Beserick v The Queen

[1994] HCATrans 325

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S121 of 1993

a e t w e e n -

JOHAN BESERICK

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Beserick 1 12/5/94

AT SYDNEY ON THURSDAY, 12 MAY 1994, AT 10.20 AM

Copyright in the High Court of Australia

MR I.Mee. BARKER, QC: If the Court pleases, I appear with my

learned friend, MR D.H. PATCH, for the applicant.

(instructed by Gilson Patch & Richardson)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MR BARKER:  Your Honours, this application is out of time,

and I draw Your Honours' attention to the affidavit

at page 58 of the application book.

MASON CJ:	You need not be concerned about that.
MR BARKER:	Thank you, Your Honour. Your Honours, if the

judgment of the court below stands, in my

respectful submission, it will deny to evidence of propensity the special significance accorded to it
by judges of this Court. This Court has long

recognized the peculiarly prejudicial effect of

disclosing to a jury offences not charged.

Statements by this Court emphasized that special circumstances which must obtain before the evidence

becomes admissible. For example, it is said that

it must be highly probative or it must point

strongly to the offence charged or have probative
value such that it raises the objective
improbability of an event having occurred other

than as alleged by the prosecution or, to approach

it another way, it must be treated as a jury would

treat circumstantial evidence generally before it

is admissible, that is, does it point to one

rational hypothesis consistent with guilt?

Could I take Your Honours to Rogerson's case,

(1992) 65 A Crim R 530 at 541, because there is a

passage in that on which the court relied. At

point 5 of the page, in the judgment of

Mr Justice Loveday, he said:

Mr Hidden further submitted that where

evidence tends to disclose criminality other

than that charged then to be admissible the

evidence must have a "high degree of probative

force".

And he cited Harriman. Then, if I might take

Your Honours over to page 543, about point 6 of the

page, His Honour said this, and this is the passage

relied on in Beserick:

Harriman is therefore not an authority

for the broad proposition that where evidence

Beserick 2 12/5/94

tends to disclose criminality other than that

charged it must have a high degree of

probative force to be admissible. Only if it

is tendered merely as "propensity" or "similar

fact" or "improbability" evidence must it pass

some initial test. If it is tendered to prove

a fact in issue otherwise than by showing

merely the commission of another offence or a
propensity to commit an offence the evidence

is admissible. In that event the trial judge

still has a residual discretion to reject the

evidence on the ground that its prejudicial

effect is disproportionate to its probative
value.

That passage, with respect, is wrong in a number of respects. Firstly, His Honour refers to

"propensity" evidence, as though evidence can be

tendered of propensity, with no other purpose.	He
then refers to "similar fact" or "improbability"

evidence, and concludes that, with respect to those
categories, there must be some sort of initial

test, such as I adumbrated earlier. However, "if

it is tendered to prove a fact in issue", well then

it is to be treated as no more than any other

evidence, the only reason for its rejection being

the exercise of the ordinary discretion to reject

evidence which is more prejudicial than probative.

But the treatment of the subject in Harriman

and other cases in this Court commences with the
proposition that all such evidence is evidence of

propensity. The question is: what else does it

prove? If it can be seen that it is capable of
demonstrating that the facts alleged by the Crown

probably are as alleged, that is to say that it is

improbable that the "similar fact" or "propensity"

evidence would be untrue, well then, it may be

admitted.

Without spending too much time on it,

Your Honours, if I could take Your Honours briefly

to Hoch v The Queen, (1988) 165 CLR 292, at

page 295 Your Honour the Chief Justice,

Justice Wilson and Justice Gaudron said, near the

top of the page:

Where the happening of the matters said

to constitute similar facts is not in dispute

and there is evidence to connect the accused

person with one or more of the happenings

evidence of those similar facts may render it
objectively improbable that a person other

than the accused committed the act in

question, that the relevant act was

unintended, or that it occurred innocently or

fortuitously. The similar fact evidence is

Beserick 3 12/5/94

then admissible as evidence relevant to that

issue.

Now, Your Honours, in this case, Beserick, the

evidence did not get in because of the "similar

fact" evidence; it got in because it was said to

establish a relationship which made it likely that

the offence charged, in fact, happened as the Crown
alleged, and in Hoch, of course, the evidence was
from other people, whereas here, the evidence of

other acts was from the complainant himself.

But, the point about Hoch was that the Court

found that because there was at least evidence

which raised the possibility of a conspiracy

between the complainant and the boy from whom the

evidence was sought, it did not pass the initial

test of admissibility.

