HML v The Queen; SB v The Queen; OAE v The Queen

[2007] HCATrans 548

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 WEDNESDAY, 26 SEPTEMBER 2007, AT 10.20 AM

(Continued from 25/9/07)

__________________

GLEESON CJ: Yes, Mr Tokley.

MR TOKLEY: Thank you, your Honour. Your Honours, could I pick up on some of the matters that were mentioned yesterday and could I first deal with the question that was raised of the possibility of bringing argument regarding the admissibility of some of the evidence. Overnight we have given consideration to the matter and we have drawn a proposed new ground of appeal similar in substance to that which was handed to the Court yesterday in the matter of HML but taking on board the suggestion by your Honour Justice Kirby to amend it to include all or some of the evidence.

KIRBY J: Do not blame me for this. This is your case.

MR TOKLEY: Thank you, your Honour. Your Honours, we are not in the position to address the substance.

GLEESON CJ: Are you going to present argument to us on taking a new point in the High Court that was not taken at trial and was not taken in the Court of Criminal Appeal in circumstances where if an objection to the evidence had been made at trial it might have affected the course of the trial?

MR TOKLEY: Your Honours, I am conscious of the difficulty of overcoming those hurdles. In my respectful submission, what I was proposing to do was to deal with the matters that your Honour has raised by way of written submissions rather than trouble the Court with the matter now. I am conscious of the obstacles that there are in our path and one cannot, I say, pin too much hope on succeeding in such a new ground for the reasons your Honour has just outlined.

GLEESON CJ: Has there ever been a case, to your knowledge, where this Court has dealt for the first time with a question of the admissibility of evidence that was not objected to at trial?

MR TOKLEY: I am not aware of an authority, your Honour, in which the Court has dealt with such a situation unless the situation prevailing in the case Gipp was one where there was no objection taken to the admissibility of evidence at trial.

GLEESON CJ: Was it a case about admissibility of evidence?

MR TOKLEY: Yes, your Honour, it was, but in relation in particular to the – sorry, your Honour. In Gipp a new ground was raised.

KIRBY J: It is Gipp, it is normally called Gipp.

MR TOKLEY: Thank you, your Honour.

KIRBY J: I think he was a governor.

MR TOKLEY: In Gipp a new ground was raised ‑ ‑ ‑

KIRBY J: Not the accused, but a predecessor Gipp.

MR TOKLEY: Thank you, your Honour.

KIRBY J: Maybe that was Gipps.

MR TOKLEY: In Gipp a new ground was raised. My understanding, it was raised for the first time in the High Court and notwithstanding the fact that it was only raised for the first time ‑ ‑ ‑

GLEESON CJ: When you say new ground, do you mean objection to the admissibility of evidence? The point I am offering for your comment is this. If an objection is taken to evidence at trial and the objection is upheld, the parties will then conduct themselves at trial in the light of that particular event.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: But where no objection is taken to evidence at trial and evidence is admitted, they lose the opportunity to do that.

MR TOKLEY: Yes, your Honour. I accept that, your Honour, and that is a point against us because we – as I said yesterday, no objection was taken to this evidence at trial. Your Honour, I cannot press the matter any further save and except ‑ ‑ ‑

KIRBY J: On the other hand, you do argue this issue in your written submissions. You argue the question of admissibility as I read your written submissions.

MR TOKLEY: Yes, your Honour, and for the reasons ‑ ‑ ‑

KIRBY J: And you do have, in considering the question of the directions to be given by the judge, to consider what the evidence is relevant for.

MR TOKLEY: Yes, your Honour, for the reasons that we canvassed in argument yesterday, that one looks at the question of the directions through the prism of admissibility.

KIRBY J: It is pretty clear you may have some problems, but anyway you want to have the opportunity of putting written argument, is that what you say?

MR TOKLEY: If I may, your Honour, and also to assist the Court dealing with these questions. I understand there is no opposition to the ground that we are proposing but I also understand your Honour Chief Justice’s point that there may be no case or authority in this Court which would permit such a course of action and it would be incumbent upon the appellant to find an authority in favour of doing so. At the moment I cannot point to such an authority unless Gipp was one.

GUMMOW J: Another question. Gipp says this jurisdiction is very wide, but how and when it is exercised from time to time is another question. That is what you have to face up to, I think.

MR TOKLEY: Yes, your Honour.

HAYNE J: It was considered I think in Crampton, was it not? Crampton is where it was next considered in the court?

MR TOKLEY: Yes, your Honour, it was, yes. I am sorry, I am not familiar enough to bring to the Court’s attention passages in Crampton, but I am familiar – I do understand that it is one of the authorities which may help to support the argument that we would wish to put for the Court to hear such a new ground.

GLEESON CJ: Yes.

MR TOKLEY: Thank you, your Honour. Your Honours, the second point I wish to raise was in relation to the authority your Honour very kindly provided yesterday, which is the decision of R v Chamilos, an unreported decision of the Court of Criminal Appeal of New South Wales dated 24 October 1985. In my respectful submission, the relevant principle that can be found and perhaps is applicable in this particular case can be found at the bottom of page 15 of the judgment over to the top of page 16 of the judgment. It is the second sentence in the last paragraph on page 15, beginning:

There is a line of authority which establishes that in narrating the circumstances of the alleged offence evidence is admissible from the child of the general sexual relationship between the adult and the child out of which the charge arises. The decisions mostly relate to a situation where there is no direct corroboration of the charge which is laid within a limitation of time statutorily prescribed, but there is direct corroboration of a previous offence arising out of the relationship but which is out of time for prosecution.

His Honour, the Chief Justice of the Criminal Division, Chief Justice O’Brien, then proceeds to go through the various decisions which support that principle. In my respectful submission, the most important of those decisions is mentioned on page 17, and it is the well‑known House of Lords case of R v Ball [1911] AC 47.

Your Honours, the argument I am putting to this Court is, in my respectful submissions, consistent with the principle that is stated at the bottom of page 15, top of page 16 and it is consistent with the way in which these matters have been handled, but since the R v Ball it is that provided the evidence is introduced for the purpose of establishing, to use the words of Ball, a “sexual passion” or “guilty passion” and later words of “sexual attraction” and provided it is used only for that limited purpose, then the evidence is admissible. Once it is admissible, it may be that with other evidence it assists the jury to reach a view about subsidiary questions or subsidiary facts relevant to the charges that have been laid, but it is ordinarily not directly probative of the charges.

GLEESON CJ: What do you say about what the Chief Judge of the criminal division said on the second half of page 14 over to the top of page 15?

MR TOKLEY: In the first sentence, your Honour?

GLEESON CJ: Beginning, “At the same time it is by no means easy”.

MR TOKLEY: Yes, your Honour, and that is the practical difficulty that his Honour Justice Hayne referred to yesterday, that in terms of the conduct of a criminal trial it is almost, one would say, inevitable that there will be occasions where a complainant is giving evidence of other criminal conduct that will come out either in the course of the evidence‑in‑chief, possibly during cross‑examination or re‑examination and that in practical terms is very difficult to contain or confine the way in which a complainant gives evidence in a matter. In fact, your Honours, in this particular case there is a very eloquent description by his Honour Chief Justice O’Brien of the attempt by the counsel in the case to do just that, confine the evidence from the complainant. I am indebted to your Honour the Chief Justice for bringing that matter to my attention.

Your Honours, if I can say this. The question of principle is of course separate from the question of practicality. I understand that the question of principle must work within the practical confines of a criminal case and in making the point that I am making, I am not seeking to make, if I may it put this way, a practical point but I understand that the principle that I am espousing or seeking to have the Court accept must be one that works within the practical confines of a criminal case.

It was for that reason yesterday that I spoke of the tension between, on the one hand, the practicality of the case and, on the other hand, the question of principle which is when an accused person is facing such charges, how does one deal with the practicalities and the question of principle, that is, that the accused is put on notice by the information of the charges he must face? It is the reconciliation of those two matters that is at the heart of what I call the tension in the case.

