Ellis v The Queen

[2004] HCATrans 311

[2004] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S584 of 2003

B e t w e e n -

DARREN DOUGLAS ELLIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 AUGUST 2004, AT 3.55 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR H.K. DHANJI.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application deals with the application of section 101(2) of the uniform evidence law.  That can be found in the application book at page 101, where Chief Justice Spigelman extracted it.  That is the provision which determines in criminal cases the admissibility of what is called tendency evidence and coincidence evidence adduced against an accused person.  Until this judgment of the Court of Criminal Appeal, the weight of authority in New South Wales was that this statutory balancing test which your Honours can see in 101(2) was essentially the same test as developed under the common law in relation to what is called propensity evidence and similar fact evidence.

GUMMOW J: In what States is the common law still in force? I have looked at section 132A of the Evidence Act (Qld).

MR ODGERS:   Your Honour, the uniform evidence legislation only applies in New South Wales, the ACT and Tasmania.

GUMMOW J:   No, I asked about the common law.  In what States is the common law in its pristine state still in force?

MR ODGERS:   I am sure South Australia would be one, your Honour, and Western Australia, I believe.

GUMMOW J:   There is legislation in Queensland.

MR ODGERS:   I think there is legislation in Victoria but I think that is in relation to separate trials.  It may not relate to the question ‑ ‑ ‑

GUMMOW J: Section 132A of the Evidence Act (Qld) says:

In a criminal proceeding, similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, must not be ruled inadmissible on the ground that it may be the result of collusion or suggestion, and the weight of that evidence is a question for the jury, if any.

MR ODGERS:   Your Honour, that would override the decision of this Court in Hoch.  That is an interesting point.  Can I just deal with that for a moment.  The situation seems to be in New South Wales that in Ellis it was held that the legislation overrode Pfennig but Hoch is still good law in New South Wales, which is a curious ‑ ‑ ‑

GUMMOW J:   So the answer to my question is it seems to me there is a patchwork throughout the country still.

MR ODGERS:   Yes, I think that would be true.  I just want to emphasise the point I am making, your Honour, which is that Hoch was a case which was based on the same principles as formulated in Pfennig.  That is, similar fact evidence would not be admissible if there is a rational view of it consistent with innocence.  In Hoch that applied in a particular way.  In New South Wales now, as a result of this decision, one has the situation where Pfennig is not good law, but in an earlier decision which has not been overturned and indeed was ‑ ‑ ‑

GUMMOW J:   Do they refer to it?

MR ODGERS:   It was referred to in Ellis.  It is the case of OGD [No 2].  It is referred to only in passing by the Chief Justice.

GUMMOW J:   Page 104, is it?

MR ODGERS:   At 104, yes, your Honour, he did.  May I say with the greatest of respect to the Chief Justice, it is rather more complicated than his Honour put it.  When he said at 104, line 45, that “Simpson J, with whom Mason P and Dowd J agreed, expressed her agreement with Hulme J’s comments in Le”, that is true.  She held that you apply the Act, the Act prevails, and no one really disputes that.  She then went on to hold in OGD [No 2] that the common law decision in Hoch was readily adaptable to the Evidence Act.

KIRBY J:   But why are judges doing this?  I just do not understand it.  We have said it over and over again that where an Act applies, whether it is the Native Title Act or anything else, we have to comply with the Act.

MR ODGERS:   Of course, your Honour, and not a single judge ‑ ‑ ‑

KIRBY J:   Lawyers hate Acts.  They love common law doctrine; they love what we say.

MR ODGERS:   The problem is, your Honour, when you say to a judge or a lawyer the probative value has to substantially outweigh the prejudicial effect, their usual response will be, “That’s a very interesting test, but what does it mean and how do I apply it in practice?”  The answer to your Honour’s question is that that balancing test was, and indeed still remains, the test at common law, but that in Pfennig the High Court gave clarity to its application, or at the least developed the law in a way which said you can safely conclude that the probative value outweighs prejudicial effect if the probative value is so high that there is no rational view of it consistent with innocence.

KIRBY J:   It is adding a gloss though, is it not?  It is adding a gloss beyond the statutory words.

MR ODGERS:   The reason why it is different from Papakosmas – Papakosmas held you have a statute that comes along, it is different.  It would be very dangerous to bring back the common law.  We accept that.  The point I was making at the beginning of my submissions was that this is one area where it is clear that the legislature did not adopt what had been proposed by the Law Reform Commission, for a change, but rather adopted what was then understood to be the common law position.

