Bull, King and Marotta v The Queen

[1999] HCATrans 342

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P62 of 1998

B e t w e e n -

CHRISTOPHER JOHN BULL

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P63 of 1998

B e t w e e n -

RODNEY WILLIAM KING

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Perth  No P64 of 1998

B e t w e e n -

JAMES LUIS MAROTTA

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 18 OCTOBER 1999, AT 3.28 PM

Copyright in the High Court of Australia

_____________________

GLEESON CJ:   I understand that your opponent from the Crown is still on her way.

MR BAYLY:   Your Honour, I understand that to be the case, from the lack of appearance at the other end of the Bar table.

GLEESON CJ:   We will just wait a couple of minutes.  She will not be long, I am sure.  We will call the matter when she arrives.

MR BAYLY:   May it please the Court.

GLEESON CJ:   The legislation is behind tab 20, is that right?

MR BAYLY:   That is correct, your Honour.

GLEESON CJ:   Call the matter for hearing, please.

MR R.G. BAYLY:   May it please the Court, I appear on behalf of the appellant Bull.  (instructed by Bayly & O’Brien)

MR R.K. WILLIAMSON:   May it please your Honours, I appear for the appellants Marotta and King.  (instructed by Messrs Williamson & Co)

MS V.R. CAMPBELL:   May it please your Honours, I appear on behalf of the respondent.  I apologise for the delay and my learned leader is hopeful to be here as soon as possible tomorrow.  (instructed by the Director of Public Prosecutions (Western Australia))

GLEESON CJ:   Thank you, Ms Campbell.  We will not call on the respondent before 4.15 this afternoon.

MS CAMPBELL:   I am obliged to you, sir, thank you.

GLEESON CJ:   Yes, Mr Bayly.

MR BAYLY:   Thank you, your Honour.  Your Honours, this appeal is in relation to a trial before the District Court held in Perth on 1 July 1997 following which the appellants were convicted each of two counts of penetration without consent, which are counts 2 and 6 on the indictment, which is found at page 1 of the appeal book; one count of indecent assault, which is count 4 ‑ ‑ ‑

KIRBY J:   May I ask, is there a Western Australian tradition that the accused remain as far as possible away from the Crown so that there is this great gulf in the middle of the Court.  I am finding it very difficult to hear you.  Speaking for myself, it would be much easier if you spoke in the centre of the Court so that all members of the Court could hear it.

MR BAYLY:   I would be happy to.

GUMMOW J:   You are in the shadows as well.

KIRBY J:   I am sorry to inconvenience you, but I cannot hear you. 

MR BAYLY:   You are probably better off not seeing me, but here I am. 

KIRBY J:   As long as I can hear you.  It is not seeing you that matters.

MR BAYLY:   Your Honours, as I indicated, the appellants were convicted of two counts of sexual penetration without consent, being counts 2 and 6; one count of attempted sexual penetration, which was count 13; and one count of indecent assault, which was count 4.  That was out of an indictment containing a total of 13 counts.  They were each sentenced subsequently to terms of imprisonment, although that is not of any great consequence.  Bull received eight years.

The facts giving rise to the charges are set out at pages 3, 4 and 5 of the appellant’s submissions but, very briefly and in essence, the Crown case against the three appellants was that on the evening of 17 November 1995 the appellants and one other man by the name of Milan Kitto, who was a witness called by the Crown but was not charged, had been out to a strip club and consumed alcohol.  At somewhere between 11 o’clock and 2 am, and the evidence of that varies depending upon whether you look at the prosecution or the defence case, it does not really matter which time it was – I can give you the appeal book numbers – it is referred to on pages 42 for the complainant and pages 160 and 317.  In any event, after these four had been out as indicated, the appellant Bull rang the complainant, who was a 19-year-old girl with whom he was friendly, and asked her to come around.

