -
KIRBY J: May I just say that her Ladyship's statement there at 228, would, on the face of things, be narrower than what was said in Bromley, both by Chief Justice Gibbs and by Justice Brennan, because it would say, if it is credibility it is out, and even its capacity leading to credibility problems, it is excluded.
MR BUGG: Yes.
HAYNE J: It may have to be read in the light of what she says at 229, where she would seem to countenance evidence of precisely the kind now in issue in this case.
MR BUGG: Yes.
CALLINAN J: It seems to be completely against you, what is said at the top of 229.
Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do not complaint immediately. Such evidence is helpful; indeed it may be essential to a just verdict.
MR BUGG: Yes. I do not - I feel an obligation, obviously, to refer any authority I can find to the Court in view of the question that was raised before the luncheon adjournment. The question of capacity was the issue that was considered by the Court of Criminal Appeal in British Columbia, and that is identified at page 272, commencing at the letter d, and I, once again, will not read that passage to your Honours, but that is the only additional material I can find on the subject, and I am sorry I did not have those for the Court before the luncheon adjournment.
If I could take your Honours, now, to the reported material which was tendered to enable Dr Sale to give his evidence, and the only sections or areas of this material to which I wish to take your Honours is the material dealing with the earlier diagnoses of either personality disorder or borderline or antisocial personality disorder, and that relates to Dr Sale's evidence at page 833 where, in saying that he gained, obviously, support for his position, at the top of the page he says:
well, the most frequent - I perhaps better explain that a personality disorder is often subdivided up into various types and in Mr. Coppleman's case there were two particular types that repeated over and over again in the files - They were the diagnosis of anti-social personality disorder and the diagnosis of border-line personality disorder. Sometimes they were given individually and sometimes in combination and that is permitted in diagnosis.
The first diagnosis, in the reported material, of a personality disorder is at page 126 of the fifth volume of material, your Honours. You will see, two-thirds of the way down the page, it says, or is sub-headed:
Assess
1 Axis 1 Alcohol Abuse -.....
? Borderline Intellect
11 Personality disorder - borderline & antisocial.
There was a provisional diagnosis, at page 123, from the Royal Hobart Hospital. That was on 7 October 1992 and you will see, halfway down the page:
2. ? personality disorder
3. ? borderline intellectual functioning.
So then you have, by 17 October, a diagnosis of both antisocial and borderline personality disorder. On the same day, within the same institution, there is a second diagnosis - that is on the next page, 127, at the foot of the page, where there is only:
Diagnosis Of borderline Personality Disorder.
HAYNE J: Well, is that right? Is that not simply a record, at 127, of the diagnosis according to Royal Hobart Hospital? Is it a separate diagnosis?
MR BUGG: Well, it is certainly - it is in different handwriting, and it appears to be on a different document form, your Honour. There was no evidence before the jury to assist it as to the authorship of those two reports. If I could take you now to page 132, that is a clinical note from the Accident and Emergency Section of the Royal Hobart Hospital, dated 20 October 1992, some three days later, and that is a repetition of the diagnosis on 17 October, which appears to be a confirmation of a provisional diagnosis of personality disorder, halfway down the page.
The next reference to diagnosis - and, once again, this is dated 20 October - is at page 137, at the top of the page, a diagnosis of borderline personality disorder. On page 149, halfway down the page, there is a reference to the previous diagnosis. That is not a separate diagnosis. Then, in early 1993 - 20 January 1993 - at page 153 - this is contained in the summary that has been provided by the appellant - there is a diagnosis of severe borderline disorder. They are the only diagnoses before this incident, and there is only one diagnosis in there of personality disorder of the antisocial type, yet the doctor gave evidence that this diagnosis occurred over and over again in the reports and, clearly, it did not.
The diagnoses after this incident are contained at page 159, and that is a provisional diagnosis, halfway down the page, in the Psychiatric Nursing Division, of personality disorder. And then, at page 166, that is a diagnosis on 2 March of severe personality disorder, about five lines from the top of the - in the report. It is just a one-line notation. So that the antisocial variety of personality disorder, which, of course, was the one activating the doctor to say that the witness suffering from that disorder would be inherently unreliable, is only made once in any of the clinical notes or reports to which he referred.
