Garrett v The Queen

[1989] HCATrans 182

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A43 of 1988

B e t w e e n -

DAVID LEE GARRETT

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J
DAWSON J
GAUDRON J

Garrett

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 22 AUGUST 1989, AT 3. 37 PM

Copyright in the High Court of Australia

AlTll/1/PLC 1 2 Z/8 I 89

MR M.L. ABBOTT, ~C:  If the Court pleases, I appear with my

learne friend, MR. S. STRETTON, for the applicant.

(instructed by Mangan Ey & Associates Pty Ltd)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my friend

MR B.J. ILLINGWORTH, for the respondent. (instructed

by the Crown Solicitor for South Australia)

MR ABBOTT:	I have an outline of argument, somewhat longer, for which I apologise but in the end I assure the
Court it will save the Court's time. I hand up
five copies.

MASON CJ: Yes. If it is likely to shorten the oral argument

it is all the better.

MR ABBOTT: It will, indeed, shorten the oral argument, if the

Court pleases.

The substantial points which are raised by this application for special leave relate to the Court of

Criminal Appeal's decision to uphold the joinder because, it was said, the evidence fulfilled the test as laid down in KRAY and LUDLOW, namely, admissibility

of the evidence of one on the other. However, the

reasons behind this decision of the Court of Criminal

Appeal related not to any similarity but because the court said it was relevant to the issue of relationship,

and therefore what we complain of is this, that by

logical extension of the Court of Criminal Appeal's

argument, you may have factual situations which are

entirely disparate with no similarities but which,

because they relate to offences and because the

setting and context of such offences is said to be
relevant on the issue of relationship, joinder is
permitted because, so the argument runs and so the
argument ran before the Court of Criminal Appeal,

the evidence on one was admissible on the evidence of

the other. And what we complain of is what we

submit is an unjustified and unwarranted extension

of the rules laid down in relation to joinder by this

High Court principally in the cases of SUTTON and

DE JESUS.

The Court will see that in expanding the argument on joinder and admissibility in the outline of

argument we have said that in relation to the rapes and

the false imprisonment, whilst the court considered

section 278 of our CRIMINAL LAW CONSOLIDATION ACT,

the court went on to hold - and this is on item 3

of our outline of argument on page 3 - that whilst

the offences were neither legally similar nor

factually similar, there was sufficient similarity,

presumably, between the rapes and the false imprisonments
because, so it was said, the facts which constitute

them and the circumstances in which, and the relationships

AlTll/2/PLC	2	22/8/89
Garrett

out of which, they arise and then the elem:nt of similarity was identified as being personal domination by the ·

Chief Justice and we say that that is an element

which must be implicit in rape and false imprisonment

and finally, the court then said, and we set this out
in item 4 of our outline, that the Court of Criminal

Appeal used the test of whether the evidence of one offence was admissible on the trial of the other,

but erred in the application of this test. We

acknowledge that SUTTON and DE JESUS recognize this

test but do so in the context of similarities. The

Court of Criminal Appeal used the test not in the
context of similarities or similar fact evidence but
in the context of the evidence of the rapes being

admissible on the charges of false imprisonment,

because each showed evidence of the relationship between

the parties and that explained why the false

imprisonments occurred and provided the setting and

the context in which the false imprisonments were to be

understood.

Now, if I could just go back a little and tell

the Court very briefly of the history of the matter

that led up to this. The information in this case

is set out in the application book at pages 1 and 2.

There were seven counts, three related to three

separate acts of rape, one count between 15 July 1986

and 24 August. A verdict of not guilty was entered on that by a verdict of the jury. The second count: on the weekend of 12 and 15 September, again, not

guilty by a verdict of the jury. The third count,

the same weekend, and at the end of the weekend as

distinct from the beginning of the weekend, which is

what count two related to, a verdict of guilty by the

jury but substituted a verdict of not guilty on appeal.

And then counts four to seven which were alternatives, no verdict being taken on the fifth and seventh counts

but verdicts being taken on the fourth and sixth

counts, verdicts of guilty by the jury being taken

and that related to a separate occasion on 4 October

1986.

Now, the important point about all this is that

whatever one can say about the relationship is that

it was well and truly over by 4 October 1986 and

the facts disclose on the Crown case that, as a sort
of thumb-nail sketch - if I can put it this way,

Garrett and the victim met in July or early August,

they had a relationship which lasted from approximately
the middle of July to approximately the beginning of

September, that is, the weekend of 12, 13 and 14

September; that thereafter their only contact was
by letter written from Garrett to the victirn,and the
letters became significant because of what was said
by the learned trial judge, and there were then phone

calls on 4 October made by Garrett, the applicant, to

the victim - two phone calls. Firstly, a general call

asking for the complainant. That was answered by the

man who was then staying with her for the time. She

AlTll/3/PLC	3
Garrett

later formed a relationship with that person, but

it is important because it demonstrates that the

applicant knew that there was a man at the house

on 4 October - a subsequent phone call on 4 October

to pick up the belongingsand attendance to pick up
the belongings and it was at that stage that the

alleged false imprisonments and assaults occurred.

