KG v The Queen; WG v The Queen [2022] HCATrans 12 (18 February 2022)

Last Updated: 24 February 2022

[2022] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S222 of 2020

B e t w e e n -

KG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Sydney No S67 of 2021

B e t w e e n -

WG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIEFEL CJ
KEANE J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 9.34 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Ms Wright, I understand that you can hear us, but you cannot see us. Is that correct?

MS WRIGHT: That is so, your Honour. I apologise for the technical issues at the DPP. The AVL system had a major outage this morning unfortunately.

KIEFEL CJ: For your benefit, the panel of Justices is me, Justice Keane and Justice Steward. I will announce the appearances.

MR D.F. JACKSON, QC appears with MR T.F. WOODS for the applicant in the matter of KG v The Queen. (instructed by Jeffreys Lawyers)

MR J.S. STRATTON, SC appears with MS T.R.M. HENNESSY and MS T.T. O’ROURKE for the applicant in WG v The Queen. (instructed by O’Brien Criminal and Civil Solicitors)

MS G.E. WRIGHT, SC appears with MR G.A. NEWTON for the respondent in both matters. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Gentlemen, who is speaking first, KG or WG?

MR JACKSON: Your Honour, we have no objection either way. I am happy to go first if the Court is happy with that.

KIEFEL CJ: Yes, thank you, Mr Jackson. Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. Your Honours, it is important to recognise of course that, whilst there is overlapping in the two cases, they are separate and of course they need to be considered separately and, in particular, it was not part of the case against the mother that she was aware of the use of the tools or of the degradation and incarceration in the shed. The case gives rise, in our submission, ultimately to two questions: one question in the sense of law, the other involves the approach to fact in the case of unreasonable verdicts and the issues are related.

May I make a preliminary observation before going to those issues. It is that the case in a sense as it came before the Court of Criminal Appeal raised two extremes. One was that over a period of about 13 years, starting at the age of five, a girl who attended school, performed exceptionally as a track athlete, suffered regular inhuman torture and abuse at the hands of her father, including the penetrations of her body that are referred to in the material, without complaint and without showing any sign of physical or nervous distress that others would have noticed. That is one aspect of it. The other side was that she had invented every aspect of the alleged abuse and that her parents were both entirely innocent of any misconduct against her.

On appeal – correctly, in our submission – it was thought by the dissenting judge, Justice Fagan, that the truth lay somewhere in between those extremes, at least as a reasonable possibility which should have been applied. May I go immediately, your Honours, to ground 2 which your Honours will see at page 1044 in volume 3. It is that the majority erred by suggesting that for:

a link . . . to be drawn between a complainant’s mental disorder and the possible unreliability of allegations –

there needed to be specific evidence of that link. That appears, if I could go first, your Honours, to a judgment of Justice Fullerton, with whom Chief Justice Bathurst relevantly agreed. If I could go first to the reasons of Justice Fullerton - the agreement of Chief Justice Bathurst you will see at page 954 in volume 3 at paragraphs 1460 to 1463 - there your Honours will see her Honour saying - your Honours will see an “extremely troubling submission” referred to at paragraph 1460, and then the conclusion arrived at in paragraph 1463 where her Honour said that there was no foundation in the evidence, as she put it, for the submission made on behalf of the applicant that the complainant’s allegations were:

the product of “mental illness” and [there was] nothing to ground the proposition that her evidence was false because she was mentally unwell.

That is what was said by her Honour Justice Fullerton. Your Honours will see that Chief Justice Bathurst at page 851 in volume 3 – I will refer to volume 3 unless the occasion arises to go elsewhere. At paragraph 1113 his Honour said:

I agree with the comments made by Fullerton J concerning the submission . . . Not only was it inconsistent with the manner the complainant gave her evidence and unsupported by expert witness at the trial, it was directly contrary to the evidence of Dr Hoey‑Thompson –

Your Honours, in our submission, there were difficulties with each of these views. As to the former view, his Honour dealt with the relevance of the complainant’s psychiatric difficulties in a passage which commences at page 831 and in particular paragraph 1033, subparagraph (3). Your Honours will see that the passage goes on – he refers to the fact that allegations – he refers to the allegation and that is dealt with and then disposed of at page 837, paragraphs 1054 to 1055. In particular, at paragraph 1055, his Honour said that:

the complainant was clear and consistent in her recollection of events -

But, your Honours, that in a sense identified the problem rather than providing the answer to it, the problem being that someone could be clear, consistent and so detailed in relation to events happening years before when she was a child barely out of kindergarten and then, your Honours, at paragraph 1043 you will see that his Honour notes the submission made by the Crown and the reliance on the evidence of Dr Hoey‑Thompson, a treating psychiatrist, and he refers also, if I could go back to paragraph 1113 at page 851 - your Honours will see that he refers to the evidence being “directly contrary” to Dr Hoey‑Thompson’s evidence.

The evidence to which he is there referring, your Honours, can be seen at page 762 in a passage which goes from paragraph 655 through to paragraph 663. It really amounts, if I may say so with great respect, to no more than saying that Dr Hoey‑Thompson believed her and, your Honours, that that was not a satisfactory answer, in our submission, can be seen by what was said by Justice Fagan at page 1002 in paragraphs 1618 and 1619.

Your Honours, if I could say this, that the views of the majority, in our submission, incorrectly imply that for a link to be drawn between the complainant’s mental disorder and the possible unreliability of allegations, there must be specific evidence of that link and, your Honours, it gave rise to a situation where it was permissible for the Crown to rely upon the complainant’s mental illness as evidence in support of guilt, but impermissible for the applicant to refer to the same matter as a basis for reasonable doubt.