TOOHEY J: But, Mr Barker, if you proceed on the basis that

section 409B(3)(b) renders the evidence admissible,

subject to a discretion to exclude where undue

prejudice is caused or likely to be caused to the

accused, it is the paragraph itself, is it not, so

long as the evidence falls within the paragraph,

that makes it admissible?

MR BARKER:  Would Your Honour give me that reference again?

TOOHEY J:  The section we are concerned with here. You were

taking us to other statements of principle, but

what I was putting to you was the way in which the

relevant subsection works.

MASON CJ: Section 409B(3)(b).

MR BARKER:  Your Honour, that section is designed to create

an exception to - - -

TOOHEY J:	It creates an exception to an exclusion.
MR BARKER: Yes.
TOOHEY J:	In other words, it lets in the evidence and

itself says nothing about a discretion to exclude,

but the court below obviously proceeded on the
footing that there was such a discretion,
notwithstanding that the evidence might be

admissible under paragraph (b). So, I was just

having difficulty with seeing the analogy with some

of the other cases to which you were taking us.

MR BARKER: Because section 409 is directed to the

prohibition of cross-examination of a complainant.

We do not rely on section 409 to support our

primary argument. What we say is that the court

applied the wrong test in evaluating whether it was

Beserick 12/5/94

proper to lead from the complainant evidence of
subsequent sexual acts of a consensual nature, to

prove an act which required proof of lack of

consent.

MASON CJ:  Does subsection (3) relate only to

cross-examination? Subsection (4) deals with

asking a witness questions and imposes certain

prohibitions, but what about (3)? (3) appears to

be directed to the admissibility or inadmissibility

of evidence generally.

MR BARKER:  Of sexual experience?

MASON CJ: Yes.

MR BARKER:	Yes.
MASON CJ:	You said earlier that it was directed to

cross-examination.

DEANE J:  I think what you really meant was that it is

directed to protecting the complainant and does not

make anything admissible - - -

MR BARKER:	Yes, that is right.
DEANE J:	It merely excludes an approach which is intended

to attack the complainant.

MR BARKER:  Either by cross-examination, or other evidence,

yes.

TOOHEY J:  But that is not the way in which the Court of

Criminal Appeal approached it, is it?

MR BARKER: Well, it was argued in the Court of Criminal

Appeal by the applicant that, because of

section 409, the evidence should be excluded as

equally evidence led by the Crown as sought to be

led by the accused in such circumstances.	We do
not argue that here, Your Honour. That is not the	basis upon which it got into evidence. These nine
allegations of subsequent sexual misconduct were
let in upon the premise that they were relevant to
proof of the offence charged.

MASON CJ:  If you are right in what you say about

subsection (3), what do you say about the Court of

Appeal's use of these provisions?

MR BARKER:  The Court of Appeal rejected the argument that

the appellant sought to mount that section 409B

excluded the evidence which the Crown led, and the properly so, under the general principle relating

Beserick 12/5/94

to propensity evidence which demonstrated a

relationship which went to prove - - -

TOOHEY J:	Do you mean not by virtue of subsection (3)(b)?
MR BARKER:	No.
TOOHEY J:	Can you just take us to where that appears.

DEANE J: It is pages 8 to 9, I think, Mr Barker.

MR BARKER: It is at two places. Page 8 point 8:

The true bases for the admissibility of

evidence of sexual activity between the

complainant and the accused other than that

which is the subject of the charge were

analysed in some detail most recently by this

Court in Regina v Sydney Wickham. The

evidence is admissible, first, in order to

establish a sexual relationship which makes

the complainant's allegation more likely to be

true. The "guilty passion" of the adult for

the child which such conduct shows may well

make more credible the complainant's evidence

that the sexual activity took place upon the

particular occasion which is the subject of

the charge. In other words, it makes it more

likely that the offence charged was in fact

committed. Secondly, the evidence is

admissible in order to place the evidence of

the offence charged into a true and realistic

context, in order to assist the jury to

appreciate the full significance of what would

otherwise appear to be an isolated act
occurring without any apparent reason.

MASON CJ:  Now, subsequently they came to consider whether

or not 409B(3) rendered that evidence inadmissible.

That is the way they approached it.

MR BARKER: Yes, and they said 409 did not.

TOOHEY J: Yes. That appears fairly clearly on page 14.

MR BARKER:  Yes. At page 9 they talked about propensity

evidence. At the bottom of the page, line 20, it

was said that the relevance of such evidence cannot

now be disputed, and - - -

TOOHEY J: But so far as admissibility is concerned, if you

look at page 14, the court appears to be saying

that section 409B(3)(b) lets in the evidence. I am

not saying that is right or wrong, but is that not

what the Court of Criminal Appeal is saying?