Counsel for the applicant sought, upon the trial

of this matter to sever the two groups of charges; the three rapes on the one hand and the four false

imprisonments - I will call them "false imprisonments"

although they were two assaults and two false

imprisonments - on the other and the basis on which

the application was made was that there was, indeed,

no relationship between the two other than the fact
it involved the women with whom he had been having a

relationship which had since finished and it was the

same applicant in both cases. That application was

resisted and the trial judge's rulings can be found

at pages 23 to 25 of the application book and it was

dealt with, as to joinder, by the Court of Criminal

Appeal at pages 362 to 364, and to those pages I now

turn.

At page 362, the start of the first paragraph,

a third of the way down:

It was contended that the charges of

rape were wrongly joined in the same information

with the charges of false imprisonment and

assault or, alternatively, if they were

correctly joined, the trial judge ought to

have severed the two sets of charges and

directed spearate trials on them in the

exercise of his discretion. The joinder of

charges in the same information is

authorised by section 278 of the CRIMINAL

LAW CONSOLIDATION ACT "if those charges

are founded on the same facts, or form, or are

part of, a series of offences of the same

or a similar character". It is necessary

to determine whether there is sufficient nexus
between the offences alleged in the information
to justify the application to them of the

description contained in the section.

I feel no doubt that the alleged offences

of false imprisonment and assault against

Miss Fuller were a part of a series of

offences in the relevant sense.

We have no quarrel with that in the sense that it was

the same complainant and the same applicant.	He
said that:

They formed part of a course of conduct,

according to the case for the prosecution,

extending through a large part of the

association between the appellant and

AlTll/4/PLC	4	22/8/89
Garrett

Miss Fuller and involving violence towards

and domination of her. I think that the

alleged offences of false imprisonment and

assault coIImlitted against Gray -

who was - I will call him "the boyfriend" because he later became that. At that stage he was only a male

friend.-

are so connected with the alleged offences

against Miss Fuller that they should properly

be regarded as part of the series.

Ordinarily false imprisonment and assault would

not be thought of as offences of a similar

character to rape. A similarity may arise,

however, no only from the legal elements of the

offences in question, but also from the facts

which constitute them and the circumstances in

which and the relationships out of which they

arise. An important characteristic of the

rapes alleged by Miss Fuller is the element of

personal domination of her by the appellant.

We would submit, as I have said, that it would invariably

be an important characteristic of any rape that there

would be an element of personal domination of the

complainant by an applicant such as this if he had

COIImlitted it.

The false imprisonment and assault upon her alleged to have occurred on 4th October

contain that same element of personal

domination -

again, we say it is inconceivable that there would be,

except in the most unusual of cases, a false imprisonment

that did not involve an element of domination of the

party being falsely imprisoned. He says:

and are clearly linked with the allegations

of earlier sexual violence.

As I will show the Court in a minute, in our

submission, they are in no way linked to the earlier

allegations of sexual violence. The Crown case was

that the relationship had finished, albeit a stormy

relationship but on and off and included, on the

Crown case, some rapes of varying types but there

had been times when there had been consensual sexual

relationships during the period of this non-consensual

sexual relationships. It had come to an end and here

he was five or six weeks after the relationship had

ended coming around to collect some of his clothes.

DEANE J:	What if the false imprisonment had occurred between
the two rapes, or between two of the rapes? Would
you contest it then?

AlTll/5/PLC	5	22/8/89
Garrett

MR ABBOTT:	In that situation, it may be considered as part of the res gestae, dependent upon the proximity in time.
DEANE J: No, for the purposes of the statutory provision.	If

there had been a rape one day and false imprisonment

two days later and a rape two days later, would you

say that the statute would not catch that series of

offences?

MR ABBOTT:  Yes, I would say that it is not apt to cover

that series because they are not the same or similar

character. I am accepting that there were no

unusual elements. For example, if all rapes and

false imprisonments had been at knife point, that may

be a sufficient nexus.

DEANE J:	No, take the second and third rape in this very case and put the false imprisonmentin_between them and
separate them by a couple of days each. You would
still say the section would not apply to them?
MR ABBOTT:	Yes, I would say the section would not apply because, again, it is not apt to cover a situation
where there is a different offence, different considerations, non-sexual. It is a mere act, on
the Crown case, of assault and deprivation of liberty unrelated to any sexual conduct on the Crown case.
The Crown case as put was that he was angry about
the relationship having finished.  I realize
that is not the -
DEANE J:	I was just trying to identify what your submission of law is which really seems to be that the points
about relationship having come to an end and so on
are not really relevant to your primary submission
which is that the false imprisonments simply could not
be caught by the section.

MR ABBOTT:  I do not go that far, Your Honour. I do not say

it could never be.