Yesterday your Honour Justice Kirby very kindly pointed to the fact that the respondent – the Director of Public Prosecutions – seeks to argue that the principle found in Vonarx and mentioned in Pearce and a number of other Victorian decisions has in fact either been diluted or has in fact not been applied in the way in which the Court of Criminal Appeal in Vonarx suggested that the principle should be applied.

In my respectful submission, when one reads the cases that are referred to by the DPP they do not in fact support such a broad proposition and in fact the subsequent decisions of the Victorian Court of Criminal Appeal are very careful in the way in which they use the principle which has been identified in Vonarx. They are very careful not to say that the limited purpose for which this evidence can be used in Vonarx is incorrect, and the subsequent decisions have to be read in light of the particular facts those decisions are dealing with.

If I could perhaps just illustrate one of the cases by referring your Honours to R v BJC 13 VR 407 at page 415. Beginning at page 415, paragraph 21, under the heading “The affirmative direction” his Honour Acting Justice of Appeal Byrne refers to the well‑known authorities of Pearce and Vonarx and his Honour in fact quotes the relevant passages from Vonarx. Over the pages his Honour then deals in greater detail with the cases of Pearce and if we then move on to the case of PLK in paragraph 24 - but importantly, your Honours, in paragraph 24 when he is dealing with the case of PLK he quotes extensively from the judgment of his Honour Justice Buchanan, and about the fact that when such evidence is admitted for the purpose of establishing a sexual relationship, it may also have the consequence of making the complainant’s evidence more credible.

But his Honour is careful, both when he is referring to PLK and in the subsequent paragraphs of his judgment to, I think, draw the distinction between the purpose for which the evidence is admitted and the use to which it may be put once it has been admitted.

HAYNE J: But does not this chain of cases commencing in Vonarx, going through Pearce and subsequently, reveal at least this. In Vonarx the court was concerned to articulate the bridge that was seen as existing between uncharged acts and the events the subject of charges.

MR TOKLEY: Yes, your Honour.

HAYNE J: What is said in BJC by reference to PLK about making evidence more probable, credible, believable or the like, steps back from the articulation of the bridge to language which does not tell the jury much. Instead of telling the jury here is what the complainant said happened in the past, here are the offences that you are to consider – and her evidence, or his evidence, about them, the bridge that is formed between them is to be identified in terms which seem to me not very different from motive.

MR TOKLEY: Yes, your Honour.

HAYNE J: Instead of getting the jury to articulate that intermediate step, you are left with simply, “Well, it makes it more credible, more believable.” It tells them nothing and, in particular, does not tell them of the danger that lies in saying, “He did it before, therefore he did it now”. The danger lies in what that magic word “therefore” encompasses.

MR TOKLEY: I agree, your Honour. It is easy, to use your Honour’s expression, to elide from one situation to another situation.

GLEESON CJ: But on that earlier aspect of what it can be used for, on the top of page 417 in this case there is a quotation from what Justice Buchanan said with the concurrence of Justices Tadgell and Charles in an earlier case. Can I direct your attention to the first complete sentence in the quote on page 417 beginning with the words “The evidence” and concluding with the word “complainant”.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: What is being said there is, is it not, that the evidence of the sexual nature of the relationship between the applicant and the complainant was evidence of a fact relevant to a fact in issue.

MR TOKLEY: Correct, your Honour.

GLEESON CJ: The sexual nature of the relationship between the applicant and the complainant was not a fact in issue.

MR TOKLEY: That is correct, your Honour.

GLEESON CJ: But it was a fact relevant to a fact in issue, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: That is, it was of probative value as to a fact in issue.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: So can the jury in an appropriate case be told that a fact relevant to a fact in issue in this trial is the sexual nature of the relationship between the applicant and the complainant, and the prosecution is entitled to rely on that fact, if the fact exists, to increase the probability of the fact in issue, which is whether the events charged took place?

MR TOKLEY: Can I answer your Honour the Chief Justice’s question in this way. In my respectful submission, the evidence can be used as relevant to a fact which is relevant to a fact in issue, that is, a charge count. The consequence of that evidence coming in may be that it bolsters the credibility of the complainant or it enables the jury to have regard to the complainant’s evidence in a particular way.

GLEESON CJ: But any fact relevant to a fact in issue bolsters the credibility of a complainant of any kind. Suppose the fact relevant to the fact in issue was an admission made by the accused person, suppose the prosecution called evidence that the accused had said to the mother of the complainant “I’ve been doing terrible things to the complainant”, the admission is a fact relevant to a fact in issue, is it not?

MR TOKLEY: Yes, your Honour, it is.

GLEESON CJ: In a sense, if you believe that the admission was made, it bolsters the credibility of the complainant.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: But it does more than that, does it not?

MR TOKLEY: It can do, your Honour, yes, and the question for the Court is whether it should be allowed to do more than that, and that is the question your Honour raised and Justice Hayne raised yesterday.

GLEESON CJ: Nobody suggests, as I understand it, that the jury ought to be told that the admission had to be proved beyond reasonable doubt.

MR TOKLEY: No, your Honour, but, with respect, your Honour, that raises a different problem.

GLEESON CJ: It does raise a different problem, but the point I am seeking to identify or to clarify is that what we are talking about is facts relevant to the fact in issue.

MR TOKLEY: Yes, your Honour. That is the area of discourse, yes. In my respectful submission, the probative value of the, to use the expression, evidence of uncharged acts, if it is not being used for a propensity purpose, it can only be used to facts relevant to facts in issue, what are sometimes called subsidiary facts. I think it is one of the matters adverted to by her Honour Justice Gaudron in Gipp’s Case.

KIRBY J: It is true that there are difficulties in conceptualising and drawing the line of where you end the entitlement of the prosecution to prove matters relevant to the charges being the matters that define the facts in issue but, at least in my present thinking, it cannot be a completely open‑ended entitlement to prove a large number of other offences which the prosecution has not charged the accused with because, in respect of such charges, the accused acquires certain entitlements during the trial.

MR TOKLEY: Yes, your Honour.

KIRBY J: Otherwise you are saying that anything that is in issue to a charge of one count of a sexual character will allow an open slather to every sexual offence and you are back in the Lord Holt territory instead of in the accusatorial trial territory which is the one that courts in this country have traditionally safeguarded. Therefore, the problem is one of finding a rule which permits the proof of the confession or admission by the accused but preventing the trial descending into a complete open slather by the prosecution without the irksome necessity to charge the offences that should properly be put before the jury. That is the area of discourse but it is also the area in which we must try to find a rule.

MR TOKLEY: It is, your Honour. It is for that reason that I have been, if I can put it this way, urging upon the Court to follow the Victorian line of decisions and particularly with the decision of Vonarx because there their Honours in saying that the evidence is introduced for a limited purpose has the effect of confining the purpose for which that evidence is introduced and provided the notion or definition of a sexual relationship is limited, if it can be, to the idea of a sexual attraction, then the evidence only proves that which it can prove.

KIRBY J: The problem I have with Vonarx is that the sexual attraction criterion is not the only one that courts have put up. They have put up the whole range of criteria that I mentioned yesterday, proving the context, proving that the thing did not come out of the blue, suggesting grooming – well, that could perhaps be sexual attraction – suggesting that it is no surprise, explaining why there was no earlier complaint and therefore sexual relationship or sexual attraction does not seem to cover the whole field.

MR TOKLEY: No, your Honour. I accept that, your Honour.

KIRBY J: I am not saying that I would agree that the other matters that are referred to are necessarily such as would permit the open slather, because it is terribly dangerous for the accused. The accused can answer charges, but to answer a whole inquisition on his or her life is a very difficult thing to do in a trial context. It has not been traditional of the English criminal trial which is accusatorial and particular and specific.

MR TOKLEY: Your Honour, I do not disagree with what your Honour is putting. All I am seeking to do, I suppose, is to identify a principle or proposition for the Court which accepts the realities of the trial situation, follows an existing line of authority in which these matters have been considered and to lead to the relevant use of the particular evidence in particular cases. I really cannot say anything more than that, your Honour.