Your Honours, could I just say if your Honours are looking to see where the Crown used this evidence, you can see it in, for example, the trial judge’s summing‑up in volume 1 at page 307 - I do not think I need to take your Honours to it in detail – and also the observation by Justice Fagan in volume 3 at page 1026, paragraph 1683. Could I take your Honours in this regard to the submissions which we make in the application and if I can take your Honours to page 1051. The particular matters I wanted to refer to are at paragraph 29. We make the submission in the first sentence of paragraph 29 and also in the second sentence. Could I go on then to say in paragraph 30 that the possibility which was being advanced on behalf of the applicant was as we have set out there and the case turned entirely on reliability of the complainant, and we make the ‑ ‑ ‑

KIEFEL CJ: Mr Jackson, does your application for special leave essentially come down to this, that there was no psychiatric evidence which pointed one way or the other - it was a question of the reliability of the complainant’s evidence. But, if that is the case, Pell tells us that that is a matter upon which an appellate court proceeds by accepting the jury’s decision about the credibility and reliability of the complainant.

MR JACKSON: Well, your Honour, what I was going to say was I have not yet dealt with the other questions going to reliability, matters that were dealt with in relation to paragraph ‑ ‑ ‑

KIEFEL CJ: Yes, for my part I would be particularly interested in examples of the inconsistencies that you refer to.

MR JACKSON: Well, your Honour, what we would seek to say in relation to this ground is that you had the complainant making allegations of misconduct against her of the most serious kind over a very long period indeed at a time when she was very young and remembered in great detail. They were allegations which essentially came to the fore in circumstances where she was suffering from a psychiatric condition. There was some evidence about the psychiatric condition. It was the evidence of Dr Hoey‑Thompson who described circumstances where there can be, but the majority, in our submission, were relying upon - Justice Fullerton, with whom the Chief Justice agreed, said so specifically - there being nothing in the evidence to connect the psychiatric condition with the evidence that she gave.

Your Honours, there are many cases - your Honours may well have seen cases at first instance where a witness – it becomes apparent as a witness is giving evidence that the witness is, if I could use the vernacular, not entirely full bottle, and that some of the things they are saying are quite outrageous. Your Honours, the jury are perfectly entitled to take that into account but so too, in our submission, reviewing the matter as required by section 6 of the Criminal Appeal Act and also in accordance with the Court’s decisions, including Pell, the court on appeal is entitled to take that into account.

KEANE J: Mr Jackson, when you say it becomes apparent from the evidence of the witness in the box that she is evidently unreliable, is that not the problem here, that that is precisely the question for the jury, and it is precisely the question in which the jury has the advantage over the appellate court?

MR JACKSON: Your Honour, what your Honour puts to me as a matter of principle is correct, of course. But what I would seek to say about it is that in the proceedings in the Court of Criminal Appeal, the Court of Criminal Appeal itself was reviewing the verdict in accordance with the court’s decisions and, in looking at that issue, if one sees what has happened in the view of the majority in relation to taking into account or not taking into account her mental illness that the court was in error, then that is an error that affects, in our submission, the verdict that was arrived at – the judgment that was arrived at by the majority.

Your Honours, could I just say this - we would refer also to our submissions at page 1051. I have referred to paragraphs 29 and 30, but we make the points that are in paragraphs 34 to 37. Could I say two things in relation to this ground finally. The first is that if one goes to the respondent’s submissions at page 1065 and in particular to paragraph 13, the submissions that are made there about Bromley v The Queen, in our submission, tend to look at the facts of Bromley rather than the principle, the relevant passage of which is enunciated and italicised two‑thirds of the way through paragraph 13.

Your Honours, could I come then to ground 3, and that is the question that the – very much the particular case. In our submission, there was a significant possibility on the analysis undertaken by Justice Fagan that KG was not guilty of the crimes of sexual offence of which she was convicted. In short, we would submit, whilst there may have been a strong case that the other applicant, WG, was guilty of sexual misconduct of some kind against the complainant and against her sister, AG, the evidence of that coming from a variety of sources, including admissions made by WG himself but, your Honours, as for the present applicant, however, she was not said to have been aware of the offending with the tools and the shed.

There was strong evidence of her good character and she was the person who first took the complainant to the mental health clinic. The case against her was much weaker than that against her husband. There was no objective evidence, in our submission, no complaint evidence, and a hypothesis of innocence that, in our submission, was reasonable and could not be excluded, namely that she was under stress and pressure – I am sorry, the complainant was under stress and pressure because of her father’s strict parenting and athletic performance expectations. The pressure was compounded by his persistent sexual misconduct and by the complainant’s belief that her mother had failed to protect her. She suffered a severe psychiatric decline and it was in this context, in our submission, that it was open to take the view that in that context she grossly exaggerated his misconduct and turned against the applicant by falsely implicating her.

Your Honours, there were strong reasons, in our submission, for treating the complainant’s evidence as relevantly unreliable, and may I go to – and I will do so briefly and in a very summary way – the matters referred to by Justice Fagan. Could I take your Honours to page 999 and in particular I refer to paragraphs 1611 to 1620. In our submission, it was improbable that she could genuinely recall and discriminate between the particulars “of the individual traumas, with specific sexual details and in sequence” since she had suffered constant inhuman abuse.....for more than a decade.

If one goes to subparagraph (3) in paragraph 1621 at page 1004, your Honours, there was the brazenness, if I could put it that way, of the sexual assaults as described by her. They occurred in:

situations that must have involved a risk of being discovered or of the complainant reacting and attracting attention –

in the family home during daylight hours, in the shed near the house, in the home of the mother‑in‑law and:

in hotel rooms where other members of the family were staying –

This seems improbable. Then one has what is referred to in subparagraph (4) of paragraph 1621 her ability “to function at school and as an exceptional athlete” through the years in which the offending took place. Your Honours, it was improbable, in our submission, that she endured:

the experience of full penetrative sex with a man of 40 plus years, on a frequent basis from the age of five, in association with other brutal and degrading mistreatment, without exhibiting signs of physical, nervous and emotional dysfunction.

Then one has what is referred to in subparagraph (5) of paragraph 1621. Your Honours, it really seems improbable that she would not have mentioned what took place “to her sisters or to any of her school or sporting friends” when she was aged - in an early age, age five to eight. Your Honours, it is very common for young people to blurt out something unaware of their full significance or confide in someone. One then has what is referred to in subparagraph (6), the fact that she said nothing about the abuse in the 10 years that followed, that she made no complaint about the abuse “to any of the numerous people with whom she had frequent contact”, and it is plainly improbable. Your Honours, I hear the time. If I could have half a minute, that would be all I want to say.