Beserick 12/5/94

. -~

MR BARKER:  No, Your Honour. They are saying it is

not - - -

MASON CJ: Excluded. They say "include", but they mean "not

excluded".

MR BARKER:  Yes. They say that this section was designed to

cure what was seen as a particular evil and the

particular evil was not the Crown leading evidence

of other sexual conduct.

DEANE J: Except they picked their language badly when it

says:

it is admissible in child sexual abuse cases

pursuant to s 409B(3)(b) -

They should have said, "If it is otherwise

admissible it is not excluded by".

MR BARKER:  Yes, in other words, it is not there for the

protection of the accused. That is what they are

saying and that is why that evidence was rejected.

They then go on to deal with the proposition at the

bottom of page 14, and over the page, that:

It was submitted by the appellant that -

independently of whether it is or is not

similar fact evidence - evidence which

discloses the commission of any offence other

than that charged is inadmissible,

notwithstanding that it goes to establish a

fact in issue (and thus more than mere

propensity), unless it is "highly probative"

of the issue to which it is directed. This

restriction was put as amounting to a

condition to the admissibility of the evidence

which the Crown must satisfy, and not as being

relevant only to the ordinary discretion which

the accused may seek to invoke to have

evidence rejected -

Then Mr Justice Hunt cited that passage from

Rogerson's case, and rejected the proposition that

there was any special test of admissibility. That,

in my respectful submission, is simply wrong and

sits discordantly with the views of the Judges of

this Court on the topic.

Your Honours, I have another ground to argue, so I will not simply have time to read the passages

that I was going to read to you, but Hoch's case in

particular - the passage I have read and the
passage from the judgment of Justice Brennan and

Justice Dawson, towards the end of pages 302

to 303 - makes it perfectly clear that there is a stringent test to be applied before such evidence

Beserick 7 12/5/94

can be received.	It is not merely a matter of
discretion.	One sees statements to the same effect

in Harriman, 167 CLR, S v The Queen, 168 CLR 989,

and B v The Queen, 175 CLR 599, and the references

are in the written submissions.

But what happened here, of course, was there

were two acts charged. There was one indecent

assault. There was one act of sexual intercourse,

as defined by statute being an act of fellatio.

The first charge was in respect of the first sexual

contact between the two, indecent assault,

necessarily non-consensual. The second was in

respect of the second contact, and the other nine
events deposed to by the complainant were after the

second offence and they were not proved to be

non-consensual and neither was the act of sexual

intercourse proved to be non-consensual, and they

have no bearing, in my respectful submission - at

least, they were not of sufficient probative force

to be admissible as proof of the first count

which - and there should be a verdict of not guilty

in respect of that count.

In respect of the sexual intercourse count,

the Court of Criminal Appeal substituted a
conviction. Having quashed the conviction, they
substituted a conviction for an offence against
section 81 of the Crimes Act, which is indecent

assault upon a male. We submit the court was wrong

in substituting the other conviction. This was

done pursuant to 7(2) of the Criminal Appeal Act. We say that because section 61G of the Crimes Act at the time, that is introduced by Act No 42 of

1981, provided a code for alternative verdicts.

That code did not provide for a verdict under

section 81.

Secondly, proof of the offence against

section 81 necessarily required, we submit, proof

of an intention to assault in a sexual way, whether

was found not to have been proved in the case of	or not the complainant consented and the consent	the sexual intercourse charge. Therefore, we
submit that verdict should not have been
substituted.

Finally, the applicant was deprived of his

right to cross-examine the complainant as to other

sexual conduct on his part because the whole trial

was conducted upon the premise that sections 61D

and 61E were prescribed sexual offences where

cross-examination was prohibited.

MASON CJ: Thank you, Mr Barker. Yes.

Beserick	12/5/94
MR BARKER:	Sorry, Your Honour. May I hand to you the

submissions of the Crown in the Court of Criminal

Appeal where, in paragraphs 5.2 and 5.3, they

expressly disavowed seeking a substituted verdict
of indecent assault. It is a verdict which the

Crown did not ever ask for; it was not argued at

the trial and should not have been substituted. It

is the top paragraph on the second page, if

Your Honours please.

MASON CJ:  Mr Solicitor, what do you say to the last

argument addressed to us by Mr Barker, based on

paragraphs 5.2 and 5.3 of the Crown's written

submissions?

