H v The Queen

[1995] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S169 of 1994

B e t w e e n -

H

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 9.52 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:   May it please the Court, I appear with my learned friend, MR D. MARKS, for the applicant.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J:   Yes, Mr Hidden.

MR HIDDEN:   May it please the Court.  Your Honours, it should be said at the outset that this application is considerably out of time.  Short reasons are ascribed to that in the statement in support.  I do not know whether your Honours wish to hear any further on that.

DEANE J:   What is the material as to the - it is 14 months out of time, is it not?

MR HIDDEN:   Your Honours, the only material is that which appears in the statement in support, at page 203 of the application book, paragraph 7 at line 15.  Very shortly, your Honours, the applicant is the recipient of a grant of legal aid.  As your Honours may know, there are administrative processes involved in that grant but more significantly, advice of counsel must be obtained as to the merit of an application.  Your Honours, basically three counsel passed upon the matter before the Legal Aid Commission took the view that ‑ ‑ ‑

DEANE J:   Mr Hidden, you can proceed to the substance of the application, but I would indicate, in terms of future matters, that when one reaches this length of being out of time, I think it is appropriate that the material be in affidavit form rather than just a statement filed on behalf of somebody.

MR HIDDEN:   May it please your Honour.  Your Honours, the question raised by the application is the basis upon which a court might admit, in sexual assault trials, the evidence of sexual conduct between the accused and the complainant other than the matters charged.  That was a ground of appeal in the Court of Criminal Appeal which was disposed of by the court in this way.  Could I take your Honours to the judgment of the Chief Justice Mr Justice Gleeson, commencing at page 188 of the application book.  It is there that this ground of appeal was dealt with and on the following page, your Honours, having recited the directions to the jury given by the trial judge in relation to the evidence of sexual acts other than those charged, the Chief Justice said at line 30:

It was relevant that the incidents charged in the indictment occurred in the context of a relationship between the appellant and the complainant which was much more extensive than that indicated by evidence of the individual acts, and that they were not isolated acts.  It is true, as was observed by senior counsel for the appellant, that the evidence of the eight acts the subject of the indictment, if accepted, itself indicated a course of conduct.  That, however, does not mean that it was not material to show that the course of conduct was even more extensive than that indicated by the eight charges.

His Honour went on, your Honours, to remark that in the absence of the evidence that the pattern of sexual abuse there may appear to have been substantial gaps between the counts in the indictment.  But his Honour went on, on the following page, at line 4:

There are discretionary considerations to be taken into account, as is indicated by the authorities mentioned.

His Honour had referred to the decision of this Court in Harriman and a decision of the Court of Criminal Appeal itself in Wickham.  His Honour went on:

Trial counsel submitted that the prejudicial value of the evidence in question outweighed its probative significance.  That submission was submitted and rejected by the trial judge, and I see no error in his Honour’s exercise of discretion in that regard.

Your Honours, in our submission the significance of the approach of the Chief Justice in the matter is this:  it suggests that the court approached the question of the admissibility of this material upon the basis that if it is logically relevant, logically probative, it is admissible without more and its admissibility is subject only to the common law discretion applicable in any criminal case to reject evidence, the prejudicial effect of which exceeds its probative value.

Now, your Honours, that of course is a discretion which the accused bears the burden of invoking and which is, on review and appeal, subject to the strictures which govern any appeal arising from the exercise of a discretion. 

Your Honours, that that is the view in New South Wales of this class of evidence is confirmed, in our submission, in the earlier decision of the court in Reg v Beserick (1993) 30 NSWLR 510.  Your Honours should have photocopies of that case.  Beserick itself did not turn on the admissibility of evidence of this kind but in the course of that judgment the Chief Judge at Common Law, Mr Justice Hunt, dealt with the principles relating to the admissibility of this sort of evidence.  His Honour reviewed the law relating to the admissibility of evidence of this kind, commencing at page 514.  It is sufficient perhaps to take your Honours to the very bottom of page 515 and over to page 516, really commencing just below letter G to just below letter A on page 516 where his Honour clearly says, in effect, that evidence of this kind is admissible because it is always relevant and its admission is subject only to the common law discretion to reject evidence, the prejudicial effect of which exceeds its probative value.

TOOHEY J:   But that puts it on the basis of propensity, does it?

