Hinkley v The Queen P45/2000 [2000] HCATrans 650 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P45 of 2000

B e t w e e n -

DOUGLAS JOHN HINKLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 11.43 AM

Copyright in the High Court of Australia

MR S. HALL: If it please your Honours, I appear for the applicant. (instructed by Director of Legal Aid (WA)

MR S.P. PALLARAS, QC: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

McHUGH J: Yes, Mr Hall.

MR HALL: If your Honours please, the ground upon which special leave is sought in this case is that the applicant lost a real chance of acquittal by reason of a misdirection of the trial judge. Your Honours, as in so many cases involving sexual offences, the credibility of the complainants was the crucial issue in this case. There was delay and there was cross-examination on the delay and, accordingly, the trial judge was obliged to give a direction in accordance with section 36BD of the State Evidence Act. That direction was given by the trial judge in the terms that are required that delay does not necessarily mean that the complaint is untrue, and there may be good reasons why such a complaint has been delayed. His Honour, as I say, did give such a direction.

He also went on to give a direction which was in conformity with the decision of this Court in Crofts that delay was a relevant factor and the jury should take that into account in considering the credibility of the two complainants. However, his Honour went, then, a step further than Crofts by telling the jury that the delay was, in fact, a common phenomenon in cases of this type, and it was often for very good reasons.

McHUGH J: What is the matter with that, anyway, in any event?

HAYNE J: Indeed, in any event, is it beyond what was said in Crofts where the direction was the experience of the law confirms that complaints are often not made immediately after sexual assaults?

MR HALL: Yes, and I notice in Crofts that that was commented upon and said to be unexceptional, although that was in the context of a much broader direction, and that particular part of the direction was not particularly focused on in Crofts and - - -

HAYNE J: What is wrong with it, any way?

MR HALL: What is wrong with it is, your Honour, is that it is diverting the jury away from the merits of the particular case to a consideration of what happens generally in cases of this sort, but the jury are being invited to impermissibly reason that the delay might be of no consequence because it is common before the courts for there to be delay and it is common for it to be for good reasons. The jury might think that when they come to consider delay and the credibility of the complainants that it is of no particular consequence because delay of this sort is, in fact, a common thing.

McHUGH J: Yes, but again and again in these cases, counsel say, "Why did she take so long to complain? You cannot believe her", and the comment that was made is it is a very common phenomenon in cases of this type that children subject to sexual abuse very often do delay before they make a complaint. If that is the general experience, why is the judge not entitled to remind them? He does not say it occurred in this case, but that is the fact.

HAYNE J: We only get these multi-count indictments spread over months, if not years - - -

McHUGH J: Years.

HAYNE J: - - - because there is no complaint.

MR HALL: Indeed, but the jury should be able to assess whether the delay in the case and the reasons given for that delay are good or not, by reference to the merits of the particular case and the evidence given.

McHUGH J: That statement does not stop them. It just sets a general background which may or may not, in the particular circumstances of the case, explain it. But if jurors have no experience of these cases, I would wonder why did the complainant not complain earlier? It is like identification cases. A statement like the one made in this case represents the collective experience of the judiciary, of which individual jurors may not be aware. It is like identification evidence or like the unreliability of accomplices or at an earlier time, it was thought the unreliability of complainants, they were regarded as suspect witnesses. But a statement like this represents the collective experience of the judiciary. Why is the jury not entitled to be told?

MR HALL: It may well be that it is correct, that that is the common experience of the courts. But the reason the jury should not be told that is because it is not for the judge to say that to the jury and for the jury, in taking that as being accepted, that somehow that has relevance to a determination of the merits of the case before them. It simply does not. A judge might as well say, "The majority of cases that come before this court where there are sexual offences result in a conviction of the accused".

McHUGH J: I think it is quite a different matter, Mr Hall. The judge is informing the jury as to a fact that it is not so unusual. The fact that there was such delay is not by itself necessarily a ground for rejecting your evidence, you have to study the reasons.

MR HALL: I accept that, your Honour, and that is, in fact, what 36BD requires. If his Honour went no further than that, there obviously would be no complaint at all because 36BD, as does Crofts, directs the jury's attention to the particular circumstances of the case. The words "necessarily" and "may" are crucial to 36BD because they focus the jury's attention on the facts of this case. The fact that the delay has occurred does not necessarily mean they have to then assess the merits of the explanations that have been given. That there may be good reasons does not deflect their attention away from the merits of the particular case.

