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

[2007] HCATrans 547

[2007] HCATrans 547

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 TUESDAY, 25 SEPTEMBER 2007, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court pleases, I appear with my learned friend, MR C.S.L. ABBOTT, for the appellant HML.  (instructed by Herman Bersee)

MR A.L. TOKLEY:   If the Court pleases, I appear with my learned friend, MR C.S. GALLAGHER, for the appellant SB.  (instructed by Gallagher & Co)

MR N.M. VADASZ:   If the Court pleases, I appear for the applicant OAE.  (instructed by Kyrimis Lawyers)

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, for the respondent in HML.  (instructed by Director of Public Prosecutions (SA))

MR A.P. KIMBER:   If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the respondent in SB.  (instructed by Director of Public Prosecutions (SA))

MR M.G. HINTON, QC:   If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the respondent in OAE.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Mr Game, is it proposed that we will hear arguments from the two appellants and the applicant and then the respondents?

MR GAME:   Yes, your Honour, and to the extent that it may assist the Court, I have spoken with Mr Tokley and we will endeavour not to repeat each other.

GLEESON CJ:   Thank you.  Yes, Mr Game.

MR GAME:   Just one other thing, we have discussed time and we think that the two appellants and the applicant might finish their cases before lunch.

GLEESON CJ:   You are not under pressure to finish today.

MR GAME:   I understand, your Honour.

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  The appeal of HML is all directed - apart from an issue about the Victorian Acts and the directions about whether or not there had been charges – to the directions that were given to the jury in respect of what have been called the “uncharged acts.”

KIRBY J:   So there is no question, is there, in HML about the admission of the evidence?

MR GAME:   No, your Honour, but to the extent that admissibility might be a prism through which one has regard to what possible uses might be made of evidence or what directions might be given, it has that significance for the case, but we are not arguing ‑ ‑ ‑

HAYNE J:   Well, it must do, must it not, Mr Game, because a premise for debate is that the probative value of the evidence is greater than its prejudicial effect.

MR GAME:   Yes, your Honour.

KIRBY J:   Assuming that to be a comparison that is possible.  According to Justice McHugh in Pfennig, it is not.

MR GAME:   Yes, your Honour.  I hesitate to say what various judges have said about the subject and this can be a very confusing area ‑ ‑ ‑

GLEESON CJ:   Yes, fortunately a number of decisions of this Court have clarified that in recent years but in the olden days it was regarded as reasonably straightforward.

MR GAME:   I will attempt to articulate things that make some form of sense.

KIRBY J:   There does not seem to be much attention in the submissions to what has been happening overseas on this issue because it must be a common problem in all common law jurisdictions. 

MR GAME:   We have looked at the United Kingdom, Canada, and New Zealand and the cases are leading cases to admissibility, not to directions, as far as we can make out and we have referred to those cases.

GLEESON CJ:   Mr Game, one of the problems concerns labelling but by “uncharged acts” do you mean evidence of conduct which would constitute a crime but not a crime with which the accused is charged at the trial at which such evidence is admitted?

MR GAME:   Yes.  The pejorative in it is that it is evidence of, shall we say, bad character.

GLEESON CJ:   Evidence might show bad character but, for example ‑ ‑ ‑

MR GAME:   Sorry, I am not trying to argue that.  Yes, I accept that.

GLEESON CJ:   Where a person is accused of being a dealer in drugs, evidence that that person has in his possession a firearm is within what you would call evidence of an uncharged act, is it?

MR GAME:   Not in this context, your Honour, and I hate to use the two words “res gestae”, but the question in that case would be a direct question about admissibility of the firearm, that is to say, relevance of the firearm, but you would not apply, shall I say, a Pfennig-like test as to admissibility although you would ask yourself in Evidence Act terms whether the prejudice was outweighed by the probative value of that evidence.  I am not sure but that is so closely connected with the offence ‑ ‑ ‑

GLEESON CJ:   There are many commonplace examples of relevant evidence which, if accepted, reveals the commission of an offence in addition to the offence with which the accused is charged.

MR GAME:   Yes, but I am not aware that the line of authority that we are dealing with here which involves what might be described in some senses as improbability reasoning has been applied at all in relation to acts that are intimately a part of the offence charged which reveal other criminality.

GLEESON CJ:   But there could be any number of reasons why it is relevant to show that a person has committed an act which happens to be a crime but is not the crime with which the person is charged.

MR GAME:   Yes, your Honour, quite.

GLEESON CJ:   And it really is impossible to corral those possibilities, is it not?

MR GAME:   Yes, your Honour, but one of the problems is that – and I say one of the problems – in respect of Pfennig there is, as it were, an unresolved – I hope we do not have to go into all of the questions about Pfennig, but one unresolved question about Pfennig is whether or not it applies in any case in which there is evidence of this kind which discloses, shall we say, a disposition to commit a particular kind of crime, even although its admissibility is not sought for that purpose or even although it is not disavowed for that purpose.

That is the point Justice McHugh makes, both in Pfennig and in KRM, which it seems anomalous that that should be the case but we are not here to argue that issue today.  As Justice Hayne pointed out, the question in this case is what significance – the admissibility question may have an influence on the directions ultimately given, but the admissibility question, we would submit, does not necessarily determine what form the directions take or what uses the evidence is ultimately put to.  I will come to that in a moment.

I wanted to say first that – as your Honours are aware the uniform Evidence Act has not hopped the border to South Australia yet – it has been assumed that this whole discourse is conducted in a statutory vacuum and that it is a common law exercise.  I am not sure that that is correct and I had sent up to your Honours yesterday two statutory provisions which I would like to draw your Honours’ attention to because they may have some relevance to the question of the basis of admissibility.  Could I take your Honours first to section 34I?

GUMMOW J:   This is of the Evidence Act 1929?

MR GAME:   Of the Evidence Act, yes, and that provision is reproduced as at the date of the trial.  Section 34I is a strangely worded provision.  It is intended, it would appear, as what in old-fashioned language might be described as a rape shield provision, but if you read down through subsections (1) and (2) it applies to any evidence which is not what is described as “recent sexual activities” and it applies to examination‑in‑chief as well as cross‑examination, and the prosecution would clearly not be trying to get it into the evidence under subsection (2)(b), the purpose of which is to discredit the complainant, so that the minimum standard of admissibility of other sexual activities which do not fall within the exception in subsection (1)(b), then the Crown would have to establish substantial probative value and that the admission of the evidence is required in the interests of justice.

GLEESON CJ:   Before you get there, there is a question of leave, is there not?

MR GAME:   And you would need leave, yes.  Now, this provision has never been considered in this context but it would seem to at least provide the minimum standard upon which sexual activities that are not excluded by subsection (b) would come to be assessed when the question of admissibility arises.

KIRBY J:   You say this has not been considered by the Court of Criminal Appeal in these cases?

MR GAME:   Not at all.  In this context it has not been considered at all.  While I am on section 34I, you will see subsection (5) abolishes the rule of practice requiring there to be a warning to:

the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.

That is a provision which is now uniform in Australia as far as I am aware.  There may be one, I suppose, unintended but deleterious effect of a provision such as that; it distracts attention from something that the common law regarded as fairly crucial in cases like this which was working out what evidence was independent and what evidence was independent that, as it were, positively drove the prosecution case forwards.  I make that point in no sense as an implied criticism of the provision.  All I am saying is that the necessity for that discourse went with the introduction of this provision.

KIRBY J:   When was 34I inserted into the Evidence Act?

