CGM v The Police [2008] HCATrans 294 (8 August 2008)

Last Updated: 13 August 2008

[2008] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2008

B e t w e e n -

CGM

Applicant

and

THE POLICE

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 8 AUGUST 2008, AT 11.07 AM

Copyright in the High Court of Australia

MR G.P.G. MEAD: If the Court pleases, I appear for the applicant. (instructed by Legal Services Commission - Adelaide)

MR A.P. KIMBER: If the Court pleases, I appear with my friend, MR D. PETRACCARO, for the respondent. (instructed by Director of Public Prosecutions (SA))

HAYNE J: Yes, Mr Mead.

MR MEAD: CGM has been convicted of a serious criminal offence, so serious that at the age of 72, with significant health problems, with no previous convictions for sexual misconduct against his name, he is serving a sentence of imprisonment for an offence that is alleged to have occurred 32 years ago, and yet we say that no court of the three which have so far heard his case has been able adequately to explain why his sworn denials were rejected as unreliable. No criticism of his evidence remains extant. The evidence of the complainant, who was five years of age at the time of the alleged offences, was ultimately and inexplicably held to be reliable in respect of count 3, notwithstanding its insufficiency to sustain the other two counts charged.

HAYNE J: Is it inexplicable? Is it to be explained on the footing that there was an external step taken by the mother at about that time which represents something external to the evidence of the alleged participants which supports the conclusion reached?

MR MEAD: We say that the evidence about that was equivocal, if the Court pleases. Certainly there was evidence that there had been a change of schools, but we say that there was evidence before the court that there had been a separation, there had been other separations between the mother and the father, and that the evidence about the change and the move may entirely have been explicable by the fact that there was this difficulty in the marriage.

KIEFEL J: You do not think that the mother’s evidence gained particular weight because she recalled having to feign a reconciliation with her husband in order to have her children taken out of a situation of danger? That appears to have influenced both the trial judge and the appellate court.

MR MEAD: Yes, it does. I accept that, your Honour, but in respect of the mother feigning that, the evidence was that in fact on the night when the complaint was alleged to have been made she left the children with the grandmother in the house where the applicant was staying with the grandmother, was living with the grandmother. She left the children there that night and went on her own and stayed with the father, feigning an intention to go back to recommence the matrimonial relationship. We say that that behaviour of hers in leaving the children, about whom there had just been made a complaint of sexual misconduct – she leaves the children in that house with the grandmother who, the evidence was, had not believed her when she had been told that there had been a complaint of this nature made.

KIEFEL J: Yes, but the complaint had been made and, even if the grandmother had not believed it, both she and the accused were aware of it.

MR MEAD: Yes.

KIEFEL J: That might explain the one night.

MR MEAD: It might, your Honour, but this is a criminal case and the standard of proof is beyond reasonable doubt and, in our submission, that possible explanation is an equivocal explanation for the conduct of the mother. We say that the interests of the administration of justice in this particular case require the Court’s consideration and that there are three questions of law of public importance involved. I propose to deal with them in the reverse order to which they appear in our summary of argument.

The third question relates to the standard of proof in criminal trials and the circumstances in which that standard can be reached where no reasons can be articulated for the rejection of a defendant’s evidence other than the bare statement that the rejection of his evidence followed from the acceptance of the complainant’s evidence.

We are not to be taken as contending that in every case where the only evidence is from the two protagonists that the criminal standard of proof can never be reached. What we do say is that in a case where there has been long delay, where the complainant’s memory has been found to be impaired and unreliable in respect of other counts, and where it is not explicit in the reasons that the fact finder has actually applied the relevant warning, as opposed to merely recording or stating it, we say that in those circumstances a failure to articulate reasons for the rejection of the defendant’s evidence is symptomatic of a failure of the prosecution case to reach the requisite standard of proof.

