BP v The Queen

[2011] HCATrans 281

[2011] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S157 of 2011

B e t w e e n -

BP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 10.43 AM

Copyright in the High Court of Australia

MR M. THANGARAJ, SC:   May it please your Honours, I appear for the applicant.  (instructed by Greg Walsh & Co)

MR L.A. BABB, SC:  May it please your Honours, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   You need an extension of time.

MR THANGARAJ:   I do, your Honour.

GUMMOW J:   Is that opposed?

MR BABB:   No it is not, your Honour.

GUMMOW J:   Yes, you have that.  Yes, Mr Thangaraj.

MR THANGARAJ:   Could I start at application book 106 and 107?  That is where the legislation has been extracted in the Court of Criminal Appeal’s decision.  I do not need to take your Honours through those provisions of course.  One interesting aspect of section 98 is the note at the bottom of the page which says that:

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

We would query at this stage what value a note may have, but it seems to suggest that for a coincidence rule, something such as an earlier plea or a conviction in another matter ought to be the comparison rather than both related events, as in this case, or all related events as in this case, being matters of fact in issue.  That is, all are complaints.  Perhaps I will come back to that. 

The tendency notice is summarised at 107.  The criticism with respect to the matters relied upon by the Crown are that these are quite general matters and quite commonplace and not the matters of such importance or uniqueness or striking – I do not want to use that word too much, striking similarity.  That is absent in this case.

BELL J:   Absent also from the provisions of the statute is reference to “striking similarities”, Mr Thangaraj.

MR THANGARAJ:   Yes, it is, your Honour.  Can I say this, and perhaps direct this at your Honour Justice Hayne, that the Victorian approach, with respect, is the preferable approach, perhaps closer to the common law.  What this Court decided in the common law cases was why does this evidence have significant probative value, what gives it that strength to allow such inherently prejudicial material to go before a jury, and those words are in the provisions, “significant probative value”.  So the special leave question in part is is the Victorian approach, which is closer to the common law, the better approach, and we say it is.  In my submission, if that approach is adopted this appeal would have been differently decided.

So if we compare and look at the tendency matters that are relied upon, which are the same as the coincidence matters effectively, they are commonplace and really the difference between the States has been the way to approach the facts.  So my learned friend relies on the fact that courts interpret facts in a particular way - of course they do but it is the approach that is relevant.

BELL J:   As I read Justice Hodgson’s reasons the evidence tendered as coincidence evidence his Honour considered passed muster, but this was in the context that it was evidence that was admissible under the tendency rule in any event.  Is that ‑ ‑ ‑

MR THANGARAJ:   His Honour said that it did have significant probative value because it was sufficiently similar.  That is part of the criticism.

BELL J:   Well, the matter I am raising with you is it did not seem to me that this case presented in a particularly clear light any issue concerning the scope of coincidence evidence under the Act as distinct from tendency evidence.

MR THANGARAJ:   Yes, and his Honour said that the strength in the coincidence evidence relied in part on the tendency material. 

BELL J:   Yes.

MR THANGARAJ:   I should say in relation to coincidence that a five judge Bench sat on Wednesday in our Court of Criminal Appeal dealing with a coincidence application, a separate trial application relying entirely on coincidence evidence.  It is an insider trading case.  But that court is not looking at tendency evidence, it is not a section 97 case and part of the argument in that case, as I understand it, having read the applicant’s submissions only, is the different approach between Victoria and New South Wales.  So if this Court hears this matter it will have the benefit of that decision presumably.

The criticism - at the trial what was challenged was whether or not the material itself was probative, satisfied the test, and then concoction and contamination.  Could I quickly take your Honours to some facts that were part of the chronology and that is found at application book 117 through to 119.  At 117, line 10 is the only one I wanted to take your Honours to on that page.  At the funeral discussions took place with the family about certain conduct by the applicant in relation to individuals.  So that is the starting point where this discussion within the family was taking place.  Then if we go over to 118, could I ask your Honours just to quickly read, please, the entries in relation to 20 August 2007 down to 6 March 2009 on the next page?

BELL J:   Are you asking us to read this in connection with a complaint relating to concoction or contamination?

MR THANGARAJ:   In the way that it affects significant probative value, yes, your Honour.

GUMMOW J:   What do you say about the point made at page 178, 3.20?

MR THANGARAJ:   Well, with respect, I do not understand why that would tell against concoction in relation to the other person because there was no admission, in fact there were vehement denials in relation to anything to do with the other complainant where that admission was sought in this pretext phone call.  So, with respect to the judgment of Justice Hodgson, and that was also relied upon, I think, by the trial judge, but perhaps not, but certainly by Justice Hodgson and my learned friend also adopts it.  So I say that that cannot assist in that debate about the merits of the second complainant.

HAYNE J:   Does the assessment of probative value under section 97, the tendency rule - or is the assessment of probative value under that provision affected by the evidence of what on one version of events is an admission of conduct in respect of one complainant?

