Hoch v The Queen

[1988] HCATrans 157

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B14 of 1988

B e t w e e n -

JONATHON NEIL HOCH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

BRENNAN J
DAWSON J

GAUDRON J

Hoch

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 AUGUST 1988, AT 10.17 AM

Copyright in the High Court of Australia

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MR M. FOLEY:  May it please the Court, I appear on behalf of the applicant. (instructed by Goss Downey Carne)

MR D.G. STURGESS, QC: If the Court pleases, I appear with

my learned friend, MR P.G. NASE, for the respondent.

(instructed by the Director of Public Prosecutions)

MASON CJ:  Yes, Mr Foley.

MR FOLEY: May it please the Court, I hand up an outline of

submissions on behalf of the applicant.

MASON CJ:	Yes, thank you, Mr Foley.
MR FOLEY:	May it please the Court, so far as the preliminary

question of application for enlargement of time, I

refer the Court to the explanation given - - -

MASON CJ:	You need not concern yourself with that, Mr Foley.
MR FOLEY:	Thank you, Your Honour. Your Honours, this is an

important question of law for there is uncertainty

as to whether or not similar fact evidence is

properly admissible in circumstances where there

is a real risk of collaboration amongst complainants.

That principle or that question lies, to some extent,

unresolved following the decision of the Court of Criminal Appeal of Queensland in this case and in

certain important respects, in my submission, that

decision is in collision with the provisions or

the observations of the House of Lords in BOARDMAN's

case.

In short, the approach taken in this case by

the Court of Criminal Appeal of Queensland departs

from the guarantee of protection of a fair trial

which the approach given by the House of Lords in

BOARDMAN's case secures and, in my respectful

submission, it departs from the guarantee of

protection of a fair trial which this honourable

Court has made plain in the line of cases since

MARK.BY, in particular, PERRY and SUTTON. (Continued on page 3)

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Hoch

MR FOLEY (continuing):  Your Honours, the uncertainty

in that regard is reflected in the approach taken

by Their Honours Justice Thomas and Justice de Jersey

in the Court of Criminal Appeal.	The proposition
my submission, is a proper statement of the principles to be applied is as set out by Their Honours Lord Wilberforce and Lord Cross of	for which the applicant contends and which, in the Court to page 444 of BOARDMAN' s case to read
from the passage of Lord Wilberforce. Before
reading from that passage it is submitted that this
is a question of law important not only in the
practical administration of justice but it is
important also in so far as it contributes to the debate on the theory of relevance of similar fact evidence itself; that is to say, when one reads Lord Wilberforce one finds, in my respectful
submission, that the caution which he expressed is not a rider, or indeed not even truly understood - a dictum, but is germane to the reasoning whereby BOARDMAN's case set forth the general theory of
admissibility upon the principle of being probative,
as opposed to the somewhat more restrictive
categories that were thought to have emerged in
the ear 1 y approach in MAK IN ' s case ; th a t i s
to so, in so far as this question involves an examination of similar fact evidence it is not merely the retreading of ground upon which
this Court has so carefully set out principles,
most recently in SUTTON.

This point touches, in my respectful

submission, upon the very reason why the theory

of relevance implicit in BOARDMAN's case needs to

be read strictly and why BOARDMAN's case should not

become a passport for dispensing with the earlier

narrow categories set out in MAKIN's case, in

so far as those categories have been disapproved

of by the observations of this Court and the

observations of the House of Lords - I do not

seek to ressurect them.	What I do submit, however,
is that the cautionary remarks of Lord Wilberforce

and Lord Cross are not mere riders of proper

practi~e.	They are also relevant to Their Honours'
reasoning.

(Continued on page 4)

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Hoch

MR FOLEY (continuing): That appears, in my respectful

submission, most clearly in the judgment of

Lord Wilberforce at page 444, from just above

the letter D:

The basic principle must be that the

admission of similar fact evidence

(of the kind now in question is

exceptional and requires a strong degree
of probative force. This probative force

is derived, if at all, from the circumstance

that the facts testified to by the several

witnesses bear to each other such a striking

similarity that they must, when judged by

experience and cormnon sense, either all be

true, or have arisen from a cause cormnon

to the witnesses or from pure coincidence.

His Honour, in the next paragraph deals with this expression "a cause cormnon to the witnesses" and

His Honour observes that this includes:

not only (as in REX V SIMS (1946) KB 531)

the possibility that the witnesses may have

invented a story in concert but also the

possibility that a similar story may have

arisen by a process of infection from

media of publicity or simply from fashion.

In the sexual field, and in others, this

may be a real possibility:

If I might interrupt at that colon, in my respectful submission, the matter of public

importance which is raised in this case, namely

the proper approach of the criminal courts in

cases of alleeed child sexual abuse is a matter

which agitates the public mind fiercely at the present

time. Indeed, in Queensland, it is a matter which

has been the subject of much debate. It is the
subject indeed of a very learned report by my

learned friend before the Court today.

This prospect of publicity is one which

is not adverted to in the reasons for admitting the

evidence of the learned trial judge, nor is it
adverted to in the address to the jury in the

instant case.

(Continued on page 5)

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Hoch

MR FOLEY (continuing):  His Honour Lord Wilberforce made a

stringent requirement, that is, that:

something much more than mere similarity

and absence of proved conspiracy is needed

if this evidence is to be allowed.

His Honour gives the example of REG V KILBOURNE:

where the judge excluded "intra group" evidence

because of the possibility, as it appeared

to him, of collaboration between boys who

knew each other well.

And His Honour concluded in that paragraph:

This is, in my respectful opinion, the

right course rather than to admit the evidence

unless a case of collaboration or concoction

is made out.

Your Honours, I will not read the details of

the next paragraph. However, all of the paragraphs

to the end of that page and the top of the following

page set out this statement and it is a statement

which follows immediately upon His Honour's analysis

of the probative force, that is to say, in many

cases, the BRIDES IN THE BATH case, poisoning

cases, there is no suggestion of a collaboration

or conspiracy among the deceased brides or the
deceased spouses of Mrs Perry to have engaged

in a conspiracy of collective suicide.

The prospect of such an explanation is

ludicrous. Accordingly, much of the law, and

certainly the law as it has developed from this

Court in SUTTON, MARKEY and PERRY, has never

had to grapple with this question whether the
similar fact evidence tells one something about
the offender or whether the similar fact evidence
is also capable of telling one something about

the complainants.

Where there are two competing hypotheses

for the prospective probative force then, in

my respectful submission, the evidence is too

dangerous to allow to go before a jury or, to
put it in the words of His Honour Justice Brennan

in SUTTON's case, it should not pass the primary

exclusionary rule. Your Honours, those words

of Lord Wilberforce are echoed by the observations

of Lord Cross at page 459 of BOARDMAN's case

where His Honour sets out the reasoning and just

above point B, the following observation appears:

In such circumstances the first question which arises is obviously whether his accusers may not have put their heads together to concoct false evidence and

if there is any real chance of this having occurred

the similar fact evidence must be excluded.

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Hoch

MR FOLEY (continuing):  His Honour refers again to the case of

REG V KILBOURNE. That approach, in my respectful

submission, is in stark contrast to the approach

adopted by the Court of Criminal Appeal of Queensland

and particularly in the judgment of His Honour

Justice Thomas. His Honour Justice Thomas deals

with the question at page 142, line 9,and continues throughout that page to approximately line 8 of the next page. In my respectful submission, this

judgment represents an unnacceptable watering down

of the protections of a fair trial guaranteed by the

approach of this honourable Court in SUTTON and,

in particular, by the observations of Lords Cross

and Wilberforce.

I shall not read all of that passage, Your Honours,

but I direct Your Honours' attention to the first

sentence of the last paragraph on that page where

His Honour Justice Thomas said this:

It may well be that in a case where there are grounds for genuine concern that

complainants have together concocted a

story, the evidence could be excluded by

the trial judge under the discretionary

power referred to by Chief Justice Gibbs

in SUTTON (above, at page 534; cf. BOARDMAN

(above) at page 459 per Lord Cross).

That departs in two fundamental ways from the approach

of the House of Lords. Firstly, it requires grounds for genuine concern as opposed to the mere existence
of a real risk, but secondly, it posits a further

discretionary stage that even where there are grounds

for genuine concern that the evidence not then must

be excluded, but could be excluded in the exercise

of a discretion. That, in my respectful submission,

is so profound a departure from the strict approach

of the House of Lords and the approach of this Court

as to be bad law and, indeed, in SUTTON's case,

His Honour Chief Justice Gibbs and His Honour

Justice Brennan made it plain that before one considers

exercise of discretion one is concerned with the
primary exclusionary rule which is a matter of law,

not of discretion, even though there may be questions

of degree involved, so that this observation takes

it out of the proper arena, that is, a question of

law to the arena of discretion and sets out in proper

principles, in my respectful submission, for the

exercise of that discretion.

(Continued on page 7)

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Hoch
MR FOLEY (continuing):	His Honour Justice de Jersey, in

the Court of Criminal Appeal, at page 148 line 3,

deals more fully with this. I should say that

His Honour the Chief Justice agreed, I am instructed,

with both of the reasons for judgment given by

His Honour Justice Thomas and His Honour

Justice de Jersey. From page 14a line 43, this

question of collaboration was considered and for the next several pages, up to page 150, at about

line 27.

His Honour Justice de Jersey did consider

the references to BOARDMAN's case and, in particular,

Lord Cross and Lord Wilberforce but His Honour dealt with those by making this observation at page 149

line 35:

It is to be noted that BOARDMAN was among

the authorities referred to His Honour by

Counsel for the accused in the course of

argument at the trial. That the defence

was alleging collaboration between the

complainants must have been perfectly plain to His Honour. Indeed, His Honour referred specifically to this possibility in his charge

to the jury, as follows·-

and he sets it out there. That charge to the jury

is one thing but the initial decision to admit

the evidence, the reasons for which are given by

the learned trial judge at page 7 of the appeal

book make no reference at all to His Honour having

taken into account the specific issue of possible

collusion. His Honour Justice de Jersey - - -

BRENNAN J:  Mr Foley, before you go back to that. Would

you go back'to Justice de Jersey's judgment at

page 150, line 11, where His Honour said:

He clearly did not consider that there was

such a possibility as should lead to the

exclusion of the evidence on one count in

relation to the others.

MR FOLEY:  Yes, Your Honour.

(Continued on page 8)

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Hoch

BRENNAN J: Now, if that proposition is right, does your
argument have a foundation in fact?

MR FOLEY:  No, if the possibility referred to is the possibility

of concoction but in that passage there is some

ambiguity as to what the possibility is, as to

whether it is the possibility of concoction or

the possibility that - - -

BRENNAN J:  If you look at the previous sentence in His Honour's

judgment, it is clear that Mr Justice de Jersey had

in mind the possibility of concoction.

MR FOLEY:	Yes, Your Honour.
BRENNAN J:	Now, do you not then have to make good the proposition that Mr Justice de Jersey was wrong in
that view in the way in which the trial judge
approached the matter?
MR FOLEY:	Yes, Your Honour.

DAWSON J: Well, there is not much difficulty in doing that,

is there, because he saw a sufficient possibility to

warn the jury against it.

MR FOLEY: Well, Your Honour, that is correct. In my

respectful submission, the learned trial judge erred
having - if he did, indeed, detect that possibility
at the time of making the admission into evidence

then, as a matter of law, he had a duty to exclude

the similar fact evidence and, hence, to have

ordered separate trials.

WILSON J: And even if he had not perceived the possibility

when he admitted it if, in the course of

cross-examination, it became apparent, he would

then have a responsibility, would he not?

MR FOLEY: Yes, that is so, Your Honour, yes. Yes, I am

indebted to Your Honours. Indeed, that warning

respectful submission, have led him to have	evidences a possibility which should, in my
excluded the evidence either at the start or at any stage during the course of the trial.