MR MASON:  May I hand up a copy of section 81, which was the

substituted verdict that was imposed, and

section 81 expressly says that there is an indecent

assault with or without consent, as an element of

the offence. So, the reasoning in 5.3 of the

written submissions, the Crown was clearly

misconceived and clearly and correctly perceived as

misconceived by the Court of Criminal Appeal.

DEANE J: When was that section introduced, Mr Solicitor?

MR MASON: It is no longer in the Act, but it was part of

the law at the relevant time, which was some time

in the 1980s. I am sorry, I have not answered your

particular question.

DEANE J: It seems in its form, if read or if construed by

reference to that time frame, it would put New

South Wales and Tasmania together in relation to

consenting homosexual conduct, would it not.

MR MASON: That may be correct.

DEANE J:	It would be obviously correct, would it not.
MR MASON:	Yes, but it is no longer part of the criminal law

of New South Wales but was -

DEANE J:	I am not surprised that you rush to tell us that.
MR MASON:	I was answering your question.
DEANE J:	But it was part of the law of New South Wales at

the time of -

MR MASON:  At the time of the matters for which the

applicant was tried.

DEANE J:	I see, but not at the time of the trial?
MR MASON:	Certainly not at the time in the Court of

Criminal Appeal. I think it may be not at the time

Beserick 9 12/5/94

of the trial either, but I - if that is a critical

distinction I would need to check that,

Your Honour - 1984 it was repealed.

Your Honours, the powers of the Court of

Criminal Appeal to substitute verdicts are set out

in section 7(2) of the Criminal Appeal Act. The

power is not necessarily circumscribed, or not necessarily the same as the power of a jury to

enter alternative verdicts, and the argument that

the applicant was denied a right of

cross-examination which he would have had at trial

had the charge been under section 81 - that is

because section 409B did not stand in the way of

cross-examination with respect to a section 81

offence - that is irrelevant, in our submission, to
the authority of the Court of Criminal Appeal if

satisfied of the other matters in 7(2) of the

Criminal Appeal Act to substitute a verdict.

TOOHEY J:  Mr Solicitor, was the possibility of such a

substitution raised during argument before the

Court of Criminal Appeal? Possibly not in view of

the concession made.

MASON CJ:  In other words, did the applicant have an

opportunity to respond to this possible course of

action?

MR MASON:  Can I speak to someone who was at the appeal?

TOOHEY J: It is not raised as a ground of appeal, as I read

the notice of appeal.

MASON CJ:	No, it is not at all.
MR PATCH:	Your Honours, I am the only one present who was

there. What happened was that, at the end of oral

argument, the court itself raised the possibility

of a substituted verdict and asked for further

written submissions. Those submissions were put in

by each side and there was no further oral

argument.

DEANE J:  Was it adverted to that the repealed section 81

could be applicable in the circumstances of this

case?

MR PATCH:  Yes. What in fact happened was that I did the

written submissions.	I directed them only at
section 61E(l) or 61E(2).	Mr Justice Hunt then

rang me and said, "What we're really thinking about

is section 81", and I then put in submissions

saying - - -

Beserick 10 12/5/94

MASON CJ: 

You were given notice this course of action might

be taken and you were given an opportunity of
responding.

MR PATCH: 

That is correct, and written submissions were put

in.

MASON CJ:	Thank you.
MR MASON:	Paragraph 5.1 of the written submissions

addresses section 81.	Your Honours, that is all I
wish to say.

MASON CJ:  Mr Solicitor, we need not trouble you further.

Now, do you want to respond on the matter on which

the Solicitor has addressed, which of course is the

last point you raised?	Do you want to reply on
that?

MR BARKER:  Yes. Might I give to Your Honours section 81

and section 81A.

MASON CJ:	We have it.
MR BARKER:	In my submission, to read into the words "with

or without consent" meaning that any act with or

without consent falls within the section is to

deprive the word "assault" of any meaning, and also

makes without purpose section 81A, which is the

consensual crime. In my submission, section 81 at

least required an intention to commit the act, whether or not there was consent, and so then, after than, it proved the intention, then, whether

or not there was consent became of no moment.

Because of the elements of the charge of sexual intercourse, one of which, of course, require proof of non-consent, which was not proved according to the Court of Criminal Appeal, the Court of Criminal Appeal were not able to find that all the facts necessary to prove an offence under section 81 must have been found by the jury. If the Court pleases.

MASON CJ: Yes, thank you, Mr Barker.

The Court is not persuaded that the proposed appeal would enjoy sufficient prospects of success

to warrant the grant of special leave to appeal.

The application is therefore refused.

AT 10.51 THE MATTER WAS ADJOURNED SINE DIE

Beserick 11 12/5/94