It is that telephone conversation which resulted in her coming from her abode to Mr Bull’s house, which forms the basis of this appeal.  I will return to that conversation or that telephone call very shortly.  After receiving the call, the complainant drove her car and went to Bull’s house, taking with her a bong.  A bong, as you are probably all aware, is a utensil for smoking cannabis.  So she took that with her and she arrived at Bull’s house either at 12 or at 2.30, depending on whose evidence you accept as being correct in relation to the time.

KIRBY J:   Forgive my ignorance, but is a bong actually just the pipe or the smoking thing, or is it something that is loaded and ‑ ‑ ‑

MR BAYLY:   No, in this case it was for the purpose of smoking cannabis but it did not have any cannabis in it because the idea was that she would smoke Bull’s cannabis when she arrived and, in fact, it was a large Coke bottle styled into what is known as a bong.  So holes were put in it and bits taken out of it so that you could then use it to smoke cannabis.

When the complainant arrived at the house there was a pornographic video playing in the living room which was visible to her as she walked in.  That is at page 174 of the appeal book.  She sat down at the kitchen table, which adjoins the living area, and smoked cannabis and drank vodka with the three appellants and the man Kitto who I had previously referred to.  That is all referred to by her at pages 51 and 52 of the appeal book.  After drinking and smoking, the complainant says she was handcuffed, appeal book page 55, taken to a sunken lounge room at the front of the house by the three appellants, the fourth man having gone off to bed.  She, according to her, remained handcuffed for the duration of the time over which time the alleged offences took place.  The handcuffing of the complainant was the subject of count 1 on the indictment and, it would be fair to say, was the plank upon which the prosecution based its case that the acts which took place thereafter occurred without her consent.  The accused were each acquitted of count 1 ‑ ‑ ‑

GLEESON CJ:   That is not the ground of appeal which you have been given leave to pursue, and whether he was right or wrong, Justice Pidgeon, in the Court of Appeal, explained the acquittals, as compared with the convictions, upon the basis  that there was no corroborative evidence.

MR BAYLY:   That is so.  May I say, sir, that the only significance of the jury finding about the handcuffs is this ‑ ‑ ‑

GLEESON CJ:   The jury did not make a finding that there were no handcuffs.

MR BAYLY:   No, that is so, but ‑ ‑ ‑

GLEESON CJ:   The jury just held, in the light of the directions they were given, that the Crown had not established beyond reasonable doubt that aspect of that charge.

MR BAYLY:   That is so, your Honour.  May I just say one thing about that as it will come out later in so far as the telephone call is concerned.  Had the jury been satisfied beyond a reasonable doubt about the handcuffing, then so far at least as Bull is concerned, there would have been no question, one would have thought, of him having any prospect of raising the defence of honest, reasonable, but mistaken belief.  And that came out in her Honour the trial judge’s address to the jury in relation to honest reasonable but mistaken belief.  However, given that they did not find beyond a reasonable doubt there was handcuffing, it does leave open, and left as a live issue, in my submission, before the jury that question of honest, reasonable, mistaken belief and is an added reason why the conversation which was the subject of the appeal before the Full Court – or the Court of Criminal Appeal – became so important.

KIRBY J:   Is the way you put it – just let me understand it – that there are various hypotheses that are available from the jury’s verdict?  One is that they simply did not accept that particular element of the charges had been charged beyond reasonable doubt; another is that they did not accept – or is this a point that they did not accept there was any corroboration of that particular count, and another is that they did not believe that the complainant had been handcuffed.  Those are three hypotheses that are available to explain the jury’s verdict.

MR BAYLY:   Your Honour is quite correct.  Each of those hypotheses is open on ‑ ‑ ‑

GLEESON CJ:   Yes.  I was taking exception to your use of the expression “the jury’s finding about the handcuffs”.  The jury made no finding about the handcuffs.

MR BAYLY:   I am sorry if my language was incorrect.

McHUGH J:   Further, it has nothing to do with the case, has it?  The only issue in this appeal is that which appears in ground 2 on page 771:

That the Court of Criminal Appeal was wrong in law to rule that evidence of the sexually explicit contents of the telephone conversation…..was evidence of “the complainant’s disposition in sexual matters”, and not part of the res gestae –

That is the issue for us to decide, nothing else.