Your Honour, the final case I was wishing to bring to the Court’s attention was the case of Nieterink (1999) 76 SASR 56 itself. Could I begin by saying that I accept what his Honour Justice Heydon said yesterday about this case, that I do not think that Chief Justice Doyle was purporting to propound a general principle applicable in all cases. I think that he was seeking to understand the way in which the law was developing at this particular point in time in relation to the potential relevancy of evidence of uncharged acts.

KIRBY J: That may be so, but as the trial judge – I think it is in your case but it may have been in HML – said this is a very difficult area in which to charge a jury and it is therefore a natural and understandable thing with judges of trial who have very big responsibilities, a lot of money turning on having cases go off and have to be tried again, as well as pain to the accused and the complainant, naturally go into a case like this to get a formula as they will ultimately enter the decision of this Court in these three matters.

MR TOKLEY: Yes. In fact, I think it is most evident in the previous case of HML where the trial judge – my recollection is he listed the various bases that are identified in Nieterink as a potential basis for relevancy. Your Honours, could I simply take the Court to various paragraphs, the first is the last sentence in paragraph 41 which is actually on page 65 of the report. That sentence begins:

The evidence is, as the judgments state, evidence which places the charged acts in their context –

and so on and so forth. The point in that paragraph is picked up again by his Honour at paragraph 76 of his Honour’s judgment which is on page 72 where his Honour then says:

Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases.

His Honour then says at paragraph 77:

This is the basis upon which its admissibility was supported at trial, although in rather more general terms.

GLEESON CJ: What does her Honour mean by the expression quoted in that passage about two-thirds of the way down page 69 where she said:

there was no feature of the kind present in R v Ball that made it directly relevant to the question –

What is the difference between direct and indirect relevance?

MR TOKLEY: Your Honour, I understood what her Honour Justice Gaudron was saying in Gipp’s Case was that in Ball’s Case it was said by the Lord Chancellor, Lord Loreburn, that the evidence was directly relevant to prove the elements ‑ ‑ ‑

GLEESON CJ: I understand the difference between relevance and irrelevance. I am trying to understand the difference between direct and indirect relevance.

KIRBY J: Is it the difference between a fact in issue and a fact relevant to a fact in issue?

MR TOKLEY: Yes it is, your Honour. In the case of R v Ball it was, yes.

GLEESON CJ: Just a minute. Relevance means that something is logically probative of a fact in issue, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: So to say that a fact is relevant to a fact in issue is to say that if the fact is established that has the tendency to prove that the fact in issue exists, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: Well, if you say of a fact relevant to a fact in issue that it is directly relevant or that it is indirectly relevant, what is the distinction you are making?

MR TOKLEY: In this particular context, your Honour, and in the case of R v Ball it is being used – I understood her Honour to use the words “directly relevant” ‑ ‑ ‑

GLEESON CJ: What is the difference between something that is directly probative and something that is indirectly probative?

MR TOKLEY: If I could put it this way, your Honour. It is the distinction which his Honour Justice Kirby alluded to in the context of that case, which is that in Ball’s Case the evidence of sexual attraction was considered to be directly relevant to – I use the words for the moment ‑ ‑ ‑

GLEESON CJ: The evidence of a fact in issue is “I saw him do it”. Evidence relevant to a fact in issue is “He admitted to me that he did it”. Is that right?

MR TOKLEY: Yes, your Honour.

KIRBY J: But evidence that he did things years before or years after is not necessarily directly relevant to the fact in issue, and the danger is it may tend simply to show that this is a nasty person, and then the reasoning becomes “This is a nasty person, therefore he must have done the fact in issue” which is the very danger that the common law of England has stood for a long while against, and in Australia.

GUMMOW J: What is said by her Honour in Gipp at paragraph 11, which is set out in Nieterink, has to be read with what she said in paragraph 10 on page 112 of 194 CLR.

MR TOKLEY: Yes that is correct, your Honour. Perhaps I could ask the Court to go to Gipp’s Case (1998) 194 CLR 106 at 112.

GUMMOW J: Well, perhaps starting at paragraph 9 actually on 111. Reading all of this, we have to bear in mind that Pfennig was not a relationship case.

MR TOKLEY: No, that is correct, your Honour.

GLEESON CJ: And that many so-called similar act or similar fact cases have nothing to do with sex.

MR TOKLEY: That is correct, your Honour. One of the points I was perhaps not making very well, but when in answer to one of his Honour Justice Heydon’s questions yesterday, it seems that the idea of relationship evidence arose out of the earlier case of O’Leary. It is not a term that appears in the House of Lords decision, R v Ball, but it seems somehow that the notion of the relationship evidence has been absorbed into the area, or into the context of the sexual cases.

Your Honour, it may not be in answer to your Honour the Chief Justice’s question, but the way I understood her Honour Justice Gaudron was referring to R v Ball was that in that particular case the fact that the two accused, a brother and sister, had earlier had a child indicated something of the nature of the relevant mental state of the male accused. That was something that could only be, for the purposes of the prosecution, inferred from the previous conduct. Because one of the elements of the offence was the relevant mental state of the accused, it was in that way that it was said that his earlier conduct directly proved that mental element, and it is in that way that I understand her Honour to be using the expression “directly relevant” – that is, it assists in proving one of the elements of the charged offence as opposed to a subsidiary fact or a fact relevant to a fact in issue.

GLEESON CJ: But in the second sentence in paragraph 12, leave aside the rest of paragraph 12, and the third sentence it is said:

evidence of prior sexual abuse may explain lack of surprise or failure to complain. If they are issues in the trial, evidence of general sexual abuse is relevant and admissible.

Now, they will never be facts in issue. They will only ever be facts relevant to facts in issue. Surprise or lack of surprise is never an element of a criminal offence.

MR TOKLEY: I accept that, your Honour. Yes, that is correct.

GLEESON CJ: There is no offence of surprisingly sexually assaulting someone.

MR TOKLEY: No, your Honour.

GLEESON CJ: So when Justice Gaudron says that “lack of surprise” or “failure to complain” may be issues in the trial, she must mean may be matters relevant to issues in the trial. They will never be elements of the offence. The question will be whether surprise or lack of surprise or complaint or failure to complain is probative of the commission of the offence charged.

MR TOKLEY: And it cannot be directly, your Honour, no. It can only be, in one sense, a subsidiary issue or at least a subsidiary fact relevant to the ultimate facts in issue in the case.

GLEESON CJ: Yes, but leaving aside any questions of chronology or how and when things develop in the trial, what is said in paragraph 12 by Justice Gaudron is a clear and explicit recognition of the fact that what she calls “evidence of general sexual abuse” may be relevant and admissible because it may explain “lack of surprise” or “failure to complain”. Do you suggest that that is wrong?

MR TOKLEY: No, your Honour, I am not, but, your Honour, with the qualification that her Honour says “only if they are made issues by the way in which the defence case is conducted.”

GLEESON CJ: That is what I meant by chronology.

MR TOKLEY: Yes. So if one does not accept her Honour’s qualification, then there must exist a principle which would support the admissibility of that evidence being ‑ ‑ ‑

KIRBY J: As I understood your earlier submission, though the answer you give is generally that that is not what her Honour says is not to be challenged, there may become cases where you open up a whole range of actual offences with which the accused is not charged, where it simply is unfair to the accused to have him suddenly put on trial for other offences of which you is not charged and which he does not have the protections which the law gives to him in respect of matters on which he is charged. That was what I understood you to be saying earlier is the line you have got to draw somewhere.

MR TOKLEY: Yes, your Honour. In my respectful submission, there is a line that has to be drawn because of the dangers of this sort of evidence which your Honour has pointed out.

GLEESON CJ: And where do you draw the line? Where do you draw the line in your submissions?

