HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJMatter No A23/2007
HML APPELLANT
AND
THE QUEEN RESPONDENT
Matter No A19/2007
SB APPELLANT
AND
THE QUEEN RESPONDENT
Matter No A28/2007
OAE APPLICANT
AND
THE QUEEN RESPONDENT
HML v The Queen
SB v The Queen
OAE v The Queen
[2008] HCA 16
24 April 2008
A23/2007, A19/2007, A28/2007ORDER
Matter No A23/2007
Appeal dismissed.
Matter No A19/2007
Appeal dismissed.
Matter No A28/2007
1. Special leave to appeal granted.
2.Appeal treated as instituted, heard instanter and dismissed.
On appeal from the Supreme Court of South Australia
Representation
Matter No A23/2007
T A Game SC with C S L Abbott for the appellant (instructed by Herman Bersee)
C J Kourakis QC, Solicitor-General for the State of South Australia with S A McDonald for the respondent (instructed by Director of Public Prosecutions (SA))
Matter No A19/2007
A L Tokley with C S Gallagher for the appellant (instructed by Gallagher & Co)
A P Kimber with K G Handshin for the respondent (instructed by Director of Public Prosecutions (SA))
Matter No A28/2007
N M Vadasz for the applicant (instructed by Kyrimis Lawyers)
M G Hinton QC with K G Handshin for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
HML v The Queen
SB v The Queen
OAE v The QueenCriminal law – Evidence – Similar facts – Sexual crimes – "Uncharged acts" – Relevance – Admissibility – Applicability of test in Pfennig v The Queen (1995) 182 CLR 461.
Criminal law – Evidence – Similar facts – Standard of proof – Whether "uncharged acts" must be proved beyond reasonable doubt – Directions to jury.
Practice and procedure – Application to amend notice of appeal – Whether leave should be granted to amend notice of appeal to raise issue of admissibility of evidence, to which no objection was taken at trial.
Words and phrases – "context", "guilty passion", "propensity evidence", "relationship evidence", "relevance", "similar fact evidence", "uncharged acts".
Evidence Act 1929 (SA), ss 34CA, 34I.
GLEESON CJ. These matters raise issues concerning the admissibility at a criminal trial of a certain kind of similar fact evidence, and the proper directions to be given to a jury in the event that such evidence is admitted. In each matter, the evidence was that of a complainant who, in addition to giving an account of specific acts the subject of the charge or charges in an indictment, testified that other such acts had taken place between the accused and the complainant. This was described in argument as evidence of uncharged acts. I am content, for the purpose of stating my reasons, to adopt the description used in argument, although I do not suggest that it would always, or even usually, be a helpful phrase in a trial judge's directions to a jury. Of course, evidence of uncharged…
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Details
- AGLC
- HML v The Queen [2008] HCA 16
- Case
- [2008] HCA 16
- Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals from the Court of Criminal Appeal of South Australia in three cases: *HML v The Queen*, *SB v The Queen*, and *OAE v The Queen*. The central dispute in these appeals concerned the admissibility and use of "uncharged acts" evidence in criminal trials, particularly in cases involving sexual offences against children. The Court was asked to determine the application of the common law rule established in *Pfennig v The Queen* and the appropriate directions to be given to a jury when such evidence is admitted.
The legal issues before the Court included whether evidence of discreditable sexual conduct by the accused, not forming part of the specific charges, was relevant and admissible. Furthermore, the Court had to consider the nature of the directions a trial judge should provide to a jury regarding the permissible uses of such evidence, the standard of proof required for the jury to accept the uncharged acts, and the dangers of propensity reasoning. The Court also addressed a late application to amend a notice of appeal to raise the admissibility of evidence to which no objection was taken at trial.
The Court's reasoning acknowledged the practical difficulties in prosecuting sexual abuse cases, where incidents often occur repeatedly over time and may not all be formally charged. It recognised the importance of allowing complainants to provide a truthful and coherent account of events. While acknowledging the potential for prejudice, the Court indicated a greater willingness to trust juries with sensitive evidence, provided that careful directions and warnings are given to mitigate such risks. The Court ultimately dismissed the appeals in *HML v The Queen* and *SB v The Queen*, and granted special leave to appeal in *OAE v The Queen* but dismissed that appeal as well.