MR HIDDEN:   In a sense, but in our submission ‑ ‑ ‑

TOOHEY J:   I am not suggesting that you are putting it on that basis, but that is what the judgment seems - the footing on which the judgment seems to put it, which is not the way it is put in some other judgments.

MR HIDDEN:   No, it is usually put, your Honours, as evidence of relationship or of sexual passion.  It is sometimes put, particularly in child sexual assault cases, as evidence which puts the counts charged in their context because, in the absence of it, they may appear unintelligible and isolated. It is for all those reasons that the evidence is commonly said to be admitted.  Indeed, for all those reasons it may often be admissible.  The question is what is the proper test.  Now, in our submission the effect of the many decisions of this Court on propensity or similar fact evidence ‑ and it is not necessary to take your Honours to them ‑ is this, that any evidence which discloses the commission by the accused of criminal conduct other than that charged is subject to a stiff test of admissibility at law.  The test is variously expressed as is prejudicial, its probative value clearly transcending its prejudicial effects, its having a strong probative force.  In Phennig, the most recent decision of this Court in which I think all your Honours were involved, it was put on the basis that the evidence should be such that there is no reasonable explanation for it other than the guilt of the accused of the crimes charges.

The point is this area of evidence has always been subject to a very stringent test of admissibility at law before one turns, if one ever does, to the residual common law discretion to reject it because of its incidentally prejudicial effect.  Now, in our submission, your Honours, that is the test that ought be applied to evidence of this kind in sexual assault cases, that is evidence of acts between accused and complainant other than those charged. 

TOOHEY J:   That would put this type of case in the same category as any similar fact or propensity case?

MR HIDDEN:   Yes, precisely, your Honour.

TOOHEY J:   It would involve a departure from the trend of authority that puts this sort of case in a particular situation by reason of the sort of factors that you have just mentioned, explaining what might otherwise be thought to be sporadic incidents and so forth.

MR HIDDEN:   Your Honours, in our submission this class of evidence falls into that general class of evidence disclosing criminal acts other than those charged so that that stringent test of admissibility applies.  Now, it may well be that the special situation, particularly in an incest case, will commonly pass that test or usually pass that test because of the special nature of an incest case.  Really the case here, of course, was alleged to be between father and step-daughter.  But the point is the test must be applied and must be applied in the individual case.  There is no blanket rule of admissibility, in our submission, your Honours. 

Without taking your Honours to the various references to this class of evidence in judgments in this Court, it is sufficient to say, in our submission, that those references are invariably in the context of cases dealing with what we might call similar fact or propensity evidence.  Those references, read in their true context, are really confirming, in my submission, the very proposition I have just made, that is the various Justices of this Court who have had occasion to refer to this class of evidence have done so upon the assumption that it does fall into the general class of evidence disclosing criminal conduct other than that charged; it is subject to that stringent test but it will often pass that test.

McHUGH J:   Except in Pfennig I took the view that this class of evidence was not subject to the no rational explanation test.

MR HIDDEN:   Your Honour, I appreciate that, but ‑ ‑ ‑

McHUGH J:   In one sense it just throws up your point, that cases in this Court - the majority view seems to indicate that the no rational explanation test should apply to this evidence as well as all other evidence.

MR HIDDEN:   With respect, your Honour, yes.  I apprehend that even in Pfennig what your Honour was saying was not that there was no special rule relating to evidence of this class but it may not be perhaps best expressed in the way that the majority did in Pfennig.  

McHUGH J:   I said it was a universal test.

MR HIDDEN:   Stringent test of admissibility.  Now, your Honours, shortly that is the submission we make, and we submit that because this Court has not yet, in our submission, had occasion to consider this issue as the core of an appeal in this Court, it is appropriate that it does and that it pronounces the law for Australia on the matter.

TOOHEY J:   But is it your submission, Mr Hidden, that in the case of sexual assault cases, particularly between parent or step-parent and child that evidence as to other conduct between the parties is only admissible if it can be admitted under the general rules relating to propensity?

MR HIDDEN:   Yes, your Honour, exactly.  Now, one can imagine then it often will be the case ‑ ‑ ‑

TOOHEY J:   That would involve a substantial departure from authority, would it not?

MR HIDDEN:   Your Honours, in our respectful submission it would not.  The basal case that is referred to on what is said to be this line of authority is the decision of the House of Lords in Ball but in our submission Ball was itself an application of the Makin principle.  That is Ball was a case where the incest charged was based upon circumstantial evidence.

McHUGH J:   It was a classic propensity case.

MR HIDDEN:   Yes, the fact that brother and sister had previously undoubtedly lived as man and wife was strongly probative that on the occasion charged they were also living as man and wife.  I pause to make this remark, if I may, your Honours.  It is our submission that although it is perhaps not expressed, when a court considers the admissibility of similar fact or propensity evidence it does have an eye to the degree to which it is essential in proof of the Crown case.  For example, in Pfennig, one wonders whether the evidence would have been admitted if there had been strong direct evidence of Pfennig’s involvement in that abduction and murder.  If eyewitnesses had seen him throw the boy in the van and drive him away or if he was alleged to have confessed, it may well be that the evidence of his involvement with the boy H would never have got in.

One wonders whether in Ball the evidence of the earlier incestuous relationship would have been admitted if, as is unlikely, there were direct evidence of their incestuous relationship on the occasion charged.  Now, while that is never expressed, your Honours, it is my submission that an examination of the authorities shows that the problem usually arises where the evidence of the event charged is circumstantial or may be even equivocal.  It is there the Crown is entitled to call in aid evidence of a propensity or of other acts which make the evidence of the offence charged far less equivocal and points towards guilt.

McHUGH J:   Not necessarily.  Relationship evidence is frequently led for the purpose of either confirming or explaining other evidence.

MR HIDDEN:   It is, your Honour, but the question is whether the relationship evidence discloses other offences.  If it does not, it does not have to face this test, but if it does, it must. 

McHUGH J:   But this proposition of yours is not confined to sexual cases.

MR HIDDEN:   Indeed, no.

McHUGH J:   In the case of a murder trial ‑ ‑ ‑

MR HIDDEN:   Indeed, your Honour, but I am saying this class of evidence falls into a much more general class and is not a class of its own for the purpose of the rules of evidence.

DEANE J:   But in this case is not the real relevance of it the context relevance?  Say, for example, the suggested conduct - the other suggested course of conduct had fallen short of criminal conduct, would you really have any argument?

MR HIDDEN:   I do not think so, your Honour, no.

DEANE J:   Then if falling short of criminal conduct it would have been admissible, when it provides the whole context, does the fact that it involves an element of unspecified, in the sense of specific incidents criminality enough to make it inadmissible?

MR HIDDEN:   In the instant case, your Honour, it may be, because the higher test has to be met before it is admissible.

McHUGH J:   You have also got a complaint about the directions, have you not, because the judge put it on - he directed the jury it was admissibile both to prove the truth of the eight specific charges as well as explaining the relationship.

MR HIDDEN:   Yes.  Your Honours, I must say that is not a point which we have squarely taken in this application which is confined to the question of admissibility.  But, your Honours, I suppose if it is admissible at all then it is admissible in support of the credibility of the complainant’s account as to the charges at hand.  But you see, your Honours, the context, particularly in child sexual assault cases, might often be the strongest basis for its admissibility and the best reason why it does have strong probative force because in some cases where there has been a longstanding pattern, and the Crown has charged a few incidents, it may be impossible to make any sense of them except against their background and there may be references in the counts charged to a background which would be nonsense unless the jury knew of the background.

But, your Honours, this is not that case.  Here there were eight counts stretching over the relevant period.  There was no question of the girl being unable to place them in time.  She was able to assign them, in her evidence, to surrounding events.  They were intelligible of themselves, as her evidence unfolded, and frankly themselves disclosed a pattern in any event.  So there is a real question here, your Honours, what was added by the other evidence except prejudice.  There was not the need for the other evidence to make the girl’s evidence intelligible which is perhaps the strongest reason, your Honours, for admitting this sort of evidence in child cases.  That was not here.

But at the end of the day, your Honours, I merely say that as to the question whether this application, if it were granted, would found an appeal that had any merit.  But at the end of the day, your Honours, our primary submission is that the trial judge in the Court of Criminal Appeal just did not apply the right test.  Nothing more was considered than the common law discretion to reject, applicable to all criminal cases, to reject evidence that is unduly prejudicial.

DEANE J:   But do you not also have to persuade us that there is a fairly good argument that the material in this case should have been excluded?

MR HIDDEN:   Yes, your Honours, and it was to that that my last remarks were directed.  This was not a case where it could be said that the girl’s account was left floundering without any points of reference unless one referred to the background.  This was a case where, on her evidence, a continuing sexual passion was evident from the counts charged.  So that in a sense no further evidence was needed.  There was no need for this evidence

to make her evidence as to the counts charged intelligible or to give a background so as to reinforce the credibility of her account.  For that reason, your Honours, the evidence here did not have the strong probative force that it might have in other cases.

DEANE J:   That is a double-edged argument though, is it not, in that if, in the context case, there is an element of looking at the pros and cons, you have diminished both the pro and the con.

MR HIDDEN:   Indeed, your Honours, yes.  I am mindful of the fact that to that extent the prejudicial effect is lessened too, but given that the first question is whether the probative force is such that, at law, the material ought be admitted, then we submit that those features of this case show that this was not that sort of case.  May it please the Court.

DEANE J:   Thank you, Mr Hidden.  Yes, Mr Keleman.

MR KELEMAN:   Your Honours, the context in which these other acts occurred is crucial and your Honour has already drawn attention to that.  The submission made that the other offences charged provide the context of the relationship, we would submit, is misconceived.  The jury were directed to consider each offence charged separately.  That would necessitate the jury putting to one side, when considering each specific count, the other counts.  So that evidence was not, in fact, available to consider the more broad relationship that the Crown asserted existed.  So the sexual offences other than those charged, which occurred before the third and the fourth counts and the fourth and the fifth counts were vital to provide the context in which the offences charged took place.  When one has regard to that, one has to consider that the very first three accounts, which were the very first acts that were committed, occurred within a matter of weeks.  Then there was a gap of some 22 months between the third and the fourth counts, and in relation to that period evidence of other acts other than those charged which involved the complainant; and in relation to the fourth and fifth counts, there was a period of some eight months.  Again during that period evidence was given of acts other than those charged, and during that period evidence was given that those acts occurred almost on a weekly basis.

So the context in which the offences charged are placed by virtue of the wider sexual history are vital to understand the very allegations made by the complainant, particularly in relation to the third and fourth counts.  As was pointed out in the judgment of the Court of Criminal Appeal, to have given evidence only of those isolated counts would have created a distortion of the factual situation for the jury.  It was vital, as your Honour pointed out in B v The Queen, that the wider sexual history provides an invaluable context within which the evaluation process that the jury must undertake occurs.  Your Honour did not rely, in your judgment in B v The Queen, simply on evidence of relationship; your Honour referred to general principles within which this type of evidence should be considered.

Perhaps I might take your Honours to that passage.  B v The Queen, (1992) 175 CLR 599, and your Honour’s judgment appears at pages 610 to 611. Your Honour said this, at page 610:

The evidence that the applicant had committed acts of sexual indecency upon his infant daughter in the past was, in my view, admissible against him on his trial for similar acts of sexual indecency which he had allegedly committed upon the same daughter while she was still under sixteen years.  Once that evidence was adduced, the jury was entitled to use it against, as well as for, the applicant.  It was, on any approach, the key to an assessment of the relationship between the applicant and the daughter and, as such, constituted part of the essential background against which both the daughter’s and the applicant’s evidence of the alleged offences necessarily fell to be evaluated.  Particularly in a context where the applicant was accused of unnatural acts, it was capable of being seen by the jury as important evidence of motive, namely, sexual gratification.  The jury was also entitled to accept it as providing corroboration of the daughter’s evidence: it supported the truth of the allegation which was implicit in the whole of the daughter’s evidence, namely, that the applicant entertained an unnatural passion for her.

Then the final sentence on that page:

That legitimate significance was as proof of the applicant’s motive and unnatural passion, as corroboration of the evidence of the daughter or as evidence which the jury were entitled to take into account generally on the question whether he was guilty of the offences with which he was charged.

It is the Crown’s submission that where evidence of this type ‑ ‑ ‑

DEANE J:   It is a shame - I can say this as it is my judgment - that word “passion” grates in these cases, does it not?

MR KELEMAN:   Yes.  In effect ‑ ‑ ‑

DEANE J:   There is a better word, no doubt.

MR KELEMAN:   Sexual desire, sexual attraction, motive, may be better descriptions.

TOOHEY J:   It is a bit Victorian, is it not?  Not in a geographical sense.

MR KELEMAN:   So, in our respectful submission, when one looks to the cases which allow one to consider the probative value of such evidence, and cases involving the general principles to which your Honour referred, this evidence is highly probative of the commission of the offences.

The cases, commencing really with Ball, simply demonstrate how this evidence is highly or strongly probative. 

McHUGH J:   But that is not enough, is it?  I mean, as you probably know from my judgments, I have always said this sort of evidence is admissible.

MR KELEMAN:   Yes, and your Honour made that clear in Harriman and Pfennig.

McHUGH J:   But it seems to me that the majority judgments require a much more stringent test than has been applied.

MR KELEMAN:   If, in fact, the evidence ‑ ‑ ‑

McHUGH J:   Because you have got to show that the probative value outweighs its prejudicial value.

MR KELEMAN:   Certainly.  But the courts seem to have accepted, and certainly the pronouncements of this Court since Martin v Osborne make it clear that where the evidence establishes more than mere propensity and does in fact establish the nature of the relationship and the relevant context, then that evidence is highly probative.  Unless it passes that test, you do not get past the threshold.  So, with respect, it does in fact comply with the principles of propensity ‑ ‑ ‑

McHUGH J:   But it has to do more than be highly probative; its probative value has got to outweigh its prejudicial value, and that is an issue that this judge did not determine.  In addition, there were the directions to the jury.

MR KELEMAN:   With respect, we would submit that where the evidence shows the sexual attraction, sexual desire, motive, passion - Victorian, in brackets - and the relevant context, then the prejudice is outweighed, we would submit, by the probative value.  It must be.  That evidence makes it more likely, as your Honour has pointed out in Harriman and Pfennig that the commission of the offences occurred as alleged.  So if it passes that test it must be highly probative and the prejudicial value must be outweighed.

The same sort of approach was taken in Harriman.  When the relationship was looked at between Harriman and the relevant witness that relationship made it more likely, if it was accepted as the Crown asserted, that the relationship was not of an innocent type but was of the type that involved criminality, that is the criminality being alleged, and in that situation the relevant prejudice was clearly outweighed.

McHUGH J:   I know, but the judges have never looked at it in that way in New South Wales.  Ever since Gellin in 13 State Reports, this says evidence of relationship, therefore it is admissible, full stop.

MR KELEMAN:   With respect, we would submit that is not the case.  In fact, it might assist if I take your Honours to Wickham, which is an authority that my friend has listed on his list of authorities which I hope your Honours have.

MR HIDDEN:   Your Honours, we have copies emanating from some computer system which sets out the full judgment but in somewhat different form from - it has the page references added, your Honours.  Might I hand that up.

MR KELEMAN:   Wickham is an unreported decision of the Court of Criminal Appeal delivered on 17 December 1991.  The relevant portion of the judgment commences, at least in the judgment I have, at page 6.  The relevant portion of the judgment commences with the passage, “When, as in the present case, it is alleged”.  Do your Honours have that passage?  There is a reference to S v The Queen.  It will not be on page 6 of your Honour’ copy; there will be a reference apparently to the ‑ ‑ ‑

DEANE J:   Yes.

MR KELEMAN:   Subject to there being no problem in relation to S v The Queen, it is relevant then to consider the nature of the acts other than those charged.  At the bottom of my page 6 it commences:

It is true, but only part of the truth, that evidence of this kind is “similar fact” evidence -

and the court refers to Makin, Boardman and P -

or that it is evidence of propensity (cf Harriman v The Queen (1989) 167 CLR 590). In many cases it will go beyond merely demonstrating a propensity or disposition to commit crime, or crime of a particular kind. As in the present case, such evidence will often be relevant, and tend to make more credible the evidence of the complainant, in at least two ways.

Reference is made to questions of fact and degree.  It says:

First the evidence may establish a sexual relationship which makes the complainant’s allegations more likely to be true.

The court then refers to Ball and what Justice McHugh said in Harriman in relation to Ball and also to the passage of Justice Dixon in Martin v Osborne to which reference has been made in the written submissions of the respondent.