KIEFEL CJ: Yes, of course, Mr Jackson.

MR JACKSON: Thank you, your Honour. Your Honours, I was going to refer to the evidence that contradicted the claim that she was so afraid of her father that she suffered the abuse in silence. You will see that referred at page 1011, paragraphs 1637 to 1655. There was evidence from a number of people that her conduct was inconsistent with her feeling such fear of her father as to endure the regular gross abuse she suffered.

Your Honours will see at paragraphs 1656 to 1661 she put what does seem, if I may say, with respect, rather to beggar belief that she complained that she endured the abuse for over a decade without reporting it because she did not know that her father having sex with her was wrong and believed it was normal. This seems manifestly improbable, in our submission.

Finally, your Honours, what is referred in paragraphs 1671, 1674, in our submission, was improbable, that all the sexual misconduct alleged by the complainant, including penetration with tools, her detention in the shed overnight while bound, could have taken place without producing some sign, physical or nervous, of stress on the part of the complainant that others would have noticed, particularly the elder sister, variously described as AG or AA in the reasons, who had been alert to her father’s sexual interest in his daughters since 2004.

In our submission, your Honours, this is a case raising an issue of general importance on the one hand, and on the other hand it is in the interests of the administration of justice in the particular case that special leave be granted. Those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Jackson. Ms Wright, are you intending to respond to each of these separate applications?

MS WRIGHT: Yes, your Honour.

KIEFEL CJ: Yes. Would you like to respond to Mr Jackson’s submissions.

MS WRIGHT: Yes, thank you, your Honour. Your Honours, the second proposed ground contends in effect that the majority rejected as unavailable a submission concerning a possible link between the complainant’s mental disorder and the unreliability of her evidence in the absence of positive evidence tending to prove that link. We submit the majority addressed this contention which was raised for the first time on appeal but dismissed it on a number of grounds. The clearest indication in the reasons of the Chief Justice is at paragraph 113, but we draw attention to the passage from paragraphs 1108 to 1113, application book 850 to 851. At 1108, his Honour addressed the applicant’s submission questioning:

the reliability and credibility of the complainant, describing her as “a troubled and mentally unwell” person.

That acknowledged the applicant’s contention quite explicitly. His Honour in the last sentence of 1108 also referred to the argument that her:

evidence was “outside the range of even abnormal human experience” -

again acknowledging the submission she had falsified allegations as the result of mental disturbance or concoction or a combination of both. Then at paragraph 1110 of the reasons, his Honour again referred to the possible impact of mental disturbance and the Chief Justice referred to the jury’s role in assessing her reliability, including whether her evidence was that of a mentally disturbed person. Importantly, in the middle of that paragraph at the bottom of application book 850, the Chief Justice recorded his assessment of her evidence, namely that:

the complainant was clear in her evidence both in chief and in cross‑examination and the transcript of her evidence does not present as the imagining of a mentally disturbed person.

Those observations undermine the second proposed ground of appeal which contends that the majority did not even countenance the submission absent evidence. It was implicit consideration by the Chief Justice that her evidence was not indicative of a mental disorder, and earlier at paragraph 1055, to which your Honours have been taken, the Chief Justice said she was clear and consistent in both examination in‑chief and cross‑examination. That was also of course a jury question and Pell v The Queen required the Court to proceed on the basis that she was accepted by the jury as reliable. Then at paragraph 1113 of the Chief Justice’s reasons, his Honour said the submission made was not only:

inconsistent with the manner the complainant gave her evidence and unsupported by expert witness –

it was contrary to the evidence of the psychiatrist, which his Honour had earlier set out at 659 to 663 as to the cause of two mental disorders the complainant had developed as a consequence, the evidence said, of frequent and prolonged abuse, and that psychiatric evidence – that psychiatrist also disagreed with the suggestion put to her that the complainant could be fabricating her history over a lengthy period in which she had been treating her.

Your Honours, it can be accepted that his Honour the Chief Justice agreed with Justice Fullerton’s comment which questioned the appropriateness of the submission made for the first time on appeal that the allegations may have been the product of mental disorder but despite his Honour’s reservations about the making of the submission, he summarised his assessment of the argument in that sentence in paragraph 1113.

That cannot be construed, in our submission, as a refusal to entertain a submission regarding her mental disorder or that he reasoned to the application of a general principle that positive evidence was required to support a submission that her credibility could be affected by her mental disorders.

In truth, it was a question of the weight of the argument which was utterly unpersuasive in the face of the complainant’s clear and consistent account and the body of evidence supporting her account, including that of her psychiatrist, and the compelling and, in his Honour’s view, powerful corroborative evidence for her account of the more serious sexual offences committed by her father. The majority considered that her evidence stood strongly against the submission that her reliability as affected by a mental disorder.

Justice Fullerton, in our submission, took a similar approach and made observations about the manner in which the complainant gave her evidence, and we draw the Court’s attention to her Honour’s passage at paragraphs 1418 to 1422 which starts at application book 937. Her Honour referred to the manner in which the complainant gave her evidence as supporting her credibility, and at 1418 Justice Fullerton considered the complainant’s evidence was clear and said that her evidence did not exhibit figments of imagination, and her Honour gave an example of evidence that indicated an actual memory of an incident when she had recalled the colour of her father’s socks while fellating him.

That reasoning, we submit, undermines the second proposed ground of appeal because it is at odds with an approach which would have required express evidence to support a link between mental disorder and unreliability.

At paragraph 1425, application book 939, her Honour made direct reference to the hypothesis that the complainant may have fabricated evidence “in the midst of an acute mental deterioration” and, your Honours, that is again explicit consideration, we would submit, to the argument that is the subject of the second proposed ground of appeal.

Your Honours, at paragraph 1456, her Honour again referred to the suggestion that the complainant had “cracked up” in the face of the excessive discipline meted out by her father in relation to her sporting pursuits, and that again specifically denotes consideration by Justice Fullerton of the argument that the complainant’s mental disorder affected her reliability.