(Continued on page 9)

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Hoch

MASON CJ:  I take it, Mr Foley, that at the beginning of the

trial when Mr Zillman made his submissions

he made it perfectly clear that conspiracy was

the major issue at the trial.

MR FOLEY:  I was not present, Your Honour, but I understand

that to be so.

MASON CJ:  One would naturally assume that that is what would

have been put to the trial judge at that stage.

MR FOLEY:  One would assume so, Your Honour, yes.

MASON CJ:	Yes.
MR FOLEY:	His Honour Justice de Jersey refers to the

learned trial judge as having been referred to

BOARDMAN, but it cannot be necessarily assumed from

that that His Honour applied or purported to apply

the principle which is set out in the observations

of Lord Wilberforce and Lord Cross to which I have

referred. BOARDMAN's case runs for some 44 pages

and contains many principles governing the exercise

of the admission into evidence of similar fact

and His Honour's reasons have focused principally,

if not exclusively, at page 7 on the question of

whether or not there was a striking similarity,

and hence whether or not it was probative.

Your Honours, there have been two English cases

subsequent to	BOARDMAN where this question has
been considered.

WILSON J:  Have you finished your reference to page 7 of the

appeal book? What is section 597A?

MR FOLEY:  I beg your pardon, Your Honour - section 597A

is the section of the CRIMINAL CODE which confers

a discretion for the ordering of separate trials.

Indeed, I hand up to Your Honours photocopies of the relevant extracts from the CRIMINAL CODE.

MASON CJ:  Yes, thank you, Mr Foley.

(Continued on page 10)

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Hoch

WILSON J:  Yes. When was section 597A introduced?

MR FOLEY:  Inserted by section 16 of the AMENDMENT ACT of 1976,

Your Honocr.

WILSON J: Yes, I see.

MR FOLEY:  In short, my submissions are directed to the

admissibility of the similar fact evidence, simply

because if the evidence on counts 2 and 3 were not

admissible on count 1, it would follow from the

principles set out by this Court in DE JESUS that

there would have been impermissible prejudice and

that cases should have been heard separately.

Accordingly, the central question raised by this

application farspecial leave is whether or not

the evidence in respect of counts 2 and 3 was

admissible on count 1 and vice versa.

If I might take Your Honours to the subsequent

English cases which have considered this question

T·-ie first of them is REG V JOHANNSEN (1977), 65 Cr App R, 101,

where Lord Lawton in the Court of Aupeal considered

the observations of the law lords in~' s case.

JOHANNSEN's case concerned a person charged with

homosexual offences on five schoolboys aged 14 and 15

An issue arose that four of the boys knew each other

and that two of them were close friends. At pages 103

to 105 Lord Justice Lawton examined the observations
of Lord Reid in KILBOURNE's case and towards the

bottom of page 104, in the third last paragraph,

Lord Justice Lawton referred to the passage of
Lord Cross, to which I have already adverted.

Lord Justice Lawton considered that that was

obiter dictum. I do not, respectfully, adopt that

analysis. In my respectful submission, it is so

closely linked to the rationale of particularly

Lord Wilberforce's judgment as to be truly the

ratio decidendi.

In any event, the approach adopted by Lord Justice Lawton appears just a little beyond

the middle of page 105 where, in the middle of
the second paragraph, His Honour says this:

In our judgment their Lordships' comments were directed to the exercise of judicial

discretion but if such discretion is to be

exercised there must, in oux 1udgment, be a

factual basis disclosed in the depositions to

show there is a "real chance" -

His Honour went on to observe in the last paragraph

that in that case:

there was nothing ..... to establish anything

more than a speculative possibility -

and that may give some colour to the term "real

chance" adopted in the House of Lords. In a following

case of SCARROTT -

C2Tl0/l/JM	10	10/8/88
Hoch

MA.SON CJ: Before you leave that case - - -

MR FOLEY:  Yes, Your Honour.

MA.SON CJ:  The comments of Lord Justice Lawton do not altogether

support you, do they?

MR FOLEY:  No, Your Honour. No, I am simply drawing them to the

Court's attention because they are cases on point.

MA.SON CJ:  They are against you because they do not seem to

suggest that there was that foundation here which

would enable the judge to come to the conclusion that

you say he ought to have come to.

MR FOLEY:  Yes, that is so, Your Honour, that is so. JOHANNSEN

is particular against me; SCARROTT not quite as much, and in that respect, indeed, therein lies part of the

confusion in the area because, as the learned text

book authors, of their edition, the rmst recent edition of Gross

indicate at page 526- they point to this as a

confusing area of the law where the comments of the

Court of Appeal in JOHANNSEN's case and in SCARROTT's
case are, on one view and perhaps on any view, at

some odds with the very cautious remarks or,

alternatively, the strict remarks of the Lord Wilberforce

and Lord Cross. I rely upon that in adversity, as it

were, to urge that it is therefore a matter of public

importance to clarify that area of the law.

Perhaps while I am not that, I should just refer

to that. I simply refer in passing to the short

summary that appears at page 526 and 527 of Cross

where the learned authors, at page 526, in the first

full paragraph, discuss the question of collaboration

and:

A further dimensi,on of the cogency of evidence

of bad disposition relates to the danger of

of collaboration between the witnesses to the

evidence extrinsic to the charge and those to

the conduct in respect of which the accused is

being tried. This sometimes seems to be

regarded as a matter of weight, .' and thus

as having little bearing on admissibility,

but there is high authority to the contrary.

In BOARDMAN's case Lord Wilberforce - - -

and then the learned authors effectively give a summary

of the competing approaches of the House of Lords on

the one hand and the observations of the Court of Appeal,

which seemed to water down Lord Cross's and

Lord Wilberforce's strict approach. Indeed, the

learned authors refer, I think, in the fifth last line

to the area as one that is confusing:

One of the factors T,1hich renders the whole area

so confusing is that it is impossible to

isolate questions of weight from those of

relevance and admissibility, compelling the

C2Tll/l/VH 11 10/8/88

Hoch (Continued on page llA)

the judge to decide in advance, and as

a matter of law, what is essentially a

jury question.

I point to that, Your Honours, as indicating that a

leading text book author on the topic regards it as

one that is confusing and, by implication, requiring
clarification and hence an important one for

Your Honours to consider in the granting of special leave.

(Continued on page 12)

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Hoch

BRENNAN J: Do you accept what the authors say there? That

it is a kind of jury question which the judge is

required to decide in advance?

MR FOLEY:  Again I am indebted to Your Honour for drawing

my attention to it. I do not concede that because

to do so is to confuse, in my respectful submission,

decisions about questions of fact and questions

of law. It is, in my respectful submission, not
a jury question but one which occurs at the initial
stage of testing the logically probative force

of the evidence as to whether or not it goes past

the primary exclusionary rule, whether its probative

force transcends any prejudice and that is very

much a question of law to be - - -

BRENNAN J: How does one determine that? If one is talking

about probative force of similar fact evidence
the proposition is that coincidence is an unacceptable

hypothesis and because there is coincidence there

must be guilt. That is the line of argument which

justifies the admission of it.

MR FOLEY:  Yes, Your Honour.

BRENNAN J: If the coincidence is to be explained by concoction

then, of course, that foundation evaporates. Must

not the judge address himself to the question of

whether there is, however one puts it, a real chance,

a real possibility, of concoction in order to see

whether, for the purposes of determining his function,

he should let it in?

MR FOLEY:  Yes, I agree, Your Honour, and that test can be

applied effectively in the administration of justice

where it is a very strict test. If the test is

somewhat looser it gives an intolerable burden

for the trial judge to descend the proper approach

and the approach which obviates the nee~ to which

the learned authors in Cross refer, of endless voir

dires. The proper approach is for the trial judge

to satisfy himself or herself simply as to whether

or not there is a real risk as opposed to a speculative
possibility.	Once that is done then that is the

end of the matter.

{continued on page 13)

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Hoch
BRENNAN J:	The problem in this case was that counsel got

his brief very late in the day and his application
for separate trials was seemingly put on on the
basis that there was likely to be some concoction but

he was not able to take it further at that stage,

is that the position?

MR FOLEY:  Well, I was not present, Your Honour and, although

I have spoken informally, the counsel did receive

the brief very late and just exactly what he was

able to put to the learned trial judge I can only

deduce from the transcript. He took the objection

fully and fairly but whether, in all the circumstances,

this might have been done well before the morning of

trial as a motion to quash the indictment or something

of that nature is something on which I cannot directly

assist Your Honours other than by pointing to the

obvious difficulties that counsel for the accused
faced on that morning.

It may be that - well, perhaps I will move from JOHANNSEN's case to the observations. Before

passing from that, in my respectful submission, the

Court should find that JOHANNSEN's case was wrongly

decided in that the circumstances there where the

boys knew each other and were close friends should,

in my respectful submission, properly be regarded
not as a speculative possibility of concoction but

as circumstances giving rise to a real chance or

a real risk.

DAWSON J:  JOHANNSEN's case would alter the nature of the

question from one of admissibility to one of weight,

would it not?

MR FOLEY:  Yes, Your Honour, yes and, in turn, would erode

the very protections which the modern history of

similar fact law has been designed to establish.

It would pass on to the jury information for them

to sort out in a way which is not only likely to

be prejudicial but may well be confusing. Your Honours, if I might take the Court to

SCARROTT's case, (1978) 1 QB 1016.~ Lord Scarman

delivered the judgment of the court in that case of the Court of Appeal. Lord Scarman was concerned to
deal with a question involving a defendant who was tried on indictment containing 13 counts, charging

him with buggery, attempted buggery, assault with

intent to commit buggery and indecent assault

involving eight young boys over a period of four

and a half years.

(Continued on page 14)

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Hoch

MR FOLEY (continuing): Lord Scannan, at page 1027 onwards, deals with	this question whicn he refers to as a' ganging
up" or which is referred to, curiously, as "the
group point" at the bot tan of page 1026 ,. about poin_t G.
lt is, perhaps, relevant to note 1n assessing
this case that at page 1027, just above the
letter D, His Honour makes this observation:

What we not say is not to be considered

as any advance or development of the law -

and if one is to take Lord Scarman at his word

then what follows is an attempt to give some
guidance to trial judges rather than any attempt
on Lord Scarman's part to water down the strict
observations of the House of Lords. Indeed,

although references is made in Lord Scarman's

judgment to BOARDMAN's case, there is no specific

reference to the passages of Lord Cross and

Lord Wilberforce to which reference has been

earlier made.

MASON CJ: This follows up JOHANNSEN and as there is a

reference to JOHANNSEN one would expect that

the discussion is proceeding on the footing that

Their Honours are plainly aware of what was said

in BOARDMAN and they are directing their remarks

to the topic in the light of that.

MR FOLEY:  That may well follow, Your Honour. The observations

of His Honour Lord Scarman appear there at

pages 1027 and 1028 and a summary of what

Lord Scarman considers to be the practical guidance to the trial judge appears in the last paragraph

on page 1028 where:

the judge's ruling is sought as to the

admissibility of the similar fact

evidence.

(Continued on page 15)

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Hoch

MR FOLEY (continuing):  Just after point G His Honour makes

this observation:

He may be impressed with the very real

possibility that the evidence is tainted

by conspiracy or ganging up, the group

objection, or he may, because of the

group objection or for some other

reason, take the view that, though

strikingly similar and therefore,

prima facie, admissible, the evidence

is so prejudicial that its prejudicial

weight outweighs its probative value.

DAWSON J:  I do not understand that. Perhaps you would

assume my lack of understanding.

MR FOLEY:  Yes, Your Honour. It introduces the adverb "very"

to real risk, or real chance, or real possibility and

"He may be impressed with the very real possibility".

Now, in so far as Lord Scarman expresses himself not to be making new law, then one really should not take SCARROTT's case as purporting to do that.

One should really go back to the font of BOARDMAN's

case.

DAWSON J:  What I had in mind was the prejudicial

effect of the evidence is, of course, that it

tends to show a propensity and it is the probative
value which has to outweight that prejudice and
if its probative value is lacking because of the

possibility of conspiracy, then on the initial

test the evidence is inadmissible.

