Fletcher v The Queen

[2006] HCATrans 127

[2006] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S525 of 2005

B e t w e e n -

JAMES PATRICK FLETCHER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2006, AT 9.34 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR S.C. AUSTIN and MR S.A. ROBSON, for the personal representative of the applicant.  (instructed by North & Badgery)

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Barker.

MR BARKER:   Your Honours, as to the standing issue, I move on the summons which is before the Court seeking an order that Desmond Stanley Harrigan be granted standing as the personal representative of the deceased.

GLEESON CJ:   Well, that is an issue perhaps we can come to after we have considered what you want to say about the merits.

MR BARKER:   Thank you, your Honour.  As to the merits of the matter, the questions are these:  can evidence of two sexual acts of a particular nature be admissible as showing a tendency to commit other sexual acts of a different sort against a different person in different circumstances two or three years later?  That is what happened in this case.  We say the evidence could not have had significant probative value as required by section 97 of the Evidence Act and its probative value could not have substantially outweighed the prejudicial effect it undoubtedly had on the applicant, and I refer there to section 101(2) of the Evidence Act.

Your Honours, the applicant was tried on one count of indecency and eight counts of homosexual intercourse, three of which consisted of acts of fellatio on the applicant by the complainant, four of which consisted of anal intercourse by the applicant on the complainant, one of which consisted of an act of fellatio on the complainant by the applicant, all between late 1989 and 1991, all in public parks, one by a country road one night, and one on a street at Adamstown.

The acts said to be proof of tendency were two acts of fellatio on another youth two to three years before the acts in question in a bed in a presbytery.  There is some dispute on the submissions about just why - on what basis the evidence was admitted.  In my submission, it is perfectly clear how it got in.  Firstly, it was tendency evidence showing a tendency to commit homosexual acts towards boys, which was a basis which was simply not permissible, we submit.  Can I take your Honours briefly to the transcript of the trial where these matters appear.  Page 51 of the application book, line 40:

The only evidence which, in my view, has significant probative value, and which passes the test presented by s 101(2), is the evidence the Crown expects to be given by [Mr G] concerning the two incidents referred to by him at paragraphs 36 and 38 of his statement -

At page 54, line 40 I queried whether the order was intended to let in the evidence in respect of every count in the indictment.  I said it should be restricted to count 4 if it got in.  At page55, line 5 the Crown Prosecutor said:

I considered that the tendency was for homosexual intercourse generally -

Then he referred to an old English case.  His Honour said:

I had in mind that it was a general application in the way the Crown suggests.

We then go to page 56, line 25 where it was argued that it could not have any relevance except possibly to count 4.  On page 57, line 30 that argument was continued.  If we then go to page 65, at line 55 the Crown Prosecutor said:

It’s also evidence your Honour, we would submit, as being a general tendency to act in a sexual manner towards young men of roughly the age that both [Mr F] and [Mr G] were at the time that the events occurred.

HIS HONOUR:   Well Mr Crown it seems there are three possibilities.  I can tell the jury that it’s relevant to one charge only ‑ ‑ ‑

GLEESON CJ:   Where is this now?

MR BARKER:    Sorry, at page 66 at the top of the page where the Crown sought to get the evidence in to show a general tendency to act in a sexual manner towards young men of roughly the age of Mr F and Mr G.  His Honour then posited three possibilities.  He could tell the jury it is relevant to one charge or four charges or all of them.  At line 20 he said:

Or I could tell them that it’s relevant to all eight charges . . . 

CROWN PROSECUTOR:   I think that it may be difficult to do so but I would submit it is appropriate for all eight, it is the general sexual attraction and the sexual dealings with boys of the age of [Mr G] and [Mr F].

His Honour said on page 67, line 35:

Well, all I’m concerned about is whether I should admit it as tendency evidence and relate it to the act of anal intercourse, that’s the only reservation I have –

He repeated that at the top of page 68 and he did not make any formal ruling but at page 95, line 30 he gave directions to the jury:

That is evidence that has been put before you by the Crown in order to indicate that the accused does have a certain tendency . . . 

The only use you may make of the evidence is to consider whether it demonstrates a tendency on the part of the accused to act in the way he is accused of acting towards [DF].

