BRS v The Queen

[1997] HCATrans 45

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 1996

B e t w e e n -

BRS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1997, AT 12.38 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the application (instructed by Greg Walsh & Co)

MR R. KELEMAN, SC:   If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

TOOHEY J:   Mr Byrne.

MR BYRNE:   Your Honours, this application derives from a criminal trial where the applicant faced six charges alleging that he had committed very serious offences of sexual assault upon the complainant H.  At the trial evidence of much less serious sexual misconduct by the applicant towards another person known as W was admitted.

TOOHEY J:   Without objection?

MR BYRNE:   It was admitted without objection, your Honour, although I should say that the basis on which the evidence was admitted was suggested by senior counsel to be a limited basis.  His lack of objection to the admissibility of the evidence of the witness, W, was confined to its use as evidence rebutting the good character of the applicant.  So, it was a matter where there was no objection but the point taken that there was a limited use to which this evidence could be put.

GAUDRON J:   How was that point taken?

MR BYRNE:   It appears, your Honours, at page 20 of the application book.  What happened was that during the course of the evidence of the witness W, there was an interruption in which the learned judge in the absence of the jury raised with senior counsel appearing for the applicant the status of the evidence, if that is a proper description.

TOOHEY J:   The evidence was already well under way at that stage, was it not?

MR BYRNE:   It was, yes.  The learned judge expressed reservations.  He said he was perturbed about the evidence and then senior counsel said, and this is at line 17 on page 20.  The applicant:

has put his character in issue.  This is the only matter apparently that can be brought against his character.  That is the basis upon which it is led.  If it was led as evidence against his bad character, I could not stop it.  We took the position that we denied this took place at all.

GAUDRON J:   That is not a claim that it is there for a limited purpose though.

TOOHEY J:   Particularly when the Crown continues at, what, line 30 to say, that it:

goes to another issue and that is corroboration.

I realise that corroboration is another issue raised by this application but for the purposes of the present debate, the Crown was making it clear that it would argue that the evidence had some corroborative value.

MR BYRNE:   It was.  I accept that, your Honour.  That issue was not then decided by the learned trial judge.  He simply let the evidence proceed through to the conclusion of cross-examination.  But the respective positions taken by counsel is perhaps best illustrated, your Honours, by reference - that was what happened when the evidence was initially raised by the learned trial judge.

TOOHEY J:   Could I just ask you this, Mr Byrne.  Up to the point where counsel for the applicant viewed the evidence, apparently, as relating to character, was there any suggestion that that was the purpose of the evidence?

MR BYRNE:   There was no suggestion one way or the other as to its purpose.

TOOHEY J:   No.  The evidence seems to have been led in a general way for whatever value it had.  Counsel then seems to have put an imprint on it, as it were, by saying, “We’re putting our client forward as a person of good character.  To the extent that this might show otherwise, then it is admissible.”  There does not seem to have been any concession either that that was the purpose for which it was originally introduced or that that was its purpose in the continuation of the evidence.

MR BYRNE:   Your Honour, I think, with respect, your Honour is correct.  There was certainly no concession by the Crown that that was the sole purpose for which the evidence could be used.  Indeed, the Crown took the opposite position that the evidence had a number of different uses.  But senior counsel for the applicant maintained his position that it had a single and very limited use, namely, the question of character.  That is perhaps best illustrated, your Honours, by referring to page 102 of the application book.  That is an extract from the exchanges between counsel and the learned trial judge following the conclusion of his Honour’s short summing up.  The important aspects of it for the point that is being discussed:  at line 11, senior counsel for the applicant requests a direction from the judge that:

there is no corroboration whether by -

the evidence of W -

or anyone else.

And he then goes on to say, at line 15:

I think your Honour particularly in the light of some of the submissions made by the Crown -

that your Honour -

should direct the Jury that in fact there is no corroboration -

of the version given by the complainant.  But the important point, so far as counsel for the applicant was concerned is perhaps contained then, your Honour, at line 29 where, after the learned judge had said, “I can’t see anything capable of being corroboration”, the learned senior counsel said:

See, I mean W’s evidence was purely and simply relevant to refuting good character, nothing else.

Now, there was then, in the next submission put by senior counsel, again after the learned judge suggested that there was no corroboration:

That’s precisely my submission, your Honour, but I think your Honour should tell the Jury this.

Now, the learned judge never, in terms, decided what was a very stark conflict between senior counsel for the applicant and the Crown, namely, the use to which this evidence - and it was crucial evidence in the trial - could legitimately be put.