MR BAYLY:   It is, your Honour, but, as I said before, in the overall context of the meaning and import of that conversation, one of the issues which Bull could raise is that that conversation went to his reasonable, you might think, if mistaken belief in respect as to whether or not the complainant was consenting. 

McHUGH J:   Is that an issue?  If the issue is whether it is part of the res gestae, that has nothing to do with consent, has it?  Whether or not it is part of the res gestae is whether it is part of the relevant transaction and, it might be said in your favour, that that is to be looked at from your client’s point of view, and not merely what the Crown says.  But that said, is that not the issue?  Was this part of the relevant transaction within the meaning of O’Leary’s Case?

MR BAYLY:   Your Honour, I would not concede that that is the only issue.  I think ‑ ‑ ‑

KIRBY J:   Are you trying to explain to us what the transaction was?

MR BAYLY:   May I put it this way?  It seems to me that the telephone call was relevant to what occurred, whether you call that res gestae or just evidence, that is relevant for a number of reasons.

GLEESON CJ:   If you were not right about that, this question would not arise.  You do not need to have resort to sections like section 36BA or 36BC to exclude irrelevant evidence.  If the evidence were irrelevant, no question of any exclusionary rule would arise.  It would be inadmissible because it was irrelevant.

MR BAYLY:   That is correct. 

GLEESON CJ:   So when section 36BA applies, it can only apply to exclude relevant evidence.

MR BAYLY:   That is correct.  I entirely agree with what your Honour says in respect of that.  I am talking in relation to res gestae the way it is used by his Honour Justice Pidgeon.

GLEESON CJ:   There is a puzzle I have, Mr Bayly, about the res gestae which is referred to in your ground of appeal.  If we look at the relevant statutory provisions, I understand the connection between res gestae and section 36BC.  But just at the moment I cannot understand the connection between res gestae and section 36BA.

MR BAYLY:   In the way that it is put by his Honour Justice Pidgeon, I would tend to agree with your Honour.  It depends whether you are using the word “res gestae” to mean the exceptions that have come under that rule or whether you are looking at a term “res gestae” to incorporate any evidence that is relevant.

GLEESON CJ:   But can we just concentrate on 36BA for a moment.  That is a statutory provision that excludes relevant evidence.

MR BAYLY:   That is so.

GLEESON CJ:   You do not exclude irrelevant evidence on any ground except that it is irrelevant.  That is a statutory provision that excludes relevant evidence of a certain kind, without qualification, as I understand it.

MR BAYLY:   That is correct.

GLEESON CJ:   If the evidence fits the statutory description, the statute demands that it be excluded, is that right?

MR BAYLY:   That may depend upon the interpretation of the words “relating to the disposition”.

GLEESON CJ:   I said if it fits that description.

MR BAYLY:   Yes, if it fits that description, your Honour is quite right.

GLEESON CJ:   It is out.

MR BAYLY:   It seems to me that that is the position.

GLEESON CJ:   No matter how relevant or how important it may be.

MR BAYLY:   No.  The second aspect of our argument is that if that is the position, then if evidence is evidence of res gestae, then it comes within that section.

GLEESON CJ:   Section 36BA?

MR BAYLY:   It is allowable.

McHUGH J:   How can that be?  It seems to me you have got – there are two views one can take about this.  The first is that evidence relating to the disposition of the complainant is inadmissible, full stop.  No exceptions whatever.  However, if it is evidence that merely relates to the sexual experiences of the complainant as opposed to the disposition of the complainant, you can get it in under 36BC if it is part of the res gestae.  Now, that is one view.  Another view may be that 36BA is to be read subject to 36BC and the res gestae exception is just a general exception.  Now, is there any other view besides those two?

MR BAYLY:   In relation to the last one, is your Honour saying that if it is part of the res gestae, that 36B and 36BA do not apply?

McHUGH J:   Yes.  One view is – the view against you is that 36BA completely prevents evidence of sexual disposition being given; no exceptions whatever.

MR BAYLY:   Relating to sexual disposition.