But when his Honour moves beyond that to say what is often the case, that there are often good reasons, and this is very commonly the case, that has the effect of diverting the jury's attention away from the merits of the case such that they may say, "We do not really have to concern ourselves overly with delay because that is very commonly a factor in these sorts of cases. Now, that means, in the end result, that the jury is left with a direction that is unbalanced in the terms that were used in Crofts, that they may be inclined to discount the importance of delay and delay was of crucial importance here because, as his Honour himself said to the jury, that if they did not believe the two complainants, they could not convict the accused.

What this direction has the effect of doing is stereotyping complainants. What was done before Longman where complainants were being stereotyped as being a particularly unsatisfactory suspect type of witness, this has the effect of saying to a jury, "Well, you can stereotype people who make delay, where there is delay in these sorts of cases, as the delay being unimportant because that is a common feature". Surely, if that is told to a jury, they might be inclined to discount the significance or otherwise of the explanation that has been given. They may think, because it is common and because there are very often good reasons, the reasons advanced in this case are very good ones and that there is nothing unusual about the delay. If that is so, then they may be inclined to accept the witness as being a credible witness, that delay is of no importance and the accused would lose a fair chance of acquittal.

Both of the judgments in the Court of Criminal Appeal, that of Justice Pidgeon and Justice Murray, accepted that the direction that was given by his Honour in this case, where he goes on to say about "very often" and "commonly", using those words, was wrong in so far as it went well beyond the terms of the law as it stands in 36BD. Indeed, I think Justice Murray went so far as to say it was regrettable that his Honour had used those words. But their Honours went on to say that, notwithstanding that, they felt it would not have affect the jury's determination in this case.

Now, with respect to them, it is difficult to see how that could be so. If it was regrettable and wrong and went beyond the terms of the Act, and if it was such that a jury might be inclined to reason impermissibly that there was nothing significant about delay in a case like this, then how could it not be the case that he would lose a fair chance of acquittal?

The reasons why we would say that special leave ought be grant is although it does not appear in the application book, objection was taken to this direction at the time of the trial, and his Honour said, as has been commented by your Honour, that this was a direction he commonly makes and maybe it is a very commonly made direction, but, nonetheless, a problematic one for all that.

The fact that those sorts of directions are being made might serve to - - -

McHUGH J: Were any questions put to the complainant about the question of delay?

MR HALL: Yes, there were two complainants. They were both questioned quite substantially about the delay, and there was substantial delay. One of the complainants had - I think there was a delay of some 12 months before she complained to a school counsellor, and the other complainant complained to her stepbrother, I believe. Yes, they were both cross-examined. It was that cross-examination that required the learned trial judge to direct in terms of 36BD.

McHUGH J: But the passage that you complain about, I take it, is the passage at 22:

I need to warn you that the mere fact -

et cetera. That is the passage, is it not?

MR HALL: That is the passage, yes, your Honour.

McHUGH J: The judge starts with the general, and then, on 23, he drops the particular and he says:

Now, in this case the two girls have given evidence as to their reasons for not complaining before they did, and you might -

et cetera -

"I didn't think anyone would believe me,"

MR HALL: Yes. Then he goes on to give a direction that is quite unexceptional:

it's for you to weigh up whether or not you think those are good reasons.....Nevertheless, the fact that there was a delay is a matter that you are entitled to take into account and if you consider that for some reason the delay in complaining does reflect on the credibility of either or both the girls, then that's entirely a matter for you.

That is a proper direction to give, but that direction must be seen in the context of the direction which immediately preceded it on the previous page, the one to which we take exception. If his Honour had only said what was on page 23, then so much the better, but that had been preceded by him telling them - and it must have still been ringing in their ears at the time he made that second direction - that often there are very good reasons why a child that has been the subject of sexual abuse might delay.

McHUGH J: Yes, but then that is a general, that is his opening, and then he moves to the particular case.

MR HALL: The jury are left, though, in a situation where they can do no more than accept what his Honour says, that this is being presented to them effectively as his Honour's either personal or anecdotal experience. The jury are left in a position where, what are they to do with that comment that:

Often there are very good reasons.....and it's a very common phenomenon in cases of this type that children subjected to sexual abuse - - -

McHUGH J: You see, one of the generalisations that the judge gave, at line 32, is that:

There can be embarrassment or fear of what might happen if the complaint is made within the family, fear that the child might not be believed.

