Grattan v The Queen

[2006] HCATrans 130

[2006] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S482 of 2005

B e t w e e n -

PHILLIP JOHN GRATTAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2006, AT 10.58 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant.  (instructed by Ryan & Bosscher)

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

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  Particularly in the context of the Evidence Act but also more generally, in our submission, it often obfuscates rather than elucidates the nature of an evidentiary problem to describe uncharged and similar or fairly similar acts as relationship or background ‑ ‑ ‑

GLEESON CJ:   I presume these acts were uncharged because they occurred outside the jurisdiction?

MR GAME:   Yes, your Honour, but that is not obviously the point of the issue because the point of the issue is do they get into evidence and, if they get into evidence, how do they get into evidence?

GLEESON CJ:   There is only one, is there not, that we are concerned – in terms of act, is it not evidence of an alleged admission?

MR GAME:   Yes, your Honour.  I would have to accept that a concession would wrongly have been made about – you understand that that admission is said by Mr Mann to relate to a different incident of which the complainant did not give evidence.

GLEESON CJ:   It was my understanding that the only evidence that was objected to at the trial was the objection of Mr Mann’s evidence of an assertion about what had gone on in Queensland.  The point of the objection at trial, as I understand it, was that it was different from the evidence of the complainant.

MR GAME:   The point was – it is slightly difficult because counsel was conceding that the incident about which the boy complained of which Mr Mann gave evidence was admissible as relationship evidence, but the argument – and the evidence is admitted but there is no judgment in relation to this comment but it is admitted clearly as relationship evidence and one can see that from the transcript, although that has not been included.  Yes, your Honour, but this evidence – I think it is not correct to say that the objection was merely because the boy did not give an account about it.  I think the evidence sought to strike it on the basis essentially that it was propensity reasoning or evidence of that kind.  I think the objection was of a more fundamental kind.

GLEESON CJ:   Certainly if the admission was true, it was evidence of propensity.

MR GAME:   If the evidence was true, it was evidence of propensity, yes, but it was not admitted as propensity evidence.  If it was admitted as propensity evidence, then it would be used in a different way in the trial.  If it was admitted as propensity evidence, then the jury would have to form a view about it to whatever standard.  Some cases say beyond reasonable doubt, but to whatever standard before they used it.  But if it goes in as relationship evidence, the jury do not get any directions about whether they have to form any view about it of any kind.  If one goes back one step, for it to be admitted as propensity evidence, it has to pass both sections 97 and 101 of the Evidence Act (NSW).

HEYDON J:   It was not admitted as propensity evidence though.

MR GAME:   No, it was not.

HEYDON J:   What is wrong with the judge’s directions on page 29?

MR GAME:   We say those directions are wrong, but I have to explain that the special leave point goes to the admissibility of the evidence and we are looking at this to see how it was used, to see how it was admitted.  If you look at page 29, that is actually 2000.  Where it says “2002” at about point 3, that is actually 2000.  There were incidents alleged between – the first group of incidents were in – I am answering your Honour’s question but in a slightly circuitous way.  There were incidents in 1993 and 1994 and that was the first group of counts.  There were incidents in 1997.  That was the next group of counts.  There were incidents in August 1999 and that was the next group of counts.  Then there was this group of uncharged – I will call them the Brisbane acts.  They were in January 2000.  Then there are two more counts, December 2000 and September 2001, and then there is a further uncharged act late 2001.

We would submit that this evidence could not be admitted as relationship evidence within that broad rubric because, for it to be admitted as such, it would have to, as it were, throw some light on the relationship such as why had a complainant not complained, why was there an escalation in events, why, for example, is there a worsening of events or why is there, shall we say, a gap of time between accounts, why did the complainant behave in a particular way?  We say none of that reasoning applies to these evidence of what happened in 2000.

HEYDON J:   There are two Mann items of evidence, are there not?  There was an objection to the second one that the Chief Justice was referring to and not the first.

MR GAME:   That is correct.

HEYDON J:   If the second one is inadmissible, why was the first?

MR GAME:   If the second one is inadmissible, the first one was not admissible and should not have ‑ ‑ ‑

HEYDON J:   The fact that it was not objected to casts some light on a number of things.

MR GAME:   It puts me in a weaker position, your Honour.  All I can say is that counsel should have objected to that as well.  Can I say this, that if the objection was good, then, as it were, it may – there may be a proviso problem but if the objection was good, then the objection has to be measured against whether the evidence really was admissible for that purpose.  We would submit that it would not necessarily be cut down by the fact that the concession was made about the earlier, as it were, incident about both which the complainant and Mr Mann gave evidence.

Looking at that page – and I am coming now to what your Honour has taken me to at page 29 – it hardly makes sense to say that you are, as it were, making the incidents “more intelligible” or that you have “isolated acts occurring without any apparent reason” or “it’s very odd for there to be such isolated” – that might apply to another case and it might apply very well to another case, but that has absolutely nothing to do with this case.  Then at the bottom of the page the jury are told not to use the evidence of tendency reason.

If it is relationship evidence, then there is nothing wrong with those directions.  If it is relationship evidence, there is nothing wrong with those directions because the jury do not have to form a view about the relationship evidence.  But if it is sought to, as it were, prove the offence through proving the admission made in Brisbane to Mr Mann, then the jury do have to form a view about it to whatever standard and the jury have to be given directions of the kind foreshadowed by Justice McHugh in BRS.

Our submission about this evidence is – and what is tendency evidence and what is not tendency evidence is no easy matter, but guilty passion, for example, or desire has been treated as tendency evidence.  Evidence that shows his state of mind has been treated as tendency evidence, whereas evidence of motive a la Plomp v The Queen has been treated as not being tendency evidence.  In this case the critical reasoning is

because he admitted to Mr Mann that he had done a particular thing in relation to the complainant, therefore because of that, it was more likely that he did the other acts which are alleged against him. 

That is the heart of it.  Forensically it is understandable why counsel objected to this because this is the sole piece of evidence in the case that has a real corroborative – I say the sole.  There are some other Mann evidence, but it is a very strong piece of probative evidence if it is properly admitted that he did the other acts.  In my submission, at the heart of it is propensity reasoning and that is the issue.

If I am right about that, then why – the Court of Criminal Appeal said it is admissible as – this ground is discussed at pages 101 to 103.  What in effect is said is that Justice Gaudron’s decision in Gipp should not be followed in view of the fact that there appeared to be a split majority in Gipp.  If one looks at Gipp, the judgments of Justices Gaudron, Kirby and Callinan at least make it plain that you have to identify a specific ground for admission without calling it in some generic sense relationship evidence.

You can see from the discussion on pages 102 and 103 that the judgment of Justice Gaudron is not accepted as being the law in New South Wales.  How evidence of this kind is described, how it is dealt with in terms of admissibility, in our submission, is a vexed question.  Your Honour Justice Heydon described the judgments as bristling with problems. 

HEYDON J:   Not the judgments, the whole law.

MR GAME:   The whole law, sorry.  I am encouraging you to take this case as a suitable vehicle to dive into the whole law.  I think that it is such a particular piece of evidence that it is such – I really do not think that there is more that I can say on this application.  I think that really puts it in a nutshell as to what the argument is.

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

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

AT 11.09 AM THE MATTER WAS CONCLUDED