MR FOLEY:  Yes, I respectfully adopt that reasoning,

Your Honour. Indeed, both in SCARROTT's case and

in JOHANNSEN's case one sees reasoning based upon
the exercise of discretion which is reasoning which

in certain respects was disapproved of by

this Court in SUTTON's case. Once one permits

this area to descend into the jungle of discretion

then it will be extremely difficult for there to be

clear principles upon which the guarantee of a

fair trial can be secured, for it can always be

said that if it is a mere matter of discretion,

then the learned trial judge had the opportunity

to see the witnesses, and so on, as His Honour

Justice de Jersey observed.

Your Honours, there has been one Canadian

case decided on the point which is not on my list -

I have copies available here.

C2Tl5/l/HS	15	10/8/88
Hoch

MR FOLEY:  That is the case of RE COLLEGE OF PHYSICIANS

AND SURGEONS OF ONTARIO V K, (198S) 16 DLR (4th), 424.

I have furnished copies to my learned friend.

MASON CJ:  Thank you.

MR FOLEY: This is a decision of the Ontario High Court of

Justice concerning an appeal from a decision of

the Discipline Cormnittee of the College of

Physicians and Surgeons of Ontario.

A physician was charged with

professional misconduct in engaging in

sexual impropriety with two female patients.

The Discipline Cormnittee of the College of

Physicians and Surgeons heard the evidence of

the two women in a cormnon hearing ..... The
corrnnittee found that the physician charged

had engaged in professional misconduct.

That finding was overturned on appeal with

Justice Van Camp dissenting, though not dissenting on this particular point, which is dealt with by

Justice White at page 428, in the last paragraph.

MASON CJ:  But this really does not take it beyond BOARDMAN,

does it?

MR FOLEY:  No, Your Honour.

MASON CJ: All it shows is that BOARDMAN has been applied and

accepted in Canada.

MR FOLEY:  Yes, that is all, Your Honour. That particular

observation of BOARDMAN to which I have referred has

been applied in Canada.

BRENNAN J:  Mr Foley, if I could just take you back to the

course that this trial followed. When it opened

counsel for the accused made application for

separate trials.

MR FOLEY:  Yes, Your Honour.

BRENNAN J: And that raised for consideration the question

of the admissibility of the similar fact

evidence. Was there any material upon which the

judge would then form a view on the issue to

which you are now directing our attention?

(Continued on page 17)

C2Tl6/1/JM	16	10/8/88
Hoch

MR FOLEY:	Yes, Your Honour.
BRENNAN J:	What was it?

MR FOLEY:  The depositions. One can point to certain features

of the depositions in so far as they have emerged

in the course of cross-examination.

BRENNAN J:  The judge had the depositions, did he?

MR FOLEY:  Yes, Your Honour. Indeed, that appears from the

transcript also because His Honour - I beg your

pa~don. I am corrected by my learned friend in

that His Honour the learned trial judge apparently

says, at page 8, that he had not read the depositions -

at page 8, line 32.

BRENNAN J:  What it comes to is that His Honour's decision

to refuse the application was really founded on

no material?

MR FOLEY. Assuming that His Honour had not read the depositions

and without knowing more about what was put to

His Honour in the course of those submissions, because the Queensland practice is not to record those

submissions. It may be that His Honour was directed

to certain parts of the depositions although

His Honour had not read them. It may be that

His Honour was directed to them - I simply to not know.

BRENNAN J:	Yes.
MR FOLEY:	The material which emerges from the course of

cross-examination is that there was at least some

evidence in the depositions about a number of matters,

namely, the question of motive, the complainant's

dislike of the defendant prior to the incident;

the question of opportunity, that is their being

residents in the same children's home; the question

of immature age and close relationship, that was

apparent on the face of the material.

course of cross-examination in the trial it is From the

also apparent that there had been cross-examination

in the commital proceedings about absence or

inconsistency of fresh complaint. It is unclear

whether or not there was evidence of intra-group

discussions on the depositions; unclear whether there was evidence of coaching; unclear whether there was evidence of peer group pressure.

As to the question of corroboration, the

only corroboration referred to in the course of
His Honour's summing up to the jury was the

corroboration afforded each of the complainants

by the admission of the other similar fact evidence.

So one must assune that there was before him no evidence of

corroboration. That is, as it were, by deduction fran the

transcript without knowing exactly what was before him.

C2T17/1/SDL	17	10/8/88
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MASON CJ:	Yes.
MR FOLEY:	Thank you, Your Honour.  I have already alluded

to the general public concern about alleged child

sexual abuse and one should allude, in this

context, to the particular vulnerability of teachers

and residential care workers to such complaints.

So far as the interests of the administration

in the particular case are concerned, my client

is a young man who, on the evidence, attempted

to pursue a professional career as a teacher.

These convictions or, more correctly speaking,

the findings of guilt, effectively deny any real
opportunity for that career to be pursued and
the final reason which I set out as item 2(d)
of my outline of submissions is that the interests

of the administration of justice generally require

consideration of this matter lest it remain as

a binding precedent diminishing for Queensland

citizens the guarantee of a fair trial which

the similar facts exclusionary rule is calculated

to secure.

This is a case, Your Honour, in which, in

my respectful submission, the liberty of the

subject is put at peril because of an incorrect

and, in certain respects, confusing approach
to the admission of evidence which is not directly

probative of the charge with which the citizen

is charged. Your Honours, in assessing whether

the material admitted can be said to be probative,

it is necessary to establish what it is intended

to prove.

His Honour Justice Brennan, in SUTTON's

case, at 552, said this:

The starting point is to identify the fact

to be proved and how the allegedly similar

facts may be thought to prove it.

It is not clear from the reasons of His Honour

the learned trial judge, at page 7, what fact

and 126, the learned trial judge referred to four matters which could be taken to be facts

the allegedly similar facts were said to prove.

which were relevant to prove by the admission

of the similar fact evidence, namely, a criminal

association between the accused and each of the

boys, at pages 117 to 118, or otherwise referred

to as the rebuttal of innocent association.

C2Tl8/l/ND	18	10/8/88
Hoch

MR FOLEY (continuing): Secondly, some unity of intent or

of project to make coincidence an..affront to

common sense at pages 118 and 119. Thirdly

corroboration of the commission of the offence and

the identify of the person charged as the

perpetrator, at page 121 and, fourthly, the

rebuttal of boyhood fantasy or untruth, at page 121,

also. Now, the lack of clarity as to what the

similar fact evidence was to prove had a disturbing

effect, in my submission, upon the jury's deliberations.

It was thought at one time that where there was a

total denial by the accused, where the live issue

for the jury was nqt precisely defined . such as an

issue of identification, as in SUTTON's case, the
sexual assault on women, or of accident, as in

PERRY's case, or as the rebuttal of innocent association,

it was thought that one could not lead similar fact

evidence in such a case.

This is a case, indeed, in which there was a

total denial by the accused and the rebuttal of

innocent association; the unity of intent or purpose;

the identity of the person and the rebuttal of

boyhood fantasy were matters which could not be said

to be live issues at the trial. Really, the effect of tendering the evidence was to seek to prove the

whole of the actus reus. Now, I refer in passing

in this regard to the old view which is set out in

FLACK's case. I do not have that on the list but I

have copies for Your Honours, which is reported at

(1969) l WLR 937.	The report which I have is of the
(1969) Cr App	R 166, which I hand to the Court.

Now, I mention FLACK's case even though

some of the reasoning in it has been disapproved of

by more recent cases.

(Continued on page 20)

C2T19/l/VH	19	10/8/88
Hoch

MR FOLEY (continuing): It was a case in which the notion

of specific categories of relevance in accordance

with the MAKIN principle was still very much alive.

It predated BOARDMAN. The particular passage of

the judgment of Lord Justice Salmon to which I wish
to refer is at the bottom of page 170 and the top

of page 171:

In the present case, the defence

consisted of a complete denial that any
such incident as that to which the accused's

sisters spoke had ever occurred. No question

of identity, intent, system, guilty knowledge,
or of rebutting a defence of innocent

association ever arose. That was plain at

any rate at the conclusion of the evidence,

whatever may have been the position when

the application for separate trials was

originally made. Accordingly, the evidence

of an alleged offence against one sister

could not be evidence of the alleged

offences against the others.

That old view has not - the wisdom of that decision, in my respectful submission, is still apposite today where there is a danger of confusion because of the

broader test of general probative weight that has

been introduced in modern times as opposed to the

more restrictive test.

In this Court, His Honour Justice Deane in

SUTTON's case at pages 556 and 557 expressed approval

for the broader approach of general probative force rather than the approach of specific categories but

that view - and, indeed, Lord Cross in BOARDMAN's

case at page 458E questioned the reasoning of the

categories approach that is manifest in FLACK.

That having been said - - -

(Continued on page 21)

C2T20/l/SH	20	10/8/88
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DAWSON J:  No one suggests any other categories anywhere, do

they, though?

MR FOLEY:  Your Honour, there was after MAKIN, the rebuttal

of innocent association, and so on.	I am not sure
what Your Honour is referring to.

DAWSON J:  The specific instances given in FLACK seem to

be fairly exhaustive, do they not?	I mean, can
you suggest any other categories?

MR FOLEY:	No, I do not urge any - - -
DAWSON J:	Does anyone else suggest any others anywhere?
MR FOLEY:	Not that I am aware of, Your Honour.
DAWSON J:	Because the danger of the broad approach is to

say that the evidence is so strong, meaning that

the evidence of propensity is so strong.

MR FOLEY:  Yes, Your Honour, and coupled with that a danger

of attempting to prove, as it were, the ultimate

issue of guilt rather than proving some fact which

is probative of guilt. Indeed, His Honour

Justice Thomas refers to the reasoning,in his judgment

of the admission of similar fact evidence as probative

of guilt. That may just be an infelicitous phrase

but that is the danger that one slips from a

proof of a fact to the proof of the whole ultimate

issue.

DAWSON J:  But here there was system, was there not?

I do not know whether it was consciously put on that basis but if there was any basis, it was system, was it not?

MR FOLEY:	In the present case, Your Honour?
DAWSON J:	Yes.

MR FOLEY:  Yes. In my respectful submission, the only arguable

basis for calling it similar fact was the - - -

DAWSON J:  We 11, I suppose to rebut innocent association.

MR FOLEY:  Your Honour, in His Honour the learned trial judge's

summing up he does not treat the evidence as if

it rebuts an innocent association. He says that

even on the Crown case there is innocent association

in respect of each of the alleged incidents but

over and above that there was criminal association

so that it really does not rebut innocent association.

What it does is purports to add on an extra stratum

of criminal association. It gets in~ ·as it were, through

the classic· category of rebuttal of innocent association but it

does not really purport_to rebut that.	It accepts that but adds
a level of prejudice which is superimposed upon	the innocent
association.

C2T21/l/SDL·	21	10/8/88
Hoch

MR FOLEY (continuing):  That approach is not yet dead -

that is, the approach of - - -

MASON CJ:	The specific categories approach?
MR FOLEY:	Yes, Your Honour.
MASON CJ:	What are you seeking to make of this? I have

not quite followed how you are making use of

this.

MR FOLEY:  What I am seeking to say is this, Your Honour:

because there was no clear statement of what
the similar fact evidence was tendered in order

to prove, it should not have been admitted -

number one - and because it was admitted, it

had a confusing effect upon the jury because

each of the bases upon which it was said to be

relevant in the passages from His Honour's summing

up to the jury really are not live issues. And

it was tendered, really, as - it had the effect

of seeking to prove the ultimate issue of guilt.

BRENNAN J: It was tendered to prove that he actually did

the acts canplained of, was it not?

MR FOLEY:	Yes, Your Honour, that is right.
BRENNAN J:	The proposition advanced by the trial judge

was that if you find a complaint by three of

the making of this act and the complaint is not

one which is to be accounted for by a conspiracy

then the likelihood is enhanced that only one

of those complaints is true.

