Allingham v The Queen

[1990] HCATrans 150

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B51 of 1989

B e t w e e n -

GAVIN JAMES ALLINGHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J
DAWSON J

Allingham

GAGDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 28 JUNE 1990, AT 10.03 AM

Copyright in the High Court of Australia

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MR P.G. NASE: May it please the Court, I appear on behalf

of the applicant. (instructed by the Public

Defender)

MR M.J. BYRHE:  May the Court please, I appear with my

=tearned friend, MRS L.J. CLARE, for the

respondent. (instructed by the Director of

Prosecutions)

BRENNAN J:	Mr Nase?
MR NASE:	Yes, I have prepared an outline of submissions which I hand up to the Court.

BRENNAN J: Yes, Mr Nase.

MR NASE:	Yes, may it please the Court, the applicant was
brought to trial before Mr Justice ·de Jersey sitting with
a jury on 13 March of last year on a charge of
rape.  He was found guilty by the jury, convicted
and sentenced to four years imprisonment. He appealed from his conviction to the Court of Criminal Appeal. The sole ground of appeal was
that evidence of the complainant's virginity was
wrongly admitted on the trial.
By majority, the Court of Criminal Appeal on 4 August last year dismissed Mr Allingham's
appeal from his conviction. At the same time
the court dismissed an appeal brought by the
Attorney-General from the sentence of four years
imposed. In the Court of Criminal Appeal the
majority Justices Connolly  and Williams,
considered the evidence had been properly admitted
as relevant to the issue of consent. Justice lf.cPherson
considered the evidence was irrelevant to the issue
of consent and ought not to have been admitted in
the trial.
One can refer to the facts fairly briefly for the purposes of the argument. The summary of the facts
in Mr Justice O:mnolly' s reasons from pages 150 to 152
is a sufficient reference to the facts at this
point and if I could invite the Court to read from
pages 150 line 49, 151 and 152 up to line 50.

BRENNAN J: Yes, Mr Nase.

MR NASE:	The applicant himself did not give evidence at his trial so the version was gathered from the questions
put and the content of his assertions to a police
officer when interviewed. The balance of the
evidence consisted of evidence of a recent complaint
to a Janelle Robinson. There was additionally
medical evidence of an examination of the female complainant. That examination was inconclusive

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as to whether or not she had been a virgin prior

to the act of sexual intercourse with Mr Allingham.

The applicant was spoken to by the police.

B.r.oadly he admitted an act of sexual intercourse

.with the complainant but denied absence of

non-consent.

And that introduction to the evidence is

sufficient to move to the first point in the outline of submissions and that is that as the complainant's

evidence is that she was, in effect, abducted,

forced to a vacant lot and then raped, whether or

not she happened to be a virgin was irrelevant to the

issue of consent and would normally be irrelevant

to an issue of consent in such a case.

J:.tr Justice Williams appeared to develop An q_rgurrent that

in all cases of rape the prosecution could prove as

part of its case the good character of a rape

complainant. It is not altogether clear as I read

His Honour's judgment whether he gave the argument

away when faced with the rape shield legislation in

Queensland which in Queensland absolutely prohibits

the reception of evidence of reputation or character

of a complainant in a sexual case.

BRENNAN J: There are two questions here, are there not?

One is whether or not the evidence is admissible

at common law; the second is, if it is admissible
at common law, does the rape shield legislation

exclude it?

MR NASE:	I have not sought to argue that the rape shield legislation excludes the evidence if admissible
at common law and, in fact, the approach taken
by the Court of Criminal Appeal was to accept that
such evidence was not excluded by the rape shield
legislation, that is evidence of the fact of virginity.

BRENNAN J: And you accept that proposition?

MR NASE:  Yes.

DEANE J: There is a particular aspect of this case though,

is there not, and that is that one of the straight

conflicts of fact was your client's allegation that

the girl stated she was on the pill and,in that

context, this evidence may have had a special

relevance which ordinarily it would not have?

MR NASE:	The evidence may have legitimately ultimately - although one cannot predict the way in which the
case would have gone - perhaps got before the jury as going to the credit of the complainant girl, depending upon the cross-examination or the

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re-examination of her. But the evidence was

admitted at the outset of the trial on the basis

that it was evidence that went to the issue of

consent.