If I could take your Honours to pages 834 and 835 of volume 4 of the appeal book, I do so to give you an illustration of just where this witness's evidence took the court in so far as the factual foundation for his expression of opinion of the two varieties of personality disorder. Halfway down the page, when he said that he had assessed, or expressed the opinion that the complainant suffered from an antisocial personality disorder and a borderline personality disorder, he said, at line 16:
WITNESS: Those are terms that are defined in what are known as the diagnostic and statistical manual of mental disorders as a classificatory system -
And his Honour, seeking clarification of that, at page 834 said:
What does it mean? Do you see - in ordinary terms?
WITNESS: If they understood what it was about they would probably be appalled and upset. What a borerline - First of all it's important to know that borderline doesn't indicate that their halfway somewhere - . It's a rather strange American term that seems to have stuck. A person with a borderline personality disorder characteristically has stormy relationships and stormy moods - and they are usually impulsive and they are frequently attempting suicide or threatening suicide.
And his Honour then said:
So, if you had someone who did all those things - you could say, well, that's an example of a borderline personality disorder?
WITNESS: Yes, your Honour.
And then, when he is asked, on the next page, by my learned friend, Mr Wendler, at line 9:
in relation to anti-social personality disorder was it your opinion that Mr. Coppleman suffered from that particular condition or disorder?.....I believe that the material contained in the file was consistent with that diagnosis and therefore would agree with the people who have made that diagnosis in the past.
Well, there is one diagnosis of it in the past, and his illustration of the material from the reports which enabled him to make that assessment were then identified, or given, to his Honour, at page 838, where he was asked the question, at line 15:
Did you see anything in the literature concerning Mr. Coppleman, concerning that aspect or manifestation -
So, what he is saying is, if you observe someone with this behaviour, you can make that conclusion. Someone with an antisocial personality disorder has these particular characteristics or manifestations. They were obvious from the material. The manifestations were inaccuracy in information provided - apparently no suggestion of actually lying, but inaccuracy in information, and that, therefore, put that particular disorder or disability, characteristic, within the scope, in my submission, of the ordinary understanding of the jury.
Obviously his Honour was required to give a direction, and he gave one. In my submission, that direction correctly placed the evidence of the expert, in terms of the jury's treatment of it, as something which ultimately it was their opinion to reach a conclusion about, and that is why, in that lengthy passage from his Honour's summing, which is referred to in the judgments in the Court of Criminal Appeal, that his Honour speaks of the evidence of Dr Sale at the top of page 964, at line 2. And I come back to the point that your Honour Justice McHugh made yesterday as to the import to the jury of this direction which the trial judge gave:
I direct you in this way that you must take that care but not because of what Doctor Sale said, juries only need evidence from psychiatrists when they have got information and opinions about people's mental health that ordinary folk like you and I would not be able to form, that's when we need psychiatric help, and Doctor Sale didn't have any of those opinions about this man. He knew what we all know -
and he then listed the matters which have already been read to the Court by the appellant's counsel. He the concludes, at line 19, that:
you need to scrutinise it with extra care. That's what I'm telling you about Coppleman's evidence, because of that background history -
which, of course, is what Dr Sale was saying -
you need to scrutinise it with care before you accept it. It's an ordinary proposition, of course. It was plainly put to you on behalf of the defence that by reason of his history you couldn't put any faith in what Coppleman said, in fact he made up the whole account in order to draw attention to himself or get a drink. Well, you will have to assess that. It would be wrong to write off somebody -
and he even gives the illustrations and concludes, at the foot of the page:
So it would be wrong either way, and all you do is apply your common sense and look at the other evidence, the outside evidence.
And he then gives two illustrations:
No doubt Ms Boyd's evidence, coupled with Dr Lawrence, of the semen in the anus is a relevant matter for you to consider when carefully weighing his testimony, and the tie, as I've mentioned, and so on, all of those factors you will consider because you will say to yourselves, and this is really my direction, because of Coppleman's history, which has been detailed to you, there's a real risk that his evidence might be unreliable and we must be careful to take into account that risk, extra in his case, over and above ordinary witnesses, when we are considering his evidence.
Clearly underlining, in my submission, everything that Dr Sale had said, but giving it greater emphasis by making it a direction to the jury in the way in which his Honour did.
GAUDRON J: Let me interrupt you there, for a moment, Mr Bugg. Were the trial judge at error in his treatment of the evidence, you say anything other than that direction was necessary?
MR BUGG: No, nothing other than that direction was necessary.
GAUDRON J: And if it were made by reference to the doctor's evidence, it would be, in effect, the same direction.