Chief Justice Spigelman at 108, your Honours, of the application book extracted the exposure draft of the Evidence Bill and the explanation relating to that at line 35.  Your Honours will see that in the last sentence in that large quotation there is a reference to clause 101 and it is summarised that it is a balancing test and then it says at line 40:

This safeguard reflects the rule applied at common law in relation to what is conventionally termed “similar fact” evidence:  See Hoch . . . Harriman –

It could not be clearer, with respect, your Honours, that the intention of the legislature was to adopt a rule or a principle or a test for admissibility which was the same as under the common law.

All that judges until this decision were doing was saying if you have the same test in the statute as you have for the common law and the High Court has given guidance to the proper application of the test under the common law, then that is obviously going to be something that we should take into account and will provide considerable assistance in the application of what I think everyone would have to accept.  Even your Honour Justice McHugh in Pfennig would accept that it is a rather difficult balancing test.  I think your Honour said you are balancing incommensurables, and that must be right. 

The majority of the Court in Pfennig provided guidance as to how that balancing exercise is to be conducted and came to the view, with which your Honour Justice McHugh disagreed, that because similar fact, propensity evidence where it reveals other criminal conduct is likely to be highly prejudicial, that before a court can safely conclude that the probative value outweighs the dangers of prejudice or unfair prejudice, that it is necessary to ask the question whether or not there is a rational view of it inconsistent with innocence.  The Court said in Pfennig that by adopting that approach, you are ensuring that not only is it safe to let it in, not only can you be confident that it is going to be a fair trial, but you are really applying a principle rather than an exercise of discretion. 

Returning then to my basic point, it is this.  We say that this is not a case like Papakosmas, it is not a case where the statute had adopted a different approach.  Rather, it is clear that the statute had adopted the same test as under the common law.  In Pfennig this Court recognised that the test at common law was a balancing test and concluded that in order to ensure that the balancing was done appropriately, that the evidence should be so probative that there is no rational view of it consistent with innocence.

GUMMOW J:   Can I just ask you this, Mr Odgers.  What concerns me really is not the Court of Criminal Appeal perhaps as much as Conway.  You have to criticise that as well.  What do you point to in Conway?

MR ODGERS:   Your Honour, Conway says nothing about this problem.  Conway simply held that evidence of relationship was not subject to the Act, that the test in 101 simply did not apply.  Indeed, we call that in our aid. 

GUMMOW J:   They seem to be saying that at paragraph 97.

MR ODGERS:   Yes, that is the submission I make, your Honour, that it is accepted in New South Wales that relationship evidence is neither tendency evidence nor is it coincidence evidence.  Can I just explain why that is.  Tendency evidence in New South Wales as defined is evidence where you are relying on it for a tendency or a propensity inference.  It is not just any evidence that discloses propensity.  So therefore relationship evidence, you are not relying on it for a propensity inference.  It is not tendency evidence.  Indeed, we call this in aid in our argument in that this distinguishes it from Pfennig because your Honour Justice McHugh, with respect, made a powerful argument that it is wrong to apply the Pfennig test to relationship evidence.  In New South Wales, that does not happen because relationship evidence is not tendency evidence, it is not coincidence evidence, therefore on no view could the Pfennig test apply because 101 only applies to tendency evidence and coincidence evidence.

We say that where you have tendency or coincidence evidence which discloses criminal conduct – and bear in mind that tendency evidence and coincidence evidence do not necessarily have to do that – but where it does, that those decisions which have held that it is appropriate to apply the Pfennig test are right.  Equally, we say that the decision of OGD [No 2], which held that Hoch can be readily applied in New South Wales, is also correct.  If special leave is not granted in this case, New South Wales judges will have the difficult task of reconciling those two decisions.  Can I take the Court to OGD [No 2] because we rely on the reasoning, if I might draw it to ‑ ‑ ‑

McHUGH J:   They will not have to reconcile them, will they, because the law is laid down by five judges of the Court of Criminal Appeal?

MR ODGERS:   I am sorry, perhaps I expressed myself wrongly.  My argument is that it is impossible to reconcile the decision in Ellis and the decision in OGD [No 2] and that when Justice Simpson in OGD [No 2] said that the principles ‑ ‑ ‑

GUMMOW J:   Your complaint is that the court in this case wrongly thought that you could?

MR ODGERS:   Yes.  Our complaint is also that ‑ ‑ ‑

GUMMOW J:   And that that is going to rise to further trouble?