The legal issues before the Court included whether evidence of discreditable sexual conduct by the accused, not forming part of the specific charges, was relevant and admissible. Furthermore, the Court had to consider the nature of the directions a trial judge should provide to a jury regarding the permissible uses of such evidence, the standard of proof required for the jury to accept the uncharged acts, and the dangers of propensity reasoning. The Court also addressed a late application to amend a notice of appeal to raise the admissibility of evidence to which no objection was taken at trial.
The Court's reasoning acknowledged the practical difficulties in prosecuting sexual abuse cases, where incidents often occur repeatedly over time and may not all be formally charged. It recognised the importance of allowing complainants to provide a truthful and coherent account of events. While acknowledging the potential for prejudice, the Court indicated a greater willingness to trust juries with sensitive evidence, provided that careful directions and warnings are given to mitigate such risks. The Court ultimately dismissed the appeals in *HML v The Queen* and *SB v The Queen*, and granted special leave to appeal in *OAE v The Queen* but dismissed that appeal as well.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal treated as instituted, heard instanter and dismissed.
Background
Background to the litigation
The analysis in these reasons adopts the assumption, inherent in much appellate examination of jury decision-making, that members of a jury reach their conclusions by a process of deliberation from evidence to verdict by way of an accurate application of judicial directions on the law[51]. Such empirical evidence as there is casts serious doubts upon such assumptions[52]. Indeed, psychological research applied to judicial or other decision-making, including investigations based on the cognitive reflection test, suggests the very large role played by intuition in such decisions. In such matters, the human brain has a tendency to make automatic, snap judgments[53]. However, in default of contrary argument, these reasons will continue to make the law's assumptions, however dubious they may be in scientific terms.[51]cf reasons of Heydon J at [353], reasons of Kiefel J at [488].[52]See Zoneff v The Queen (2000) 200 CLR 234 at 260-261 [65]-[67]; [2000] HCA 28. See also Cush and Goodman-Delahunty, "The Influence of Limiting Instructions on Processing and Judgments of Emotionally Evocative Evidence", (2006) 13 Psychiatry, Psychology and Law 110 at 113.[53]Guthrie, Rachlinski and Wistrich, "Blinking on the Bench: How Judges Decide Cases", (2007) 93 Cornell Law Review 1 at 19.The facts and legislation The facts: The facts of each appeal are set out in considerable detail in other reasons. Those reasons disclose the relevant objections to, and rulings on, the evidence at trial, the grounds of appeal and dispositions in the Court of Criminal Appeal in each case, and the arguments advanced in this Court. It will be necessary for me to add a little more detail concerning the error in the trial of HML just mentioned. However, otherwise, I am content to rely on the detailed expositions by my colleagues. The legislation: As Heydon J explains in a note to his reasons, this Court's expression of the law in these appeals is substantially confined to those jurisdictions of Australia in which the common law rule stated in Pfennig survives[54]. Other than in South Australia, the Northern Territory, and to some extent Queensland, the rule in Pfennig has been amended, either by the adoption of the Uniform Evidence Acts[55] or by the enactment of particular State legislation[56]. Subject to any constitutionally protected principles of due process, it is competent for the Parliaments of Australia to regulate the substantive and evidentiary law that is in issue in these proceedings. No constitutional argument has been raised by any party.[54]Reasons of Heydon J at [288], fn 227.[55]See ss 97 and 98 of the Uniform Acts. These Acts are applicable in federal courts and in the Australian Capital Territory, New South Wales, Tasmania and Norfolk Island. See reasons of Heydon J at [288], fn 227.[56]Evidence Act 1977 (Q), s 132A; Crimes Act 1958 (Vic), s 398A; Evidence Act 1906 (WA), s 31A. See Washer v Western Australia (2007) 82 ALJR 33 at 46 [58]; 239 ALR 610 at 625-626; [2007] HCA 48.