McHUGH J:   Well, relating, but 36BC distinguishes between sexual experience and sexual disposition.

MR BAYLY:   That is correct.

McHUGH J:   And 36BC, on one view against you, would be that if it goes to disposition, you cannot get it in, but if it merely goes to sexual experience, you can get it in if it is part of the res gestae.  The most favourable view to you may be that BC is an exception – that the exception within BC is a general exception of both BA and BC.

MR BAYLY:   What your Honour says about 36BC, on a reading of it, may not be quite correct because if you read 36BC it says:

In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of the defendant unless leave of the court has first been obtained –

That section seems to presuppose that evidence of res gestae sexual experience being part – sorry, evidence of sexual experience being part of the res gestae can be led and is not covered by section 36BC.

GLEESON CJ:   Mr Bayly, I am interested in knowing a little more about these two provisions.  First of all, is there a missing section 36BB?

MR BAYLY:   There is no 36BB.

GLEESON CJ:   I see.  There never has been?

MR BAYLY:   Never has been, no.  Well, I do not think so.

GLEESON CJ:   Was 36BA which, according to the note on this document I have, was inserted in 1985 and amended in 1992, altered substantially in 1992?

MR BAYLY:   No, your Honour, it was not altered substantially in 1992.  There was a substantial alteration from the law as it stood in 1976.

GUMMOW J:   Do we have the text of these sections in their forms in 1985 and in their forms in 1992?

MR BAYLY:   We have the form of the 1976, which changed the common law, and that is found at 21.

GLEESON CJ:   Now, that was a really quite elaborate provision, was it not?

MR BAYLY:   That was. 

GLEESON CJ:   And the provision with which we are concerned seems much simpler and more direct than these earlier elaborate provisions of 1976.

MR BAYLY:   That is so.  Can I say that the original provisions in 1976 seemed to distinguish between proceedings in the Courts of Petty Sessions and proceedings before a jury in the higher courts.

GLEESON CJ:   I have only had a quick look at those 1976 provisions but they seemed to me to have layer upon layer of discretion and exception and qualification. 

MR BAYLY:   That is so, and the discretion and qualification changes from which court you are in.  So that added to ‑ ‑ ‑

HAYNE J:   But for present purposes, the 76 Act, as appears at the third leaf in the bundle beneath tab 21, seems to adopt this tripartite distinction between sexual experiences, plural in this Act, complainant’s disposition, complainant’s reputation in its definition of “restricted matters”, a tripartite distinction that seems at least to find echoes in 36B where it is “sexual reputation”, BA “disposition”, BC “experience”.  It seems to treat those as three separate topics.  Now, does anything turn on that distinction or am I simply inviting attention to a red herring?

MR BAYLY:   Your Honour, I do not think, in the end, anything much turns on that distinction. 

HAYNE J:   But what is notable in the 76 Act is that the res gestae reference was attached to all three.  “Restricted matters” were defined as (a), (b), (c), “excluding any matter included among the res gestae”, as if experiences and disposition and reputation could, in some way, form part of the res gestae connected with an offence.

MR BAYLY:   But 36BC does not exclude matters relating to the res gestae.

HAYNE J:   Just so, but B and BA do.  And it is the notable absence of reference to res gestae in B and BA that my eyes lit upon.  Now, if I am taking you down a rabbit burrow that is of no importance or significance, tell me.

MR BAYLY:   I do not know if you can read 36BC in the way that one is perhaps heading towards, namely that it includes evidence of res gestae, because it does not say that.

HAYNE J:   It is not including anything; what it is saying is, if you have a man charged with, to use old language, indecent assault of three kinds and a rape, yes, you can lead evidence of all of those incidents and you are not somehow barred from leading evidence of the indecent assaults that in time may have preceded the act of rape.  Or, if he is charged only with rape, it may be that you can lead evidence of the preceding indecent assaults that, on one loose description of an event, might be seen as culminating in the rape, unfortunate expression, but ‑ ‑ ‑

MR BAYLY:   That is so. 