The relationship in question need not be completely mutual, and the emotions or tendencies involved need not be shared for there to be a relevant relationship.  The expression “guilty passion” is sometimes used in relation to an accused.  It conveys an idea that most people would recognise as being of significance in determining whether a particular incident of a sexual nature has occurred.  If past conduct shows that a child is an object of a parent’s sexual desire then that may well make more credible an allegation that a particular alleged sexual incident occurred between them.

Secondly, the evidence may constitute an essential aid to the understanding of an account or description of works or conduct.  It will often be the case that it would be difficult, or impossible, to understand, or appreciate the full significance of, a complainant’s account of the events relating to a particular incident without knowing what had gone before.  A bare description of the conduct the subject of a particular charge may be difficult to evaluate, and perhaps misleading, if it stood alone as an account of an apparently isolated incident.  As pointed out earlier, the present case provides an example.

So it is very similar to the case in question here.  In Wickham the sexual acts were highly probative of the commission of the offences charged because of the peculiar circumstances that occurred in relation to one of the offences.  There is a reference to Chamilos and then the court said this:

Counsel for the appellant submitted in this Court that his Honour retained, and should have exercised, a discretion to reject the evidence on the basis that its prejudicial effect was so great in comparison to its probative value that justice required its exclusion.  As a matter of general principle, the existence of such a discretion need not be doubted, and it may be possible to imagine cases where the facts and circumstances would be such that evidence of the general character here in question would be of such as to call the discretion into play.  However, the present is not such a case.  The evidence was clearly relevant and strongly probative. 

McHUGH J:   I appreciate that, but that is just the general discretion test.  It is not the no rational explanation test and that is the point.

MR KELEMAN:   With respect, the test ‑ ‑ ‑

McHUGH J:   I know a series of cases in this Court - I suppose Justice Dawson’s judgment commenced the trend - which require that there be no rational explanation of the evidence other than the guilt of the accused in respect of that particular ‑ ‑ ‑

MR KELEMAN:   With respect, we would submit this evidence passes that test because if that evidence is accepted - and one has to assume that the evidence will be accepted for the purposes of that test, and that was made clear in Hoch and in all the other decisions, if that evidence is accepted then it is the Crown’s submission that the evidence of the sexual acts other than those charged make it highly improbable that the offences occurred other than as alleged.

So we would say that this type of evidence, if it establishes the nature of the relationship and the relevant factual context, satisfies that test as well, if it is accepted.  And that is the premise on which one commences to look at this and the rational hypothesis approach is really the obverse of the improbability test which I am putting to your Honours, and we say it satisfies that test as well, despite what your Honour indicated in Pfennig, which was a little different.  But I note that the majority did not make any comment in relation to the nature of this evidence at all. 

But we would submit that no matter what test you apply to this type of evidence in this case in particular, it would satisfy the label - the labels that were used perhaps before Hoch; we say that it was strongly probative, highly probative; we say its probative value transcended its prejudicial value and we say, if necessary, that it also passes the improbability test.  That is really the starting point.  One has to look at the evidence and assume what

its effect will be if it is accepted.  And if you accept the evidence of the sexual acts other than those charged in this particular case, it would make it probable that the acts charged did in fact occur as alleged.  So we would submit it passes all tests.

It is relevant to point out that the improbability of rational hypothesis test really started to develop in this Court after Hoch.  It was then picked up principally in Phennig but it really is not since Phennig that the test has been regarded as the universal one to use.  But we would say that in this case it passes that test.  Those are the submissions of the respondent unless we can assist your Honours in any other way.

DEANE J:   Mr Hidden.

MR HIDDEN:   Your Honours, just as to the merit of the particular case at hand, in my submission, your Honours, the evidence of sexual acts other than those charged here does not necessarily pass the high test enunciated by this Court for similar fact or propensity evidence.  It emanates from the same source as the evidence of the counts themselves and is expressed, as it always is, your Honours, in very general terms.  “He did it to me, things like this, every so often over a period”, which is one of the difficulties with this sort of evidence in any event.  But, at the end of the day, your Honours, the correct test was not applied in courts below.  May it please the Court.

DEANE J:   The Court considers that an appeal in this case would not enjoy sufficient prospect of ultimate success to warrant a grant of special leave to appeal.  The reason is that the Court considers that in all the circumstances of this case the evidence was properly admitted.  Accordingly, the application for special leave is refused.

MR HIDDEN:   May it please the Court.

AT 10.30 AM THE MATTER WAS CONCLUDED