Then he went at page 96 to talk about the different circumstances which the jury were obliged to take into account.  Our submission is they should have been sufficient to exclude the evidence because of the dissimilarities.  It was expressly rejected as amounting to coincidence evidence.  We get that at page 51, line 55 to page 52, line 45.  At line 35 on page 52, his Honour said:

In this present case there is no evidence of the occurrence of two or more events substantially and relevantly similar which occurred in substantially similar circumstances.  I decline to admit any of the challenged evidence as coincidence evidence.

We say there is a certain tension between that rejection of the evidence as coincidence evidence and its admission as tendency evidence.  Thirdly, it was expressly rejected as establishing a pattern of behaviour, contrary to the Crown’s submissions, and we get that at page 52, line 45:

I turn now to the Crown Prosecutor’s submission that the evidence of [GG], other members of the [G] family . . . is admissible for the purpose of showing that the accused had established a system of operating so that he would be able to get close to young males.  In my opinion, although it would be possible to draw an inference from the evidence of those prospective witnesses . . .  it would be dangerous to draw that inference.  In my view the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the accused.

He declined to admit it.  So it was admitted, your Honours, as showing a tendency to commit sexual acts ‑ ‑ ‑

GLEESON CJ:   What is that judgment dealing with?

MR BARKER:   That is the judgment of the trial judge, dealing with the argument that the evidence should get in.

GLEESON CJ:   I thought you said there was no formal ruling on it.

MR BARKER:   Well, that is the case.  There was a lot of argument and he did not really – if you go to page 68, line 5, that is the last that was said about it.  He said:

I just have some lingering doubt as to whether it could perhaps be admissible in relation to the acts of anal [intercourse].

Then the next reference to it is when he is directing the jury at page 95.

GLEESON CJ:   Did he reject some evidence?

MR BARKER:   Yes, he rejected a lot of evidence.  There is a lot of evidence of other people which was simply irrelevant and he rejected all that.

GLEESON CJ:   I got the impression that that was a ruling explaining the rejection of the evidence that he referred to on page 47, line 15 and following.

MR BARKER:   That included the evidence of other people, but when he rejected it as establishing a pattern of behaviour, he was referring as well to the evidence that got in, to other evidence of GG about the association with the applicant and he said this – he rejected it as establishing a pattern of behaviour.  Now, in our submission, the majority ‑ ‑ ‑

GLEESON CJ:   Was the defence case at trial that none of this ever happened?

MR BARKER:   Yes, your Honour.

GLEESON CJ:   That was what was put to the complainant and the witness?

MR BARKER:   Yes.  There was no question of identification.  We just say that it did not happen.

GLEESON CJ:   Well, you said it did not happen.

MR BARKER:   Yes, and that was put to both the complainant and the tendency witness.

GLEESON CJ:   What did your client have to say about it?

MR BARKER:   He did not give evidence, but he did however take part in a recorded interview in which he expressly rejected the accusations.  The Court of Criminal Appeal was divided on the issue.  The majority, we say, were wrong.

GLEESON CJ:   Now, where do you say is the error in Justice Simpson’s reasons?

MR BARKER:   Well, at page 194, line 40, he said:

The strength of the evidence tendered by the prosecution as tendency evidence lay in its capacity to establish the objective probability of the truth of the complainant’s account of the appellant’s conduct.  The evidence of GG was capable of lending support to the allegations made by the complainant by reason of striking similarities, underlying unity, system or pattern.

Now, it could not possibility have had that effect, with respect, because it was evidence of entirely different sexual acts than eight out of nine of the counts in the indictment.

HAYNE J:   What form did the evidence of GG take in‑chief?  Was it confined simply to evidence of particular sexual acts, or was it evidence that included or extended to the circumstances surrounding and leading up to the particular acts he described?

MR BARKER:   Very briefly, he said he knew the appellant.  He was an altar boy and he went to Dungog and stayed overnight at the appellant’s house on two occasions which is when the acts are said to have occurred.  In my submission, there was simply no evidence of striking similarities, underlying unity, system or pattern.  We say that she was wrong at page 198, lines 15 to 40:

I have come to the view that it was open to his Honour to conclude that the evidence was capable of having probative value and that a jury would perceive it as having significant probative value.