MR GAME:   It was first inserted in 1976.  Then it was substantially amended in 1984.  I am sorry, your Honours, we made an ineffective hunt for the second reading speeches yesterday but I will have them pulled out and sent up to the Court.

GLEESON CJ:   There is, I suppose, one thing that is important to remember about statutes that talk about evidence being admitted or not admitted.  If no objection is taken to evidence, then questions of admissibility do not arise.

MR GAME:   True, your Honour.

GLEESON CJ:   In other words, the statute might say that hearsay evidence is inadmissible, but you do not break the law by admitting hearsay evidence if there is no objection to it.

MR GAME:   Not at all, your Honour, and I am not sure whether your Honours are referring to this case, but trial counsel objected to all of this evidence as far as we can see.

GLEESON CJ:   But nobody dealt with it on the basis that there was need for leave.

MR GAME:   No, your Honour.

KIRBY J:   But this is a section which is addressed to protecting the reputation of the alleged victim of the offence.

MR GAME:   Quite, your Honour.

KIRBY J:   It is not directed at protecting the reputation of the accused.

MR GAME:   Quite, your Honour.

KIRBY J:   So what is the relevance of it in this case?

MR GAME:   The relevance of it in this case is that it requires that whoever wants to lead the evidence has to show that the evidence has substantial probative value and that it is required in the interest of justice and my point is ‑ ‑ ‑

KIRBY J:   I do not understand that.  Do you derive that as an inference from the statute that the common law in some way moulds itself to the statute or ‑ ‑ ‑

MR GAME:   No, my point is that section 34I(2) actually commands it.

KIRBY J:   Yes, but that is permission to ask a question relevant to the reputation of the alleged victim.  What is the relevance of that to questions that are asked that touch upon other acts alleged against the accused?

MR GAME:   The trouble is, your Honour, (1)(b) extends it beyond reputation to sexual activities.  As I say, it may be quite an unintended effect but it seems, at least on the face of it ‑ ‑ ‑

KIEFEL J:   Is that meant to be sexual activities with persons other than the accused though?

MR GAME:   It does not say that either, your Honour.

KIEFEL J:   The part in parenthesis gives some indication perhaps.

MR GAME:   Yes, again, I accept that, your Honour, but it uses the word “recent”.  So you would have to interpret “recent” very widely to get yourself out of the section.

KIRBY J:   Except that we surely would know that this is the South Australian version of legislation enacted in all the States designed to cut down on questioning of alleged victims.

MR GAME:   Quite, your Honour, and I do not wish to distract the Court too long with this but it does appear to hit me at least that there does not seem to be an immediate answer to the proposition that that applies to non‑recent sexual activities whether it is with the accused or with some other person.

KIRBY J:   I would have thought your better point about the statute-free zone is that in Gipp this Court had to face the fact that in Queensland, and perhaps in other States, there are now specific and very detailed offences providing that you can charge a person and secure a conviction for maintaining a relationship and those offences are spelt out in terms as to what has to be proved.  In the Queensland case in Gipp I think it was three acts in a time.

MR GAME:   It is two or more I think usually.

KIRBY J:    Therefore, that is Parliament’s response to the problem of relationship-type evidence.  It has created a special relationship offence and we are dealing, as I understand it, with a common law case of common law crimes or perhaps crimes that were common law crimes recognised by State legislation which are specific crimes.  They are not relationship crimes and, at least as I presently think, if Parliament wants to have relationship evidence in, it may be arguable that there has to be a relationship-type offence otherwise you are in the realm of the general rule of the specificity of particular crimes.

MR GAME:   Yes, well, I suppose that the issue that the appellant, who I am representing, is confronted with is that the evidence was admitted and there were directions and it is to those directions that I really have to focus.

GLEESON CJ:   Yes, but we are still concerned with section 34I.

MR GAME:   Yes, of course.

GLEESON CJ:   The opening words of section 34I(2) indicate that the rest of that subsection is concerned with a case of an application for leave under subsection (1).

MR GAME:   Yes.

GLEESON CJ:   Here there was no application for leave under subsection (1) and the judge was not making any decision about whether leave should be granted.  So the question of granting leave under section 34I simply never arose in any of the cases with which we are concerned.

MR GAME:   Your Honour, if it applied, then the failure to address the section would be an error of the kind in ‑ ‑ ‑

GLEESON CJ:   No, that is the point I made earlier about admissibility of evidence.  Most law cases proceed mostly on inadmissible evidence.  The moment somebody says to a witness “How old are you?” he is inviting hearsay evidence and in 999 cases out of 1,000 if you object to the evidence, people would think that the man in the white coat should take you away.

MR GAME:   Yes, I understand that, your Honour, but objection was taken in this case ‑ ‑ ‑

GLEESON CJ:   But it was not argued that there was a need for leave and the trial judge made no decision about whether leave should be granted.

MR GAME:   That is true, your Honour, but I would submit that if you have a statutory provision that is a statutory command in respect of whenever such evidence shall or shall not be led, if you object to that evidence, then you have an appealable error in the failure of the judge to apply the statutory provision, whether or not the word “leave” is articulated.

GLEESON CJ:   Is this one of your grounds of appeal, that the judge failed to consider whether leave should be granted?

MR GAME: Not at all, your Honour. This is an introduction to explain to you what appears to be the statutory framework against which admissibility in South Australian cases involving non-recent sexual activities applies. That is the point of referring your Honour to it. So I am not concerned to argue that the judge made any error of that kind in this case. I am just saying that these are the admissibility spectacles through which one would look if one is asking questions about what directions might ultimately be given. May I also refer your Honours to section 18 which is the only other statutory provision which appears to have relevance. Section 18(1)(d):

a person charged and called as a witness in pursuance of this Act shall not be asked . . . any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –

(i)the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty . . . 

(ii)he has personally or by his advocate asked questions . . . with a view to establish his own good character –

So that is the statutory framework through which the accused’s evidence moves in this case and I have a point about that later to make in respect of what have been described as the uncharged acts in Victoria.  That is all I wanted to say about the statutory framework.  Your Honours, in a case like this, we would submit, it may be important if one starts with relevance, one moves to admissibility into what might be described as what Chief Justice Doyle described as possible uses and then to directions.

HAYNE J:   Does one go to possible uses then directions or does one go to the uses sought to be made in final address, that is, do you frame the directions according to the issues as joined at trial?

MR GAME:   Exactly.  That is how we would put it, your Honour.  When one speaks of possible uses one may be talking about things that were not, as it were, the basis for which evidence was admitted.  Some of the things identified in this case we would describe as pure credibility matters and that is not a basis for admission in itself.  Likewise, you might identify a particular use and yet by the time you come to ultimate directions the so‑called use has fallen away and it is not appropriate in some cases where one has an identified hypothetical use to direct the jury about it in the specific way in which it was done in this case. 

GLEESON CJ:   But at the time the evidence is admitted it is usually the evidence‑in‑chief of the complainant who is commonly the first witness in the case and at that stage the trial judge does not know what the defence is going to be.  Sometimes at that stage defence counsel does not know what the defence is going to be.

MR GAME:   No, that is true, your Honour.  I will come in due course to how that might unfold in a case like this.

KIRBY J:   Just going back to a question I asked you earlier, do you know if there is a relationship offence in South Australia?

MR GAME:   No, there is not, your Honour.

KIRBY J:   There is not?

MR GAME:   No, your Honour. 

KIRBY J:   If you can get the details of that in due course, and when it came into force.

