Groundstroem v. The Queen [2014] HCATrans 114 (16 May 2014)

Last Updated: 20 May 2014

[2014] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S310 of 2013

B e t w e e n -

CHRISTOFFER GROUNDSTROEM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 12.48 PM

Copyright in the High Court of Australia

MR G.A. BRADY: I appear with my learned friend, MR H.S.Y. CHIU, for the applicant. (instructed by Nyman Gibson Stewart)

MS S.C. DOWLING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J: Yes, Mr Brady.

MR BRADY: There are two questions of general importance that are raised in this application and can be summarised in this way. The first, does a proper interpretation of section 165B lead to the conclusion that when an application has been made by the accused that a trial judge is bound to consider only those matters relied on by the accused as a significant forensic disadvantage in determining whether there has been a significant forensic disadvantage.

HAYNE J: Recognising that that is the way in which your side of the record seeks to frame the issue, could you identify in short form what exactly was the forensic disadvantage that the applicant was under at his trial?

MR BRADY: I can indeed, your Honour, and it is a very simple – there are a couple of simple ones and they are very clearly a significant forensic disadvantage. The first is this. The complainant gave evidence that she attended upon a doctor in 2003. The doctor examined her. The doctor found blood in her urine. The complainant said that blood in her urine came from being anally raped. The complainant said that the doctor could not find or could not work out the source of that blood. That doctor - - -

HAYNE J: Because she was embarrassed to give a full history.

MR BRADY: Because she was embarrassed to give a full history. That doctor, when approached by the police, told the police that it was too long ago and she was not prepared to give a statement. That is, the medical examination of the complainant about which the complainant gave evidence in trial setting out not only what the findings were supposedly by the doctor but the difficulties the doctor had in determining where the blood was coming from and the complainant saying but it was coming because I had been anally raped was not able to be tested against the doctor and the doctor’s recollection and/or notes because of the effluxion of time.

BELL J: So the highest it got was the complainant’s account that there had been blood in her urine and her understanding that it was in consequence of the anal penetration?

MR BRADY: And that the doctor was unable to otherwise locate the source of that blood in her urine, therefore confirming effectively in front of the jury that it was as a result of being anally raped because she had not described to the doctor she had been anally raped. So, it was basically saying the doctor’s findings support what I say about being anally raped and bleeding as a result of that. That was not able to be tested – I am sorry, your Honour - - -

BELL J: All of this is the complainant’s account.

MR BRADY: Yes, and that account could not be tested against medical evidence simply because of the effluxion of time. Simply, because of the delay in reporting to the police and there is absolutely no doubt that is the case. The police officer gave evidence that she spoke to the doctor who said, effectively, simply too long ago. I do not want to give a statement about it. So, it could not in any way, shape, or form be tested against that.

BELL J: Had a more timely complaint been made, you point out the doctor would have been in a position to say either yes, I could find no explanation for blood in the urine, or she had a condition that explained the blood in the urine.

MR BRADY: Or, indeed, first, I did not find blood in the urine, because the only evidence that there was blood in the urine came from the complainant and simply as a result of the effluxion of time there was no ability to test that, i.e. whether there was blood in the urine first, against the doctor, and if there was blood in the urine, as your Honour Justice Bell points out, the further factors that then fly in the face of a – sorry, create the forensic disadvantage.

BELL J: Now, 165B(2) requires:

the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage –

MR BRADY: Indeed.

BELL J: That is your first significant forensic disadvantage.

MR BRADY: It is.

BELL J: Was that the matter that was the subject of an application under 165B(2)?

MR BRADY: That was – no, no is the answer to that, if I can put it that way. What occurred, of course, was that – what occurred was the trial counsel raised when the matter was initially raised by the judge, the difficulty with the lack of medical evidence. He did not specifically refer to that but he talked about the difficulty of testing against the complainant’s complaints of being anally raped and bleeding, medical evidence.

Then, when the trial judge asks trial counsel for a dot point summary and gave trial counsel, it would be fair to say, a significant period of time in order to get that together, trial counsel came back with what could only be described as a very unhelpful three points. The unhelpful three points being the inability to provide an alibi, it was a consensual case right through and the judge quite properly dismissed that. Loss of forensic evidence and he limited in that dot point to simply blood on the sheets, and again, there being no cross-examination about that. The third was unidentified failed memories. So that there is no doubt that the judge in that summary did not get the assistance that one would expect a judge to get.