So, we submit these are clear indications that the submissions made by KG were fully considered by the majority and neither Justice Fullerton nor the Chief Justice reasoned that as a matter of general principle positive evidence was required. Both majority judgments refer to the psychiatric evidence that contradicted the argument. Justice Fullerton at paragraph 1416 recorded that it was an opinion that the complainant’s:

history of serialised abuse by her parents was genuine and the underlying cause of her complex psychiatric profile.

However, her Honour also noted that the jury were directed that they should not automatically reason that the allegations were true on the basis of Dr Hoey‑Thompson’s diagnosis and opinion and that it was a matter for them to assess the complainant’s credibility. Also, the majority considered the evidence supporting the most serious allegations against the father, which was said in the court below to have a ring of fantasy, and the majority considered that there was compelling corroborative evidence to support them and that countered the hypothesis that she had falsified allegations arising from a mental disturbance.

Much is made of Justice Fullerton’s comment at 1463 that the submission should not have been made, but that comment must be considered with the reasons as a whole, including the passages that I have taken your Honours to. Her Honour’s statement there that “there was no foundation in the evidence to advance the submission” was a reference to her Honour’s assessment of the complainant’s evidence and the other evidence supporting her account and in essence the majority found that the argument had no weight. It is not disputed by the respondent that the reliability of the evidence for a mentally disturbed person could be affected on account of mental disturbance, but that is not this case and KG’s contentions in that regard were fully considered.

KIEFEL CJ: Ms Wright, in relation to the improbabilities that Justice Fagan in dissent raises, some if not many of them of course are matters where other explanations known in human experience can be weighed against them, but what do you say about the principal one to which Justice Fagan refers, and that is the extent to which the complainant was able to remember the incidents in.....from such a young age?

MS WRIGHT: Yes, thank you, your Honour. His Honour said that it was “an extraordinary feat of discriminating recall”, which amounts to saying her evidence was too detailed. Your Honours, that criticism, we submit, is one of impression and does not withstand scrutiny. There was evidence that she had made her statement to police over a three‑month period and it was not a case where the detail in her account was:

volunteered for the first time in cross‑examination when her veracity was under challenge.

That was noted by Justice Fullerton at paragraph 1421. She was able to anchor the incidents to particular memories such as Christmas or the school year commencing, which is not unusual in cases of this kind, although Justice Fagan considered that to be irrelevant.

Their Honours assessed her evidence as being clear and consistent and as giving details that were indicative of actual memories, and I have referred to one of those examples such as recalling the colour of her father’s socks, but she did not claim to have the same detailed memories each and every time.

The jury enjoyed a considerable advantage in having the opportunity to observe the complainant giving evidence over four weeks. The criticism of her capacity of recall also does not sit comfortably with the submission made today that she was inconsistent and in effect it is a contention that she was too – her evidence was too consistent and too detailed. That is an unprincipled, we submit, way to assess the evidence and there are reasons for your Honours to find that the dissenting judge’s reasoning in that regard is unpersuasive.

Your Honours, if I can move then to ground 3, and I note that no submissions were made in respect of proposed ground of appeal 1 and so I do not propose to address it orally. In respect of the third ground of appeal, that ground focuses on the dissenting judge’s reasons and advances the same argument as alleged in ground 1. It is said that the reasoning process the subject of grounds 1 and 2 ultimately led into the determination of the unreasonable verdict ground.

However, no complaint is made that the majority did not apply the correct test to the unreasonable verdict ground by making their own independent assessment of the whole of the evidence. The dissenting judge’s conclusion as regards KG on the unreasonable verdict ground was built upon his conclusions as to the allegations made against the father, WG, but the dissenting judge erroneously, we submit, discounted almost entirely the evidence corroborating the shed count, the more serious count against WG, which the majority considered to be powerful and compelling evidence.

The majority’s evaluation of the complainant’s evidence was correct, we submit, that she was clear and consistent in her account. Her account against this applicant was also supported by tendency evidence comprising sexualised photos of the applicant with the complainant and evidence from her sister as to inappropriate conversations about sexual matters the applicant, her mother, had with her as a child including how to “give blow jobs”.

As to delay in complaint, the jury was directed as to delay in complaint and Justice Fullerton sets out the directions in full at paragraph 1413 and that included a direction that if they would have expected a complaint in those circumstances, the delay on the part of each of the two sisters in making a timely complaint may indicate that the evidence each gave was false.

The psychiatric evidence also went to explain the delay in complaint against her parents and how the principal complainant had dealt with the abuse and gave support to the Crown case. But it is also relevant to note there was no significant gap in time between the last incident in 2011 which involved a “detain for advantage” offence by WG at which the applicant was present and the complainant making her police statement in which she made the allegations against her mother. That incident was also supported by medical evidence consistent with the assault by WG.

We submit therefore, your Honours, that there is no merit in the third proposed ground of appeal and that the dissenting judge’s reasons were unpersuasive. Those are my submissions, your Honours.

KIEFEL CJ: Yes, thank you, Ms Wright. Anything in reply, Mr Jackson?

MR JACKSON: Thank you. Yes, your Honours, just a couple of things. The first relates to ground 2. Our learned friend referred to paragraph 1110 of the Chief Justice’s reasons which are to the same effect as those to which we had earlier referred at 1055 and where he refers to the complainant having been clear and consistent in her evidence, but as we submitted earlier, your Honours, that in a sense was the problem. The question was not one of the manner in which she gave it, but one of its inherent probabilities.

The second point we would make, your Honours, concerns ground 3, and that is this, that unfortunately.....do not always get it right. That is why the Court of Criminal Appeal can set aside verdicts as being unreasonable and they need to look at the whole of the matter. That is the function that is given to them and that is the function which, in our submission, with respect, was not performed correctly in the present case. Your Honours, those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Jackson. Mr Stratton, we will hear the application in WG v The Queen before we give our decision in both matters.

MR STRATTON: Your Honours, the applicant WG was convicted of 73 counts and sentenced to 48 years’ imprisonment with a non‑parole period of 36 years. It is submitted that this appeal raises issues of public importance and involves the interests of administration of justice in a particular case.

