HML v The Queen; SB v The Queen; OAE v The Queen
[2007] HCATrans 549
•27 September 2007
[2007] HCATrans 549
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A23 of 2007
B e t w e e n -
HML
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A19 of 2007
B e t w e e n -
SB
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A28 of 2007
B e t w e e n -
OAE
Applicant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 27 SEPTEMBER 2007, AT 10.04 AM
(Continued from 26/9/07)
Copyright in the High Court of Australia
__________________
GLEESON CJ: Yes, Mr Game.
MR GAME: If the Court pleases, if I could make two preliminary observations. First, one of the difficulties that has arisen in relation to these cases and this subject is that the matters identified by Chief Justice Doyle in Nieterink – a lot of them were conceptually different to each other. So in this case talking about sexual attraction in the same breath as talking about failure to complain is talking about two things that are conceptually completely different and they have to be thought about and dealt with in different ways.
The second preliminary observation is this. The Solicitor‑General and I have used different language, but in terms of the way in which we have both characterised the questions here as involving two levels of discourse, we are talking about precisely the same thing. When the Solicitor‑General speaks of context, that is the same thing as I have spoken about when I spoke about general credibility. When we both spoke about matters going to proof, we were speaking about the same thing, and I will explain shortly. We part company on the outcome, but we agree on that.
In respect of context, we agree no question of proof arises, no question even arises of making any findings, and certainly no question of use arises in the sense in which it was put by the trial judge in this case.
In respect of matters going to proof, and here we are talking about sexual attraction, those are matters which, if there is such evidence, may go to the question of guilt and they are conceptually different things. This can be seen by looking at some cases in areas of the laws of evidence which may assist by analogy. We agree also with the Solicitor‑General that it is inappropriate to have a line of reasoning towards guilt based on sexual attraction if there is not corroborating evidence available to such evidence. We put slightly different arguments or ways of framing it, but we are both agreed on that proposition.
GUMMOW J: Sorry, could you just say that again, Mr Game?
MR GAME: Yes. Insofar as the question of sexual attraction might provide a separate route to reasoning towards guilt we are both agreed that it is inappropriate to conceptualise the case or leave it in that way if you only have the evidence of the complainant uncorroborated. The question still remains as to how one deals with the G-string in this case, and I will come to that in a moment, but so much is common territory between us.
Now, this distinction is a distinction which is a quite conventional one in the laws of evidence and proof, and this can be seen by looking at the case that your Honour the Chief Justice drew the parties’ attention to called Chamilos, and I would like to take your Honours to some passages of that decision because it shows the point quite well.
If your Honours could go to page 9 of Chamilos, you will see at the bottom of page 9 it says:
Without an intelligible explanation of those principles –
This is about complaint –
a jury might unwittingly regard such evidence as going to proof of the offence, as corroboration so to speak of what the complainant says. Where, therefore, there is admissible evidence of complaint it is necessary to instruct the jury that they may not use such evidence as evidence going to proof of the offence but only as assisting them, if in the circumstances it does, in determining the credibility of the complainant.
I have left some words out there. Now, if we go to Kilby and we see another 10 lines down or so:
The evidence of lack of complaint is not then evidence going to proof that the offence was not committed but again is for consideration by the jury only in assessing and, if they so think, affecting adversely the credibility of the testimony of the complainant.
So this discourse is, in effect, a discourse about examining what might be described as the internal plausibility or plausibility of the complainant’s account. You may come to the point where it is found to be internally plausible but some direct evidence shows that it is all false but you still are engaged in what I would describe as that first exercise. Now we come to pages 25 and 26 and we see corroboration defined at page 26:
What is required in the nature of corroboration –
et cetera. I would simply say Doney may involve some very minor qualification on how you would put this, but the idea is the same –
independent evidence of all that the complainant relates, as would in the present case be a specific admission of sexual intercourse . . . What is required is some additional evidence rendering it probable that the story of the girl is true –
and so forth. So that is evidence in the second case which takes you towards an inference of guilt. Yesterday your Honour the Chief Justice raised the question of good character. Now, good character is very exceptional because good character goes to both. In fact in Murphy the appeal was upheld because it was not left as going to both. It goes to what I have described as internal credibility and it goes to guilt.
GLEESON CJ: It is also exceptional because, as I understand it, you do not direct the jury that they may use it in certain ways, you direct the jury they must have regard to it in certain ways.