HAYNE J: The question then becomes whether it is in the interests of justice in this particular case that the Court should take it.

MR BRADY: I would say it slightly different and that is this. Because of the general importance of the findings of the Court of Criminal Appeal in relation to the restrictions on a judge in considering an application under section 165B and the Court of Criminal Appeal’s approach to their limitations on what they could do, even if they came to a conclusion there was a miscarriage, that it is of a case of general importance and it is an appropriate vehicle for that case to have those matters resolved.

Section 165B limits the judge’s ability at what was common law to ensure a fair trial. At common law it was seen in order to ensure a fair trial, effectively, one was looking at the Longman direction. Section 165B clearly limits that. The question is to what extent does it limit it? There is no doubt it limits it in terms of firstly, there needs to be an application. Secondly, it needs to be a significant forensic disadvantage. Third, the terms of the warning are limited. That is expressly stated in each of the various subsections of 165B. One would expect if the common law position was going to be limited, it would be expressly stated.

Does it lead to the conclusion that once an application is made, a trial judge is effectively bound to ignore anything they might think is a significant forensic disadvantage because it is not relied on by trial counsel? Does 165B limit it in that further way? Ultimately, our submission would be it does not because it would expressly state so if that were the case. The Court of Criminal Appeal relied on the terms of 165B(2) being on application by a party in conjunction with the decision of Justice Heydon in Evans in relation to section 165 and the unreliability warning. Evans v The Queen and his Honour Justice Adams who gave the judgment referred to Evans v The Queen and the limitations, therefore, in what a trial judge can take into account at paragraph 57 of his judgment indicating:

This conclusion is similar to that applying to a “request” for a warning under s 165 concerning unreliable evidence. Such a request “would involve counsel making the request identifying what the ‘kind’ of evidence was, why it was unreasonable, and what the terms of the warning requested were”.

which is obvious bearing in mind the necessity of trial counsel giving trial judge assistance. The difficulty with that and using that passage to link it back to 165B(2) to say the application must include those factors and the judge cannot go outside those factors is there is a difference in wording between 165 and 165B in terms of the application. Section 165 is couched in this way:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence –

and then it goes through the various parts that might be unreliable. Subsection (2) says:

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable –

Unless, of course, the judge need not comply, set out in subsection (3):

if there are good reasons for not doing so.

That is different than the wording in this section, the wording in this section talks about the fact that there is on application by a party. Further, the unreliability warning mandates unless a judge comes to a conclusion either one is not the kind of evidence would be unreliable, or two, there is good reasons for not giving it, mandates the giving of it. In section 165B(2) on application, there is still the necessity for the judge to be satisfied about the significant forensic disadvantage. It is the judge’s task to satisfy him or herself whether there is that significant forensic disadvantage.

Using what Justice Heydon said in Evans to then limit, effectively, what the judge can undertake once an application is made would be, in our submission, to be putting a gloss on the legislation and what the legislation says. If it is going to further limit what a judge can do in terms of running or ensuring a fair trial, then surely the legislature would have said exactly that. The application must include the areas of the significant forensic disadvantage and a trial judge is bound by those.

BELL J: What is the second point of significant forensic disadvantage on which you rely? Because, even if the proposition that you seek to make good is correct it would need to be established that the trial judge ought have given the direction by reason of satisfaction of the existence of the significant forensic disadvantage.

MR BRADY: Can I take your Honour Justice Bell to that? But, before I do, can I take your Honours when you make that comment, the judge would need to be satisfied, to what the Court of Criminal Appeal actually found, bearing in mind the submissions that were before them, and reviewing all the evidence, and that is this: at paragraph 64, Justice Adams and the agreement of the two Justices come to the conclusion at the bottom, that is the last sentence of that paragraph:

In the result, the only matter which, had it been pressed, would have required an appropriate warning to the jury, was that relating to the visit of the complainant to the Kariong Medical Centre and, possibly, the absence of hospital records.

He then goes on to talk - - -

BELL J: That is no more, is it, than a conclusion that had the application been made it would have been appropriate to give the warning because it was capable of being viewed as a significant forensic disadvantage?

MR BRADY: That is, but I am going to take your Honours on to what in fact then leads to the conclusion that there was the necessity for a warning. When Justice Adams refers to that at 64, all he is referring to is what was raised by trial counsel at the trial. But your Honours will see, I am sorry, in paragraph 63, Justice Adams deals with what was set out in the written submissions by trial counsel, those three dot points, and says, quite frankly and quite rightly, none of them raised a significant forensic disadvantage. He then at 64 goes into discussion about the matters first raised by trial counsel when the matter was first raised with the judge that then did not find their way into the dot points.

