Bull v The Queen

Case [2000] HCA 24

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

Matter No P62/1998

CHRISTOPHER JOHN BULL  APPELLANT

AND

THE QUEEN  RESPONDENT

Bull v The Queen [2000] HCA 24
11 May 2000
P62/1998

ORDER

  1. Appeal allowed.

  1. Order of the Court of Criminal Appeal of Western Australia made on 19 January 1998 set aside.  In place thereof order that the appeal to that Court be allowed, that the convictions be quashed, and that there be a new trial on each of the counts on which the appellant was convicted.

On appeal from the Supreme Court of Western Australia

Representation:

R G Bayly for the appellant (instructed by Bayly & O'Brien)

R E Cock QC with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

Matter No P63/1998

RODNEY WILLIAM KING  APPELLANT

AND

THE QUEEN  RESPONDENT

King v The Queen
11 May 2000
P63/1998

ORDER

  1. Appeal allowed.

  1. Order of the Court of Criminal Appeal of Western Australia made on 19 January 1998 set aside.  In place thereof order that the appeal to that Court be allowed, that the convictions be quashed, and that there be a new trial on each of the counts on which the appellant was convicted.

On appeal from the Supreme Court of Western Australia

Representation:

R K Williamson for the appellant (instructed by Messrs Williamson & Co)

R E Cock QC with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND HAYNE JJ

Matter No P64/1998

JAMES LUIS MAROTTA  APPELLANT

AND

THE QUEEN  RESPONDENT

Marotta v The Queen
11 May 2000
P64/1998

ORDER

  1. Appeal allowed.

  1. Order of the Court of Criminal Appeal of Western Australia made on 19 January 1998 set aside.  In place thereof order that the appeal to that Court be allowed, that the convictions be quashed, and that there be a new trial on each of the counts on which the appellant was convicted.

On appeal from the Supreme Court of Western Australia

Representation:

R K Williamson for the appellant (instructed by Messrs Williamson & Co)

R E Cock QC with V R Campbell for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bull v The Queen
King v The Queen
Marotta v The Queen

Evidence – Admissibility of evidence – Exclusion of evidence as to disposition of complainant in cases of sexual offences – Whether evidence admissible at common law – Whether evidence excluded by the Evidence Act 1906 (WA), ss 36BA,…

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AGLC
Bull v The Queen [2000] HCA 24
Case
[2000] HCA 24
Decision Date

CaseChat Overview and Summary

The parties in this matter were the appellant, Bull, and the respondent, The Queen. The dispute concerned the admissibility of certain evidence during the trial of the appellant and others for sexual offences. The High Court of Australia was required to determine whether the trial judge had erred in rejecting evidence sought to be adduced by the defence, and consequently, whether the Court of Criminal Appeal of Western Australia had erred in dismissing the appellant's appeal.

The central legal issue before the High Court was whether evidence of a telephone conversation between the appellant Bull and the complainant, which the defence argued tended to prove the complainant's consent and sexual fantasies, was admissible at common law and not excluded by sections 36BA and 36BC of the *Evidence Act 1906* (WA). Specifically, the court had to consider if this evidence related to the complainant's sexual disposition or experiences in a manner prohibited by the Act, or if it fell within exceptions or was otherwise admissible at common law.

The High Court reasoned that the telephone conversation, as presented by the defence, was not evidence relating to the complainant's sexual reputation, disposition, or experiences in the sense prohibited by the *Evidence Act 1906* (WA). Instead, it was considered relevant to the circumstances surrounding the alleged offences and the complainant's state of mind. The court found that the common law, prior to the relevant statutory provisions, would have permitted such evidence, particularly as part of the surrounding circumstances of the offence. The court concluded that the trial judge had erred in rejecting the evidence pursuant to section 36BA, and that the Court of Criminal Appeal had erred in upholding that decision.

The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of Western Australia, and ordered that the appeal to that Court be allowed, the convictions be quashed, and that there be a new trial on each of the counts on which the appellant was convicted.

Orders

Orders of the court

1.

Appeal allowed.

2.

