Tuesday, September 11, 2012

Judge-alone trials and reasons for verdicts

Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Douglass v The Queen [2012] HCA 34 (11 September 2012). Further, the High Court quashed the conviction and did not order a retrial. That was because the evidence was insufficient to prove the defendant's guilt beyond reasonable doubt.

It is a fundamental mistake to say that where a criminal case involves an accuser and a defendant who denies the accusation, it is a case of one person's word against another's. It is, instead and as usual, a case of whether the evidence is sufficient to prove guilt beyond reasonable doubt. If, as here, a judge says he prefers the complainant's evidence, that is not the same as saying he finds the complainant's evidence sufficient to prove guilt beyond reasonable doubt.

Reasons given by a judge for convicting a defendant must be sufficient to show an appellate court that the judge has correctly applied the law: R v Keyte [2000] SASC 382. For the same point over here, see Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J, R v McPherson [1982] 1 NZLR 650 (CA) per Somers J at 652, and R v Atkinson [1984] 2 NZLR 381 (CA) judgment of the Court delivered by Hardie Boys J at 383, emphasising the need to demonstrate that the judge has applied the correct standard of proof.

In Douglass there were some difficulties with the complainant's evidence: she initially denied that the offending had occurred, she was inconsistent as to the location at which it had occurred, and her accusations were obtained by leading questions. The judge had not explained why, despite these difficulties, he had found her evidence to be truthful and reliable. He did specify two reasons for accepting her evidence, but the High Court criticised these: he thought she was unlikely to have made up the accusations, but the High Court pointed out that she had described similar behaviour by another man so invention was not as unlikely as the judge had thought, and her firmness in cross-examination indicated truthfulness, but the High Court did not think that this necessarily followed.

The defendant had given evidence and had called a supporting witness, but the judge did not give reasons for rejecting that. The judge should have explained why the defence evidence did not raise a reasonable doubt.

There is a bit of obscurity in the High Court's judgment (only one judgment in this case - Heydon J not being on this bench) over truthfulness and reliability. This was not the sort of case where the complainant could have been mistaken over the identity of the alleged offender, or mistaken over the alleged acts. The Court used the term reliability to mean sufficient to prove the charge. The trial judge may have used the description of the complainant's evidence as "credible and reliable" as a way of saying it was truthful, but the High Court said [15] that accepting the evidence as true was not the same as accepting it as sufficient to prove the charge. On the facts of this case it is difficult to see why not. My impression is that the Court was really saying that the difficulties with the complainant's evidence meant that it lacked the necessary probative value to establish guilt beyond reasonable doubt.

The High Court took a provision in the relevant evidence legislation, to the effect that a warning is not required about the special need for caution in relation to the evidence of a child complainant, as an indication that child witnesses are not to be regarded as a special class of witness, and it rejected [44] a submission that it was appropriate to consider published research on the reliability of child complainants. This was because here the issue was the sufficiency of the complainant's evidence. But in view of the obscurity I mentioned above, it is not clear why the reliability of the complainant's evidence should not be assessed in the context of specialist research on factors affecting or not affecting the reliability of child witnesses. The issue was, after all, the reliability of the complainant "as an historian" [47].