Corbett v The Queen S185/2002 [2003] HCATrans 628 (14 March 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 2002

B e t w e e n -

WILLIAM GEORGE CORBETT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2003, AT 11.29 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR J.S. STRATTON. (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR R.D. ELLIS: May it please the Court, I appear for the respondent Crown. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honour. Your Honours, the first question of general importance raised by this application is the significance for counts 5 and 6, where there were convictions, of the conclusion by the Court of Criminal Appeal that the verdict in respect of count 1 was unreasonable. That is an issue which was not considered by this Court in MFA and, indeed, we have not found any real discussion of it in authority that we have searched for to see what is the proper approach for an appeal court in a case of multiple counts where it concludes that the verdict in respect of one count is unreasonable.

Equally, your Honours, we submit that the Court of Criminal Appeal did not consider the question at all in this case. It simply was not part of the reasoning process of the court. Justice Handley and the court held that the jury were bound to have a reasonable doubt about the reliability of the complainant's evidence in relation to count 1 because she must have changed her story to make it more credible and was not telling the truth when she testified that she blanked out after the accused, the applicant, had touched her. The point was - and Justice Handley made this point at 240 of the application book - that it was hardly likely that she remembered full penetration in 1989 when she spoke to a friend and forgot it by the time of the trial.

Your Honours, unlike the situation that commonly arises in cases of inconsistent verdicts where an appellant relies on verdicts of not guilty and that verdict does not necessarily reflect the view that the complainant was untruthful or unreliable, here the Court of Criminal Appeal for itself formed that view, that the complainant was unreliable in respect of count 1.

CALLINAN J: Mr Odgers, how old was the complainant at the time of the occurrence of count - - -

MR ODGERS: Of the alleged offence? Four years old.

CALLINAN J: Four years old.

MR ODGERS: The evidence was that in 1989, when she was 24, she told someone who gave evidence that there had been full penetration, that that person not surprisingly had indicated some surprise at that - - -

GLEESON CJ: But how old was she at the time of counts 5 and 6?

MR ODGERS: Six and seven.

GLEESON CJ: How old was she at the time of the oldest?

MR ODGERS: Eleven.

GLEESON CJ: Eleven.

MR ODGERS: Yes, so the offences occurred allegedly between 1969 and 1976 when she was between the ages of four and 11. She made her first complaint in 1989 when she 24, and the case went to trial - I am sorry, she made the first complaint to the police in 1997 when she was 32 and, of course, the trial occurred 24 years after the last offence.

GLEESON CJ: Where do we find in Justice Handley's reasoning the precise point where he dealt with count 1?

MR ODGERS: At 240, your Honour - 239 going over to 240. At the bottom of 239 his Honour said:

In these circumstances the jury acting reasonably were either bound to accept the evidence of S, or at the very least to have a reasonable doubt about the reliability of the complainant's evidence -

He then in paragraph 41 - and I will not read it - made some fairly powerful observations which we rely on in respect of the complainant's credibility. Then at paragraph 43 he concluded that:

the conflict, between the complaint made to S in 1990, and the complainant's evidence at the trial, was such that the jury, acting reasonably, should have had a reasonable doubt - - -

GLEESON CJ: Paragraph 42 is of some importance, is it not?

MR ODGERS: I accept that it was an additional factor but, your Honour - - -

GLEESON CJ: He describes it as a greatly aggravating factor.

MR ODGERS: Yes, your Honour. I would not rely on that for this reason, that the complainant's testimony at the trial was much more plausible than penetration - the story she had told in 1989. So the fact that there had been a long delay, the fact that she was four, was not the real gravamen of the basis for the conclusion that the verdict was unreasonable. It was rather the fact that she had changed her story in order to make it more plausible because what she had said at trial was much more plausible than what she had said in 1989.

So I do submit that the key factor, notwithstanding the use of the words "greatly aggravated", that rendered the conviction unreasonable was the damaged credibility that she had as a result of how the evidence had emerged during the trial about the changed account that she had given.

We submit that, given her damaged credibility, it was incumbent on the Court of Criminal Appeal to consider whether there was something in the complainant's evidence in respect of counts 5 and 6, or the circumstances surrounding counts 5 and 6, which gave any ground for supposing that her evidence was more reliable in relation to those counts.

CALLINAN J: There was some corroboration of an aspect. I know there is a dispute about the significance of it, the burn in the dressing gown - - -

MR ODGERS: Yes. That is the second aspect of the application. I am sorry, your Honour?

CALLINAN J: The hole in the dressing gown.

MR ODGERS: Yes. We have two essential arguments supporting the grant of special leave.

CALLINAN J: The hole in the dressing gown is also relevant to the first argument because it may provide some basis for enhancing the complainant's credibility.

MR ODGERS: Yes. Your Honour, if the contention which we make, that the issue simply was not addressed by the Court of Criminal Appeal, is correct, then no doubt an argument could be advanced against us that the result may have been or would have been the same if it had been addressed, no doubt because it could be said that the Court of Criminal Appeal, Justice Handley, looked at the question of whether there was corroboration in respect of counts 5 and 6 for another reason, to see if that could explain the apparent inconsistencies in respect of not count 1 but the acquittals.

We complain, as I will go to in a moment, about his approach to that, but I do need to say that it was not the same issue because the critical point is that if the issue had been addressed by Justice Handley, he may have reached a different conclusion because in respect of count 1 you have a positive finding of damaged reliability, damaged credibility.

CALLINAN J: In respect of an event that occurred when the complainant was four years old.

MR ODGERS: Yes, your Honour, but in respect of her testimony at the trial. That is a different situation to the one that arises in the context of inconsistent verdicts or suggested inconsistent verdicts where the fact that there has been an acquittal on one count may not necessarily lead to any such adverse finding. In this case the only acquittal which came close to that kind of adverse finding was count 7 where the court concluded that there was a real doubt on the complainant's evidence based on the conflicting evidence of her mother. But that real doubt did not necessarily affect her truthfulness as a witness.

In essence, what I am putting to your Honours is that the question that was asked by Justice Handley in respect of the comparison between counts 5 and 6 and the acquittals may well have been answered differently if he had been looking at the question we say should have been considered, at least initially, the significance of the court's view in respect of count 1, because in respect of count 1 you have a situation where she must have changed her story to make it more credible, she was not telling the truth when she said she blacked out, the court may have considered that the verdicts on 5 and 6 were also unreasonable despite the corroboration regarding incidental details. I will come to that in one moment, if I could just conclude in respect of this issue about count 1.

We call in aid an argument that there was a danger in this trial that the jury considered count 1 first and used it as evidence of guilty passion to corroborate counts 5 and 6. We say that if there is a possibility that the jury so reasoned, then of course that would also render the verdicts on 5 and 6 unsafe as a matter of logic.

Then if I could turn to the other aspect, the second question raised by the application is the nature of the supporting evidence which can lead to a conclusion that the verdicts of not guilty did not as a matter of logic and reasonableness mean that the verdicts on 5 and 6 were unreasonable. We accept that in MFA this Court made it clear that the demands of logic and reasonableness depend on the facts of the case and there are no hard and fast rules, but we do submit that the supporting or confirmatory evidence relied on by Justice Handley could not properly be so regarded.

CALLINAN J: Was corroborative evidence necessary to support the - - -

MR ODGERS: Your Honour, not as a technical matter, no, but this Court said in MFA and it has said on other occasions that when an appeal court is looking at an argued inconsistency in a case where there is word against word and in a case where there is very substantial delay, as here, that it is appropriate to consider whether in respect of the counts where there were verdicts of guilty that there was supporting evidence or substantial supporting evidence or substantial confirmatory evidence, the language that this Court has used, and I respectfully adopt it. But we submit that the traditional test of corroboration provides a practical guide to the issue and that the Court of Criminal Appeal wholly misconceived that concept.

It is clear that Justice Handley recognised at 230 of the application book that the corroboration, if I can use that term loosely, did not go to the elements of the offences but to incidental details. That is at line 20 on 230. Despite that it was clear that in respect of count 5 and, indeed, count 6 that that corroboration he regarded as the justification for rejecting an argument that there was inconsistency, for rejecting an argument that the verdicts on 5 and 6 were necessarily unreasonable. At 242 of the application book at line 9, your Honours, he referred to the "extremely significant damage to the dressing gown".

CALLINAN J: But his Honour did not only rely upon that, did he? He relied upon the matter in paragraph 53 too on page 243.

MR ODGERS: Yes, I will turn to that at the end. We say relied on that material in error as well. But in respect of the dressing gown his conclusion was it was "extremely significant". He also thought that the possession of a blue dress - this is at page 243, line 10, that:

The jury were entitled to be impressed with her evidence associating this occasion with the appellant's gift of a blue dress.

And then he concluded that the verdict of guilty was not unreasonable. I accept that he did refer to other matters but I do submit that it is clear that he placed great weight on the hole in the dressing gown and the blue dress.

Our contention is that given the damaged credibility of the complainant arising from her evidence on count 1 and the conclusion that at least in respect of count 7 that that verdict of not guilty reflected the presence of independent and apparently reliable evidence which cast real doubt on her evidence about that offence, that the absence of supporting evidence in respect of counts 5 and 6, and I do call in aid the traditional test of corroboration for the proposition that there really was an absence of supporting evidence in respect of counts 5 and 6, necessarily lead to the conclusion that those verdicts are unreasonable.

Before I turn to the matter your Honour Justice Callinan raised with me, there is one additional point I need to make. We call in aid the fact that no direction was given to the jury by the judge that they should take into account any doubt that they may form with respect to the complainant's evidence on one count when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts. Such a direction is now generally regarded as required in New South Wales. Markuleski stands for that proposition, that judges should, in cases of word against word, where there is no clear corroborative evidence in respect of particular counts, direct the jury that while they should look at each count separately, if they form a view that they have a doubt as to the credibility of the complainant in respect of one count, they should bear it in mind when they are considering whether they have a reasonable doubt about the complainant's evidence with respect to other counts. That direction was not given in this case and we point to that as an additional reason for concern as to the ultimate question of whether or not justice was done here.

We have also pointed to other errors in the judgment of Justice Handley. We have summarised them very briefly in the further written submissions at paragraph 11, and this relates to what your Honour Justice Callinan raised with me. In paragraph 11 we say that there was an error made by his Honour in relying on the applicant's claim in the record of interview that the complainant had made sexual advances to him. We say there is an error for two reasons: one, because the Crown at no stage sought to rely on that evidence as evidence of consciousness of guilt - - -

CALLINAN J: But it does not have to fall only under that head to be irrelevant. I can see that it could be relevant.

MR ODGERS: I do not dispute that it was relevant, your Honour.

CALLINAN J: Relevant and inculpatory.

MR ODGERS: I do respectfully submit that this Court cannot take judicial notice of any proposition that a suggestion by an accused that he resisted sexual overtures by a young girl tends to prove that he is guilty of a sexual offence.

GLEESON CJ: How old was she at the time she made these advances?

MR ODGERS: The difficulty is it was in is record of interview and he was talking about events that occurred 20 or more years in the past and I do not think he ever specified how old she was at the time.

GLEESON CJ: If they were related to the charges, she would have been about six.

MR ODGERS: The offences occurred between the ages of four and 11.

GLEESON CJ: She could have been four.

MR ODGERS: If they were related to the charges but, of course, they were not. Can I also say about that that, one, the jury were not invited to draw that inference, and two, of course, it could only at the very most show some kind of attitude.

CALLINAN J: No, it is evidence also of an enhanced opportunity.

MR ODGERS: Yes.

CALLINAN J: Opportunity to take advantage. Coupled with other evidence it could have a relevance of that kind.

MR ODGERS: Your Honour, with respect, there is always an opportunity because whether or not the child makes advances - - -

CALLINAN J: Well, enhanced opportunity.

MR ODGERS: As I understood it, your Honour, the Crown does not rely on this to support a conclusion that she did make advances. The Crown relies on it for the proposition that it is highly unlikely that occurred, he is lying, he is making it up in order to somehow justify what he did.

CALLINAN J: Once it was relevant the jury was entitled to take a view of the kind that I just suggested to you whether the Crown pointed it our or not. It is a matter for the jury.

MR ODGERS: I submit that this Court should take the view that that would not be a sufficient basis to conclude that notwithstanding the problems with count 1 and count 7 that there was a reasonable basis for the convictions in respects of count 5 and count 6.

In respect of the next error, we say that his Honour erred at line 30 on 243 when he took into account the failure of the defence to suggest a reason for a false allegation. We say that the law is clear that that is impermissible and I also refer to the fact - I am sorry, this is my last point, your Honour - that there was an error made in drawing an inference from the question asked by the jury about the possibility of a verdict of an indecent assault. We say that his Honour impermissibly speculated about that.

GLEESON CJ: Thank you, Mr Odgers. We do not need to hear you, Mr Ellis.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is refused.

AT 11.50 AM THE MATTER WAS CONCLUDED