MR FOLEY:  Yes, Your Honour, that was the argument advanced

and, indeed, Your Honour, in the course of SUTTON's

case, I think, expressed the view that one could

tender similar fact evidence to prove the conduct

charged. A different view has been expressed

by the Court of Appeal in LEWIS' case and accepting

the correctness of Your Honour's decision, on

that point, it is still a dangerous area to tender

similar fact evidence in order to prove.

(Continued on page 23)

C2T22/l/ND	22	10/8/88
Hoch

BRENNAN J: Well, the most dangerous area, perhaps in a sense.

MR FOLEY:  Yes, Your Honour.

BRENNAN J: Yes.

MR FOLEY:  I will refer to one other case briefly on this

point.

MASON CJ:  Before you do that, what His Honour had in mind

when he addressed his last comment to you was the

passage that appears at page 121, about half-way

down the page. It is the second paragraph commencing

on that page where His Honour says - refers to a boy

relating a sexual incident implicating the accused

and then he goes on:

If another boy relates a similar instance,

it may be coincidence. If some more boys

relate a similar sort of complaint in

relation to the same man, then if it's not

a conspiracy it may well be that their

stories are true.

Now, was any objection taken to that direction?

Was any redirection sought?

MR FOLEY:	Not on that point, Your Honour.
MASON CJ:	Yes.
MR FOLEY:	There was a - no, there was not. That point was

not taken. Your Honours, I will refer to the case

of REG V PETER AUSTIN LEWIS, (1983) 76 Cr App R 33. This was a case where certain material was tendered

indicating that the defendant had an interest in

paedophilia.

(Continued on page 24)

C2T23/l/SH	23	10/8/88
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MR FOLEY (continuing):  Objection was taken on the grounds

that it was not probative and it was obviously

highly prejudicial. There were a number of

different counts and the particular passage to

which I wish to refer is at the bottom of page 36,

the top of page 37 where, in the judgment of

Lord Justice Donaldson, he refers to the approach

to be taken where there is a complete denial:

In the instant appeal there was a complete

denial of the masturbation incident and

there was, on the facts of that incident,

no possibility of a defence of accident

or that his actions, if proved, could bear
an innocent explanation. However in the
case of the other three incidents issues
of accident and an innocent explanation
of whatever occurred quite clearly arose
and had to be considered by the jury. In

our judgment neither the fact that the

paedophilic evidence was inadmissible in

the context of the masturbation count nor

that there was some degree of denial of

the basic facts in the case of the other

counts rendered it inadmissible in the

context of the other counts.

I think the point that I am referring to there is

that the Court of Appeal took the view that where
there was that complete denial and those other

defences were not raised, that it was inadmissible
and that may not be able to be reconciled with

the observations of the honourable Justice Brennan

in SUTTON, but I rely upon it simply to indicate

that where similar fact evidence is tended, or is

led in order to prove the whole of the conduct

charge, or the whole of the actus reus, it is a

most dangerous form of evidence.

DAWSON J:  I do not understand how it can be led to prove

the whole of the actus reus, without just being
evidence of propensity.	That is probably what
you are saying, is it?

MR FOLEY: 

That is the problem I have, and in my submission,

the proof of the whole actus reus is to go too far,
but that again returns one to this question of where

the limits are properly to be put. If one abandons

the narrow MAKIN approach, takes upon the broader approach of BOARDMAN and this honourable Court in SUTTON, then it becomes an almost metaphysical

question of probative force, and where the whole

of the actus reus is being sought to be

proved - - -

C2T24/l/HS	24	10/8/88
Hoch

DAWSON J: It seems to me that - you talk of the broader

approach - it is merely a general proposition

which embraces the specific instances which

refer to MAKIN and, in fact, whether it

goes further or not is a real question, but I cannot imagine any other instances at the

moment beyond those that are mentioned, in fact.

There may be,but the broader approach may not be

in fact broader, it may be it is just,the general

proposition.

l'1R FOLEY:  Yes, Your Honour. Your Honours, I wish to move to

those aspects of the evidence which, in my

respectful submission, indicate a real possibility

of collaboration amongst the complainants in this

case.

MASON CJ:  Mr Foley, as you move to that evidence, can you

give us the page references which support what

you state in your outline?

l'1R FOLEY:  Yes, Your Honour. I have them enumerated, but

I was already over the limit for the outline,

so I did not like - perhaps if I - - -

MASON CJ:  The length of the outline is not completely

inflexible.

l'1R FOLEY:  Thank you. I do have the page references typed

out in a long outline, but my copy has a red

border around it so that I do not trespass too

far beyond the three pages of the practice

direction. But, if it is of any assistance, I

could invite my lea:rned instructing solicitor

to make photocopies of that forthwith, an unmarked

copy of that.

(Continued on page 26)'

CZTZS/1/JM	25	10/8/88
Hoch

MASON CJ: If you hand the document to us we can have it

copied.

MR FOLEY:  Yes, very well, Your Honour. I do not have

a spare copy - - -

WILSON J: Unless you need it now, do you?

MASON CJ:	Do you need it now?
MR FOLEY:	No, Your Honour, I have my own.
MASON CJ:	And it does not have material in it which you

are anxious to conceal from us?

WILSON J: Or should - - -

MR FOLEY:	No, Your Honour, there is nothing to conceal.
MASON CJ:	Thank you.
MR FOLEY:	I propose to go to those passages now,

Your Honour. I hope it is not too laborious

a process but - - -

MASON CJ: It may not be necessary to go to all of them

and take us through the evidence in detail but,

certainly, take us to the passa~es that you think

make the point in the most telling way.

MR FOLEY:  Yes, Your Honour. Perhaps I should start while

it is being photocopied or would you prefer that

I wait?

MASON CJ:  No, I would proceed with your argument at this

stage.

MR FOLEY:	My first submission is that the proper approach
is that it is a matter of law, not discretion,

and that in assessing the real possibility of

collaboration this case contains a number of

matters which should have been alarm bells.

This case, in my respectful submission, is a
case which indicates not merely a real possibility

of collaboration but something far more.

(Continued on page 27)

C2T26/l/ND	26	10/8/88
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MR FOLEY (continuing):  Those I have listed as nine matters

which should have caused the learned trial judge

to have excluded the evidence, that is, taking
it briefly together, there was motive for these boys
to concoct a false story; there was opportunity
for them to do so; they were of immature age and

they had a close relationship; the evidence of fresh

complaint was either totally absent or was riddled

with inconsistencies.	On their own admission, there
had been discussions within the group.	The youngest
boy - there was evidence of coaching there.	Someone

had been reading over his statement to him which he had been trying to learn off. There was evidence that

at least one of the boys explained his accusation - at least one of his. minor accusations - on the basis of peer group pressure.

There is a suspicious similarity in the nature of the complaint that has assumed much importance

in this case, namely, the reference to "it cleans it,"

that being an alleged modus operandi of the defendant

in his approach to these young boys. Finally, there

was no corroboration, no independent corroboration,

or each alleged defence taken separately. Now, any of those factors, in my submission, should have led the learned trial judge to have excluded the evidence,

but, taken together, they paint a very disturbing

picture indeed.

I will refer to the complainant as, "the

complainant first in time," "the complainant second

in time," and "complainant third in time," because

there is some confusion about this. The complainant

first in time was the complainant on count 3,

which was on 18 December 1986, whom I shall refer to

by his initial as D. The complainant second in

time was the complainant on count 1	on 14 January 87
at Scarborough, whom I shall refer to as C~	and

the complainant third in time, whom I shall refer to

as s· was the complainant in count 2,	·.,hich
allegedly occurred at Bribie Island on 20 January 87.

The learned trial judge at page -

(Continued on page 28)

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Hoch

BRENNAN J:  Which of those are the brothers?

MR FOLEY:  C and S. The complainant on count 1 and the complainant

on count 2.	The trial judge at page 123 sets out a
helpful chronology of the alleged incidents.	My
learned friend, Mr Sturgess, has just drawn my

attention to one matter which has caused confusion.

The first incident occurred on 18 December 1986

and His Honour the learned trial judge correctly

makes that observation at page 123, line 35.

However, in the judgment of the honourable

Justice de Jersey, at page 144, he refers to that

first instant as occurring on 7 January 1987.

That is incorrect. I think I must plead guilty to having

misled His Honour Justice de Jersey in that rePard - 0

in the Court of Criminal Appeal. It should not

be 7 January 1987.

MASON CJ: It is 18 December?

MR FOLEY:  Yes. I will not go through the rest. They are

set out there by His Honour the learned trial judge

over the next page.

(continued on page 29)

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MASON CJ:	Mr Foley, you have given us the page references
to the transcript which, in effect, make or support
the points that you make in your outline on pages 3 and 4, points (1) to (9). Is it necessary to take
us through those passages in the transcript or are
you content that we should read the passages ourselves?

MR FOLEY: It is not necessary, I think, Your Honour, for me

to go to each of the pages. I have prepared for

my own purposes a summary of what, in essence, I

submit is the effect of each of those and what I

would propose to do is, subject to Your Honours'

convenience, simply go to those which are

shorthand versions of what appears in the transcript

and that should not take an undue amount of time.

MASON CJ: Well, I think you might proceed immediately to

that.

MR FOLEY:  Yes, thank you, Your Honour. The complainant,

first in time, on 18 December 1986, the 13-year-old

boy D at page 18 line 4 - this is relevant to

the question of motive - said that the defendant

did not do anything with the bigger kids.

At line 12, he said he did not really know

whether he liked the defendant before the incident.

At page 19, lines 15 to 27, there was a prior

inconsistent statement - this is not mentioned in

my outline there - that he disliked the defendant

strongly before the incident. So that part of

the defendant's case is not only is there evidence

of dislike but there is a false denial about that

on the part of the boy which is suggestive of a

- well, it is suggestive of the boy colouring his

evidence.

Page 19, line 54, there is an admission by

the boy that he called the defendant a poofter on

the bus to Bribie before the incident. At page 20,

lines 55 to page 21, line 1, there is an admission

that he probably called the defendant other

derogatory words, derogatory and offensive words

which I will not repeat. At page 21, line 3, his

initial dislike was expressed in these terms:

Because he was, you know, doing things with

other kids and leaving us out. But after

that time at Bribie I didn't like him tor

what he did to me.

C2T29/l/SH	29	10/8/88
Hoch

MR FOLEY (continuing):  So, that is to sa~ there was evidence

of prior dislike, prior to the alleged incident.

Page 21, lines 15 to 30, there is evidence of that boy disliking being asked to do tasks. If I might

then turn to the complainant second in time, the

one on 7 January, C, the 13-year-old. At page 67,

line 4, there was a denial by him of prior dislike

of the defendant. At page 67, lines 6 to 15, he

too admitted an inconsistency. There was a prior

inconsistent statement before the magistrate about

his prior dislike. At page 67, lines 19 to 13,

the complainant second in time referred to the

complainant D, that is the complainant first in

time, as also disliking the defendant in these

terms:

I think he didn't like him. I'm not sure.

The complainant third in time, the boy S,

the 10-year-old who is in count 2, at page 45 line 5,

admitted that he was not getting on very well

with the defendant prior to the incident. At page 45,

linesl6 to 19, he describes disagreements between the
defendant and the boy. Page 45, lines 50 to 53,

the boy admits disagreements at the cafe. This was

on an outing where they had gone to Bribie for the
day and the defendant was driving the bus and there

were disagreements about whether the boys wanted to

go the surf-side or the quiet side of the island, or

whether they wanted to go to the cafe or not where

there were video machines, whether or not they

wanted, at one stage, to go back and get some clothing.

At page 46, line 50,the boy said he became annoyed

because the defendant would not give him some more

money. At page 47, lines 1 to 10, there was an argument between the boy and the defendant, the

defendant requiring the boy to wear his seat belt

and the boy arguing about that.

