Davidson v The Queen

[2021] HCATrans 4

[2021] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2020

B e t w e e n -

CHARLES DAVIDSON

Applicant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 FEBRUARY 2021, AT 10.00 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the current practice, I will announce the appearances.

MR M.J. McCARTHY appears with MR M.J. JACKSON for the applicant.  (instructed by Fisher Dore Lawyers)

MS J.A. WOOLDRIDGE, QC appears with MS S. CUPINA for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr McCarthy.

MR McCARTHY:   Your Honours, can I start by indicating that my estimate is somewhat less than the two hours – I think, perhaps, more like an hour – subject, of course, to your Honours’ inquiries.

KIEFEL CJ:   Yes, thank you.  In addition to this being referred in as an application for special leave to appeal, there is also the question of the extension of time.

MR McCARTHY:   Yes, your Honour.

KIEFEL CJ:   But as I understand the respondent’s position, that can await the Court’s consideration of the merits of the application for special leave.

MR McCARTHY:   I am indebted to my friends for that indication, your Honour.

KIEFEL CJ:   Yes.

MR McCARTHY:   Your Honours, can I say on that topic there was misadventure on the part of those acting for Mr Davidson.

KIEFEL CJ:   Could you speak up a little, Mr McCarthy?

MR McCARTHY:   I apologise.  We neglected to file the affidavit of our instructor – our instructor at that time – in relation to the extension.  It was in the original application book earlier last year but it, by oversight, was left out the current application book which I understand was corrected yesterday.  It is before the Court, albeit lately.  I do not propose to refer to it given what your Honour has just indicated as to the current position.

KIEFEL CJ:   Yes, thank you.

GORDON J:   Mr McCarthy, I have to ask you speak up a little louder if you would, please.  I am having difficulty hearing you.

MR McCARTHY:   I apologise, your Honour.

KIEFEL CJ:   Apart from the fact that this is a rather large courtroom, we have had to extend the Bench for COVID distancing and that makes the wings even harder to hear what is being said.

MR McCARTHY:   I apologise for the number of times you will probably have to remind me ‑ ‑ ‑

KIEFEL CJ:   Do not be worried about bellowing at us, we just like hearing you.

MR McCARTHY:   Thank you, your Honour.  This is, as your Honour has noted, an application for special leave concerning the joinder or rather the non‑separation of in particular three rape counts from 18 indecent dealing counts or sexual assault counts, as they are referred to in the Code.  The question before the Court in particular is whether or not the majority in the Court of Appeal incorrectly applied reasoning from this Court’s decision in Bauer, which specifically addresses the application of the test under sections 97, 98 and 101 of the Uniform Evidence legislation, and in doing so, failed to correctly apply the test that applies ‑ as announced by this Court in Hoch, and confirmed in Pfennig and subsequent cases ‑ in relation to common law concerning in particular similar fact evidence of a coincidence kind.

There is that additional lurking difficulty that arises by reason of the decisions that were focused upon, and in particular the relevant passages of Bauer to which the Court referred, or the majority referred, being principally concerned with tendency evidence as opposed to coincidence evidence, which was the focus of the Crown case underlining the joinder in this instance rather than on separation.

As the Court has well settled similar fact evidence, if accepted, establishes the circumstances to be taken into account for the whole of the evidence, and, because of that, the test for admission is similar fact evidence necessarily on a coincidence basis in particular aligns with the test for finding of guilt in a circumstantial case.  That is for the evidence to coincide, it must be taken into account – sorry, for the evidence of coincidence to be taken into account, or to be admissible, it must be sufficiently cogent to exclude any reasonable innocent explanation open on the evidence, not standing alone of course, but when the evidence is viewed together.

The majority, in this case, focused upon passages of the decision in Bauer which were, in particular, concerned with tendency evidence under the Uniform Evidence legislation and, through phraseology such as “link” and “sufficient line”, harkened to the lesser standard that applies under that legislation.

KIEFEL CJ:   Mr McCarthy, I think it is raised against you that the reference by the majority in the judgment of Justice of Appeal McMurdo to Bauer, particularly at paragraph 13, is really to the logic of probability reason and how the linkage between the circumstances of the various offending conduct is necessary and that is a matter which Justice Boddice takes up in his dissent.

MR McCARTHY:   Yes.

KIEFEL CJ:   I mean, there is a commonality of approach to that aspect of Bauer.  But the majority then goes on to consider the degree of probative force required as a separate issue.  I mean, that is a strong feature of the way in which Justice McMurdo reasoned, I would have thought.

MR McCARTHY:   In our submission, your Honour, it certainly is a feature but it does not dominate over the reliance upon, in particular, those aspects of Bauer, repeated in McPhillamy, which arise from the section 97 test concerning whether or not there is a sufficient connection.  It is not the language of link which is determinative, of course.  It is the focus upon whether there is a sufficient connection.  The passages of Phillips which are drawn upon in that series from paragraph [13] through to paragraph [16] do not express a conclusion as to the test which ultimately must be reached in relation to ‑ ‑ ‑

KIEFEL CJ:   But the quote at paragraph [14] from Phillips contains that part of Phillips which confirms that:

Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”.

MR McCARTHY:   Yes. 

KIEFEL CJ:   So, it is specific connection, it is not just any linkage. 

MR McCARTHY:   Yes, precisely.  And our submissions, your Honour, are not intended to support the weight of an argument that language such as link, or linkage or sufficient link or indeed any variation or similar term, is in and of itself an error.  Rather that what their Honours’ reasons do not reflect, or rather his Honour Justice McMurdo’s reasons with whom Justice Gotterson agreed, reflect is a focus upon the connection rather than a focus upon whether or not that connection rises to the level of excluding innocent alternatives. 

