MM (Min: 277921) v The Queen [2005] HCATrans 240 (22 April 2005)

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MM (Min: 277921) v The Queen [2005] HCATrans 240 (22 April 2005)

Last Updated: 5 May 2005

[2005] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S268 of 2004

B e t w e e n -

MM (MIN: 277921)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 12.05 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MS M.A. MARTY. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Game.

MR GAME: At the conclusion of his dissent in the reasons, Justice Smart in the Court of Criminal Appeal made the observation that he was surprised that the trial judge had not taken steps to stop the prosecutor’s address. In fact, no such thing happened obviously.

McHUGH J: I have to tell you, counsels’ addresses must not be as robust as they once were. I find some difficulty in agreeing with the Court of Appeal’s criticism of the prosecutor. Why can he not say those things?

MR GAME: It is not a very - - -

McHUGH J: The most that can be said is when referring to what happens in churches and so on, it might be said he has gone very close to the border but, apart from that, what is the matter with it?

MR GAME: Your Honour, in our respectful submission, quite a bit. He knows that a warning is coming in which the jury will be warned about the long delay and the absence of corroboration. He knows that the complainant has been vague on some important details and he knows that the credibility of the complainant is at the heart of this case.

McHUGH J: Yes, I know, but how can counsel conduct an address without providing the framework for his argument about the facts? Counsel has to refer to the law.

MR GAME: Your Honour, this framework is not a framework that has anything to do with addressing the facts of this case.

McHUGH J: He is talking about the rationale for it.

MR GAME: But the rationale he gives is not the rationale. In fact, if you look at what he says – maybe it would be better if I take you straight to what his Honour – can I just say this. Not only was there no criticism, but the trial judge complimented both the Crown and the address to the jury on their addresses. If you look at the prosecutor’s address which your Honours have been provided with - in the time available to me I am going to attempt to persuade you that it was quite inappropriate – if you go to that address at the bottom of page 551, the first thing that is happening is that the jury are being told that the community has an interest in bringing to justice people who have committed crimes like these. There is a very strong – that is no part of - his duty is to persuade the jury that the facts are established, not that crimes such as these have been committed. He says, “Against all of us, ie the jury’s interest, is attached to the interest of the complainant”.

If you go to the next page you will see the complainant is said just to be a witness. Then it is said that these charges are brought by the director “on behalf of the community which you now represent”. So the executive, as it were, is lined up with the jury, is lined up with the complainant. Then you come to the next paragraph where it says, “that was not always the case”. I might say this prosecutor’s memory must be very short because there have been an awful lot of sexual assault prosecutions in the last 20 or 30 years. He says:

There was a time, not too long ago, when people thought things like this simply didn’t happen. When such things were swept under the carpet. When young people were thought not to be believed. And when cases like this were rarely prosecuted . . . Now as a community we hope that attitudes have changed.

What could that be saying other than that the executive in effect has swept these things under the carpet, the community has swept these things under the carpet, “but you the jury are to do your bit by convicting this accused”. Then we come to the long paragraph and the import of the long paragraph is not only has the executive done their bit, not only has the community done their bit, but the legislature has done their bit and have amended the legislation and now we have come to - - -

GLEESON CJ: He is apparently responding – there is a bit of push and shove going on here, but apparently counsel for the accused in opening had started talking about old-fashioned and now outdated morality because of the nature of the charge, and he has picked him up on that.

MR GAME: Your Honour, there is some tit for tat, but if you look at the Crown’s original opening, he had talked about how it was perfectly acceptable the vagaries of the dates and so forth which Justice Smart referred to. But if you look at what defence counsel said – and maybe I am putting a gloss on it – really what he was saying in the opening was that you should not have any prejudice against the accused because the crime is described as buggery. I think that is what he was trying to convey. Surely that is not an excuse for any of this. Then we come over - your Honours, none of this has anything to do with what the prosecutor should be putting to the jury. Then it says:

Perhaps over the past 20 years we’ve come to understand amongst other things –

again, who are “we” –

But this trial is an example of how enlightened a community we have become.

Apart from the fact that that is a complete fantasy, again we are now in the halcyon days of enlightenment.

As a community we have confronted the reality of the exploitation of children . . . It is no longer acceptable to take the view that because the abuse took place many years ago –

again, the assumption is that it has happened. Then we come to the assumption on the next page that it happens in the cities and the towns, in churches, families, schools, where people would expect children would be safe. It just so happens that this is a case involving a schoolmaster.