TOOHEY J:   To what extent is corroboration necessary in this case?

MR BYRNE:   It was not essential as a matter of law as it used to be in some sexual cases.  It was a situation, your Honour, where corroboration might have been considered as being an important matter because it went to support or tend to confirm the evidence of the complainant.  There was, as I say, a stark conflict between counsel for the applicant and the Crown as to whether or not there was corroboration.  But there was perhaps an even more stark conflict as to the use that the jury could legitimately make of the evidence of the witness W. 

Now, both counsel appearing, at the conclusion of the summing up, requested that the judge give the jury directions about the matter.  They both said that it was a matter of such significance in the trial, such importance, that it should be the subject of directions.  In his summing up the learned judge made no reference to it at all.  It was not mentioned.  Both counsel sought that he direct the jury on the question and he declined to do so.

GAUDRON J:   But that does not help you unless you can take the further step that the directions would have favoured the defence.

MR BYRNE:   Yes.  In our submission, they would have favoured the defence, your Honour, for two reasons.  The first reason is that a proper direction, in the circumstances of this case, would have been in terms that the submission put to the jury in the address of senior counsel for the applicant that there was no corroboration was, in fact, correct, contrary to the submission effectively put by the Crown in its address to the jury.

TOOHEY J:   How does that square with what is said on page 126, Mr Byrne, where the Chief Justice speaks of the problem that could have arisen because some of the charges did not require corroboration in order to sustain a conviction?

MR BYRNE:   They were all in that category, your Honour.

TOOHEY J:   They were all in that category.  But he says, at line 14:

The offences alleged in the first four counts of the indictment were not prescribed sexual offences within the meaning of the Crimes Act, but the offences alleged in the last two counts were prescribed sexual offences.  That produced the curious result that the provisions of the Crimes Act doing away with the need to warn juries about the danger of convicting.....applied to some of the counts in the indictment, but not to others.

MR BYRNE:   Yes.  There was a warning required in relation to some.  It was not the fact that corroboration itself was required.

TOOHEY J:   Yes, I understand that.

MR BYRNE:   Your Honour, that point was not taken and, indeed senior counsel for the applicant took the approach that exploring that area with the jury would only have been confusing to them and it was not pursued.  But the point was made by senior counsel and, in our submission, the important point that the jury needed to be directed about the matters which were clearly the subject of conflicting submissions being put in the addresses that had been given to them.

TOOHEY J:   But the jury were really left with, were they not, a statement by defence counsel that there was no corroboration of these charges?

MR BYRNE:   That is right, yes.

TOOHEY J:   And no statement to the contrary from the trial judge, no direction from the trial judge which might have said, “Here’s this evidence which could be treated as corroboration”, and it is presumably on that footing that the Chief Justice said, in a sense, the direction, by its non‑reference to corroboration, was more favourable to the applicant than might otherwise have been the case.

MR BYRNE:   Yes, that was the conclusion reached by the learned Chief Justice.

TOOHEY J:   Is that a fair conclusion, in the circumstances?

MR BYRNE:   In our submission, it is an erroneous conclusion and we submit that it is an erroneous conclusion on this basis:  that the evidence of the witness W was admissible, as learned senior counsel had contended, solely for the purpose of rebutting character.  It was not admissible as evidence establishing the guilt of the applicant because the evidence of W and the evidence of the complainant H, was, on the material available to the court, possibly the result of collusion between them and by virtue of the principles established in this Court’s decision in Hock v The Queen, that evidence was not admissible.

GAUDRON J:   This possibility of collusion seems to have come out of thin air, Mr Byrne.

MR BYRNE:   Not really, with respect, your Honour.  There is, in the materials in the application book and, in particular, in the evidence of the witness W, in our submission, compelling material that there was the possibility of collusion between the witness W and the complainant H.

TOOHEY J:   But you would have to put that to the witness, would you not, in order to lay a foundation for that?

MR BYRNE:   In my submission, not, your Honour.  It does not need to be directly put.

GAUDRON J:   You would normally take that to exclude the evidence at all but, of course, this is a somewhat different point.

MR BYRNE:   It is a situation, your Honour, where the witness might be expected to deny any such suggestion which effectively amounts to a very serious criminal offence of perverting the course of justice.

TOOHEY J:   Yes, I was not really suggesting that you had to put it four square, as it were, but that there would be a line of cross-examination from which the inference could be drawn.