MR GAME: Yes, your Honour, I accept that, but if I may give one further example which makes this distinction perfectly clear which is the common law with respect to a recent invention. If an allegation is put to a witness that they have recently invented their evidence, then a prior inconsistent statement may exceptionally come in but it is clear on the authorities that the prior consistent statement only comes in on the question of credibility. So the distinction is clear in the laws of evidence and I will just refer to two cases which are terribly well known, The Nominal Defendant v Clements (1960) 104 CLR 476 and Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23. In respect of the first category as well there are many things that may fall away when we are talking about internal plausibility and plausibility and most of the things that were being talked about in this case did fall away.
The matters that one is talking about on page 510, one sees, for example – just if one could go back in the summing up, just to see it by example, to page 506. One is dealing with the complainant’s evidence in terms of its internal consistency and inconsistency. Then at 510 and 511 the error is made in respect of these matters that I would describe as going to what Mr Kourakis calls context and I call general credibility. The suggestion is made that, as it were, you have to make a finding about them and then you can use them in a certain way. You do neither. In addition many of these issues had fallen away and that stands for every one of these so-called uses except for sexual attraction. The question then arises, how do you deal with sexual attraction?
Now, the way that you deal with sexual attraction is this, in our submission. Is the evidence in respect of sexual attraction corroborated? If one goes to the bottom of page 510 that word “It” at the beginning of that paragraph is a reference to evidence of uncharged acts, all uncharged acts.
KIRBY J: Just remind me, what was the statutory law in South Australia on corroboration?
MR GAME: There are two sections, 34I(5) which said evidence of victims need not be corroborated. There is a section 12A that you were referred to yesterday which says evidence of children need not have a warning in respect of corroboration. “It” is a reference to uncharged acts. The evidence of uncharged acts in themselves remain uncorroborated.
GLEESON CJ: I am a little puzzled by what you mean when you say that these matters of context fall away. The assertions about uncharged acts were from beginning to end in issue in the sense that they were contradicted.
MR GAME: No, what I am saying is this. These credibility uses fall away or they are dealt with merely in the first stage. You do not make a finding about whether they can be proved.
GLEESON CJ: I am not sure I understand what you mean by the expression “fall away”.
MR GAME: Your Honour, it ceases to be an issue, shall I say, that requires any directions at all, shall we say, 510, line 50 whether or not he “was confident enough” because you have the evidence ‑ ‑ ‑
GLEESON CJ: But here you are saying nothing like that ever happened.
MR GAME: Absolutely, your Honour, but the evidence that has been brought in has explained that. It falls away in that sense, neutralises it. The problem about, shall I say, “out of the blue” is no longer there because she has explained it. But it is definitely not a matter about which you have to make a finding and it is definitely not a matter about which you have a use because that is the second sense of reasoning towards guilt. What is happening in these directions is exactly the same as if these matters were left as items of corroboration.
GLEESON CJ: Is this connected with the intertwining, that is to say, if you believe her story, that is the whole of it – and I will put aside the problem that you have already told them they do not have to believe the whole of anybody’s evidence – if you believe the whole of her story there is no out of the blue question about the plausibility of her account of the charged acts, but whether you believe the whole of her story is affected, amongst other things, by the fact that it is in dispute in whole. So how can you, as it were, avoid any issue of onus or, as you say, making findings?
MR GAME: Your Honour, in my submission, it is quite inappropriate to make findings if the stage in which you are, shall I say, defensively asking, is it plausible or is it implausible. What you are doing then is you are tending to meet an attack on plausibility. Does the story have internal problems with it? That is what is occurring at that stage, and the story ‑ ‑ ‑
GLEESON CJ: There may be cases – and this may affect the principle that you are putting – in which there is corroboration of the charged act and no corroboration of the uncharged acts and the jury may say, well, we do not make up our minds about the uncharged acts.
MR GAME: Exactly, that is exactly right. What is happening here is that, because of the uses that were identified by Chief Justice Doyle be translated into a direction, there is a jumbling up of ideas which are fundamentally in terms of reasoning processes and appropriate directions different in kind.
KIRBY J: Yes, well, you have made that point now three times but the difficulty I have and, I must say, I was waiting with bated breath in anticipation that you would come and pull together the threads and give us what you say should be said but instead you are going to bits and pieces and plucking words out of Chief Judge O’Brien’s opinion and it is really less than I must confess I was hoping for. I mean, I do not know if you are putting in written submissions but if you ultimately get round to expressing what you say is the shape and design of judicial instructions in this case, then I would be helped by it, because you know a lot about this area and we need a lot of help in this.