MR GAME:   I said at the beginning that identified bases for admissibility may translate into ultimate directions, but it may not.  One obvious example is what might be described as limited purpose admission which one sees every day in section 136 of the uniform Evidence Act or there might be limited purpose admission which became contentious in a case such as BRS or evidence might be admitted for a particular identified relevant purpose but ultimately, and we say in this case, when it comes to final directions it would be nothing more than something that weighs in the balance of the general credibility of the complainant; some for the good and some for the bad in terms of credibility.

For example, if the only significance was that an item was in a room was to show that it was not outside, once you have proved that the item was in the room, it may be of no further significance to say you may use this evidence in a particular way because you have driven away the necessity to address the fact that it is not outside the room.  That is what, in a sense, happens in this context because the evidence all comes in for a variety of possible reasons but at heart to show a context which would make you wonder about the account if it had, shall I say, come out of the blue, but it does not come out of the blue.  The jury hear that and once they hear that, that just becomes, in a case such as this where we only have the complainant’s evidence with one possible other piece of evidence, that is all it is and it is not appropriate to elevate it in our argument beyond that.

KIRBY J:   I have seen this reference in the cases to “out of the blue” but it is of the nature of the specificity which is normal to our accusatorial system that crimes are isolated.  They are little fragments of life.  They are not giving the whole background and detail and everything that led to them and so on, motivation, psychology, all of that and I just do not see why the fact that it comes out of the blue is an excuse to introduce a whole background of material which is highly prejudicial and very difficult to answer.

MR GAME:   Can I say this, your Honour.  If that is all you are doing – and I think this is a point made by Justice McHugh and Justice Hayne in Gipp – then you do not need any level of specificity about the events.  You merely need to identify the fact that such events or similar events have happened in the past.  Nor do you reason from the evidence about those events to say again other than in a general credibility sense that this necessarily – it may have an effect to do so, but you would not direct the jury about making a finding about that as if it drives the Crown case forwards in an independent way. 

I will come back to this issue about background and relationship shortly, but what I have said just now about the fact that bases of admissibility may or may not translate into directions is no more, in our submission, than an application of Alford v Magee which your Honour Justice Hayne referred to in Tully at paragraphs 75 and 78 and we are seeking to make a point at this moment which is no more than that, but it is important in the ultimate result when one looks at what the directions are and what the jury would make of those direction and in a case such as this, we say, an invitation to the jury to reason in an inappropriate way. I will come to why I say that shortly.

KIRBY J:   Can I just interrupt to say this, that in a sense this case or these cases are a bit like Swaffield and Pavic.  There had been a degree of imprecision and uncertainty and so on and then two cases came up to this Court where the Court strove to express the conceptual framework that was thereafter to be applied and I think that did bring a degree of conceptual clarity into the law.  I am just finding it hard to look at the issue of directions divorced from the issue admissibility and you do not seem to really – it may be the way your case was run at trial,  I do not know.  Maybe others are going to argue the admissibility question, but the logical first step is to look at admissibility and then, depending on what can be admitted, to look at what directions are apt to what is admitted.  But you are not taking us through that so we are not going to do a Swaffield and Pavic.  We are simply going to add ratio and dicta that add to the confusion of this area of the law.  The whole point of the three cases is to try and ‑ ‑ ‑

MR GAME:   I hope not, your Honour, but I am trying to state what appear to be some appropriate basic propositions about ‑ ‑ ‑

KIRBY J:   The only one I have noted so far is your first proposition you have got to get clear the statutory context which this Court has repeatedly said and that takes us to the Evidence Act and there is not a lot there.

MR GAME:   No, then I said that admissibility may or may not translate into possible uses and then I said admissibility may translate into directions, but it may not, depending on the conduct of the case and that was the point I was making then.  The next point I wanted to make is this.  What use you make of evidence – and I am now talking about use leading into directions – might depend on how you prove a fact.  So that if a complainant gives a history – say a complainant says – and this complainant did say in this case – it went in more previously, sexually and then you say, well, what is the previously, and that becomes part of the relevant evidence.  It is evidence relevant to explain a fact in issue, the previously. 

So that evidence comes in, but that evidence does not, if it stands alone, drive the complainant’s evidence forwards other than in an internal credibility consistency sense.  But, if you add one more fact and you have a surveillance camera that actually filmed that previous incident, then you now have a situation in which you have an independent evidence relating to that incident.

Now, you have a situation in which you are not driven into what might be described as circularity because you can reason forwards in the case, maybe in a propensity sense and maybe not, but you can reason forwards in the case from the evidence which is coming from the other source.  Our opponents make a point about whether it needs to be truly independent.  There are some circumstances in which it might not need to be truly independent.  For example, if a child describes something that is very idiosyncratic which to the child is not an account of a sexual thing but understood by a jury they would appreciate its significance, then that idiosyncratic thing might have that effect.

To give you an example, if you said, “Did anything happen in the past?” “No, but when I was four my stepfather used to do push-ups on me,” so you might – in that case an adult might think that is very suspicious, it may drive the account forwards even though it is not truly independent.  But that is not the way the common law dealt with that kind of evidence.  The common law said, let us see what the evidence is which is independent and which independently tends to incriminate, and that was the test for corroboration.

In that case it is appropriate to isolate the evidence, and it is appropriate to give directions that that evidence can, in a positive manner, not a defensive manner, can positively drive the prosecution case forwards, not just to an inference about that incident, in fact, not to an inference about that incident solely but towards an inference to guilt, and that is the way in which the common law has, as it were, dealt with this problem in terms of appropriate directions.  It has looked very closely to see what is independent and what is not independent and what drives the case forwards.

HAYNE J:   But did that, by reference to issues - the relevant issue you have just identified was the legal issue concerning corroboration and the direction that was given to the jury concerned the resolution of the issue that thus was tendered.

MR GAME:   Yes.

HAYNE J:   I understand that necessarily your argument must grapple with some abstract concepts.  Do not for a moment take what I am about to say as criticism of that attempt on the contrary, but at the end of the process you are concerned with what directions the judge is to give the jury.  That turns on what is in issue in the case.

MR GAME:   Yes.

HAYNE J:   Relevantly, an area for debate, perhaps a large area for debate in this case, is can the judge, should the judge, tell the jury what they can use the evidence for; can the judge, should the judge, tell the jury what they cannot use the evidence for.  Now, the two are radically different and distinct, I think.  Telling a jury how they may reason seems to me to stand arguably in a very separate character from warning a jury, “You may not reason X, Y, Z”.

MR GAME:   Yes.  We would adopt that as integral to our argument because what we are saying in this case is that these directions – there is an important need for some directions about ways not to use this evidence.  Much of these directions about using the evidence are really misleading because they are inviting the jury to reason in a particular way, which is very unlikely to be the way that a person thinking rationally about this would reason.

HAYNE J:   Misleading or not, what is the judge doing?  Is the judge giving them directions of law, commenting on the evidence?  What exactly is the judge doing when he or she says “You may use this evidence to follow this path of reasoning or another path of reasoning”?

MR GAME:   Absolutely, your Honour, but in fact the very words “You may use” invite a question about what it is that you are doing with it.

GLEESON CJ:   Is there a statute relevant to this?  There are some jurisdictions in Australia where there is a statute that says a judge may make such comments on facts as the judge thinks fit, for example.  Is there any relevant statute here?

MR GAME:   I am not aware.  There is a section – sorry to say this – there is a section in New South Wales that says that the judge – it does not say that, it says the judge may or may – he is not obliged to sum up on the facts, but I do not know that provision specifically ‑ ‑ ‑

GLEESON CJ:   Anyway, I just wanted to check whether there was any statutory provision relevant to the question that Justice Hayne asked you.