GLEESON CJ:   The problem, Mr Bayly, is what has res gestae got to do with section 36BA?  I understand what it has to do with 36BC.

MR BAYLY:   The appellant’s initial position is that this telephone call was relevant, was relevant to the issues. 

GLEESON CJ:   If it were not so, we would not be concerned with section 36BA.

MR BAYLY:   No, we say - the appellant says that it is not evidence of disposition ‑ ‑ ‑

GLEESON CJ:   That is the question, is it not, because on the face of it, if this is evidence relating to the disposition of the complainant in sexual matters, section 36BA seems to provide, without qualification and without any room for judicial discretion, that it “shall not be adduced”. 

MR BAYLY:   That is one way of certainly looking at that section.

GLEESON CJ:   Now, what is the alternative way of looking at it, before we come back to the critical question which is whether this is evidence relating to the disposition of the complainant in sexual matters?

MR BAYLY:   One way of looking at it is that it does not exclude evidence which forms part of the res gestae.

KIRBY J:   But that is hard to advance in the light of (a), the history of the development of the sections and, (b), the juxtaposition of BA and BC.

GLEESON CJ:   Are you submitting to us ‑ and this may be a correct submission, I do not know – that 36BA only deals with evidence which is only evidence relating to the disposition of the complainant?

MR BAYLY:   Yes, I am submitting that, and it is part of my argument that the evidence which was sought to be led is not evidence of disposition, but that is not the point your Honour is making, is it not?

GLEESON CJ:   It may be the answer to the point I am making.  If the true construction of 36BA is that it applies only to evidence which is merely evidence relating to the disposition of the complainant, then I can understand where your argument might go from there.

MR BAYLY:   That certainly is my argument in respect to whether or not the evidence is evidence of disposition.  We are saying that it is not evidence – to use the phraseology in the legislation, we are saying that the telephone call – or portion of that telephone call sought to be led is not evidence relating to disposition.

GLEESON CJ:   Let me come right down to the facts of the present case.  Let it be supposed – and I take this supposition precisely from the facts of the present case – that there was evidence that on some occasion this complainant said, “My disposition in sexual matters is such that I particularly enjoy being handcuffed and having tomato sauce bottles and toothpaste tubes applied to me in a particular fashion.”  Suppose there was evidenced that she said that, because that is what she is complaining happened to her while she was handcuffed, and some other things as well, would that be excluded by section 36BA?

MR BAYLY:   It depends upon the basis upon which that evidence was produced to the court.  If the purpose of that evidence was to demonstrate the relationship between the accused and the complainant, then it would not be evidence of disposition.  So, for example, your Honour, if she said that one second prior to it happening, it would not be evidence of her disposition, the purpose of the evidence would be to demonstrate the relationship between the complainant at that time and the accused person.

GLEESON CJ:   Your answer may be right, but there is a missing premise, and I cannot help suspecting it may be filled in by Western Australian case law.  You seem to be assuming – and the assumption may be correct – that evidence which satisfies the description of evidence relating to the disposition may also have another relevance or be adduced for another purpose, in which case it will not be excluded by 36BA.  You seem to be saying – and you may be right in this – that 36BA excludes evidence which merely relates to the disposition of the complainant.

MR BAYLY:   That is precisely the appellant’s position.

GLEESON CJ:   Now, is there a body of Western Australian case law that establishes that proposition?

MR BAYLY:   Your Honour, I would not call it a body.  There is a case by the name of Bannister, and Bannister can be found amongst the papers and is referred to, in fact, by Mr Justice Ipp in his dissenting judgment.

KIRBY J:   Is it in this collection?