Proposed ground 1 relates to the failure of the Crown to call Dr Nittis. The Court of Criminal Appeal found that the Crown had no obligation to call Dr Nittis and it appears the judgment of the Court of Criminal Appeal was on the basis that Dr Nittis was simply an expert retained by the defence to provide an opinion. It is conceded that if that was all Dr Nittis was, that is, that if Dr Nittis was simply an expert witness with no prior connection to the investigation, whose opinion was subsequently sought and obtained by the defence, the conclusion reached by the Court of Criminal Appeal would have been correct and the applicant would have no complaint. However, the submission made on behalf of the applicant is that Dr Nittis had an important and additional and different role.

Dr Norrie examined the complainant, JG, on 6 August 2012 at hospital at the request of the investigating police and the DPP. That was at the Court of Criminal Appeal judgment at paragraphs 635 and 639. Your Honours, in these submissions I will refer to paragraph numbers in relation to the Court of Criminal Appeal judgment.

Dr Norrie met the complainant, her counsellor and Dr Nittis. Dr Nittis was there present in her role as the doctor who ran the forensic medical unit at the hospital where the consultation took place. That is at 639. According to Dr Norrie, crucially, in my submission, she and Dr Nittis examined the complainant together. That is at 639 and also in the summary of Dr Nittis’ evidence at 938.

Dr Nittis was present throughout the entire examination. That is again at 939. Dr Nittis took photographs during the examination, at 938, and made notes of her observations, at 946. It is submitted that Chief Justice Bathurst’s conclusion at paragraph 974 that “it does not seem to me it could be said that it was a joint examination” was inconsistent with the evidence before the court.

All the other doctors who saw the complainant after she made her first statement to police were called to give evidence, that is, Dr Crehan, Dr Chase and Dr Norrie. It is submitted that had Dr Nittis made a statement to police unquestionably the.....would have been under a duty to call her if a request had been made by the defence for her to be called.

KIEFEL CJ: Mr Stratton, Dr Nittis disagreed with Dr Norrie only to the extent that, as I understand it, Dr Nittis’ report said that it was difficult to conclude in the way that Dr Norrie had. That does not necessarily put the applicant in a stronger position on the issue, does it?

MR STRATTON: Well, it does in this sense, with respect, your Honour. It is submitted that in terms of the witnesses being called who deal with the unfolding of the events, Dr Nittis was such a witness. In other words, she was not an expert called after the event and simply retained by the defence to give an opinion. She was one of the two doctors who made an examination at the request of the prosecuting authorities to see if there was any evidence supporting the allegations made by the complainant.

So, my submission is that her opinion is on a different basis for two reasons: firstly, because of the reason she was there, in other words, not simply as a defence expert, but she was there as part of the consultation; and, secondly, because she had the advantage, in reaching her conclusions, of actually being present during the history given by the complainant and the actual examination to the extent of taking the photographs ‑ ‑ ‑

KIEFEL CJ: Of course, the defence could have called Dr Nittis, but I take it that you are relying upon some obligation on the part of the prosecution to do so?

MR STRATTON: I am, your Honour.

KIEFEL CJ: Was that raised with the trial judge?

MR STRATTON: It was not. There was a request made by the defence for the prosecution to call Dr Nittis. The refusal by the Crown was simply on the basis that because she had given a report to the defence, in effect she had been disqualified as a witness who the Crown would call. That was the only reason given by the Crown for not calling her and my submission is that, to say the least, that was an inadequate reason.

KIEFEL CJ: But the essential question is whether or not the evidence really advanced the defence so that there could be said to be a miscarriage.

MR STRATTON: Well, my submission is that the evidence of Dr Norrie certainly did advance the Crown case because what was missing – and I will come to this later – was that there was a complete absence of any medical evidence - leaving aside Dr Norrie for the moment, there was just no medical evidence supporting the allegations which were made by JG, so it is submitted that there was the special significance of Dr Norrie’s evidence and Dr Norrie’s evidence enabled the Crown to say, well, there is some evidence that these findings made by Dr Norrie were consistent with there having been penetration prior to puberty, which of course was consistent with the prosecution case. So, her evidence was important and the distinction between the opinions of the two doctors, it is submitted, was very important.

STEWARD J: Mr Stratton, what do you say about the contention that trial counsel made a forensic call not to call Dr Nittis because of the belief that they would adequately address the contents of Dr Nittis’ report through cross‑examination of Dr Norrie?

MR STRATTON: Your Honour, with respect, there clearly was such a forensic call but, in my submission, an understandable one, given – could I put this to your Honours. There are very different practical considerations between these two situations - on the one hand, obtaining an opinion or concessions from an expert witness called by the Crown and, on the other hand, obtaining expert evidence from a defence witness. There is, it is submitted, perhaps irrationally and perhaps unfairly, a tendency for juries to discount experts who are called by the defence simply on the basis that they are retained by the defence and inevitably, it might be thought by some, in the defence camp. The effect of having such evidence from a prosecution witness, in my submission, is in quite a different category.

My submission is, and briefly, your Honours, that the obligation of the Crown to call all relevant witnesses, particularly in a situation where the defence made a specific request for Dr Nittis to be called, it was, it is submitted, not complied with in this case and the result has been a miscarriage of justice.

Your Honours, could I move to ground 2, which is the unreasonable and inconsistent with the evidence ground. Justice Fagan in his judgment referred to a number of factors which in his opinion should have led the jury to have had a reasonable doubt about guilt of the charges. The first matter was the complainant’s powers of recollection. The complainant gave evidence of 45 separate incidents, ranging from when the applicant was five years old until she was 18. She claimed to be able to recall precise details such as what coloured socks the applicant was wearing when he sexually assaulted her when she was five years old. That is at paragraph 19. His Honour said at paragraph 1615:

In my view the jury had to have had a reasonable doubt that such an extraordinary feat of discriminating recall was possible.

The applicant’s submission is that if the applicant had been relying on an actual recollection of these events, it was implausible that she could have such a detailed memory.