At page 47, lines 12 to 20, there were arguments between the boy and the defendant about

wearing sun screen, or sun cream. That is, the

defendant asking this 10-year-old boy to do it

and the boy not wanting to do it. At page 47,

lines 22 to 26, there was disagreement about going

for a surf. Lines 30 to 35, disagreement about

going for a shower.	The explanation offered by the boy
eeing · that he had not been in for very long.	Page SO,

lines 25 to 29, that boy admits prior dislike of the

defendant. At page 50, line 32 he refers to prior

dislike of the defendant by the complainant C and

at page 50, line 34, he refers to prior dislike of

the defendant by complainant D.

In short, there is plain evidence that there

was some animus between the boys in this children's

home and the defendant before the alleged incident

in respect of each of them, including before the

incident involving the first in time.	As for
opportunity - - -

C2T30/l/JM	30	10/8/88
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MASON CJ:	You do not need to develop that, do you?
MR FOLEY:	No.
MASON CJ:	You have got the statement there.
MR FOLEY:	Yes.  As to item 4, the fresh complaint evidence

being absent or inconsistent, so far as Dis

concerned, the 13-year-old, at page 14, line 41,

there is a reference to a complaint to the

house parent about three weeks after the incident.

At page 14, line 60, he refers to the complaint

made after speaking with C, the complainant on

count 1 who is second in time. At page 32, line 56,

his explanation given for the absence

of fresh complaint was in these words:

I was scared that, you know, people would

laugh at me.

Now, that is the first in time. The second in

time, count 1, at page 56, line 21 -

BRENNAN J:	When was the first complaint made?
MR FOLEY:	According to him it was made three weeks after

the incident, that is page 14, line 41.

WILSON J: That is about 8 January?

MR FOLEY:  Yes, I am not sure, Your Honour.

BRENNAN J: Before the second incident?

MR FOLEY: Well, that is not altogether clear, Your Honour.

It is not clear whether the complainant on count 1

made his complaint P.rior to the second alleged

incident.

(Continued on page 32)

C2T30/2/JM	31	10/8/88
Hoch

MR FOLEY (continuing): It is not clear whether the complainant

on count 1 made his complaint prior to the second

alleged incident. There is a reference by the

house parent, Josette Gilbank, to that having occurred

with both D and C present and D making the complaint

at C's instance.

If I might then proceed with the complainant

second in time. At page 56, line 21, this was

the one at Scarborough in the showers at Scarborough

House, where immediate complaint was made to

Auntie Josie and that is corroborated to a certain extent by Josette Gilbank but there are inconsistencies

that appear in that .. At page 57, line 52, the

complainant second in time said he was not sure

and could not remember whether he was speaking

to Josette in company of D - whether that was before

the trip to Scarborough. Page 58, line 10, there

is an inconsistency as to his admission that the

conversation with Dave and Josie was before going

to Scarborough. At page 64, line 47, his initial

evidence was that he slept in a different room

from the defendant after the incident occurred.

They were up at this holiday house at Scarborough,

the incident allegedly occurred in the shower block.

The boy gave evidence at page 64, line 47, that

he then slept in a different room from the defendant.

That was inconsistent with the testimony given

by the house parent, Josette Gilbank, and it was

also inconsistent with his own earlier prior statement

at page 65, lines 30 to 48, where he admitted a

prior inconsistent statement that, indeed, he had

slept in the same room as the defendant.

At page 66, line 20, he referred to a prior

statement that he had asked Auntie Josie, that

is Josette Gilbank about sleeping elsewhere and

that is inconsistent with the testimony of

Josette Gilbank, the relevant parts of which are

set out at page 71; lines 27 to 34, where she refers

to a complaint by C and D a week before going to
Scarborough.	Your Honour Justice Wilson was correct

in your earlier observation that that was about

7 January 1987.

(continued on page 33)

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MR FOLEY (continuing): At page 72, lines 10 to 23, the

complaint by C was late at night. Page 73,

line 8, to page 74, line 7, C encouraged D to

make a complaint a week before Scarborough and

at page 75, line 18, she said that C is sleeping

in the same room as the defendant. At page 75,

line 44, the house-mother makes it clear that

this complaint was made on the first night before

anyone went to the beach. The significance of

that is that the complaint to her that was made

was "he has touched me again", words to that

effect, but the account given by the complainant
second in time was that the incident occurred
in the course of putting sun cream on the back
after they had been to the beach, the point of

that being that it could not have occurred as

alleged by the boy on that first night.

So far as the complainant third in time

is concerned - this was the incident in the shower

block at Bribie - there was evidence that he

had made complaint to C, D and to a house-mother,

Auntie Anne, who was never called, and no

explanation was given. It was also alleged

that he made complaint to a boy J, who was never

called. It was also alleged that the boys T

and J were in the shower block next to this

complainant when this alleged assault took place

which included an alleged pushing against the

shower block. They were not called either.

There were three material witnesses who were

not called.

At page 39, line 46 - I have already covered

those. At page 50, line 16, there is a reference
that this boy allegedly saw another indecent

dealing take place on a child J. The child J

was one of the boys to whom this complainant

had allegedly made fresh complaint. He was never

called and there was no reference to this other

alleged indecent dealing.

Your Honours, the intra group discussions largely speak for themselves.

MASON CJ:	You have these passages listed here.
MR FOLEY:	Yes, I do not propose to go through those.

MASON CJ: It would be sufficient if we read them, Mr Foley.

MR FOLEY:  Yes, thank you, Your Honour. The rest of those

matters set out down to - the rest of my

paragraph 5, I need not elaborate on with the

exception that item 7, which was the explanation given

by D under cross-examination about why he called the defendant

that name, he explains that on the basis of peer group pressure.

C2T32/l/ND	33	10/8/88
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MR FOLEY (continuing):  That happens to be inconsistent

with the evidence of June Roberts, a house~mother

at page 70, line 12, who said that it was only D

at that stage who was calling the defendant these

names and that none of the other boys were.

WILSON J:  Was he called names before the alleged first

offence?

MR FOLEY:	Yes, your Honour.
WILSON J:	Because the applicant had only been at the home

two days before the first offence.

MR FOLEY:	Yes, that 1s so.
WILSON J:	So almost as soon as he got there the boys had

characterized him in that way, D had, at any rate.

MR FOLEY:  Yes. The first evidence of that emerges on a bus

trip to Bribie, that is the incident on the 18th.

They had a bus trip to Bribie. On the way up, in

the bus the boy Dis calling him these names.
~our Honours, in my submission, this was a confused

Jury.

MASON CJ:	I think you have made this point before, have not you?
MR FOLEY:	Yes, Your Honour.  They asked for a redirection,

and significantly they asked for a redirection on

what one might think is the gravamen of this case, namely the distinction between direct evidence and

circumstantial evidence, similar fact evidence being

a particular example of similar fact evidence.	At
page 129, line 10, the foreman said this:

Sir, there is something perplexing us all

the time. I don't know whether it is

actually in there or not, but it is about

the evidence. That is what is sort of

worrying the jury.	We can't find any direct
evidence against either of the three boys
or the accused. We find out it is hearsay
on both sides and we can't come to any
agreement on it whatsoever.

Now, it may be that the reference to hearsay

evidence is confused. If one assumes that they

meant one word against another, that may be an

explanation of what they meant, but in any event,

their question was about direct evidence -

"We can't find any direct evidence" - that being,
in my submission, an indicator of how confused they

were, and in answer to that question they were told

by His Honour, on that same page at line 33, that

the evidence of D was "direct evidence", they were

told at line 45 that the evidence of C was "direct

C2T33/l/HS	34	10/8/88
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evidence", they were told at line 58 that the

evidence of S was "direct evidence", they were not

told that the evidence of the defendant was

direct evidence, and complaint was made of that by
counsel for the accused at lines 40 to 46 where
the counsel for the accused asked His Honour to
remind the jury too that there was sworn evidence

of the accused and direct evidence.

That evoked an energetic response by

His Honour. His Honour recalled the jury, told them

that it was sworn evidence, but still did not tell

them that it was direct evidence. So this jury

that is struggling with the differences between

direct evidence and circumstantial evidence asked
for guidance on it, were directed to the direct
evidence of the Crown, but were not directed to

the direct evidence of the defence, notwithstanding

a specific request for a redirection.

Their confusion may have incidentally been added to by the - - -

MASON CJ:	Yes.
MR FOLEY:	A small point - I mention it in passing - the order

of calling the witnesses was itself confusing.	The
complainant first in time on count 3 was called first, the complainant third in time on count 2

was called second, the complainant second in time on

count 1 was called third. It was a circumstance

high likely to lead to confusion. Your Honours,

the remaining passages on paragraphs 7, 8 and 9 are

self explanatory. Yes, thank you, Your Honour.

MASON CJ:  Yes, thank you, Mr Foley. Yes, Mr Sturgess.

MR STURGESS:  Your Honours, I hand up copies of our outline

of submissions.

(Continued on page 36)

C2T33/2/HS	35	FOLEY	10/8/88
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MASON GJ:	Yes.
MR STURGESS:	Your Honours, before I deal with the submissions

so outlined, I would like to make some remarks about

the conduct of the trial as has been referred to.

Your Honours may be under the misapprehension that

at this trial the issue whether or whether there had

been a conspiracy was a submission that was immediately

put and continued throughout the trial. Now,

Mr Nase and I were not there, but the situation can be

adequately assessed from a perusal of the record.

It commenced with an application by the counsel for

the applicant to sever the counts in the indictment.

In the course of that application submissions were made

that the similar fact evidence that the prosecution

contended could be adduced in this matter was not true similar fact evidence and so the argument developed in

relation to that.

Whether or not there was any mention made of the

possibility of conspiracy, we cannot say, the record

is silent on that, but certainly His Honour, in

His Honour's ruling, makes no record - no mention,

rather, of an argument of that nature being addressed

to him. There was no application for a voir dire to

consider the rnatter_rnade by Mr Zillman, who appeared for

the applicant. Now, the trial eventually got started

and, according to our perusal of the record that

Your Honours have, ,and I ~ld be obliged · that my learned friend

would correct us if I am wrong here - only one of the

boys, Shane, had it put to him that he had concocted

his evidence in the course of collaboration with the

others. With respect to David and Christopher, there was

no such question put to them.

During the trial no application was made to

His Honour that His Honour should stop the trial and

reject the similar fact evidence because of the evidence

that emerged regarding the opportunities the boys had

to put their heads together. Nothing like that

happened.

(Continued on page 37)

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MR STURGESS (continuing):  Now, it may be also of interest

to Your Honours if I give you, very quickly, the

references in the transcript to the accounts given

by the three boys and the responses by the applicant.

I will give these references to Your Honours in the

order in which the evidence was introduced at the

trial. David's account appears at pages 13 and 14

of the transcript. The applicant's response to his

allegations are to be found at pages 83 and 84 of

the transcript. David's account, of course, related

to the first count in the indictment and the case

was that the matter that he complained of occurred

on 18 December 1986.

BRENNAN J: David's is the first, did you say?

MR STURGESS: First to give evidenc, Your Honour.

BRENNAN J: Yes, third count.

MR STURGESS: Third count, yes.

BRENNAN J:  Yes.

MR STURGESS: First to give evidence, third count, and the

incident occurred on 18 December 1986. Now, the

next complainant child in the order in which they

gave evidence was Shane. His evidence is to be

found at pages 39 and 40 and his complaint

constituted the second count in the indictment

and it was claimed that the things that he spoke

of occurred on 20 January 1987. The applicant's

response to Shane's allegations is to be found

at pages 89 and 90 of the transcript. Christopher's

account which constituted the first count in the

indictment related to events said to have occurred

on 14 January 1987 and his evidence with respect to

that is at pages 54 to 56 and the applicant's

response to the allegations of Christopher is to

be found at pages 85 to 86. Shortly put, each boy claimed that he was

undressed in a room alone when the applicant entered

that room and the sexual activity that was the

subject of the allegations then occurred.

