G v The Queen

[1990] FCA 777

JUDGMENT No. 117 . .. /.?X?,

C A T C H W O R D S

APPEAL - criminal law - admissibility of evidence of prior

sexual conduct with the victim and others - confessional

statement including reference to other misconduct

CRIMINAL LAW - whether verdicts of the jury unsafe,

unsatisfactory or dangerous - relevant principles

Evidence Act 1971 (ACT), 9.66

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

-	G v. THE QUEEN
ACT G62 of 1989
Coram: Gallop, Jenkinson and O'Loughlin JJ Date: 20 July 1990 Place: Canberra

REQISTRV

2 9 JAN 1991

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	)	No. ACT G62 of 1989
DISTRICT REGISTRY	1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: G

Appellant

AND :  THE QUEEN

Respondent

MINUTE OF ORDER

coram	: Gallop, Jenkinson and O'Loughlin JJ.
Date	: 20 July 1990
Place	: Canberra

THE COURT ORDERS THAT:

(1) the appeal be dismissed.

Note:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	)	No. ACT G62 of 1989
DISTRICT REGISTRY	)
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: - G

Appellant

AND :  THE QUEEN

Respondent

CORAM: Gallop, Jenkinson and O'Loughlin JJ.
DATE: 20 July 1990.

PLACE: Canberra.

REASONS FOR JUDGMENT

GALLOP J . :

I have had the opportunity of reading the
judgment of Jenkinson J. in draft form. I agree with his

decision that this appeal must be dismissed for the reasons

stated by him.

I wish to add a few comments upon the ground of appeal that the verdicts of the jury were unsafe and unsatisfactory. The law on this subject has now been laid down by the High Court in Chamberlain and Anor v. The Queen (1983) 153 CLR 521.

Before turning to the respective judgments in Chamberlain, it is necessary to restate the legislative provisions for appeal from the Supreme Court of the Australian Capital Territory to this Court. Section 24(1) of the Federal Court of Australia Act 1976 (Cth) provides a right of appeal from judgments of the Supreme Court of the Territory to this Court. Section 25(1) provides that the appellate jurisdiction of the Court shall, subject to immaterial exceptions, be exercised by a Full Court. The powers of the Court on appeal are prescribed in ss.27 and 28. Those sections provide:

"27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46.

28. (1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction -

(a)	affirm, reverse or vary the judgment appealed from;
(b)	give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse
to make an order;
(c)	set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
(d)	set aside a verdict or finding of a jury in a civil proceeding, and enter judgment notwithstanding any such verdict or finding;
(e)	set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;
(f)	grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or
(g)	award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

(2) It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of sub-section (1) to execute the judgment of the Court in the same manner as if it were its own judgment.

(3) The powers specified in sub-section (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

( 4 )

(5) The powers of the Court under sub-section (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence."

In Chamberlain the High Court overruled the

decision of this Court that this Court had no power to

was unsafe, unsatisfactory or dangerous. It was so held by	allow an appeal on the ground that the verdict of a jury
Gibbs CJ and Mason J (as he then was) in their joint judgment (at 532), by Murphy J in his separate judgment (at 569-570), and by Deane J in his separate judgment (at 616). Brennan J was in dissent on this point. However, there was not that degree of unanimity on the application of the power to set aside a verdict as unsafe and unsatisfactory.
Gibbs CJ and Mason J preferred the approach of Dawson J in Whitehorn v. The Queen (1983) 152 CLR 657 to the approach of Barwick CJ in Ratten v. The Queen (1974) 131 CLR 510. In Ratten, Barwick CJ stated that it is the reasonable doubt in the mind of the court which is the operative factor, not the doubt which ought to have been entertained by a reasonable jury. In Whitehorn Dawson J stated that the verdict will be unsafe or unsatisfactory if the Court of Appeal concludes that the jury acting reasonably must have entertained a sufficient doubt to entitle the accused to an acquittal.

In adopting that test, Gibbs CJ and Mason said

(at p.534):

"It seems to us that the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The

an independent assessment of the evidence is performed

function which the Court of Appeal performs in making

for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt."

Brenann J. had agreed with Dawson J. in Whitehorn as to the proper test and adhered to that opinion in Chamberlain (at p.607-8). However, Deane J (at 621-2) preferred the Barwick approach in Ratten, i.e. that the appellate court should hold that there has been a miscarriage of justice if a person has been convicted on evidence which, in the opinion of the court, fails to establish his guilt beyond reasonable doubt.

I agree with Jenkinson J. that the jury's verdict reflects its evaluation of the victim as a witness and that the various criticisms of the other evidence in the case are not sufficient to warrant a rejection of that verdict as one which could not reasonably have been reached by the jury. In other words, I am not persuaded that on the whole of the evidence the jury must have entertained a reasonable doubt as to the guilt of the appellant.

I would dismiss the appeal.	I certify that this and the preceding four pages and a true copy of the Reasons for Judgment herein of His Honour Mr Justice Gallop.
Dated:  1 0 July 1990.

Associate

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY	) )
DISTRICT REGISTRY	1 No. ACT G62 of 1989
1
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

BETWEEN: - G. Appellant

AND : THE QUEEN	Respondent
THE COURT: GALLOP, JENKINSON & O'LOUGHLIN JJ PLACE : CANBERRA
DATE	: 20 JULY 1990

REASONS FOR JUDGMENT

Jenkinson J.

Appeal against convictions in the Supreme Court of the Australian Capital Territory on three counts of Incest and two counts of wounding wlth Intent to do grievous bodlly harm.

The appellant was born on 26 April 1928, married in 1959, and
is the father of eight children of the marriage. He was convicted
on 25 September 1989 of three counts of Incest with one of his

daughters, Louise Maree Hammond, who was born on 28 April 1971, the seventh child of the marriage and youngest of the five daughters, and convlcted also of two counts of wounding that daughter with intent to do her grlevous bodily harm. The first count charged engagement by the appellant in sexual intercourse between 21 March 1986 and 4 April 1986 wlth Louise Maree Hammond, who was then above the age of 10 years but under the age of 16 years and who was to his knowledge hls daughter. That offence is punishable by 15 years' imprisonment. The fourth count charged engagement in sexual intercourse on 22 Aprll 1988 wlth her, who was then of the age of 16 years and who was to the appellant's

knowledge his daughter. The fifth count charged a similar offence on 23 Aprll 1988. Each of those two offences is punishable by 10 yearsr ~mprisonment. The second count charged woundlng with intent to do grievous bodlly harm during the same period as that

specified in the flrst count, and the same woundlng offence was

charged in the sixth count to have been committed on 23 April 1988. The appellant was convlcted on each of those five counts. The remaining counts, numbered three and seven, charged assaults as alternatives to the charges of woundlng with the stated intent.

Loulse Hammond gave evidence that, at a tlme near Easter 1986 on a date which she could not glve, she was asleep alone in her bedroom at night in a house at 25 De Graaff Street Holder in the Australian Capital Territory where she was then living with her father and mother. When she had gone to bed her father and mother had been in the house. She awoke to see her father enter her bedroom, as she swore, and enter her bed, where he had sexual intercouse with her. Then he produced a knlfe, according to her evidence, the sharp end of which he moved in and out of her vagina "a few times". Her evidence was that whlle he thus used the knife he "said to me if I did anything more to bring out this story he would kill me. He also sald: 'If I can't fuck you, no one can fuck youf. " Louise Hammond gave evldence that on the afternoon of the day near Easter 1986 on which the events I have lust narrated were sworn by her to have occurred she had been taken to the Woden Police Stat~on and questioned by pollce as to whether there had been sexual contact between herself and her father. She further testified that she did not cry out during or after the attack made on her in her bedroom. In an unsworn statement the appellant denied that anything of the kind alleged by Louise Hammond to have happened near Easter 1986 had occurred.

Louise Hammond testlfled that shortly after Easter 1986 she ceased to live in the house where her father lived and for more than two years was not in hls company or in conversation with hlm. She swore that, after having her evenlng meal on Frlday 22 Aprll 1988 at a flat where her mother and one of her sisters were then livlng, she travelled by tax1 to Gowrie Hostel, in a room in which she was then living, and went to her room; that when she turned to

her mother and father, nelther of whom she was expecting, standing	close the door of her room after she had entered the room she saw
together in the doorway; that her father said: "Aren't you pleased to see us?"; that she trled to leave the room, but was held by her mother and father on both shoulders and pushed back on to her bed; that her father removed the long pants and the underpants whe was wearing while her mother closed the door; that while her father held her legs apart, her mother cunnilingued her; that her mother then left the room, closing the door; that her father then had sexual intercourse with her; and that her father then dressed and left the room. She further testified that she did not cry out while her parents were in the room or after they had left the room. She gave evidence that she was in her mother's company the next day, but sald nothlng about what had happened on the Friday evening. In his unsworn statement the appellant denied that he had seen Louise Hammond on 22 Aprll 1988.
Loulse Hammond gave evldence that at about 8 o'clock in the evening of the next day, Saturday 23 Aprll 1988, she was alone in her room at Gowrie Hostel; that she left the room to go to the lavatory, leaving the door of her room ajar; that when she returned to her room her father was standlng behind the door in her room; that he Ignored her request that he leave and pushed her on to her bed, where he had sexual intercourse with her; that he then took a small knife whlch was in the room and "put the sharp end of the knife in and out of my vagina"; that she bled from the vagina; that the appellant then washed the knife in the slnk in the room and then pulled the mattress from the bed and pressed the mattress against hls daughter and punched the mattress which was
further testified that whlle her father was in the room she said between them; and that the appellant then left the room. She
that "that would be the last tlme he would ever rape me". She swore that her father's response was: "It doesnt't matter. I can do whatever I want. I'll never get caught. If you go to welfare or the police they won't believe you because you've told them so many times before and they haven't done anything". There was no evidence to suggest that Mlss Hammond crled out for help whlle her father was in the room or after he left the room. The appellant denied in his unsworn statement that he had entered Gowrie Hostel on 23 April 1988.
Evidence was given by a nelghbour of Loulse Hammondls mother that the mother was in the flat In which she llved with another of her daughters from about six o'clock on the evenlng of 22 April 1988 until about one o'clock in the morning of 23 April 1988, in the company of that daughter and the nelghbour, Linda Christine Gregory. Nelther that daughter nor the mother gave evidence. The mother was a competent and compellable wrtness in respect of the first three counts, but in respect of the other counts she was not compellable, although competent: s.66 of the Evldence Act 1971 (A.C.T.) .
Edward Harrlson gave evidence that in Aprll 1986 he was employed as a senior soclal worker in the Welfare Services Branch of the Department of Terrltorles; that on 5 April 1986 he called at the house where the appellant and hls wife and Loulse Hammond and other chlldren of the marrlage were then living, at 25 De Graaff Street Holder, in company wlth another offlcer of that
Branch; that he there told the appellant that he "had received an allegation that Mr. Hammond had interferred wlth Louise and that
we were here to talk to them about that . . . I lndlcated to him that obviously anything that he sald to me whlch would appear to have constituted an offence I was under an obligation to report back to my seniors and also to the police if necessary. That was the main thrust of my earlier comments". Mr. Harrlson was then asked by counsel for the Crown: "Did Mr. Hammond reply to you?" Mr. Harrison's answer was: "Mr. Hammond did reply, but again I cannot recall his precise words. Certainly shortly after that he did indicate to me that yes, he had been involved with his daughters". Objection was taken by counsel for the appellant, the jury was sent from the court and submissions were made and evidence was heard on the volr dire until the luncheon adjournment and for a short time thereafter. When the trial resumed on the return of the jury the following evidence was given:

"Mr Harrison, before lunch you had said that you were at the house at De Graaff Street in Holder, and there had been a discussion in relation to the alleqatlons relating to Louise? Is that correct?---That is correct.

what did the accused say to you, doing the best you can in direct speech or otherwise, relating to those allegations?---He said to me, 'What the girls said must be correct.'

Did he then say anything else?---He later

commented that he - - -

HIS Honour: Just a moment.

Mr Lalor: When you say commented, what did he say please, rf you can?---He said he had interfered with Louise but not recently."

A short time later durlng examlnation in chief the following

occurred: 

"Mr Lalor:  Mr Harrlson, what further

conversation took place, if any, then?---The further conversation that took place during the evening related a lot to his personal situation, his work and so on, hls interests.

And did you again dlscuss the matters for which you were there, or not?--- 1t occurred during the conversation, I cannot recall precisely when.

Yes. And what happened?"

There was then an ob~ection, overruled. Then the following:

M Lalor: What was said, please, Mr Harrisonl---He said that, 'what the girls said must be correct'.

And - - -

H ~ S Honour: NOW, I will intercede there

because that statement on its own does not mean anything much, I would not have thought, unless we know the context in which it was said. See, sometimes statements are entirely clear regardless of the context. On other occasions statements are not clear unless we know the context. NOW, I would not have thought that statement 1s clear in meaning unless we know the context in which it was said.

Mr Lalor: Can you put it in its context at all, Mr Harrison, or not?---No, I cannot."

Durlng cross-examination the following occurred:

"So, it would be fair to say that you cannot recall, is this rlght, in what terms you spoke to him on the evening of 5 April of 19867---At that stage, no, I cannot tell you the precise words.

And you further say that Mr Hammond said something about, and again you cannot, as I	understand you, recall the precise words,	something about being involved with hls
daughters?---That is correct.
Are you able to say what was the statement that you or anyone else made immediately preceding that statement?---No, I cannot recall the precise statement.
Was there any elaboration that you can recall about what involved with meant?---No, there was no elaboration.
And is it correct that the only words you can specifically recollect him using, that is, in direct speech terms, is, 'What the girls sald is correctp?---That is correct.
Yes. And is it correct that you did not yourself nor did he elaborate on what was meant by what the girls said?---That is correct.
And if I can take you to the second comment you made concerning a statement. Dld you say something about words being sald to the effect
- if I can flnd my quotation - here it is.
Now, you have said in your evldence that a statement was made to you which you referred to as a comment?---That is correct, yes.
Whlch mentioned Loulse?---That 1s correct
The terms in whlch you put it were that he had interfered wlth Loulse but not for the last little whzle. Is that the way in which expressed rt?---That is so.
Well, that was your summary of the thrust of what was sald. 1s that sol---It is as close to hls statement as I could recall lt.
But you acknowledge by puttlng in that form, do you not, that you could not recall the exact words?---Yes, that is correct, that takes a summary form."

It was submltted by Mr. Walker of counsel for the appellant that Mr. Harrlson's evldence that the appellant had said that he had been involved with his daughters, and the evldence that he had said "what the girls said must be correct", was inadmissible. It was sald that each of those statements mlght reasonably have been

understood by the jury as an admlsslon that the appellant had made	a sexual advance to more than one of hls daughters, and therefore
as an admlssion of mlsconduct other than that whlch was the subject of any of the charges belng trled. It was submltted that evidence, by admlssion, of such mlsconduct 1s admissible only if the probative force of the evldence clearly "transcends" or "outweighs" the prejudicial effect whlch the demonstratlon of a
propensity to engage in misconduct of that kind is thought likely to have on the jury's deliberations. Each of the statements was of slight probative value, it was said. The statement that the appellant had been "involved with his daughters" was said to be of quite uncertain meaning. The other statement was virtually devoid of meaning, it was said, because there was no evidence by means of which any understanding could be gained of what "the girls" might have been thought by the appellant to have said. Harrison gave no evidence of having spoken to the appellant of girls other than Lousie Hammond.

-

In my opinion the jury might reasonably have thought that the statement that the appellant "had been involved with his daughters" was a statement that he had made a sexual advance to more than one of his daughters and that one of those daughters so approached had been Louise Hammond. It is I think true, as Mr. Walker submitted, that the statement had little direct probative value additional to whatever probative value the jury might have accorded the appellant's statement to Mr. Harrison that "he had interferred with Louise, but not recently", if they accepted

Harrisonws evidence that the latter statement was made. The

principles upon which Mr. Walker based his submission - those concerning the criteria of admissibility of evidence tending to show misconduct other than that which is the subject of the criminal proceeding in which the evidence is tendered - were developed in cases in which the evidence the admissibility of which was in question was not, for the most part, given by a witness who testified also to a constituent element of the offence charged. (Commonly the practical effect on the jury of

the evidence of misconduct on another occasion lies principally in the circumstance that it is a witness wholly unconnected with the Crown witnesses to the offence charged who testifies to that other, similar misconduct.) But here Mr. Harrison testified to a confessional statement which the jury might have thought tended to prove the appellant's guilt on the first count, notwithstanding the exculpatory addendum, "but not recently", as well as to the statements which in Mr. Walker's submission were inadmissible. If the jury were not persuaded to accept Harrison's evidence of the statement that the appellant had interferred with Louise, it is

unlikely that they were persuaded to accept his evidence of the .

statements said to be inadmissible. If the jury did accept the evidence of the statement about Loulse, it is likely that they also accepted the evidence of the other two statements.

The statement that what the girls sald must be correct could not in my opinion reasonably be understood as an admission tending to prove the appellant's gullt on any of the first three counts, except by reason of the circumstance that it was made on the same occasion as the statement by the appellant that he had been

together, the jury might in my opinion reasonably have understood

involved with his daughters. Considering the two statements

the former statement as an obllque confirmation of the latter statement, and as thus including, by reason of the context in which both statements were sworn by Harrison to have been made, an admission of some sexual advance to Louise Hammond. While neither of those two statements contains any direct admission of any element of an offence charged, they both might reasonably have been thought by the jury to be indicative of a consciousness of

l l

guilt of sexual misconduct by the appellant with Louise Hammond. Evidence of only the single statement by the appellant that he had interfered with Louise, but not recently, might have been sought to be shown by cross-examination of Harrison and by testimony of the appellant either to have been mistaken (as, for example, by Harrison's mishearing what was said by the appellant or by Harrison's failing to hear or to rememenber other words of the appellant which deprived the statement of its inculpatory significance), or to be innocuous by reason of something said before the statement was made, but omitted from Harrison's

evidence in chief. Whatever the response by the appellant or by -

his counsel during the trial to the evidence of that single statement about interfering with Louise, the probative effect of the statement was in my opinion much less likely to be diminished by the response if the other two statements were also in evidence, because those two statements could reasonably be understood to express, like the statement about interfering with Louise, the appellant's consciousness of guilt of sexual misconduct by him with Louise. For that reason those two statements were capable of having very substantial probative force. When the two statements

were adduced during Harrison's evidence in chief neither counsel	for the Crown nor the learned trial judge could know whether, or
in what way, the appellant or his counsel would seek to diminish the inculpatory effect of the evidence that the appellant had said he had interfered with Louise Hammond. Judgment as to whether the probative force of either of the other two statements clearly transcended the merely prejudicial effect of the statement had to be exercised by the learned trial judge when the evidence was adduced. (Even if evidence of the three statements had been
adduced on a voir dire, counsel for the appellant would have been under no obligation to reveal his instructions concerning any of them by cross-examination on the voir dire.) There was no means of subducting from either of the statements said to be inadmissible that part which disclosed misconduct other than that which was the subject of the first three counts. In my opinion no error can be demonstrated in the learned trial judge's conclusion that the statements were admissible, if the admissibility of each fell to be determined, as counsel for the appellant submitted, upon the criterion prescribed by authority in respect of evidence
which both shows the accused to have engaged in misconduct other -
than that charged and also affords evidence relevant to a fact in issue.
If it were necessary to decrde the question, I would not regard the admissibility of a voluntary confessional statement which also expresses an admission of other misconduct not directly probative of a fact in issue as determinable by application of the criterion which counsel for the appellant proposed. If the confessional words are not susceptible of emendation by the
here the case, their relevance as confessional of a fact in issue deletion of those words which refer to the other misconduct, as is
ought in my opinion to be enough to justify their admission. Being the voluntary revelation of the speaker's mind about a fact in issue, the words ought not in my opinion to be excluded from the jury's attention upon the policy considerations that have dictated the exclusion of evidence of other voluntary acts of an accused which have not been done in contemplation of the transaction the subject of the charge.

Whether or not the criterion of admissibility of the two statements be that which is ordained in respect of evidence disclosing misconduct other than that which is the subject of the charge, there could in my oplnlon be occasion for the exercise of the judicial discretion, when confessional statements which effect such a disclosure are tendered, to reject evidence otherwise admissible when it is necessary to do so to secure a fair trial. In Harriman v. The Queen (1989) 63 A.L.J.R. 694 at 696 Brennan J. observed :

"As the argument against admissibility in this case relied on the judlcial discretion to reject evidence otherwise admissible when it is necessary to do so to secure fair trial, it is necessary to say something about the scope of the discretion. Is there a residual judicial discretion to reject evidence revealing the commission of another offence or a predisposition to commit an offence on the ground that its prejudicial effect is disproportionate to its probative effect when the evidence is found to be admissible because its probative force clearly transcends its merely prejudicial effect? Obviously, the occasions for the exercise of such a discretion are hard to envisage, for evidence which satisfies the criterion of admissibility is unlikely to attract the exercise of the	discretion. Never the less, one cannot	exclude the possibility of a case where,
despite the substantial probative force of the evidence, fairness dictates its exclusion. As against the prospect of such an exceptional case arising, the continued existence of the residual discretion should be admitted."

If a confessional statement which included reference to other misconduct were made in answer to a question by a trained criminal investigator and the investigator failed to ask further questions designed to elicit an answer limited to the subject of the

investigation, so that the court trying any criminal charge thereafter laid in respect of that subject might have the opportunity to exclude the first statement and to admit the subsequent answer if it thought fit, an exercise of the "residual discretion" might well be required. But Mr. Harrison's role was far from that of a criminal investigator and he could not be expected to question the appellant about either of the two statements. I do not consider that the circumstances called for the exercise of the residual discretion to exclude either of the statements.

-

It was a ground of appeal that evidence by Louise Hammond of transactions between the appellant and her before 1986 had been wrongly admitted into evidence. Summarily stated, the evidence was to the following effect. She testified, after objection by counsel for the appellant had been overruled, that she had on many occasions before 1986 been sexually assaulted by the appellant and had been involved in sexual activity with him at his insistence. Her first recollection of such a transaction was of her playing with his penis at his request when she was "about four or five",

on the other, at his insistence before she was eight years old,	she swore. Cunnilingus and fellatio were practised by them, one
according to her evidence. She testified that during her ninth year and until her fifteenth year she often accompanied the appellant to the Cotter Dam pumping station where he worked every alternate Saturday, and that in that area the appellant on many occasions had sexual intercourse with her.

Counsel for the appellant based his argument that the

evidence I have summarised should have been excluded on propositions authoritatively declared applicable to "similar fact" evidence. Attention was drawn to what has been laid down in respect of cases in which the accused denies that the events the subject of the charge or the events constituting the similar facts happened at all. That is this case. Both to the police and in his unsworn statement on his trial the appellant simply denied that any of the acts of sexual misconduct to which Louise Hammond testified had ever happened. Counsel for the appellant referred to reasoning which finds perhaps its clearest expression in the

following passage from the reasons for judgment of Mason CJ., -

Wilson and Gaudron JJ. in Hoch v. The Queen (1988) 165 C.L.R.	292
at 296-297:

"In cases such as the present" - that is, where the evidence by one complainant of the commission of the sexual offence charged discloses circumstances very similar to the circumstances disclosed by each of several other sets of evidence, given in each case by a different complainant, of the commission by the accused on that complainant of another sexual offence on another occasion -

"the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or

other complainants. Its second function is to	confirm the veracity of the evidence given by
serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.
Thus, in our view, the admissibility of
similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. I£ the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prlor to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements lndicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoctlon then as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it 1s capable of reasonable explanation on the basis of concoctlon. It will not be for the purpose of the trial ludge making a preliminary findlng whether there was or was not concoctlon."

motive, for concoction was undeniable: there were not several	In this case, it was submitted, the opportunity, if not the
witnesses, but only one witness, to all the evldence of sexual misconduct. Accordingly a careful consideration of the evidence of this similar fact evidence shows it to be certainly capable of reasonable explanation on the basis of concoction by Louise Hammond, it was submitted. And for that reason, the submission concluded, the evidence of events before 1986 should have been
ruled inadmissible.
In my opinion the evidence of the appellant's sexual misconduct with Louise Hammond before 1986 was not admissible by reason of any circumstantial similarity of that conduct and any of the conduct to which Louise Hammond testified in proof of the counts of the indictment. Similarity of misconduct justifies an inference of guilt by reference to the improbability of similar lies by several persons who have not conspired to tell them. But such an inference is not raised by the evidence of a single
witness. Nor in my opinion did that evidence of what happened -
before 1986 provide a means of evaluating the veracity of Louise Hammond's evidence concerning the conduct alleged in the indictment, except in two respects. Everything a witness says before a tribunal of fact may assist the trlbunal to make that evaluation, and everything sald about transactions between complainant and accused are of particular use. Had we but world enough and time, evidence of all such transactions might with advantage be admitted. However, what McHugh J. called "the relationship cases" in Harriman v. The Queen (1989) 63 A.L.J.R.
occasion is not admissible on that very general basis, but is 694 at 712 show that evidence of such a transaction on another
admissible if the transaction is one the occurrence of which tends to confirm the veracity of the complainant in respect of some particular evidence given by the complainant about the events which are the subject of the charge. In The Queen v. Etherington (1982) 32 S.A.S.R. 230 at 235 evidence of sexual misconduct by a step-father with his step-daughter during the three years preceding the date on which he was alleged to have committed on her the statutory offence of unlawful sexual intercourse with a person under the age of 12 years, that being the offence charged, was said to be admissible because "it served to explain why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged". The evidence thus tended to confirm the veracity of the step-daughter's
evidence that the accused did commit the offence and that she did submit. If evidence of the accused's sexual misconduct with a child may be admissible as evldence of a circumstance tending to confirm the truth of her evidence that she submitted to the commission of the sexual act charged, this was a case which called for the admission of the evidence. The offences charged in the first and second counts were sworn by Louise Hammond to have been committed in a house in which, it might have been inferred, her mother then was, for Louise Hammond's evidence was that her mother was in the house when she went to bed. Yet her evidence was that she did not cry out. The offences charged in the fourth, fifth and sixth counts were sworn to have been committed in a room in a hostel during the early evening. There was no evidence as to whether other persons were in the vicinity of the room, but the
Louise Hammond gave evidence that she d ~ d not cry out on the jury might reasonably have thought it likely that there were. But
occasion when the offence charged in the fourth count was said to have been committed, and there was no evidence to suggest that she cried out on the occasion when the other two offences were said to have been committed. The evidence of what had happened before
1986 might reasonably have been regarded by the jury as tending to
make more credible the failure of Louise Hammond to cry out on any of those three occasions notwithstanding the occurrence on those occasions of the events to which she testified.
There is another ground of admissibility, in my opinion. The evidence of previous sexual misconduct increases the probability, or, perhaps one should say, decreases the improbability that the appellant would commit the offences charged in the circumstances in which according to the evidence of Louise Hammond they were committed. The apparent improbability of a father's embarking upon a rape and cutting of his adolescent daughter in a house where his wife was, as the jury may have inferred that she was, is substantially diminished by the circumstances which the evidence -
of prior misconduct discloses. So too the apparent improbability of the two later attacks on Louise Hammond in a hostel in the early evening is diminished by those circumstances. The probative force of the evidence depended, like the rest of Louise Hammond's evidence, on the credence given her oath by the jury. But without that evidence the proper evaluation of Miss Hammond's evidence of the conduct the subject of the charges would have been almost impossible. In that sense the evidence of what happened before 1986 was in my opinion "of such probative force in the instant
case that it would be an affront to common sense not to admit it" (per Brennan J. in Harriman's Case 63 A.L.J.R. at 696).
It was submitted that each of the verdicts should be set aside as unsafe and unsatisfactory because a jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the appellant.

Counsel for the appellant carefully examined the evidence in

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his argument in support of the submission. Medrcal examination of Miss Hammond shortly after the time of the first cutting alleged, in 1986, did not demonstrate recent laceration, but the medical evidence was not inconsistent with Miss Hammond's account of that incident. Medical examination after the later cutting alleged was not had of the vagina because Miss Hammond physically impeded the doctors* attempts to make the examination. Miss Hammond swore that she consciously intended to permit the examinations, but could not bring herself to do so. There were a number of occasions on which, as she admltted, Miss Hammond failed to complain of one or more of the three attacks she alleged, in circumstances in which the jury might have thought that she would have done so. She gave explanations of those failures. Reliance was placed by counsel for the appellant on the alibi evidence in respect of the appellant's wife on the evening of 22 April 1988 and the alibi evidence in respect of the appellant on the evening of 23 April 1988. There were several other, quite minor instances of evidence said to be inconsistent with the evidence of Miss Hammond and to be reliable.

Careful reading of the transcript has not caused me to think that Miss Hammondls failures to speak of an attack she alleged in evidence present a serious obstacle to acceptance of the truth of the allegations. Nor does the alibi evldence present such an obstacle to my mind. The considerations urged by counsel for the appellant have not, considered cumulatively, brought me to think that a jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt of any of the offences of which he was convicted. It must be admitted that this

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was a case in which a very great deal turned on the jury's evaluation of Miss Hammond. On the material before this court I have not found anything to suggest that any of the verdicts was unsafe or unsatisfactory.

I would dismiss the appeal.

I certify that this and the

preceding twenty (20) pages are a

true copy of the Reasons for

Judgment herein of the

Honourable Mr. ~ustice	Jenkinson
Dated: 20 July 1990.

A

Associate

1

AN CAPITAL mRRITQBX	1
1 No. ACT G62 of 1989

- 1 \

FROM

C Q U L !

U:

E

Appellant

- and -

!mFamai

Rerpondent

C6RAM:	Gall.op, ,Tenkinnon and 08Loughlin JJ.
E U U	20 July 1990

-

#

b:  I have had the advantage of reading, in &aft f

'---

form, the judgment of Jenkineon J . I agree with the conclusions resched by him and I would also dismiss the

appeal.	X oertify that thir im a
true copy of the Rearonr for Judgment of Mr. Yu8tioe O'Loughlin.

Counsel for the appellant : Mr G. Walker

Solicitors for the appellant : Crossin Power Haslem

Counsel for the respondent : Mr P. Hastings

Solicitors for the respondent : Director of Public

Prosecutions

Date of Hearing	: 30 March 1990.
Date of Judgment	: 20 July 1990.