MR BYRNE:   Certainly, your Honour.  There has to be some material - and this is what this Court said in Hock - in the evidence from which the inference can be drawn that there was at least the possibility of collusion between the two witnesses whose evidence is put forward, as it were, as similar fact evidence.

GAUDRON J:   Where do we find this evidence?

MR BYRNE:   The important material, your Honour, is at page 37 of the application book.  Your Honours, to perhaps fill in some of the background against which this short series of questions was asked:  this involves two young school boys, both boarding in a boarding school for boys, and the applicant in the role as a tutor to them.  At line 15 on page 37 it was put to the witness W:

Q.  There were many times I take it when you were in -

the applicant’s -

room and no-one else was there?
A.  Yes.

Q.  And you had a good chance to look around his room?
A.  Yes.

Q.  Were there times when you and -

and that is the complainant -

were there alone?
A.  Yes.

Q.  Many times?
A.  I don’t know whether there were many times - how many ‑ ten, fifteen, I don’t know.  There were certainly occasions.

There could be no other issue to which those questions were directed other than that these two young students were in the room of the applicant together looking around the room finding out about what was located there and what its general appearance and layout was because there was a risk that they had put their heads together to falsely implicate the applicant in the kind of offences which were alleged against him.  But there were other aspects of the evidence of this witness which raised the question of whether there was - and I stress, it is the possibility of collusion between them.  It is not a matter that has to be established as a fact.  All that needs to be established is that there was the opportunity for them to put their heads together, as it were, to concoct a story so that their respective versions could not be seen to be truly independent so as to justify the admission of the evidence.

McHUGH J:   But did W not say that he had not seen H since 1991?

MR BYRNE:   That is right.  Yes, he did, your Honour, yes.  But that did not rule it out and there was no way of checking whether that was the truth.  That was his version.  But the fact was that these were not just two boys who happened to be at school together.

McHUGH J:   And their friendship continued afterwards, did it not?

MR BYRNE:   That is right, they were very close friends at school.  They were in the same rugby team, the same rowing team.  The witness W went to H’s country property for a week during school.  After H left school in 1988 they continued to be associated.

McHUGH J:   Was that at Coonabarabran?

MR BYRNE:   It was at Moree, H’s property.  But after he left in February 1988 - that is H - there was a continued association between the two of them up until 1991.  It was not a situation where they just happened to be, as I said, two independent boys at the same school.  They were very close friends.

GAUDRON J:   Was this put to the Court of Criminal Appeal?

MR BYRNE:   The proposition that there was a possibility of concoction, yes, your Honour, it certainly was.

GAUDRON J:   It does not seem to have been specifically dealt with.

MR BYRNE:   The learned Chief Justice did refer to it and he rejected the suggestion that there was a possibility of collusion.  His Honour’s conclusion in that regard was, with respect, qualified, and qualified to this extent - and if I might take your Honours to page 132 of the application book.  His Honour concluded, or observed perhaps I should say, at the top of page 132, line 1, and referring to the evidence of the two witnesses, the complainant and W:

What was significant was that both the complainant and W, apparently independently -

and that was all it was.  It was apparent that it was independent.  It was not established to be independent and the possibility of concoction was never properly excluded so as to justify the admission of this evidence for the use which the Crown contended it could be put.  It was conceded by senior counsel that the evidence was admissible on the question of character, but he said and he said in the firmest terms, nothing else could it be used for.  It could not be used the way the Crown contended and it could not be used, at least in the submission put by senior counsel for the applicant, in the way that the learned Chief Justice concluded that it could.  It is also, in my submission, important to bear in mind that the learned trial judge came to the same conclusion as senior counsel for the applicant.

Your Honours, there are other references apart from the material I read to the Court which is contained on page 37 of the application book which deals with the nature of the relationship between H and W.  I can take your Honours to those pages but perhaps the - - -

TOOHEY J:   I think your time has expired, Mr Byrne.  The Court will adjourn until 2.15.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

TOOHEY J:   Mr Keleman.

MR KELEMAN:   The question of concoction was dealt with by the Court of Criminal Appeal at page 121 of the application book.  At line 10 the court specifically considered this question, and the court said:

Before examining the nature of W’s evidence, it should be mentioned that it was not put to W in cross‑examination that he and the complainant had put their heads together to fabricate evidence against the appellant.  The witness W had not seen the complainant since 1991.  The complainant’s allegations only came to the attention of the police in 1993, and W’s evidence was that he (and presumably a number of other people who were at school with the complainant at the same time) was approached by a police officer, who asked him whether he knew anything about inappropriate sexual behaviour on the part of the appellant at the school.  W then told the police officer what he later told the court.  The jury were not invited to conclude that W and the appellant had been involved in some form of collusion, or had some common cause against the appellant, and there was no evidentiary basis for such a conclusion.  They had been school friends and companions between 1986 and 1988, they had only sporadic contact between 1988 and 1991, and, according to the evidence, there had been no contact between them since 1991.  There was no suggestion in the evidence either that, at the time of the relevant events, W knew what, according to the complainant, was going on between the complainant and the appellant, or that the complainant knew of the matters of which W gave evidence.