MR TOKLEY: Your Honours, in my submissions I sought to draw the line consistently with the way in which the Victorian Court of Criminal Appeal have sought to draw the line, that is, provided the evidence is used only for a limited purpose, that is, to prove a sexual relationship or sexual attraction or sexual passion on the part of the accused, it is used then in a way in which it is relevant. That evidence establishes such an attraction or passion. If confined in that way, then to a certain extent it ameliorates the dangers that an accused person faces and if confined in that way together with the other warnings that are normally given, it would hopefully be properly used by a jury in a particular case.

KIRBY J: Even that I have difficulty with, because there will be ways in which you can prove the so‑called sexual passion by saying, “Well, on 15 March 1995, he raped me and on 17 April 1996 he raped me”, and then you have got a whole series of actual criminal offences.

MR TOKLEY: You do, your Honour; yes.

KIRBY J: Then the prosecution says. “We are only putting this up to show that there is this sexual passion”. But the accused stands there suddenly having to answer accusations of actual criminal offences in respect of which he does not have the protections of the specific charge and the opportunity to challenge evidence that goes outside the charges.

MR TOKLEY: I understand your Honour’s point. It may not be a complete answer to your Honour’s point, but there will come a point in time when the evidence of other criminal offences, or other criminal conduct, amounts to, in effect, the introduction of propensity evidence that has been used in a propensity way. The trial judge could then say that such evidence, unless it is being led for propensity purposes, is not to be admissible.

KIRBY J: It is not only introducing propensity evidence with all the dangers that has, it is introducing, in effect, as in Hamlet, the play within the play, you have the trial within the trial and without the protections of a trial.

MR TOKLEY: Yes, your Honour.

KIRBY J: By the way, it also leads to sloppy prosecution practice, which is not to be encouraged, in my view.

MR TOKLEY: Indeed, your Honour. Your Honours, that effectively concludes my submissions. There are some minor matters just in relation to the respondent’s submissions. May I simply refer to the matters without taking your Honours to any further cases. I am conscious of the time that I have already taken up.

GLEESON CJ: Yes.

MR TOKLEY: Your Honours, at paragraphs - I will just mention them. At paragraphs 84 through to 93 of the respondent’s submissions they deal with the question as to whether the case of Vonarx has been, if I can put it this way, diluted by subsequent decisions in my respectful submission.

When one reads the cases that are referred to it can be seen that they are in fact consistent.

KIRBY J: You have said that to us before.

GUMMOW J: Why does it matter? We are not bound by any of this. We take it for its cogency.

MR TOKLEY: Yes, your Honour. I have simply one final point. At page 108 it is said that the appellant conceded that the use of the evidence in this particular case to show a pattern or grooming was a permissible form of reasoning. Your Honours, it was not so much a concession as an acknowledgement that there is in one of the cases referred to – R v IK (2004) 89 SASR 406 that it is simply mentioned by his Honour Chief Justice Doyle as one possible use of such evidence. Thank you, your Honour.

GLEESON CJ: Thank you, Mr Tokley. Yes, Mr Vadasz.

MR VADASZ: May it please the Court, the miscarriage of justice that occurred in this matter is, firstly, the admission of the evidence of the acts of criminal conduct of a sexual kind that were not charged and, secondly, if those acts were properly admitted the question of – or the failure of the trial judge to direct the jury that they should only accept those acts if they were satisfied beyond reasonable doubt.

KIRBY J: You objected to the admission of the evidence at the trial?

MR VADASZ: I did.

KIRBY J: Indeed, I think you had – your fingerprints are on the earlier objection, are they not, in the other case?

MR VADASZ: On HML yes, your Honour, that is correct.

KIRBY J: That had not slipped my notice.

GLEESON CJ: Where can we conveniently see the evidence that was objected to?

MR VADASZ: The first point is page 5 of the application book. There was reference yesterday to an application pursuant to rule 9, and that can be seen at page 5. There is a requirement under the District Court and Supreme Court Rules to file a pre-trial notice. At page 6 of the appeal book an objection is taken firstly to allegations of violence by the accused upon the complainant, that is application No 1 and, secondly, (ii) the uncharged acts. That is at page 6.

GLEESON CJ: Just so that we can understand the procedure in South Australia, am I right in thinking that this is a pre-trial application for the court to exclude some evidence which it is known from the statements tendered at the committal proceedings will be given at the trial.

MR VADASZ: That is correct.

GLEESON CJ: Is that the way it works in practice?

MR VADASZ: That is correct.

GLEESON CJ: So because of the committal – it is a paper committal system, I presume?

MR VADASZ: It is.

GLEESON CJ: Because of the paper committal system, both parties have a written statement which is in effect the evidence-in-chief of the complainant, and then before the trial commences and before a jury is arranged they turn up before a judge and say “I’m going to object to what’s in paragraph 4 and I’m going to object to what’s in paragraph 9”.

MR VADASZ: That is correct. To add to that, the trial judge has an identical brief, hopefully, and the trial judge has the statements and in this case the pre‑trial application was argued on the basis of the statements of the complainants.

GLEESON CJ: One of the objectives served by this is that the jury does not have to keep bobbing in and out of court while the complainant is giving her evidence ‑ ‑ ‑

MR VADASZ: Precisely.

GLEESON CJ: ‑ ‑ ‑ every time somebody objects to a particular question.

MR VADASZ: The rule requires that notice is given with adequate time so that on the day of the trial these matters can be argued and then a jury empanelled thereafter, depending ‑ ‑ ‑

KIRBY J: What was the case in this Court where we considered this procedure? There was a case about five years ago or four years ago. Anyway, if you think of it I would like to know.

MR VADASZ: Yes, very well.

KIRBY J: It is a reported decision.

MR VADASZ: The line of authorities in South Australia started with R v Williams 1 SR in about ‑ ‑ ‑

KIRBY J: Much as I would like to read the South Australian authority ‑ ‑ ‑

MR VADASZ: Sorry, but I cannot ‑ ‑ ‑

KIRBY J: I would rather read our own.

MR VADASZ: TKWJ.

GUMMOW J: We referred to it yesterday in argument.

MR VADASZ: Yes.

KIRBY J: I thought there was another case. Was TKWJ the case about professional incompetence, or not? Anyway, I will look it up. Do not worry. Press on.

GLEESON CJ: It is a little difficult for us, Mr Vadasz, to understand the document on page 6 unless we have the statement to which it makes reference.

MR VADASZ: That is correct, and I was going to raise that.

GLEESON CJ: Do we have that statement?

MR VADASZ: No, your Honours do not have the statement. I would seek leave to provide to the Court the three, I think there were three, statements of the complainant upon which this argument proceeded. I think that is essential, if I may say, because one part of the argument as can be seen in the grounds at line 20 was that:

The material is vague and lacks particularity in time, place and factual detail.

GLEESON CJ: But what you are ultimately complaining about is the evidence that was admitted at the trial, are you not?

MR VADASZ: Yes.

GLEESON CJ: I mean, it does not matter to us what pre‑trial argument went on if it was not ultimately reflected in evidence at the trial, so your – I mean, you are not appealing to us against the ruling of the trial judge on the pre‑trial proceedings, you are presumably wanting to appeal against the fact that inadmissible evidence was admitted at the trial.

MR VADASZ: That is correct.

GLEESON CJ: So what we have to be concerned with is the evidence that was admitted at trial that you say was inadmissible, do we not?

MR VADASZ: That is correct, and that ‑ ‑ ‑

GLEESON CJ: Well, that can be done presumably by reference to the material we have.

MR VADASZ: I can do that, but in order to fully understand the basis upon which the trial judge admitted the evidence it would be helpful if the Court had before it the statements of the complainant.

KIRBY J: But there is a technical difficulty? What was it in evidence? Were the statements actually in evidence? They would not have been because the jury would not get them, would it?

MR VADASZ: Not in evidence before the jury, but ‑ ‑ ‑

KIRBY J: Well, if it is not part of the record we cannot receive it ‑ ‑ ‑

MR VADASZ: Well, very well ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ unless it is incorporated by reference in some way and particular parts of it.