GORDON J:   Can I take up that proposition with you?  Is that not what is addressed when they cite – when Justice McMurdo cites Phillips in paragraph [14] – he is talking about the degree of probative force, it is exceptional, strong degree, he goes through and Phillips – as I think you do not seek to challenge the authority of Phillips ‑ ‑ ‑ 

MR McCARTHY:   No, that is right, your Honour. 

GORDON J:   So, what is wrong with that extract of Phillips being ‑ identifying the principle set out in Phillips? 

MR McCARTHY:   What it leaves out ‑ and to that extent the same criticism may be levelled at the reasons of Justice Boddice, which also do not feature an examination or indeed any direct consideration of at least reflected on the terms of the reasons, of the requirement for there to be no reasonable explanation.  Both the majority, and in dissent Justice Boddice, stop at consideration of whether there is a sufficient connection, link, common features, however described ‑ ‑ ‑ 

KIEFEL CJ:   That might be because that was really the real issue on the appeal there.

MR McCARTHY:   Yes.

KIEFEL CJ:   The level, or degree, of probative force – namely, that it be strong in the way in which you referred to – was probably taken – or maybe to an extent unexpressed – was taken as a given.  The degree of probative force as being strong and exceptional – as referred to in Phillips – reflects what you are saying, does it not?

MR McCARTHY:   Yes.

KIEFEL CJ:  A reference to Phillips would be understood to say that there can be no other innocent explanation.  That is what the strong probative force was to be understood in Phillips.

MR McCARTHY:   Except if the reasoning surrounding that – and in the case of Justice McMurdo’s reasons both before and after – there is, from the text, a suggestion of a focus at a lower level.  That suggestion arises, firstly, from the language which is drawn from judgments that concern a lower test and, secondly, from the particular reliance upon those in applying to circumstances which, we say, do not, in fact, generate – as Justice Boddice said – a sufficient basis for the conclusion that there is no rational hypothesis open.

KIEFEL CJ:   Justice Boddice’s judgment was lengthy because of the approach his Honour took to the facts of the case and the compartmentalisation that his Honour took.  But, the majority’s judgment – found in that of Justice McMurdo – is a short judgment really dealing with what was, obviously, thought to be a short point.

MR McCARTHY:   Yes, and the difficulty, in our submission, arises because the reasons articulate a focus upon a particular – articulate a focus upon a narrow point and do not progress to a conclusion which ordinarily would follow as a matter of necessity, but when an examination of the circumstances is undertaken, they do not justify that next level of conclusion, that no reasonable explanation conclusion, and so the question arises whether the absence of that indicates error.  I accept that there is no express error in relation to that having been disregarded or failed to be considered, and we certainly take on ‑ ‑ ‑ 

KIEFEL CJ:   There is nothing to suggest confusion about what Phillips stood for?

MR McCARTHY:   No, but there is, with respect, a prominence to Bauer, which is, given the portions extracted, perhaps more than that decision. 

KIEFEL CJ:   Is Bauer referred to again after paragraph [13]? 

MR McCARTHY:   The references that come in are to McPhillamy – I am sorry, other than in Justice Boddice’s reasons ‑ ‑ ‑ 

KIEFEL CJ:   No, I am talking about the majority’s ‑ ‑ ‑ 

MR McCARTHY:   But no, the reasoning on the topic consists of those passages from [13] through to [16]. 

KIEFEL CJ:   Which is really a focus on Phillips.

MR McCARTHY:   In my submission ‑ ‑ ‑ 

KIEFEL CJ:   I mean, are you adding together the reference to linkage or connection in Bauer and that found in Phillips, and are you adding them somehow together to say that the reference to Phillips is somehow to be understood in the context of Bauer?  I am just not quite sure what your – how you say the reference to the logic of probability reasoning in the context of the linkage referred to in Bauer is somehow developed or is relied upon to a greater extent than that seen in paragraph [13].  

MR McCARTHY:   Because of the limits of what appears, the submission is that there really is no need, and nothing is added by those references to Bauer.  There is nothing to complain of in relation to the reference in paragraph [14] to Phillips.  It, in and of itself, as your Honour has indicated, may be taken to indicate, as Phillips of course does, dealing with the no reasonable – no rational explanation test.  But, when the passage is bookended with reliance upon whether there is – in the case of Bauer, a sufficient link or a connection which is directed at whether there is that lesser standard of similarity ‑ and, I mean both in [13], what we mean both in [13] and then in the conclusion in [16] ‑ the question arises as to whether or not the consideration at the next stage in fact occurred. 

And the answer to that comes from an examination then of the circumstances which are taken into account, and in particular the extent to which as they are described by Justice Boddice, some of them are general in nature, and others which are significantly different are not treated as such or at least not accepted as such.  In that regard we note that the majority, Justice Boddice and Justice Gotterson, accepted that the rape charges were more serious, and so proceed on the basis of those common features, notwithstanding the significant difference.

So, what is said to be the sufficient link which rises to or generates the substantial probative value, is those common features that are not – sorry, that are separate from the differences of the degree of contact, and, in particular that obvious separation between, on the one hand, sexual assault offences, and on the other hand, rape, which of course is ‑ ‑ ‑ 

KEANE J:   The difference is obvious, as a matter of law, in that penetration is an element of rape.  But, in terms of the accounts of what actually happened and the conduct of the accused, they are just matters of degree in the sense that the hands moved farther in relation to the rape cases.  It is a difference of degree, not of kind.  Yes, the seriousness of the charges are greater but in terms of the probative value of the evidence in relation to modus operandi, I must confess I have difficulty seeing how one treats them as being different in kind.  

