Glennon v The Queen

[2002] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2001

B e t w e e n -

MICHAEL CHARLES GLENNON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 11.28 AM

Copyright in the High Court of Australia

MR G. TRACZYK:   May it please, your Honours, I appear on behalf of the applicant.  (instructed by Jamieson & Co Solicitors)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MR C.J. RYAN, for the respondent.  (instructed by the Director of Public Prosecutions (Victoria)

GLEESON CJ:  Yes, Mr Traczyk.

MR TRACZYK:   If it please, your Honours.  This application concerns the proper application of section 398A of the Crimes Act.  At the trial of the applicant the issue between the prosecution and the defence was whether or not any of the crimes that were alleged by the prosecution had been committed.  The prosecution in support of its case sought to rely on evidence from a number of complainants in order to put forward to the jury the argument of how probable or improbable is it that a number of complainants of seemingly independent origin would make similar complaints against the applicant.  It must be remembered that the Crown never sought to justify the joinder of counts on the basis of what is generally termed “similar fact evidence”, but simply to support what I would call the “improbability of coincidence” argument.

It is conceded by the defence that that is a very powerful argument, indeed.  The defence sought severance of the allegations - of the counts in respect of separate complainants on the basis that the defence did have an answer to the prosecution “improbability of coincidence” argument.  The answer was that the complaints made against the applicant were not of an independent nature, because the applicant was well known to each of the complainants and each of the complainants knew that the applicant had, in the past, in the not too distant past, been convicted of quite a number of serious similar type of offences to the ones alleged by the applicants in this case; that is, offences of a sexual nature.

The difficulty for the defence always was that in order to explore that argument in detail it would be necessary to put to each of the complainants the fact that they were aware of the massive publicity which had surrounded the applicant prior to each of the complainants making their complaint against him to the police, and that they were influenced by that publicity to, what the defence say was, concoct allegations against the applicant.  To do that properly would have of necessity entailed revealing to the jury the full extent of the media publicity concerning the applicant.

GLEESON CJ:   When you said, the defence say the allegations were concocted, you mean the defence lawyers?

MR TRACZYK:   Well, the applicant did not give evidence at trial, but it was clear that his defence was that the offences never occurred.  That was clearly the issue between the prosecution and the defence.  So the difficulty, as I say, the defence were confronted with to meet the Crown argument of improbability of coincidence of similar complaint from seemingly independent sources, would, as I say, have necessitated the defence disclosing the full extent and nature of the publicity surrounding the applicant. 

Now, I am not entirely sure whether your Honours are familiar with the applicant in this case and the publicity surrounding him is only touched on in fairly general terms in the judgment of the Court of Appeal, but if I could take your Honours to ‑ ‑ ‑

GLEESON CJ:   There is a decision of the High Court about it, is there not?

MR TRACZYK:   Yes.

GLEESON CJ:   You can take it we are broadly familiar with that.

CALLINAN J:   And their Honours say it was notorious in Victoria, so that is enough to indicate the nature of the publicity.

MR TRACZYK:   Absolutely, but the point that I want to re-enforce is that the nature of the publicity was extremely vehement and, in essence, referred to the applicant, on every occasion when he was mentioned in the public media as, in essence, a convicted paedophile. 

The defence in meeting the proposed Crown argument of improbability of coincidence would have been able to, if not for the prejudice that was necessarily to be engendered, to have said to each of the complainants, in essence, questions along these lines:  “Look, you were aware, before you made your complaint to the police, that the applicant had been convicted of serious sexual offences and sentenced to a long term of imprisonment.”  One would expect that their answer inevitably would have been, “Yes”, and then the next question would have been, in essence, “Well, you, knowing or believing that he was a convicted paedophile, were prepared to concoct your allegation against him, because you thought that he being a convicted paedophile already could not be punished any more or he might get punished more, but he probably deserved it, because he is a convicted paedophile.”