MR VADASZ: Well, I note I think it was in HML that leave was sought and granted to provide the statements in order to assist this Court, and my submission is that in order to understand any argument about a lack of particularity it would assist, but I can ‑ ‑ ‑

GLEESON CJ: We are not interested in what is in the statements, are we? Your complaint has to be about the evidence that was admitted at the trial.

MR VADASZ: Well, the evidence admitted at trial did not become any more specific than the statements. I am quite happy to proceed.

GLEESON CJ: Well, you may be right about that.

MR VADASZ: I raise it because your Honour raised it. There were two legs to the argument against admission and they are set out in the grounds, and I will come to ‑ ‑ ‑

GLEESON CJ: I think I will begin by asking you, could you identify the evidence that you say was wrongly admitted? Where do we see it in the appeal book, or the application book?

MR VADASZ: Pages in-chief starting at page 81, the last line:

Q. Are you able to tell us ‑ ‑ ‑

KIRBY J: You might be careful in using names here seeing as we have anonymised things.

MR VADASZ: Certainly. Sorry, I apologise, I have misled the Court. It starts at page 91, at the top of the page 91, and this is in-chief. The complainant was asked if there were other occasions subsequent to count 1. At point 10:

A.There were quite a few occasions. It happened quite often and, yes, it all just kind of blurred into one.

That is close to the high‑water mark of her evidence. At line 30 his Honour asked a question:

Q.How often did it happen after it started up again?
A.Every couple of days.

Of course, we are talking about a four‑year period between the two charged acts.

Further references occur at page 94 at line 10:

Q.You said that it was fairly often that he would touch your body . . .
A.It basically continued, continued right up until I left when I was between 13 and 15.

Then over at page 95, the question:

Q.And you said there were times in the stable area when he touched you and also times at his place, is that correct?

Her answer further down the page at line 10 was that at his place he would grab her and drag her inside and touch her.

KIRBY J: Now, I do not see in those passages you jumping up and down and objecting, but that is because you had already made your objection earlier and it had been overruled.

MR VADASZ: That is correct.

KIRBY J: Is that how it works?

MR VADASZ: That is exactly how it works. This evidence was admitted over objection.

GLEESON CJ: One of the advantages of this pre-trial procedure is that it spares counsel for the accused the tactical embarrassment of being seen by the jury to be leaping up and down and appearing to be trying to choke off evidence of the complainant.

MR VADASZ: I do not know if that is the aim of it, but yes, it is one of the practical aspects.

KIRBY J: And you do not have, under the rules, to repeat your reservation of the objections?

MR VADASZ: No, there is no practice of that nature. His Honour – and I will go back to it in a moment – at page 46 “direct order that the evidence be admitted” and for the purposes that he sets out at page 46.

KIRBY J: Is it always the judge of trial who does the preliminary rulings, or do you ever get a situation where a trial judge takes a different view from the ruling made before trial?

MR VADASZ: The pre-trial application is made invariably before the trial judge and the practice is that if there is a subsequent trial for any reason, the next trial judge is not bound by the earlier judge’s pre‑trial rulings. So these applications are made on the day of the trial unless there are multiple accused. There may be an application for separate trials by one or more of them which will affect timelines and that might be made at an earlier stage.

KIRBY J: Was not something said in this Court, maybe in TKWJ, that there is a problem with this, the preliminary rulings, that the relevancy of evidence may not fully appear until you actually get into the body of the evidence at trial. I thought there was something that was said by the Court showing hesitation about this.

MR VADASZ: That is correct, but if the nature of the evidence changes then obviously the rules do not preclude ‑ ‑ ‑

KIRBY J: Anyway, we do not have to explore that here.

GLEESON CJ: These are interlocutory rulings. The judge could change the ruling because he changed his mind.

MR VADASZ: Exactly, and it might happen. One obvious example is an application for separate trials might be refused but might be granted because evidence comes out further down the track. The evidence‑in‑chief continues over to page 97 and it ends at page 97 and then at page 98 her evidence‑in‑chief is led into counts 2 and 3. There was cross‑examination on the uncharged acts, not a huge amount, and that occurs at pages 113 over to 114. I thought it occurred elsewhere but I might have – I apologise. Pages 124 to 125 was the cross‑examination, starting at point 15 on page 124:

You gave evidence to the effect that the sexual assaults started on a regular basis almost a week afterwards –

and this is in reference to count 1 and she agreed that it happened on an almost daily basis thereafter. Page 125 at the top of the page:

from the age of 12 or just after you turned 12, happened on a virtually daily basis . . .
A. Until you were 16 -

So the nature of the uncharged acts and the argument in part was that they were vague and lacked particularity. The nature of the uncharged acts was that there were virtually daily sexual attacks by the accused upon the complainant.

GLEESON CJ: About 1,500 of them.

MR VADASZ: Yes.

KIRBY J: That raises the question Justice Hayne asked yesterday. You have to propound a theory of the case that does not involve the consequence that in cases of this kind the prosecution has to present an indictment or information presentment which has 1,500 counts.

MR VADASZ: The prosecution has section 74 of the Criminal Law Consolidation Act.

KIRBY J: Section 74 of what Act?

MR VADASZ: Criminal Law Consolidation Act 1935.

KIRBY J: Is that so?

MR VADASZ: Which is headed “Persistent sexual abuse” and allows the prosecution to charge a course of conduct information where they can identify three distinct sexual acts over a period of time.

KIRBY J: So it is like the legislation considered in Gipp?

MR VADASZ: Yes, the relationship type of legislation. In fact, that was argued in the pre‑trial application here by myself at page 45 at line 20. If I go back to the top of that page, the argument was put forward that the application or the wish of the prosecution to introduce uncharged acts is merely a forensic tool to enable them to have before the jury a notion of a sexual attraction without the need to prove any particular acts. At page 45, line 20 there is discussion as to the fact that they could have used section 74 in this matter.

I do not believe it came out this way in the evidence as quite as well but there was, in between the two lots of alleged offending, an act which was identifiable by its nature and as occurring just before she turned 16. So it is identifiable in time and it allegedly occurred at his home. So it was adequately particularised in her statement and the prosecution would have been able to lead the evidence of the course of conduct had they elected to proceed under section 74.

HEYDON J: Was your objection relevance or probative value exceeded by prejudicial effect?

MR VADASZ: It was the latter.

HEYDON J: What was the prejudice? Surely, whether it be 40 incidents or 1,400 or 1,500 incidents, does not each incident increase the probative weight of the relevant evidence? I take it it was relevant because it tended to establish an almost uncontrollable sexual attraction which your client experienced towards the complainant.

MR VADASZ: Can I correct myself. My argument was that the prejudicial nature of the evidence outweighed its probative value.

HEYDON J: What was prejudicial about which was distinct from its probative value? Was not the prejudice in the probativeness?

MR VADASZ: The prejudice was in the inability of the accused to counter a series of unparticularised allegations covering a four‑year period.

GLEESON CJ: It was pretty well particularised. She said it happened every day.

KIRBY J: There was one matter which you particularised which was that it occurred in the presence of the accused’s sister and that was a matter where your client was able to seek to rebut it and, indeed, he did call the sister and at 261 she denied the accusations.

MR VADASZ: Counts 2 and 3 were alleged to have occurred in circumstances where the sister walked into the feed room at the stables where the rape was said to have occurred.

GUMMOW J: What is your client’s current custodial situation. I notice in the remarks on sentence at page 382 there was a non‑parole period of 18 months starting in March this year, is that right?

MR VADASZ: That is correct.

GUMMOW J: There was waiting in the wings a trial for other offences. Has that happened?

MR VADASZ: No, he was acquitted on Monday, in fact, on the other trial.

GUMMOW J: So you want to achieve the situation where he has a new trial, do you?