MR McCARTHY:   The submission we make is that they are different both at law – as your Honour just observed – and in kind by reason of that question of degree.  There is a significant, albeit matter of degrees, difference between that which is focusing firstly on the genitalia non‑penetrative and penetrative.  That is a significant difference, in our submission.  But more so, of course, in relation to where there is sexual assault…..focusing upon another body part and, of course, the broadest contrast is between, perhaps, count 11 and count 15 – 15 being the rape which is said to have been not at all part of – albeit immediately at the end of – a massage but not at all part of the encounter and not suggested as the other counts concerning HL are to be somehow the subject of the scope of the massage treatment, perhaps by error, perhaps by inadvertence, those sorts of defence issues that arise there is no such proposition available on the evidence that is from the complainant in relation to count 11.

That count – which appears to be accompanied by an utterance which suggests it was intentional sexual contact, is in stark contrast, in our submission, to not just those contacts with the genital area but contacts with the breasts, with the buttocks, that are alternatively the subject of perhaps consent, perhaps mistake as to consent or perhaps accident.  There could be no suggestion that what is described in relation to count 11 occurred by accident or with consent.

So, the differences, whilst in some cases they are, perhaps, very small, in others they are quite significant.  It is the question of joinder of the rapes with each of the sexual assault counts that is to be examined.  That is, with respect, put to one side by the majority when they acknowledge that the rapes are, of course, more serious.

KIEFEL CJ:   When you speak of differences, it has to be difference for what purpose?  It is one thing to acknowledge, as Justice Keane points out, that there is a difference for the purpose of elements of an offence and there would, of course, be differences in relation to the punishment which follows that offence, but if one is considering the differences from the point of view of the probative value of the various complainants’ evidence and the likelihood that they are lying – which is what similar fact evidence is generally about ‑ what is the relevant difference?  I mean, the accounts are all about what occurred on a particular occasion where a particular treatment was meant to be given and the similarities are quite outstanding.

MR McCARTHY:   If I may return to the question of the similarities being outstanding in a moment, but to answer your Honour’s question in the first part, because the question of coincidence does not merely in this case touch upon whether or not the complainant is lying.  Even if each of the complainants was accepted as telling the truth there is, with the assumption that that left the jury with a reasonable doubt, still a resolution of questions of consent or accident, for example, which are not touched upon by whether or not the jury is satisfied that the complainant is truthful and creditable.  It does not exclude whether or not accident arises ‑ ‑ ‑

KIEFEL CJ:   But the evidence of the complainants with respect to rape, the likelihood of their account being correct is supportive of the other complainants with respect to sexual assault.  Why not?

MR McCARTHY:   We say to not a sufficient extent and in this way, using again that example of count 11 and count 15, if it is accepted that a massaging of the upper body included an occasion where without consent the breast of that complainant was touched, that does not fill whatever doubt is left on consideration of the evidence of the rape, if the jury has, as the ‑ ‑ ‑

KIEFEL CJ:   I take your point about the cross‑admissibility from the assault to the rape, but if an account is accepted about sexual assault and it is to various parts of the body and, as has been discussed, in varying degrees of how far the accused was prepared to go ‑ ‑ ‑

MR McCARTHY:   Can I say this, and it may ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ it is just a bit hard to say at what point you say when it becomes rape it becomes – I am sorry, how the basic sexual assaults of various types which take place could not support the notion that the accused was prepared to go even that bit further.  That is really what it comes down to.

MR McCARTHY:   Well, to take if I may your Honour’s language there supporting the notion suggests propensity reasoning rather than conclusion of a coincidence which compels ‑ ‑ ‑

KIEFEL CJ:   Well, it is a step by step process.

MR McCARTHY:   Yes, of course, but therein lies the danger.  If the evidence is not sufficiently compelling to require a conclusion beyond reasonable doubt on a coincidence basis, which was the basis upon which the case was put, the danger is that there is in fact a lurking propensity case which is being advanced but not articulated for the jury and which, of course, was therefore not met.

KIEFEL CJ:   I do not think it could be suggested this is really an area where propensity reasoning is a real danger, is it?  I mean, this is a case where there are not just a couple of complainants.  This is a series of complaints of considerable number that have great similarity.

MR McCARTHY:   We join issue with your Honour in relation to the great similarity and, as Justice Boddice did, we submit that the distinction must be drawn between the conduct which is concerned and the circumstances in which it occurs, because otherwise there is a discounting of however many other customers, or clients, however described, have attended upon this practice, or these two practices, even just over the relevant period, without making a complaint. 

The conclusion beyond reasonable doubt that an encounter of one kind in the workplace necessarily happened as described to be bolstered by an encounter of a somewhat different kind simply because it is in the workplace, in our submission, is little more than ‑ ‑ ‑

KIEFEL CJ:   It is a bit more than in the workplace, it is where opportunities are presented to him.

MR McCARTHY:   Yes. 

KIEFEL CJ:   And he appears to have a kind of a modus operandi.

MR McCARTHY:   Yes, which again introduces the spectre of tendency ‑ ‑ ‑

KIEFEL CJ:   Not necessarily. 

MR McCARTHY:   In our submission, yes, your Honour.  I have forgotten the point I was going to segue to, I apologise.  If I might move ‑ the directions in relation to coincidence not tendency evidence appear at page 17 of the application book through to page 19, and they are consistent with the standard directions in relation to coincidence. 

I simply note that for the record, I do not invite your Honours to go to them now, because they are uncontroversial and in accordance with the directions and the matter proceeded, as we say, on the basis that there was a collection of similar charges, or sufficiently similar charges, to enable the jury to reason with confidence in relation to the necessary conclusion. 

The submission we make is that the Court of Appeal did not move to focus on that essential conclusion and simply proceeded on the basis of those common features being sufficient.  Indeed, that is the language notwithstanding of course what your Honour says ‑ what your Honour the Chief Justice says about Phillips necessarily going to the question of that no explanation – no reasonable explanation test. 