MR GAME:   No I am not sure that there is, but I will come to – yes, but what your Honour, Justice Hayne has put - whether or not it means that I should succeed is another matter entirely, but we would adopt that as the appropriate way to approach this question.  Now, again, before proceeding further I wanted to just pause and identify some kinds of reasoning. 

KIRBY J:   All of this appears to assume that the evidence is admissible because relevant in some way.

MR GAME:   Yes, your Honour.

KIRBY J:   Now, is that an assumption you are asking the Court to make, because it is not necessarily one I feel comfortable making.

MR GAME:   Well, it is an assumption that I regret to say I am stuck with in this case.

KIRBY J:   Is that because of the way the case was run at trial?  Is that what you say?

MR GAME:   No, your Honour.  In fact, the objection was taken to the admissibility of all of this evidence.  Then other counsel on the appeal argued a limited question relating to the directions, and then on the special leave the ground was extended by the court – sorry, in relation to the direction specifically and the admission of the evidence relating to the fact that the accused was not charged in Victoria – then on the special leave application at the court’s invitation, the ground relating to the – insofar as it picked up these directions, was expanded into a new ground that became a ground about these directions.

GLEESON CJ:   Yes, it appears on page 551 of the appeal book, and there is not a word in the grounds of appeal to suggest that the evidence was inadmissible.  In fact, the main point that was argued before the Court of Criminal Appeal and that constitutes the basis of three of your four grounds of appeal is a point concerning what should and should not have been said to the jury about what legal proceedings did or did not occur in Victoria.

MR GAME:   Yes quite, your Honour, and I am sorry that I cannot answer your Honour Justice Kirby’s question.

HEYDON J:   But whether or not you are stuck with any rulings of that admissibility, if the evidence was ruled admissible, as it was, we have to know on what basis.

MR GAME:   It was ruled admissible but no reasons were given and ‑ ‑ ‑

HEYDON J:   The possibility must have been left open that there was only a limited range of uses, only a limited category of forms of relevance.  Here, admissibility and use become the same issue, do they not, because the evidence was inadmissible for some purposes but admissible for others because it was irrelevant for some purposes and relevant for others?  Now, do we know was there any common ground on what was relevant and if there was not common ground what was the field of controversy?

MR GAME:   I am not sure that I am answering your Honour’s question properly, but all that happened was the prosecutor went through all of the evidence that she wanted to lead, defence counsel objected and then the judge said he would admit it.  It is page 34, line ‑ ‑ ‑

KIRBY J:   I notice that in the submissions in SB there are arguments about admissibility, but when I look at the notice of appeal there on page 371 of that appeal book it too is confined to directions being inadequate.  In any case, as Justice Heydon points out and as Justice Hayne pointed out earlier, you cannot frame the objections without knowing the matters for which the evidence is admissible, if anything.

MR GAME:   No, your Honour, but what was done – this is not intended to be disrespectful – but it was a shopping list in effect of the uses identified by the Chief Justice in Nieterink.  Those uses were not the guide to admissibility.  Some of them include purely defensive credibility things like why she did not complain earlier and so forth.

KIEFEL J:   To what issue do you say that the evidence was tendered by the prosecution from what you have explained before?  It arose only during the complainant’s own evidence, it is supportive of her evidence and the defence has inquired about nothing which would give rise to some question relating to her evidence so it is a defensive strategy.  Is that right?

MR GAME:   Yes, your Honour.

KIEFEL J:   So how do you frame the issue when you are having regard to a defensive strategy?

MR GAME:   If the defensive strategy is, shall I say purely credibility based, then you would have to create an exception like the exception created for complaint evidence to show internal consistency and the jury would always direct it in complaint evidence that it is only for internal consistency, it is not capable of corroborating the complainant.  But I am not aware of an admissibility exception except to refer your Honours to Justice McHugh’s judgment in Palmer where his Honour made the point that the distinction between credibility in fact in issue is often a very difficult one to draw. 

KIEFEL J:   Are you accepting that it is credibility to which the evidence was tendered because it is to support a potential adverse inference that might be drawn by the jury, left unexplained.

MR GAME:   Yes, essentially your Honour, but can I say this.  It may be that the evidence is admitted hypothetically on a slightly wider basis, but then is only used and only appropriate to be directed on in the context of credibility.  Let me give some examples.  This complainant said that it was the first time that he “did this”, which was a reference to fellatio.  That immediately invites a question about what other things he did do if that was the first time he did this thing so it may be a relevant fact to admit some evidence about that.  But, ultimately, that piece of evidence and the other what I would describe as subsidiary relevance only becomes an aspect of her general credibility and the reason is this.  If you take the fellatio example, there were prior inconsistent statements where she said that it had happened when she was a little girl, when she was five, and there were prior inconsistent statements that she said it happened every time that she went to Drik Drik.

That evidence is evidence in effect of prior inconsistent statements and it purely goes to her credibility, but so too in this context does her evidence about the fact that there were other acts.  That is like with like.  All you are doing is measuring her account internally.  So we have identified what might be described as an issue of subsidiary relevance, but by the time we get to directions to the jury, to use my metaphor before, the elephant is in the room.  There is no need – there is no point in directing the jury in relation to what could be described as the subsidiary relevance which brought it in.

May I give two other examples.  The one I gave before, which was in respect of the other count, it was harder for the accused to do it this time than previously, invites evidence as to what happened previously.  A third example – I am not sure how strongly this is founded in the evidence, but the complainant did say something like this, “I cannot remember all the details because it happened so many times”, or something like that.  So if you say “I can’t remember the details because it happened so many times”, you will not find out all the details, but a fact comes into the evidence that it happened lots of times.

But there is no need, unless it goes further, for any specificity in respect of this evidence.  The Crown pushed for it all to go in and it all to go in with both generality and specificity.  So just coming back to some types of reasoning about ‑ ‑ ‑

HAYNE J:   Just before you part from that issue, do you accept that the evidence of the complainant could not be confined to the events of the day charged?

MR GAME:   Yes, I do accept that.  But can I say that ‑ ‑ ‑

HAYNE J:   It follows that something more is permitted.  How much more is permitted than her saying, “I was in the hotel room at place X, date Y, when event Z happened”?  How much more can be given than those bare facts?

MR GAME:   My submission would be that unless you are going to have what I might call an extension of the complaint rule coming in as credibility, then at the moment when the objection is taken it may be that all that comes in is the general evidence that explains those things that I have just given your Honours some examples of.  That much will come in.

HAYNE J:   Well, it would come in that there was the relationship between the parties, that the occasion for her being in Adelaide was some surgical procedure, was it not, or some medical procedure?

MR GAME:   Yes.

HAYNE J:   Is the line you say to be drawn at any conduct that is discreditable to the accused man?

MR GAME:   The line in the evidence-in-chief is well before that, but I hesitate in answering your Honour because – well, I am trying to answer it, but I hesitate in being too definite about this because, realistically, if you allow that body of evidence in then the whole thing is going to unravel because ‑ ‑ ‑

KIRBY J:   What body of evidence?

MR GAME:   The body of evidence which establishes in general terms the existence of a relationship and (a) and (b) those pieces of evidence which explained the things in relation to the incident itself, those examples I gave your Honour like this had not happened before, that happened differently before and so forth.  The reason I hesitate is this, because once that evidence comes in, there is a very real chance that the whole thing is going to unravel because the defence will be forced to cross‑examine on prior inconsistent statements that I gave you examples of, like saying that fellatio happened every time at Drik Drik, or it happened when she was five, and so forth.