I think you have made good, if I can say so, just speaking for myself, the criticism that Chief Justice Doyle’s collection has conceptual disharmony, they are about different things. The other point is that some of them, such as sexual attraction, at least as far as I am concerned, has a real flavour of propensity reasoning.
MR GAME: Yes, that is the next thing I am going to talk ‑ ‑ ‑
KIRBY J: That is a different kettle of fish altogether. That is a danger.
MR GAME: Yes, your Honour.
KIRBY J: It is not just unconceptual, it is dangerous from the accused’s point of view.
MR GAME: Yes, I accept that, your Honour, and I will put to your Honour shortly what I would say about that. But my point about when one comes to the directions in respect of what I have described as the matters that go to proof of guilt, now that is when one directs about, if one does, about the G-string, and there are conflicting factual issues and inferences sought to be drawn from it. That is the point at which you direct on that. That is the point at which question of proof may arise and a possible question about burden and standard of proof may arise. So you do not tie the G-string evidence back into uncharged acts separately from charged acts. You tie it into whether or not it corroborates her account in respect of the allegation that she makes, and there may be steps of reasoning about that.
HEYDON J: It cannot possibly corroborate her because the evidence stems from her; it is not independent.
MR GAME: No. That is correct too, your Honour, but my point is this - that is the point I was making that it involves accepting her on a specific level and on a general level. So the next step in my argument is that the G‑string calls for special treatment but it does not have that character in this case so it should not have been left in that way either. That is the next point that I make.
HEYDON J: Did you make this point in‑chief?
MR GAME: I do not think I did, your Honour. When one comes to the question of standard of proof the problem can be framed in this way. If you have a piece of corroborating evidence or independent evidence of the relevant kind which may enable you to reason towards guilt, then in a Shepherd sense it may well depend on whether or not it is what is described as an indispensable fact. That involves - what has been called in the books - deductive reasoning.
GLEESON CJ: How can corroboration ever be an indispensable requirement?
MR GAME: It is an item I have relied on – it could be an item relied on – in this way, your Honour.
GLEESON CJ: Complainants do not need to be corroborated in order to be believed.
MR GAME: No. I understand that, your Honour, but there are two ways of reasoning. One is to say we have a series of circumstantial facts. We add them together – that is deductive reasoning. You do not need to be satisfied about any fact beyond reasonable doubt. Inductive reasoning works in the reverse. You can say, but for such and such, we would have a reasonable doubt. The “but for” could be this item of evidence. The thing is that juries cannot be expected to reason in one way or the other. The question is, is the evidence of such importance that it should draw such a direction. Now motive – and there are cases such as Murphy ‑ ‑ ‑
GLEESON CJ: But it is contrary to statute. There are statutes all over the country that say you must not tell juries that they cannot believe complainants unless they are corroborated. This is a huge social issue as well as a legal issue.
MR GAME: No. I understand that, but there are also cases like Conway that say sometimes you have to give those directions. That is a decision of this Court three years ago. That is true, your Honour, but what I am putting is this. There is a mode of reasoning which the jury may adopt – that is, to satisfy any doubt they have about the complainant’s evidence they may say it is essential that we find that such and such piece of evidence was demonstrative of, shall I say, sexual attraction, and they draw an inference about it.
In that circumstance they would have to be satisfied about that inference beyond reasonable doubt. That is all there is to it. The reason why it may have to be given is because of the importance of the issue in the case. To say that you are not going to leave that direction open is to, as it were, predetermine that the jury will approach the entire question by what has been called deductive reasoning.
If I could then turn to this question of propensity reasoning. I think it was said by your Honour the Chief Justice yesterday that – and I am not sure if it was more general observation than this – giving directions against propensity reasoning is a futile exercise – or may be.
GLEESON CJ: No – may. What I said yesterday was that there may be circumstances where the argument that the prosecution is relying on is much more pointed and damaging than a general proposition that “This is a bad man”.
MR GAME: Yes. Your Honour, I would submit that just to say it only…..the same type of person.
GLEESON CJ: No, the argument for the prosecution in these cases is not “This is a bad man.” The argument is, “This is a man who has used this daughter as an object of sexual gratification”.
MR GAME: Yes. No, I understand that, your Honour. BRS is authority for the proposition that in certain cases, in that case, directions had to be given against propensity reasoning. It was upheld by Justice McHugh even though he thought it would be worse to give such directions. Now, your Honours, in this case the judge and prosecuting counsel both – the prosecuting counsel never relied on the evidence for propensity reasoning and the judge purported to direct against it.