DEANE J:  On these facts.

MR ABBOTT:	On these facts - - -?
DEANE J:	The facts of the offences.

MR ABBOTT:  I am caught a bit by two things. First of all,

on the scenario Your Honour proposes, the scenario
would be one of a continuing relationship of two
rapes on successive days or with a day in between
and with a false imprisonment intervening. That
may allow a joinder because of the nexus considerations.
The cases show that where there is a nexus of that sort -
and I am thinking of O'LEARY's case for example
where considerations of res gestae have led to such

evidence being admitted - it would seem to me that

there may be at least possible scenarios where it

would be admissible. But I prefer to put it on this

AlTll/6/PLC	6	22/8/89
Garrett

basis: the relationship had finished. To use

as evidence of relationship was the wrong test

and to attempt to get it in under the law of

similar fact evidence, if you like, was entirely

the wrong way to go about it.

The court said at page 363:

I think that they are sufficiently similar in character to be regarded together with the alleged rapes as part of a series of offences of the same or similar character.

He then says:

that the offences ..... committed against Gray

are so linked ..... that they, too, should be

regarded as offences of similar character

to the alleged rapes. The admissibility of evidence of one offence on the trial of the

other is regarded as an important factor in

determining whether alleged offences are

part of a series of the same or similar

character.

As we read the cases, it is regarded, in sexual cases,

as an almost conclusive feature for admissibility.	I
think the only one of this Bench that has not firmly
expressed that view is Your Honour Justice McHugh;

or perhaps Your Honour Justice Deane has only adverted

to it.

In any event, the Chief Justice continued at

page 364, having at least put the principle of

admissibility on one - on the other. He says:

I think that the relationship between

the appellant and Miss Fuller, including

such incidents of sexual violence as were

on the trial of the charges of false imprisonment.	said to have occurred within it, was admissible incident of 4th October and the alleged earlier
context in which the incident of 4th October sexual violence provides the setting and the
is to be understood.

In our submission, if it is to be used for that

purpose then that is just another name for propensity.

It is saying, in our respectful submission, you use

the earlier incidents of alleged rape to consider

whether or not, on this occasion of 4 October when

the battle lines between the competing views were,

"I didn't false imprison you", according to the

applicant, and the complainant saying, "Yes, you

did false imprison me", you use the allegations of

rape with a view to discrediting the likelihood of

his story.

AlTll/7/PLC	7	22/8/89
Garrett

McHUGH J:  But that is common in all cases where there

is a relationship between parties. In sexual

cases one will have a history of previous

sexual conduct maybe going back for 12 months.

In this Court, you have got cases of ETHERINGTON

where there is a long history of offences.

MR ABBOTT:  Yes, but in ETHERINGTON they were allowed

in firstly on the basis that they were so

similar, as similar fact evidence. The continued

course of conduct - each one was, according - I

think Justice Walters was the judge presiding

in the Court of Criminal Appeal, spoke of the

admissibility being two-fold, firstly on similar

fact grounds and secondly on the course of conduct.

McHUGH J:  But take a case like O'LEARY that you mentioned

earlier: tnere, evidence was led of the accused assaulting not only the deceased by other people

over 12 or 14 hours, or longer, 24 hours.

MR ABBOTT:  Yes, 5 pm on one day to 7 am on the next.

But again, although the reasons for the admissibility varied amongst the Judges of the

High Court, I think the prevailing reason was

res gestae; so intimately connected with the

end result in point of time and place that it

legitimately formed part of the res gestae.

McHUGH J:  How would a jury ever understand the Crown's

case of false imprisonment without knowing the

background of this?

MR ABBOTT:  We would say quite simply, namely by being

told as part of the Crown case, and this being

proved and no more than this, they had had a

relationship, albeit a stormy relationship;

it had come to an end. He, on the Crown case,

was upset that it had come to an end. He came

round to collect his clothes and whilst he was

around collection his clothes, on the Crown case,

he pulled a knife because he was upset and

disturbed.

McHUGH J: That would be very unrealistic, really.

MR ABBOTT:  That is the view that was put at page 247, I think,

of the Crown address, two-thirds of the way down -

this is referable to that incident:

MR ILLINGWORTH: Is this a man who is being

truthful in his evidence. You may think

that he has made it up. Lies to get himself

out of the fact that he has gone to Miss Fuller's

home angry, upset, with a knife without excuse

becaue he knows that they have separated.

That was, as I understand it, all that was put

by way of explanation by the Crown in argument

AITll/8/JM	8	22/8/89
Garrett

and indeed by legitimate inference from the

evidence as to what had happened as to any

motive for the incident of 4 October.

In our submission, for the Court of Criminal

Appeal to say that the incident of 4 October would

be incomprehensible without some evidence of

the relationship is a correct proposition, but the

question which may fall to be considered by this

relationship 0 should include evidence of three Court is whether or not ('some evidence of the

alleged previous rapes and a number of alleged

incidences of rape which were not charged.