I think that, in a sense, is why I am very hesitant about going down the road of complaining about admissibility because you can see that it is going to unravel once a part of it gets in because the defence will have to make a tactical decision to cross‑examine on that because now there is a real prospect that the general account of sexual abuse is going to lead to an inference ‑ ‑ ‑

HAYNE J:   But what causes it to unravel is you cannot get a complainant, even if the complainant is adult by the time he or she gives evidence, to give the evidence in a way that focuses wholly and solely on the events on the day charged.  That is the difficulty.

MR GAME:   I accept that.  I would make it very plain that if one is only using this evidence in what was described in the joint judgment of his Honour Justice McHugh and your Honour Justice Hayne in Gipp, if it only comes in to explain that part of evidence and to establish what is called background in a general sense, there is (a) no need in the prosecution case to, shall we say, resort to all of the specific incidents but (b) this is not something that is driving the prosecution case forward in the same way as evidence of what is called sexual passion or sexual interest which was treated very differently and has been treated very differently in the judgments.

KIRBY J:   I thought there was a suggestion in this case that the G‑string present was evidence that fell within the so‑called exception about sexual attraction or sexual passion.

MR GAME:   Yes, I accept that, your Honour, but can I deal with the G‑string shortly because I am going to come to it shortly and I appreciate that it has to be dealt with.  Just at this moment I wanted to pause and refer to some types of reasoning and the types of reasoning have some relevance to the directions ultimately given.  Now we are moving away from what might be described as purely background but a suggested non‑propensity reasoning is said to show that the appellant is sexually attracted to the complainant.  It is said to show that he has a particular state of mind.  That is said to be non‑propensity reasoning. 

The second kind of reasoning would be something like this.  The appellant did something in a particular manner on a number of occasions, therefore he is more likely to do this.  That is part of Pfennig.  Pfennig in fact involves propensity and coincidence reasoning.  That is what I would call the second type of reasoning and that is a form of propensity reasoning.

In this case that propensity reasoning would be, what chance did the appellant having this propensity, that is to say, an abusive one, of not abusing his daughter when he was alone with her in Adelaide and that is that form of reasoning.  We would say that in this case that form of reasoning was eschewed and was not appropriate.

Then the next category is clear propensity reasoning and it may be very similar to the last, but because the appellant did something X times, therefore he did this.  Those two, the second and third, are very close.  The last is what I would describe as overt propensity reasoning which is what was warned against in this case, which is because he is the type of person therefore he would do such and such.  That is the direction that was given and that has got little to do with this case, although that direction was given.  When we talk about propensity reasoning it is the third, or the second and third, that one is attempting to avoid in a case like this.

GLEESON CJ:   There was an expression that was used in the older cases in an attempt to cover that, the expression being “mere propensity”.

MR GAME:   Yes, your Honour, exactly.

KIRBY J:   They are not the only modes of reasoning that I see in the cases.  My little list was there was propensity and then there was because it is part of the context, in order to show that it did not happen out of the blue, because it was an indication of a relationship or grooming, because it explained sexual attraction or guilty passion and because it explained why the complainant did not complain promptly as one might otherwise expect.

MR GAME:   I will deal with those shortly, your Honour, but a number, if not all of those, that you have referred to have no relevance to these categorisations of modes of reasoning because they, in my submission, are essentially what I would describe as matters, a number of them, that went to the general credibility of the complainant.

KIRBY J:   Yes, but we have to solve these appeals but we have to do it in the context that is a conceptual context of approaching the problem that is presented by the two appeals and the application.  I speak only for myself, but I would have thought where the Court has collected three cases together that it is a clear indication that we are looking to the Bar table for assistance in dealing with the concepts and hopefully in a consistent way that helps trial judges throughout this nation.

MR GAME:   I am sorry, your Honour, I am actually trying to do that but whether I am doing it effectively is another matter.  But maybe what I say will become a little clearer when I come to what was actually said and can I say also, your Honour, as unsatisfactory as it may sound, I am actually trying to give a conceptual framework that does go beyond this particular case to give some context as to how one would deal with this kind of evidence.  Maybe it will become a little bit clearer when I go to the summing up itself, but now I want to make a general comment about the structure of the directions that we see in this case.  If your Honours go to page 505 of the appeal book.  Now, you see at page 505 line 49:

The Crown case depends entirely upon the evidence of [the complainant].  There was no other evidence to support her evidence, consequently you must examine her evidence with careful scrutiny in light of what counsel have said to you –

Then you can see the rest of the words.  Now, you see at page 506 a direction about delay, line 20.  That is taken from the South Australian statutory provision 34I, I forget the subsection that I showed your Honours before, and this Court has given a decision in a case called Crofts that says in a case like this you have to give the counter side of that if there is evidence that touches on that.  Again, that is purely directed to credibility.

Now, there is other relevant material between this, but then we come to these directions at 510 and 511 which are at the heart of this appeal.  Before I go to those if your Honours would turn to page 518, lines 40 to 52 and 55?  Now, this is in the context of something like a Longman warning:

Because of these matters I warn you that it would be dangerous to convict the accused on either count on the evidence of [the complainant] unless, after scrutinising her evidence with great care, and considering the relevant circumstances and this warning, you are satisfied as to the truth and accuracy of the evidence of [the complainant] as to each count.

Now, if you take that and then you move back to page 511 at lines 20 to 35 you see that his Honour says at the end of those directions about uses:

I direct that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it.  Only then, if so satisfied of the truth of it, or of any part of it, may you use that evidence of which you are so satisfied when you consider the credibility of [the complainant] in relation to each count on the information and whether you are satisfied beyond reasonable doubt that either or both of them occurred.

Now, just pausing there, corroboration in the old sense does elevate the credibility in what I might describe as the “capital C” sense in leading towards an inference towards guilt, but many of these things that are identified as uses do not.  Now, if we go to the bottom of that page you see his Honour said:

If you accept any of the evidence concerning the uncharged acts you may use that evidence when you consider [the complainant’s] evidence as to the charges on the information and whether you are prepared to accept that evidence or any part of it.

Now, that is totally circular and it invites a process of reasoning which is most improbable which is that the jury would make a reasoning on our evidence towards a conclusion about the uncharged acts and then would proceed to consider that in relation to whether or not, as it were, in some larger sense her account is accepted.

So the circularity which is at the heart of this is that you will only conclude these matters, particularly – I will come back to the sexual attraction one shortly – at the point at which you are satisfied the complainant is telling the truth.  But the jury here are being asked to believe the complainant in respect of the uncharged acts and then he advanced the case.

This is not a harmless error, because what is happening here, when you combine what I took your Honours to at 505 with 518, that little passage in the middle of 511, in effect it is driving the prosecution case forwards in the sense of corroboration, because the jury have been told they can use that evidence in a sense that drives the prosecution case forwards.  Most of this is credibility material.  Most of it is defensive ‑ ‑ ‑

GLEESON CJ:   It was on the previous page, was it not, that he told them how they may use it?

MR GAME:   Yes.

GLEESON CJ:   On page 510 he said:

this evidence is led by the Crown so that you may have an understanding of what is said to have been the relationship -

In other words, it provides a background.  Then he says:

The further use of the evidence of the uncharged acts may show why it was that the accused was confident enough to ask for oral sex –

et cetera. So the directions on page 511 have to be read in the light of the directions on page 510.

MR GAME:   Absolutely, your Honour, but that is my point.  Whether it is good or bad, that is my point.  I will take some apparently clear ones.  Take the “was confident enough”.  Now, that is all about the complainant’s credibility, because what you are asking yourself, it is just another way of saying if it had happened, as your Honour said, “out of the blue”, how could he possibly have summonsed the confidence to do that?  That is exactly what it is.  It is an assessment.