So that is the general. Then that is the very thing that one of these complainants did. At 23, the judge says that Kristy, when pressed, said:

"I didn't tell anyone because I didn't think anyone would believe me,"

MR HALL: Yes.

McHUGH J: Kylie said:

"I didn't know how she -

Mum -

would react."

MR HALL: That is fair enough. It is fair enough to say, "These are the reasons advanced and it is for you to consider whether they are good ones or not". It is fair enough to even say, following a 36BD direction, that these are some of the sorts of things that a child complainant may raise. But it goes well beyond that from the particulars - - -

McHUGH J: But supposing the trial judge, having made the comments that appear at page 23, said, "We know from experience in these courts that complainants often say they have delayed for the reasons that Kristy and Kylie have given in this case." Now, could you complain about that?

MR HALL: Yes, because in saying that, the judge is asking the jury to take into account other cases of which the jury are not privy to as being somehow an indication that they should - - -

McHUGH J: But when juries evaluate evidence, they do not come in there with blank minds with no experience, they evaluate evidence having regard to their general knowledge of the community, indeed, most summings up urge them to take their common sense into account.

MR HALL: Yes.

McHUGH J: So, if there is a particular matter on which jurors may not be fully cognisant such as identification evidence or the dangers of identification evidence, why can a judge not give a direction, either in that case or in this particular type of case?

MR HALL: This is quite different to that, your Honour, because it is not asking to take into account their own experience of life or their common sense. This is, in fact, the judge telling them of something which is beyond their experience. This is something that he knows and that he is telling them that they ought to take into account. Now, whether or not that be true is not something the jury are able to do, other than accept.

McHUGH J: But courts have given directions for generations. Take the old direction that is now abolished about warning about the dangers of convicting on the uncorroborated evidence of complainants in sexual cases.

MR HALL: Yes. Now, I suspect that although that was superseded by legislation, if those directions had continued to be made, this Court may well have said that it was inappropriate for those directions to continue to be made to juries because it was inviting them - - -

McHUGH J: But that would be because it lacked the foundation in fact, as we now know.

MR HALL: Yes.

McHUGH J: This does not. In fact, what was said at 22 reflects the experience of - this Court is not a Court of Criminal Appeal, but we have seen dozens of these cases where there are these delays.

MR HALL: Yes, no doubt the courts at the time that the old direction was being made thought it honestly and truly reflected experience of the time.

McHUGH J: Oh, no doubt they did, yes. It reflected a 19th century view of women.

MR HALL: Yes, but why do that? Why tell any jury that somehow they ought to take into account the experience of the courts in other cases? What possible relevance has it got that it is commonly the case that there is delay and very often delay for good reasons? How does it help the jury determine whether the explanations given in this case are good ones, and whether the delay ought to be taken into account?

McHUGH J: Because it makes it more likely that juries may accept the explanation.

MR HALL: Yes, and that is what - - -

HAYNE J: On an issue which is at one level removed from the primary issue before them. It was not the complainants who were on trial about whether they had complained or not. It was the accused and that was the focus, and we are one step removed from that with complaint evidence, and it may be putting that complaint evidence in its proper context.

MR HALL: Yes. But the proper context for complaint evidence is the context of the trial and the evidence that has been led before the jury. It is not to take into account matters extraneous to that the jury are not privy to and cannot assess. In other cases where there have been attempts by the Crown to bolster complaint evidence by calling psychologists to give evidence as to why complaints are delayed and properly delayed, that psychologist evidence has been rejected as not being properly expert evidence and it being recognised that because of that evidence, an accused has lost the opportunity of a fair chance of acquittal.

Now, how much more the case here when it is not an expert giving evidence but a delivery of what, in effect, is the experience of the trial judge with all the authority of judicial position that this is something that the jury can take into account, that the judge's own experience is that very commonly there is delay and very commonly for good reason. If it was bad enough when a psychologist gave evidence to do that and might affect the jury, how much more so is it the case when a judge does that? If your Honours please.

McHUGH J: Thank you. Yes, we need not hear you, Mr Pallaras.

The Court is of the view that the direction of the judge gave rise to no miscarriage of justice or any matter that would otherwise warrant the grant of special leave to appeal. Accordingly, the application is dismissed.

AT 12.01 PM THE MATTER WAS CONCLUDED