MR BAYLY:   Yes, I am just trying to find the number; No 2.  In that case, your Honours, the appellant was charged with a number of sexual offences.  Both the complainant and the appellant were members of a surf club.  The appellant sought to cross-examine the complainant on the allegation, and adduce evidence, that six days after one of the incidents which gave rise to the charges, the complainant sexually propositioned the appellant in the presence of another with the words “Any hope?”, and any hope, down at the surf club, had a sort of particular meaning, namely any hope of having sex.  The trial judge allowed cross-examination of the complainant but did not allow any further evidence to be called either by the accused person or the independent witness who was sought to be called to confirm that those words had been spoken by the complainant.  In the context of those facts, Justice Kennedy said, at page 317, which is I think on the second page of the report that your Honours have, at the bottom of page 317:

Nor do I consider that the evidence would relevantly be of the disposition of the complainant in sexual matters, so as to be excluded under s 36BA of the Evidence Act –

of course, the section we are dealing with.

Within the context of the case, the evidence on this point would not have been evidence of the complainant’s disposition in the sense of her natural tendency or propensity to act in a particular way.  It would have been evidence of her conduct towards the appellant on a particular occasion.  The evidence was not directed to establishing the general disposition of the complainant as a step in an argument that she acted in a particular way on another occasion, which is what s 36BA renders inadmissible.  It is thus clearly distinguishable from the evidence rejected in Starkey.

And refers to that case.

GLEESON CJ:   There is a New South Wales statute dealing with a similar problem which is in rather different language from this, which talks about evidence which reveals or discloses something about a complainant and that may be a distinction on which you can found an argument.

MR BAYLY:   Your Honour, we would seek to distinguish this case – this legislation from the New South Wales legislation because of the wording of this legislation when it talks to “relates to”.

GUMMOW J:   You say “relates to” means relating only to?

MR BAYLY:   Well, yes – not necessarily.  I think one looks at ‑ ‑ ‑

GUMMOW J:   …..I have been looking at what Mr Berinson said when this was introduced back in 1985, was it, in these materials at tab 35, page 1653 of the Hansard, he said:

The proposed changes will have the effect that evidence of the victim’s sexual reputation and sexual disposition will be absolutely inadmissible on behalf of the defendant.

Then he goes on.

Evidence of the victim’s prior sexual experiences will be admissible in restricted circumstances –

et cetera, and that is 36BC.  Disposition and reputation, which is B and BA, he says “absolutely inadmissible”.  That was the scheme of it.

MR BAYLY:   He also, I think, goes on to say that the legitimate defences will remain open to the accused person.

GUMMOW J:   He says:

The accused person’s legitimate rights will continue to be protected.

HAYNE J:   Let us then look at that in light of the word “disposition” and what was said in Bannister.  If the case the accused would seek to make is that five days before the offence with which he stands charged the complainant made a sexual proposition to him, and his defence at trial is honest and reasonable belief in consent, founded in part on what had occurred between them five days before, one view of sexual disposition would mean that the evidence of what she said earlier is to be excluded.  If that were so, if that is what the legislation has provided, the balance has been struck at a particular point which may seem unusual, but is disposition, in this context, then to be understood as Mr Justice Kennedy seems to have understood it, as referring to disposition in matters sexual generally as opposed to disposition in some way more closely connected with the accused?

MR BAYLY:   I think your Honour is right, that he does seek to say that disposition is as referred to in the Evidence Act, relates to general disposition.

McHUGH J:   He appears to understand it in the sense it is used in the similar facts cases, that is to say it is describing a natural tendency or propensity to act in a particular way.  As I understand his reasoning in Bannister, he says, well, this isolated instance about “any hope” tells you nothing about her general disposition, her general tendency, it tells you about her conduct on this particular occasion.  But that said – and you get a clear case of it in this - some of the evidence that was rejected, do you not, where one of the pieces of evidence that was rejected, how the complainant told Mr Bull that she liked being tied up and slapped on the bottom as part of sexual activity, and that nobody had slapped her hard enough.  Now, that seems to me, clearly, to indicate a tendency in a general way, or propensity.  But what about the particular conversation we are dealing with here, which is the telephone conversation, about the fantasies?

MR BAYLY:   My submission, your Honour, is that Kennedy in Bannister looks at the reason and the purpose for the evidence being tendered and makes a distinction between evidence which is tendered to show that the complainant – the primary use of the evidence is to show that the complainant is of a particular disposition as opposed to the case in Bannister where he is saying, although this may be – he says it is not evidence of disposition because the purpose for the evidence being led is not to show the disposition, it is to show the relationship that she has and what happened on a particular occasion.