MR VADASZ: That is the application and his custodial situation is that he is serving a sentence in relation to this matter only. He is in custody in relation to the matter at Bar only. The prosecution sought to lead the evidence for three purposes, one of which was to show a sexual attraction between the complainant and the accused or by the accused to the complainant. The learned trial judge admitted the evidence for the purpose of showing the nature of the relationship and to show that count 2 did not happen out of the blue. That can be seen at page 46 of the appeal book, lines 10 to 20.

GLEESON CJ: What were their respective ages?

MR VADASZ: There was possibly 40 years difference between the two. She was about 16 at the time of counts 2 and 3. The accused, I think, turned 60 recently.

GLEESON CJ: Their familial relationship?

MR VADASZ: She was his sister’s foster daughter. They lived outside of a small country town called Millicent on two 10‑acre blocks in separate houses.

GLEESON CJ: He was her uncle?

MR VADASZ: He was her uncle, yes.

KIRBY J: But not natural uncle?

MR VADASZ: No, not natural uncle, no. The learned trial judge reserved his position on whether or not the prosecution could lead the evidence to show sexual attraction. During the course of the trial – I cannot quite find the passage – he directed that the prosecution could not lead it for sexual attraction, for the purposes of showing sexual attraction.

HEYDON J: What is the difference between evidence to prove sexual attraction and evidence to prove the nature of a relationship between a man and a woman which involves sexual overtures constantly from the man to the woman? I do not understand that.

MR VADASZ: That is what I was going to say next. There is none. It is a matter of terminology.

HEYDON J: Your submission is the trial judge was fundamentally confused in some way? I am not saying that is an outlandish submission, but is that your submission?

MR VADASZ: The trial judge was following to a large extent the ruling in Nieterink but, in my submission, there is a considerable amount of obscurity in the distinction between the two matters.

HEYDON J: That is to say, they are really the same thing and for the judge to think they were fundamentally different things gives the strong smell of a miscarriage of justice.

MR VADASZ: Yes, your Honour, that is my submission. The Court of Criminal Appeal would have allowed the evidence for a larger range of ‑ ‑ ‑

HEYDON J: In that case.

MR VADASZ: In this case.

HEYDON J: In Nieterink’s Case - the Court of Appeal in this case in South Australia, yes.

MR VADASZ: In this case.

HEYDON J: Yes.

MR VADASZ: If I might take your Honours at this stage to the directions as to the uncharged acts and the reasons with which he told the jury they could be allowed or used. They are to be found at page 334 onwards and at page 336, line 40 he says that it cannot be used for propensity and at page 337 he said it “does not mean that the evidence of the uncharged acts is irrelevant”. It shows “the nature of the relationship” and, secondly, that counts 2 and 3 did not come out of the blue. In terms of coming out of the blue he said to the jury that the second incident “might appear quite artificial or unrealistic” if you did not hear the interim evidence.

One of the problems in terms of relevance is that it appears might be artificial, unrealistic if you are not aware of the declarations but juries are often asked to find that there were acts committed over a large period of time. The fact that four years passed between these illegal acts is not unrealistic at all. A jury would not have had any problems ‑ ‑ ‑

HEYDON J: Are you attacking the proposition that the evidence was relevant now?

MR VADASZ: Yes, I am.

HEYDON J: Which you did not do at the trial.

MR VADASZ: I did. I attacked its relevance.

HEYDON J: I thought you said before you attacked it on the basis that its probative value was exceeded by its prejudicial effect.

MR VADASZ: That was the main point of attack, but ‑ ‑ ‑

HEYDON J: You have to hand – if you do not it does not matter – the precise passage where you said that the evidence was irrelevant?

MR VADASZ: I referred, in answer to your Honour’s question earlier on the basis of my rule 9 notice, but I am fairly – I can find it during the course of this morning and I will come back to it.

HEYDON J: Yes, that is fine. If you proceed.

GLEESON CJ: I think, Mr Vadasz, that the relevant jury directions begin on page 334 where the judge says that he is moving on to another topic.

MR VADASZ: Yes.

GLEESON CJ: What appears from page 334, line 38 through to page 337, line 43, that constitute what he said to the jury about these uncharged acts.

MR VADASZ: Yes, that is nature of relationship, artificial, unrealistic, out of the blue and proper context, I think, are the basic headings that he put to the jury.

HEYDON J: To get somewhere, have you not got to say that it should not have been admitted to show the nature of the relationship and it should not have been admitted for the out of the blue reasons (a) because it was irrelevant or (b) because the prejudicial effect exceeded the probative value, because a competing point of view is that it was highly irrelevant to show sexual attraction and the judge did the appellant a favour by not remarking on that point to the jury?

MR VADASZ: Well, again, it is very hard to ‑ ‑ ‑

HEYDON J: I just want to the structure of the argument. What exactly was wrong with what was said in the top half of page 337 and why was it wrong?

MR VADASZ: The ongoing nature of the sexual attacks did not assist the jury in reaching the conclusion that the second lot of events occurred unless they were going to take the view that he had a propensity to commit this kind of behaviour upon the complainant or, to put it alternatively, there was a sexual attraction and that he found this kind of behaviour irresistible.

HEYDON J: If you would like to say that if that argument is correct it would apply to all cases of this kind? In other words, it would be a rule of law?

MR VADASZ: Yes, and I understand that that is one of the issues concerning this Court.

HEYDON J: I do not think any counsel so far has put that. If you wish to put it, by all means do so. It has a certain refreshing precision to it, but do you put that argument?

MR VADASZ: Yes, I understand that one issue before this Court – well, there are two issues that I would argue. One is the circumstances in which evidence of this kind is to be admitted and I would argue that it should not have been admitted here but if there is to be a policy of allowing in sexual matters the history of the relationship, then that is a matter upon which this Court needs to reach a decision. It is a little bit uncertain from the decisions of the South Australian Court of Criminal Appeal.

HEYDON J: So this is not a rule of relevance, it is a rule like the similar fact evidence rule that excludes admittedly relevant evidence, is that so? Is that your argument?

MR VADASZ: That is my argument. In my submission, the evidence here was not relevant with respect to count 2.

KIRBY J: That is how you would have to frame it, you would have to say it may in a theoretical view be relevant in the general but it is not relevant to the particular charge and because of the dangers, one reads that with a degree of strictness.

MR VADASZ: That is correct, your Honour.

HEYDON J: This is a rule of relevance, is it? Yesterday I observed a well‑known statement by Thayer that the law issues no mandamus to the logical faculty. Questions of relevance are not governed by rules of law. So you have to propound a rule of law which would interrupt the operation of the normal processes of reasoning you associate with relevance.

MR VADASZ: That rule, I submit, has been propounded in Gipp where it was stated that evidence of a sexual attraction or relationship only was not to be admitted unless it had some further probative aspect.

GLEESON CJ: But a proposition that something is or is not relevant is not a proposition of law. It is a proposition of logic. It is either right as a matter of logic or it is wrong as a matter of logic. The law says that irrelevant evidence is admissible subject to certain principles of exclusion and there are principles of exclusion such as, that if the prejudicial effect outweighs the probative value, it will be excluded. There is a principle that says if it is evidence of mere propensity, it will be excluded. But I have a lot of difficulty with the proposition that you can say as a matter of law that something is or is not relevant.

You can say as a matter of law that if something is not relevant it is inadmissible. That is a proposition of law. You can say as a proposition of law that if something is relevant, it is prima facie admissible subject to certain principles of exclusion. That is a proposition of law and, indeed, it is a proposition of law now enshrined in the Evidence Act in various jurisdictions. But I have never heard of a proposition of law to the effect that something is or is not relevant.

CRENNAN J: What you are asking for, is it not, is a rule in relation to an exception to the rule of exclusion in relation to propensity evidence because the subject matter here is an exception to the exclusion of propensity evidence? That explains the meaning of “mere propensity” which has been spoken of yesterday.

MR VADASZ: The distinction is a fine one. If I could just go back to the question of relevance. This evidence could only have assisted the jury in deciding whether the rape occurred if they were prepared to take the view that he had done something to her on 1,500 occasions between 1999 and 2003 in which case it is more likely that he would have committed the act of rape in 2003. That is a very tenuous proposition.