GLEESON CJ: Then he assigns a purpose to himself in the third paragraph on page 553.

MR GAME: Yes, “not to inject”. I would have thought that that was a deft piece of understatement of what he was actually doing. At the top paragraph, what that really is conveying to a jury is this: “Look, the incidence of this is very high and it’s been very high for a long time in all these places, and here we’ve actually managed to drag one of these cases into court. We the executive have done the right thing, the legislature’s done the right thing. Now you, the community, who the director represents, should do the right thing and convict this man”.

GLEESON CJ: What is the response to this? Is there an application for a discharge of the jury?

MR GAME: No, there is nothing except that defence counsel in his address described this as a somewhat emotive address. That is all, your Honour. Sorry, the other thing is that I told you before that the judge in his summing up commended this address as forceful and impressive.

GLEESON CJ: This is one of the things that is concerning me a little as to what a trial judge is supposed to do in a circumstance like this. Counsel for the accused has the final address. Obviously counsel for the prosecution is attempting to anticipate some lines of argument that might be put in final address and there is a deal of forensic, as I said, pushing and shoving going on. In the absence of any application for a discharge of the jury or application to the trial judge to say something to the jury to correct or restore a balance, where does that leave the judge?

MR GAME: Your Honour, in my submission, the judge – and this is not stating anything even slightly startling – has a duty to stop something being said if it is incorrect at law or if it is inflammatory. Those are the two circumstances.

GLEESON CJ: There is another one, I would have thought, that is not irrelevant to this case. I can certainly say that 20 or 30 years ago trial judges took great exception to counsel telling juries what the trial judge was going to say in his or her summing up. That was something that would attract asperity.

MR GAME: Say a counsel said to the jury, “I believed the complainant’s evidence”. The judge would not hesitate for a moment to stop that submission.

GLEESON CJ: I have heard trial judges when a barrister says, “The trial judge is going to direct you that you can’t acquit the accused unless the stricter scrutiny is applied and the judge would say, ‘Stop that’”, because that is undermining the authority of the judge.

MR GAME: Yes, but also there is another example. Say counsel has got excluded some evidence, then the counsel goes to the jury and says, “You didn’t hear any evidence about that, did you?” The judge knows that for some discretionary – the judge can say, “You can’t make that submission on the spot”. Sorry, if I come back to this. If you look at what actually has been done is he is redefining the warning. He is actually giving a different meaning to it and that is, in our submission – and it is necessary for me to go to the actual words to explain why I would say that he is redefining the warning. He is talking it down quite convincingly. If you go to that long paragraph on page 553 – I know your Honour Justice McHugh said that people were more robust. In my experience judges were more robust in a quite - - -

McHUGH J: That is right, and one of the reasons that defence counsel went into this sort of thing was to neutralise what pro-prosecution judges would do. There are a number of judges who, quite frankly, were as pro-prosecution as any Crown Prosecutor.

MR GAME: You would not have got these words out before a trial judge 20 years ago before the whole thing was stopped.

McHUGH J: There is a District Court judge of the present time who was a public defender who had many clashes with Justice O’Brien in relation to matters such as this.

MR GAME: Your Honours, in that long paragraph, not only are the jury being told that this scrutiny – incidentally, he says:

There is other evidence which supports what Scott has told you –

That is a problem that has not really been adequately addressed because the prosecutor towards the end of his address identified numerous things that were said to support, and the jury were never assisted about corroboration, but that is a diversion in a sense. He says in the middle of that, about line 32:

Must be scrutinised with great care. It is not a direction which is custom made for this case, specifically . . . It is not an expression of anyone’s view . . . is just plain common sense. Nobody should be convicted of a criminal offence without the evidence being scrutinised with great care.

There is more to come but it is “a criminal offence” without it being – and it is not a matter of common sense solely and it is not a matter of “a criminal offence”. Then he goes on to talk about the events that occurred, then at the bottom of that page – that part there is cutting down the one witness aspect. Then we come to the delay aspect. Over the page we see he refers to both delay and lack of corroboration. Three or four times there he speaks about common sense and then he says at that same line again:

nobody should be convicted of a criminal offence without scrutinising the evidence with great care.