MR BUGG: Yes, because the doctor's evidence is an opinion which the jury can accept or reject, reject in part, be persuaded by it, or unpersuaded by it. At the end of the day, however, his Honour gave them a specific direction about the requirement that they scrutinise it with care. Of course, I go back to Bromley, where, in fact, the direction was given where there was no expert evidence called and the evidence of schizophrenia, or the existence of a schizophrenic disorder in the mind of the Crown witness, Carter, was given by family members.
The other passage - and I do not ignore it - that his Honour - well, the other passage that his Honour was criticised for, in particular by Justice Slicer in the Court of Criminal Appeal, occurs at page 979, and his Honour was there moving on to medical evidence other than that of Dr Sale, and he was using the common experience explanation of illustrating the differentiation between that evidence and that of Dr Sale, for the very reasons that he'd already outlined in the passage to which I have just referred your Honours, and it is in that context that his Honour was talking about the matter. Interestingly enough, just before he commenced to embark upon a consideration of the medical evidence, he said at line 10 on that page:
So you see you come back to the proposition well if he was tied up with his hands behind his back, query the pillow -
and that is the passage to which I referred your Honours earlier this morning. So, he is constantly, through his summing up and charge to the jury, directing them in relation to the issue of the care with which they had to regard the evidence of the complainant. But that passage has already been read to you. It is referred to in the Court of Criminal Appeal decisions, and I merely point to the context in which his Honour was dealing with the matter, by way of clarification, if your Honours please.
In so far as the question of miscarriage, and whether or not it could be said that the appellant has lost a chance of acquittal fairly open to him, if the Court concludes that his Honour was in error in the direction which he gave, firstly, that material was before the jury, and the jury had seen and heard Dr Sale. Secondly, the complainant had been cross-examined at length about the material which was the subject matter, or the factual basis of Dr Sale's opinion, and freely admitted - joined issue with some questions about means of attempting to commit suicide and some minor matters like that, but, in the main, freely admitted and accepted the sad social record that he had.
The jury had an opportunity to see him in evidence in-chief, and under test in cross-examination, which was referred to by the Court of Criminal Appeal. The case against the appellant was a strong circumstantial case. There was evidence, in my submission, upon which the jury could conclude that the assault occurred in the appellant's house. The appellant gave evidence that he was not away from the house, other than when he took the complainant back to Elizabeth Street and left him where he had.
There were many, many instances, which are referred to in the outline of submissions, illustrating a basis upon which the jury could conclude that the appellant had lied and, with the direction which his Honour gave, use that material in corroborating the account given by the complainant and, in my submission, there are three key areas. The first one is his account as to the occurrence in the hotel, that is, that he just had not seen this man; that he did not know anything about him until he saw him on the footpath in a paralytic state, and the circumstances in which he found it necessary to take him to his home; then the clear evidence to suggest that the complainant was in a much less intoxicated state than it was suggested by the appellant when he was removed from the home, allowing, clearly, the opportunity for the jury to conclude he was there for a much longer period of time; the improbability that a sexual assault occurred upon the complainant after he was removed from the home, and the behaviour of the appellant after the incident; that is, his conversation with Ms Withington, his secretary, where he expressed no knowledge of a report of an assault upon a young man in North Hobart, when, in fact, he admitted in evidence that he had heard a report of it on the ABC radio news network at a time when, clearly, it was before he had spoken to Ms Withington.
The jury had a warning from the trial judge, which accords with the direction which was regarded as adequate in Bromley. His Honour explained the relevance of opinion evidence, and he converted that evidence into a direction, in my submission, more forceful than that which would have been left with the jury, particularly in light of the background material in support of that report to which I have referred your Honours. Finally, I submit that on an examination of those high-water marks of Dr Sale's opinion, which are contained in the outline of submissions - and I will not take the Court back to them - that the evidence did not take the matter any further than that referred to by the learned Chief Justice at page 1,021 of volume four of the appeal book. If the Court pleases.
GAUDRON J: Yes, thank you.
KIRBY J: May I just ask a small question on the Code? What is the provision of the Code which is the so-called unsafe or unsatisfactory provision?
MR BUGG: Section 402(1)
On an appeal the Court -
which is the Court of Criminal Appeal -
shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law -
I can make copies available. I do not think it was referred to in the appellant's outline.