Order of the Court of Criminal Appeal of Western Australia made on 19 January 1998 set aside. In place thereof order that the appeal to that Court be allowed, that the convictions be quashed, and that there be a new trial on each of the counts on which the appellant was convicted.

Background

Background to the litigation

Furthermore, evidence that tends to prove the sexual experiences of the complainant will often tend to prove the sexual disposition of the complainant. If the admissibility of evidence relating to sexual experiences and being part of the res gestae depended on the common law, it would seem to be always inadmissible whenever it also tended to prove the sexual disposition of the complainant. That is because s 36BA prohibits evidence relating to the sexual disposition of the complainant. As will appear, we think that s 36BC authorises the admissibility of evidence relating to sexual experiences even when it tends to prove the disposition of the complainant. But in the face of s 36BA, it is difficult to see how the common law could authorise the admissibility of any evidence which tended to prove sexual disposition even if it also proved the sexual experiences of the complainant.The material facts The appellants were tried in the District Court of Western Australia with the offence of depriving a woman of her liberty and twelve offences of a sexual nature against her. They were found not guilty of depriving her of her liberty and not guilty of eight of the twelve counts concerning sexual offences. The Court of Criminal Appeal (Pidgeon and Franklyn JJ, Ipp J dissenting) dismissed their appeals against the convictions. The complainant testified that, as a result of a telephone call from the first appellant, Bull, she went to his home to have a drink, smoke marijuana, and talk about his recent trip to Russia. When she got there, she found the appellants and another man were there. The complainant alleged that, after drinking vodka and smoking marijuana with the men, she was handcuffed and that the appellants sexually assaulted her in various ways. The appellants alleged that the complainant consented to the sexual activity and that she was never handcuffed. In support of their defence, they sought to cross-examine the complainant on, and tender evidence of, Bull's version of the telephone conversation that caused the complainant to come to the house. The appellants argue that this conversation tended to prove that the complainant came to the house for the express purpose of having sexual intercourse and giving effect to her sexual fantasies. The trial judge rejected the evidence pursuant to s 36BA of the Act. The evidence sought to be adduced was as follows:"Mr Bull: Why don't you come over?Complainant: Oh no, I've got to work tomorrow.Mr Bull:Well you can sleep the night here and then you can go to work from here.Complainant: Oh you should have rung earlier.Mr Bull: Well I did but you were out.Complainant: I was trying to score some drugs, marijuana.Mr Bull:Oh we've got marijuana here if you want to come over and have a smoke I'll teach you to drink vodka Russian style.Complainant: Oh what have you been doing?Mr Bull:We've been to the strippers and that and playing some cards and that. Oh if you come over here we might be able to do one of your fantasies if you want.Complainant: Oh what see two guys sleep with each other.Mr Bull: No the other one.Complainant: Well if I come over will you be awake?Mr Bull: We are.Mr Bull: Have you any cobwebs?Complainant: Oh lots.Mr Bull: Well maybe we can blow them away for you."