(Continued on page 38)

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MR STURGESS· (continuing):  Your Honours, if I could turn now

to the submissions outlined in the document that

I have handed up. We do not propose to make any

further submissions in relation to what is set

out in paragraph l(a), namely,that deals with the submission that a criterion of admissibility with

respect to similar fact evidence is that there

must be no possibility of collaboration and

concoction. In our examination of the authorities

we cannot find anything at all to support that

in anything that has come from this Court.

We go now to 1 (b): there are, in BOARDMAN,

two dicta to that effect that have been referred

to, t'he dictum of Lord Wilberforce and the dictum

of Lord Cross,and our learned friend has also referred
today to the decision of the Ontario High Court

in the case of COLLEGE OF PHYSICIANS AND SURGEONS.

Your Honours, if I could go to the reasons of Lord Wilberforce in BOARDMAN, firstly.	I go
to page 444 of the report.	From about line D,

or just above it, that passage has, in fact, already

been read to this Court by our learned friend and

I do not propose to reread it. But one goes from

there across the page, commencing at the first

paragraph of page 445. Your Honours wi 11 see that

T36 His Lordship had this to say:

The present case is ..... right on the

border-line. There were only two relevant

witnesses, Sand H.

Then he dealt with the striking similarity and

so on.	Then he finished with this sentence which,
in our	submission, gives meaning and provides

understanding to what went before.

The judge dealt properly and fairly with

the possibility of a conspiracy between the

boys.

This, plainly, is a reference to the trial·judge's

summing up to the jury that is referred to at other

places of this judgment, particularly in the judgment
of Lord Morris at page 441, the last paragraph on

that page is the relevant passage: His Lordship

said:

The learned trial judge left the matter

fairly to the jury. He mentioned the

possibility of two people conspiring

together and he examined the question whether

there were or were not any indications that

Sand H had conspired together. That was

important because one question which the

jury may have wished to consider was whether

C2T37/1/SDL	38	10/8/88
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it was against all the probabilities, if

the appellant was innocent, that two boys,
unless they had collaborated, would tell

stories having considerable features of

similarity.

We would submit then that the proper interpretation to be placed upon the judgment of Lord Wilberforce

was that he was not suggesting it was a criterion

of admissibility but it was a matter that

could properly be taken into account in considering

whether or not the judicial discretion ought to

be exercised. Our submission is we resist the

notion that this test, whether or not there is

any possibility of concoction, has now entered

the law as a criterion of admissibility with respect

to similar fact evidence.

(continued on page 40)

C2T37/2/SDL	39	10/8/88
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BRENNAN J:	Coming back to the basic principle, Mr Sturgess, the evidence prima facie is inadmissible unless it gets in under an exception and in order for it to get in, it must have a cogency which warrants its
admissibility.
MR STURGESS:	Indeed, Your Honour.

BRENNAN J: And, if on the facts of the case the judge cannot

be satisfied about that cogency then it does not get

in.

MR STURGESS:  Yes, Your Honour.

BRENNAN J: Well, then, if on the facts of the case because of the possibility of concoction the judge cannot

be satisfied of conspiracy, it does not get in.

MR STURGESS:  Yes, that would be our submission. That is, in

fact, our submission. It is one of the matters that

may be considered when considering whether or not there is this strong probative value in the - - -

DAWSON J: Well, that is not the exercise of a discretion.

MR STURGESS: Well, we have actually put it in the alternative.

We have submitted in this outline that it is there
that it finds its place or it may finds its place
in the consideration of whether or not there is this

strong probative value attaching to the evidence. If

we are wrong in that, we say, in effect, that it is

a matter properly to be looked at when considering

whether or not, although the first test is passed,

the judicial discretion ought to be exercised.

There is probably a distinction without a difference,

Your Honour, but it does not exist as a separate,

identifiable criterion for admissibility. It is

what we are in here to submit and no more than that.

BRENNAN J: Well, the onus, then, rests upon the prosecution?

MR STURGESS: Well, it depends whether or not you regard it as

a consideration when you look at the evidence to
determine whether or not it has this strong probative

value. In such a case, if it belongs there, the onus

would be on the prosecution. If it does not belong

there, it belongs in the discretionary rule. The

onus would be on the person who seeks the exercise

of the discretion. I said it would be a distinction

without a difference but I was wrong. There

would be that distinction because the onus would

shift. But Your Honours would appreciate that in
every case there is an evidential onus on the

defence to raise this matter.

C2T38/l/SH	40	10/8/88
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BRENNAN J:  My question was not directed to the evidential

onus.

MR STURGESS:  No, I appreciate that, Your Honour. So, that

is probably the only practical result that flows

from putting it here or there or in both places.

(Continued on page 42)

C2T38/2/SH	41	10/8/88
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MR STURGESS (continuing):  The English authorities,

SCARROTiand, I believe, LUNT seems to suggest that

it is part of the discretionary process.

BRENNAN J: Is there material in this case on which the

judge could be satisfied?

MR STURGESS:  That is the point, if Your Honour pleases.

We would submit that - he had the depositions which 'he had not read and he was given certain

information based upon the contents of the

depositions which we do not have because it was

not recorded but that is all there was to it

and reading the record we would submit a proper

interpretation would be that if it was even mentioned,

at this stage, this matter of a possible conspiracy

was only mentioned in passing. I repeat, it

is not even referred to by His Honour in giving

his reasons.	I believe they are at page 7 of
the transcript.

Yes, right at the top of the page His Honour

gives his reasons and there is no mention of

this issue at all. If we could emphasize this,

it is not returned to and there is no application

made at a later stage. Now this evidence has

emerged that our learned friend relies upon to

do something about this evidence and to stop

the trial. Two of the boys were never even asked

about the issue.

MASON CJ:  But we do know that BOARDMAN is referred to

and one would have thought that if BOARDMAN was

referred to in the course of argument the reference

was directed to this question.

MR STURGESS:  BOARDMAN - there was a lot said in the judgment

of BOARDMAN and, with the greatest respect,

Your Honour, I do not know whether that would

be a safe inference in the circumstances. We

would submit that in the case of Lord Wilberforce,

he did not, in his judgment, for the reasons

we have given, seek to elevate it to a criterion

for admissibility.

MASON CJ:  I know that but that is to return to your first

point.

(Continued on page 43)

C2T39 /1 /ND	42
10/8/88

MR STURGESS:  Yes. Lord Cross did, we concede that, although

the Court of Appeal did not in, I think,

SCARROTT and LUNT case; it suggested that it was

obiter merely. But we do not seek to make that

submission. It is correct that Lord Cross did, in

our submission -our reading of what he said -seek

to elevate it to a criterion for admissibility but

nobody else did. He is alone in that view of the

judges who looked at BOARDMAN.

WILSON J:  Any consideration of the matter from the point of

view of principle would tend to support Lord Cross,

would it not?

MR STURGESS:  We would submit that everything is against providing him with that support.

WILSON J:  Why? When you have got young children that were in

close association with each other, living with each

other, and the various other factors referred to,

the absence of any corroboration independently of those
chidren, does it not scream out as a criterion

affecting the admissibility in cases such as that?

MR STURGESS:  Unless I have misunderstood Your Honour, we

would submit the reverse. It would mean that in

the case of a person who committed offences on the

members of one family and did so privately with each

person upon whom he committed the offence, that no

prosecution could ever be brought; no effective

prosecution could ever start. Even a scoutmaster

who preyed on the members of the troupe, provided

he did so when each victim was by himself, could

do so with impunity, and so it would go on.

DAWSON J: Well, he could bring the charges separately.

MR STURGESS:	I beg Your Honour's pardon.
DAWSON J:	The charges could be brought separately.

MR STURGESS:  But the practical result would be it would be a

futility. There you would be with the child speaking

about this conduct and, presumably, the defendant

denying it and the rules of, you know,

prudence relating to the need for corroboration would

destroy that prosecution as an effective prosecution.

(Continued on page 44)

C2T40/l/VH	43	10/8/88
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MR STURGESS (continuing): With the greatest respect, there

are many real reasons in the real world why what

Lord Cross said there should not be regarded as

stating the law for that community.

WILSON J:  The concern that you have rightly drawn attention

to in answering me, of course, gives weight to the

test of speculative possibility as not being

sufficient.

MR STURGESS:	Yes.
WILSON J:	But surely if the case shows it up as a real

chance -

MR STURGESS:  Yes, well, Your Honours, we do not resile

from this, that somewhere or other, if the

evidence - not suggestions from the bar table -

but if the evidence shows that there is a real
possibility, the judge may well then, and is

entitled to, interfer to reject it.	We do not
shrink from that.

BRENNAN J: If the circumstance is revealed by the

evidence.

MR STURGESS:  Yes, but it is not just collaboration. It

must be a real possibility of concoction that must
be shown and then the judge may intervene, if it
is shown, depending upon the circumstances.

It is for him. That states the law, but it does not exist as a criterion by itself, the criterion

of admissibility. And that is really, Your Honours,lar3ely,

all we have come to say in answer to these submissions.

That Ontario case really is by itself, and

some examination of it would show that it is really
a special case and probably T.heir Honours in that

case were seeking to exercise the discretionary

power. They did not, in fact, regard the

possibility of concoction, whether real or

speculative, as a criterion of admissibility. If

judgment, commencing about point 2 of the way down	I could take the Court to pages 428 and 429 of the
page 428. See how special the facts were here?
Apparently the doctor's problems arose out of
allegations,by two women that he had had sexual relations with them and they had been patients
when he had commenced the seduction. Anyway,
these are the special facts for that special case:

It is a fact that there was an occasion

when both of these women were together, to

talk over their problems concerning Dr. K, and

there is this somewhat striking series of

facts. Apparently, Ms~ S.A.H. withdrew her

complaint and went to Albertain 1979; apparently

C2T41/l/JM	44
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Ms. C.B. had persuaded her not to continue in

the prosecution of Dr.K. Then Ms. C.B. lived

in a connnon law relationship with Dr .. K. and

got involved in a property dispute with him;

and in the throes of that property dispute

she laid a charge of professional misconduct

against him; and the record persuades me that

it was she who was instrumental in resurrecting

the complaint of Ms. S.A.H. and in persuading

Ms. S.A.H., ultimately, to come back and give

evidence against Dr. K.

Now, a situation like that is far removed from the

situation here. You have got three young boys

who, because of some misfortune live together in
a home, Tufnell Home,and because of that they are
in communication regularly with each other, and
in the case of two of the, of course, they are

brothers.

Anyway, to go to the foot of that page and

over the following page to the end of the paragraph

that starts at the foot of that page, we see this:

There is no indication on the record in the reasons fqr decisio~ of the disciplinary

tribunal tha..t they warned. .. tilemsel ves in

accordance with the principles of the BOARDMAN case. They found that there was no concoction or collusion as between the complaining women.

With respect, as I read the BOARDMAN case,

the test is whether there would be a reasonable

apprehenshion of collusion.

I emphasize this:

In my view the prejudicial effect of permitting

the adducing of similar fact evidence at the

hearing, or hearing the complaints of both

women at the same hearing, would overcome any

probative value that that evidence might have.

Consequently, I have concluded that the hearing

is vitiated, as is the decision of the

disciplinary tribunal.

So, that is the reason that was given; not by itself

a criterion of admissibility. But, its existence

would overcome the probative value.

WILSON J:  So it plays its part in the assessment of the

cogency of the evidence that is to be considered

in determining whether the evidence is admissible?

MR STURGESS: Indeed, Your Honour, Or, alternatively -

and there is no guidance in the authorities, except

the English authorities of SCARROT and LUNT- it

may be said it does not play a part there but it

is something that can be considered in the

discretionary power.

C2T41/l/JM	45
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MR STURGESS (continuing):	Perhaps it would provide more

harmony and logic in the law, and particularly

in a subject where logic is somewhat lacking,

if it went in the discretionary basket, as it were,

because it would put the onus on the person who

alleged the existence of collusion to come forward

with some evidence about the matter. You see, if

you did not put it there there are profound

practical difficulties at the trial level that

might arise.