KIRBY J: Well, most people here would just assume that, but it may be helpful to me to have that extract and any other provisions of the Code that you think should be looked at.
MR BUGG: Yes.
GAUDRON J: Thank you, Mr Bugg. Yes, Mr MacGregor.
MR MacGREGOR: Your Honours, I will not be more than five minutes, I do not think. I have had, from our learned friends, a copy of the judgment in Marquard, and it seems clear from that that the Canadian court has adopted the position taken by the High Court in Bromley. Your Honours will see, from the headnote at 196 - - -
McHUGH J: No, they go beyond Bromley. Bromley limits the capacity, Mr MacGregor.
MR MacGREGOR: Well, your Honour, at least they have taken that position. The headnote, at 196, says:
On the other hand, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact.
And the Court, in that case, was concerned that the evidence one will see at line e on that page - the witness is said to have:
crossed the line between expert testimony on human behaviour and assessment of credibility -
and expressing an opinion - her own opinion - as to whether or not the child should have been believed. The same situation is implicit in the report of Toth, which has been handed to your Honours, where it says, at page 272, at line e - there is a reference to Toohey:
Here counsel sought to restrict the principle in Toohey to cases where there was expert medical opinion that was directed to a complainant's capacity to testify truthfully and accurately.
In the unique circumstances of this case, medical, psychiatric, or psychological expert opinion evidence may well have been helpful -
And further down, at line g:
That is not a "hidden fact" which only expert evidence can reveal. N.B., by his own admission, had a mental aberration and standing alone that aberration is a relevant factor that could appropriately be considered in determining the question of his credibility in its broadest sense.
KIRBY J: That was all Hedstrom, was it?
MR MacGREGOR: No, your Honour, that was Toth. No, I am sorry, it was Hedstrom, your Honour. I am sorry, your Honour is quite right, it was Hedstrom. Your Honour, we would say that it would be unfortunate, locked in as the common law of Australia is into the M'Naghten situation, if the opinion of the Court in Bromley were to be read down to the position taken by the Court of Appeal in MacKenney. In relation to MacKenney, I just wanted to point out to your Honours the difficulty to the Court that judgment presents, because it seems to adopt a kind of halfway house. On page 276, there is a concession:
We are prepared to accept that the mental illness need not be such as to make the witness totally incapable of giving accurate evidence, but it must substantially affect the witness's capacity to give reliable evidence.
That, of course, would require an expert opinion, so one gets into a situation of considerable difficulty. The passage there:
But this is very different from calling psychiatric evidence with a view to warning a jury about a witness who is capable of giving reliable evidence, but who may well choose not to do so.
One would image that people who were not wholly mentally incompetent would be capable of giving reliable evidence about circumstances which advanced their interests but, by virtue of a mental illness or a mental condition, persistently were inherently untruthful, as Dr Sale said in his evidence.
KIRBY J: But you will understand the thought that is behind Lord Justice Ackner's statement, that for 800 years questions of credibility have been decided by juries, you would not want to surrender that to psychiatric evidence.
MR MacGREGOR: Well, your Honour, our submissions do not involve the surrender of that. The line has been drawn in Canada, apparently successfully. If it is a matter for expert opinion to diagnose the existence of the disease or condition, and if the condition has, as manifestations, which require expert experience to identify and delineate, then where is the problem by the jury being assisted by that evidence, we ask rhetorically. Your Honour, there are just one or two - - -
McHUGH J: The problem might be that it puts a group of people who have mental incapacities into a specially disadvantaged group as witnesses in the courts of law, and removes from them the protection of the law.
MR MacGREGOR: Your Honour, that is the position, we would submit, under Bromley at the present time. That class of people who have a mental condition which makes their evidence - their capacity to give credible evidence is affected by a mental condition are in a separate category of witnesses at the present time, following the decision in Bromley.
McHUGH J: But one of the problems about it is that the evidence that you seek to rely on is really evidence about probability, to some extent.
MR MacGREGOR: Well, in so far as the borderline personality disorder was concerned, the doctor said he saw four clear criteria under the manual.
McHUGH J: No, I am accepting that it was well open to the jury to find that he had a borderline antisocial personality disorder, but it is the question about this class of person being inherently less truthful than the average person.
MR MacGREGOR: Yes, your Honour. I think he said the ordinary person.
McHUGH J: Average, I think.
MR MacGREGOR: Then I stand corrected.