McHUGH J:   I am afraid that is not the way I read it.  The evidence of disposition could go to consent.  It could be directly relevant to consent, ordinarily it would be.

GLEESON CJ:   Like, “I like that”.

McHUGH J:   But the statute seems to rule that sort of evidence out.  But if it is evidence of mere experience, for example, that she had had sexual intercourse with a number of other men during the relevant time period, that might get in under 36BC, because it is evidence of sexual experience as opposed to disposition and it is part of the res gestae.  But it seems to me you have to do two things:  you have to exclude this as disposition evidence and say it is merely evidence of experience as part of the res gestae.  So you have a double hurdle to overcome.

MR BAYLY:   Your Honour, I would have thought there was another way in which we could say, this is relevant evidence – and there does not seem to be any argument about that.  Given that it is relevant evidence, the question that then arises is whether it comes within the provisions at all of section 36BC, and we say that it does not, that it is not evidence of disposition because it is not tendered for that purpose.  In other words, you look at the purpose ‑ ‑ ‑

McHUGH J:   The section does not say anything about what purpose it is tendered for.  It just simply says that evidence of disposition is inadmissible.  One can understand why the legislature has drawn this distinction.  Evidence of reputation refers to events not part of the transaction which is the subject of the charge; it is out.  Evidence of disposition is almost always of that kind.  Not necessarily, because you might rely on an admission that she made right in the centre of the transaction.  It would be out, upon one view of this legislation.  But ordinarily, evidence of disposition as in the similar facts case would be referring to facts and events at some point before or after the relevant transaction.

MR BAYLY:   If your Honour was right, as the Chief Justice has pointed out, if, for example, during the course of the sexual acts taking place the girl says, “I like that”, then if you adopt that interpretation of section 36BC, that would be out and you could not give that evidence.

McHUGH J:   You have to do a bit of surgery on the section to get it in, if you are going to leave other evidence out.  You seem to be saying, well, if it is used for some purpose relevant, it is in.  That seems to fly in the face of the whole purpose of the legislation.

MR BAYLY:   The wording of the section is “relates to”, so if the evidence relates to disposition, then it is out.  We say that the evidence which we seek to tender of the telephone call is not evidence which relates to disposition.

GLEESON CJ:   We would not get to this problem if it were not relevant, so your argument must amount to this, must it not, that if it has a relevance other than, or in addition to, disposition, this section does not apply.

MR BAYLY:   That is correct.  It is the submission of the appellant that that is what Justice Kennedy is effectively saying in Bannister, when he says it is not evidence called in a step to call into question the general disposition – he does not put it in those words, in better words than that – but a step to call in the disposition of the complainant generally.

KIRBY J:   Is there not a difficulty for you in the words “relating to”?

McHUGH J:   Yes, that word seems to me to be strongly against you, rather than favourable to you.

KIRBY J:   It is a word of very wide connection and does not require anything more than a relationship of some kind.  What I would like to get clear in my mind is, having regard to the history of this legislation – start again.  Having regard to the common law that existed before, the history of the legislation and the steps that were taken to change it, what is your proposition as to the meaning of 36BA?  You cannot ignore the previous common law because that is what the legislation is designed to change.  You cannot ignore the antecedent legislation because this is the refinement that Parliament chose and you cannot ignore the context of BC because you have to read it in juxtaposition.  If, then, you then come down to focus on the words of 36BA, the words “relating to” are very wide words of connection.

MR BAYLY:   In my submission, your Honours, “relating to” can also mean that the evidence is related to a particular aspect of the case.  It can be put in for a number of reasons and provided the reason does not relate to disposition, otherwise the sections would not make a great deal of sense.  You could not, in the Chief Justice’s example, have evidence of a conversation taking place at the time when sexual intercourse is occurring.