BRENNAN J:  Those practical difficulties only arise

because the prosecution see fit to join the counts

in the indictment.

MR STURGESS:	This evidence would have been called whether or not there were three counts, Your Honour, one
would imagine.
BRENNAN J:	Precisely.
MR STURGESS:	To call similar fact evidence.
BRENNAN J:	The practical difficulties that you speak of,

which is the voir dire before plea, or perhaps
after plea but before any further steps are taken

is simply because of the joinder.

MR STURGESS:  I say this, Your Honour, with the greatest

respect to the Court - one has to be careful about
these things because it can lead up to all sorts
of things like very, very lengthy voir dires,

before the comencement of anything, even the

arr a i g nm en t o f the a cc us e d . I f you p u t i t in t he

first basket with the onus on the prosecution,
it only requires then for the defence to stand up

and say, "We object on the ground of a real

possibility of the conspiracy". The prosecution

then receives the onus and just as it does when

there is an objection to the admissibility of

confessional evidence on the ground that it is

and that could, with the greatest respect, cause	involuntary, and away the prosecution must go,
all sorts of practical difficulties in the
administration of the criminal courts.

BRENNAN J:  Mr Sturgess, if the prosecution laid but one

count in the indictment, that problem does not arise.

MR STURGESS:	Indeed, Your Honour.
BRENNAN J:	If the prosecution sees fit to put more than one

count in the indictment, then the problem may arise.

It can be avoided perhaps by taking a plea to the

indictment as a whole, standing over the application

for separate trials, if that might otherwise

C2T42/l/HS	46	10/8/88
Hoch

be thought appropriate, and dealing with it in
the usual way, dealing with the admissibility

of evidence to be called.

MR STURGESS:  Yes, but it is not the joinder of multiple

counts that causes the problem. The problem is

the tendering of similar fact evidence. That is

where the problem arises, and that problem - - -

(Continued on page 48)

C2T42/2/HS	47	10/8/88
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BRENNAN J:  The stage at which the problem can arise follows

from the j oinder of the counts. Now, if there is no

joinder of counts, the problem only arises when

the evidence is sought to be tendered and that

is a familiar problem of voir dira;.

MR STURGESS:	Yes, it will, indeed, I accept, of course, what Your Honour says but it is going to rise one way
or the other and when you have a joinder of multiple
counts, it will arise before the trial even starts because there is no arraignment, as Your Honour
knows. In Queensland, the defendant has to be arraigned and plead before the trial conunences but, if one were to charge just the one count, it
would arise fairly soon in the matter, probably before any evidence was caused.

BRENNAN J: Yes.

MR STURGESS:  So, this matter of what basket it finds its

place in is a matter that should be looked at, bearing in mind the practical difficulties in the trial and perhaps this runs counter to an

earlier submission I made that we really did not

care in what basket it was placed. Upon

reconsideration of that, we would submit it

should go into the second basket, the discretionary

basket. So that the onus goes where it belongs, on the person who says there was conspiracy here

and it would require that some evidence be adduced

before the argument became a very long, drawn out

affair.

You see, Your Honours, if that were not the

situation, if it went in the first basket, in many

cases the prosecution would probably be required

to call all the evidence it would call at the

trial before the trial judge in the course of a

voir dire. It is usually in these cases, what

do you have except complainants and a mother or

two in some cases, to speak about the age but it

breaks the case. That is something of a spectre,	is the evidence of the complainants that makes or
in our submission, and the difficulties there are
referred to in Cross on Evidence. They have not
emerged thus far but they can emerge in the future.
Well, Your Honours, if I strayed away from what is contained in this outline - but probably
the submissions I have made thus far cover the
earlier matters. We would submit, finally, in
relation to l(b) that if that is what Lord Cross
said in BOARDMAN, that it was a criterion, he was wrong and we would submit, with the greatest respect,
that the Court in SCARROTT and LUNT got it right.

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MR STURGESS· (continuing): l(c) really does not require any

further elaboration by us. The expression that,

'The proper approach is to exclude such allegedly

similar fact evidence where there is any real chance

of collaboration amongst the different complainants",

found its place in the affidavit that was filed

here in support of the application. There is more
than a possibility of collaboration; there has
got to be a real chance of concoction because,
of course, collaboration does not always result
in concotion.

Your Honours, what we have set down here

in paragraph l(d) has already been referred to
by me in response to certain questions asked of

me by Justice Brennan, so it is unnecessary that

I make any further submissions there.

l(d)(ii) probably has little value if the

expression "a real chance of collaboration amongst

defendants" is not used if it is understood that

it means a real chance of concoction. l(e) is

based upon certain passages in the case of SCARROTT

and the passage that we refer to and rely upon

particularly commences at page 1026. From my

recollection this also has been read by our learned

friend so I will not read it. It commences at

line Fon page 1026 and goes over the page down

to the end of the paragraph that continues at the

top of that page down to line C. LUNT has already

been referred to and the passage that we rely upon

commences at the top of page 246, it is a very

short passage.

(continued on page 50 )

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MASON CJ:	What was that?
MR STURGESS:	I am sorry, Your Honours may not have that.

I have photocopies of it, however.

MASON CJ:  Thank you.

MR STURGESS: Yes, page 246, right at the top. This starts:

Counsel submitted that the warning

that the evidence might be tainted by

conspiracy or ganging up should be applied

by analogy in a case where the relevant

evidence was that of a single accomplice.

It is clear that care must be taken

where the "similar fact" evidence is

provided by an accomplice, but there is

no rule of law or practice which requires

a judge in the exercise of his discretion

to exclude such evidence automatically.

The fact that the evidence comes from a

tainted source is a factor to be taken into account. In the present case the

judge gave a plain warning about the

evidence of Samantha Bevis -

who was the accomplice in question. Your Honours,

paragraph 2 of the outline, again, is self-explanatory

and does not require the assistance of any submission

from me.

So, I could perhaps finish by coming to a

matter that has received some discussion in the

course of the submissions made by Mr Foley and

that is what did this similar fact evidence tend
to prove? If I could adapt some of the language

of Lord Morris in BOARDMAN, we would say this -

if I can take just one case; there were three

cases here, the case relying upon the complaint

9lf- David Llewellyn. The question raised in that

case was whether the presence of the applicant in

a room where the young boy, David Llewellyn, was

undressed and alone was for the purpose of unlawfully

and indecently dealing with him or merely marked the

innocent activity of a conscientious student teacher.

(Continued on page 51)

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MR STURGESS (continuing): That was the question that was

raised in the case and we submit that evidence that
the applicant, on two other occasions closely

related in time and place and in the course of the

same employment, had entered a room where a young boy
was undressed and unlawfully and indecently dealt
with him in a manner that was strikingly similar to

the manner alleged by David Llewellyn was of great

relevance in answering that particular question.

DAWSON J:	What was the relevance?
MR STURGESS:	Llewellyn's evidence, Your Honour.

DAWSON J:  No, what was the relevance? You said it was of

great relevance. How?

MR STURGESS:  Of great relevance. Well, before that evidence

was introduced the jury would have been in this situation:

they would have had the evidence of Llewellvn saying

this had happened, and the ·evidence of the applicant saying

that it had not happened. The only way they could

determine the issue was by having regard to that

evidence and no other evidence.	Now, introduce this
evidence into the case.	The jury was entitled to say,

well, there is new further information before us on

which we can test who is telling the truth.

DAWSON J: But that is the very thing that the rule is designed

to exclude. All that you are saying is, the further

evidence demonstrates this man had a propensity and

therefore he is the man that committed the offence

MR STURGESS:  With respect, Your Honour, I do not say that and I did not intend to say that at all.

DAWSON J: Well, what other relevance does it have?

MR STURGESS:  Well, the jury would be entitled to reason thus:

what are the possible explanations now for three boys

coming forward with a strikingly similar story?

Well, a possibility is that they had ganged up, to use

the language of LUNT, or conspired together. Another

possibility was that quite independently of each other

they had decided to make mischief for the student

teacher and separately invented the story against him.

The third possibility was that each was saying this

because it was true.

BRENNAN J: There is a proble~ about that thesis, though,

Mr Sturgess, is there not? What if one boy said that

it took place in his bed at night; one said that it

took place under a shower and one said it took place

on the beach, and the circumstances in which each of

the acts took place bore no similarity one to the

other, apart from the fact that there was an indecent

touching of a penis? Now, \\Otll.d that be a similar fact case and

if not, vtlat is the difference?

MR STURGESS:  No, on the authority of BOARIMAN, no, Your Honour.

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BRENNAN J: What is the difference in probative force 1n

the two instances?

MR STURGESS:  On the authority of BOARDMAN, of course, there has to be that striking similarity. That

is the law that has been laid down. But if there is the striking similarity one asks the question,

"Does this tell us something, and a great deal,

about the veracity of the person who tells that

story with that in-built striking similarity

as the boys who tell similar other stories?"

Its probative force has, with the greatest respect,

Your Honour, nothing whatsoever to do with

considering that the defendant is a person of

bad character.

It sheds light, and very good light, upon the veracity of the complainant because he is

able to tell a story that is strikingly similar

to other stories that have emerged and that is

the great relevance, we would submit, of evidence

of this nature, that it sheds light upon and

is capable of establishing the veracity of the

complainant in that particular count in the

indictment.

That is exactly what happened in this case.

That was the effect of His Honour's summing up

in this particular case. He advised the jury

to eschew any reasoning on the basis that here

was a person who had a propensity and to conclude

from that that there was a likelihood or a probability

that he had done a similar thing subsequently.

It went to an entirely different issue and that

was the independent probative value and that

is the independent probative value that will

nearly always appear where there is a case of

the reception of similar fact evidence.

DAWSON J:  My difficulty is in seeing any difference

between what you are saying and saying that because

he did it on occasion A it is more likely that

he did it on occasion B?

MR STURGESS:  A great deal of difference, with the greatest

respect, Your Honour.	You do not - putting any
attention on that situation.	The attention should

be brought to bear upon the veracity or otherwise

of the complainant. Does this tell us anything

about that boy's veracity? He tells a story

that contains details that happened to coincide

with the details provided by other complainants.

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MR STURGESS (continuing):	In this way light is shed upon

this question. Was the presence of the applicant

in the room when the boy was undressed and alone,

apart from the applicant, for the purpose of

committing some offence of indecently dealing, or

was his presence there to be explained on the basis

that he was just being conscientious?	If you
examine His Honour's summing up - - -

DAWSON J:  Then you are getting to innocent association

and rebuttal of that.

MR STURGESS:  Yes, indeed.

DAWSON J:  That is all right. I can understand it if you

put it on the basis of rebuttal of innocent
association, system, modus operandi, one or other
of the recognized heads, but I can not understand

it unless you do so.

MR STURGESS:  Your Honours, what I am saying is really no

different from an innocent association, a sort

of a system on the part of the - - -

DAWSON J:  But it is. You see, what you are saying is the

mere fact that on other occasions he committed these

offences is probative of the fact he committed it on the occasion in question, and that is the very sort of reasoning which the rule is designed to

exclude.

MR STURGESS:  No, with the greatest respect, that has not been

my submission. The fact that the boy is able to

describe these things in these details, if you
accept that he has previously done these things,

tells us a great deal about the veracity of the boy.

It tells us a great deal about the veracity of the

boy, that he is able to say these things. That is

its relevance.

DAWSON J:  It could only tell you something about the

veracity of the boy if it proves the fact which

the boy gave evidence about and you get back to base.

MR STURGESS:  It may tend to prove the veracity of the boy

in that fashion.

DAWSON J:  If the only way it can prove that is by

proving propensity, then it is nevertheless excluded.

MR STURGESS: 

Exactly, thank you, Your Honour, but we do not

suggest the propensity and His Honour the learned
trial judge did not put it to the jury on that

basis.  It is evidence that is capable of proving

other things, telling us a great deal about the

boy, the veracity of the boy and dealing with

this defence of innocent association that was set

up in this matter.