Now, whatever their answer, their answer no doubt would have been, “No, my allegation is true”, but, nevertheless, it is a powerful argument in favour of the defence to then say to the jury, “Well, look, the only reason that these people would deliberately concoct an allegation against this man is that they believe that he is not innocent of this sort of activity”.  In other words, it is far easier or there is far more motive for a person to concoct an allegation against somebody whom they believe is an evil person rather than to concoct an allegation against somebody against whom they bear no grievance or hold no particular belief. 

Now, pursuant to the rulings of the trial judge, the Crown were left in a position of being able to argue in front of the jury the “improbability of coincidence” argument and, as I have said before, it is a powerful argument indeed, in the absence of any sensible answer from the defence and the submission that I make to this Court is that the defence were precluded from putting a sensible argument in front of the jury, because they were prevented from doing so, because the defence could not have run that argument in front of the jury, because the prejudice that would have been created by revealing the nature and extent of the publicity surrounding the applicant would have been overwhelming.

GLEESON CJ:   Is the theory behind all this that the various complainants would have known about the publicity, but the jury would not have?

MR TRACZYK:   Well, in terms of the question of the admissibility of evidence - this is the question that I am asking this Court to consider, admissibility.  The question of admissibility is a matter for the trial judge.

GLEESON CJ:   No, but when you are talking about the inhibition that you say the defence was under, it seems to proceed upon the assumption that everybody in Victoria knew about this publicity except the jury.

MR TRACZYK:   Well, one may have suspicions that the jury were aware, in some way, of the applicant’s background and, indeed, an argument or a submission was made to the learned trial judge, and also one of the grounds of appeal in the Court of Appeal, that he, because of the publicity surrounding him, had been prevented from receiving a fair trial.

GLEESON CJ:   Which assumes that the jury could not attend properly to their duties, because of the publicity.

MR TRACZYK:   Well, that was the argument that was put in respect of the publicity aspect.

CALLINAN J:   Can you challenge for cause in Victoria?  Can you challenge jurors for cause?

MR TRACZYK:   You can, yes.

CALLINAN J:   So that the stay procedure was available, if you could make good the point and, if there were an appropriate basis, you could challenge jurors for cause.

MR TRACZYK:   Well you could, but the defence have accepted the correctness of the rulings both of the trial judge and the Court of Appeal in respect to the ability of the applicant to obtain a fair trial regardless of the publicity that has surrounded him.

GLEESON CJ:   Yes, there seems to be an assumption that if somebody is sufficiently notorious, he or she cannot get a fair trial.

MR TRACZYK:   That is certainly not the legal assumption; I do not think anybody ever has had a permanent stay of a trial on that basis.  That is maybe an argument that is run quite often in trial courts, but I do not think – well, it is rarely, if ever, successful.  But that is, with respect, a separate issue to the issue that I am raising here, because the issue before the trial judge on the question that is raised in this application is the admissibility of the evidence and what the trial judge was required to consider was the application of section 398A(1) and the test there set out whether it is just to admit the evidence despite any prejudicial effect it may have on the accused.

CALLINAN J:   The trouble about all the argument is this, is it not, that the more offences a person commits, the more likely that propensity evidence will be relevant, and the more offences a person commits then, inevitably, the more publicity will be attracted, so that the argument is circular, is it not?  It is inevitable that a serial offender is going to attract a great deal of publicity and a serial offender is a person in respect of whom propensity will be demonstrated.  If your argument is right, the more offences that are committed then the less evidence of propensity will be admitted.  It cannot be right, can it?

MR TRACZYK:   Well that assumes that the offences alleged have, in fact, been committed.  Now, this is a fairly unique case – well fairly unique I suppose is an oxymoron – but it is not a very common case by any stretch of the imagination, in that the nature of the publicity surrounding this applicant distinguishes it from many, many other cases, if not, in fact, all other cases and the likelihood of that publicity affecting the complainants in the instant trial is far greater than perhaps one could imagine in any other trial.  I am not sure that I have actually answered your Honour’s question there, but in terms of propensity evidence there are still safeguards imposed by the court; it is not all propensity evidence that is admissible either pursuant to the new section 398A or the previous law as it had been developed in this country and particularly right up until the time of Pfenning.