GLEESON CJ: It is a proposition of fact, is it not? Whether or not fact A makes it more likely that fact B exists is a question of fact.

MR VADASZ: It is a question of fact but one then falls back to the question of whether or not the prejudicial value outweighs its probative value.

GLEESON CJ: Yes, I understand that.

MR VADASZ: My submission is it could only be probative on the relationship or propensity view. Other cases might be different, but in the case of BAR the jury were equally well-equipped to reach a decision about the first act and the second act without the vague intervening “he did it on a daily basis”.

KIEFEL J: Are you saying that the evidence of the 1,500 acts does not show propensity? Are you saying there is not a connection?

MR VADASZ: It does show propensity.

KIEFEL J: I misunderstood what you were saying.

MR VADASZ: It does show propensity and that is all it can possibly show.

GLEESON CJ: When you say that is all, there are a series of decisions of this Court that say propensity evidence is not excluded because it is irrelevant. It is very relevant.

MR VADASZ: It is excluded because of its prejudicial nature.

GLEESON CJ: Yes.

MR VADASZ: The trial judge admitted the evidence because he said it was relevant and it showed the nature of the relationship. If I am wrong on the question of the admission of the evidence, then the next question is the issue as to the directions to be given to the jury in the matter at Bar.

GLEESON CJ: How long do you think it is going to take you to complete your submissions?

MR VADASZ: Possibly half an hour. I will do my best to move on. Before I do, the Court of Criminal Appeal took a broader view of the reasons for which it should be admitted but, fundamentally, at page 414 the Chief Justice settled on a number of matters, one of which was that the jury would have thought that count 2 occurred out of the blue. My submission briefly is that it did not occur out of the blue. The jury already had before them count 1 and they did not require the intervening acts to decide on count 2. At page 414 the Court of Criminal Appeal also stated that they would admit the evidence to show that her conduct involved a kind of submission to the appellant. At line 38, “She did not kick and scream, nor did she immediately complain.” There was a fundamental misapprehension of fact there. The evidence was that she did kick, she did yell out. The learned trial judge directed the jury on that basis. I will refer to the passage in the evidence.

KIRBY J: May I ask you – this has been very helpful – if in fact one is thinking about adding some requirement, why is this not conceptually analogous to the cable strands in the link to tell the jury, “You have heard this evidence of what has been called uncharged acts. If you come to the view that you want to use that evidence, then you must be satisfied on it beyond reasonable doubt (because it then becomes part of the strands in the link by which you are reasoning to guilt of the particular offence), which is the only issue before you”.

MR HINTON: So it does become a strand in the cable and if you direct a jury in the way in which your Honour Justice Kirby just put the question to me, then by giving them that assistance, you avoid the need.

KIRBY J: What would be wrong with saying you must not use it just to say he is a bad man, and if you use it for the purpose of reasoning to guilt of the particular offence, then you must be satisfied that every element, including those matters which are not the subject of specific charges, has been proved beyond reasonable doubt.

MR HINTON: One of the problems is what do you actually have to prove beyond reasonable doubt in a sex case before you can use the relationship or the tendency as propensity evidence as a strand in the cable? How much, how many acts do you have to be satisfied of where their nature changes, where do you start, where do you finish and at what point in your reasoning process ‑ ‑ ‑

GUMMOW J: In R v Gellin 13 SR (NSW) 271 at 278 Sir William Cullen said:

conviction can never rest on the mere possibility of an occurrence taking place, yet the question, whether or not you can trust the word of the person who says that intercourse did take place, depends so inextricably upon the previous history of the relations between the parties –

Is that not the sort of metaphor that is used in the ‑ ‑ ‑

MR HINTON: Strands in the cable?

GUMMOW J: Yes, which comes from Wigmore, I think.

MR HINTON: Yes, which is consistent with what the learned Solicitor‑General said. His submission, as I recall it, was that you first from the repetitive nature of the Act get an inference that there is a state of mind and from that you then get the inference of repetition. Then you take that tendency that the repetition reveals into account with all the other evidence and, in particular, in cases such as this, with her direct evidence of what actually occurred. The mere fact that there will always be direct evidence of the charge in itself shows that we are dealing with strands in a cable and not links in a chain.

GUMMOW J: That thought is picked up by Justice Debelle then, is it not, at paragraph 78 of R v M, RB, and elsewhere in his reasoning, I think, in that case.

KIRBY J: Who invented this “strands in the cable and links in the chain”? Who was guilty of this metaphor?

HAYNE J: Wigmore.

GUMMOW J: Wigmore, paragraph 73 of Justice Debelle.

MR HINTON: I am indebted to your brother Judges. Indeed it was Wigmore. Your Honour took my attention to paragraph 79 ‑ ‑ ‑

GUMMOW J: Paragraph 79, I referred you to. It goes back earlier in his reasons.

MR HINTON: It does indeed. Essentially Justice Debelle’s concern is guarding against impermissible reasoning and substitution.

HAYNE J: No. His Honour’s concern is much deeper than that, see paragraph 73, the last two sentences in paragraph 73, I would have thought. If we are going to maintain the “strands or links” metaphors his Honour sees it as a link which has to be proved beyond reasonable doubt, and it is a link because in his Honour’s view the finding that:

uncharged acts occurred or, say, that a sexual relationship existed is a very significant step towards finding the guilt of the accused, if not tantamount to a finding of guilt.

That is, his Honour sees the step as so small that you have to establish you first place your foot beyond reasonable doubt because inevitably you are tipping over to take the second step.

MR HINTON: That takes us back to his Honour Justice Dawson in Shepherd and the use of that word “essential” which your Honour pointed out yesterday. If you have two routes to guilt, if you accept in one way Justice Debelle’s approach and on the other hand you have the direct evidence of the complainant, then neither is necessarily an essential step. You have more than one way to reason.

HAYNE J: But you are in a middle ground, are we not, which needs to be articulated. You have evidence from the complainant consisting of evidence of the charged events and evidence of a number of other events, some of which might constitute evidence that would suggest criminal conduct, some of which cannot. The jury could reason to guilt without forming a view about the other events. Do you accept that?

MR HINTON: Yes.

HAYNE J: The jury could reason to a conclusion about guilt taking account of the complainant’s evidence of other events. Do you accept that?

MR HINTON: Agreed.

HAYNE J: I understand Justice Debelle to say, if they are going to take account of the other events and use that as a step in their reasoning towards guilt, they may not do so unless satisfied beyond reasonable doubt of – here comes the further question – the existence of a sexual relationship or perhaps the uncharged acts occurred, what, and there there is perhaps some uncertainty. But this puts you in a ground that is middle ground not identified in Shepherd and is different from Shepherd.

MR HINTON: And it is also, with the greatest respect, not too difficult to think of factual circumstances that do not have the degree of complication or complexity that his Honour Justice Debelle necessarily has in mind, perhaps one uncharged act and one charged, in a situation where she had sufficient fortitude to complain rather than, as is the norm in these sorts of cases, that they go on for years. We have to fashion, if we are, a rule that applies across the board and that is what makes it particularly difficult. That is, in my submission, what makes the approach of admissibility dependent upon probative value overcoming prejudicial effect coupled with directions of the appropriate way in which to proceed.

There is also, of course, the point to be made which the learned Solicitor‑General made, that there is no reason to doubt contemporary juries. We trust them with lies, we trust them with flight, we trust them with motive, we trust them with recent complaint, we trust them with statements against interest; none of these things do we require proof beyond reasonable doubt and yet all potentially are extremely powerful pieces of evidence. We direct them, with respect, to lies that demonstrate a consciousness of guilt but before you can use it you have to take into account that there may well be other explanations. We trust motive, powerful evidence, we trust where lies the policy reason here not to trust them where we have done so ‑ ‑ ‑

HAYNE J: It is not policy, it is the nature of sexual attraction and the fact that you will have 12 citizens sitting in the jury box each of whom thinks himself or herself an expert in that subject. That is the distinction.