-

DEANE J :- But it was inevitable that the allegation that

the complainant asserted she was on the pill

and her denial of it would come into evidence,

was it not?

MR NASE:	The two things, with respect, are not the same.
A denial that the complainant was on the pill as a matter going to her credit and the erection of
whether or not she was in fact a virgin at the time
of the charged act of sexual intercourse are two
issues that one can separate out. It would be
possible for the complainant to, as it were, defend herself or to answer as a matter going to
her credit if it were desired to take that course
by the Crown prosecutor without erecting as a fact
that it went directly to the issue of consent
whether or not she was a virgin at the time of the
act of sexual intercourse.

There are difficulties with the case and that

is one of them but from the very commencement of the

trial it was treated as - well, the approach before

the Court of Criminal Appeal was to treat it as an

issue that was raised that went to consent and was
a head . under which evidence could be received,

and the way in which - - -

BRENNAN J: If you take it back step by step, Mr Nase, from

the question of consent would be - I will put it

another way. If it were the fact that she had said

to the accused in the circumstances which are

attributed to her in his record of interview,

"I am on the p:i.11", that was evidence which might

engender in the mind of the jury a reasonable doubt as to the question of consent.

MR NASE:  I do not see how. The attitude the courts have

consistently taken is that if a complainant has had

sexual intercourse with A and B then that is irrelevant

to a question of whether she has consented to an act

of intercourse with the accused.

BRENNAN J: No, it depends upon the circumstances of the present,

I am sorry - - -

MR NASE:  I am sorry, Your Honour.

BRENNAN J: Does it not depend on the circumstances of the

present case where he attributed to her that remark

in a particular context?

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MR NASE:	And certainly one could accept that she would be entitled to defend herself as a matter going to her credit. For example, she may say, if it be the
c,ase, "I said that to, as it were", - sometimes
£eople claim falsely that they are in menstruation
or that they are, in fact, a virgin and, of course,
they could explain that explanation. Here she could
give that explanation.
DEANE J:	But your client said she said it in the context where
it meant that is all right, do not worry about things, which means if she said it it would have followed
that your client did have consent almost: inevitably.
MR NASE:	Yes, I have moved away from the facts of the case in endeavouring to answer the question. There was an issue between them as to whether or not those
words were said.

BRENNAN J: Well then, does the question of whether or not she

is a virgin have any relevance to the question of

whether those words were said?

MR NASE:  No. I do not see how they could as going to an issue

in the trial.

BRENNAN J: That is the proposition, is it?

MR NASE:  Yes.

BRENNAN J: And is it a proposition of fact depending upon the

circumstances of the individual case?

MR NASE:	Your Honour is approaching it in a way in which it was not approached by the court below in determining
whether the evidence was properly admitted or not
and it is submitted that the reasons adopted by the
court in justifying the admission of the evidence
are wrong and that a special leave point emerges
out of that circumstance.
BRENNAN J: What is a special leave point?
MR NASE:	It flows from the reasons provided by the court for
theaimission of the evidence as going to the issue of consent.

BRENNAN J: What is the point?

MR NASE: That is, ultimately, that it was evidence that was

capable of resolving a conflict between the two

accounts: the account on the one hand given by the complainant and on the other hand to be gathered as that provided by the accused person.

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DAWSON J:  So that what was held was that in the particular

circumstances of this case that evidence was

relevant; it did not go further than that?

MR NASE:	.we- are, I understand, arguing whether there is a
special leave point apart from the merits of the
application. In my submission we are looking at
a difficult area of the law and an area that is a sensitive area for those who come into contact
with the law and it is important that, if evidence
is admitted, that there be some clarity of thought justifying the admission of such evidence and there
is not that clarity of thought.
DAWSON J:	Why was it not clear enough? There is no rule

that evidence of virginity is always relevant in a

rape case. If the particular circumstances of the

case make it relevant, then it may be admissible.

The particular circumstances of this case made it relevant and it was admitted.

MR NASE:	In my submission it was wrongly admitted as going
to the issue.
DAWSON J:	Why?
MR NASE:	The basis upon which its admission was upheld was that it went to the issue of consent. It was not
admitted on the basis that it went to credit or
that it was something the complainant could use
to defend herself in the course of cross-examination or could legitimately be brought out in re-examination but that it went to the issue of
consent which then becameahead of admission of
evidence. The justification that the majority found
for admitting the evidence on the issue of consent
was that it helped to resolve the issue of fact
between the complainant on the one hand and the
applicant on the other hand and that, in my submission,
it could never do because the evidence itself was
her own declaration that she was a virgin and her
own declaration as to that fact could never be
used - - -
DAWSON J:	We are going off to a different point but could we

just confine ourselves for the moment to whether the

evidence was admissible, if it was properly proved.