Now, the complainant first complained to his mother in 1991.  That is set out at page 117 of the application book at line 16.  That complaint was made in 1991.  It was raised with school authorities and then later in 1993, at line 26:

the complainant repeated the allegations to his father, and his father raised them with the police.

So, that was in 1993, the last contact with W being in 1991, the alleged offences, of course, occurring in 1987-1988.

Now, the nature of the contact between the complainant and the witness W between 1988 and 1991 was described by the Court of Criminal Appeal as “sporadic”.  So, to suggest that because of their earlier friendship at school there was some possibility of concoction in the absence of any evidence to that effect, we would submit, is specious.

TOOHEY J:   Was there any cross‑examination of W which might be said to raise the question of collusion?

MR KELEMAN:   No, absolutely none.  In support of that submission, perhaps I can take your Honours to the transcript of argument that occurred before the Court of Criminal Appeal.  I have given my friend a copy.  That will demonstrate  - if I can do that perhaps now.  If I can perhaps take your Honours first to page 26 of that transcript, at line 25: the Chief Justice:

GLEESON CJ:  It was never put to W that he concocted this evidence this evidence with the complainant, was it?

BYRNE:  No, it was not.

Then at page 35, at line 20:

GLEESON CJ:  There is no evidence of any contact, is there, between W and the complainant at any time after the complainant’s allegations against the appellant became public?

BYRNE:  There is no evidence about that.

GLEESON CJ:  When would this concoction have taken place?

And this is significant:

BYRNE:  The issue was not traversed.  There was simply no question put about the nature of the relationship leading to the question of concoction, because the question of possible concoction was not addressed.

GLEESON CJ:  You are asking us to say that evidence that was never objected to, was inadmissible on the ground that it was never examined at the trial?

BYRNE:  Yes, because all that needs to be established is the possibility of concoction - the fact the concoction does not need to be established - and on this evidence there is clear support for the possibility of concoction.

There is a further exchange and then at page 37 point 5, line 19:

GLEESON CJ:  Am I right in thinking that there was not a word put in cross‑examination to W that he had ever discussed this matter with W.

TOOHEY J:   Well, that seems to be a mistake, does it not?

MR KELEMAN:   Yes, obviously.  Response:

No, the question of concoction simply was not addressed, although, it was clearly put to the witness W that what he was saying was false.

And it is my respectful submission that that is as high as it goes.  There is no question here of the matter being canvassed in any way during the course of this trial.

So, we would submit that the appellant has in fact conceded that very point.  I cannot take your Honours to any questions which would demonstrate that that matter was even inferentially raised.  Those are the only submissions I can really make in respect of that.

TOOHEY J:   Yes, thank you.

MR KELEMAN:   Do your Honours wish me to canvass any of the other issues?

TOOHEY J:   It is a matter for you.

MR KELEMAN:   We would submit that in any event, even if the question of propensity was raised - and we would submit that that is the only basis upon which the question of concoction could possibly be relevant - that the evidence of W would have been admissible under the propensity principles expounded by this Court in Hock and - - -

GAUDRON J:   I do not think there is any such thing as a propensity principle.  It is quite dangerous to start talking in such terms.  The minute you start asserting there is a propensity principle, people will be letting in all sorts of wildly inadmissible evidence.  I just mention that because it is a fairly complex area of the law and it is quite mischievous to speak of it in terms of that nature.

MR KELEMAN:   I agree entirely with your Honour but that was the way, for example, the majority in Pfennig addressed the evidence.  Right at the beginning of the judgment they refer to it as “Evidence of propensity”.  I know your Honour did not in your Honour’s judgment, but I accept what your Honour says.

The basis for which the respondent says that evidence would have been admitted is set out in the outline of argument at paragraph 2.  I will not take your Honours to that unless your Honours wish me to deal with that.  It is our submission that that evidence of W has the necessary cogency and probative value to warrant its admission under the principles enunciated in Hock and Pfennig, and it arises in this way.  The evidence of W was very significant in the Crown case, obviously, and it was on the basis that S, being the teacher of both W and the complainant, introduced into that relationship these particular practices that involved masturbation but, more significantly, not only did it involve masturbation but it involved such practices in conjunction with the use of a particular lubricant and a certain towel that was left under the bed for a certain purpose.