The conviction on count 3 in this case cannot be seen in isolation. It follows acquittals on two earlier counts. What is important about that is that the state of the complainant’s evidence on those two counts and particularly the primary fact finder’s conclusion that, despite the complainant’s specific recollection in relation to the events surrounding count 2, that evidence, the complainant’s evidence, when measured against other evidence including the applicant’s own evidence, was insufficiently reliable to found a conviction. The magistrate also said that the complainant’s memory was impaired and that she had an incomplete recollection of the events surrounding the first count.

On the first appeal, the single judge rejected the basis on which the magistrate had himself rejected the applicant’s evidence in relation to count 1 and acquitted the applicant of that charge. When it came to count 3, the magistrate, and in turn the appeal judges when they were asked to review the evidence, was obliged to warn himself about the dangers of convicting without careful scrutiny of the complainant’s evidence. Part of that careful scrutiny had to be, in this case, reference back to the proven unreliability of the complainant on count 2, not just potential unreliability having regard to the delay, but proven unreliability on the basis of the other evidence in the case.

We say the legal requirement from Longman was that specific consideration in this case needed to be given to the following matters, for example, the loss to the applicant of the means of testing the complainant’s allegations due to the death of the grandmother; the complainant’s age; the absence of complaint to the authorities at the time; the inability of the complainant to recall significant details surrounding the alleged offence, such as what happened after she left the room and whether she told anyone about it and, importantly, we say, the proven unreliability of the complainant’s evidence on count 2.

The reference to all of these matters needed to be explicit. It was not enough to recite and quote the judicial authorities. In a sense, paragraph 76 of the magistrate’s findings at application book 210 shows him going through a kind of checklist, partly derived from Longman and ticking off items that were not present in the case, such as childhood sexual fantasy or malice or ill will, rather than looking at the factors which were present and considering them in the context of the case before him.

Fleming v The Queen says that there should have been an explicit reference to the application of the warning to the facts of the case by stating reasons why, notwithstanding the warning, or as a consequence of it, a particular verdict is reached. This did not happen here at first instance, nor on the two appeals. We say that the single judge, in our respectful submission, failed adequately to deal with the Longman warning when he dealt with it in relation to count 3 at application book 235.

With respect, we say that although the magistrate gave himself the necessary warnings at the outset of his reasons, it is not the case that he had regard to them in the way that Fleming requires. He did not explicitly state that notwithstanding the warning and the danger of convicting, he was nevertheless satisfied beyond reasonable doubt of the applicant’s guilt. We say that had he gone through the process of articulating the application of the Longman warning to the case, he would have found himself unable to be satisfied beyond reasonable doubt of the last charge. So to say, as the learned single judge said, that the magistrate had regard to the warning was not enough.

Then in the Full Court the error was perpetuated. At application book 254, the learned Chief Justice said:

It was not necessary for the Magistrate to repeat the warnings that he had given himself, when considering each count.

That is at paragraph 51. But we say it was necessary because part of the warning in relation to count 3 needed to include the positive findings of unreliability in relation to counts 1 and 2. So the warning had to be tailored to the facts of this case and, as I have said, the facts of this case included a positive finding of unreliability on, at first instance, count 2, and then on the first appeal on count 1 and, of course, it must be remembered that the complainant’s evidence had been that all three counts could have occurred on the same day. The Full Court said at page 254:

In relation to count 3 he –

the magistrate –

referred to some of the factual matters raised by the warnings.

But as I have said, those factual matters were simply matters he found to be absent in the case. He did not, and nor did the single judge, or the Full Court, address the factors which were present in the case. In fact, perhaps tellingly, the magistrate specifically said that he paid heed to the warning when acquitting the applicant of count 2, but in convicting him of counts 1 and 3 he did not say that. Instead, as I said, he referred to those aspects of the warning which were patently not relevant to the case. No one had asserted any malice or ill will and no one had suggested that this was a case of child fantasy about sexual matters.