That is not the warning. Then he says:

It’s all this direction asks you to do.

That is to say, “Look at the evidence which you’ve been doing for the past few days”. That is not all this direction – then it says:

It’s common sense that to do other than what you are doing is a dangerous course. And I think you are already engaged in the type of approach that is not a dangerous one, and that is scrutinising the evidence.

So actually what he has done is he has redefined “danger” and he has redefined “scrutiny”. That is a submission that is clearly intended, in our submission, to actually reduce the impact of the warning. The whole point of the warning is to avoid a miscarriage of justice in cases such as this.

GLEESON CJ: Would there have been anything wrong if the prosecutor had stood up in front of the jury and had said, “This man is guilty. The evidence establishes his guilt beyond reasonable doubt. There is in the circumstances of this case not the slightest danger in convicting him. You can comfortably be satisfied of his guilt”?

MR GAME: No, probably not, your Honour, but what he cannot do is he cannot redefine the danger. The whole point of the warning is that it is notwithstanding the warning, the evidence in this particular case satisfies you of guilt. So what has happened is that he is redefining the warning. In fact, he spends a good long part of this address redefining the warning. Then he talks about the delay, it is something that the law – it does not necessarily mean it is false, then you go – if you look at the bottom of 555, he then says about consent and he said, “The law doesn’t really need to tell you that consent’s not relevant, that’s common sense”.

Then if we get to the bottom of page 557, he talks about another aspect of the warning. He talks about the delay being an aspect of the warning, but what he actually does then at the top of page 558 is speak about the disadvantage to the prosecution because of the delay. The prosecution does not entertain a disadvantage that the law recognises.

GLEESON CJ: I am not quite sure it is as clear as that, but of course all this is happening in the context where the system is that the prosecutor goes first and then the defence counsel goes second and then the judge goes last. The prosecutor knows that in between what he says to the jury and their deliberations, there are going to be two other people talking to them. I suppose the question is to what extent the prosecutor can legitimately try and anticipate and, for the purpose of powerful advocacy of the prosecution case, seek to deflect some of the things that he knows perfectly well are going to be said. They are both sitting there with Bench books these days, are they not?

MR GAME: Everybody has the Bench book. I do not really carry it round. I just make it up as I am going along. What is happening now is that the prosecutor is saying to the jury, “Look, the uncertainty and the disadvantage of delay is something that helps establish that this man is guilty”. Again, the whole point about this warning is to tell the jury, “Look, there are at least two things about this case. One is it’s a terribly long time ago. That affects the accounts of the witnesses and the ability to test them. It also affects the ability to obtain evidence. But also this is a case involving the evidence of one witness and one witness in which there may be support but there is no corroboration”. So it is a double-headed warning that picks up both of those things.

What he is doing in the aspects that I have taken your Honours to is really to deliberately drive the jury to think, in my submission, that the warnings are not actually terribly important and to redefine them to the jury. That is where he steps over the line and that is where the judge had a duty, in my submission, to intervene but did not, but in fact said to the jury in effect, “He’s done a terrific job”.

GLEESON CJ: He knows that the warning is coming and he knows that his opponent is going to be making much play with the warnings too. Is he not entitled to diminish the practical effect of the warning in the circumstances of a particular case?

MR GAME: He is entitled to do that, so long as he does not change the substance and meaning of the warning. He is entitled to persuade the jury that notwithstanding the warning, this is a case – ie, there is a warning - it is a warning that is given – this case is different in substance because this person was such a compelling witness or this person’s account had inherent credibility to it and so forth.

GLEESON CJ: Is he entitled to say – and I have no present view one way or the other on this – “You’re going to hear this warning and it’s a warning that the law requires the judge to give in all cases. It’s not something that’s been specially devised for the particular circumstances of this case”?

MR GAME: There are cases that say you should not even say that. You should not say it for all cases because it tends to imply that it is - - -

GLEESON CJ: You can see what he is trying to do as a matter of advocacy. The question is: is it legitimate advocacy? He knows what is coming - they both know what is coming - and he is trying to get across to the jury the idea that this is not something the judge is making up because the judge has a particular concern about this particular accused. Is that legitimate?

MR GAME: Really nothing is legitimate about the warning beyond saying, “You are going to receive a warning from his Honour about this witness. I’m going to put submissions to you as to why, notwithstanding that warning, you should accept – or taking everything into account, including that warning, nevertheless you should accept the complainant’s evidence”. That is the starting point and the prosecutor should not step away from – he or she should not say anything at all about the substance or meaning of the warning, just as a prosecutor or defence counsel - - -

McHUGH J: But why not? What would be wrong with counsel saying, “Subject to his Honour’s directions, you are not to convict this person if you think that it would be – if you were acting only on the uncorroborated evidence of the complainant, unless you have scrutinised his evidence with great care”?

MR GAME: I am not complaining about that. The yellow and the red lights have gone on. I do not know whether I should stop.

GLEESON CJ: No, answer the question, please.

MR GAME: Worth a try. I have no complaint about that, but what I am saying is that an advocate cannot address the jury and redefine what it is that is going to be the direction, and that is what happened in this case. That is where the advocate crosses the line and that is what we submit happened in this case. I will not address your Honours on it, but we did put on submissions about the substance of the warning and we rely on what Justice Smart had to say about that aspect of it.

GLEESON CJ: Thank you, Mr Game. Yes, Mr Smith.

MR SMITH: If your Honours please. The address, in our submission, was not intemperate, it was not inflammatory and it was not over-zealous. There have been cases in the past where Crown Prosecutors have stepped over the line, effectively comparing the accused to Hitler or to some rabid paedophile or matters of that sort. Obviously in those cases that would be improper.

We would have preferred that the Crown Prosecutor had not made these comments and specific references to the directions and warnings that would be given. The words “common sense” have been used. It is common sense in a case of this nature – historical sex cases, they call them – that is very old where the Crown Prosecutor puts up a complainant who appears credible and the Crown Prosecutor believes that the evidence is credible for him to tell the jury that in a sense and put the arguments as to why they could accept that witness.

In this day and age the Crown Prosecutor would know that a Longman direction and a Murray direction, as were given here, and a lack of corroboration direction under section 165 of the Evidence Act is inevitable. It is quite common, and I submit it is a practice that has applied in trials for many years, for Crown Prosecutors, knowing that a corroboration direction will be given, for them to address the jury on the types of evidence that could be accepted as corroboration. In effect, that is anticipating the judge’s ruling. I submit by saying that “The judge will give you directions about corroboration”, just to say that, that does not step over the mark.

Even if these submissions may have gone too far in proper prosecutorial practice, we submit there is no miscarriage. What happened was this trial went, as I understand it, for 10 days. The Crown Prosecutor’s address was on the Thursday afternoon. The comments he made that have been attacked were mainly in the early part of his address, which went for about 20 pages of transcript. Whilst there was one made after about seven pages, most of them were in the first two or three pages. The next morning Mr Hanley, defence counsel, addressed for longer and he specifically referred to the Crown’s address. If I could just take your Honours to page 583 of the transcript of the addresses, you can see there he is seeking to rebut the Crown Prosecutor’s argument that the time involved and the scrutiny is something that they normally do and they will be warned of it and he is trying to suggest that in a sense, “This is our response to the Crown:

The Crown Prosecutor told you you’d be told this direction, you’d be told that direction, and of course in any case you’ve got to, you know, scrutinise the evidence very carefully. That’s true. And juries do, that’s my experience, juries are very careful. But in these sorts of cases there are special directions given about being cautious in relation to convicting. And they’re given for a very good reason.

Then he explains why these warnings are important, why the accused, the applicant here, was disadvantaged by the lapse of time. Things that would have been available perhaps if the matter had been investigated quickly, the complaint, the police could go to his unit, they could see if he had pornography, photos and other matters, and all these records have gone. He is explaining the disadvantages.

His Honour then gave his summing up on the Monday. So there is all this time in between. They have Mr Hanley’s powerful reply to the Crown and we come to the Monday and his Honour gave, we submit, a good summary of the Longman aspects of the case, he gave the proper warning about it being dangerous to convict. He gave examples, I think eight or nine examples, which the defence had raised of problems that were caused to the accused by the delay. His Honour set them out in detail and used expressions such as “The law requires me to warn you about this”. So that any, say, prejudice that might have come from the Crown, perhaps going over the line a bit, we submit has been well and truly neutralised and really pushed into the background by what the defence counsel has said and what his Honour has said.