Now, the question is this, is there any room left, because the Solicitor‑General’s argument is that there is room left for non‑propensity reasoning in respect of sexual attraction. If that is the case, then if you are going to leave this as a topic, you have to give terribly careful directions about the distinction between non-propensity reasoning concerning sexual attraction and propensity reasoning. Now, where that comes in is this. The propensity reasoning is that you reason that the person has an attraction by propensity reasoning from other acts. You then come to the offence and you say, “Is there space left for non-propensity reasoning, ie, a state of mind which then just becomes, shall we say, a circumstantial fact.” That is the small room that the Crown, as it will, leaves open for non‑propensity reasoning.
Now, if that is the case you have to give the most careful directions to the jury against the propensity reasoning which is what I put as the second form of reasoning the other day which is what is the chance that a person with that state of mind would go into that room with his daughter and not commit that offence? That is the propensity reasoning that you have to direct against. I will not take your Honours to the case. I will just give you the name of it. A decision in a case called BJC 154 A Crim R 109 at 122, Judge of Appeal in Victoria, makes this point. We would submit that the very propensity that had to be directed against was not directed against. In fact, the idea of sexual attraction leading to sexual gratification in fact invites that propensity reasoning.
Finally, just to pick up some small matters. Your Honour the Chief Justice – it is just a question of characterisation – spoke about the daughter persuading her father to go shopping as a context within which this occurred. There is no need to go to it, but at pages 85 and 86 the context is just a little bit different from that, if your Honour could note that.
The other point is that in respect of the Victorian alleged offences, it is not as if we are trying necessarily to get to a hearsay inference, but even if we were it would not necessarily be impermissible because that is how character works. We are trying to get to the non-hearsay inference, the non‑hearsay fact which is the fact that he was not charged, which prevents further impermissible reasoning about it.
Two further short points. One is this. The distinction between fact in issue and fact relevant to fact in issue does not correspond to direct and indirect evidence. They are quite different concepts ‑ ‑ ‑
GLEESON CJ: Relevance.
MR GAME: Yes, and section 55 of the Evidence Act makes that point very plain.
KIRBY J: You are referring to the uniform Evidence Act.
MR GAME: Yes, sorry. May I just make one point about the uniform evidence law and what one is engaged in here is that the common law propensity cases are saying that if the evidence has that capacity, then you must warn against it even if it is not being used for that purpose, whether that is right or wrong. The statutory provisions in sections 97, 98 and 101 of the Evidence Act worked in a quite different way because they only apply if tendency reasoning is the only reasoning.
GLEESON CJ: What do you understand to be the difference between direct and indirect relevance?
MR GAME: Direct and indirect. Well, your Honour, if a witness got into the witness box and said “I saw that murder take place” and there is a surveillance camera that shows that the circumstances were different, both of those pieces of evidence are direct. If there is a piece of evidence that shows that the witness who gave evidence about seeing it has a conviction for perjury, then that is indirect evidence.
GLEESON CJ: I said the difference between direct and indirect relevance.
MR GAME: I am sorry, your Honour.
GLEESON CJ: You remember the question arose because of an expression used by Justice Gaudron in her judgment in Gipp.
MR GAME: Yes, I do. Your Honour, what is meant there is evidence going to guilt – direct relevance is evidence going – but I would not necessarily adopt that terminology in this discourse.
GUMMOW J: Mr Game, like Justice Kirby, I am worried about the significance of the propensity elements in what you have been putting and the connection then with that of the reasoning in Pfennig and what complications flow from the further character of the evidence as non‑propensity evidence. How does it all fit together?
MR GAME: If it is purely propensity reasoning, then one has to either ditch Pfennig or find an exception.
GUMMOW J: No one is asking us to do that.
MR GAME: No, I understand that. You have to find an exception, it would appear, in this circumstance.
GUMMOW J: The exception being?
MR GAME: I suppose there are two ways of putting it. One is to reject the line of authority which says that Pfennig applies whether or not you are using it for propensity reasoning. So if there is some other form of relevance – so if one limits Pfennig rather than overturning it and one can find a non‑propensity use for the evidence – that is what Justice McHugh is talking about in KRM. Really, the reason why Pfennig has difficulties in this situation is because if you apply Pfennig literally to this case, then to apply it you, as it were, have to make a judgment about the credibility of the complainant before you admit the evidence.