The Full Court considered the single judge’s approach to the warning at paragraphs 52 to 53 at page 254 of the application book, but we say, with respect, that the review at that point was inadequate because there was no critical appraisal of the state of the prosecution’s case as it was at that stage and no mention of the need to include the complainant’s unreliability in the terms of that warning, or her unreliability on the other counts.

In summary, ground 3 really raises the issue of the need to maintain the standard of proof in cases of long delay and the related need for reasons to be properly expressed, both as to the assessment of witnesses and as to the way in which warnings are applied.

I turn now to ground 2. Much of what I have said so far about ground 3 is applicable to this ground. When this case reached the Full Court, the applicant had been acquitted of two counts, the reliability of the complainant’s evidence was in question on count 2, and by extension on count 1 and it behoved the Full Court to conduct a thorough and critical review of the proceedings in the courts below. That meant critical attention to the way in which the Longman warning was applied and expressed to be applied. That did not occur.

It also meant taking an overall look at the prosecution case, which it might be said was limping badly by the time it reached the third hurdle. We say that it was the duty of the Full Court at that point to put it out of its misery, not in effect to ignore its manifest injuries and to allow it to hobble home to the line.

The absence of Fleming-type reasons in relation to the warning and the insufficiency of reasons as to the assessment of the applicant’s evidence are themselves indicators of a failure to reach the necessary standard of proof. If one is unable to say why apparently credible, consistent sworn denials do not raise a reasonable doubt in a case where there has been long delay, where there is inconsistency between the complainant’s evidence and the evidence of complaint and where other evidence of the complainant has been found to be unreliable, then we say one is entering the area of reasonable doubt and the Full Court should have entertained a doubt in all the circumstances in this case.

As I have said the loss of this case involves the loss of the applicant’s liberty and so there was a need for a critical and thorough going scrutiny of the evidence and of the findings of fact.

I turn to ground 1. The reason the single judge gave for upholding the conviction on count 3 was the evidence of recent complaint. But in this case the complaint evidence referred to different conduct to that which was charged. It is not enough to say that the complainant’s evidence was that there was an incident of inappropriate sexual behaviour and the evidence of her mother discloses a complaint of inappropriate sexual behaviour.

At the end of the case the finding upon which the applicant was convicted and imprisoned was a finding that he had offended in a way that the complainant alleged in evidence. It is to support that factual basis that the complaint evidence was admitted. It was to buttress the complainant’s account about the specific sexual act with which he was charged and the conviction which led to his imprisonment.

If the complaint evidence could not do that because it was inconsistent with the complainant’s evidence 32 years later, then it should not have been used by the magistrate or the appeal courts to shore up the case to the point where reasonable doubt was removed. This point is one of general importance because evidence of recent complaint is often adduced and its purpose is always to buttress the complainant’s credit.

The question this case raises is whether an inconsistency between the complaint made and the complainant’s evidence renders the complaint evidence incapable of buttressing the complainant’s credit in a case where there is a 32-year delay and the tribunal of fact is obliged to adhere to the Longman warning. Our contention is that by its very nature an inconsistency in the complainant’s evidence, such as the one in this case, cannot survive the scrutiny required by Longman.

It might be different in a case where there had not been such delay. Such an inconsistency would perhaps be less likely to arise if the mother was relaying the complaint of the child two years afterwards, instead of 32 and there would be the possibility that the accused could actually adduce evidence as to the child’s language capabilities, and so forth. There would not be the problem adverted to by Justice Kirby in Crampton’s Case where 32 years later the complainant is an adult whose life’s experience, character and motivations are unknown to the accused person. But in a case of delay with its inherent dangers, an inconsistency between the terms of the complaint and the complainant’s evidence renders the complaint incapable of buttressing the complainant’s credit. Those are my submissions, if the Court pleases.

HAYNE J: Yes, thank you, Mr Mead. We will not trouble you, Mr Kimber.

We are not persuaded that it is in the interests of justice, either generally or in this particular case, that there be a grant of special leave to appeal to this Court.

Special leave is refused.

AT 11.25 AM THE MATTER WAS CONCLUDED