Now, W gave evidence of that and it corresponded to and fitted in with the evidence given by the complainant in relation to the initial sexual practices that occurred between both the complainant and S.

GAUDRON J:   Was that made clear at the beginning that the evidence was being advanced on that basis?

MR KELEMAN:   By whom?

GAUDRON J:   By the Crown?

MR KELEMAN:   No, it was not.

GAUDRON J:   I mean, different issues might well have arisen.

MR KELEMAN:   The Crown did not put it on that basis.  The Crown just left it in terms of corroboration.  This argument that was put here in paragraph 2 was simply put in response to the proposition asserted by the applicant in his summary of argument.

GAUDRON J:   On what basis could it be corroboration?  The two must run together, surely, in the circumstances of this case.

MR KELEMAN:   If it is admissible as propensity evidence we say it is corroborative and Hock is authority for that.

GAUDRON J:   Let us call it, if it is admissible, as similar fact evidence.

MR KELEMAN:   Yes, thank you.

GAUDRON J:   Or probability evidence, I do not mind, but - - -

MR KELEMAN:   Or improbability evidence.

McHUGH J:   Mr Keleman, the learned trial judge never mentioned anything about corroboration from beginning to end of the summing up, did he?

MR KELEMAN:   That is correct, and he was not asked to mentioned anything about corroboration by the applicant’s counsel.

McHUGH J:   Was he not?  What about at 102?

MR KELEMAN:   All he simply asked was that there be a direction given that W’s evidence did not corroborate.

GAUDRON J:   No, that there is no corroboration whether by W or anyone else.

MR KELEMAN:   Yes, that is so but he did not ask - you see, initially counsel for the applicant asked his Honour not to give a direction in relation to the normal warning one would expect for corroboration.

TOOHEY J:   That was because some charges fell within one section - evidentiary provision and some did not.

MR KELEMAN:   That is certainly the basis upon which counsel sought to put that.  So there was no direction given in relation to the dangers of convicting the complainant on the uncorroborated evidence of the complainant.  So, there was just simply no basis for there to be any further direction given as to corroboration if his Honour took the view that there was no such evidence.  See, the issue, for the reasons stated by the Court of Criminal Appeal, did not arise.

GAUDRON J:   Did the Court of Criminal Appeal proceed on the basis that there had been a direction that the evidence was uncorroborated?  No.

MR KELEMAN:   There was just no direction given at all.

GAUDRON J:   They proceeded on the basis that if a direction had been given on that subject, it would have been that the evidence was capable of corroborating.

MR KELEMAN:   Yes.  The absence of any reference to W’s evidence in the way this case was run favoured W.  That was essentially the line of thinking that was taken by the Court of Criminal Appeal.

TOOHEY J:   Defence counsel said, I think, that there was no corroboration, did he not, in the course of his final address?

MR KELEMAN:   Yes, he did, but in the context of - if one looks at what he said, in the context of there being no eyewitnesses to the events alleged by the complainant.  It was not referred to in the normal way that we normally consider corroboration to be.  If one looks at - I will just take your Honours to that.  It is at page 73 of the application book at line 9.

The fact is that the complainant is entirely uncorroborated, entirely uncorroborated.  Now the importance of that is not simply the fact that it may be dangerous to convict of this sort of offence on the uncorroborated evidence of a man.  But the importance of it is that he describes events which would have to be corroborated, which people would have to observe - - -

McHUGH J:   I will tell you my worry about this case and it is this.  You have a situation where this evidence is in and there are no directions at all about it and one can imagine the jury is out there saying, “Well, of course he did it.  Look, not only did it to the complainant but he did it to W as well.”  Now, if that risk arises, should not a direction be given as to what use the jury is to make of the evidence?  Now, this judge would undoubtedly have taken the view that it was not capable of constituting corroboration and he would have directed it to character.  I do not think it is correct to say that there was a tactical decision by counsel because what appears at 102 indicates that counsel did want the issue raised.

MR KELEMAN:   If in fact that was the case,  all counsel was required to do was ask for his Honour to give a ruling.

GAUDRON J:   On admissibility.

