Bropho v The State of Western Australia [2007] HCATrans 300 (15 June 2007)

Last Updated: 28 June 2007

[2007] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P39 of 2006

B e t w e e n -

ROBERT CHARLES BROPHO

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 11.18 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC: May it please the Court, I appear for the applicant. (instructed by Corser & Corser)

MR R.E. COCK, QC: May it please the Court, I appear with my learned friend, MR C.J. HENDERSON, for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J: Yes, thank you.

MR McINTYRE: Yes, your Honour. This is a matter in which the same judges, judge of the District Court with the trial judges in the previous matter – and again this is an incidence which starts with him not having given a direction – considered the issue of whether or not he ought to have given the direction.

KIRBY J: Yes, we are conscious of this. That is why we listed the two cases to follow each other in case there was any overlap of principles involved.

MR McINTYRE: There is a degree of overlap although this case, we would say, there is not any real factual issue. It becomes a question of the way in which the different judges in the Court of Appeal have dealt with the question of whether or not the direction ought to have been given. All of them have concluded that it ought not to be given and Justice Roberts-Smith wrote no reasons but agreed with both of the other judges.

KIRBY J: He did not attract a dissent in this case. Justice Buss, he was for dismissing the appeal.

MR McINTYRE: They both were but for very different reasons and we say both have fallen into different errors as to why they concluded that no warning should have been given. If you start with Justice Pullin’s judgment, he identifies that the - - -

KIRBY J: Could you just clarify one thing for me? At one stage you were running a Longman warning case. Now, that is not before us as such, but in some way you have some new theory of a Longman trigger, that somehow, as I read your argument, you want to stretch Longman out even more. This is not a Longman case. The delay here was very, very short.

MR McINTYRE: It is not about the question of the delay in the complaint. It is a question of whether the judge even considered whether he should have given a Longman warning. We say that he is obliged to consider whether or not the circumstances are such that – it is really more to do with Fleming than Longman, with respect, your Honour.

KIRBY J: It is more to do with Robinson, is it not, that the only evidence against the accused is the evidence of the complainant? We have now got rid of the corroboration principle but Robinson nevertheless says that if that is all there is, the trial judge has to tell a jury or him or herself to examine the evidence with special care and to be sure that the matter is proved beyond reasonable doubt, albeit on the evidence of one person, the complainant.

MR McINTYRE: Yes. This case, we say, really turns more on whether Fleming ought to have been applied. Fleming says that you give a Longman warning where there are sufficient special circumstances in the case to justify that. What we say is that the Court of Appeal have not understood that that was what Fleming was telling them to do and they start with that lack of understanding. In fact, back in Longman and the dicta - - -

KIRBY J: They do go through the evidence of the suggested inconsistency rather carefully, I thought, in the Court of Appeal.

MR McINTYRE: Yes, but using the wrong test. You see, what happens is that Justice Pullin, starting at the bottom of page 46, identifies Longman and Fleming as telling them what to do. They, in particular, refer to the dicta of Justice McHugh right at the bottom of page 46 where Justice McHugh says the question is whether:

‘the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable –

and I emphasise both the words “suggests” and “may be.” He goes on to say:

the trial judge has a duty to make the jury aware of the dangers concerning that person’s evidence.

That, we say, is the appropriate dicta for the judge to have focussed on. Where there are circumstances which suggest that the evidence of the complainant may be unreliable, then there is a duty to give the warning. What Justice Pullin does in the next paragraph is he, with respect, ignores that and goes to the next sentence of what Justice McHugh said:

As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it.

The first error in Justice Pullin’s judgment is that he takes that passage and says in the next paragraph:

This passage makes it clear that where a prosecution depends solely upon the evidence of one witness, the trial Judge is entitled (but not obliged) to point out that the evidence of the complainant requires careful scrutiny before acting upon it.

We say that that is a misreading of what Justice McHugh was saying. There is a duty. It is not a matter of the discretion of the judge as to whether the warning should be given. If the circumstances are - - -

KIRBY J: Were these matters drawn to the trial judge’s attention? Were these the subject of submissions on behalf of the applicant?

