James v The Queen P41/2000 [2001] HCATrans 431 (14 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P41 of 2000

B e t w e e n -

IAN GEORGE JAMES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 10.42 AM

Copyright in the High Court of Australia

MR T.F. PERCY, QC: If it please the Court, I appear for the applicant together with my learned friend, MR S.M. DAVIES. (instructed by Max Crispe)

MR R.E. COCK, QC: If it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions)

McHUGH J: Yes, Mr Percy.

MR PERCY: Your Honours, I understood there may have been some problem with the authorities getting through by air yesterday. They may now have reached you by fax.

KIRBY J: We have the usual suspects, Longman, Crofts, Crampton, Christophers.

MR PERCY: Yes, they are the only authorities to which I propose to refer, if your Honours please.

KIRBY J: We know them pretty well, because there have been a lot of these cases in the Court.

MR PERCY: Yes, I can imagine your Honours would be more than well versed in them.

KIRBY J: That really, in a sense, is against you in the sense that having visited it so often, what more is there for this Court to say? The only point that you can raise is that the administration of justice requires, in your particular client's case, an enforcement of the principles which this Court has repeatedly laid down but which some trial judges appear disinclined to obey.

MR PERCY: That is correct, your Honour. The first aspect of it is that in this case that has led to a miscarriage of justice.

KIRBY J: I am not saying that I am convinced that in this case the trial judge did not sufficiently conform to the standard, but the standard is very high and this Court has repeatedly said so.

MR PERCY: That is right.

KIRBY J: So, from a point of view of principle, there does not seem to be anything more that the High Court of Australia can do. It is merely application. We are not a general Court of Criminal Appeal.

MR PERCY: No. There is a specific problem, though, in Western Australia because the law appears to be developing here in a way which is divergent from that which has been recently again laid down by the High Court in Crampton, which was decided after this case went to trial and after the appeal was determined.

The Court of Criminal Appeal in this case in the matter which is referred to at No 4 in my list of authorities has, again following this case in the Court of Criminal Appeal, laid down what we would call a much softer test than what is required in cases of this nature and it is our - - -

McHUGH J: Then we can deal with that if there is an application in Christophers, but you have two points in this particular case. One of them is that the trial judge did not use the word "dangerous", but a very adequate direction was given. The second point that you have is the point about the judge's statement that experience is that children do not complain and that, again, is a very case-specific reference. So, as Justice Kirby pointed out to you, unless you can show an arguable case that there has been a miscarriage of justice in this particular case, it does not seem to me that there is any special leave point in the case.

MR PERCY: Well, our submission is that there has been a miscarriage of justice. That is our primary point, but secondly we would say that the direction was so deficient in terms of the authority which has since come from the High Court in Crampton and, seen in that light, we would say it has led to a situation where the Court of Criminal Appeal in this case has already started following James and is leading to a situation where trial judges in this State are giving directions in accordance with the Court of Criminal Appeal, which is somewhat removed or significantly removed, from the strong line of authority which has recently been reasserted in Crampton's Case and that the requirement to use the word "dangerous" in a case such as the present one is an almost inescapable obligation on a trial judge where the complaint comes almost 20 years late and initially concerned allegations made by a child when he was four years old.

McHUGH J: Well, the judgment in Christophers was given on 20 October last year and the judgment in Crampton was on 23 November.

MR PERCY: That is right.

McHUGH J: There is no reason to believe that the Full Court of Western Australia will not follow what was said in Crampton.

MR PERCY: It appears to have reached a position quite different to Crampton in Christophers. It is our submission that there needs to be some guidance from this Court in that regard because, prior to Crampton coming down, it was developing in an altogether different direction.

KIRBY J: Well, I hope it does conform and if it does not then applications will be dealt with. But we have to concentrate on this particular case and in this particular case there was, as Justice McHugh has said, quite a strong warning by the trial judge. It did not use the word "danger" but it did alert the jury to the concerns that this Court expressed in Longman, Crofts and Crampton. So, the word "danger", I do not think the absence of that word, though it would certainly be entirely appropriate for it to be used, is not itself sufficient to lift you into this Court. Do you contend to the contrary of that?

MR PERCY: It is our contention that there must be some cases where no word other than "danger" will be appropriate.

KIRBY J: But the problem with that is that we are then into the position of fixed template instructions. Now, this Court has been very cautious about getting to that point because, as repeatedly explained, otherwise we become a sort of a writer of a template which must be inflexibly used whereas the whole point of a jury trial and of jury instructions is for the judge to speak to the jury, not simply to read off a template, as judges do in the United States.

MR PERCY: Yes, and I am familiar with what the Court said in Longman that there was no specific formulation of words that is required. But, our respectful submission is that there comes a time when cases are so remote in time and the factual circumstances of the case, such as in this one where the child was four at the time, the complaint is 20 years later, will not be sufficiently dealt with unless the judge uses that word. We are not asking for the Court to lay down a specific formulation as to how it must be done, save for the fact that the jury must be told in no uncertain terms that to convict on the evidence would be dangerous.

McHUGH J: But that would be just a mere abstract statement, Mr Percy, unrelated to the facts of this case.

KIRBY J: See, if you go to the facts of this case, your client said, in explaining his long continued association with your client - rather, the complainant explaining that, said that he did not have any particular animus to your client. He regarded him as having been a good friend, but he still carried this memory and he still felt obliged to bring it to attention and ultimately to the jury's attention so that that is a particular circumstance, which it seems to me is the setting in which the adequacy of the warning has to be evaluated.