MR KELEMAN:   Certainly, but also in the way in which the evidence was to be used.  Not only that, one would have expected that request to have been made, really, before the addresses took place so that counsel would not tactically find that there were addressing on a particular basis that ultimately the trial judge would not leave open to the jury.  That is the way these things normally occur in trials.

McHUGH J:   I know but this is a criminal trial and true it is the particular counsel involved is one of the most experienced and able counsel that has practiced in this field in many years but even if he did not ask for the correct direction or did not ask for an adequate direction, surely, under Pemble and a hundred other cases, it is the judge’s direction to make sure there is no possibility of a miscarriage of justice.  That is what worries me about this case.  Here is a case where the trial judge himself would have acquitted the accused if he had been the trier of fact and this evidence, to my mind, is probably what convicted this accused.

MR KELEMAN:   The Court of Criminal Appeal, of course, took the view that for tactical reasons counsel decided not to seek those sorts of directions and that - - -

McHUGH J:   I do not think he did, having regard to what he said at 102.

MR KELEMAN:   But certainly as a consequence of that the Court of Criminal Appeal concluded and we say, of course, correctly that at the end of the day the summing up was far more favourable because had in fact W’s evidence been mentioned and referred to in the summing up, then his Honour would have had to have instructed the jury - - -

McHUGH J:   That is true - and there may be an argument as to whether this is corroboration or not.  I think the views probably differ about it.  At the moment, I think it probably was corroboration, but - - -

GAUDRON J:   But perhaps only if they were satisfied beyond reasonable doubt in the nature of this case, that they were positively satisfied that that had happened.

MR KELEMAN:   They were given directions to that effect.

McHUGH J:   If you are going to use it as propensity evidence in some way, which is a possibility - the jury may have used it that way - well, you would want very careful directions.  It just concerns me, and I am not enthusiastic about interfering in criminal trials on respective directions that are never ever asked for in specific terms, but this seems to me to get fairly close to the mark and, even if it does not, it just seems to me the matter was so fundamental that perhaps the judge should have given - - -

MR KELEMAN:   We are just not looking at one failure to seek a ruling or to seek an appropriate direction.  From the very start there was no objection to this evidence, none whatsoever.

GAUDRON J:   Although it was clearly stated that it was not objected to on the basis that it was relevant as to character but there was no concession that it was to be used for any other purpose or could be used for any other purpose.

MR KELEMAN:   There was no response when the Crown indicated that the Crown was also seeking to rely - - -

TOOHEY J:   And no indication by the trial judge, unfortunately.

MR KELEMAN:   There was no indication at all, and that is a difficulty, I accept, that one faces.  But there was no objection to the evidence.  There was this faint reference to the basis upon which defence scounsel ought that it might be relevant.  There was no attempt during the course of the summing up or during addresses to seek a direction, for example, that W’s evidence not be impermissibly used.  So, you have a whole series of failures by the trial counsel to do certain things or seek appropriate directions.  One is left ‑ ‑ ‑

McHUGH J:   I appreciate it, Mr Keleman, and ordinarily, to my mind, that would be just about the end of the matter but this evidence seems to me to be very, very critical, indeed, or may well have been very critical, indeed, if this sort of case where the judge would have acquitted; maybe from the jury’s point of view, it was the evidence of W that was the clincher and it really only went to character, which meant it really did not have a great deal of materiality from the terms of legal issues; from the point of view of a jury, probably was dynamite.

MR KELEMAN:   The way the judge left the issue of character to the jury, the question of W’s evidence was not even raised when the Crown had been seeking to rely on it at least to rebut good character.  So, in effect, if one looks at the summing, the summing up in relation to good character was extremely favourable.  His Honour summed up only in a general sense the evidence that was tending towards establishing good character and nothing else.  But I cannot take it any further.

TOOHEY J:   Yes, thank you, Mr Keleman.  Mr Byrne.

MR BYRNE:   Your Honours, there is only one matter.  If I may refer your Honours to part of the address given by the learned Crown Prosecutor on the question of whether there was a risk that this evidence might be used impermissibly as evidence of propensity and if I could refer your Honours to page 59 of the application book, at line 40 and following where the learned Crown Prosecutor is referring to the evidence of W.  In the final sentence in his reference there is:

Because if you accept that then obviously -

the applicant -

had a predilection and a liking for the company of young boys and for masturbation in their company.

Now, that was dangerously close, in our submission, to asking the jury to use that evidence of W in an impermissible way.  It was never corrected by the learned trial judge.  Those are our submissions.

TOOHEY J:   There will be a grant of special leave in this matter.

AT 2.39 PM THE MATTER WAS CONCLUDED