The second matter which Justice Fagan referred to was the degree of improbability of JG’s account. Her allegations were that acts of great cruelty were committed by the applicant against her, including the insertion of sharp and rusty tools into her vagina, holding her head underwater in a creek, confining her in a shed, tied with rope or sometimes barbed wire, sometimes overnight, sometimes over several nights. The assaults alleged by the complainant went over an extraordinarily long time, from the age of five years until the complainant was 18 years.

Now, many of these offences – I think most of them – occurred either in the family home or in the immediate vicinity of it. There was some evidence that the applicant had sexual interest in his daughters, but there was no evidence of his engaging in or attempting to engage in anything close to the acts of cruelty which he inflicted on the complainant. That is referred to at paragraph 1621.

The complainant had two sisters and a brother. All of them lived together at the family home until AG moved to the United States when she was 18. So AG was living at home at the time when counts 1 to 63 were committed. The other children were at home throughout the period. True it is that the applicant’s son, JG, was younger than the complainant, but he was 13 at the time that JG was admitted into a mental health clinic. So, he was of an age, it is submitted, when he might well and truly be able to perceive and recall events when most of the alleged offences were committed.

It is submitted that it was inconceivable that such a large number of acts of sexual assault, cruelty and imprisonment – sometimes over nights – would have taken place over such a long period of time without other members of the family being aware of them.

Now, many of the allegations involve the complainant being locked in the shed. Sometimes she alleged that she was locked in the shed for nights in a row and, on occasions, two nights, on some occasions, three nights. Those occasions are referred to at paragraph 15 in the written submissions.

JG gave evidence that the door was locked with a padlock. That is paragraphs 86, 88 and 128. The applicant gave evidence that there was never a locking mechanism, hinge or a latch on the door. That is at 678. The officer in charge, Sergeant Hawdon, when asked if there was a locking device such as a padlock to be attached, answered “Not that I can recall, no”. That was her evidence at page 1877. The submission is if the shed could not be locked, how was it possible for the complainant, JG, to be locked in as she alleged.

The complainant also gave evidence that she hated going into the water because of her recollection of events where the applicant had pushed her head under water for long periods. That was referred to at paragraph 411. As Chief Justice Bathurst pointed out:

the complainant’s expressed fear of swimming . . . was not supported by other witnesses who observed her at ‘...’.

That was at paragraph 1067.

Now, briefly, the next matter which his Honour Justice Fagan relied on was the complainant’s psychiatric condition. Your Honours, in view of what has already been said, I do not think I need to go into that. Justice Fagan concluded from the psychiatric condition of the applicant that there was a reasonable possibility that the complainant’s undoubted psychiatric disorder may have caused her to grossly exaggerate or distort her account of what happened between herself and the applicant.

KIEFEL CJ: Mr Stratton, could I ask you about the written submissions that you have made about the inconsistency – I think this matter upon which Justice Fagan relied – the inconsistencies between the complainant’s evidence and what was called “other unchallenged evidence”. The example you give is the unlikelihood of some of the matters of complaint, particularly the shed incident as not coming to the attention of the family. That is not, I think, really an inconsistency as a matter of reliability. Are you able to point to other actual inconsistencies between her evidence and other unchallenged evidence?

MR STRATTON: It is submitted, with respect, that there really is an inconsistency between the evidence of the other children in the family who made no observations of any absence of the complainant, apart from absences which were explained, that is, having a sleepover with a friend, contrasted with her evidence that she spent nights being locked up in the shed – nights, and on numerous occasions, several hours locked in the shed and the garage. In my submission, the fact that there is no such evidence from the complainant’s siblings is inconsistent with her evidence.

Your Honours, the complainant said that she was sexually assaulted from the age of five to about the age of 19. She made no complaint to anyone until some 13 years from the first alleged incident. That is the Crown submission in the Court of Criminal Appeal at paragraph 1044. The explanation which the Crown gave for the delay was, in effect, twofold. It was that the complainant lived in fear of the applicant and that she did not appreciate that what the applicant was doing was wrong.

In brief, your Honours, the submission that is made is that the evidence of the various witnesses who were called to give evidence was overwhelmingly against the contention that the complainant was living in fear. That was the conclusion of Justice Fagan at 1654. The Crown submission that the complainant did not realise that what the applicant was doing to her was wrong until the age of 17 was described by Justice Fagan as being an astonishing one. His Honour’s submission is accepted.

There is also evidence that, contrary to the Crown submission, there was no evidence that JG was close to her sisters. The evidence of the children’s grandmother, LA, at 1667 and the evidence of CG at 850 was that they were very close. In brief, your Honours, the Crown relies on the evidence of the diaries and the finding of tools. I would adopt what Justice Fagan said in relation to those at paragraphs 1700 to 1709.

The next matter I take your Honours to, and briefly, is the absence of observed physical injuries. It is submitted that, bearing in mind the nature of the injuries of which the complainant alleged, that is involving insertion of implements, feeling cutting, bleeding – it is, in my submission, inconceivable that none of those matters could have been noticed by the other members of the family. It is also significant, it is submitted, that there
is no evidence from a single doctor having reported any injuries consistent with the insertion of tools as alleged by the complainant.

Overall, it is submitted to your Honours that special leave should be granted because this application raises an important question of general principle and because it is submitted that there is a significant possibility that the applicant was innocent.

Those are the submissions on behalf of the applicant.

KIEFEL CJ: Yes, thank you, Mr Stratton. Yes, Ms Wright.

MS WRIGHT: Thank you, your Honour. In respect of the applicant’s submissions, the respondent submits that neither of the grounds of appeal proposed by the applicant raise any question of general principle and we submit that the interests of justice do not require consideration, either generally, or in this case, of the Court of Criminal Appeal’s judgment.

The first proposed ground of appeal concerns whether the Crown should have called an expert witness engaged by the accused and whether the failure to do so constituted a miscarriage of justice such as to warrant a new trial. We submit the Court of Criminal Appeal was correct in its unanimous conclusion that the Crown was not obliged to call the expert engaged by the accused and that even if it had been so obliged, a failure to do so did not constitute a miscarriage of justice.