Evidence
Evidence Before The Court
In several jurisdictions, including South Australia, an attempt has been made to address the issues arising in these proceedings by the creation of so-called "relationship crimes"[57] and by the enactment of special evidentiary rules for cases involving sexual offences[58]. As explained in other reasons, none of these special legislative provisions is determinative of the present appeals.[57]See eg Criminal Law Consolidation Act 1935 (SA), s 74. See reasons of Heydon J at [259]. A similar provision was considered in KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54.[58]See eg Evidence Act 1929 (SA), s 34I. See reasons of Hayne J at [185]-[187]; reasons of Heydon J at [337]. See also s 34CA of that Act; cf reasons of Heydon J at [310].Admissibility of relationship evidence Factors favouring admission: I accept that, as a matter of legal principle or policy, several considerations tend to support the reception of evidence by complainants of alleged acts of sexual abuse different from, and additional to, those identified in the charges preferred against the accused by the prosecution:(1)Although criminal trials address specific charges alleged in an information or indictment, the experience of the courts shows that sexual abuse of young persons is often, or typically, manifested in multiple and repeated incidents over a period of time. It is commonly impracticable, or even impossible, to include them all among the formal charges. The repeated character of the events may render them individually unmemorable either to the complainant or to the accused. A court process directed to eliciting a truthful description of what has happened to a complainant will take account of such practical considerations;(2)Where sexual assault cases are not prosecuted under the new provisions establishing "relationship crimes", a practice is often observed by prosecutors of charging the first, or earliest, alleged incident of a sexual offence remembered by the complainant and also the most recent incident that can be described[59]. Others may be included because of special features in the facts or surrounding circumstances which are said to trigger the memory of the complainant and to permit particularity. However, almost inevitably, and whatever the wishes and precautions of lawyers, evidence may emerge of other incidents not made the subject of charges. This may be due to factual links between such incidents and the matters charged[60], or because such incidents are allegedly remembered whilst the complainant's evidence is being adduced. Alternatively, the complainant, unaware of (or impatient with) the conventions of the criminal trial, may assert that many other similar instances occurred, leaving it to the trial judge to deal with the admissibility of such evidence and with the directions that should then be given. Attempts to quarantine the charged acts may, in practice, be both artificial and futile;(3)From the point of view of the complainant, and respecting his or her entitlement to provide a truthful version of what is recalled, it is important for legal procedure to facilitate, so far as basic principle permits, the giving of a "fair and coherent account"[61] of what has allegedly occurred resulting in the criminal prosecution[62];(4)The law has an important obligation to protect truthful complainants about sexual abuse. It is an appreciation of the significance of this consideration that led Lord Hope of Craighead to observe in R v A (No 2)[63] that "the balance between the rights of the defendant and those of the complainant is in need of adjustment if [complainants] are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct". This observation has particular force where the abuse has allegedly been suffered by children as a result of the conduct of family members who owe the child special duties of trust and protection;(5)Self-evidently, sexual assault against children is a very serious crime both in terms of its incidence in our society and in its impact on the victim, the victim's family and the community. There is compelling evidence of historical "under-enforcement" in this area[64]. The increase in prosecutions for offences of the present kind observed by the courts in recent years is, in part, a reflection of changing community, police and prosecutorial attitudes. These developments ought not to be permitted to be frustrated by unjustifiably restrictive court procedures; and(6)The retention of jury trial for most contested allegations of such offences in Australia suggests a continuing acceptance of the need to entrust decision-making in such cases to "the ordinary experiences of ordinary people"[65]. Juries resolve disputed issues and distinguish false or unproved accusations from those which they consider to have been proved to the requisite standard by applying their collective experience of life and of their fellow human beings[66]. In recent years, the House of Lords, in Director of Public Prosecutions v P[67] and R v H[68], has demonstrated a greater willingness to trust juries with sensitive evidence than, for example, was apparent in the earlier case of R v Boardman[69]. Thus, Lord Griffiths, in the case of H[70], suggested that a "less restrictive form" of the rules excluding relevant evidence was appropriate given today's "better educated and more literate juries". So far as the common law of Australia is concerned, the result may also be a greater willingness in this country to permit jury access to relevant but sensitive, and potentially prejudicial, evidence[71]. The fact that potential prejudice may be susceptible of limitation through careful directions and warnings is an additional factor that tends to favour reposing greater trust in juries in cases such as the present.[59]Reasons of Gleeson CJ at [37].[60]As was the case in the trial of HML; see reasons of Heydon J at [318].[61]White v The Queen [1999] 1 AC 210 at 217 cited reasons of Heydon J at [299].[62]cf reasons of Crennan J at [474]-[475].[63][2002] 1 AC 45 at 71 [55]. See also DS v Her Majesty's Advocate [2007] UKPC D1 at [5].[64]See Hamer, "Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious", (2007) 30 University of New South Wales Law Journal 609 at 634-635. Hamer cites Australian Bureau of Statistics figures published in 2005 suggesting that 80% of women victims of sexual assault do not report the assault, and remarks that "[d]ata is unavailable, but under-reporting is likely to be higher still for sexual offences against children". [65]Doney v The Queen (1990) 171 CLR 207 at 214; [1990] HCA 51.[66]cf R v Best [1998] 4 VR 603 at 611 per Callaway JA.[67][1991] 2 AC 447.[68][1995] 2 AC 596.[69][1975] AC 421. See reasons of Crennan J at [443].[70][1995] 2 AC 596 at 613.[71]cf reasons of Crennan J at [473].