The Chief Justice continued to say:

and it was a legitimate part of the case

for the prosecution in relation to the

charges arising out of the incident of

4th October that they were motivated by

jealousy and possessiveness and an urge

to continue the course of personal

domination -

I presume that is a reference to rape -

of the appellant which had manifest itself

in the form of the earlier rapes.

In our submission, it was not a legitimate use

of the evidence of three previous rapes to use

them to infer that when he turned up on 4 October

it must be for the purpose of rape, albeit he

was only charged with false imprisonment. That

is propensity evidence, in our submission, at

its highest.

If I could briefly turn to what, in our

submission, is the relevant decisions on this

matter?

MASON CJ:

What are you going to get out of the relevant

decisions?

MR ABBOTT:  I hope to get out of the relevant decisions

this: that evidence of a relationship has not

been used as being sufficient to fulfil - - -

MASON CJ:  But do they deny that the approach taken in

this case is a permissible approach under the

section?

MR ABBOTT:  No, the cases do not deny - and I am referring

to the decisions of this Court in SUTTON and

DE JESUS - because, I say, it was never within

the contemplation of this Court, never put by

way of argument, that when this Court laid down

the rule about joinder and about evidence on

one being admissible on the other, it was not

AITll/9/JM	9	22/8/89
Garrett

within the contemplation of this Court that

evidence of disparate factual situations would,

or could be used, could be brought within that

rule by virtue of being "evidence of relationship".

It is that argument that I wish to advance by

reference to the two decisions of SUTTON on the

one hand, and DE JESUS on the other.

DAWSON J: It may be, of course, that the relationship

means that the situations are not disparate.

MR ABBOTT:  It may mean that they are not disparate, but

it may mean that they are. I would accept -

the question that we seek to put to this Court

is whether or not there must be the striking

similarity that is spoken of in the cases,

combined with the admissibility of the evidence
on one being evidence on the other; or whether

it is enough for there not to be the striking

similarity; whether the mere fact of evidence

of one being evidence on the other is sufficent because it is admissible on grounds relating to

JM relationship.

We would seek to argue that relationship is

not enough, there must be the feature of striking

similarity, or whatever you call it.

MASON CJ: Well now, you say the cases are going to support

the proposition that there must be striking

similarity.

MR ABBOTT:	Striking similarity, or some such traits as is used in the cases, and a high degree of probative force -
McHUGH J:	They are similar facts cases.
MR ABBOTT:	Yes, yes.
McHUGH J:	But it has never been the law that  joinder is

confined to similar facts cases.

MR ABBOTT:  No, it has never been the law, but in this case

the Court of Criminal Appeal used the proposition

that because the evidence was - one was admissible

on the other as per the decisions in SUTTON and

DE JESUS, therefore it fulfilled the requirements of joinder as laid down by section 278 of the

CRIMINAL LAW CONSOLIDATION ACT. We say the

Court of Criminal Appeal ignored, in coming to that

view, that the High Court in saying what it did say

about joinder, did so in the context of similarities,

whereas one could, theoretically, end up taking the

logic of the Court of Criminal Appeal at its highest

end up with totally disimilar situations, offences,

and say that they can be joined because they fulfil

AlTll/10/FK	10	22/8/89
Garrett

at first glance the test laid down by this

High Court in SUTTON and DE JESUS.	So it is
that line which I wish to take up.

MASON CJ: If you take us to the best statements that these

cases provide in your favour.

MR ABBOTT: If I could refer the Court

first to SUTTON, (1984)- 152 CLR 528.

The judgment of the former Chief Justice at

pages531, 533 and 534 is, in our submission,

relevant. In particular the adoption

at 533, where His Honour said, two-thirds of the way

down:

But in DIRECTOR OF PUBLIC PROSECUTIONS V

BOARDMAN the House of Lords held that bare relevance of that kind is not

enough. Lord Wilberforce said that

"The basis principle must be that the

admission of similar fact evidence (of the

kind now in question) is exceptional and

requires a strong degree of probative

force."

And, he went on to say at the bottom of the

page:

It remains necessary to consider whether the evidence is relevant in some other than the

prohibited way, but even if the evidence is

so relevant it will not be admitted unless

it is strongly probative or really material.

And then at page 534, he said that:

The law now affords a double safeguard

against the injustice that may be

caused by evidence of this kind. First,

there is a rule of admissibility which

excluded, as a matter of law, evidence

unless it is probative, and strongly probative, of the offence charged .....

Further the trial judge has a discretion -

He then dealt with the similarities and we rely

upon the three principles which were enunciated

by Justice Brennan at pages548 and 549 of

SUTTON's case.	He said, at page 548, at the bottom
of the page:

Admissibility depends on cogency to prove another fact, not upon the likelihood that the jury will convict the accused person

if they accept the similar fact evidence:

The cogency of similar fact evidence is

AlTll/11/FK	11	22/8/8~
Garrett

assessed by reference to its connexion

with a fact in issue or to a fact in the

chain of proof of a fact in issue.