Evidence

Evidence Before The Court

In our opinion, the conversation was admissible at common law and was not evidence relating to the sexual reputation, disposition or experiences of the complainant. It follows that the Court of Criminal Appeal erred in rejecting the appeals in so far as those appeals were based on the ground that the trial judge had erred in rejecting evidence of the telephone conversation.The admissibility of evidence of sexual history at common law To understand the purpose and effect of ss 36B, 36BA and 36BC of the Act, it is necessary to understand the state of the law before their enactment and the state of public opinion as to the state of the law before they were enacted. At common law, a complainant in a rape trial could be cross-examined as to whether she was promiscuous[7]. However, a complainant could not be cross-examined about particular acts of intercourse with named men[8]. Moreover, subject to three exceptions, evidence of particular acts of intercourse could not be adduced to rebut her denial that she was promiscuous[9]. Those exceptions were:(a) evidence that the complainant had engaged in prostitution[10];(b) evidence of other acts of intercourse with the accused[11];(c) evidence of other sexual acts constituting part of the surrounding circumstances[12].[7]R v Clarke (1817) 2 Stark 241 [171 ER 633].[8]R v Hodgson (1812) Russ & Ry 211 [168 ER 765].[9]R v Holmes and Furness (1871) 12 Cox CC 137.[10]R v Barker (1829) 3 Car & P 589 [172 ER 558]; R v Bashir [1969] 1 WLR 1303 at 1306; [1969] 3 All ER 692 at 693-694.[11]R v Martin and Martin (1834) 6 Car & P 562 [172 ER 1364]; R v Fitzgibbon (1885) 11 VLR 232.[12]Gregory v The Queen (1983) 151 CLR 566; R v Turner [1944] KB 463. In addition, the common law permitted the accused to adduce extrinsic evidence of, cross-examine upon, and rebut denials in relation to, all the surrounding circumstances of the offence. Those circumstances included the sexual behaviour of the complainant. The exception concerning prostitution was liberally interpreted and was not confined to acts of prostitution as ordinarily understood. In practice, it often exposed the complainant to cross-examination on her whole sexual life. In Krausz[13], Stephenson LJ, giving the judgment of the English Court of Appeal, Criminal Division, went so far as to say:"Evidence which proves that a woman is in the habit of submitting her body to different men without discrimination, whether for pay or not, would seem to be admissible."[13](1973) 57 Cr App R 466 at 474. Evidence concerning the complainant's sexual behaviour which was admissible at common law was regarded as relevant to whether the complainant had consented to the act or conduct the subject of the charge. Common law courts regarded this evidence as relevant for that purpose because they accepted that lack of sexual morality or "lightness of character"[14] made it more probable than not that the complainant had consented to the sexual act or conduct concerned. The common law courts also considered the evidence to be relevant in determining whether the complainant's denial of consent was worthy of belief[15].[14]R v Barker (1829) 3 Car & P 589 at 590 per Park J [172 ER 558 at 559].[15]Thomas v David (1836) 7 Car & P 350 [173 ER 156]; Cargill (1913) 8 Cr App R 224; R v Richardson [1969] 1 QB 299.

Decision

Reasons for decision

GLEESON CJ HUGH, GUMMOW AND HAYNE JJ (dissent) KIRBY J (dissent)
These reasons lead me to return to the task of classification of the evidence, as it is "adduced" or "elicited". The duty of the judge is, in each case, to consider whether such evidence should be classified as "relating to" the "sexual reputation", "disposition" or "sexual experiences" of the complainant. That task, difficult though it may be in a particular case, should be discharged in the way described by Kennedy J in Bannister. Conclusion: the proper approach The Court of Criminal Appeal ought therefore to have followed its own authority in Bannister. In his reasons Ipp J[96] referred to the passage from the opinion of Kennedy J in that case which I have quoted. It led Ipp J to his dissent. In my view his Honour was correct both in his approach and in his conclusion.[96]Bull v The Queen unreported, Court of Criminal Appeal (WA), 19 January 1998 at 12-13. Of course, according to some observers, the complainant's question in Bannister, like the alleged conversation in this case, might be classified, out of context, as showing a general disposition of the complainant to sexual promiscuity and thus as relating to her sexual "disposition" and even possibly her "reputation". But neither conversation was adduced or elicited to show these things. Neither offered evidence of the general stereotyped kind which the sections are designed to exclude. It would be artificial to categorise the rejected evidence in such a way. The key to making the decisions necessary and to classifying the evidence accurately lies, in my view, in observing the distinction drawn by Kennedy J. That distinction secures the purpose which this legislation seeks to attain.Orders In all other matters in issue I agree with Gleeson CJ. In particular, I agree with the reasons which his Honour gives[97] for being unable to accept the "third possible construction" of the relevant statutory provisions propounded by McHugh, Gummow and Hayne JJ[98]. It is for these reasons that I agree in the orders which are common to all members of the Court.[97]Reasons of Gleeson CJ at [24]-[26].[98]Reasons of McHugh, Gummow and Hayne JJ at [102]-[107].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ,