MR THANGARAJ:   Well, if it was a case limited to only one complainant, say, there were uncharged acts and there was only complainant in the case, the answer would be yes.  But where there are multiple complainants then, unless there are admissions in relation to multiple complainants, it is difficult to see how that would have any bearing on concoction, but probative value; it would depend on the nature of the admission, the relationship between the complainants perhaps. 

But that raises another question, which does not arise necessarily on the facts on this case, but when this Court ultimately, and for the first time, I think, ultimately looks at 97, 98 and 101, a question that is still outstanding, and there was a majority/minority decision in a case called Zhang below is when considering probative value do we take the evidence as accepted or do we look at various inferences that may be drawn to determine whether or not it has probative value.  The Court of Criminal Appeal in the five judge Bench matter is also considering whether or not you accept the facts that the Crown is averring or the judge is required to look behind the material and determine for himself or herself what the probative value is.

BELL J:   Coming back to the chronology, you took us to the funeral in 1996 as the starting point on this aspect of your argument.  Was TP born in 1996?

MR THANGARAJ:   I cannot remember, your Honour.  No, I am told.

BELL J:   Is not the point respecting TP that she had made a complaint to a primary school friend at a time before the allegations had been reported to the police and might be thought to have currency within the family?

MR THANGARAJ:   Well, could I take your Honours to application book 124?  This is something I wanted to take your Honours to in relation to TP.  Paragraph 70, line 29, the final two sentences are the critical aspect of the contamination of TP.  So there is no doubt that she had a conversation with TM prior to going to the police and then knew something about what is alleged to have happened to TM because she says the same thing happened to her.  So there must have been some discussion before the complaint was made and that is part of the ‑ ‑ ‑

BELL J:   But all of this is after her earlier complaint to a primary school friend?

MR THANGARAJ:   I think that is right, your Honour.  But what this is about is - it is sort of a factual scenario of Hoch where there were two brothers and the friend of the brother.  The opportunity for concoction is present in a very significant way but it went further than that because of the evidence.  What the judge, with respect, ought to consider is, when we have these sorts of admissions of knowledge of other complaints, there is a risk that it is actually significantly worse than that.  That might be submitted that we have talked about this and that, they may have talked about more about - there is a risk that it was actually even stronger than the evidence disclosed.

But the Victorian approach is consistent with the Federal Court approach where the Federal Court has looked at this and said - for example, Justice Lindgren said in the case of ACCC that section 97 embodies the healthy scepticism that the common law had of this sort of evidence.  So, in my submission, the Federal Court is aligned with the Victorian approach rather than the New South Wales approach. 

One of the differences in the respective approaches is that the Victorian approach looks at the dissimilarities between the asserted tendency and coincidence aspects, whereas Justice Hodgson, and in line with the New South Wales approach, has not looked at the dissimilarities; it is focusing on some of the similarities and what the notice shows is that the Crown picked some similarities which applied to some but not others, and the convictions and the acquittals – I am sorry, your Honour.

BELL J:   But it is that when one is looking at whether an individual has a tendency to have a state of mind, in this case an unusual attraction to prepubescent female relatives exhibited by a tendency to interfere with them in a particular way, the fact that there may be differences on occasions does not seem so relevant to the question of proof of the tendency.  This is the distinction between tendency and coincidence.  Perhaps it might be useful to explain the error in Justice Hodgson’s reasoning.

MR THANGARAJ:   The focus of the similarity that was sought, that was relied upon by both the Crown and Justice Hodgson, was the familial setting.  In a case of PNJ in the Victorian Court of Appeal, the extract, I think, is at 167 of our application book, if you look at the first tendency matter relied upon, the persons in question were related to the appellant, and with respect the Victorian Court of Appeal correctly says that it is not a relevant similarity if it is a matter that is outside the control of the applicant or the accused.  So the first tendency issue was the person in question was related to the appellant.  This raises questions possibly of opportunity where the propensity is an attraction to young girls as opposed to young family members.

I mean, as I said to the Court of Criminal Appeal, originally there was a complainant that was not a young family member, so they have hived off the indictment to narrow it to particular complainants and then relied on some asserted similarities.  So the danger is - and this is not the danger that is found in Victoria because, with respect, they are dealing with it in a different way and a preferred way - to look for something that is unique. 

Touching a young girl’s genitals, breasts, that is what sexual assault of a young person is.  That is not unusual in that way and by saying that it is unusual that a grandparent or parent would act this way, which is what Justice Hodgson said, is the same as saying that it is unusual that a teacher would touch a student, it is unusual that an adult would touch a child.  Of course it is, but it is not comparing it to the rest of the community; it is comparing it to like offenders, and that is the difference in the approach that has been problematic. 

So the argument is – and this is a case where the jury ultimately came back after two black directions and a majority verdict direction.  With respect to contamination, his Honour Justice Hodgson said that because the precise nature of the allegation was not said to have been contaminated that

there was not a risk of contamination.  In my submission, that is not the right approach.  Matters can corroborate peripheral matters and in this case, contamination between TM and TP was not a peripheral matter when she said, “He did to me what he did to her” - query whether or not a contamination needs to be precise before it can be relevant to the determination of probative value under 97 and 98. 