The requirement of cogency to prove such

a fact is not satisfied by the capacity

of the evidence to engender mere prejudice;

it must go clearly beyond that to be

admissible. Provided the similar fact

evidence exhibits a sufficient connexion

with the fact to be proved - a question of degree to be assessed by the trial judge - and the fact to be proved is or is relevant

to a fact in issue in the trial, the similar

fact evidence is admissible.

And he then, at the middle of the page, refers to the following:

Although questions of admissibility

have usually arisen in cases where the

Crown seeks to tender evidence of the

commission of offences similar to the

offence charged, the cogency of such

evidence depends upon the connexion between

the facts which that evidence proves directly

and the fact which is said to be provable

inferentially from them. The connexion

between the offences which that evidence
proves and the offence charged is not the

precise question for consideration.

And so we say that if evidence of relationship is to

be admitted under the joinder - is to be used as a

reason for the admission, or for joinder of offences
then it must fulfil that test and, in our submission,

the evidence in this case did not fulfil that test.

If I could briefly turn to -

(Continued on page 13)

AlTll/12/FK	12	22/8/89
Garrett

McHUGH J:  But if you look at it as a matter of principle,

why was it not relevant on the false imprisonment

count to lead evidence of any fact which would

prove that your client was obsessed with Miss Fuller

and wanted to dominate her? You could prove

that by showing what he had done on previous occasions,

including raping her and so on.	Why is it not all
relevant evidence?

MR ABBOTT:	I can only put it this way, that that would have been proving or hoping to prove that by reference
to a propensity to dominate, if you like, he was
likely to have embarked upon the crime complained
of on the occasion relating to the false imprisonment.
It is an argument which, in our submission, highlights
the propensity aspect and does not highlight
and does not in any way fulfil the test of cogency as related in SUTTON and DE JESUS.

The evidence which I will come to in a minute,

in our submission, was referred to by the learned

Chief Justice as domination:

An important characteristic of the rapes

alleged by Miss Fuller is the element

of personal domination -

and it appears that it is that element that he picked

up as being the nexus between the rapes on the one

hand and the false imprisonment on the other.

If I could now turn to DE JESUS.

McHUGH J:  You see, these cases would be in point if the Crown

was seeking to prove that he had raped somebody

else but when you get a relationship case, it is a

different ball game altogether.

MR ABBOTT:	The question is how much of a different ball game does it have to be before the evidence of the
relationship of itself allows joinder because
the relationship may be said, or at least one part
of the relationship may be said to be directly relevant to proof of the commission of an offence involving another part of the relationship. Now,
that is a question of fact and degree, but what we complain of is the way in which the Chief Justice
PLC	used the tests of joinder without adverting to, or
wrongly adverting if he did advert, to similarity
and ignored similarity because we say there was not
any great similarity - he referred to the element
of personal domination only - and said that because the evidence of one was admissible on the other qua
the relationship only it, therefore, fulfilled
the test of joinder and, therefore, permitted the
joinder.

AlT12/l/JH	13	22/8/89
Garrett

MASON CJ:  But, Mr Abbott, this after all, is a special

leave application.

MR ABBOTT:	Yes.
MASON CJ:	In order to get special leave you have got to demonstrate that there is some point of
principle involved and so far all you have
managed to say to us is that really a case of
this kind, a relationship case, is rather
different from the other cases in which the Court
has considered the question of joinder. Now,
there does not seem to be any mistake of
principle in what the Chief Justice said in his
judgment and you need to convince us, if you are
going to succeed, that there was a mistake of
principle.
MR ABBOTT:	Well, I had hoped that what I have read out by

the Chief Justice would be considered by this

Court to be a mistake in principle in that after

sighting the proposition:

The admissibility of evidence of one offence on the trial of the other is

regarded as an important factor in

determining whether alleged offences are

part of a series of the same or similar

character -

and referring to KRAY and LUDLOW, he then goes on

to say why in his view the evidence of one offence
is admissible in the trial of the other but does

not do it by reference to similarities but by

reference merely to relationship. And, the point

of principle that I thought one could draw out of

this, was whether or not, if it is to be related

by evidence of relationship, that one can advance from

one proposition to the other it must still be

accompanied by similarity.	Or does one put
similarity aside? And, our submission would be that

when that proposition was enunciated in KRAY and
LUDLOW, when it was taken up by this Court in

SUTTON and DE JESUS, it was in the context of the

admissibility being determined by reference to

similarity, similar effect evidence. Here, we say

the Chief Justice fell into error by endeavouring to

map out a new principle that because it was evidence

of relationship, per se, and because on his
perception the evidence was admissible via the proof

of the relationship that that was enough.

GAUDRON J:  Well, Mr Abbott, assume they had been severed.