It is all about her account and it goes to assessing the credibility of that account.  Even though it is concerned with an act of him, it is an act of him which you are talking about when you are measuring whether or not you accept the complainant’s evidence.  You do not use that evidence in the way that the judge gave at all.  It does not have that forward thrust.  The same for “why she acquiesced in Adelaide”.  Again, that is a comment about her account.  It is a comment about the internal consistency of her account.

HAYNE J:   It is comment or direction?

MR GAME:   It is a direction, sorry.  Sorry, it becomes a direction because of what is said at 511.

HAYNE J:   What is the content of the direction?

MR GAME:   The direction is ‑ ‑ ‑

HAYNE J:   Not the words, but what sort of direction is a judge giving the jury in this context?

MR GAME:   The direction the judge is giving is that these identified uses are uses that may assist you in, as it were, advancing the Crown’s case towards guilt and ‑ ‑ ‑

HAYNE J:   What is the role of the judge to direct the jury about permissible chains of reasoning, whether towards guilt or otherwise?

MR GAME:   Not at all.

GLEESON CJ:   Is a judge entitled to say, “You may think that the fact that there was a longstanding sexual relationship between these people helps to explain why he was confident enough to do so‑and‑so?”

MR GAME:   You may take that into account when you consider ‑ ‑ ‑

GLEESON CJ:   Can the judge say, “You may think?”

MR GAME:   Yes, but, your Honour, it is not ‑ ‑ ‑

HAYNE J:   That is comment.

MR GAME:   ‑ ‑ ‑ a direction.  This becomes a direction because what happens on line 20 on page 511.  What we have here ‑ ‑ ‑

GLEESON CJ:   What he says on page 510 is:

the uncharged acts may show why it was that the accused was confident enough ‑ ‑ ‑

MR GAME:   Yes, but, your Honour, you do not use that in the sense that is being put forwards.  The only use of it is an aspect of her credibility, which you would not put that in these directions at all.  You would simply when saying arguments have been put about why you should or should not accept what the complainant says.  The prosecutor has put to you that this is a consistent account and the credibility of the count is shown by the fact that she said it occurred over a number of years and that has an internal consistency.  You would never identify these things as possible uses and allow them to drive the prosecution case forwards.

GLEESON CJ:   Because there were no complaints about these directions and because there is no reasoning on the subject in the Court of Criminal Appeal because there was no ground of appeal about it, we are, as it were, looking at this with fresh eyes but what he said on page 510, as I read it at the moment, consists of three things.  The first thing he says in the paragraph beginning “Secondly” is why the evidence was “led by the Crown”, in other words, he is repeating an argument of the Crown.  Then the next thing he says, and there is a grammatical error in the transcript, is “the uncharged acts may show why it was that the accused was confident enough” to do certain things and then the next thing he says is “It may also show why she acquiesced in Adelaide” and then he says, “it may also indicate”.  On the next page he says “inappropriate behaviour . . . may go some way to explain” and they are, as I understand them, what the judge said to the jury about the relevance or potential relevance of the evidence, is that right?

MR GAME:   That is not all but, yes, that is correct.  Each of those things on analysis in terms of ultimate directions and use and the reason do no more than form a general part of the credibility of the complainant.  There is no sense in which you would direct the jury that you could use those things.  They cannot elevate them.  If you take the last one, “why there was no earlier complaint”, “no earlier complaint” is the flip side of early complaint.

GLEESON CJ:   To say conduct “may go some way to explain why there was no earlier complaint”, is that, in your taxonomy, direction or comment? 

MR GAME:   Before his Honour gets to line 20 it is a comment but it becomes a direction at line 20 in just the same way as if his Honour had directed the jury that speedy complaint could be used to advance the prosecution case.  That is reference, as I have said, when his Honour is talking at 511, lines 10 to 20 about “earlier complaint” that is what I have called general credibility.  That is not the same as the credibility you are talking about in line 30 because in line 30 you are talking about the credibility that drives the case forwards to an inference of guilt in the same way as corroboration achieves that end.

GLEESON CJ:   The ground of appeal that touches your criticism of what appears on pages 510 and 511 is, is it not, ground 2.4 on page 551?

MR GAME:   Yes, your Honour, but I would like to delete or I would like you to ignore some words.  I would like the ground to end after the word “inadequate”.

GLEESON CJ:   All right, so you want to amend the ground of appeal by deleting what appears in 2.4 after the word “inadequate”?

MR GAME:   Yes, your Honour.

GLEESON CJ:   Is that objected to?

MR KOURAKIS:   No, your Honour, I am happy with that.

GLEESON CJ:   You are happy with that?  Thank you.  Yes, you have that leave.

MR GAME:   Thank you.

KIRBY J:   I like the use by the Chief Justice of the word “taxonomy” because it is nice to think that that is what we are actually involved in here but I must confess to you I really have not seen your taxonomy yet but at least one taxonomological point must surely be whether you have to give directions that uncharged acts have to be proved beyond reasonable doubt.  That, after all, is what Justice Debelle said in dissent in the application that is before us and it is what Justices Bleby, Sulan and one other judge in South Australia have said and it is what Chief Justice Doyle left the jury to infer in Nieterink. 

MR GAME:   Our answer to that question is that if you are talking about what is called sexual attraction or sexual passion, as a general proposition we would agree that it has to be established to a particular standard and, we would submit, that standard is beyond reasonable doubt.  I am coming to sexual attraction now and how it is dealt with.  But all of these other things no standard applies to any of them because you are not asking for any finding to be made about any of them.  All of them should fall out of the directions in this present context.

KIRBY J:   Just looking at the passage on 511 that you took us to at line 20:

I direct you that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it.

That does not indicate “satisfied” according to what standard.  Normally one would think that simply means that you are satisfied that it has been proved, ie, the civil standard, and you do not have a specific ground of appeal, do you, on this point.

MR GAME:   We do make submissions about it, your Honour.  There is an argument that is put against us.  We say that the structure of page 511, line 22 would suggest something less than satisfaction beyond reasonable doubt.  What is put against us is what appears at page 499, lines 10 to 20.  We do submit that it is hardly likely that the jury would, as it were, pick up what was said at 499, lines 10 to 20.

GLEESON CJ:   That is interesting, because what the judge did was follow precisely what was recommended by Chief Justice Doyle in the case to which you referred earlier.

MR GAME:   Exactly, your Honour.

GLEESON CJ:   What Chief Justice Doyle said in that case was that the jury will probably understand this as meaning beyond reasonable doubt.

MR GAME:   Exactly, your Honour.

KIRBY J:   But it is a slide‑over.  We should be clear one way or the other instead of leaving it to inference, one would think, comforting ourselves that the jury will misunderstand us as meaning the criminal onus, though we do not say so.  It is better that this Court clear up one way or the other what it should be.  That is a sort of taxonomy question as to where we need your help.  What do you say it should be?  What have the cases said on this?  Why have they not said it has to be beyond reasonable doubt given how prejudicial and damning it is and how it tempts the prosecution not to charge crimes but to simply charge one or two and then leave the others to be slipped in as irrelevant to the particular crimes but highly prejudicial to the accused as general background material?

MR GAME:   Yes.  Our argument is, if it is appropriate to leave what are described as uncharged acts as evidence of guilt in the sense of being positive evidence of sexual passion or something of that kind, then it is appropriate to direct the jury that that has to be satisfied beyond reasonable doubt, and I will ‑ ‑ ‑

HAYNE J:   That carries within it an assumption about the degree of specificity of that which is given in evidence.