MR ODGERS:   Yes, your Honour.  We also say that the court in this case wrongly thought that Papakosmas principles required the result which we say is not the position, that where the legislature has chosen the same test as at common law, then it must follow the guidance provided ‑ ‑ ‑

GUMMOW J:   I understand that, but can you just tell me, looking at the text of 101(2), how you read or do not read Pfennig into those words, “unless the probative value . . . substantially outweighs any prejudicial effect”?

KIRBY J:   “Such that no rational view”.  You have to start adding your little gloss.

MR ODGERS:   Your Honour, the first step in the argument ‑ ‑ ‑

KIRBY J:   In America all the judges would do would be to tell them what the Act says.

MR ODGERS:   Yes, I understand that, your Honour.  I really call in aid the reasoning of the majority in Pfennig and I say that if that reasoning is ‑ ‑ ‑

GUMMOW J:   That was in another country.  That was the world before the 1995 Act.

MR ODGERS:   Pfennig was decided in 1995, yes, but true it is, your Honour.  I rely on the reasoning in Pfennig which was that the common law test is that the probative value must clearly outweigh prejudicial effect.

McHUGH J:   I know.  For more than 40 years I have just taken the view that they are incommensurables, that one just cannot ‑ ‑ ‑

MR ODGERS:   I understand that but, with respect, your Honour was in the minority in Pfennig.

McHUGH J:   I know, but the statute requires it to be done now.

MR ODGERS:   Quite, so we do not need to get into that debate.  That was the starting point.

GUMMOW J:   You give some colour to “substantially”, do you?

MR ODGERS:   No, your Honour, I do not.  I say that there is no substantive difference between the 101 formulation and the common law test, which is that the probative value must clearly outweigh the dangers of prejudice with the evidence.

GUMMOW J:   You keep using this word “clearly”.

MR ODGERS:   That was the language that Justice Brennan used in Harriman.  It was also language in Hoch.

GUMMOW J:   I know, but the statute says “substantially”.

MR ODGERS:   I understand that, your Honour.  Can I say two things about that.  One, it is unlikely that the legislature intended that by that word it was to have a significant difference from “clearly”.  Secondly, even if your Honours are not persuaded by that, the statutory test is likely to be more restrictive than “clearly”, in which case, if the evidence would be inadmissible at common law, we say it should also be inadmissible under a more restrictive test under the statute.  That is the second argument.

Can I return to the logic.  In Pfennig the majority of the Court began from the premise that it is a balancing test, that probative value must clearly outweigh prejudicial effect.  Then the Court concluded that one could only safely reach the conclusion that the balance favoured admission of the evidence where the probative value reached this high level.  No one disputed that mere relevance is not enough, no one disputes that there should be some strong probative value.  The question is how strong.  In Pfennig the majority took the view that because of the inevitable risk of prejudice with this kind of evidence, which means that you are going to have significant prejudice on one side of the equation.  In order to safely conclude that probative value clearly, and I say the same is true with “substantially”, outweighs that risk, you could only confidently say that the balance favoured admissibility if this level of probative force that I have constantly referred to is complied with.

McHUGH J:   If special leave is granted, you might go backwards in this area of the law.

MR ODGERS:   That is a risk we would have to live with, your Honour.

McHUGH J:   Justice Dawson was the driver of this starting with Sutton, and all those Justices who adhered to that test are no longer on the Court.

MR ODGERS:   Your Honour, I understand that and I understand that your Honour might find that you become in the majority and that this has consequences more broadly.  We simply begin from the premise that the legislature intended the statute to essentially reflect the common law.  If the common law changes, so be it.  Judges in New South Wales are in a difficult position now.  All they have is a balance, and at least the preceding authority gave real guidance, made it a lot simpler for judges, made it easier for lawyers to predict outcomes, for trials to proceed ‑ ‑ ‑

KIRBY J:   How would that have worked in the facts of this case?  Let us get back to something concrete.  There did appear to be a pattern of the way somebody removed the panes of glass.

MR ODGERS:   Yes.  Your Honours, we accept that there was a pattern, that there was a similar modus operandi.  We do not accept that it was so strikingly similar that the inevitable conclusion was that the same person committed all the offences.

KIRBY J:   There was some evidence in your client’s favour such as the person who did not see the tattoos, and apparently he has a lot of tattoos.

MR ODGERS:   Yes, that is right.  Can I make what we regard as a more powerful point.  Let it be assumed that he was guilty of some of these offences.  That does not mean he is guilty of all of them.