KIRBY J:   You say it does not make a lot of sense, but you would not be ignorant, nor is the Court, of the social and political steps that went behind legislation of this kind.  It was to stop courts inquiring into general disposition, reputation and experiences, and to concentrate on the particular charge in hand.  I mean that is the purpose of this legislation.  You can criticise that and say, well, you understand better what happened in hand when you understand the background, but Parliament has spoken and that is a deliberate step.

MR BAYLY:   But the evidence sought to be led of the conversation is not evidence aimed at and placed before the Court to in some way suggest that the complainant is of a particular ‑ ‑ ‑

KIRBY J:   Is a loose woman.  That is what the strategy of the Act is designed to stop.

MR BAYLY:  In my submission, clearly the strategy of the sections and the amendments that have taken place over the years is to stop that, so that you cannot ask ‑ ‑ ‑

GLEESON CJ:   Is one of the submissions that you make, Mr Bayly, that evidence of consent in rape cases will commonly, perhaps even usually, also relate to the disposition of the complainant in sexual matters?

MR BAYLY:   If you adopt a definition of “disposition” that would include that, then certainly.  If the definition of “relating to”  ‑ ‑ ‑

KIRBY J:   That could not be so.  You could not stop – therefore you have to take a construction which does not lead to that consequence.

MR BAYLY:   If the complainant said, “I want to have sex with you”, on a wide interpretation of section 36BA, that evidence would be excluded, on the basis that it shows disposition to having sex with the accused person, and clearly, that could not be the case.

McHUGH J:   The section talks about “the disposition of the complainant in sexual matters” and that seems to support the construction that Justice Kennedy put on, that it is talking about the natural tendency or propensity of the woman or man in question.  In other words, that particular person always, or almost always, wants to do something sexually in some manner or some kind or some particular occasion.

HAYNE J:   Is its concern with the argument from circumstances or events other than those the subject of inquiry to a conclusion about the events which are the subject of inquiry?

MR BAYLY:   Right, yes.

GLEESON CJ:   Which is a way of saying propensity.

MR BAYLY:   Yes, I agree with that.

GLEESON CJ:   There used to be a line of cases, Mr Bayly, I think they might have come in for some criticism from this Court, where judges used to talk about mere propensity evidence or evidence of propensity that was nothing more than evidence of propensity.  It might be worth your while, over the adjournment, having a look at that line of country.

MR BAYLY:   Those are the sort of cases that arise in relationship evidence, the allowing of relationship evidence in not as evidence of propensity but as evidence to show the full history of the relationship between the parties.

McHUGH J:   The problem is discussed in my judgment in Pfennig.  You will find reference to most of the cases in Pfennig’s Case in relation to the matter the Chief Justice has just raised with you.  It can really be traced back to Makin’s Case, on one reading of Lord Herschell’s opinion in that particular case.

MR BAYLY:   Thank you.  I will take your Honour up on that over the next break.

GLEESON CJ:   Just before we adjourn, I wonder if counsel – and particularly the Crown – could have a look at the bail conditions in this matter and just satisfy yourselves that, depending on which way our decision ultimately goes, and assuming it will be delivered in Canberra in due course, those conditions will operate satisfactorily.

MR BAYLY:   Your Honour, I understand that all of the appellants were intending to obviously appear and we certainly ‑ ‑ ‑

GLEESON CJ:   I was not talking about anything that is going to happen tomorrow, Mr Bayly.

MR BAYLY:   What I am saying is they will be here tomorrow.  If there is a problem with that, they can ‑ ‑ ‑

GLEESON CJ:   I was not talking about that.  Just have a look at the bail conditions and address your minds to the question of the way they would work in practice if we were to deliver judgment in due course in Canberra.

McHUGH J:   Whether they would have to surrender themselves in Perth or in Canberra or as the case may be.  When you look at the bail conditions ‑ ‑ ‑

GLEESON CJ:   There is a time delay, too.  If we were to give judgment at 10.15 in Canberra, I suppose it would be 8.15 here.

HAYNE J:   Or 7.15 if summer time is here.

GLEESON CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 18 OCTOBER 1999