The variation between the evidence is focused upon his Honour Justice Boddice’s reasons and that focus on the distinction appears at paragraph [220] which is page 244 of the book, it is noted that the pre‑trial hearing did not contest joinder but rather was concerned about the separation application, and then the examination that his Honour conducts in relation to the test in Phillips starts at [226] or page 242 of the application book. As your Honour the Chief Justice has already observed, the need for a common linkage is expressly noted by his Honour and cited by reference to Bauer. 

To the extent that his Honour’s reasoning reflects in that reference a similar focus to the majority, if it be the case that his Honour has made a similar error, we say two things about that.  Firstly, given that his Honour’s conclusions was that there was not a sufficient connection and that the evidence did not bear sufficient similarities to proceed, it is implicit, we submit, that proceeding to the next step of the test was unnecessary from that point.

So, in Justice Boddice’s reasoning, where there is also no express dissertation in relation to the no reasonable explanation test, that is as a matter of course, merely because his Honour has concluded at an earlier stage and it is unnecessary to proceed.

The same observation cannot be extended to the majority who, having reached the conclusion as to the quality of various features and the overlap of them, did not take the necessary, in our submission, second step, of reaching a conclusion as to whether or not that evidence excluded reasonable possibilities. 

GORDON J:   Is that right, given the conclusion in [16]?  The Chief Justice has already put to you that it was clearly a short point giving rise to reasons which are reflected in paragraphs [14] to [16], but having identified the requirement that there be evidence of one offence strongly probative in the proof of the other by reference to Phillips in [14], it is that to which he returns in [16] in assessing the very evidence that sought to be admitted as similar fact evidence having set out the directions from the trial judge at [15]. Did he not undertake the very analysis you criticise?

MR McCARTHY:   In our submission, no, his Honour has stopped short. 

GORDON J:   What is he missing, if he is assessing whether or not it is strongly probative in the sense described in Phillips? 

MR McCARTHY:   The conclusion that the level of probative value rises to the point of in fact excluding alternative hypotheses, consistent with innocence.  That additional step is ‑ we accept, of course, with respect, your Honour the Chief Justice’s point on that, but we say that the focus which is introduced by reference to the lesser test and concluded by reference to the lesser test is not defeated by the inclusion of Phillips, or at least that passage of Phillips, which employs the similar language of the question, or rather employs the stage of testing probative force without then going on to enunciate the purpose for which that is deployed in a common law scenario as opposed to under the statute.

STEWARD J:   What you describe as that second step of innocent explanation, was that distinctly and independently put to the Court of Appeal, or was it bound up with the issue of probative force? 

MR McCARTHY:   If I might take that on notice your Honour and return to the topic.

STEWARD J:   All right.  Thank you.

MR McCARTHY:   Nonetheless, the submission we make is – and, of course, I am repeating myself now – that it is the absence of that essential ingredient which is fatal and ‑ ‑ ‑ 

KIEFEL CJ:   It is the absence of that statement ‑ that is really what you are saying, that they are missing a statement to that effect.  But why should not this Court understand the Court of Appeal, there being no other indication to the contrary, to have understood perfectly that the strength of the probative force was that which allows for no reasonable explanation? 

MR McCARTHY:   If there were no other indication, I would accept without difficulty that proposition, your Honour.  We say there is another indication and it comes from the weight given by the majority to the various circumstances, in particular those which are described by Justice Boddice as general in nature, and by the majority having acknowledged that the rape counts were more serious and then focused upon the common features independently of that question of the distinction on the scale of seriousness, or the distinction by reason of a question of degrees.  So, they put to one side that seriousness, in our submission, and then proceed to focus on ‑ ‑ ‑ 

KIEFEL CJ:   They are two separate issues though, are they not?  They are two separate issues.  The question whether or not the Court of Appeal applied the – understood the test of the degree of probative force is one ‑ to be that no reasonable explanation can be seen is one thing.  I think where you move there, you say that is not available because their Honours assumed a degree of probative force when, as Justice Boddice says, the evidence does not allow it to rise to that.  They are separate questions, are they not?  When you are talking about Justice Boddice’s approach to the evidence as saying much of it was general and not specific enough, that is an assessment of the degree of probative force, not the question.

MR McCARTHY:   Yes, but we would describe as, rather than separate questions, a fork in the road on the path.  They have started the assessment of evidence of one and evidence of the other and identified features of a common nature and the strength or significance of those common features, we say giving too much weight to some of those common features which are described as general in nature and having put to one side the distinction between the rape charges on the one and the sexual assault charges on the other as not operative and, in doing so, have demonstrated a failure to move to the second phase or to the conclusion of whether or not the features are such that there is no reasonable explanation.

Had there been a view of the features common and different, which we say was the proper view taken by his Honour Justice Boddice, the conclusion reached would have been that there was no rational explanation – sorry, that the no rational explanation test was not satisfied.  As we say, in relation to Justice Boddice, he does not move to that next stage because it is necessarily ended by the conclusion he reaches whereas the majority, having taken the view that there is a sufficient level of common features, should have continued the exercise to demonstrate satisfaction of the common features.  We accept, of course, if your Honours are against us in relation to whether that is to be read into the judgment, so be it.  We say the combination prevents that reading of it being included.

GAGELER J:   What was the reasonable explanation consistent with innocence?

MR McCARTHY:   Well, in each of the cases, defences were raised, some overlapping, some quite different.  They are summarised in the summing‑up of the trial judge and I will turn that reference up for you in a moment.  But, for example, in relation to just those two which I have already mentioned, count 11 which was the sexual assault of RJ by touching of the buttocks in the course of a massage – I think I said before the touching of the breasts, I apologise – the issues raised there were of whether there was consent within the scope of that particular massage session and whether or not there was mistake as to consent.