MR GAME:   Yes.

HAYNE J:   If the bottom line of the submission is that the jury should be told to ignore anything except that which is specific, let us grapple with that.  If it is not, do not hide it beneath the standard of proof question.

MR GAME:   I accept that too, your Honour, but I was going to explain it later but I will explain it now.  First of all, in respect of 510, our point about “you are satisfied” is we say that the jury would not think that that meant beyond reasonable doubt because of the ending words in the paragraph “and whether you are satisfied beyond reasonable doubt”.  I do not think the Chief Justice contemplated that the next words would come in.  But I may say this in respect of the standard of proof about this question of sexual attraction. 

If you have an independent line of evidence that might lead to an inference of sexual attraction, which we do not have in this case and I will come to shortly why the whole exercise involved some secularity, but say that one does, now, the “beyond a reasonable doubt” aspect would come in in this way.  Say this is a form of reasoning, we generally accept what the complainant says, but at the moment we are entertaining a doubt.  We require something further.

If that something further is the independent evidence of sexual attraction, if you were going to give this direction you would be leading the jury into error if you invited them to reason about that to less than the standard of beyond a reasonable doubt.  There is a case which is on our list which I will not take your Honours to called WRC, which is a judgment of Justice Hodgson, where he examined this very question in the light of the Evidence Act before this Court’s decision in Ellis and the Court of Criminal Appeal’s decision in Ellis which affirmed, in effect, that Pfennig does not apply to the Evidence Act.

KIRBY J:   Could you help me on this.  I may have once known, but I am not sure that I know now.  First of all, is there any statutory provision in the nation that we should be aware of?  Is the uniform Evidence Act specific to what onus applies, and, secondly, has this Court said anything?  I know that there have been dicta about links in the chain and matters of that kind, but what is the position of the common law in relation to proving the uncharged Acts?

MR TOKLEY:   Yes, your Honour.

HEYDON J:   You submit there would be the criminal standard of proof there though presumably do you not? 

MR TOKLEY:   I am sorry, your Honour?

HEYDON J:   You would submit that the uncharged acts have to be proved beyond reasonable doubt?

MR TOKLEY:   I think we have two submissions in relation to that.  One is that where the evidence of uncharged acts forms a necessary and indispensable link to the proving of the charged acts, it would have to be proved beyond reasonable doubt.  In this particular case the trial judge gave a direction that where the jury had to be satisfied of something being proved they were to understand that as being proved beyond reasonable doubt. 

KIRBY J:   But, as the Chief Justice pointed out earlier, the orthodox law, at least until now, universally accepted is that the thing the Crown has to prove beyond reasonable doubt are the elements of the offences charged.

MR TOKLEY:   Yes, your Honour.

KIRBY J:   So that to the extent that the law allows this larger penumbra to emerge around the offences charged, to the extent that that becomes bigger and bigger, then a question becomes whether the price of that has to be proved beyond reasonable doubt even if that involves expanding the present understanding of the requirement on the prosecution.

MR TOKLEY:   Yes, your Honour.  On the assumption that such evidence continues to be allowed to be – is said to be relevant and admitted on a number of bases, there are good reasons for seeking to confine the use of such evidence to prove, for example, a sexual attraction if it can prove such a sexual attraction, but not otherwise.

HAYNE J:   Is there not a great danger in conducting two trials within one, one about uncharged acts and then another trial which is the trial of the offences charged?  The solution proffered in Vonarx, at least as explained in Pearce in the same volume, is that the uncharged acts go in to demonstrate the existence of, perhaps the creation of, a sexual relationship between accused and complainant and if you focus the minds of the jury always, always, always on whether the offences charged have been established beyond reasonable doubt, you maintain, perhaps, the integrity of the accusatorial process.

MR TOKLEY:   Yes, your Honour.  The solution, if I may use that expression, that is proffered by the Victorian Court of Criminal Appeal seems to be that if, as your Honour said, it is - the evidence can be used only for the limited purpose of proving a sexual relationship.

HAYNE J:   That was explained by Justice Tadgell in Pearce [1999] 3 VR 287, particularly at 296 to 297. I have in mind especially paragraph 27, though I think it is probably necessary to read from 294 onwards in paragraph 23, but paragraph 27 is where his Honour perhaps points the matter as sharply as he does.

MR TOKLEY:   Yes, your Honour, and if I could just take up your Honour’s point at page 298, if I may invite your Honours’ attention to page 298 of 3 VR, the paragraph beginning on that page at the end – the second paragraph on the page:

So too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above.

HAYNE J:   Now, you will notice that in the question I put to you I posited alternatives to demonstrate existence of a sexual relationship or to demonstrate the development of a sexual relationship.  It was a deliberate choice, but there is an evident difference between them.

MR TOKLEY:   Yes, your Honour.

HAYNE J:   I would not want you to fail to understand the extra step that the second formulation has in it.

MR TOKLEY:   Yes, I understand your Honour’s point and I understand that there can be differences in both nature and degree between those two situations as well.

HAYNE J:   But what I have earlier described as completing the complainant’s evidence is completion by, “Look, these events occurred earlier.  There was this sexual relationship forming, developed, established.”

MR TOKLEY:   Yes, your Honour.  Your Honours, if I may put it this way, the solution to the problem that seems to be arising which your Honours have alluded to during the day, and if I may use the expression his Honour the Chief Justice used of a taxonomy, one has to go right back to the nature of the evidence itself.  If there are different acts, so‑called uncharged acts, for example, HML, part of the evidence relied upon is the giving of the G-strings, but there is other evidence as well.  There is a difference between obviously giving a G-string or giving a dildo or exposing oneself to one’s daughter by dropping a towel and wiggling one’s penis.  There is a difference between those sorts of acts and acts which involve the kissing or touching of a particular person. 

So one of the submissions that we are making in our written submissions is that one has to go back first of all to the evidence itself, and one then proceeds from that basis through the purpose for which it has been tendered – and this goes back to the point that his Honour Justice Hayne was making about how was it being used by the prosecutorial authorities.

GLEESON CJ:   But there is also an important question, is there not, as to the form in which it is tendered?  To elicit by a question an answer to the following effect, “He’s been at it for years” raises a particular problem about prejudicial effect and probative value because of the question of the way in which the accused are left to deal with this.

I do not know if counsel have explored this, but I am looking at an unreported judgment in a case I mentioned earlier of the Court of Criminal Appeal in Chamilos, 24 October 1985, where the history of a line of decisions is considered by the Chief Judge of the Criminal Division, Justice O’Brien, and he demonstrates that a line of authority going back to the beginning of the 20th century related 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.  According to that judgment that was the context in which this problem was originally addressed.  It might be worth a look at that case overnight.

MR TOKLEY:   Yes, thank you, your Honour.

HEYDON J:   I am just trying to get straight where you, as it were, solve the problem, for example, your support for the formulations in Pearce and Vonarx.  Do you solve the problem at the level of relevance or at the level of the probative value being outweighed by the prejudicial effect, or do you solve it by some ad hoc rule which leads to the conclusion about a sexual relationship?  What is your precise decisive point?

MR TOKLEY:   Thank you, your Honour.  Accepting that there has been no objection ‑ ‑ ‑

HEYDON J:   I mean in general, let us leave your case on one side, you cannot very well have a rule about relevance because they said that the law has no mandamus physiological faculty.

MR TOKLEY:   Exactly, your Honour; you cannot, quite right.