There are always limitations on the number of offences that the prosecution could allege in a criminal trial, there being a point and, indeed, as was conceded by the prosecution in this case, that in this case there were originally on the presentment 65 counts, I think, involving some 15 complainants.  The prosecution itself, in this case, admitted to try all 15 complainants together would be just too prejudicial and perhaps that answers your Honour’s question, that there is a limit as to the number of offences that can be tried on the one count or the number of complainants that can be joined.

The test that is set out in section 398A itself is whether:

it is just to admit it despite any prejudicial –

value that the admission of the evidence might engender.  In this case it is not disputed that the propensity evidence was relevant to a fact in issue.  I repeat again, the defence concede the power of the argument of how improbable is it that a number of seemingly independent complainants would make the same or similar allegations against the same man.  So the relevance of that evidence is not in question.  The question that is in dispute is the admissibility of that evidence; that is whether it is just to admit it, despite any prejudicial effect.

The sort of problem that I have outlined to your Honours, was in fact first considered by the Victorian Court of Appeal in the case of Best, where his Honour Mr Justice Callaway, at page 619, posed the very same problem that I am raising with this Court here, where the argument was, at line 22 of the decision:

One of the submissions Mr Hill advanced under grounds 1 and 2 was that defence counsel had one hand tied behind his back because the argument in favour of concoction or unconscious influence derived from the publicity when the applicant stood trial in 1996.

Just reading on then further at line 34:

The rubric under which this submission would fall to be considered is unfairness arising from inability to test the reliability of the evidence, in the sense in which I have used that word in this judgment, once the evidence is before the jury.

In other words, that seems, with respect, to be the identical sort of problem that has arisen in this case. 

Now, in the case of Best his Honour Justice Callaway, despite having posed the question, did not answer it, a retrial being granted to the applicant in that case on different grounds, so the question was left pretty much up in the air.  The same question, the same problem, arose in this case.  Those submissions were put to the learned trial judge.  She made a ruling and a ruling appears in the application book, and I have paraphrased it in the applicant’s summary of argument, as, in essence, a ruling to the effect that the argument raised matters of credit and that credit were matters for the jury.  With respect, I would submit that that is simply wrong.

In the Court of Appeal, once again Justice Callaway considered the very same problem and, indeed, referred to that very passage in Best that I have just quoted and, once again, at page 119 of the application book, Justice Callaway in the Court of Appeal decision in the instant case referred to that very passage in Best and in dealing with the particular problem raised, made the comment at line 116 of his judgment, which as I say appears at page 119 of the application book:

The two points to remember are that the defence was by no means wholly debarred from testing the evidence by reference to the publicity and that there was no allegation of innocent infection at the first trial.

Now, the submissions that I make in respect of those two observations by Justice Callaway are these, that when he says the defence were “by no means wholly debarred from testing the evidence by reference to the publicity”, he quite obviously is talking about testing the evidence in front of a jury.

Now that cannot be relevant to a decision on admissibility, which is a matter for the judge, but even if it is relevant to the question of admissibility, it misses the point and, indeed, seems to implicitly accept the fact that there is a limitation on how far the defence can test the reliability of the evidence as to whether or not it is a deliberate concoction influenced by adverse media publicity, because he himself makes the very comment that defence is “by no means wholly debarred from testing the evidence”.

Indeed, in the second trial of the applicant – and I might indicate that in respect of that second trial involving a number of complainants, the Court of Appeal has, in fact, granted a retrial – the decision to grant a retrial was based on the fact that this very issue of whether or not the complainants had been influenced by media publicity to concoct their allegations against the applicant, that was raised specifically at the second trial and her Honour the

learned trial judge had refused, or the Court of Appeal found that she had not correctly instructed the jury on the effect of, perhaps, media publicity ‑ ‑ ‑

GLEESON CJ:   Yes, thank you, Mr Traczyk.  We do not need to hear you, Mr McArdle.

The Court is not persuaded that an appeal in this matter would have any significant prospects of success or that there is arguably any miscarriage of justice, and the application is dismissed.

AT 11.50 AM THE MATTER WAS CONCLUDED