Would the Crown have been able to lead evidence of

the relationship at the trial of the separate counts?

A1T12/2/JH	14	22/8/89
Garrett

MR ABBOTT:	Some evidence of the relationship to prove that they knew each other and that they had been seeing each other but there had been an interval of time
when they had not been seeing each other to
explain why his things were at her house.
GAUDRON J:	What you say is that on a separate trial

evidence would not have been admissible of what

you have referred to as the "stormy nature of

the relationship", is that right?

MR ABBOTT:	Yes.
GAUDRON J:	Well, the question is not really, as you would

wish to argue, anything other than one of the

admissibility of the evidence. Is that right?

MR ABBOTT:  It is, indeed, a question of the admissibility

of the evidence, yes.

GAUDRON J:	Yes, well why is it not admissble?
MR ABBOTT:	Well, we would say because it is not probative of a fact in issue and the fact in issue in which it is sought to be probative is the commission of
the offence. It would be led in the circumstances
that you have outlined to prove the commission of the offence; it would not be led to rebut motive or
prove identity.

McHUGH J:  It does not have to be. It is admissible if it

goes to make more probable a fact in issue. The

fact in issue is did he imprison her? And the

Crown says he had a motive for it; he was jealous

and obsessed with her; he liked to dominate her.

Well, why could not the Crown lead evidence to prove those things, not to show that he had

a propensity to commit this sort of offence, but to

show that he did actually have this obsession

and need to dominate this woman - - -

MR ABBOTT:  Well, it was not the Crown case that he did need to dominate her and he did have this attitude

towards her. It may have been, and may still be,

an inference that one can properly draw from reading

of the evidence but the way in which the Crown

presented its case was not of that sort.

McHUGH J:  Yes, I see what you have - you have pointed out

to us what was said in the Crown's address.

MR ABBOTT:  Could I just briefly turn to what the learned

trial judge said on this aspect. As to joinder

the learned sentencing judge sa!d this at - his remrrks are to

be found at pages 23 to 25 of the applicaticn book.

I will not read it out but there was debate

between pages 3 and 23 by the applicant's counsel;

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the Crown position can be seen at pages 13 to 15

and the ruling by the trial judge seems to have

been, "Well, they were part of the relationship,

therefore, they went in". Now, on that basis

the applicant was faced with fighting a trial

in which the Crown led evidence of numerous

allegations of rape, including the three rapes

charged but other allegations of sexual misconduct

between the two and culminating in the incident of

4 October such culmination having occurred after

a - - -

MASON CJ:	Yes, well you have told us that.
MR ABBOTT:	- - - cessation of the relationship. In our submission, the words of Your Honour Justice Dawson
are apt.  As I have said in the outline of
argument at page 3, item 3, what Your Honour Justice Dawson said in (1986) 68 ALR 1, at page 15 r'Your Honour
put forward this as being Your Honour's view ot the
law in relation to joinder,at line 15:

However, for two or more offences to

constitute a series there must be a nexus

or a connection between them. This, I think,

is something different from the express

requirement in section 585 that the offences

must be of the same or a similar character.

Whatever may historically be behind the use

of those words ..... as a matter of

construction the requirement in my view

refers more to the legal character or

components of the offences than to the

facts alleged by the prosecution in the

particular instance. Thus offences of rape

are of the same kind and other offences of

a sexual character, such as indecent

assault, may be offences of a similar kind

to rape.

Similarity may also indicate _a nexus,

but similarity of that kind relates rather

to the facts alleged by the prosecution

to constitute the offences rather than to

their legal characteristics. The

distinction may not be one which can be

maintained with total precision, but it is

useful because otherwise the expression

used in section 585 - "a series of offences

of the same or a similar character" - is

somewhat tautological, since similarity

is itself one of the hallmarks of a series -

and Your Honour then quoted Lord Pearson and said:

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Even in that statement there is an element of circumlocution, but it is clear

enough that, by requiring a series of

offences, the section does not countenance

the joinder of counts charging offences

which are legally the same or similar in

character but which in their factual

setting are disparate.

And, in our submission, in this case involving

this applicant, we have offences, albeit with some

similarity, by which in their factual setting are

totally disparate. The only factual connection

alleged between them is the same applicant, the same

complainant and the alleged element of personal

domination.

MASON CJ:  Mr Abbott, I think we have spent a good deal

of time on this point.

MR ABBOTT:  Yes, well, as I have said, sir, I have set this

out in some detail in the outline of argument.

Could I turn then to the next point, point 3,

because points 1 and 2 really go together - - -

MASON CJ:	Yes.
MR ABBOTT:	- - - and that is the learned trial judge's

directions to the jury. And, this is raised in

the application book in the course of the summing up

at pages 312-314 and, in our submission, to say, as

the learned trial judge did say to the jury in

these pages, was to deprive the applicant of a trial

which was fair. The relevant passage starts

at page 312 where he is dealing with the fact that
after the relationship had finished thereafter the

applicant wrote a number of letters and he said,

at line 15:

and in that respect no doubt you will

have in mind the letters and the

statements made in the letters, and that

is the second topic I want to say something

about.