MR NASE:  I have, with respect, gone to the reasons that the
majority upheld the admission of the evidence.

DAWSON J: If the evidence was admissible, put aside

the question of proof - let me rephrase that.

In the particular circumstances of the case where

the accused was alleging a course of behaviour which

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was quite inconsistent with the behaviour of someone

who is sexually inexperienced then it may be said

that the evidence was admissible. So that is

the way the court approached it, was it not - the mzjority - that evidence of virginity does not of

itself prove anything but in the particular

circumstances of the case it may be relevant and

was in this case?

MR NASE: That takes the argument only so far along the path.

When one looks at the evidence of virginity it

is her own declaration.

DAWSON J: Let us get to that as a second point, that question

of how it was proved or not is another thing but

if it was properly proved evidence of virginity was

admissible in this particular case because of its

particular circumstances.

MR NASE:	No, if was properly proven, I submit not.
DAWSON J:	Why not?
MR NASE:	I submit it lacked sufficient probity of value to
resolve that factual issue. The version gathered
from the instructions put did not suggest any
particular experience or skill on the part of the
female complainant. It was a rather mundane act
of sexual intercourse on his account. There was
nothing that was exceptional about the facts of this case.
DAWSON J:	But you see the point is that with a virgin

sexual intercourse is not mundane.

MR NASE:	Well, Your Honour is reaching the point of saying that
evidence of virginity, if it exists, is always
admissible.

DAWSON J: No, Mr Nase, far from it, but in a case which is,

to say the least, bizarre such as this one on the

accused's account of the facts it may well have been

relevant.

MR NASE:	It is not accepted, of course, that the account is
bizarre on the version that one would gather is the
applicant's. It was a rather mundane, to repeat
myself, account.
DAWSON J:	But that is the point, that his account was that it

was something of no account, of no consequence, and it would seem that his account involves the

complainant in taking the same attitude but it is an

attitude that is highly unlikely on the part of

someone who is a virgin.

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MR NASE:	I resist that submission. If the consequence is
that in such a case which must be a not unusual
circumstance that the courts are faced with,
evidence of virginity is admissible as a separate
head under which evidence can be received one
would see the proliferation of issues. As
Mr' Justice McPherson. said in the course of his reasons
one could find oneself trying two rape cases '
within the one trial.  The real vice of the evidence,
if I may put it as bluntly as this, is that once
received as an item that, as it were, goes by
itself with nothing else to the issue of consent then it leads inevitably in many cases to the development of a collateral issue of whether or not she was a virgin at the time of the offence,
that is, whether or not she had had prior intercourse
with A or B or C and that is the course that this
trial took.

McHUGH J:	But it is not really is it?
MR NASE:	I beg your pardon?

McHUGH J:  It is not really the course of this trial. By

hypothesis, this girl had never given herself up to any man before. If the accused's version was correct she decided to give up her virginity in

these circumstances: he,a complete stranger

walked up to her in the street, asked her to'come

with him; she went with him through an alley;

behind a bush, he told her to lie down and then

she smiled at him and took her pants off. Now a jury might well think that it is highly improbable that

a girl was going to give up her virginity in those

circumstances.

MR NASE:	I have reached the point where I am repeating myself.
It is a matter of experience. The vice in the evidence
is that it will lead inevitably to the multiplication of issues. If one says that the fact of virginity which is a past event in the life of the particular
complainant, it says nothing about her experience
or inexperience, her sophistication or lack of sophistication, it says nothing about her state of
mind, it refers only to the occurrence of a
particular event in the past. If that occurrence.
of the particular event in the past is erected as
a head under which evidence can be received
one would be faced inevitably with the proliferation of issues within trials.

BRENNAN J:  Mr Nase, we will not invite you to repeat

yourself. You have put the proposition. If the

proposition is accepted, does it go any further than

saying that in the circumstances of this case the

evidence was not admissible?

