Hickey v The Queen - [2004] WASCA 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HICKEY -v- THE QUEEN [2004] WASCA 263

CORAM: MURRAY J
STEYTLER J
PULLIN J

HEARD: 9 AUGUST 2004

DELIVERED : 17 NOVEMBER 2004

FILE NO/S: CCA 191 of 2003

BETWEEN: ANDREW CHRISTOPHER HICKEY
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :VIOL DCJ
Citation  :THE QUEEN -v- HICKEY
File No  :IND 195 of 2001

Catchwords:

Criminal law - Sexual offence - Evidence of sexual disposition of complainant - No new point of principle

Legislation:

Evidence Act 1906 (WA), s 36BA

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B G Illari
Respondent: Mr D Dempster

Solicitors:

Appellant: Bruno Illari
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bull v The Queen (2000) 201 CLR 443

Case(s) also cited:

Bannister v R (1993) 10 WAR 484

MURRAY J: I agree that the appeal should be dismissed, for the reasons given by Steytler and Pullin JJ.
STEYTLER J: Two questions arise in this appeal against conviction. The first relates to the operation of s 36BA of the Evidence Act 1906 ("the Act"), dealing with evidence of sexual disposition. The second relates to what was said to have been the wrongful admission of prejudicial similar fact evidence.
The appellant was tried on an indictment charging two counts of sexual penetration without consent. The first offence (count 1, involving a young woman to whom I shall refer as "complainant 1") occurred on 20 April 2000. The second (count 2, involving another young woman to whom I shall refer as "complainant 2") occurred on 16 September 2000. The two counts were tried together. The appellant was convicted of the offence charged in count 2, but the jury was unable to reach a verdict on count 1 and was discharged in respect of that count.
The events concerning count 1 have been set out in the judgment of Pullin J. The appellant, complainant 1 and a third person, G, were together in a house. They ate and drank there. G went to bed. The appellant and complainant 1 played cards and continued to drink alcohol. Using complainant 1's telephone, the appellant rang a friend, DJ, and asked him and another man to come over to the house. This was at about 2 am or shortly thereafter. DJ said that he would come over at about 7 am. While he was being asked to come over, complainant 1 was said by the appellant to have shouted, loud enough for DJ to hear, "Come over. Come over and fuck me."
Shortly after this, the appellant and complainant 1 walked to a nearby service station and bought a soft drink. They returned to the appellant's home. She asked the appellant to "crack" her back, as it was painful. She lay on her stomach. The appellant sat astride her legs and massaged her back. The appellant asked her to remove her top. She did so, but remained lying on her stomach. She fell asleep. complainant 1 said that she awoke to find the appellant penetrating her.
At the trial, counsel for the appellant wanted to lead the evidence of what had been shouted out by complainant 1 during the course of his telephone conversation with DJ. He said that his purpose was "to show that she was in a sexually aroused mood that night and therefore ready, as it were, for sexual behaviour with … [the appellant]". The prosecutor objected, contending that this evidence fell within s 36BA of the Act. The

trial Judge considered that there was a good possibility that what was allegedly said by complainant 1 would be understood by the jury as demonstrating "a looseness of morals" on her part. That being so, it was evidence relating to the disposition of complainant 1 in sexual matters and excluded by s 36BA.

The appellant contends, by ground 1 of his grounds of appeal, that the ruling was wrong. His counsel submits that what was said was not evidence of disposition and amounted only to evidence that complainant 1 was in a sexually aroused mood and therefore more likely to be willing to engage in sexual intercourse with the appellant. He says, also, that what was said was part of the res gestae.
In my opinion, these submissions are not sustainable. If the statement attributed to complainant 1 was made by her, and if it was made otherwise than in an attempt at humour and was evidence of sexual arousal (rather than simply of sexual attraction), the arousal was directed at DJ and not at the appellant. Consequently, it had no bearing on the question whether she did, or did not, later consent to sexual intercourse with the appellant, that having been his defence. The only possible relevance which the evidence might consequently have had is that identified by the trial Judge, in that the evidence might have been understood by a jury (if they regarded the comment as having been seriously made) as reflecting a "looseness of morals". If that was its only possible relevance (and I can see no other relevance), it fell squarely within the prohibition of s 36BA which provides that, in proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of a defendant.
In Bull v The Queen (2000) 201 CLR 443 at 477 [115], a majority of the High Court (McHugh, Gummow and Hayne JJ) concluded, after considering s 36B (which prohibits, in proceedings for sexual offences, the leading of evidence of sexual reputation) and s 36BC (which prohibits, in such proceedings, the leading of evidence, without leave, relating to the sexual experiences of the complainant, not being part of the res gestae of the proceedings) that:
"(a)Section 36BA prohibits the tender of any evidence which tends to prove the disposition of the complainant in sexual matters, except where the evidence is evidence of the sexual experiences of the complainant and is admissible under s 36BC.

