Langbein v The Queen [2009] HCATrans 329 (11 December 2009)

Last Updated: 17 December 2009

[2009] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S187 of 2009

B e t w e e n -

MARK LANGBEIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2009, AT 2.56 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by Saba El-Hanania Lawyers)

MS D.M.L. WOODBURNE, SC: May it please the Court, I appear for the respondent. (instructed by the Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes, Mr Wendler.

MR WENDLER: Your Honours, before I open the application, can I just resolve a couple of preliminary matters. First there is the issue of time. I understand this is not that application for the extension of time.

GUMMOW J: Yes, you need an extension of time.

MR WENDLER: I understand it is not opposed.

GUMMOW J: Is it opposed?

MS WOODBURNE: That is not opposed.

GUMMOW J: You have that extension.

MR WENDLER: Yes, thank you. The other matter briefly, before I move to handle the substance of the application is that it was discovered that the indictment in the application book was not the indictment that sent the applicant to trial. I understand your Honours have the correct indictment.

GUMMOW J: Yes, we do now.

MR WENDLER: I caused that indictment to be inserted in the application book. Can I move then to handle the two special leave areas that comprise this application. They can be described conveniently as the summing-up function point and the legal relationship between two important sections in criminal practice in this State and generally, namely, section 66(2) and section 108(3) informed by section 192 of the Evidence Act.

Can I deal with the second point first. It is the relationship between those sections which are two exceptions, one being an exception to the hearsay rule, the other an exception to the credibility rule of evidence. The Court of Criminal Appeal held that the trial judge’s ruling concerning the admissibility of evidence of complaint was erroneous. That finding by the Court of Criminal Appeal is clearly correct. The ruling by the trial judge was contrary to the treatment by this Court of the legal nature of section 66(2) which required that close temporal connection between the - - -

GUMMOW J: The section has now been amended, has it not?

MR WENDLER: Yes, it has. I have inserted in the authorities list the amended section which came into operation, I think, in January this year but was not in operation at the trial of the applicant. Nevertheless, the amended section still builds in a time requirement as being one of the considerations in relation to the application of the section.

The Court of Criminal Appeal effectively resolved the erroneous evidence ruling by the trial judge by applying the proviso as well as the application of section 108(2), in other words, the Court of Criminal Appeal effectively found that the evidence of complaint would have been admitted in any case on the basis of re-establishing the credibility of the complainant in re-examination. This application raises this important question, what is the legal relationship between these two sections? How do you channel through hearsay evidence through section 108 if it not an exception to the hearsay rule, it is hearsay? How do you re-establish the credit of any witness by the application, effectively, of hearsay evidence?

The two sections, as I have indicated to your Honour, are exceptions. In section 66(2), the requirement of that temporal connection is vitally important because the legal ramifications of the introduction of the evidence are of great moment because if the evidence is introduced before the trier of fact, it, of course, is introduced as an exception to the hearsay rule and becomes testimonial. There is no testimonial power, effectively, in section 108(2). You cannot, as it were, transmogrify hearsay evidence just because you channel it through section 108(2). It does not improve the evidence. It still remains hearsay evidence unless it satisfies one of the exceptions in section 66(2).

The other legal feature that is of importance, that 66(2) is a law of specific application whereas 108 is a law of general application. So, what is happening, effectively, is that we are using a law of general application to override, effectively, or using the vehicle of a law of general application to override a specific law in relation to an exception to the hearsay rule. It is my respectful submission that the specialness of this application will resolve effectively the controversy that exists, certainly in this State, between the correct legal relationship between these two sections.

I have identified Justice Howie’s treatment in the authorities I have sent up to your Honours. One of those was DBG, which appears I think at tab 2 of the authorities booklet, and the treatment there by Justice Howie in relation to the relationship between these two important sections. At page 241 of the reasons for judgment, approximately about line 55, his Honour makes this observation:

Because the statement is being admitted to meet that particular attack, the timing of the making of the statement, generally speaking, will be more important than the circumstance in which the statement is made.

That effectively picks up what Justice Callinan observed in Graham, that section 108 of the Evidence Act does not rely on matters of a temporal nature so far as fabrication is concerned, whereas what is controlling in section 66 is in fact the idea of the temporal divide between the complaint and the event which is being complained about. If the Court pleases, this particular controversy is of significant importance to criminal trial practice, it is important to the forensic development in relation to the law of evidence and it is, in my respectful submission, worthy of a grant of leave.

GUMMOW J: The second matter turns on the proviso, does it?

MR WENDLER: The second matter does not turn on the – is your Honour referring to the summing-up function point?

GUMMOW J: No, I am thinking of the ground on which the Court of Criminal Appeal ultimately disposed of the case.

MR WENDLER: I beg your pardon, yes. I need to handle that. The resolution of this question in the context of the application of the proviso raises further complexities. The approach by the Court of Criminal Appeal in the application of the proviso necessarily required a determination or resolution of the legal relationship between these two sections because the court had to answer the question whether, even though there be this imperfection, no substantial miscarriage of justice had occurred.