HAYNE J:   Her Honour there emphasises the manner in which the appellant was said to have secured the acts of intercourse.  There was enough evidence, was there, from the witness GG to describe the manner by which the appellant was said to have secured the act of intercourse of which he spoke?

MR BARKER:   Yes, but it was evidence which we respectfully submit was quite remote from the evidence of the ‑ ‑ ‑

GLEESON CJ:   Well, that seems to leave out of account what her Honour referred to as the role of the complainant and GG.  The relationship between the accused and the complainant, and the accused and GG, was part of the context in which questions of similarity were to be considered, was it not?

MR BARKER:   Yes, your Honour, but the relationship, as pointed out by Justice Rothman, was no more than an unexceptionable relationship which you would expect a parish priest to have with a parishioner.

GLEESON CJ:   It was a relationship of authority.

MR BARKER:   Well, that was not part of the charge.  The indictment was amended to exclude the question of authority and the evidence was no more than the evidence of an ordinary relationship between priest and parishioner, albeit a young parishioner.  We say that she was wrong in holding that the evidence was admissible in respect of all counts, and that is at page 200, line 15, and we submit they fell into greater error in holding that material even more remote should have been admitted.  Much of the judgment, in particular at 195, line 10, was concerned with evidence which did not get in.  She said at line 10:

However, it is plain enough that he -

that is the trial judge –

was well aware of the nature of the steps he was to take . . .  I am sustained in that view because, it seems to me, he was entirely correct in permitted GG’s evidence to go to the jury.  If any error were made, it may have been in the exclusion of additional evidence that another judge may have admitted.

I submit the correct approach is to be found in the dissenting judgment at page 215, line 20:

In the comparison, in this case, between the tendency conduct, and that which is the subject of the charges against the appellant, there are a number of factors which diminish the probative value and, at the same time, seem to exacerbate its prejudicial effect.  As previously stated, the sexual activity alleged in the tendency

evidence is of two incidents over some months in a period of time some years prior to the allegations in question.  There is no suggestion, as previously stated, that the offences (with the possible exception of Count 4) with which the appellant is charged related to conduct which was the same conduct as that which the tendency evidence alleged.  The circumstances surrounding the tendency conduct and that which was alleged in the charges were different in relation to the privacy, or lack of it, in which the conduct was alleged to have occurred.

He dealt with it further on page 216 at lines 10 to 40, and then at page 221, line 40 he said:

The problem is that the effect of the tendency evidence admitted was to taint the deliberations of the jury by using the evidence in a manner it could not legitimately do.  In those circumstances, the only proper course is for there to be a new trial on the charges.

At page 227 ‑ ‑ ‑

HAYNE J:   Just before you come to that, at 216, paragraph 122, his Honour seems to be concluding that the evidence was not relevant, does he not, at line 22 and following?

MR BARKER:   Yes, and unarguably it was not.  Arguably it did not add anything to the proof as required by section 55 and the definition of relevant evidence.  But we do not have to go back that far.  If we just consider sections 97 and 101(2)-

HAYNE J:   But the hypothesis for those is that the evidence is relevant, and the conclusion of relevance is important, I would have thought, to the assessment that must be made under the later sections of the Act.

MR BARKER:   That is so, your Honour, but the way the court treated this case was to treat section 97 as being an open door, and that is going to be the effect of this case if the judgment stands.  Section 97 is entirely restrictive and particularly when read with section 101(2), and there must be, in my submission, real alignment between the evidence called as tendency evidence and the evidence which it is said to support, and in this case there was none I would submit.  In my respectful submission, the judgment of the dissenter was correct and there has been a serious miscarriage of justice and the conviction should be quashed and special leave should be granted to allow us to argue that.

GLEESON CJ:   We do not need to hear you, Mr Smith.

We are of the view that the evidence in question was correctly admitted in the particular circumstances of this case and we are not persuaded that there has been any miscarriage of justice.

If we had taken a different view on the merits of the application, the case would have raised an interesting question about the matter of standing and we would have been minded to refer that question and the whole application for special leave to appeal to a Full Court to consider.  However, having regard to the view that we have taken on the merits of the matter, the order that we make is that the application is dismissed.

MR BARKER:   If the Court pleases.

AT 9.56 AM THE MATTER WAS CONCLUDED