KIRBY J:   That is the risk, is it not, that you lumber – the police say, “We’ve got all these things to clear up” and lumber them all in ‑ ‑ ‑

MR ODGERS:   “Similar modus operandi.  We’ve got a strong case in some of these counts.  We’ll put them all in.  What’s a jury going to do?”

KIRBY J:   That is the merit from a social policy point of view of the Pfennig approach.

MR ODGERS:   With respect to your Honour Justice McHugh, it is the merit of the majority’s approach which is that, while your Honour said that prejudicial effect will vary from case to case, the majority is saying if it is disclosing criminal conduct and it is propensity or similar fact evidence, it is likely to be so prejudicial that we think that a general approach should be you do not let it in unless it meets this high level of probative force.  So they have come to a general view as to the dangers.

KIRBY J:   It really goes back to the common law’s insistence on the individuality of offences and that they should all be proved individually beyond reasonable doubt in individual facts and not just run them on together.

MR ODGERS:   Yes, and the dangers of propensity reasoning, the dangers of a jury ignoring the possibility that somebody else with the same propensity committed the offence, that the ‑ ‑ ‑

KIRBY J:   Or that it is a not uncommon propensity in that particular field of crime.

MR ODGERS:   Quite.  In Sutton it was rapes of a very precise kind, a very specific kind, and there is going to be a small category of people who are going to be doing that, but here we are talking about break and enters.  True it was, and it was unusual ‑ ‑ ‑

KIRBY J:   Break and enter in country towns are common, removal of glass.

MR ODGERS:   Certainly, your Honour, but with a screwdriver.  Can I also make the point – we have made it in the reply.  I see the red light and obviously I am on my last point.  There was a real possibility in this case that people that the accused knew or related to had committed some of the offences.  For example, the only evidence other than the similar fact evidence in this case in respect of counts 1 and 2 was that the stepfather had rented a car in Sydney and it could have travelled the distance.  That was it; the only other evidence.  One possibility, a rational view of that, is that the stepfather committed the crime.

McHUGH J:   It is almost 4.15, Mr Odgers.

MR ODGERS:   I am sorry, your Honour, I got carried away.

McHUGH J:   Yes, Mr Smith.

MR SMITH:   Your Honours, the first thing we would like to clear up is that the OGD decision does not confirm the continuing existence of Hoch.  Justice Simpson at page 442 of OGD [No 2] 50 NSWLR 433, which my friend has put in his case list, in paragraph 52, after summarising the changes brought in by the Evidence Act 1995, says:

Senior counsel for the appellant went so far as to argue that Hoch stands as an independent, free standing rule of law or evidence . . . 

I would, nevertheless, reject the appellant’s argument.  In my opinion, in New South Wales, Hoch has been overtaken by the Evidence Act, and is to be applied only in the context of and subject to the provisions of that Act.

GUMMOW J:   I am not sure what that means.

MR SMITH:   No, on its own, and I am coming to something else.  At page 447, after referring to the decision of Colby in which the President, who was also on this case, wrote the leading judgment where Hoch was applied, her Honour says in paragraph 77:

Where, in relation to evidence that is capable of disclosing a tendency on the part of an accused person (whether or not it is tendered for that purpose and is accordingly properly characterised as “tendency evidence”) and the Crown fails to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence must be excluded.

GUMMOW J:   It misstates the section too.  It just says “outweighing”.

MR SMITH:   Yes.

However, the reason for doing so lies in the case of tendency evidence properly so-called, in s 101(2) of the Evidence Act, because of its reference to “probative value” outweighing “prejudicial effect”; and, in the case of evidence not tendered for that purpose, and therefore not tendency evidence for the purposes of s 97, in s 135 and s 137 of the Evidence Act, and not in a rule of general application enunciated in Hoch.

In our submission, the discussion about Hoch is limited to concoction.  I submit that Justice Simpson is saying that when you are looking at a sexual assault case particularly where concoction is alleged, the Court is entitled to look at the principles discussed in Hoch, the possibility of concoction, in applying sections 135 and 137.  But she was quite clear to say, we submit, that so far as the tendency and coincidence provisions are concerned, that the Evidence Act has pushed out Pfennig and pushed out this extra requirement, this extra hill that the Crown has to get over, which is that you have to apply what a jury has to apply to that type of evidence to evidence where they have to find that there is no rational hypothesis consistent with innocence.