(b)In s 36BA, 'disposition … in sexual matters' refers to characteristics of the complainant which suggest that he or she is the 'kind of person' who would have engaged in the conduct in question.
(c)Evidence that tends to prove the disposition of the complainant in sexual matters is evidence 'relating to' his or her disposition in those matters.
…".

The majority also said (page 476 [113]) that its favoured construction:
"… means, of course, that evidence which tends to prove the disposition of the complainant in sexual matters but which is not evidence relating to the complainant's sexual experiences and part of the res gestae will be inadmissible, regardless of the purpose for which it is adduced."
Here, as I have explained, the evidence in question could not be relevant otherwise than as evidence that tends to prove the disposition of complainant 1 in sexual matters. Clearly it was not evidence relating to complainant 1's sexual experiences even if it could be said to be part of the res gestae (as to which see Bull at 475 ‑ 476 [108] to [113]). Consequently, it was rightly excluded under s 36BA.
Ground 1 consequently fails.
As to the second question, Pullin J has set out the evidence which was said to have been both prejudicial and wrongly admitted. I agree with Pullin J that no prejudice followed from the admission of that very limited evidence. Moreover, I am fortified in this by the fact that counsel for the appellant, in the then atmosphere at the trial, made no application to abort the trial or even for any additional directions to be given by the trial Judge in this respect. I am satisfied that, if the evidence was wrongly admitted, no substantial miscarriage followed from it.
It follows that I would dismiss the appeal.
PULLIN J: This is an appeal against conviction. The appellant was tried before a Judge and jury in the District Court on an indictment containing two counts which read:

"(1)On 20 April 2000 at Morley ANDREW CHRISTOPHER HICKEY sexually penetrated [complainant 1] without her consent by penetrating her vagina with his penis."
(2)AND FURTHER that on or about 16 September 2000 at Osborne Park ANDREW CHRISTOPHER HICKEY sexually penetrated [complainant 2] without her consent by penetrating her vagina with his penis."

The appellant was convicted on count 2. The jury could not agree on a verdict in relation to count 1.
There are two grounds of appeal.

Ground 1

Ground 1 alleges that the learned trial Judge:
"… erred in ruling that the Defence could not cross‑examine the complainant in count 1 of the Indictment … in relation to certain alleged remarks by her because that would amount to eliciting evidence of the complainant's disposition in sexual matters prohibited under Section 36BA of the Evidence Act."
The appellant submits that:
"Although the jury were undecided in relation to … [count 1] … and were discharged as a result, this was a joint trial relating also to another complainant [in count 2]. The Appellant was convicted by majority in relation to this count, which is said to have occurred in September 2000. Had the jury heard the evidence which was sought to be led in relation to count 1, they might have taken a different view of the Appellant and his evidence because the question of similar fact was a crucial one in this trial. Therefore, although the Appellant was not convicted of the count to which the forbidden evidence was related, it could well have assisted his overall credibility and led to an acquittal on count 1, and then also on count 2."
The Judge's ruling which is the subject of complaint, prevented the appellant's counsel from asking the complainant in count 1 ("complainant 1") certain questions about what she was alleged to have said during the evening of the incident. It arose in the following context.
Complainant 1 lived in the appellant's home with the appellant and her friend Ms G. Ms G was the appellant's girlfriend.
In evidence‑in‑chief complainant 1 said that on 20 April 2000, she and Ms G drove to the appellant's workplace and picked him up. The three went home after buying food and alcohol. They ate and drank in the lounge room at the house. Ms G had to go to work early next morning. She went to bed leaving complainant 1 and the appellant together in the lounge room. They played cards together and drank alcohol. At about 2 to 2.30 am the next morning, the appellant telephoned two friends - one by the name of DJ - and asked them to come over to the house. The appellant reported that DJ said on the telephone that he would come over at 7 am. Following the telephone call and at about 2.30 am the appellant and complainant 1 walked to a service station and purchased soft drink. When they returned to the house complainant 1 who said she had a bad back, asked the appellant to "crack" her back. Complainant 1 lay on her stomach and the appellant then massaged her back while he sat astride her legs. He asked complainant 1 to remove her top, which she did. She remained lying on her stomach. Complainant 1 then fell asleep. She then woke to find the appellant penetrating her.
In cross‑examination counsel for the appellant asked complainant 1 about the telephone call made by the appellant to DJ. She agreed that the appellant had made the call using her telephone. At that point the prosecutor asked to make submissions in the absence of the jury. The jury retired. The parties knew from evidence given at an earlier trial - this was a re‑trial - that during the telephone call the appellant had with DJ, complainant 1 was said to have called or shouted out with the intention that DJ should hear, "Come over. Come over. Come over and fuck me." The prosecutor objected to this evidence being led. Counsel for the appellant said that these words were shouted out to DJ and that the reason why he wanted to ask questions of complainant 1 to have her admit that she did shout out these words was "to show that she was in a sexually aroused mood that night and therefore ready, as it were for sexual behaviour with Mr Hickey."
The prosecutor objected that this would infringe s 36BA of the Evidence Act. That section reads:
"In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of a defendant."
The trial Judge upheld the objection to the proposed question and gave the following reasons for his ruling:
"… it is clear what Parliament intends by section 36BA and it intends that in any case involving a sexual offence evidence that goes to the disposition of a complainant in sexual matters is not to be adduced. Now, that can mean a variety of things. It can mean a girl who sleeps with other people, it can mean a girl who makes invitations to people on all sorts of occasions and social functions and now we are faced with a situation where it is suggested that she used these words to someone on the phone on an evening.
[The words] … 'Would you like to come over and fuck me tonight?' … [were called out] to someone who is known to her but is not there. Then we look at it from the point of view of the jury. How are they to interpret those words? They could do it a number of ways and I think included in those ways is a conclusion that this girl is the sort of girl that has a looseness of morals, if I can use that expression. It must be a possibility, a good possibility.
If that's so then it goes to her disposition and the Parliament has decided that that sort of evidence is not admissible and I take the view that it's not admissible in this case."
The next day before the jury returned, counsel for the appellant drew the attention of the Court to the High Court decision in Bull v The Queen (2000) 201 CLR 443. After reading it the trial Judge reconfirmed his ruling. The appellant complains about that ruling.
Counsel for the appellant submits in this Court that the learned trial Judge's ruling was in error and what was called out by complainant 1 for DJ to hear was part of the res gestae. The appellant submits that this was evidence likely to show that complainant 1 was in a sexually aroused mood and therefore more likely to consent to have sex with the appellant. In my opinion, and with due respect to the submission on behalf of the appellant, it is absurd to argue that because a person expresses willingness to have sex with A, that B can take it that the person consents to having sex with B. The proposition is even more absurd when it is noticed that what complainant 1 called out during the telephone call was before she and the appellant went for a walk down to the service station and purchased soft drink.
The evidence is, in my opinion, irrelevant to the issue about whether complainant 1 consented to sex with the appellant. For that reason the evidence was inadmissible.
As Gleeson CJ said in Bull v The Queen (supra) at [8]:
"The first rule of evidence is that if information is irrelevant it is inadmissible, and there is no need to examine further any exclusionary rule of common law or statute."
He continued at [9]:
"It does not follow, however, that one can dismiss from further consideration the subject of relevance. The reason or reasons why evidence is relevant, and the question whether it answers the description of 'evidence relating to the disposition of the complainant in sexual matters', may be interrelated.'
The Chief Justice went on to say at [22]:
"If, in a particular case, information which is capable of supporting an inference as to a complainant's disposition in sexual matters is relevant only on that account, then it clearly bears the character of evidence relating to such disposition, and is excluded by s 36BA. If, on the other hand, its tendency to reveal disposition is merely incidental, and its substantial probative significance is related to some other matter, then it is not excluded."
In this case it is my opinion that the excluded evidence was capable of supporting an inference as to complainant 1's disposition to have sex with DJ. Indeed it was relevant only on that account which means it was excluded by s 36BA.
The facts in this case are quite different from the facts in Bull v The Queen (supra). The conversation under consideration in that case went directly to the issue of whether the complainant in that case had consented to sex with the accused or whether the accused honestly believed that she had consented.
The evidence in this case did not and could not have gone to those issues.
As the evidence in this case did not go to whether or not complainant 1 consented to sex with the appellant, then it is clear that the appellant could only have been wanting to lead the evidence to show that complainant 1 was a person who was disposed to announce she would have sex with someone else in the presence of the appellant and that she was therefore the "kind of person" who had a lax sexual morality; in short, that she had a "lightness of character"; (see Bull v The Queen (supra) at [46]) from which the appellant wished to argue that it was much more likely that she would have consented to sex with the appellant. That kind of reasoning is the very type of reasoning which led to the enactment of s 36BA.
The appellant argues in his written submissions that:
"… the issue … is whether the remarks in question were evidence of sexual disposition prohibited under section 36BA or evidence forming part of the res gestae, which should have been admitted as part of the factual scenario leading up to the incident in question. The Appellant contends that it is the latter and that this type of evidence forming part of the res gestae was never intended to be excluded by operation of s 32BA (sic). (Bull, King & Marotta (2000) 110 A Crim R, p 562 at p 588 …"
On p 588 of the A Crim R appears [112] of the judgment of McHugh, Gummow and Hayne JJ in which their Honours say in a discussion about s 36BC:
"Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction amounting to the crime', it is part of the res gestae and so is admissible under s 36BC without leave. That applies to acts or matters tending to prove the disposition of the complainant, as well as to other acts or matters relating to the sexual experiences of the complainant." (I have added italics for emphasis).
As is clear from that quoted passage and from a reading of s 36B, s 36BA and s 36BC, the res gestae exception is an exception to s 36BC alone. It is not an exception to s 36BA. This is so on the reasoning of McHugh, Gummow and Hayne JJ about the interrelationship between s 36BA and s 36BC where they say at [115]:
"(a)s 36BA prohibits the tender of any evidence which tends to prove the disposition of the complainant in sexual matters, except where the evidence is evidence of the sexual experiences of the complainant and is admissible under s 36BC."
It must be borne in mind that s 36BA prohibits evidence of the "disposition of a complainant in sexual matters" and s 36BC prohibits evidence of the complainant's "sexual experiences".
The excluded evidence in this case was not evidence of complainant 1's "sexual experiences". I therefore reject the appellant's submissions which suggest that the res gestae exception applies in the present circumstances.
In my opinion the learned trial Judge's ruling was correct.
Ground 1 of the appeal must therefore be dismissed.
I now turn to ground 2.

Ground 2

This ground arises because during the course of the complainant in count 2 ("complainant 2") giving evidence, the prosecutor asked questions about an incident which had occurred on 9 September 2000 (ie a week before the date of the offence alleged in count 2). The questions asked by the prosecutor elicited evidence about the occasion on 9 September at a house where four persons, including the appellant and complainant 2 were present and socialising. Two of the people left the lounge room, leaving the appellant and complainant 2 in the lounge room. On that occasion also, evidence was led that the appellant gave complainant 2 a massage, that she went to sleep and the prosecutor then asked:
"During the course of the time that you were asleep - we don't need to go into all the details of this, but did you become aware of something happening?---Yes".

At this point counsel for the appellant objected. The prosecutor was evidently planning to lead evidence of a sexual incident which had been the basis of two charges of indecent assault and in relation to which the appellant had previously been acquitted. The leaned trial Judge ruled that the evidence about the particulars of what happened on 9 September 2000 was inadmissible.
In ground 2 of this appeal, the appellant alleges that the jury should not have been alerted to the prior incidents and that this evidence was "highly prejudicial to the appellant without having any probative value".
In the appellant's written submissions it is submitted that:
"The questions and answers elicited by the Crown Prosecutor leading up to the question and answer … would have given the jury the impression that there was another incident involving the complainant … and the Appellant prior to the incident the subject of count 2, … This evidence might well have bolstered [the complainant's] credibility and by implication, diminished the credibility of the Appellant, thereby may well have contributed to the conviction by majority verdict."
The jury of course learned nothing of what had happened on the earlier occasion after complainant 2 went to sleep. In my opinion, the evidence which was led about what happened on 9 September was, if anything, of benefit to the appellant. It showed that there had previously been close and relatively intimate contact between the appellant and the complainant. The jury were not permitted to speculate about what happened on 9 September. They were obliged to, and took an oath or affirmation to, give a true verdict according to the evidence. No request was made by counsel for the appellant for a direction from the trial Judge to the jury that they should not speculate.
It is to be noted that the appellant allowed the prosecutor to lead the evidence about the back massage on the earlier date without objection. This was probably because it was thought to be evidence favourable to the appellant. At the appropriate time, counsel for the appellant asked for the jury to be excluded and asked for a ruling. In my opinion there was nothing prejudicial in the question that was asked or in the answer that was given immediately before the jury was sent out. The Judge's ruling prevented the prosecutor from leading any evidence about the earlier alleged indecency. The case was therefore conducted as the appellant wished it to be.
I would therefore dismiss ground 2.
As a result, I would dismiss the appeal.