HAYNE J: No, you do not. That is what Phillips decided, did it not, that assumptions are to be made, that the question of admissibility has to be determined on the assumption that the evidence if given would be accepted.
MR GAME: I stand corrected, your Honour.
HAYNE J: And on the further assumption that the prosecution case will take the shape which at that stage is anticipated rather than revealed.
MR GAME: I am sorry, your Honour. I had either forgotten about that or I did not know it, but whichever it is, Hoch is a case where you have to exclude the possibility of concoction. So how do you do that if you do not make a judgment about the credibility of the various components because you are asking yourself, “Well, did they speak to each other in the school yard?” or “Did they speak to the same counsellor?” and so forth.
HAYNE J: What the debate may reveal is a number of difficulties not about Pfennig but about terminology. In particular, it may reveal a difficulty about the content which is being given to the term “propensity” when it is used in the collocation “propensity evidence”. In further amplification of that, it may be that there is some distinction to be drawn – I do not know whether this is right – between propensity evidence and evidence which is being tendered, if you like, in the nature of evidence of motive. That may depend upon a distinction between propensity to wrongdoing, propensity to a particular species of wrongdoing, namely, sexual offending against young persons, to the further subdivision of sexual offending directed to this person.
Now, there are those several steps which may be available. If they are available, they may or may not be right to take, but can I join in the suggestion of a need to step back and put this into a framework and, at least for my part, it would be useful if there were an opportunity for you to put it in writing in a framework that will, whether by indicating what the charge should be ‑ ‑ ‑
MR GAME: I will not be able to do that in seven days, I am sorry, your Honour, but if I could have, say, 14 days to both attempt ‑ ‑ ‑
GLEESON CJ: Well, in each case in the directions or leave that has been given already, we will expand seven to 14.
MR GAME: Yes. The only other thing I would say about it is this. Chief Justice Doyle said that if Pfennig applied he was satisfied that it had been satisfied, so that is a possible view. Justice McHugh in all of those judgments thought it was propensity evidence and thought that it did get
over what he regarded as the appropriate test, but that was not the Pfennig test.
GLEESON CJ: Now, one thing that complicates our task, and may complicate yours, is that although we are not dealing with the uniform Evidence Act, we do have to try and achieve a reasonable measure of coherence in the law in this country and this question of tendency evidence is dealt with specifically in the Evidence Act. How does Pfennig continue to apply, if at all, in that statutory regime?
MR GAME: Special leave was revoked in a case called Ellis where five judges of the Court of Criminal Appeal in New South Wales held that Pfennig did not apply to section 101 and special leave was revoked by this Court ‑ ‑ ‑
GLEESON CJ: Section 101 just makes the test or the exclusionary principle whether the probative value substantially outweighs any prejudicial effect.
MR GAME: Yes, but that was the thing that was latched on to say that Pfennig applied.
KIRBY J: We learned in Washer, which stands for judgment, that in Western Australia the Evidence Act – I think it is section 31 or maybe 31A – expressly provides for Justice McHugh’s minority view in Pfennig. So the evidence law of Western Australia was explicitly changed to embrace Justice McHugh’s view rather than the majority view.
MR GAME: Yes, your Honour, it is quite clear that the Evidence Act is far less generous to an accused person in respect of this evidence and this evidence routinely gets in under the Evidence Act strictures. That is the first thing. The second thing is that there is an outstanding argument about whether or not that section I took your Honours to in the first few minutes two days ago unintendedly works as an exclusionary rule. That is all I wanted to say in reply. If the Court pleases.
GLEESON CJ: Thank you, Mr Game. Yes, Mr Solicitor.
MR KOURAKIS: Your Honour, could I just clarify the question of leave as to content? As I understand it, it is now extended to written submissions on both admissibility and directions.
GLEESON CJ: Yes.
MR KOURAKIS: And as to the articles referred to and requested by his Honour Justice Kirby, do we have leave of the Court to provide a note as to any articles within those descriptions?
GLEESON CJ: Yes.
MR KOURAKIS: And can I seek leave to include within our reply a short note as to the particular question of corroboration that was raised in reply?
GLEESON CJ: Yes.
MR KOURAKIS: If the Court pleases.
MR GAME: I think that your Honours, I regret to say, asked for submissions about the proviso as well.
GLEESON CJ: Yes, thank you. We will reserve our decision in these matters and we will adjourn for a short time to allow parties to get their papers in order for the next case.
AT 10.40 AM THE MATTER WAS ADJOURNED
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