BSJ v The Queen

[2013] HCATrans 322

[2013] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M94 of 2013

B e t w e e n -

BSJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 11.38 AM

Copyright in the High Court of Australia

MR C.W. BEALE, SC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in this matter on behalf of the respondent.  (instructed by Director of Public Prosecutions (Vic))

CRENNAN J:   Yes, Mr Beale.

MR BEALE:   Your Honours, this case raises important questions about methodology when assessing the probative value of coincidence evidence.  The coincidence evidence in this case which took the form of similar allegations by four sisters against their stepfather should have been ruled inadmissible because it lacked significant probative value.  Based on the information in the statements and the depositions, there was a real question regarding the risk of joint concoction, but both the trial judge and the Court of Appeal approached that question in the wrong way.  Dealing firstly with the trial judge, can I take your Honours to page 24 in the application book?  The relevant passage appears at line 18:

In assessing the probative value of the evidence sought to be admitted, as either coincidence evidence or as tendency evidence, in my view that the evidence in the depositions must be accepted as true.

That is how his Honour began the analysis of the admissibility of the coincidence evidence.  Now, where similar allegations are relied upon for coincidence evidence and there is a sufficient degree of similarity, three possibilities arise.  The first possibility is that those similarities are explained by the fact that the allegations are true.  The second possibility is that they are lies and it is just pure coincidence that those lies are so similar.  The third possibility is that those similarities arise in Lord Wilberforce’s phrase in Boardman, from “a cause common” to the complainants.

So, the inquiry in relation to whether similarities exist because the allegations are true or because they arise from a cause common to the witnesses does not begin with an assumption that what appears in the depositions is true.  In the Court of Appeal’s judgment - and if I can take your Honours to the application book at page 320 – the error that I have just described in the learned trial judge’s approach was not perceived by the Court of Appeal.  At line 9 they say – line 8:

We can perceive no error in the trial judge’s approach –

Your Honour, returning to the trial judge’s approach to the admissibility of the coincidence evidence and, in particular, the risk of joint concoction, there was a real question and that real question had to be considered to determine whether the court could be satisfied that there was no reasonable possibility of joint concoction.  Now, in undertaking that task, the learned trial judge did not mention - failed to deal with the significance of the fact that one of the complainants, AAV, had complained once before in 1999, some nine years before the second round of complaints.  She had retracted that complaint and she gave us her explanation because her mother had said she would disown her.  Then she was the first to complain in 2008, on 1 May 2008.  Then after a couple of weeks her sister, VLV, complained and then the others complained.

The significance of the fact that she had complained before and retracted was twofold.  Her three sisters knew that when she had been the sole complainant she had ultimately retracted that complaint, said that her complaint was false and that created issues for her credibility if she was to be the sole complainant against her stepfather when the matter reared its head again in 2008.  They would also have been aware that the girls’ mother had threatened to disown AAV when she complained the first time around.  So the need for support for AAV was twofold:  to buttress her credibility and to also assist her in avoiding the consequence of being disowned by her mother.  The trial judge’s ruling does not deal with that issue at all.  It also failed to deal with the significance ‑ ‑ ‑

KEANE J:   Mr Beale, is your contention that the trial judge should have disbelieved each of the complainant’s when they denied concocting their evidence?

MR BEALE:    No, it is not, your Honour.  There are two stages to it:  first of all, when one has regard to the evidence in the statements or the depositions, whether a real question arises.  If a real question arises, then one goes on to consider whether the prosecution has satisfied the court that there is no reasonable possibility of joint concoction.  In this case, you had relationship, the four girls were sisters, and on the material close sisters, and that is not disputed in my learned friend’s reply ‑ ‑ ‑

CRENNAN J:   Does not the Court of Appeal deal with this at paragraph 27, application book 319?  They take the view that “the prosecution had excluded any real possibility of concoction” and then go through various considerations.