MR HINTON: For a hundred years we have trusted juries with this evidence.

KIRBY J: But this is something new. We have only had this spate of cases in the last 20 years that has led to the problem which is now before us. We cannot pretend it is not a new problem. In practical terms, it is a new problem. This is the biggest business in the criminal courts.

MR HINTON: It is a more common problem. It is not a problem that we never knew of before. It is not a problem that the law of evidence could not account for before. It is not a problem that we did not see fit to trust juries with before. It is, undoubtedly ‑ ‑ ‑

KIRBY J: The question is not whether we trust juries. Of course, we trust juries. The question is what evidence should go before the jury and when it gets there what direction should be given to assist them in their task, including against the dangers and the risks of misuse of propensity type reasoning?

MR HINTON: I accept that, with respect, and my submissions, those that I have made orally, are those that in our outline at paragraphs 55 through to 67.

GLEESON CJ: Mr Hinton, is it the fact that the degree of specificity with which the uncharged acts were deposed to in the evidence‑in‑chief of the complainant was different from the degree of specificity with which they were referred to in the statement of the complainant at committal?

MR HINTON: In OAE?

GLEESON CJ: In your case?

MR HINTON: Yes, but there was opportunities available to remedy that. There could have been an application for an adjournment, an application for a mistrial. The moment the alarm bells were ringing there could have been an application to adjourn and to proceed on the voir dire followed by an application for a further adjournment in which to take instructions. None of those actions were taken. What was in the statements was sufficient for the learned trial judge to rule on the pre‑trial application.

GLEESON CJ: How long do you think you will require to complete your argument?

MR HINTON: If the Court pleases, five minutes. I do not think I can take the issue of the burden of proof any further than I have or any further than is taken in the outline of argument. Our submissions with respect to Justice Debelle’s approach are specifically answered in the outline at paragraphs 64, 65, 66 and 67. So those are my submissions with respect to the specific ground of the burden of proof.

Can I move then quickly to the first proposed ground in OAE. In my submission, it was the evidence of the uncharged acts was led in that case purely for contextual purposes using that descriptive and no other. The summing up at pages 334 to 337 of the appeal book, to which your Honours have already been, limited its use in that respect. It was coupled by a very strong non‑propensity use. In my submission, the ground is unarguable.

In fact, one case that has not been mentioned or has not been given a big guernsey in this appeal is Wilson v The Queen 123 CLR 334 – and I will not pause to take the Court to it – where all five judges held that this sort of evidence was admissible. In my submission, therefore, the question posed by the first ground of appeal is not one to which special leave should be given. If I can turn to the second ground of appeal ‑ ‑ ‑

KIRBY J: What year was that?

MR HINTON: Wilson? 1970. And in particular at pages 339 the Chief Justice, 342 Justice McTiernan, 344 Justice ‑ ‑ ‑

GUMMOW J: The accused had murdered his wife.

MR HINTON: Yes, if your Honour please. Page 344 Justice Menzies, 346 Justice Owen and 347 Justice Walsh.

Turning to the second ground of appeal, I have dealt with my general submissions as to the standard of proof and I have referred your Honours to the relevant paragraphs in our outline. It remains for me to point out quickly that the same antidote, if I can put it that way, was applied in this case, that is, early in his Honour’s summing up he referred to the fact that wherever he used the word “satisfied” he should be taken to mean proven beyond reasonable doubt - I take your Honour Justice Kirby’s point. Then of course when it came to the directions at 334 to 337 he used that word ‑ ‑ ‑

KIRBY J: I did not mean to roll my eyes.

MR HINTON: He used that word “satisfied”. I appreciate the judgment of Justice Debelle says it was not good enough. In looking at Justice Debelle’s judgment, what is interesting is that the passage of the summing up that he quotes in making that point of course starts – it does not start at the commencement of the direction on uncharged acts. In particular, it does not take into account the reference twice in the direction not to engage in propensity reasoning to the use – not the reference, but the use of the word “satisfied”.

In my submission, for the same reasons as given by the learned Solicitor‑General and indeed my friend, Mr Kimber, the jury, minded of the direction given earlier in the summing up, would have understood that word “satisfied” to mean proved beyond reasonable doubt and no other. Accordingly, the directions were favourable. There was no requirement of proof of the uncharged acts beyond reasonable doubt and, in those circumstances, the second ground of appeal does not give rise to a question meriting a grant of special leave.

GLEESON CJ: Thank you. Now, Mr Vadasz, how long do you think you will be?

MR VADASZ: Two minutes approximately.

GLEESON CJ: Thank you. Yes, Mr Vadasz.

MR VADASZ: Firstly, if I may, Wilson was a vastly different case. He murdered his wife. He said the gun went off accidentally. The relationship was that, that was approved of – the evidence was that he had threatened to kill her in the past. Both Mr Hinton and the learned Solicitor made a number of submissions about trusting juries. This is not a question of trusting juries. The comparable directions as to lies and other issues are usually external to the charge before the jury. The difference here with the

sexual matters is that the uncharged acts always go to the very heart of the charges before the jury. So it is not a question of trusting juries. I think that, with the greatest respect, is vastly misleading. It is a question of the very nature of these allegations.

His Honour Justice Heydon asked me to refer to my argument before the trial judge as to questions of relevance. If I can refer the Court to page 25 of the submissions that I made –

KIRBY J: What page of the application book?

MR VADASZ: Page 25. I did not refer to the word “relevant” but I repeatedly argued that the evidence was not necessary to explain any fact in issue, which is simply another way of putting that it is not relevant. That occurs at page 25 on a number of occasions, and occurs at the bottom of page 29. The jury do not need to know certain things to understand the context. The argument, in my submission, was that it was not relevant and if relevant the prejudicial nature outweighed the probative aspect.

Finally, your Honour Justice Kirby, and I might have misunderstood you, thought that I said that a particular as to an act of penetration only came out during the course of the complainant’s evidence. If I said that, I did not mean to. The particulars changed as from the statement in terms of frequency, for example, and other aspects, and particulars did change. What I think I might have said was that on the day of the trial a statement was provided that referred to penile manipulation, an act of gross indecency, or indecent assault, that had not been referred to in earlier statements, and that did not come out in evidence at all. So I do not want the Court to think that – I do not want to leave the Court with any misunderstanding.

There was no act of penetration that came out in her evidence. The particulars changed from her statement, and the trial started on 4 October 2006 and a statement dated 3 October 2006 referred for the first time to him exposing his penis and making her grab hold of it. They are the only matters that I seek to raise.

GLEESON CJ: Thank you, Mr Vadasz. How long do you think you will be, Mr Tokley?

MR TOKLEY: Not very long, your Honour. I was only seeking to address the Court on two points, one I forgot to ask this morning for seven days in which to file some written submissions in relation to the question of admissibility. That is the first of two points.

GLEESON CJ: Yes, you have that.

MR TOKLEY: Thank you, your Honour. The second of the two points is simply that your Honours were referred to a number of cases this afternoon by my learned friend Mr Kimber in which he sought to extract, if I may put it this way, the use by various courts of the words “context” and “background”, but, in my respectful submission, the way in which those words have been used in those cases have to be understood against the particular cases themselves, the factual background in those particular cases and also there is a distinction between the purpose for which such evidence is lead and the use that may be made of it once it has been accepted or adduced.

KIRBY J: You have to send us a note on other things. Could that be equally dealt with in your note?

MR TOKLEY: Yes, your Honour, it can be.

GLEESON CJ: Your opponents will have seven days to respond to what you have put in.

MR TOKLEY: Thank you, your Honour.

GLEESON CJ: We will hear you at 10 o’clock in the morning, Mr Game.

MR GAME: May it please the Court.

GLEESON CJ: We will adjourn until 10 o’clock tomorrow morning.

AT 4.21 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 27 SEPTEMBER 2007

[2007] HCATrans 548

26 September 2007