McHUGH J: But is not the witness giving evidence about probability and, if so, where do you draw the line? Why could not the Crown, in an appropriate case, subject to questions of prejudice overweighing the probative force of evidence, give evidence that people who had previous convictions for a particular type of sexual offence are likely to offend again?
MR MacGREGOR: Well, ..... they could have in this case, your Honour. Given Dr Sale's evidence, they might have, in a case in reply, presented the complainant for clinical examination and given positive evidence that his capacity to give credible evidence was not affected by the manifestations of these mental disabilities which had been diagnosed. And that may ultimately be the position in the circumstances of particular cases, but there is no necessity why the Court should shy away from that. That does not put witnesses with mental disabilities - it does not stigmatise them in any way, which seems to be a fear that has fallen from the Bench during the course of argument.
McHUGH J: If this evidence is admissible, why cannot statistical evidence be given, which the courts have set their face against? That is to say that there is only one chance in 10,000 that somebody other than this accused is the person responsible for this, having regard to this or that particular physical factor, as the case may be.
MR MacGREGOR: Your Honour, I have always understood DNA evidence to be based on statistics. I mean, to the extent that DNA evidence is admissible in courts, it depends upon statistical reasoning and statistical judgment.
McHUGH J: Well, does it depend on statistical reasoning, or on the basis that each person has a unique DNA?
MR MacGREGOR: Your Honour, I am not qualified to speak on it beyond what I have put to your Honour, much as I might like to be.
CALLINAN J: Blood types, I suppose - evidence of blood types is given.
MR MacGREGOR: Is given in statistical terms, also, as your Honour observed.
Your Honour, just a couple of final matters. I was not attributing to any of the doctors, the term "confabulation," but really using the term to describe some of the conduct described in the medical reports. I concede that it is not used in terms, but there is material there which we would submit amounts to confabulation. There are just a couple of references that are important that your Honours do not have because of a fault in our outline.
We referred, at point 219 on page 6, to the evidence of the analysis of the sperm in the anus of the complainant. We say there that the evidence suggests that it was within an ambit of 24 hours, and as much as 64 hours - in fact, it is 65 hours. That evidence is to be found at page 490. On the issue of whether or not there is perversity because the judgments are inconsistent - - -
GAUDRON J: Just before you leave 2.19 on page 6, Mr MacGregor, that was 24 hours from the medical examination, was it?
MR MacGREGOR: It is 24 hours from the taking of the - I think the sperm was frozen, your Honour. The swab- - -
GAUDRON J: The taking of the swab.
MR MacGREGOR: Yes, your Honour.
GAUDRON J: When was that done?
MR MacGREGOR: The reference to 490 does not tell your Honour that, but my learned junior will find the reference; 5.30 I am. Thank you. At pages 39, 46, 47 and 48, the person described as "the animal" is said to be present during the course of actions by the appellant which formed the basis of charges on which the appellant was convicted. He was said to be something of a body guard. He was standing there, on occasions, watching, and the references to that material is on pages 39, 46, 47 and 48 of the appeal book.
I wanted to make a very short reference to a comment in exhibit 49, or the precis of exhibit 49, and the reference there to the complainant giving an account of being bundled into a car by three women ostensibly go to the doctor, and two men took him to a house in North Hobart. That was a statement made by him on 1 March, some eight days after the events about which the complaint is made.
KIRBY J: Is this the point where you sought fresh evidence before the Court of Criminal Appeal?
MR MacGREGOR: No, your Honour.
KIRBY J: No, that was about the phone call- - -
MR MacGREGOR: Yes, your Honour. No, this is a reference, in exhibit 49, to a statement made by him subsequent to these events, inconsistent with the evidence which he gave in the trial.
KIRBY J: Is this in volume 5?
MR MacGREGOR: It is the document that we handed up - yes, it is in volume 5 as an exhibit, but it is also referred to on the final page of the document we handed up called "Summary of evidence in trial exhibit 49," in the penultimate paragraph. Finally, I just wanted to say this - - -
KIRBY J: I wonder if that could be a misunderstanding - the bundled into a car by the three women - whether that could be the woman at the - - -
MR MacGREGOR: I am not concerned with that, your Honour. It is the references to two men taking him to a house in North Hobart.