MR BEALE:   Yes, your Honour is correct that this is the main paragraph in relation to the issue in the Court of Appeal’s judgment and, in my submission, it is flawed in many respects.  The test as spelled out in Hoch’s Case is not whether there is a real chance of a motive to concoct or a reasonable possibility of a motive to concoct.  It is broader than that.  It is whether there is a reasonable possibility of joint concoction having regard to a number of considerations which include motive of course.  But as your Honour’s will recall in Hoch’s Case, they speak of relationship, they speak of opportunity, and they also speak of motive.  One could add to the list because, in my submission, the High Court in Hoch never intended that to be an exhaustive list of relevant considerations.

If you also have evidence of awareness of the fact of others in the group having complained, if you also have evidence of contact between the complainants where the subject of having complained against the accused is raised, those are all matters that bear on the question.  The absence of evidence of motive or the failure of an accused to identify a motive for the complainants to concoct should be treated as neutral.  I do not gainsay the appropriateness of inquiring is there evidence of motive, but where you have a situation - and this is a matter that is in dispute – where you have a situation where there is an absence of evidence of motive, you do not then jump to the conclusion that there is no reasonable possibility of concoction.  But when you look at paragraph 27, the focus ‑ ‑ ‑

CRENNAN J:   There is a reference there to an “evidentiary foundation”.  It is not simply jumping to conclusions.

MR BEALE:   No.

CRENNAN J:   I must say I am having trouble following your precise complaint.  You are not complaining, I take it, about application of principles – or, sorry, you are not complaining about relevant principles.  You seem to be suggesting some sort of visitation case or ‑ ‑ ‑

MR BEALE:   Your Honour ‑ ‑ ‑

CRENNAN J:   We need I think to better understand what you say are the errors in paragraph 27.

MR BEALE:   Well, if I go to the third sentence:

It was not put to any of the four complainants at the committal that there was any motive to concoct an allegation that the appellant had sexually abused any of them.

The focus of that sentence is motive to concoct.  The next sentence:

There was no evidentiary foundation in the depositions for the proposition that any of the complainants had any reason or motive to concoct their allegations.

Again, reason or motive to concoct is the focus, not the broader question of whether, having regard to things like relationship, opportunity, awareness and contact ‑ ‑ ‑

KEANE J:   But their Honours say at line 25:

While a denial by a complainant of concoction of an allegation is not necessarily decisive, in the present case counsel for the appellant at trial did not seek to cross‑examine any of the complainants on the voir dire with a view to establish that there was a real risk of concoction and, although counsel cross‑examined the complainants at the trial as to the question of concoction, he did not raise again the question of cross‑admissibility.

So that, so far as the voir dire is concerned, counsel left it alone, and so far as the trial was concerned, counsel invited the jury to conclude the question of fact and that was how it was put.  That was how the case was run.

MR BEALE:   Yes, and your Honour, it is my submission that on a fair reading of paragraph 27, there is a focus on the absence of evidence of motive to the extent that that is the be all and end all and decisive factor ‑ ‑ ‑

KEANE J:   Well, no, reason or motive, the plausibility of the suggestion.  There is no reason or motive for them to get together to cook it up.  So the question then is, how plausible is the suggestion that they have got together to cook it up, bearing in mind that the question was left to the jury or was agitated before the jury and the jury’s findings evidently are to the effect that beyond reasonable doubt they were satisfied that they did not.

MR BEALE:   Your Honour, in Hoch’s Case there was no voir dire.  That appears at page 298 of the judgment which is behind the first tab.  But let me summarise, there was no voir dire in Hoch’s Case.  Trial ‑ ‑ ‑

KEANE J:   There was an objection to admissibility.

MR BEALE:   There was an objection to admissibility, but trial counsel did not raise joint concoction when seeking a ruling at the outset that the similar fact evidence be excluded, and your Honour will see that at page 304 about three‑quarters of the way down the page:

The trial judge was not asked by counsel to consider the question and he did not do so.  Sometimes a judge may properly infer from counsel’s failure to raise the question of common cause that it is unnecessary to do so but, in the present case, when counsel stated that he had been briefed late and his Honour had had to adjourn for an hour to allow counsel to prepare an argument, that inference could not be safely drawn.