MR McINTYRE: I think it is fair to say no. There was not, as in - - -

KIRBY J: There is a danger, is there not, that we are getting words used by a judge in explaining a decision, then picked out and they become Holy Write and they are suggested to be set in stone and that the judge has to remind himself, if he is sitting alone, of that passage. It is an over-sophistication, I think, when essentially all you are saying is, if there are some flaws in the evidence, you have got to be very careful, and that is what a judge would do anyway, one would hope and expect.

MR McINTYRE: We say that the trial judge in this case completely ignored his duty to even consider the question. There is no indication in his reasons that he even considered whether or not Fleming suggested to him that a warning ought to be given.

KIRBY J: Did trial counsel draw Fleming to the trial judge’s attention or not?

MR McINTYRE: Not that I can tell, your Honour. It does not appear that that was the case.

KIRBY J: Then we are really laying a trap for trial judges. It is hard enough to run a criminal trial now but if they are saving up points up for appellate courts, and rather sophisticated points, you put your full engine brain onto high drive to get to this point and really, unless you alert judges, it is not really an appropriate way to have the matter come to the High Court at the least.

MR McINTYRE: I should say that I do not know that counsel below could be said to have withheld the point. It may be, as your Honour says, that I have looked at it and considered it carefully, but the real reason - - -

KIRBY J: Would you make this concrete. Would you tell us where is the miscarriage of justice as a result of failing to pay attention, because all that happened was that it is alleged that the complainant says that your client came into the toilet and touched her breast and in the vicinity of the vagina? It is a very straightforward sort of a thing. It either happened or it did not. There is the oath of the complainant. Where is the inconsistency that you say led to the requirement of a self-warning of a Fleming type?

MR McINTYRE: Justice Buss is probably most helpful to our argument in this regard. He starts with the proposition that a Fleming warning would be justified by the circumstances. If you go to page 90 of the application book at paragraph 167 he reaches that conclusion:

In my opinion, on a view of the facts reasonably open to the learned Judge, in his capacity as the tribunal of fact, there were circumstances which, in combination, suggested that the complainant’s evidence may be unreliable. The relevant circumstances were these:

(a) The evidence of Ms Johnston . . . the complainant told her, in substance, that:

(i) she had not been touched sexually in any way by any person at the Lockridge campsite; and

(ii) she wanted to leave the Lockridge campsite because her father physically abused her (and, by implication, not because of any misconduct by the appellant).

(b) (i) The complainant said in evidence at trial that what she had told Ms Johnston on the date of the alleged offences was the truth.

(ii) Later, however, in her evidence the complainant denied having told Ms Johnston (as asserted by Ms Johnston in her statement) that “none of that touching had happened to her”.

et cetera. So that is where the substance of the inconsistencies are set out. At 168 Justice Buss dismisses some other circumstances but came to the view, as I suggested in paragraph 167, that there were circumstances which pointed to unreliability. So thus far Justice Buss was with us and we say that his diversion from the proper test then came in paragraph 169 where he effectively conflates what we say is the issue, that is, that there has been a procedural defect, a failure to warn, with the broader question of a perceptible risk of miscarriage of justice. We say that, as in Fleming, the circumstances are not such that the proviso in relation to the miscarriage of justice in section 13(4) would apply where there is a clearly demonstrated procedural error in failing to give the warning which was clearly demonstrated ought to have been given by the circumstances of the case.

So Justice Buss, we say, is with us till the eleventh hour in concluding that the warning was an appropriate thing to have occurred. Except then he says, “Because I do not think there was a miscarriage of a justice, then the lack of warning does not satisfy me that we ought to overturn the decision of the trial judge.” We say that that is a conflating of the procedural defect with the broader unsafeness or miscarriage of justice question which, according to Fleming, you do not jump to where you have a clear procedural error which in itself comprises a miscarriage of justice.

HAYNE J: I will take you to the reasons of the primary judge at pages 10 and 11. At paragraph 30 his Honour deals with the statement of Ms Johnston. At paragraph 35 on page 11 notes that:

In fact her statement to Ms Johnston essentially negatived any suggestion of misconduct.