Dealing with the second of those issues first, though we do not concede the first issue, we submit that ultimately the particular circumstances of the case overwhelmingly say that the conclusion reached unanimously by the court below that there was no miscarriage of justice, even had the Crown been obliged to call a doctor, justice did not miscarry in our submission because in the particular circumstances of the case, at trial, the applicant’s counsel obtained in cross‑examination of the expert called by the Crown the concessions he sought and made an informed forensic decision not to call Dr Nittis, there being no need to do so in his view.

We submit that the Court of Criminal Appeal’s reasoning about the relevance of those considerations is plainly correct. The Chief Justice at paragraph 983, application book 763, with whom Justice Fullerton agreed at 1118 and Justice Fagan gave separate reasons indicating the same reasoning. Moreover, we submit that defence counsel’s approach at trial was rational, given the common ground between the two experts as to their observations of the complainant’s hymen, which would potentially have been emphasised had the additional doctor been called.

Secondly, Dr Nittis did not address in her report the reasons given by the examining doctor for her opinion that the injuries – or to put it more neutrally – the thinning of the hymen was caused by pre‑puberty sexual intercourse and, as the Chief Justice said at paragraph 985, application book 763, this was the “critical plank” of the opinion expressed by the expert called by the Crown. The accused expert did not address that point in her report, prepared prior to trial. So, the failure to call her was without significance to the overall trial, in our submission.

The Chief Justice also referred to the evidence that she would have given in her report which post‑dated the trial, although that was on a separate ground relating to the absence of fresh or new evidence which was dismissed by the court below and is not the subject of appeal to this Court. But it is notable that his Honour said that Dr Nittis had said in that report that Dr Norrie may be correct, but there is no research available, and that is precisely the point which was made through the concessions – and this occurred in cross‑examination of the expert called by the Crown. The reason that Dr Nittis did not address that critical plank of the opinion expressed by the expert called by the Crown is not relevant, in our submission.

We submit these considerations speak strongly against there being any miscarriage of justice and we contend that this is where the argument on this proposed ground ultimately leads and it is therefore an arid exercise for further consideration to be given to it, there being very sound reasons for which the court below unanimously rejected the applicant’s contentions.

We have other submissions on ground 1, including on the first issue, namely the Crown’s alleged duty to call the witness – which I can go to now. In our submission, the doctor’s presence at the examination of the complainant and taking of the history did not make her a witness whose evidence was necessary for the unfolding of the narrative of the Crown case. She did not make observations that differed materially from those of the examining doctor and she did not disagree with the observations made by her, including as to transection to the hymen and thin hymenal tissue. Although she said she did not make a note of the matter herself she did not believe there was any research that linked thinning to previous trauma.

She, therefore, could not give evidence that would have contributed to the establishment of any facts that would have required she be called and there was no reason for the Crown to call that doctor. We submit the way the report was presented, she was an expert witness not a witness of fact.

So, as far as the Crown’s duty is concerned here, it then becomes whether she should have been called because she gave a different opinion. But on this we submit it needs to be said there was no clear disagreement. Dr Nittis did not express a different opinion about the cause of the hymenal thinning. Rather, she was not prepared to reach a conclusion, absent research on the issue. So, it was a more mild area of difference than a positive disagreement, and the concession on the lack of research was, as I have said, elicited by the applicant’s counsel in cross‑examination. It may well have been counterproductive to WG’s defence to call his expert in emphasising the points in common.

But even if her opinion differed, we submit that in the circumstances where the expert was not retained by the Crown and did not disagree with the observations made by the examining doctor, the fact that her opinion differed did not mean the Crown had to call her and we draw attention to her remarks in Velevski by Chief Justice Gleeson and Justice Hayne who expressed that view about the adversarial system, the principal consideration being what is required of the prosecutor to ensure the prosecution case is presented with fairness to the accused. Justice Gaudron in that case, though it dissent on whether the expert in that case should have been called, said it would be going too far to say that where there is a conflict in the evidence of expert witnesses, the interests of justice required the prosecution to call all experts who are known to have expressed opinions on the matter in issue.

Even if the Crown should have called her, as I have already outlined in our submissions, that failure was insignificant in the context of the overall trial and the respondent submits that the Court of Criminal Appeal correctly reached that conclusion unanimously.

We also draw attention to the fact that no issue was raised at the trial by trial counsel and we submit that the submissions made about the risk that the witness might appear to be in if.....the submission without any merit is also a speculative submission and, in any event, an informed decision was made by the applicant that she was not required.

Those are my submissions and I will move to ground of appeal 2. We submit that the arguments made on this ground by the applicant do not compel a grant of special leave. No submission has been made by the applicant that the majority did not properly perform an independent examination of the whole of the evidence in considering whether the guilty verdicts were unreasonable. Rather, the applicant says the result should have been different and he seeks another appellate hearing on the merits.

The applicant refers to inconsistencies between the complainant’s account and independent unchallenged evidence, but he has not provided, in our submission, any examples or instances where such inconsistencies arise. The majority considered that the complainant’s evidence was clear and consistent, but Justice Fagan, though in dissent, also acknowledged implicitly that she did not give inconsistent evidence and that her evidence did not display discrepancies by reference to the test set out by the Court in Pell v The Queen. His Honour considered that there were other inadequacies.

In Pell it was compounding improbabilities which arose because of unchallenged evidence concerning circumstances for mounting offences. That is not this case. Here, the improbabilities which Justice Fagan referred to were really about the absence of evidence - his Honour was concerned about the absence of earlier complaint, the absence of injuries or detection, the absence of a faulty memory, or conversely, too much detail, too much capacity to recall. However, the majority, we submit, resolved all of those issues.

The applicant has emphasised the unlikelihood of her account being true without it being observed or noted by other family or friends. That was a question of her unreliability, and not one of inconsistency. However, there were multiple bases for explaining that matter. Her evidence was that on a number of occasions the applicant had threatened to kill the complainant if she told anyone what had occurred, and the first of those threats was made early, in the year 2000, following the incident, the subject of counts 11 and 12.

The threat made by WG, following other incidents, is also relevant. There was evidence that the complainant had said, on her return to the house following sexual assault by her father, that her mother was making lunch but said nothing and her answer in cross‑examination was that her mother did not talk much in front of her father. The Crown case is that the mother’s lack of reaction explains the complainant’s conduct.