I just note in parenthesis, your Honours, that in this case at the trial counsel came into the matter late.  It was a different counsel who argued the question of admissibility.  As your Honours will see at – I believe it is page 7 of the application book on the presentment there is a notation that, 1 March 2010, “Ruling.  Defence counsel ill.  Adjourn to” 2 March.  On 2 March, “Defence counsel ill.  Adjourn to” 3 March.  On 3 March, “Defence counsel ill”, adjourn – then “Withdrawn from matter” and then “Adj. to” 9 March.  That is when the trial proper got underway. 

So in Hoch trial counsel did not raise joint concoction when the issue was argued, nor did trial counsel ask the trial judge to revisit his ruling prior to the charge.  The trial judge also warned the jury that it had to consider the issue of conspiracy in the case of Hoch and your Honours will find that just over halfway down the page at 299 of Hoch in the last paragraph, second sentence:

And the evidence given at the trial evoked from his Honour a warning to the jury “of the danger of conspiracy between boys”.

The fact that, your Honours, a jury has found that – or obviously been satisfied that joint concoction was not a reasonable possibility is not the end of the matter.  It was not the end of the matter in Hoch because the original question for a trial judge is always, could joint concoction be a reasonable explanation.  So, not would a jury find that it was a reasonable explanation or a reasonable possibility, but rather could a jury.  So the fact that the particular jury in question rejects that possibility did not lead to a rejection of the appeal in Hoch’s Case.

KEANE J:   But the failure, the flaw in the trial in Hoch’s Case, as is apparent from page 305 of the report in the full paragraph is, “The omission by the trial judge”:

The omission by the trial judge to decide for the purposes of determining admissibility whether there was a real chance of a conspiracy . . . to concoct –

That “was an error in the conduct of the trial”.  It “resulted in the admission of evidence” that “may have been admissible”.  It was a complete failure on the part of the trial judge on the question of admissibility to consider the possibility.

MR BEALE:   Well, your Honours, the fact that – if I can take you to AE’s Case which is behind tab 3, that was a case from New South Wales where Justices Bell, Hulme and Latham found that, even though a trial judge had considered the issue of joint concoction and found that it was not a reasonable possibility, where two sisters were the complainants and who had made the complaints to the authorities whilst they were living in the same house and had contact with each other.  At paragraph 44, the New South Wales Court of Appeal said the trial judge should not have come to that conclusion, that the complainants – and this is at the bottom of the paragraph:

The complainants were sisters and were in contact with one another at the time each made her complaint.

CRENNAN J:   Well, as the Court of Appeal recognised, that is not laying down any general rule that the possibility of concoction exists when complainants are sisters.  That decision reflects the facts in that particular case.

MR BEALE:   Yes, but more than that, in my submission, your Honour, it reflects a correct application of the law which maintains the bar for the admissibility of this sort of evidence at the appropriate height.  One remembers that Lord Wilberforce said in Boardman that the admissibility of similar fact evidence should be exceptional and it is my submission that in this case both the trial judge and the Court of Appeal have so lowered the bar that it is a matter of real public importance for the administration of justice in this State.  Can I conclude with a reference to Palmer’s Case.  That appears behind tab 2 and if I take your Honours to page 9, it is paragraph 9, the last part of paragraph 9:

With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive.  If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.  That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility.  The correct view is that absence of proof of motive is entirely neutral.

Your Honours will also see on page 42 in Justice Kirby’s judgment at the top of the page:

The fact that the accused cannot affirmatively establish, or even possibly nominate, a reason why the accuser should make such a false accusation adds nothing logically to the credibility of the accusation.

If the Court pleases.

CRENNAN J:   Thank you, Mr Beale.  We do not need to call on you, Mr Holdenson.

In his application for special leave to appeal to this Court, the applicant seeks to agitate an argument that raises again the possibility of concoction of evidence by the complainants.  No question of principle arises on the applicant’s argument.  The Court of Appeal’s decision involved the application of settled principle to the evidence.  Special leave is refused.

AT 11.59 AM THE MATTER WAS CONCLUDED