Decision
Reasons for decision
GLEESON CJ
GUMMOW J
KIRBY J
In OAE v The Queen, the prosecution, as sometimes happens, charged the accused with the first and the last of a series of happenings. Presumably this is done because a complainant may have a clearer recollection of the first and the last such acts, unless there is something particularly memorable about the intervening occasions. Here again, the trial judge did not admit the evidence as evidence of motive, and warned the jury against propensity reasoning. The directions to the jury referred to the permissible use of the evidence only as establishing a context for the evidence of charged acts. The evidence was admissible, and the jury directions were sufficient. In particular, for the reasons given earlier, there was no occasion to tell the jury that they could not rely on the evidence in question unless they found it established beyond reasonable doubt.Conclusion In each of HML v The Queen and SB v The Queen the appeal should be dismissed. In OAE v The Queen, special leave to appeal should be granted but the appeal should be dismissed. The appeals by HML and by SB were heard together and with the special leave application by OAE. Special leave should be granted and the appeal by OAE treated as having been heard instanter. All these appeals are brought from the South Australian Full Court sitting as the Court of Criminal Appeal. The issues of the law of evidence which have been argued in this Court turn upon the common law, with one qualification. This is the belated attempt, which should not succeed, made in oral argument on the appeal by HML to rely upon s 34I of the Evidence Act 1929 (SA). I agree with what is written by Hayne J respecting matters of general principle. In particular, I agree with what appears in his Honour's reasons under the heading "Pfennig v The Queen". I agree with the reasons given by Hayne J for the disposition of the appeals by SB and by OAE. With respect to the appeal by HML, my agreement has the reservation respecting the treatment of the laying of charges in Victoria which is developed by Kirby J in his reasons. I agree with what Kirby J has written on that aspect of the appeal by HML, including the application of the proviso. The upshot is that in this, as in the other appeals, I agree with the orders proposed by Hayne J. Three proceedings are before this Court. Two are appeals, by special leave already granted, from orders of the Court of Criminal Appeal of South Australia[40]. The other is an application for special leave to appeal from orders of the same court[41]. The application was directed to be heard with the appeals because of the similarity of some of the issues raised[42]. I agree that special leave should be granted in the third matter.[40]In R v H, ML [2006] SASC 240 and R v S, B [2006] SASC 319.[41]See R v O, AE (2007) 172 A Crim R 100.[42]OAE v The Queen [2007] HCATrans 473. The appeals have been considered together because of uncertainties that have arisen in trial and intermediate courts in respect of evidence in criminal trials involving accusations of sexual offences committed against under-aged children, commonly by family members. In particular, the appeals present controversies relating to:(1)The rulings to be made in such trials in respect of the relevance and admissibility of evidence of discreditable sexual conduct involving the accused, apart from that alleged in the specific charges brought by the prosecution; and (2)The directions or warnings that should be given to a jury by a trial judge in such a trial, where such evidence is ruled admissible. Such directions or warnings might relate to: (a) the potential uses of such evidence; (b) the standard of proof to be applied by the jury in deciding whether or not they accept such evidence and whether they should use it in reasoning to their conclusion about the guilt of the accused of the offence(s) charged; and (c) the dangers of propensity reasoning based upon such evidence.
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, GUMMOW J, KIRBY J
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