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WILSON J: This is not a case of where· the defence was innocent

association. The defence was a denial of the conduct.

MR STURGESS:  With the greatest respect, Your Honour, we

would submit that that is not the case. Denial

of the actual conduct constituting the offence,

that was denied, but the applicant admitted that,

as the boys claimed, on these three occasions he

had entered where they were alone.

WILSON J:	He did not have to explain that away.
MR STURGESS:	But he did.

WILSON J: .He denied the conduct.

MR STURGESS:  Yes, but the boys' story is not just to be reduced

to a mere allegation that this conduct occurred,

of touching them in this indecent fashion. The

boys' story was that, "One day or one night I was

alone, I didn't have my clothes on, or I was getting

undressed, or was about to get dressed, and in

came the applicant, alone, and certain things

happened." Now, the applicant admitted that association,

that he went into these rooms. One was a bedroom,

one was a shower, the actual shower room, and one

was the area just outside the shower room where

these boys were.	So he did say that, "My association
with the boys was innocent.	One occasion I went

in there to talk to Llewellyn because he'd been

rebellious and I wanted to coax him out of that

mood; on another occasion I went into the shower

to tell the boy to wash off some cream that he'd
been using to protect himself against the sun;

on another occasion I went into this place where the boy was to ask him to put some cream on me". So there was association.

If this term "association" is to mean the

actual criminal offence, there can never ever be

such a thing as an ."innocent association".	Where
the courts speak of "innocent association" they

mean that the actual presence together is admitted to
but the criminal conduct said to arise from the

presence does not occur and in this sense it can

be put on that basis as well. Many, many terms

are used to justify the use of this similar fact
evidence and we would use it - - -

BRENNAN J:  The difficulty may arise by failing to grasp

the nettle, Mr Sturgess, and say, "Of course the

evidence is admissible to prove propensity but not

mere propensity only propensity of such overwhelming

cogency that you can find that the act was done".

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MR STURGESS:  Well, with the greatest respect, Your Honour,

we do not make that submission, and would not make

that submission.

BRENNAN J: No doubt it is studded with dangers, but I am

not sure what the rule - the whole rule - is based

on if it is not based on that.

MR STURGESS:  It is difficult. Many minds have grappled with

this, too, to express it in language. Some minds have said it is not always possible to express in

language, it is something that the jury themselves

can comprehend from their orindary experience. But

evidence of that nature - and I am being repetitive,

Your Honour - can also tend to establish the veracity of the witness who gives that evidence because the details are such that he would not be able to give those details unless what happened to him - what he

claimed happened to him - had, in fact, happened to him.

You see, it is is somewhat analogous - I know this

Court is about to adjourn, perhaps I can conclude

before it does - it is somewhat analogous to the

situations that one sees these days with a very

young child being able to describe in exact detail

the sexual activity of the adult male. You know, you

look at that and you say, that has within it something

that tends to establish the veracity of that child,

because the child would not be in a position to

describe that activity unless it had actually happened.

In a somewhat similar way, so it is with similar

fact evidence in certain circumstances. How would

a person be able to say this with this detail unless

it happened? We knowing - we accept the other

evidence that this is what he has done on other

occasions?

I could add to the examples. If assault, ordinary

common assault, is under consideration, to prove

that the defendant had previously committed a common

assault tells us nothing, except, perhaps, that he is

of a pugnacious disposition, and that is really a

useless information to have in the court room in

the circumstances. But if it can be shown that he committed a previous assault in an unusual way, by
complaining that the victim was wearing spectacles

similar to mine, that was the reason for it, and

the complainant in the particular case claims that
this is what happened to him, too; now, that tells us

more than that the defendant is pugnacious by nature.

It tells us that there is a strong likelihood that

the person who now makes this claim is telling the truth.

BRENNAN J:  It tells you that he has got a propensity for hitting

people with glasses.

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MR STURGESS:	Your Honour, it is always possible to turn that back but it is not possible, in our respectful
submission, to say that because it establishes
that it cannot show anything else. It establishes
the veracity. And that is what the situation
was here and, also, to put it another way, it
rebutted this defence of innocent association.
That was the question that was raised. An innocent
association or a criminal association.

MASON CJ: Mr Sturgess, I think we had better adjourn at

this stage. We will resume at 2.15.

MR STURGESS:  Thank you, very much.

TSl	AT l.G4 PM LUNCH ADJOURNMENT
UPON RESUMING AT 2.22 PM:
MASON CJ:  Yes, Mr Sturgess. Had you completed your

argument?

MR STURGESS:  There are three brief submissions and then

I am completed. Your Honours, the first relates

excluded evidence of similar fact evidence where

to a submission that you heard from my learned

friend concerning what was decided in KILBOURNE.

there was a possibility of collaboration. With

respect to him, that is not the situation. What

happened in KILBOURNE was that the similar fact

evidence was admitted. In some instances there

was the possibility of collaboration and in others

not.

The question then arose as to whether or

not that evidence or some part of that evidence
could go to the jury as evidence to be considered
as amounting to corroborative evidence.

His Honour took the view, in that case, that

the similar fact evidence where there was no

prospect of collaboration could be submitted as

corroboration and it was in relation to that
ruling that the matter went through the appellate

courts.

The second submission relates to the remark

made by Your Honour Justice Brennan before we

adjourned about the desirability of adding in all those counts in these indictments and the

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problems that can arise in relation to that.

I should have added to my submissions made on

that subject that there are practical problems

if you do not because of the decision of the

High Court in CONNOLLY's case - CONNOLLY V THE

DIRECTOR OF PUBLIC PROSECUTIONS. You may be

stopped· from bringing those charges at a subsequent

time. If they are joinable they should be joined.

There is strong authority to that effect.

So if you have a case where there is similar fact evidence that you seek to rely upon it is

regarded as very advisable that the counts that

can be shaped upon that similar fact evidence

a1so go in the indictment.

(Continued on page 58)

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MR STURGESS (continuing):	Finally, Your Honours, to come

to this issue that Your Honours were looking at

before we adjourned, which is really the issue

that confronted the learned trial judge, whether

or not the similar fact evidence should have been

admitted as such, forgetting about the argument

of the possibility of collaboration and concoction.

Our submission is that the evidence was properly

admitted by the trial judge. Putting aside that

argument about whether or not a criterion of

admissibility is the prospect of concoction, we

would submit that the facts in this case were

really on all fours with the facts that the House

of Lords was considering in BOARDMAN. In fact,

it might even be an a fortiori case because in

BOARDMAN there was but one other complainant.

Here, of course, there were, in relation to each count, two other alleged victims who gave evidence in support of the matter.

We would submit that the language that was

used in a number of places in the judgment of the

House of Lords in BOARDMAN can be seen as very

apposite language to the factual situation here.

We refer firstly to what appears at pages 441 and 442

in the course of the judgment of Lord Morris.	The
last paragraph on page 441 is where I commence:

The learned judge left the matter fairly

to the jury. He mentioned the possibility

of two people conspiring together and he

examined the question whether there were or

were not any indications that Sand H had

conspired together.

All completely apposite here.

That was important because one question which

the jury may have wished to consider was

whether it was against all the probabilities

if the appellant was innocent that the two boys,

unless they had collaborated, would tell

stories having considerable features of

similarity.

Again, all that language can be applied here, and further down the same page, just above C, and

this was some of the language that I adapted in

earlier submissions:

The question is raised whether the visits at night

merely marked the innocent activity of a
zealous schoolmaster whose association with

those in his charge and under his care made him solicitous for their welfare or whether the evidence negatived any such innocent

explanation.

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MR STURGESS (continuing):	Here again, that language can

be almost exactly fitted into the circumstances
of this particular matter. Then in the judgment

of Lord Wilberforce at page 444 is language that

also can be exactly matched to the facts of this

particular matter. Commencing just above letter B

where SIM's case is quoted - and SIM's case was

not overruled, of course:

The probative force of all the acts

together is much greater than one alone;

for, whereas the jury might think that

one man might be telling an untruth,

three or four are hardly likely to tell
the same untruth unless they were

conspiring together. If there is nothing

to suggest a conspiracy their evidence

would seem to be overwhelming.

And further down a passage that has already been

read, but for a different reason, commencing at

line D:

This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear

to each other such a striking similarity

that they must, when judged by experience

and common sense, either all be true,

or have arisen from a cause common to the

witnesses or from pure coincidence. The

jury may, therefore, properly be asked to

judge whether the right conclusion is that

all are true so that each story is supported

by the other(s).

Again, we would submit that that can be applied

exactly here. And, finally, I return to the

submission I made shortly before lunch that

evidence of this description goes beyond showing

mere propensity on the part of the man in the dock.

It also can shed light upon the veracity of the

person who was making the complaint, or the persons

who are making the complaints, and that is in exact

accordance with what was decided in BOARDMAN's case,

we would submit. So, with the greatest respect,

the facts in BOARDMAN's case are almost identical,

at least bear a striking similarity to the facts

here, and the reasoning in the various judgments

applies exactly, with one exception, in our

submission, and that exception is the dictum of

Lord Cross where he says a criterion of admissibility

is that there can be no prospect of concoction,

or something to that effect.	So we rely upon
BOARDMAN's case.	I have no further submissions
that I wish to make.

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MASON CJ:	Thank you, Mr Sturgess.	Mr Foley?
MR FOLEY:	Yes, thank you, Your Honour.	I just have three

short matters. Dealing with the last point

addressed by my learned friend, Mr Sturgess, so

far as my learned friend's assertion that this

Court can derive assistance from the decision in

BOARDMAN by having regard to its facts, facts

which my learned friend described as almost

identical with the present case, I simply refer

Your Honours in that regard to the nine factors
which are set out at pages 3 and 4 of my outline

of submissions, some of which may be on fours with

BOARDMAN but a number of others of which are present

in this case which were not present in BOARDMAN and,

in any event - including the age of the boys, their

relationship, the evidence of motive and ill will,

evidence of inconsistencies and so on. Furthermore,

the trial counsel in BOARDMAN's case did not seek

separate trials and, accordingly, this question
did not arise in the way in which it arises in

the present case.

So far as criticism was made of the trial

counsel for the accused in not formally putting

the conspiracy allegation to each of the boys, it

was, of course, put to the defendant S. It was not

put in so many words to the other two boys but it

is plain from the transcript that conspiracy was

very much a part of the defence case. Indeed,

His Honour addressed the jury on it at pages 121

and 122. The case for the defendant, that is, that

the particular acts were denied by the defendant,

was well and truly put to each of the complainants.

Indeed, one of the complainants, D, at page 34 line
5, made a denial of discussions with the other

complainants about the matter and, accordingly,

it was superfluous in his case to have put the
ultimate allegation.

The relevant facts upon which the inference the boys; those facts relating to their prior

of conspiracy was drawn were all put to each of

ill will, to the circumstances surrounding their

complaints, to the intra-group discussions.

(Continued on page 61)

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MR FOLEY (continuing): All of the relevant facts were put.

There is no duty to put the final inference.

Criticisms have been made of the trial counsel

for not so doing. He did in one case, in my respectful

sumbission - a reading of the transcript indicates
that he put all of the facts that were necessary
to be put and there could have been no doubt in

the conduct of the trial what the defence was saying.

Finally, in so far as my learned friend urged

upon the Court the view that there be some evidence

of concoction rather than mere collaboration as

an appropriate test, I hark back to the cautious

remarks of Lord Wilberforce where His Lordship

adverted to the singular influence which can be

brought about because of the influence of media

and publicity. In my respectful submission, that

force is no less great in 1988 than it was in 1974

when His Lordship made the observation.

Thank you, Your Honours.

MASON CJ:  Thank you, Mr Foley. The Court will consider

its decision in this matter and adjourn until 10. 15 am

tomorrow.

AT 2.35 PM THE MATTER WAS ADJOURNED SINE DIE

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