In the case of count 15 which was the first rape of – sorry, the rape of EB – the issues left for the jury were whether or not it had occurred by accident – however difficult that may be for the jury that, nonetheless, was the issue ‑ and then, separately, the credibility of the complainant.  If the jury proceeds on the basis that the events described in relation, for example, to count 11 occurred by way of touching of the buttocks in the course of a massage, that does not assist in relation to satisfaction of the required standard for count 15 if you commence from the assumption, as required, that the evidence otherwise did not satisfy them beyond reasonable doubt.

So, the test being, of course, whether you have achieved satisfaction to the necessary standard by excluding those two alternative hypotheses – accident – and factoring in questions of credit – namely, whether or not she is either lying or mistaken, the touching of the buttocks of RJ could hardly have assisted in that regard.  Those are, perhaps, the most extreme examples.  Of course, others where the conduct is very similar from one count to the next in relation to sexual assault, there is no complaint that they were properly joined or that they should have been separated.

But as between any given rape count and any given sexual assault, the question of degrees even taken into account, there is some varying level of assistance when one has regard to what it is that the issues were before the jury.  Where there is a denial, perhaps the coincidence is of more strength, but where across charges there were questions of consent – mistake as to consent – an accident – where the conduct is of little difference through to quite significant difference, it becomes far less compelling and, indeed, stops short of, in our submission, reaching that conclusion of no rational explanation being left open.

The jury could not have concluded that a rape had occurred – a digital penetration had occurred – by reason of the complete satisfaction that a non‑consensual touching of the breasts had occurred in another case, in our submission.  There seems to be – or, at least, we apprehend there to be – no dispute as to the common law test to be applied.  So, I will, as I indicated at the start, abridge my submissions in that regard and we rely on our written submissions. 

The point about including questions of consent, mistake, accident or whatever else the defence issues may be – they being the three prominent ones here, but also including questions of credibility – arises from the decision in Hoch.  At paragraph 53 of our outline, there is an observation of Chief Justice Mason, Justices Wilson and Gaudron, from Hoch – which is at page 295 of the judgment there that:

Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible.  When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies ‑

Here we say, of course ‑ ‑ ‑

KIEFEL CJ:   Mr McCarthy, just to go back to the examples that you gave which you said might be a little extreme, there is another aspect of them, though, is there not?  A consideration of the probative force of the evidence is to the body of the evidence, not to each individual piece of evidence.

MR McCARTHY:   Yes.

KIEFEL CJ:   So it may be accepted that the touching of the buttocks by itself may not be probative or strongly probative of digital penetration or rape, but the question is, is it not ‑ the proper question is, what is the probative force of the evidence as a whole and what that tells you in a case such as this about the credibility of the witnesses.

Now, the approach that you have taken in those examples was not to consider the evidence as a whole and the approach taken by Justice Boddice appears to be to take that body of evidence and then try to divide it up so that the probative force of each aspect of it, as his Honour compartmentalised it, might be seen to lack probative force.  Do you adopt the approach that his Honour took in that regard as a way of assessing the probative force of the evidence as a whole?

MR McCARTHY:   We do adopt his Honour’s characterisation of parts of the alleged offending as different to other parts of the alleged offending in a significant way and not, with respect, for the purposes of compartmentalising or doing any analysis less than examination of the evidence as a whole but for identifying that specific series of differences between each individual sexual assault charge and also the rape charges as being so significantly different that taken as a whole that collection of evidence does not reach the conclusion.  And without suggesting some compulsion that flows from it, it appears that the jury had some difficulty with at least two of those.

KIEFEL CJ:   That tends to show the care with which they were considering the matters.

MR McCARTHY:   Yes, in relation to those, but does not exclude, with respect, that those allegations were of some weight in relation to the indecent assault charges, the sexual assault charges, because of course the difficulty arises not just in whether the sexual assault evidence is used on the rapes but vice versa and, indeed, between each individual count.  It is that individual assessment on each count which we ‑ ‑ ‑

KIEFEL CJ:   It is very difficult to be able to hypothesise on what basis the jury might have not been satisfied to the requisite degree in relation to those two specific counts.

MR McCARTHY:   Yes, and we do not suggest that that is a silver bullet for us by any measure but it illustrates the difficulty of unscrambling the egg, to borrow that phrase, when one has a collection of similar but also somewhat different sexual assault charges joined not just as between each other but then with what are described by each member of the court as more serious charges in the rapes. 

So it is that complexity which the exercise of identifying how that evidence sits together which introduces the danger of tendency or propensity reasoning but does not necessarily compel a conclusion on the coincidence ground.  It is that lack of articulation of a conclusion to the necessary standard on the coincidence basis and that confusion – I use that word perhaps inappropriately – of a collection of different pieces of evidence in relation to the sexual assault and rape charges, which leaves open, in our submission, whether or not the court has focused on the wrong test.

And that is raised, of course, by the references to Bauer, which, with respect, really serve no purpose if one simply proceeds on the basis of the test as outlined in Phillips.  The question asks, rhetorically, why have they done so?  Why not simply start with Hoch, and Pfennig and Phillips?  Bauer is, of course, a recent decision of this Court, as is McPhillamy, but in that process, even, McPhillamy being cited merely in the footnote, or only in the footnote, at paragraph [15], I think it was ‑ [13], I apologise, [13] is the reference to Bauer, and then the subsequent decision of this Court in McPhillamy, those two passages which are cited, [31] and [13], also go to – excuse me, your Honours, also go to this question of a sufficient link.  Paragraph [31] is the second last paragraph, this is page 522 of the joint book of authorities, [31] is the last paragraph of the reasons of your Honour the Chief Justice, Justices Bell, Keane and Nettle, where it is said:

Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.