Thus, while the common law regarded a complainant's sexual reputation, sexual disposition or sexual experiences as relevant to issues of credibility and consent, ss 36B, 36BA and 36BC of the Act prohibit evidence relating to such matters being adduced. Those sections appear to forbid any chain of "reasoning" that asserts that, because the complainant has a certain sexual reputation or a certain disposition in sexual matters or has had certain sexual experiences, he or she is the "kind of person" who would be more likely to consent to the acts the subject of the charge. Those sections also appear to forbid the chain of "reasoning" that asserts that, because a complainant has a particular sexual reputation or disposition in sexual matters or has had certain sexual experiences, he or she is less worthy of belief than a complainant without those features. However, s 36BC impliedly authorises the admissibility of evidence of sexual experiences where it is part of the res gestae of the proceedings and expressly authorises it where the court gives leave to adduce such evidence. One of the difficulties arising from the sections is that evidence of sexual experiences will often show the sexual disposition of the complainant. Does this mean that s 36BA prohibits the admissibility of evidence relating to the sexual disposition of the complainant when it would otherwise be admissible under s 36BC?The operation of ss 36B, 36BA and 36BC of the Act All Australian jurisdictions except the Northern Territory have provisions which on their face make evidence relating to the sexual reputation of a complainant inadmissible. They contain no exceptions[21]. The Northern Territory legislation allows evidence of the sexual reputation of the complainant to be adduced with the leave of the court, if the court is satisfied that evidence sought to be adduced has substantial relevance to the facts in issue[22]. As the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General ("the Committee") pointed out, the justification for making evidence of sexual reputation completely inadmissible is that[23]:"evidence of reputation, even if relevant and therefore admissible, is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances."[21]Evidence Act 1971 (ACT), s 76G(1); Criminal Procedure Act 1986 (NSW), s 105(2); Criminal Law (Sexual Offences) Act 1978 (Q), s 4(1); Evidence Act 1929 (SA), s 34I(1)(a); Evidence Act 1910 (Tas), s 102A(1)(a); Evidence Act 1958 (Vic), s 37A(1)(1); Evidence Act 1906 (WA), s 36B.[22]Sexual Offences (Evidence and Procedure) Act (NT), s 4(1)(a).[23]Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code – Chapter 5 – Sexual Offences Against the Person – Report, (1999) at 219. On the other hand, Australian jurisdictions have adopted divergent approaches in relation to evidence of what is variously described as the "sexual activities"[24], "sexual experience"[25] or "sexual experiences"[26] of the complainant. In New South Wales, the admissibility of such evidence depends on whether it falls within specific statutory exceptions[27]. In the other jurisdictions, the evidence is inadmissible unless the leave of the judge is obtained. Admissibility in those jurisdictions is a matter for the trial judge's discretion, although the exercise of the discretion is subject to various conditions laid down by the legislation[28]. Moreover, as the Committee pointed out[29], a further distinction may be drawn within the "discretionary models". In Victoria, Western Australia, the Northern Territory and Tasmania, the sexual experience provisions apply (expressly or by implication) to prior sexual experience between the complainant and the accused. In the remaining jurisdictions, the sexual experience or conduct provisions do not apply to "recent" sexual activity between the complainant and the accused.[24]Sexual Offences (Evidence and Procedure) Act (NT), s 4(1)(b); Criminal Law (Sexual Offences) Act 1978 (Q), s 4(2); Evidence Act 1929 (SA), s 34I(1)(b); Evidence Act 1958 (Vic), s 37A(1)(2).[25]Evidence Act 1971 (ACT), s 76G(2); Criminal Procedure Act 1986 (NSW), s 105(3); Evidence Act 1910 (Tas), s 102A(1)(b).[26]Evidence Act 1906 (WA), s 36BC.[27]Criminal Procedure Act 1986 (NSW), s 105(4).[28]Evidence Act 1971 (ACT), s 76G(3); Sexual Offences (Evidence and Procedure) Act (NT), s 4(1)(b), (2) and (3); Criminal Law (Sexual Offences) Act 1978 (Q), s 4(3); Evidence Act 1929 (SA), s 34I(2) and (3); Evidence Act 1910 (Tas), s 102A(2); Evidence Act 1958 (Vic), s 37A(1)(3) and (1)(4); Evidence Act 1906 (WA), s 36BC(2).[29]Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code – Chapter 5 – Sexual Offences Against the Person – Report, (1999) at 223-225.