He then said:

If the accused was writing sincerely in

those letters about his love for Miss Fuller,

inevitably one must ask oneself "How could

he be treating her at the same time as

violently, as brutally, as the Crown

alleges".

Well, I point out that he was not during the time the

letters were written but on the Crown case he had

been

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Well, there are a number of possibilities

and one is, of course, that he wasn't

treating her violently, as the Crown

alleges. Another is that he didn't love

her at all, the whole business of the

letters was false from beginning to end.

But there is another reconciliation,

ladies and gentlemen, that you might care

to consider, and that is that perhaps the

accused is one of those people who gets
sexual gratification from ill-treating a

woman while he is having intercourse with

her.

Now I am not here to give evidence, of course, and if this is not part of your

general knowledge, ladies and gentlemen,

then you will ignore it, but we all know,

I am sure, that knife-point rapes do happen.

Typically someone is hiding behind a bush in a dark road and leaps out at a passing

woman and then and there terrorizes her with

a knife and has intercourse with her. Now

to any normal person, having intercourse in

those circumstances is just unthinkable; it

would be so repulsive that no normal man
would want to have it with someone who was

in terror and fear of her life; but we know

there are people who do have it and it

does happen, who get their sexual excitement,

and have intercourse, not only from someone

who doesn't want it but from someone who is

in fear and terror at the same time.

On the evidence of the Crown, in the

case of Miss Fuller, that would seem to be

the case here.

I want to read some more of it but just pausing there: in our submission, to direct the jury to consider

the question of whether or not they know it is

within their knowledge that knife-point rapes do

happen is to direct and to deflect the jury into an

area which is entirely impermissible and unwarranted.

It is, moreover, so dangerous an area given that

the false imprisonment allegedly occurred with a

knife but the allegation of rapes and other sexual

misconduct never did. The evidence in relation

to the knife as it emerged at trial was that the

applicant customarily carried a pocket-knife on him;

that he had had the pocket-knife on him apparently

whilst he had connnitted rapes,on the Crown case,but

had never used it. True, it is, on the Crown case,

he had done horrible and hideous things

to Miss Fuller but he had never raped her at

knife-point. On the false imprisonment, however, the

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Crown case was that a knife had been used and the allegation on the Crown case was that he had come

back to collect his clothes, pulled a knife on her

and it was in that context that, we say, the

damage was done.

The jury were directed, as it were, to

consider whether or not the applicant was a

knife-wielding rapist and, if so, draw inferences,

if they found that he was such a person, adverse to

him.

McHUGH J:  Well, the Court of Criminal Appeal said there

was no substance in this criticism that you have

just made of the summing up.

MR ABBOTT:	Yes, well in our submission, quite wrongly the Court of Appeal erred in saying that. The -
DEANE J:	But, Mr Abbott, if you read on it is quite clear

that what His Honour was really saying was that

the jury would not convict your client of the

rapes unless they thought he was a monster because

unless he did these things for the sake of doing

them, there was no point in doing them; that was

all helpful to your client.

MR ABBOTT:  Well, it is help we could have done without, in my respectful submission. He was characterized

as a sick psycopath, one who got his kicks

sexually out of degrading the person he is having

intercourse with according to the learned trial

judge at page 314. But, the vice of this is that it,

in our submission, resulted in an impermissible
enlargement of the evidence; it was the trial judge,
in effect, giving evidence directing the jury to

explore areas, concepts which were not part of

the Crown case and which, in our submission, were

never ventilated either directly or indirectly by

the Crown and by the defence. There was a request

for a redirection on these matters which was

refused and the jury went out with the outrageous,

in our submission, vision of Mr Garrett potentially

being a knife-wielding rapist who was only waiting

to do it again. And, we would say that this cast

a shadow over the jury's consideration from which
one can see perhaps an explanation for the

entirely inconsistent verdicts which were given by

the jury. They found him not guilty of the first

charge of rape and in respect of a week-end, when

her story was that she was raped at the beginning
and raped at the end, they found him not guilty of
allegedly raping her at the beginning of the week-end
but guilty of him raping her at the end of the

week-end. And, in relation to the charges of false

imprisonment some five weeks later they found him

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guilty. In our submission, one must add in to

the comments of the learned trial judge at

pages 312-314 what he initially said to them about

the issue of joinder and what they could do with

the evidence of the previous rapes, if they found

them to be rapes, and those directions are to be

found at pages 277 through to 279, and I refer the Court

McHUGH J:  But, what does this issue go to now? The jury

acquitted your client of the first two rapes and

the Court of Criminal Appeal quashed the
conviction in relation to the third rape so he has

got no rape convictions.