That is the first passage, which is footnoted at the conclusion of Bauer, and suggesting a following‑on of the reasoning process from Bauer to McPhillamy as operative on the mind of, with respect, his Honour Justice McMurdo.

GORDON J:   Addressed to the identification of the connection.

MR McCARTHY:   Yes.

GORDON J:   Not the probative force, at that point, just the manner in which you might identify the connection.

MR McCARTHY:   With respect, your Honour, it may ‑ we accept that it may be taken that way, and as I said before, if your Honour has reached that conclusion, that his Honour Justice McMurdo proceeded on that basis, we cannot say more than we have.  The other reference is in [33], which is in the opening paragraph of Justice Edelman’s reasons, where again the relevant part, agreeing with the majority ‑ the plurality, I should say, is that:

These reasons concern why the features of the appellant’s alleged tendency conduct with other persons, “B” and “C”, were not sufficiently “linked” –

And that reference there is footnoted as arising from the Court’s language of Bauer in relation to section 97, as his Honour then identifies, because of its significance to that significant probative value test for the purposes of section 97.  Again, we ask rhetorically, why it is that the focus falls upon the section 97 tendency evidence test at that lesser standard at all given the clarity of the line of authority from Hoch, Pfennig and Phillips.

Some support for that focus being inappropriate and indicative of error arises from the decision of Ellis in the New South Wales Court of Appeal and, in particular, the observations of Chief Justice Spigelman.  This appears at paragraph 20 of our outline.  There, in relation to the no rational explanation test and in relation to section 97 his Honour said that the less demanding criterion or the less demanding test, as referred to in this Court in Bauer, was intended to lay down a set of principles to cover the relevant field to the exclusion of the common law principles previously applicable.

With respect to his Honour, if that is correct, and we say it is, then why need there be any reference at all and reliance upon those principles when, in fact, what is called for is a strict application of the common law test?  That raises, we say, the spectre of error in the absence of an express application of the test. 

The reference to his Honour Justice McMurdo acknowledging in paragraph [16] that the rape offences were more serious arises in the context of his Honour then proceeding immediately to express in these terms:

In my view, however, there was a sufficient link between the rape offences and the other offences as to make the evidence of one offence strongly probative in the proof of another. 

What his Honour then does is to identify as operative, in our submission, the common features as argued by the prosecution set out in the passage that appears above in [15] of the judgment as having demonstrated that sufficient link and, in particular, describes them in this way, all being committed in relevantly identical circumstances against an unsuspecting and vulnerable complainant and with the apparent belief by the appellant that the complainant would find the experience to be agreeable or, at least, would not complain.  Not in a concluded way but, nonetheless, to an extent, that overlaps with considerations which would be relevant on a tendency or propensity basis but ‑ ‑ ‑

KEANE J:   But that is inevitable, the pattern of conduct for modus operandi cases.  Of course, the evidence has both, it has both effects.  It has probative force in both respects.  That is perhaps the point of the reference to Bauer because Bauer is a pattern of conduct case.  A pattern of conduct which, it has to be said, is less compelling to a considerable degree than the pattern of conduct in this case.

I mean, in this case, you have got the evidence of the rapes, which is quite powerfully suggestive of intentional, that is to say, not inadvertent or mistaken conduct, engaging in sexual touching, in circumstances where the perpetrator is supposedly providing a massage, which necessarily involves a degree of intimate touching, but not the degree of intimate touching in which he deliberately engaged.

It is evidence that tends strongly to suggest that his conduct of which the complainants complained was not inadvertent, was not mistaken, was deliberate, was taking advantage of the opportunity afforded by the circumstances of his profession.  These are aspects of cases that are concerned with patterns of conduct or modus operandi, and that is what distinguishes them from cases like Phillips, and Hoch and Pfennig. 

MR McCARTHY:   With respect, our submission is that those common features, which largely fall under the umbrella of what his Honour Justice McMurdo describes in paragraph [16] as having been committed in relevantly identical circumstances, are more properly described, as Justice Boddice does, as general in nature, and it is the specifics of the individual conduct on the rape counts that provides an operative distinction.  As I say, with respect, if your Honour is against us on that point, we appreciate the difficulty.  But it is ‑ ‑ ‑

KIEFEL CJ:   I am sorry, have you finished answering Justice Keane?

MR McCARTHY:   I was simply going to conclude in this way.  It is with, respect, reflected in that approach in paragraph [16] that his Honour Justice McMurdo first put aside, or put to one side, the significance of the rapes being more serious and instead focused on the occurrence in identical circumstances, and we say inappropriately because of their general nature. 

KIEFEL CJ:   Mr McCarthy, it is not to be forgotten, of course, that ground 2, which is what his Honour Justice McMurdo was dealing with, involved – sorry, grounds two and three, were respectively concerned with a wrongful ‑ alleged wrongful refusal to allow ‑ to refuse separate trials and allow a joinder, and the ground 3 was that the trial miscarried because they were not probative of each other.

Now, in relation to the first – I am sorry, in relation to both, Justice McMurdo points out that the essential question is of sufficiency of connection, and true it is that his Honour does not go on to deal with the probative force of each.  His Honour seems to be saying at paragraph [11] that the sufficiency of connection, which of course would feed into probative force, was the key question on the appeal.  Would you agree with that as the correct approach? 

MR McCARTHY:   Yes, we say in our outline at 22 that dealing with the questions in that composite manner was the correct approach and, indeed, Justice Boddice took the same approach. 

KIEFEL CJ:   Yes.  That, to a large extent, may explain his Honour’s focus on connection, and to take the probative force is really that which was understood by the parties and whether or not having found the sufficiency of connection to be such as might allow for the strongly probative force that the authorities refer to. 