So the trial judge deals with what is thought to be the inconsistency that is observed between her oral evidence and what she had earlier told Ms Johnston. Where do you go from there?

MR McINTYRE: He is dealing only with the question of the delay in the complaint. We say that that is only one element of the issue of her broader reliability and that he has not gone to that broad issue. He has not addressed the broader question, is this is a reliable witness? Ought I to be asking myself the question? We suggest that he has not asked himself that broader question and he has not articulated, in his reasons, that he is addressing that question.

HAYNE J: Paragraph 34 is his assessment of the complainant.

CRENNAN J: Paragraph 33, he recognises the need to be satisfied in relation to the “reliability of the complainant’s evidence”.

MR McINTYRE: Yes.

HAYNE J: Are we not down to parsing and analysing words at a level which is perhaps unproductive?

MR McINTYRE: Our point really is that the concern is with the way in which the Court of Appeal dealt with the matter, that there is a divergence
of the ways in which each of the judges who wrote reasons dealt with the matter. We say that in relation to Justice Buss, as I have indicated before, whilst he got seven-eighths of the way to the right answer, he then diverted himself off. In relation to Justice Pullin, at page 48 of the application book and also at paragraph 48 of his reasons, he sets out what we are happy to suggest is the correct test coming from Fleming, that is, where there are circumstances which suggest that the evidence of the complainant may be unreliable. Then he goes through a process which distorts that test.

At paragraph 49 towards the middle of the paragraph he says that that “does not mean that such a person will ipso facto give unreliable evidence”, then a couple of sentences further on, “If a Judge concludes that the evidence of a witness is unreliable”, and he uses that language throughout the several paragraphs in which he analyses the evidence, so he is converting a test which speaks of the possibility of unreliability to the actual fact of unreliability. We say that that is a distortion of that test and if that is to be the law which is to be followed in this State or other States, then defendants will be disadvantaged if that flows down to the trial courts who have to deal with these matters.

We say that this Court in Fleming has made it quite clear when the direction ought to be given and that the Court of Appeal, in our submission, has not understood accurately when that is and have mistakenly adopted a distorted form of that test to apply in these circumstances.

KIRBY J: What we have said in Fleming and in Longman and in Tully, and in all of the cases, still stands. It might be occasionally helpful if counsel familiarised themselves with it and brought it to the attention of the trial judge so that then there is a refine issue to, as it were, lay it down or not to notice it and then to come up to the second tier appellate court is not really very productive unless you can point to some injustice in the case that makes it an appropriate matter for us to look at it. That seems to be missing here.

MR McINTYRE: Yes. If it please the Court.

KIRBY J: The Court is going to give you a rest, Mr Cock, for this case, you and your huge team.

MR COCK: Thank you, your Honour.

KIRBY J: Mr Robert Bropho was convicted of indecent dealing with a child between the age of 13 and 16 years. The alleged victim was said to have been confronted in a toilet and the applicant was said to have placed his hand on her breast and touched her near the vagina. The applicant denies the allegations. However, he was found guilty and convicted by Wisbey DCJ sitting alone. An appeal to the Court of Appeal of Western Australia failed. That court unanimously dismissed the appeal.

The point of complaint about the trial that has persisted in this Court is that the trial judge failed to warn himself of the dangers of relying on the evidence of the complainant, given that such evidence was effectively the only evidence in the prosecution case, compare Robinson v The Queen (1999) 197 CLR 102. The applicant’s principal complaint in this Court is that the trial judge failed to give specific attention to, and failed to remind himself of, the duty of scrutiny where evidence discloses that the evidence of the complainant might be unreliable. See Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 107 and Fleming v The Queen (1998) 197 CLR 250 at paragraph 35. It was not suggested that this duty was specifically drawn to the attention of the trial judge by trial counsel.

Whilst we understand the argument that has been advanced, we are not convinced that it would enjoy sufficient prospects of success to warrant the grant of special leave. The Court of Appeal carefully examined the suggested inconsistencies in the complainant’s evidence of which the applicant complains. We are not of the conclusion that a miscarriage of justice has occurred in this case. Special leave is accordingly refused.

AT 11.38 AM THE MATTER WAS CONCLUDED