BELL J: I understand that.

MR BRADY: That matter for Kariong was just in relation to that area.

BELL J: Yes, I understand.

MR BRADY: What his Honour does in 65 is go on to say this:

So far as the additional matters contended on the appeal as amounting to significant forensic disadvantage are concerned, it is a necessary to obtain leave to rely on them at this stage . . . Were the question not governed by s 165B(2) and (5), these matters, or at least some of them, were of sufficient moment to have been required to be the subject of a warning, even though no direction was sought in respect of them and I would have granted leave to raise them on the appeal.

What his Honour Justice Adams, and the Chief Justice is agreeing with him, is saying is that they were of sufficient moment to get over the hurdle in relation to rule 4. That is, they were of sufficient moment to lead to the conclusion there may well have been a miscarriage. So I raised that to start with when your Honour asked me, of course, your Honour Justice Bell asked me what were the other matters. The other matters also included the fact that the complainant had complained of anal bleeding back as far as 1992 and 1993 and 1994, in the second and third incident, and talked about it being, in a way where I felt ripping, that there was blood, and there is obviously no ability to test that against medical evidence.

BELL J: But, the complainant at no time asserted that she had seen a doctor and been examined in relation to anal bleeding, is that right?

MR BRADY: That is right. But, the point is, if the complaint had been made back then, then there would likely to have been medical examination in relation to it. So, there is a loss of the opportunity for medical examination to occur to determine whether what she was saying was true or not. The more important one is the counselling records, and that is this: the complainant gave evidence that she went counselling with the accused. She did not raise the rapes themselves, but the counsellors told her that she clearly had been the subject of domestic violence and clearly needed support if she was going to make it through this.

They sent or told the accused that he needed assistance with the fact that he was being domestically violent. It was quite substantial what the complainant was saying occurred through the counselling sessions, and in particular, what the counsellors found in renewal to the relationship between the accused and the complainant. The police specifically sought out those records from the counsellors and those records were destroyed as a result of the effluxion of time, they only kept them for seven years, there were no records in relation to the counselling.

BELL J: But, it was not contended that she had complained to the counsellor.

MR BRADY: No, it was not contended that she had complained to the counsellor about being raped. What she did say is that she was going to complain to the counsellor but it got to towards the end of the session, she broke down in tears and fled. What she did say was the counsellor spoke to her about it was clear that she was being the subject of domestic violence. So these things that were being raised in relation to the counselling really highlighted again the contextual evidence that the Crown was leading in relation to a controlling and domestically violent relationship, and there was no ability to test that against the records of the counselling because they were gone.

So, again, there was a significant forensic disadvantage. Can I indicate to your Honours that the Court of Criminal Appeal, of course, in my submission, came to the conclusion, bearing in mind their assessment of the evidence and the assessment of the submissions in relation to forensic disadvantage, that there was clearly a forensic disadvantage that would have been the requirement of a warning and they would have granted leave under rule 4. That leads to the conclusion, in my submission, that the significant forensic disadvantage is apparent. In addition to – I am sorry, your Honour.

BELL J: I understand that is your submission.

MR BRADY: I have set out and in further material that may have been referred to one of the documents was the written submissions in the Court of Criminal Appeal of the applicant which sets out the various significant forensic disadvantages complained of.

HAYNE J: Now, Mr Brady, your time has expired. Is there something else that you need to add?

MR BRADY: Simply one further point, if your Honour pleases, and that is this: the Court of Criminal Appeal, if they come to a conclusion that under rule 4 they would have granted leave, then came to a conclusion because of the terms of section 165B they could not do so. They therefore limited themselves in relation to preventing what they saw as a miscarriage as a result of their interpretation of 165B. That, in my submission, is an appellate court failing to deal with what they otherwise see as a miscarriage because of a misinterpretation of the section, and that is something, in my submission, that really does lead to the need for special leave.

HAYNE J: Yes, thank you, Mr Brady. Ms Dowling, we will not trouble you.

We are not persuaded that it would be in the interests of justice in this particular case or more generally that there be a grant of special leave to appeal in this matter. Special leave is refused.

AT 1.09 PM THE MATTER WAS CONCLUDED