MR McCARTHY:   Yes, but again it requires, in our submission, the same reading in of an intention to include the ultimate step in Phillips, notwithstanding that it does not appear and notwithstanding that there is that preliminary focus at a different test.

KIEFEL CJ:   Yes, I understand your submission.

MR McCARTHY:   It is consistent with the approach taken later on, we would say, but not necessarily advancing the conclusion.  Your Honours, I think I have covered everything I wish to speak.  We, of course, rely on our written outline.  If pleases the Court, those are our submissions.

KIEFEL CJ:   Thank you Mr McCarthy.  Yes, Ms Wooldridge.

MS WOOLDRIDGE:   May it please the Court, none of the members of the Court of Appeal approached the statements of this Court in the R v Bauer (2018) 266 CLR 56 as having changed the standard of admissibility of similar fact evidence at common law. Further, in our submission, no error is evidenced merely by the Court of Appeal members having referred to the statement of this Court at paragraph 58 of that judgment.

The use of evidence for the purposes of ‑ for which coincidence or tendency evidence may be used is not itself new and therefore, whilst the legislative framework enacted under the Uniform Evidence Act legislation must be considered, the body of jurisprudence that existed before then is still of some relevance.

To that end, in making the subject statement at paragraph 58 of the judgment of this Court in Bauer, this Court referred by way of authority to two earlier decisions of this Court involving the application of common law principles, those being HML v The Queen (2008) 235 CLR 334 and BBH v The Queen (2012) 245 CLR 499, the latter being an appeal from the Queensland Court of Appeal.

Earlier, within the judgment also, at paragraph 52, the Court had expressly articulated that the discussion in HML v The Queen, despite having been determined with reference to common law principles, may still be relevant when considering whether evidence is of significant probative value under the Evidence Act (Vic), notwithstanding the acknowledged less demanding criterion under the Act than exist at common law.

It follows, in our submission, that the statements of this Court in the R v Bauer and other cases involving a consideration of equivalent legislative provisions which exist in other Australian jurisdictions may be considered illustrative or useful in illuminating the applicable logic of how evidence may be probative in a particular case, and it is in effect, in my submission, for that sole purpose that that reference was made to the statement of this Court in Bauer by way of effectively introductory proposition.

However, even if that were not to be accepted, we submit that the applicant’s submission before this Court places too much emphasis, or significance, on his Honour Justice McMurdo’s utilisation of the term “link”.  It is submitted that as it was used here, by his Honour, the use of the term may be seen as but another way to express the requirement for there to be some nexus, or connection, in order for such evidence to be probative.

Consistent with that, as your Honour the Chief Justice has already identified, his Honour Justice Boddice also referred to the need for common linkage and that such need had been recently reaffirmed by this Court in that passage at paragraph 58 of the Court’s decision in Bauer. That is at paragraph [226] of the reasons of his Honour. The use of the term does not therefore, in our submission, require a conclusion that his Honour Justice McMurdo or, for that matter, his Honour Justice Boddice misdirected himself in effectively considering whether the evidence would be admissible under the Uniform Evidence Act provisions.

As courts have often observed, legal jargon may be useful as a shorthand means of conveying more complex propositions, but it is always essential that the significance of recourse to such jargon not obscure the underpinning principles and, as I understood my learned friend’s submissions at least before the Court today, as much is accepted by the applicant.

Any submission that his Honour Justice McMurdo relied on R v Bauer as a finite statement does not provide, in our submission, a complete picture of his Honour’s process of reasoning. In paragraph [14] of his Honour’s judgment at pages 209 to 210 of the core appeal book, after referring to the need for the link between the facts and circumstances of each offence to have:

a degree of probative force which warranted its admission, notwithstanding its . . . prejudicial effect –

his Honour proceeded to speak to what that degree of probative force required was and his Honour identified it to be that as prescribed by this Court in Phillips v The Queen (2006) 225 CLR 303. The passage his Honour referred to is that from pages 320 to 321 of the judgment in Phillips.

The passage from Phillips v The Queen extracted by his Honour within paragraph [14] expressly stated a number of legal propositions which can be derived from the well‑established common law principles relating to the admissibility of similar fact evidence and your Honour Justice Gordon, having discussed those with my learned friend and those being set out in the judgment, I perhaps do not need to repeat them here, suffice to say that they indicate expressly that his Honour was mindful of such propositions in his consideration of the evidence in this case.

Consistent with those enunciated principles, his Honour then turned to consider the probative value of the evidence with reference to the issues at trial and the use which the prosecution had sought to make of the evidence.  That commences from paragraph [15] of his Honour’s reasons and his Honour set out a passage of the learned trial judge’s summing‑up which articulated the similarities or common features said to arise on the evidence of each complainant which had been relied upon by the prosecution.

His Honour concluded that the common features of the offending as related to each complainant “demonstrated a sufficient link . . . to make the evidence of one offence strongly probative in the proof of” whether the conduct alleged on another count occurred.  In so concluding, his Honour also referred expressly at paragraph [16] of his reasons to the offences of rape being more serious than the offences of sexual assault and implicitly acknowledging the need to consider what prejudice or risk of impermissible reasoning may arise, but nonetheless concluded the evidence satisfied the standard required for admission.

In that way, his Honour’s process of reasoning, in our submission, was, in fact, consistent with that which the applicant attributes at paragraphs 57 and 59 of the applicant’s outline of submissions as demonstrating that his Honour Justice Boddice, in dissent, ultimately applied the correct common law principles.