HEYDON J:   Is it some special rule about probative value being outweighed by prejudicial effect?  That too sounds entirely factual to be decided from case to case.

MR TOKLEY:   Yes, your Honour.

HEYDON J:   Therefore, is it some special positive rule of law?

MR TOKLEY:   Your Honour, that is what one is left with at the end of the day, a positive rule of law and a positive rule of law which confines the use of this evidence for a particular purpose and in so confining it, if I can put it this way, one confines it to that which it can in fact prove, that is, its relevancy.

HEYDON J:   Thank you.  Now, what is a sexual relationship?  On one view, when a father is kissing his daughter in a non‑innocent way, that is a sexual relationship however little she likes it.  At the other extreme you have some consensual sexual relationship, leaving questions of age out of it, that is fully agreed to on both sides.  What is a sexual relationship within Justice Tadgell’s rule?

MR TOKLEY:   Your Honour, can I answer that question in this way.  I think if one goes through all of the cases beginning right back from R v Ball to the present day, the notion of the idea of explaining the relationship between the parties arose out of cases in the 1930s in particular.  I have in mind cases like, I think, O’Leary and possibly Martin v Osborne.

HEYDON J:   They are very different from the present field.

MR TOKLEY:   They are, your Honour.

HEYDON J:   O’Leary is a sort of drunken riot over some hours ‑ ‑ ‑

MR TOKLEY:   Exactly, your Honour.

HEYDON J:   Martin v Osborne is evading duties in the transportation of goods.

MR TOKLEY:   That is right.  I think that if one traces the development of the use of the idea of a relationship, it comes from that point in time because in R v Ball the House of Lords do not use the words “sexual relationship”, they use the words “guilty passion” or “sexual passion” and somewhere along the line - somewhere along the way, the notion of a sexual relationship comes in, and I think the idea of a relationship, as opposed to a sexual relationship, is picked up in some of the earlier decisions like O’Leary in the High Court.

It is then used to say that one can – because evidence establishing the relationship between the parties is a relevant use of that evidence - and I have in mind particularly O’Leary’s Case – that it is also relevant to establish the sexual relationship between the parties, but the precise content of what constitutes a sexual relationship has never been fully defined by the courts, and it is a term, two terms, “sexual” and “relationship”, that are used in particular contexts, and in those particular contexts they may accurately describe the nature of the relationship between the parties or the incidence of a relationship between the parties.

HEYDON J:   Well, you are advocating a new positive rule of law, and that is not an unreasonable thing to do in view of the rather terrible condition that the law of relationship evidence is in.  What do you submit the words mean?  Do they mean fully consensual or ‑ ‑ ‑

MR TOKLEY:   No, your Honour.  The way I understand the words “sexual relationship” are used in the cases, in particular the sexual assault or sexual abuse cases, is that the words describe events or acts occurring between a complainant and an accused in cases where consent is not relevant.  They can describe a number of different forms of sexual, if I may use the word “abuse”, whether it is intercourse, fellatio, cunnilingus or other forms of sexual acts occurring between two persons.

HEYDON J:   In your case, the uncharged acts infer some sort of relatively minor sexual crimes.  They point, in a sense, to a relationship.  If that is the case, then this case fits within – or at least it does not fall foul of your positive rule of law.

MR TOKLEY:   No, that is correct, your Honour.  I have to accept that.

KIEFEL J:    In Vonarx the use of the words “sexual relationship” appears to be perhaps one inference is it is to neutralise what might otherwise be an understanding relating to a consensual relationship or a state of mind.  So the choice of term might be to focus attention upon the physical relationship between the parties but nothing else, to give the contextual setting to ‑ ‑ ‑

MR TOKLEY:   Yes, your Honour.

KIEFEL J:   But it is still to explain why the complainant does something later on.  The court still refers to relationship of sexual attraction in the following paragraph, I notice, so they have still got that in mind, but one gets the impression that it is an attempt to neutralise the “guilty passion” reference or the “sexual attraction” reference.

MR TOKLEY:   Yes, I think your Honour is quite right.  If I may make this point that one gets the impression from reading the case at the time it was decided in 1995 that the notion of a sexual relationship was perhaps not as loaded a term as it is today so that it was an acceptable use of the words, “sexual relationship”, in this particular context.  Today when it is being used and if it is used to cover the bases that your Honour Justice Heydon mentioned, then it becomes more of a term of art.

GLEESON CJ:   But the idea is, is it not, and it is perhaps not an unreasonable idea, that the credibility of an account of physically intimate behaviour is often affected by the relationship between the parties to the alleged behaviour?

MR TOKLEY:   Yes, your Honour.  Can I take some time over your Honour’s point because it goes to the heart, in my respectful submission, of a lot of the matters we have been discussing.  The evidence can prove the incidence of the relationship between the parties.  Once that evidence is in the jury may consider that evidence – I am not saying this is what the Court would say – not just in relation to that particular purpose for which it has been admitted, that is incidence of the relationship, but perhaps for other purposes.  It enables the jury to then look at that evidence with all the other evidence to then decide upon the guilt of the accused.

GLEESON CJ:   If you said, “John Smith walked up to me and shook me by the hand”, you might not need to know much about the relationship between the witness and John Smith to form a view on whether that is probable or improbable but if, to take an example from Mr Game’s case, the evidence is, “I persuaded my father to let me go shopping by doing such and such”, then the credibility of that evidence might be very much affected by knowing what had gone on in the past between the witness and her father.

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

KIRBY J:   I notice that in Pearce the Court of Appeal of Victoria entered a verdict of acquittal.  In Vonarx it appears to have refused an order of acquittal and, though it is not entirely clear on a quick look, it appears to have ordered a new trial.  At 371 of your appeal book you simply ask that the orders below be set aside, the appeal allowed and the appellant’s conviction be set aside, but the logic of your argument in your case at least is that you are not asking for a verdict of acquittal.  You are asking for a retrial, are you not?  You may not be asking for it, but that would be the proper order in your case, would it not?

MR TOKLEY:   That is probably correct, yes.

KIRBY J:   Because there is evidence from the complainant sustaining the actual charges.

MR TOKLEY:   Yes, your Honour.

KIRBY J:   Leave aside entirely the uncharged acts.

MR TOKLEY:   Yes, your Honour.

KIRBY J:   And, therefore, depending on how the matter falls out and what directions the judge should give, then the logic of it is that the proper order in your case is a retrial.

MR TOKLEY:   Yes, your Honour, that is correct.  It did not seem right for the appellant to ask to be retried.

KIRBY J:   They are the orders that the Court would normally make.

MR TOKLEY:   Yes, your Honour.

GLEESON CJ:   Is that is a convenient time, Mr Tokley?

MR TOKLEY:   Yes, if it is convenient to the Court, your Honour, yes.

GLEESON CJ:   I will have a copy of that judgment in Chamilos sent down to counsel a little later this afternoon.  We will adjourn until 10.15.  How are we going in terms of time?  How long do you think you are going to require, Mr Tokley?

MR TOKLEY:   I would have thought I would only be another 15 to 20 minutes, your Honour, that is all.

GLEESON CJ:   And how long do you think you will be, Mr Hinton?  I am sorry, that is Mr Vadasz really, is it not?

MR VADASZ:   Yes.  I could have answered that question very accurately at 10.15 this morning.  I would expect somewhere between half an hour and an hour.

GLEESON CJ:   All right.  Will that give your side adequate time?

MR KOURAKIS:   Yes, it will.

GLEESON CJ:   Very well.  We will adjourn until 10.15 tomorrow.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 26 SEPTEMBER 2007