KIRBY J: Well, again, if you are not paying attention, particularly to the facts as distinct from the medical condition, you might have said - - -
MR MacGREGOR: It may be an inaccuracy of record, but the extent to which it does record the facts is inconsistent with the evidence. Your Honours, my learned friend's submissions and suggestions which say that the direction which his Honour the trial judge gave, which I indicated to your Honours is set out at 1039 and 1040 in the judgment of Mr Justice Slicer, overlook the fact that there are serious misstatements of fact in that direction. The first one is that:
Dr Sale told you that he has got these personality disorders but he was quite clear that he had no opinion that he had a psychiatric condition that affected his capacity to recall events and recount them to you.
To the extent that that is rolled up, it is true that he said that the conditions which he diagnosed did not affect the mechanics of the memory; but to the extent that he said people with a particular condition are inherently untruthful, and found evidence of untruthfulness in the material, is not correctly described in that sentence by the trial judge to the jury. It was not helpful for the judge to dichotomise extremes, at the bottom of that paragraph, which his Honour Mr Justice Slicer extracted, on one the hand the judge saying to them:
`Well anything you say to us ever again we will never believe you.' On the other hand, it would be quite wrong and certainly unfair to the accused with respect to such a person to say `Oh well, I believe everything you tell me, no question. It's just as if the Commissioner of Police had told me himself, as it were, to pick him at random. So it would be wrong either way, and all you do is apply your common sense and look at the other evidence, the outside evidence."
And that is to deny the jury, or to distract the jury from evidence which his Honour was under a duty to draw to their attention, in our submission. And, finally, the statement that he makes at the foot of the next paragraph, extracted on page 1040:
that is why you got opinions from these Doctors you see but you could not get opinions from others and that is why Dr Sale's opinion really does not count for anything because he did not get to the stage of diagnosing an actual medical condition which would be beyond your experience and mine.
And that is not the fact. My learned friend is anxious that I draw your Honours' attention to the fact that the document which became exhibit 49, I am informed, and both trial counsel are present, consisted about 20 per cent of the records which were before the court on the hearing of the voir dire, and the criticism of the statement by Dr Sale - I have not, myself, read all of the documents, but the criticism of Dr Sale, to the extent that he said he saw in the records many references to a particular diagnosis, may be based on the fact that exhibit 49 only constitutes 20 per cent of the records which he has, and I think that should be said, in fairness to Dr Sale.
KIRBY J: Can I ask you this question: assume you have lost the tie point, and assume you have lost the - - -
MR MacGREGOR: Yes, your Honour, I understand that.
KIRBY J: - - - assume you have lost the unsafe or unsatisfactory, so-called unreasonable verdict point, and assume one is of the view that, on the evidence, this was a strong Crown case, but that the judge has given a misdirection relating to the use of Dr Sale's evidence, but that, as against that, the judge conducted otherwise an impeccable trial, in many ways very fairly to the accused, as he should, and gave a very strong direction to the jury about their need to scrutinise the complainant, so that the thing you have lost is that element of the doctors special qualification, why is that not a matter for the application of the proviso?
MR MacGREGOR: Because we say, your Honour, that, first of all, we were denied a trial according to law; that is, we were entitled to have the evidence of Dr Sale before the jury, we were entitled to have judicial reference to the material as to its relevance to the issues in the trial.
HAYNE J: The proviso only has application where there has been misdirection or misreception.
KIRBY J: That is the pre-condition.
HAYNE J: Absent that, no consideration.
MR MacGREGOR: Indeed, your Honour. We couple that with the misstatements of fact in the summing up otherwise which - - -
GAUDRON J: Do you not put it like this; that the way the direction was left to the jury, together with the statements of fact, impinged - well, may have left the complainant's evidence with a credibility it would not have deserved if the doctor's evidence had been in in full force?
MR MacGREGOR: Indeed, your Honour.
GAUDRON J: And because the case was essentially one that depended on credibility, there must be a risk of a miscarriage of justice.
MR MacGREGOR: Yes, your Honour, and particularly because of the problems associated with the Crown case in so far as there was a series of positive references to "Frank, the animal" and the fact that the jury rejected all of the charges involving that person, so that there were, apparently, real problems of credibility in the evidence of the complainant. This was another area which the appellant was entitled to have before the jury and, because of the view taken by the judges to psychiatric evidence in general, he was denied that opportunity, and we say that that gave rise to a fundamental miscarriage of justice. May it please the Court.
GAUDRON J: Yes, thank you, Mr MacGregor. The Court will consider its decision in this matter.
AT 3.07 PM THE MATTER WAS ADJOURNED
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