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MR NASE:	No, in my submission there is a question of
principle in so far as one can have principle
when dealing with admissibility of evidence.

BRENNAN J:=:-~ut is there any principle involved save that

of relevance? And, of course, my next question

is, and is not relevance always a question of fact?

MR NASE:	In my submission there is for the reasons I endeavoured to give the Court before because in this case the evidence has been admitted and the
reasoning of the majority of the Court of Criminal
Appeal in admitting the evidence is confused
and it is important in the administration of
justice that if evidence of this sort is admitted that the reasoning behind it be correct.
So it is not just, as it were, an application
of accepted principles that has gone wrong.
There is a question as to beyond that that makes
it one that is important in the administration of
justice to answer.

BRENNAN J: What is the question of principle other than

relevance?

MR NASE:	The reasoning behind why the court considered the
evidence to be admissible, that is, if evidence
of this sort is to be admitted at the hands of the prosecution, then there should be a clear
argument in favour of its admissibility.
BRENNAN J:	The proposition that you are asked to consider at this stage is not what the prosecution may do in general; the question is what is the question
of principle other than relevance in the context
of this case?

MR NASE: There is nothing else I can say to support my

position.

DEANE J: One other aspect of the facts is that when your

client was asked, "Did she say or do anything on the

night which indicated to you that she consented to you having sex with her", his explanation was

that she was "a bit of a run-about" and that that

was what lead him to believe consent.

MR NASE:	Yes, Your Honour introduces a problem because that
evidence under the rape shield statute in Queensland ought not to have been admitted. There is a complete
prohibition in Queensland and in Victoria on the
admission of evidence of reputation of a complainant.

DAWSON J: That only applies to evidence called by the defence,

does it? I do not know.

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MR NASE:	No.
DAWSON J:	Can the complainant give evidence of - - -
-

MR NASE: ::Br her good reputation?

DAWSON J: Yes.

MR NASE:  Not under the statute in Queensland or in Victoria.

DAWSON J: It is only reputation. What I am getting at is

could she - the legislation would not strike down

her evidence that she had had no prior sexual

experience?

MR NASE:	If one says that her evidence that she has had no
prior sexual experience is evidence of reputation
that she is giving herself, then it is caught
by the section but I do not argue that it is
evidence of reputation.
DAWSON J:	But it is confined to reputation, is it?
MR NASE:	No, the word is used but not defined.

DAWSON J: What does the section say? It might be helpful.

MR NASE: It was on the list of authorities and copies have

been provided to the Court. It is section 4

of the CRIMINAL LAW (SEXUAL OFFENCES) ACT 1978.

A number of rules are set out and rule 1 provides:

The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to

chastity.

And that is a complete embargo upon reception of

such evidence, whether the prosecution wants it in

or whether the defence wants it in.

DAWSON J: Rule 2(b) would seem to be the relevant one,

would it not?

MR NASE:  Yes. I did not understand that the phrase

"the sexual activities of the complainant with any

person" catches the evidence given in this case.

BRENNAN J: Except, did not your client also assert that in the

course of the actual events -

MR NASE: There was conversation.

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BRENNAN J:  - - - she had conceded that she had sexual

intercourse with somebody other than him?

MR NASE:	Yes, and in fact that evidence should have been
~~eived with leave of the court.  It was not,
~n fact.

(Continued on page 12)

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BRENNAN J:  Is there anything further you have to say,

Mr Nase?

MR NASE:	If I am confined to the argument as to whether o:c:_not there is a special leave point, there is
trothing else I can add to my submissions already.
I have prepared submissions on the line of my
outline of submissions.
BRENNAN J:	Yes, well perhaps we should consider first

whether or not it is an appropriate case for

special leave.

MR NASE:	Thank you, Your Honour.
BRENNAN J:	For that reason, the Court will take a short

adjournment.

AT 10.34 SHORT ADJOURNMENT

UPON RESUMING AT 10.42 AM:

BRENNAN J:  We need not trouble you, Mr Byrne. As

counsel has presented the argument, this case

turns solely upon the question whether in the

circumstances revealed in the evidence the fact

of virginity was relevant and, therefore, admissible

at common law. In the particular circumstances,

we agree with the conclusion of the majority of

the Court of Criminal Appeal that it was.

Accordingl~ special leave will be refused.

AT 10.43 THE MATTER WAS ADJOURNED SINE DIE

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