In Pfennig that is basically the test that made the bar so high that the majority said that there has to be a satisfaction in the trial judge before it even goes to the jury, that there is no reasonable hypothesis consistent with innocence.  That is a very high test and we would submit that on the wording of section 101, there is clearly not an intention by the Parliament to impute that, to put that extra bit in.  The question of substantial probative value or weight is a high test and so, because of the potentially prejudicial influence of tendency evidence and coincidence evidence, there is a higher test than there normally is for admissibility of other types of evidence.

In this case the Crown did not rely on the tendency or coincidence evidence, we submit, to identify the accused.  What it did was to say that if the jury looks at those 11 offences, they can only come to the conclusion that one person committed them because of the method used.  Then, with other evidence in the case, circumstantial evidence pointing towards this accused, sometimes stronger than other times, for example, in some cases his mobile telephone was used in the vicinity of a country town such as Yass or Wagga where this particular offence occurred.  On those occasions he had also used the hire car rented in the name of his stepfather.  On other occasions the fiancée’s car was used which had a P plate.  It was identified by witnesses as that particular car.  Also in some of those cases the mobile phone was in that place.  The evidence was quite strong, we submit, in fact overwhelming when combined, to say that the one person would have done it.

For my friend to say, as he does in his submissions, that that knowledge might have been passed on to somebody else, that method, on the evidence that method was rare.  Even though it may not have been terribly sophisticated in the sense of just taking out the trim and then removing the window unbroken and putting it down, nevertheless it was unusual.  Police evidence was led according to that, police officers who had specialised in investigating break, enter and steal matters over that period of time.

So that for my friend to say that this could have been passed on to somebody else, we submit that that is just not the case, that everything was pointing towards this accused.  That is the limited effect to which the Crown put the tendency evidence, that the one person did all these crimes.  Other evidence proves it is the one person.  My friend tried to say that the facts of this case were very much like Pfennig and that the Crown case was very much like – the use of the tendency evidence in this case was very much like it was used in Pfennig, but in Pfennig it was used to identify the accused.  This other offence, the H Case, he had pleaded guilty to that.  He was an abductor and a child molester.  In the particular murder case he was there in the vicinity and he said he had spoken to the boy, although he said it was the day before. 

In this case we did not rely on the tendency evidence for that purpose at all.  There was other evidence pointing to it.  So we submit that what the court has done is right in that Papakosmas in some ways was even – it dealt with sections that were less clear that they were meant to apply to complaint evidence.  There was no mention of complaint evidence in section 66 or anything like that.  These provisions specifically refer to tendency and coincidence evidence.  It is clearly a Code aimed at dealing with that material.  Unless the provisions of section 101 had something in it such as that the court has to apply the Pfennig test by looking to see if there is no hypothesis consistent with innocence, it should not be read into it. 

We submit that in this case my friend has not shown error, that again the legislature has looked at this type of evidence and decided it would make a new law, as it were, in its Evidence Act, as it did with other types of evidence, and it has applied that.  The Court of Criminal Appeal and the five judges are just seeking to be consistent and to apply that law consistently with what this Court did in Papakosmas with section 66 and Adam with sections 38 and 60.

GUMMOW J:   What is the significance of the reservation of two members of the Court of Appeal?  It was not unanimous as to the whole five.

MR SMITH:   They sought to make it a rare thing that a judge would be satisfied, as I recall it.  That was not the view of the majority and I submit that that is putting a gloss on the legislation that the Parliament did not intend.  Just as your Honour said earlier, the Queensland Parliament obviously was not prepared to follow the Pfennig interpretation, and so the concoction aspect has been taken away from the judge and left to the jury.  Here the Parliament has decided to take away this higher onus on the Crown but to safeguard it with the fact that it has to be of substantial probative value.  Those are my submissions, your Honours.

McHUGH J:   Yes, Mr Odgers.

MR ODGERS: Justice Gummow asked me what the situation is in other jurisdictions. It is made clear at page 105 of the application book where Chief Justice Spigelman summarises at paragraph 52 the position in the various Australian jurisdictions.

My friend referred to OGD [No 2] and read out the material from page 447, but we say it assists our argument.  If Hoch is readily adaptable, to use the language at page 447, paragraph 76, to the Evidence Act and the result of the application of 101(2) is to have the same test as in Hoch, why, we ask, is not Pfennig readily adaptable to the Evidence Act?  Your Honours, my friend says this was not a case about ‑ ‑ ‑

McHUGH J:   We need not hear you further.  There will be a grant of special leave in this matter.

AT 4.28 PM THE MATTER WAS CONCLUDED