There was also evidence that the complainant took various steps to avoid revealing she had been abused in the shed, in part because of the threats her father had made to her. There was evidence that a childhood friend had seen the complainant on occasion being whipped with a skipping rope by the applicant. There is also evidence that her sister did – from her sister as to an unexplained – or times, rather, in the plural, when there were unexplained absences from the house when she thought her sister, the principal complainant, was at her friend’s house and that her friend had then asked after the complainant when AG had been told that she was at her house.

As to the criticism made about the complainant’s extraordinary feat of discriminating recall, I have already made submissions in response to that matter in the other applicant’s application, so I will not repeat that, but if I could add to that. At paragraph 656 of the Chief Justice’s reasons, his Honour sets out the evidence of the complainant’s psychiatrist who referred to some of the symptoms of her mental disorders, which would include intrusive memories of the event of the trauma. So, the nature of her memory was such that she would get flashbacks and have intrusive memories and that also contributed to explaining why her evidence was able to be detailed and consistent.

Your Honours, the majority carefully considered the sufficiency and quality of the evidence and we submit that the dissenting judge’s reasons are unpersuasive. His Honour discounted entirely the corroborating evidence in respect of this applicant, which.....to be powerful and compelling. For instance, Justice Fagan said the entry, referring to the shed and tools:

contributed nothing over and above the complainant’s own evidence –

Yet, the diaries were a contemporaneous record she kept with entries such as:

Didn’t make him wee. He got new tolls, really hurt –

and:

Got box today, make Dad wee next time or box agane . . .

Didn’t make dad wee, really angry.

It is very difficult to see how they could contribute nothing over and above her evidence at trial. They supported the truth. That is what had occurred as per her complaint. The dissenting judge also found at 1709 that the words carved by the complainant in the timberwork of the shed were:

similarly equivocal and could not have contributed to overcoming the inherent improbabilities in the complainant’s evidence.

That language “could not have contributed” suggests that they were entirely set aside, notwithstanding that what police found there was consistent with what she said she had done at times she felt trapped in the shed. Similarly, at 1700, the dissenting judge said that:

the tools and underpants found in the surrounds of the family home . . . provided insufficient corroboration –

to overcome reasonable doubt. This was despite the inherent implausibility of the complainant planting them in places where she told police she recalled burying them, after instances of sexual abuse by her father, in
which she used them. They were children’s underpants and a partial DNA profile was recovered with the same profile as AG.

Your Honours, we submit there was significant support for the complainant’s allegations against WG from a number of sources, noting however, that there was no requirement her evidence be corroborated. I have referred to some of that evidence. There was also a pretext call - the evidence of her sister included an intercepted telephone call in which the applicant, WG, made admissions and that also corroborated the complainant’s account. I have also taken your Honours to some of the evidence of the main complaint. There was evidence that she had complained to a number of people about sexual abuse and her disclosures increased over time.

Your Honours, I otherwise rely on the written submissions of the respondent on this ground. If it please the Court.

KIEFEL CJ: Thank you, Ms Wright. Mr Stratton.

MR STRATTON: Your Honours, in relation to the submission that was made that Dr Nittis did not contradict Dr Norrie’s opinion in her first report, there was a movement from Dr Norrie’s original report where she said that it was arguable that the findings she had were consistent with penetration prior to puberty. That was transformed into a positive opinion at trial and it was that change in opinion which was addressed in the second report of Dr Nittis.

It is submitted that the Crown’s submission to you in relation to Dr Nittis was that she was simply an expert witness and submitted that she was, in truth, both an expert witness and an expert of the fact whose evidence, it is submitted, was part of the unfolding of the narrative which made up the prosecution case. It is submitted that the evidence of Dr Norrie was very significant in the Crown case because it was the only medical evidence supporting the Crown case.

The Crown submitted to your Honours that ultimately there was not much difference between the two experts in that ultimately Dr Norrie conceded that there was no research supporting her opinion, but, nevertheless, she maintained her opinion and the crucial passage is set out in the Court of Criminal Appeal judgment, paragraph 651, where ultimately the doctor was asked:

Would you agree that there is no [research] at all to determine whether a transection has occurred pre or post puberty?

A. No, I base that on my experience.

That was how the matter was left to the jury. The Crown put to your Honours that it may have been counterproductive for the defence to have.....this in its own case, and, with respect, I agree. That was the reason why it should have been the Crown who called her, which would have been, obviously, a much safer procedure for the prosecution.

The Crown referred to the Court of Criminal Appeal unanimously rejecting ground 1. That is true, but can I draw to your Honours’ attention the fact that the Chief Justice at paragraph 977 said that he did so with some hesitation. In relation to what the Crown said to you about threats – alleged threats to kill the complainant, I draw to your Honours’ attention the observation of Justice Fagan that either the complainant did not complain because she was afraid or because she did not realise that what was happening was wrong, but both – but she could not be both.

If I may just finish, in relation to the question of the diaries, I would again rely on Justice Fagan’s careful analysis of those matters in paragraphs 1700 to 1709 of his Honour’s judgment. Those are the matters in reply. Thank you, your Honours.

KIEFEL CJ: Thank you, Mr Stratton. Mr Jackson and Mr Stratton, a matter of some oversight – I think an extension of time was required in each of these applications, but I understand, Ms Wright, that there was no issue with the extension being granted.

MS WRIGHT: That is so, your Honour.

KIEFEL CJ: Yes, thank you. The extensions are granted.

The Court will now adjourn to consider the course that it will take.

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.02 AM:

KIEFEL CJ: In each of these matters it is the view of the Court that the application raises no question of general principle but rather questions as to the reliability of the complainant’s evidence, having regard to her mental state and to the circumstances of the alleged offending. The application has insufficient prospects of success to warrant special leave and the interests of justice do not require a grant. In relation to the application in WG v The Queen, the failure of the Crown to call Dr Nittis did not give rise to any miscarriage of justice.

In each matter, special leave is refused.

The Court will now adjourn and to reconstitute.

AT 11.03 AM THE MATTERS WERE CONCLUDED