MR ABBOTT:  No, there is only the false imprisonments left

and the verdict of the jury on the false

imprisonments was upheld by the Court of Criminal

Appeal on the basis that the joinder was permitted

at law and not against principle and that the

comments by the trial judge in the course of his

summing up were not unwarranted or unfair. It goes

to this point, with respec 4 sir, that we wish to

maintain that the comments of the trial judge in

the course of his summing up on this topic were

so unfair that a trial which was not fair at law

occurred by the impermissible enlargement of the

evidence by the trial judge in his comments to the

jur~ in particular at pages 312-314. We say that

they totally miscast the applicant as a knife-wielding

rapist and it may explain why he was convicted of an

occasion when the Crown said he was wielding a knife

and may explain why he was convicted of one occasion

when, although the Crown said he was not wielding a

knife, he raped.

It, in a very stark and dramatic way,drew

together the three rapes on the one hand and the
incident involving the allegation of false
imprisonment on the other. And, it is clear that the

learned trial judge regarded,and we say although the

Crown did not, that the incident of 4 October was an	occasion when he was determined to rape her at
knife-point. In our submission, one can glean that
from pages 277 and 278 where he said,three lines from
the bottom of page 277, that the offences:

They are joined, as you will conclude, for

convenience. What they have in common on

the Crown case is that they are all crimes

of violence directed, so far as seven

counts are concerned, against the one

victim.

He was wrong there, it should be two, but that does

not matter:

AlT12/8/JH	22/8/89
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Miss Fuller, in her own house, and within

a fairly short period time. With three
of them, the first three, the purpose of

the violence, again I say on the case

the Crown presents, is perfectly plain.

The purpose of the violence with respect

to the episode on the 4th October is not

so plain; you may think that, again if

you accept the Crown witnesses, is because

whatever the accused had in mind was

perhaps frustrated by finding that there

was a man in the house who also had a

knife. So what precisely the accused had

in mind on that occasion may not be known,

or may never be known. That, as I say,

is to look at the case through the eyes of
the Crown. But it explains, as I say,

why the seven charges are joined in the

one information and tried together.

Now, the explanation he gives there is that clearly,

in his eyes, they were all rapes or intended to be

rapes, namely, the incident of 4 October was a man

wielding a knife going to the house and having in

mind rape but to use the trial judge's words:

perhaps frustrated by finding that there

was a man in the house who also had a

knife.

It is also a fact that what he said there was not part of the Crown case. The Crown case was quite

different; this was the trial judge's case as

perceived by him. Coming on top of those remarks at

pages 278 and 279 is the passage that I have

referred to at pages 312-314 and, in our submission,
the combined effect of those two groups of

passages is to impermissibly enlarge the evidence

and I have referred to that in my outline of

argument and I have referred to the fact that the

jury have been invited by the learned trial judge

to consider in arriving at their verdict matters

which ought not to have been submitted to them and,

in our submission, these matters that I have referred

to should not have been submitted to them.

The learned trial judge has put forward views

of the evidence which, in our submission, are not

proper to be put forward and although he may have

said on occasions, and we accept that he has said on

some occasions that the facts are for them,

he has not in any way strongly enough told them that

they may disregard what he said about knife-wielding

rapists. And, in our submission, the views put

forward by the learned trial judge may well have

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coloured the evidence so that no direction could have saved the trial from being unfair given the

strength of the language that was used by the

learned trial judge. As I have said in the outline,

the connnents by the learned trial judge may have
been of such a nature that it invited the jury to
improperly speculate or draw inferences that were

not proper to be drawn on the evidence; they were

certainly not part of the Crown case and the

introduction via the mouth of the learned trial

judge of this evidence about"knife-wielding rapists'

and people of that sort unsupported by any

evidence at the trial and indeed, unsupported by

the Crown case, was so prejudicial that it amounts

to the introduction of impermissible evidence of the

sort that occurred in MARIC's case. I then rely

upon the principle of BALENZVELA V DE GAIL, where

we say this is another example of the learned trial

judge impermissibly and wrongly enlarging the

evidence that the jury were invited to deliberate

upon by telling them of this scenario of

knife-wielding rapists.

In my final point at paragraph 5, I have set

out what, in our submission, is the vices that are

inherent in those directions by the learned trial

judge and, in particular, they amount to putting

the accused's character in issue when he had never

done so and no evidence had been called by the
Crown to in any way indicate that he was in any way

a knife-wielding rapist or, indeed, of the sort
of person whom the learned trial judge invited the

jury to speculate upon in the passage complained of.

Those are the submissions I wish to make, if the Court pleases.

MASON CJ:  Thank you, Mr Abbott. The Court need not trouble

you, Mr Solicitor. The Court is of opinion that the

decision of the Court of Criminal Appeal is not

attended with sufficient doubt to justify the grant

of special leave to appeal.	The application is
therefore refused.

AT 4.40 PM THE MATTER WAS ADJOURNED SINE DIE

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