McHUGH J: I mean, the judge told the jury that after 10 to 17 years delay the opportunity had gone and that the complainant's recollection could not be adequately tested for that reason. There were likely to be difficulties with the fairness of the trial and they were told that, in those circumstances, it was necessary for them to be extra careful before convicting on that evidence alone and then they were told that if, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, that they could convict if they were satisfied of its truth and accuracy. Now, really, unless we get into a situation where you have to use the word "dangerous", what is the matter with that. Surely, it would be a very thick jury that did not appreciate the need for caution, given that direction.

MR PERCY: Well, it certainly outlined some of the matters that the authorities indicate need to be outlined to the jury but, at the end of the day, we say that in a case such as this, with the inherent dangers, it must be pointed out in stronger terms and the ultimate warning needs to be given to the jury, that is, that it would be dangerous to convict. We say this represents, effectively, the high-water mark of these type of cases: very young child, very long delay. The dangers on recollection of the child and the means which have been lost to test those recollections after these years could only be adequately dealt with by telling the jury that it was dangerous, rather than simply warning them and cautioning them against convicting without a close look at the evidence, or, as the judge said, without being extra careful.

Certainly, the matters were alluded to. Some of the problems were put to the jury but, in essence, we say, it was a case which required the use of the word "danger". It is a word which is well-known to the law and over many years there are cases where it has been required and we would say if this State is entitled to have judges directing juries, other than by using the word "dangerous" in appropriate cases, then it falls well short of the requirement in Longman and cases since then such as James and Crampton.

I am not sure I can advance it any further. We say this is the high-water mark of these type of cases. It is a matter of critical importance that there be a determination as to whether a judge in these circumstances is required to tell a jury that it would be dangerous. If that not be the case, then there is no point in this application in the first point.

In relation to the second point, the learned trial judge told the jury that experience has shown that children do not complain. That was essentially a proposition that did not find favour with the Court of Criminal Appeal on its face. Justice Murray found that by referring that back to the evidence of the complainant - saved it, in effect.

It appears that the observation made by his Honour was referable to the decision of this Court in Crofts, whereby the analysis of sections such as 36BD of the Evidence Act, in this and other jurisdictions, was seen as correcting what had previously been the sort of direction given to juries, that the experience of the court was that allegations of sexual misconduct were especially suspect. But, in this case, what the trial judge has done was turn that around and indicate, effectively, that it was the experience of courts that children do not complain, that is, genuine complaints usually are not reported. That, in effect, we would say is quite contrary to what the court, and, in fact, the reverse of what the court is required to tell a jury pursuant to section 36BD and, in fact, reverses it.

I think the general importance of this is that the Court of Criminal Appeal put its imprimatur, in effect, to that type of direction provided the judge referred it to the evidence in a specific case. In our respectful submission, this is not a case specific point but one of particular importance because of the volume of these types of cases that come before the Court on a regular basis, both here and in other States, and the existence of similar legislation to that contained in section 36BD of our Evidence Act in Western Australia.

It would be, in our respectful submission, particularly dangerous if judges were entitled to tell juries, with their imprimatur, that genuine complaints in the experience of the court, are not made until some considerable time after the event and that is, in effect, the experience of the court.

What his Honour Justice Murray said about this aspect is contained at page 47 of the application book at paragraph 33 of the judgment where his Honour said that it would be:

inappropriate, in my respectful opinion, for trial Judges to speak at large about human experience being that genuine victims, particularly children, generally do not complain. To make such remarks is, in my view, impermissibly to raise as matters of fact circumstances which are unsupported by the evidence. In this case, however, I think her Honour's direction was immediately placed on secure ground when she referred to the evidence given by the complainant.

It is our respectful submission that it is a point of general importance that judges do not make such remarks because in these types of cases it is, for the reasons expressed by Justice Murray, inappropriate and nothing that was said to refer it back to the facts of the specific case was capable of correcting that. That led to a problem in this case and we would say the potential for it to create a problem in cases of a similar nature of which, as

the Court has already said, there are many in this State is of particular significance and we would say is a matter which ought to be determined by this honourable Court.

Those are the submissions which are set out in our written outline and I do not think I can usefully advance them any further. If the Court pleases.

McHUGH J: Thank you, Mr Percy. No, we need not hear you, Mr Cock.

This Court has repeatedly emphasised the importance of the giving of appropriate warnings to a jury in cases of very long delay in complaining of a sexual offence: see Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427; Crampton v The Queen [2000] HCA 60; (2000) 75 ALJR 133; and Doggett v The Queen [2001] HCA 46; (2001) 75 ALJR 1290.

The present case was one where there was a delay of up to 17 years in the making of the complaint. This Court has stressed that no particular formula or warning must be used. Use of the word "danger" will often, perhaps usually, be appropriate. Crampton emphasises the importance, as Longman said, of warning the jury about the forensic disadvantages faced by an accused person when there has been a long delay in making a complaint. The trial judge gave an appropriate warning in the present case. There was no defect in the direction that would require the intervention of this Court.

The second point relied on was that the trial judge had misdirected the jury in stating that experience is that children do not complain and that the maturing process can lead to complaints being made. The judge went on immediately to say, "That, in fact, is what this complainant has said to you".

We agree with the Court of Criminal Appeal concerning the trial judge's observation that the experience of the court shows that children do not complain. This Court has said that it would be wrong to elevate the evidence of children to a specially safe or privileged category. However, taken in its context, we are not convinced that any miscarriage of justice has occurred by what the judge said in the present case. Once again, the Court must say that no particular formula need be used in giving directions about the evidence of children. The judge's instruction has to be adapted to the particular circumstances of the case.

Accordingly, special leave is refused.

MR PERCY: If it please the Court.

AT 11.01 AM THE MATTER WAS CONCLUDED