In those circumstances, we submit that it cannot be said that there is a miscarriage here. What the Court of Criminal Appeal has done, we submit, in sympathy with Justice McHugh, perhaps just to emphasise the undesirability of the Crown’s getting into the position of the judge’s directions too deeply, is to quite strongly criticise what the Crown Prosecutor has done as well as quite strongly criticise what defence counsel has said in his opening address where he appears to have overstepped the mark. By saying that, they have sent the message out loud and clear as to what you should and should not do, but the majority has also found there is no miscarriage.

We submit that is the case here, that the Court of Criminal Appeal has perhaps overcautiously gone a bit too far in condemning in a sense what the Crown has said because the Crown has, during what he said, kept emphasising the fact of the danger and the warning and scrutinising carefully and matters of that sort, so he has not rewritten or deflected the judge’s directions and warnings in a way that prejudices, we submit. He has used them the best way he could, I suppose. The court has sent that message out loud and clear. Where there is no miscarriage, as we submit you would not find there is, there is no need for this Court to intervene. Where is the specialness of this case when we have a decision of the Court of Criminal Appeal, majority decision, comments on, “This is not what Crown Prosecutors should do”.

There are a number of decisions, as I mentioned at the start of my address, involving cases where Crown Prosecutors have stepped right over the mark and prejudiced the trial by their inflammatory comments. This is not one of those, we submit, and the guidance is there for the future for other Crown Prosecutors and other defence counsel as to how to deal with their addresses and not to get into this area of the law. Otherwise, your Honours, we submit – and on the question, because my friend has raised it in his written submissions, the other ground to do with the Longman warning and direction, we submit that this judge has complied.

This is not a case like Crampton or Doggett where the direction has not been given. In this case it has been given carefully. Admittedly you can go on and on and on and emphasise every possible little weakness that could be there, but we submit that what his Honour has done has been quite sufficient and he has complied. By giving that warning and those directions and making the comments that he made in a context of the warning about the disadvantages to the accused, he has put the right emphasis and the jury, who acquitted on one charge as a result of perhaps less corroboration, less certainty by the complainant, it showed that they have not been overborne by the Crown address when they can distinguish and acquit on one of the charges, which is in the middle of the Kangaroo Valley counts, where there were issues of who was there and whether the sister of the accused was
there and the children and all that sort of thing, where there was perhaps some doubt obviously that they found.

So we submit that in the circumstances of the case, it is not a matter for the grant of special leave.

GLEESON CJ: Thank you. Yes, Mr Game.

MR GAME: Could I just make a couple of comments. One is the measure of a miscarriage of justice in a case such as this must be, in our submission, addressed to the centrality of the credibility of the complainant and the fact that what the prosecutor said was not corrected by anything that the trial judge said.

The second thing I wanted to say is this, that the case does raise a question of general importance as to the content of a miscarriage of justice in circumstances such as these, and really the court not only did not speak with one voice; they did not speak with two voices. There are three separate ideas of what a miscarriage of justice means in these circumstances. Justice Levine really did not address the question at all but to say that there was no miscarriage. Justice Howie said the conduct of the trial meant there was no miscarriage, but how could be so, we would say rhetorically, when it was the case that the judge said nothing to correct the address?

The third thing is that in terms of measuring a miscarriage of justice is to consider the judge’s warnings. Justice Howie himself thought that they were not ideal, but there was a defect in the warning because the warning said nothing about the problem with assessing the count itself in cross-examination or the accused giving a proper account for himself. Nothing was said about that.

The final thing is this, that Justice Howie, in thinking that the warning was adequate, drew a distinction between warning and comment and thought that the substance of the warning was in fact a comment. In our respectful submission, that cannot be correct. So we submit that the case, both in the individual circumstances of the case and as a matter of general importance, does warrant a grant of special leave.

GLEESON CJ: We will adjourn for a short time to consider the course we will take.

AT 12.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.42 PM:

GLEESON CJ: The decision of the Court of Criminal Appeal on both of the issues raised in this application involved the application of established general principles to the particular facts and circumstances of the case. In that respect, the case does not give rise to an issue suitable to a grant of special leave and we are not persuaded that the interests of justice require such a grant. Accordingly, the application is dismissed.

The Court will adjourn until 2.00 pm.

AT 12.43 PM THE MATTER WAS CONCLUDED