One of the other aspects in the approach to the application of the proviso is that the utilisation effectively of hearsay evidence is one of the considerations that must arise necessarily pursuant to section 192, which is the controlling legal force of section 108(3), because hearsay evidence is in a category of evidence which is unreliable evidence and identified as being in a category of evidence in 165 of the Evidence Act as being unreliable. That is not an aspect which the Court of Criminal Appeal considered at all when it proceeded to apply the proviso in respect of this very important evidence which was introduced to the trial in a case which was an oath against oath case. Can I move to the other point which is - - -

GUMMOW J: It is really paragraph 96 on page 91 that you have to address, I think.

MR WENDLER: Yes. The ultimate finding by the Court of Criminal Appeal in relation to this evidence was that the complaint evidence was effectively a response to an allegation of fabrication of the crimes charge. I initially thought that was an attractive way of looking at it, but when one steps back and looks at the legal reasoning that would get one to the finding that is in paragraph 96, there is no treatment really of the reality that what you are doing is using a body of hearsay evidence and channelling it through section 109 and establishing that evidence as being evidence which is testimonial in nature.

That finding, in my respectful submission, was not open without having regard to the legal steps that would have been required to get to that finding. In short, the answer is simply this, that those two sections are mutually exclusive. You cannot use, in my submission, section 108 in the way that the Court of Criminal Appeal applied it in association with the application of the proviso. If that cannot be done, then there was a significant body of evidence before the jury which the jury was not entitled to act upon.

The summing-up function point is also a matter of general importance. Scrutiny of the numerous cases where the principles concerning the summing-up function have been handled reveals that there are principles such as evenness, fairness and balance and the summing-up should not be redolent of advocacy that the prestige and power of the trial judge is of great importance, and even-handedness must be seen and observed in relation to the summing-up function. This was a case, as I have indicated, your Honours, of an oath against oath case where the allegations were in some cases as old as four years in time. There is very early in the summing-up – can I just invite your Honours to page 6 of the application book. The paragraph commences at about line 36 or so with the words:

With a child making such allegations as have been made –

to the bottom of that passage and then if we go to page 7 his Honour then told the jury:

If you hear in those an adult voice rather than a child’s voice you may draw more support in relation to her evidence.

Now, with great respect, your Honour, that was advocacy. That was directly connected to the reliability of her evidence. That expression “if you hear in those an adult voice rather than a child’s voice you may draw more support” was not a submission made by the prosecutor. It was then picked up again in the summing-up in a very important area at page 31. I just invite your Honours to that page. When handling some of the Crown’s submissions at page 31 at line 22 his Honour revisited this concept and told the jury:

This is the adult voice that you hear in the account that she is giving of what happened to her. It is little wonder that she did not want to return considering the circumstances she found herself in.

There is another aspect to this also on page 7 where his Honour effectively made a submission to the jury concerning the manner in which the applicant handled himself in cross-examination. If we go to page 7 at about line 24, his Honour told the jury:

By the same token, looking to the accused’s evidence you will recall that he became very emphatic when being cross-examined by the crown but undue weight should not, I submit to you, be given to this.

With great respect to his Honour, it is unusual for judicial officers to make submissions to juries. Advocates make submissions. Judicial officers do not make submissions. Further on, on page 8 his Honour commented at about line 30:

There has been quite a deal of cross-examination on credit, if I can explain that to you. These are matters which are not central to the case and the aim is to show a witness in such a light that you would think less of that witness’s evidence and place less credence in it.

The case was a credit case, it was oath against oath. Issues of credit were important in assessing the reliability of the complainant’s testimony, indeed, the reliability of the defence case. The statement by his Honour at page 9, at line 50, when instructing the jury:

What you are required to do today is to determine the facts, to fit those facts to the law as I give it to you and to decide whether or not you are satisfied on the Crown case beyond a reasonable doubt.

Usually at a summing-up a trial judge will identify the critical facts and explain the law in relation to those facts. I am not sure that the expression “fitting the facts to the law” is necessarily a very happy one. The instructions in relation to complaint, the fact of complaint, are set out at page 11 where his Honour gave a short legal history account at about line 35 concerning the history of complaint in sexual offence cases and then on page 12 told the jury in that context, top of page 12:

Now you have to take into consideration that this is a child who is complaining. With a young child the child may not know the nature of what is being done to her or that she ought to complain about it.

Then there are further comments in relation to handling the evidence of a child complainant and, in particular, on page 13 at about line 15 his Honour told the jury:

If you consider that her complaint was reasonable in all the circumstances then of course that would not occur and you would not think less of her evidence because of it.

Another piece really, effectively, of advocacy. In respect of this particular aspect of the application, it is my respectful submission that the summing-up function point is of general application and I conclude on this point with this observation. The case law concerning the principles of a proper summing-up function do not appear effectively to identify what the test is in determining whether a summing-up is unbalanced or uneven. What the case law appears to demonstrate is that there are particular principles and there are particular examples where there has been imbalance, but in a legal theory, what is the test? Is it the same as an apprehended bias test, for instance? The case law does not appear to explain exactly about what the legal test is to determine whether there has been impermissible imbalance. So in that sense it raises a matter of general importance to the law of criminal trial procedure. Unless the Court wishes to hear any other matters, yes, thank you.

GUMMOW J: Yes, thank you, Mr Wendler. We do not need to hear from the respondent.

The Court is not satisfied that the interests of justice, either in this particular case or more generally, require a grant of special leave in this case. Special leave accordingly is refused.

The Court will now adjourn to noon on Wednesday next, 16 December 2009 at Canberra.

AT 3.16 PM THE MATTER WAS CONCLUDED