A consideration of the probative force of the evidence and whether that probative force was sufficient to overcome its prejudicial effect was, of course, required to proceed on the assumption that the jury would accept the evidence.  The relevant prejudice to be considered was that of impermissible reasoning by the jury, as may be suggested, could arise from someone being charged with more serious offences such as the distinction that may exist notionally – at least at law – and, in some cases, factually, between an offence of rape and an offence of sexual assault.

Here, of course, the distinction legally and factually between the offences of sexual assault and those of rape in the context of the prosecution case as a whole was unlikely, in our submission, to give rise to significant prejudice.  To expand on that, the 18 counts of sexual assaults related to all 10 complainants and span each of the occasions of offending that the jury was required to consider.

The conduct, the subject of a number of the counts of sexual assault, included acts of touching to, or in the area, of the vagina, absent penetration, including touching the outer lips of the genitals being count 1 – as concerned the complainant MQ – touching the outer labia being count 4 – as concerned the complainant EF – touching the genitals near the vaginal area being count 10 – as concerned the complainant KA – touching near the vagina along the genital area being count 13 – as concerned the complainant EB – and touching near the vagina for counts 18 and 19 in relation to the complainant HL.  Each of the counts of rape occurred on the same occasion as offending in relation to the same complainant which the applicant accepts was cross‑admissible in relation to all of the counts on the indictment.

In that context, the effect of the applicant’s position before this Court is it was open and, in fact, correct for the Court of Appeal to conclude that all of the conduct, short of digital penetration, was admissible and cross‑admissible but for where the conduct included an act of digital penetration, even where such conduct occurred in the same context on the same occasion and in relation to the same complainant.

Contrary to the position reached by his Honour Justice Boddice, in dissent, we submit that the circumstances present in this case are readily distinguishable from that in Phillips v The Queen where, for example, the conduct, collectively, was described by this Court to be no more than the unremarkable behaviours of a male teenager.  

The unifying feature of each of the offences, having been committed upon a female complainant attending the applicant for a professional, therapeutic massage service, is not a matter that may properly, in our submission, be described as “general in nature”.  The majority was correct to conclude that the common features of the offending, as outlined in the judgment of his Honour Justice McMurdo, committed in near‑identical circumstances meant that in the context of the issues at trial, the evidence of each offence was strongly probative in the proof of the other.

We submit that to focus on the suggested differences in the mechanics of the acts, in particular the acts of rape, as compared to the offences of sexual assault, which in our submission the applicant’s argument requires, is to ignore that the probative force of the evidence is to be assessed in conjunction with the whole of the evidence, and that is well established under the principles in Pfennig v The Queen, in particular at pages 482 and 483 of the judgment.  It was not necessary, of course, that the particular acts that constituted each of the offences sought to be led in proof of one another were of the same kind for such evidence to be admissible.

The fact that the applicant’s alleged sexual offending against one massage client, or complainant, may not have, on that occasion, progressed, for example, from touching of the labia to involve some degree of digital penetration of the vagina, did not materially affect the assessment of the improbability of similar lies having been told by that complainant, as well as others, in relation to whom the sexual touching may have progressed further.  The majority were, therefore, correct to conclude that no miscarriage of justice arose from the jury being allowed to use the evidence in the way that they were directed.

It is true that the reasons of each of the members of the court, being his Honour Justice McMurdo and Justice Gotterson constituting the majority, and Justice Boddice in dissent, did not expressly refer to whether there was or was not a rational view of the evidence consistent with the innocence of the accused in the context of the prosecution case, and it is accepted that if there had have been such a rational view, then the evidence would likely have been excluded.  That query, however, would have required, and did require, the court to approach the evidence in the context of the prosecution case as a whole, and on the basis that the evidence would be accepted by the jury as true and the prosecution case may be accepted by the jury.

The prosecution case, of course, required the jury to accept the evidence of the complainants that the acts occurred in the way that was

described by each of the complainants, and as the applicant accepts, at paragraph 13 of the written submissions, the trial was litigated on whether the:

acts occurred in the ways described by the various complainants.

Having regard to the evidence and the issues it was led to support, it was, in our submission, self‑evident that if accepted the similar fact evidence was unequivocal in adding to the overall force of the evidence proving each charge.  Having found that the evidence was strongly probative as it did, and considered the issue of prejudice as it did, there is, in my submission, no concern arising from the judgment of the majority that there was a rational view of the evidence consistent with innocence.

It is not the case that such a test is an additional and secondary step to a consideration of admissibility, but rather is itself indicative and consistent with an assessment of the overall probative force, thus prejudicial in nature, of such evidence.  This Court, therefore, in my submission, could and should proceed as your Honour the Chief Justice suggested, on the basis that the court was well aware of the relevant principles to be applied.  Unless there was anything specific, those would be my submissions.

KIEFEL CJ:   Yes, thank you, Ms Wooldridge.  Do you have anything in reply, Mr McCarthy?

MR McCARTHY:   Only to answer your Honour Justice Steward’s query.  We do not have available to us material to say conclusively whether or not that was raised in submissions before the Court of Appeal.  It was touched upon in the written submissions, in the pre‑trial application, but we are not able to assist as to whether it was a feature of the submissions before the Court of Appeal.

STEWARD J:   Thank you, Mr McCarthy.

MR McCARTHY:   There is nothing further, your Honour.

KIEFEL CJ:   Thank you.  The Court will adjourn to consider the course that it will take.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

KIEFEL CJ:   The applicant requires an extension of time within which to bring this application for special leave to appeal.  No error is evident to us in the reasons of the majority of the Court of Appeal of the Supreme Court of Queensland in relation to the issues before it.  No miscarriage of justice could be made out.  There is therefore no utility in granting an extension of time.  The application for an extension is refused. 

The Court will now adjourn until 10.00 am tomorrow.

AT 11.15 AM THE MATTER WAS CONCLUDED