Interestingly, at application book 87 - this is the remarks on sentence - after earlier finding that there was no risk of contamination, the trial judge said:

The jury found the accused not guilty of –

the offences in relation to TM.  This is at line 28 -

It is not possible to, of course, second guess their reasons, but I would note that there was some evidence in the case which cast some doubt on whether [SP], the mother, may have perhaps contaminated the evidence that was later produced from [TM].

That is the sort of risk that should have been taken into account, which was asserted on the application on a voir dire, which should have been taken into account earlier and if properly taken into account, with respect, should have led to separate trials. 

As I said, there were other issues in relation to these provisions which do not necessarily arise on the facts, but if and when this Court ultimately looks at these three provisions, with respect, it probably needs to look at the whole approach to the legislation in 97, 98.  There will never be, in my respectful submission, a factual vehicle that will cover all the outstanding matters for resolution of 97, 98 and 101. 

This is not an interlocutory case which many tendency applications have been, and failed for that reason.  The Court has the benefit of the verdicts and perhaps the benefit of the Court of Criminal Appeal’s five judge Bench in the contamination.  But these are issues that are important and there are discrepancies between the jurisdictions, in fact even within the jurisdictions, and on that basis, special leave is sought.

GUMMOW J:   Yes, thank you.  Yes, Mr Babb.

MR BABB:   It is submitted that the applicant’s submissions raise factual issues, but no issues of general importance.  In this case, on the facts, there was a sufficient particular type of conduct.  That conduct not only included the place that the girls were touched, when they were touched and how they were touched, but particularly in this case the applicant was the father and grandfather of the three girls, and his willingness to act upon that interest was correctly found by the Court of Criminal Appeal to be an unusual and particular feature of significant probative value.

BELL J:   I think the point that Mr Thangaraj makes is if you analyse the Victorian decisions you would see that that circumstance, namely unremarkable sexual interference with one’s grandchildren is not viewed as having the sort of significant probative weight that would bring it within section 97.  But there does seem to be some difference in approach.  Would you accept that?

MR BABB:   There is, but it is very much dependent upon the facts of the case.  PNJ did not involve a familial relationship in the same way, and this is a significant feature in this case.  There is distinction between the various cases simply because they are very much dependent upon the factual matters in each case and clearly where matters are going to systems or patterns or the identity of the offender then you need the greater degree of similarity of conduct.  That is not this case and there was similarity in conduct plus the significant familial relationship. 

In relation to concoction it is clearly important, in my submission, that there was corroboration in relation to some of the complaints.  That is something that can be taken into account in relation to the real possibility of concoction.  Not only do we have the detailed recorded admissions in relation to SP, but there is an admission made to another child, a brother, CP, in relation to molesting SP and TM.  So that factors into the real possibility of concoction in relation to both those complainants and that is detailed in the Court of Criminal Appeal’s judgment at application book 124, paragraphs 69 and 71.

BELL J:   What about the suggested inconsistency in the sentencing remarks when contrary to the earlier finding his Honour seems to accept that there could have been contamination of the child’s evidence?

MR BABB:   Your Honour, there was no real possibility of concoction, is what was found prior to the admission of the evidence.  There was no further application made during the trial.  When one looks at TP’s evidence, the point that your Honour made is a most significant one, that she was not born at the time that there was any raising of the matter within the family and she made a complaint in 2002 to a school friend, which was some four years prior to any complaint being made by TM and SP to the police.  So in that regard, his Honour’s finding on sentence, I would submit, is not relevant to an assessment of that.

BELL J:   Just so I understand it, because the anonymisation can at times make life difficult, but the passage on application book 87, to which

Mr Thangaraj took us, relates to TM, not TP, is that right, and TM is the one whose account was corroborated by CP?

MR BABB:   That is correct, TM being the daughter, confusingly, of SP, rather than TP.  My learned friend has referred to the selective convictions.  That just goes to show, in my submission, that the jury did not misuse this evidence as propensity evidence, that they have correctly used the evidence as it should have been used, only as tendency evidence where it was correctly assessed to be such.  They are my submissions, thank you.

GUMMOW J:   Any reply?

MR THANGARAJ:   Your Honour, obviously the admission from CP was not recorded and not accepted, so that was a matter for the jury and, as I think we have just heard, acquittals resulted from those charges in any case.  In my submission, the convictions and acquittals show that the probative value did not have the weight that was asserted pre‑trial, but the prejudice remained and the real question is the convictions that remained.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 11:07 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.11 AM:

GUMMOW J:   Having regard to the evidence given at the applicant’s trial, particularly the evidence of admissions by the applicant, this is not a case in which any division of opinion between the courts of New South Wales and Victoria about the construction and application of sections 97, 98 and 101 of the Evidence Act would conveniently fall for consideration.  The actual decision of the Court of Criminal Appeal of New South Wales is not attended by doubt.  Special leave is refused. 

The Court will adjourn to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED