Hunter v The Queen

[1990] HCATrans 276

_.

-lo, AUSTRALIA & -).).~)'~««.','-(!

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S137 of 1989

B e t w e e n -

GARY LEE HUNTER

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Hunter 1 15/11/90

AT CANBERRA ON THURSDAY, 15 NOVEMBER 1990, AT 10.21 AM

Copyright in the High Court of Australia

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned	friend, MS R.W. BURGESS, for the
applicant.	(instructed by M. Richardson, Legal Aid
Commission	of New South Wales)

MS W.L. ROBINSON, QC:  May it please the Court, I appear

with my learned friend, MR W.G. ROSER, for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

BRENNAN J:	Mr Hidden?
MR HIDDEN:	If the Court pleases. Your Honours, this is an

application for special leave to appeal from a

judgment of the Court of Criminal Appeal of

9 November 1989 dismissing the applicant's appeal

to that court against his conviction on a number of

sexual assaults and related offences. Might we

hand up to Your Honours an outline of argument?

BRENNAN J:  Thank you. Mr Hidden, having regard to the

outline of your submission and the mass of the
material that would be necessary to be digested in

order to give effect to them, it may be that the

first question which you would need to address

would be that of special leave.

MR HIDDEN:  Yes. Your Honour, might I just say at this

stage, in terms of the mass of material which would

need to be addressed, we have brought with us the

chart of similarities and dissimilarities to which

reference was made in the judgment of the Court of

Criminal Appeal. It was apparently not practicable

to print that in the application book and we have

copies with us should we get to that stage.

Your Honours, basically what it is asserted

here is the special leave point is that the Court

of Criminal Appeal has misapprehended what this

Court had to say in Sutton about similar fact cases

based upon, to use Your Honour Justice Dawson's

words, "an accumulation of common circumstances". It is our submission, Your Honours, that the

common circumstances present in this case are no

more than the stock in trade of offenders of this

kind and the court has failed to apprehend, as we

would submit this Court intended to say in Sutton,

that where there is an accumulation of common

circumstances that accumulation itself must be

striking.

There are similar fact cases where one or two

features leap off the page. There can be similar

fact cases where no one feature leaps off the page

but the accumulation does. And nothing in Sutton

suggests that you can have an accumulation of

Hunter 2 15/11/90

circumstances which are either commonplace or the

stock in trade of offenders of a particular kind

and construct from them a similar fact case. The

accumulation must still be itself remarkable and,

again, perhaps to use the words with which

Your Honour Justice Dawson expressed it, it must be

such as to leave no reasonable hypothesis of

coincidence.

It is our submission, Your Honours, that the

Court of Criminal Appeal has failed to appreciate

that aspect of this Court's judgment in Sutton and

for that reason it may be that this Court's

judgment in Sutton needs to be further explained in

the administration of criminal justice. That is

the primary point, Your Honours.

McHUGH J: But the Court of Criminal Appeal expressly cited

what Mr Justice Dawson said in Sutton so how did

they misapprehend it?

MR HIDDEN:  I suppose we can only say, Your Honour, by the

way in which they applied it. True it is, it was

referred to, Your Honour, and the relevant passages

- perhaps it is necessary to go to Sutton,

Your Honours, immediately.

TOOHEY J: That is the difficulty is it not, Mr Hidden, that

it is not a matter of going to the judgment of the

Court of Criminal Appeal and pointing to some

misstatement of principle. To make good the

special leave nature of this, it seems that you

would need to take us to the chart and take us

through all the similarities and dissimilarities in order to invite us to conclude that applying Sutton

there ought to have been separate trials.

MR HIDDEN:  Your Honour, with respect, I think we would have

to do that, yes. We do submit, that this case is

significantly distinguishable from Sutton.

TOOHEY J:	The difficulty with that approach is that what you describe as a special leave point in the end
may turn out to be nothing more than this Court
going through the same exercise that the Court of
Criminal Appeal went through perhaps arriving at
the same conclusion; you would urge us to arrive
at a different conclusion.

MR HIDDEN:  That is certainly so, Your Honour. The other

aspect of the matter which, we do submit, calls for
special leave, is the treatment by the Court of

Criminal Appeal of the dissimilarities which there were in the case which, we submit, is significantly

in error and is not a matter which, as we apprehend

it, on which this Court has specifically

pronounced. Very shortly, Your Honour, on that

Hunter 15/11/90

aspect, perhaps if we could shortly detail the

history of the proceedings, Your Honours will have

observed that prior to the trial an application was

made for separate trials, that is, separate trials

of the counts relating to each complainant.

The learned trial judge, correctly, was of the

view that separate trials would have to be ordered

unless the case were a similar fact case and

correctly applied the reasoning of this Court in

Sutton and De Jesus to which he expressly referred.

Before His Honour were the statements of the

seven complainants together with their oral
evidence in the committal proceedings. In dealing

with that application, if I could take Your Honours

to volume 1 of the application book, at page 243.

It is there that His Honour dealt with the

pre-trial application and His Honour went on to
consider the similarities that there appeared between the different sets of counts. At the
bottom of page 244, His Honour said - this is at

line 28, Your Honours:

There are also points of distinction which, if the evidence were accepted literally would

mean that the crimes could not have been

committed by the same person. However these

differences are basically concerned with

observations of the assailant in situations

where some inaccuracies are to be expected and

I do not regard those distinctions as

conclusive.

Now, a significant difference, of which

Your Honours would be aware if Your Honours are

sufficiently familiar with the evidentiary

material, was that in four of the seven cases the

women said that the man had a distinctly Australian

accent - "an ockery accent" was the expression used

by some of them. One woman could not comment on

the accent but could say no more than that the

voice was a distorted whisper.
Two women, Ms Elsworth and Ms Warren,
distinctly said that the accent was foreign.	Now,

in that regard, His Honour, in considering that, in

the - - -

TOOHEY J:  Can I just interrupt you, Mr Hidden. You said

four of the complainants, did you mean four or

three?

MR HIDDEN: Four, I believe, Your Honour.

Hunter 15/11/90

TOOHEY J: Well, there were two complainants in respect of

whom there was a verdict by direction, one of whom

the jury found the accused not guilty.

MR HIDDEN: Yes.

TOOHEY J:	Where is the fourth?
MR HIDDEN:	I am sorry, Your Honour, I am considering at this stage - as we are considering the pre-trial
application - the evidence relating to all seven
complainants.
TOOHEY J:	So you say there was one complainant whose

evidence indicated an Australian voice?

MR HIDDEN:	No, four, Your Honour; four complainants.
TOOHEY J:	Putting the three to one side which I have just

mentioned, the other was one in respect of whom a

verdict of guilty was found.

MR HIDDEN:  Your Honour, two of the complainants who spoke

of a foreign accent were the subject of verdicts by

direction. The third complainant who could not

comment on the accent one way or the other was

acquitted by the jury.

McHUGH J:	Did she not describe his voice as "ethnic"?
MR HIDDEN:	She did initially, it seems, to the police,

Your Honour, but then resiled from that before

committal and said, "I could not say it is ethnic.

All I could say it was distorted and a whisper, and

I cannot say whether - - -

McHUGH J:	Well that was subject to the acquittals by the jury on counts 11, 12 and 13, were they not?
MR HIDDEN:	Yes, Your Honour. That was Ms Halford.
BRENNAN J:	Mr Hidden, no doubt we could look at your chart to answer these questions, but could I ask you
first what is the special leave point that you are
making in regard to this?

MR HIDDEN:  The point is this, Your Honour. In effect,

His Honour was aware of those differences, he was aware of the dissimilarities between the accounts

of the different complainants and, in particular,

the significant dissimilarity and description of

the voice but said, in effect, "The evidence in the

trial might explain these. There may be

inaccuracies in the women's description", and in

particular at page 248 he said at line 3:

I think that they -

Hunter 15/11/90

meaning the jury -

would be entitled to accept that some mistakes
were made, to be aware that voices can be

disguised, but to accept the accuracy of the

general descriptions of a man of something

less than middle-age but of noticeable

strength and muscularity.

Now, Your Honours, the Court of Criminal Appeal

itself - - -

BRENNAN J:	What is the point you are making, Mr Hidden?
MR HIDDEN:	I am sorry. The point is this, Your Honour.

The Court of Criminal Appeal held that the judge

was not in error in, in effect, papering over

dissimilarities by saying, "Well, the evidence in

the trial might explain them."

Our submission is that at the time of the pre-

trial application His Honour was bound to look at

the material then before him, and if significant

dissimilarities appeared it was not open to

His Honour to say, "Well, in some speculative way

those dissimilarities might disappear when we hear

the evidence of the complainants." He was bound to

determine whether the case was a similar fact case

on the material then before him, and in so far as

the Court of Criminal Appeal sanctioned the process
of the learned trial judge saying, "Well, those
dissimilarities might be explicable when we hear

the evidence of these women", that court was

significantly in error, we would submit,

Your Honour.

The question which arises is how the trial

judge considered an application for separate trials where the similar fact issue arises ought deal with the material then before him, and how in particular

he ought deal with dissimilarities which do appear

on the material then before him.

BRENNAN J:  And what is the proposition of law for which you

contend?

MR HIDDEN:  That he must deal with the material as it

appears before him, and he is not entitled to, in effect, Your Honour, speculate that that material

might come out differently when the evidence is

given in the trial. Of course, in this trial,

Your Honours, nothing changed. The evidence of

every complainant was in no relevant respect any
different from the evidence in the committal

proceedings which His Honour had before him at the

outset. Indeed, in the case of Ms Warren, in

respect of whom there was a directed verdict, she

Hunter 6 15/11/90

was not present at the trial and was overseas, and

her evidence at the committal proceedings was read.

We had the most unusual development in this

trial, Your Honours, that in respect of Ms Elsworth

and Ms warren who spoke of the strong foreign

accents, His Honour at the beginning of the day was

prepared to allow those counts to be tried along

with the others on the basis that the similar fact

principle applied, and despite that significant

difference from the others; and yet at the end of

the day when nothing had changed, found himself

compelled to direct verdicts in respect of them.

BRENNAN J: But it is right to say there was only one issue

in the trial and that was identity, is it?

MR HIDDEN:	Yes, that is correct.
BRENNAN J:	So that even if evidence of other rapes was

admitted, it was admitted only with reference to

that point?

MR HIDDEN: Yes, it was a classic case of similar facts to

prove identity.

BRENNAN J:	And ultimately there was a verdict by direction in relation to those two cases?
MR HIDDEN:	Yes, Your Honour, that is so. And yet their

trial had proceeded jointly with the other counts

and nothing had changed in the course of the trial

to make the similar fact case in respect of those

counts any stronger or weaker than it was at the

outset.

McHUGH J: But even if you are correct in saying that those

counts should not have been joined, what

miscarriage was there? Either there was a direct

verdict or there was a verdict of acquittal from

the jury.

MR HIDDEN:  Your Honour, the miscarriage, we submit, is that

which is inherent in the principle which this Court
has enunciated so many times, that in sexual cases where the similar fact principle does not apply to

counts relating to different complainants, the

counts ought to be tried separately. And this

Court says that because of the real danger of

miscarriage if they are tried together because of
the impermissible prejudice resulting from that.

DAWSON J: That is only because of the probability that the jury will assume that if he did it on one occasion

he did it on another but once you have excluded him

Hunter 7 15/11/90

altogether from the two cases in which an acquittal

was directed, they cease to be relevant.

MR HIDDEN: But, Your Honour, the fact remains the jury has

heard the evidence. The case has been run from the

outset as a case whoever did one of these did the

lot of them.

DAWSON J: But the judge says, "Well, that can't be so or at

least you can't be satisfied that these two.	Put
them out of your mind."

MR HIDDEN:	Yes, but, Your Honours, in our submission, what one is left with then is a case in which at least
two sets of counts should never have been joined and one can say, in this case, from the outset they
should never have been joined.  So the
impermissible prejudice is there and we would
submit, Your Honour, that no direction from the
trial judge, however careful, could remove it.
BRENNAN J:	Mr Hidden, is it right to say that your special

leave points are these, that where there is an

accumulation of commonplace factors relied on, the

accumulation must be remarkable and that there

should be no reasonable hypothesis of a

coincidence, and that statement should be made or

remade by this Court?

MR HIDDEN:	Yes, Your Honour.
BRENNAN J:	The second proposition is that in determining

the question of joint trials, or a trial on a

number of counts, a judge is bound to take the

depositions or the material before him as revealing

the differences that there appear as well as the

similarities and, assuming the accuracy of all that

there appears, decide the question?

MR HIDDEN: Yes, Your Honour.

BRENNAN J:	Now, is there any other special leave point?
MR HIDDEN: Perhaps thirdly, Your Honour, I think this was

the - perhaps if I could just take Your Honours to
the affidavit filed in support of the application
which might express it better than I can off the

top of my head.

TOOHEY J: Page 622, Mr Hidden.

MR HIDDEN:  Thank you, Your Honour. Yes, commencing at

page 622, if I could take you to paragraph 3 of the

affidavit which appears at page 625, the third

point relates to:

Hunter 15/11/90

the duty of the trial judge when it is found,

at the close of the evidence, that the

evidence relating to some counts is not

sufficiently similar to that relating to the

others to justify their being left to the

jury.

Your Honour, it is our submission that prima facie,

at least, if that event does occur the jury ought

to be discharged because the impermissible

prejudice inherent in counts being joined when they

should not have been is not easily removed and it

would be an unusual case where it could be removed

by direction. So, to a certain extent,

Your Honour, we submit that this trial deserves to

be here in Canberra because of the most unusual

course it took.

Just as to the first point, Your Honour,

perhaps just to be a little more precise about it,

we invite this Court to pronounce upon the

situation of accumulation of commonplace

circumstances but, perhaps more appropriately here, circumstances which are not necessarily commonplace

but are the stock in trade of offenders of a
particular kind; that is perhaps the more

applicable expression here, Your Honours.

McHUGH J: Well, what do you mean by "stock in trade"? The

facts in this case were that they were all attacked

in their own home.

MR HIDDEN:  Yes.

Mc HUGH J: They were attacked late at night.

MR HIDDEN: With one exception, Your Honour, yes.

McHUGH J: Entry seems to have been through a window on the

ground floor.

MR HIDDEN: Yes.

McHUGH J:	The attack commences with a hand over the mouth and with an injunction that, "If you remain silent
you will not be hurt".  Six out of the seven were
tied up; three were gagged with cloths; six were partially blindfolded.
MR HIDDEN:	Yes.
McHUGH J:	I think six were put with their face down at some

stage, were they not?

MR HIDDEN: At some stage, Your Honour, yes, or side on.

Hunter 9 15/11/90

McHUGH J: In six cases the offender removed his disguise,

during the attack at some stage, when he wanted to

kiss or do something like that; six of them said

he had stocky or muscular build; five of the

attacks were in the Eastern suburbs within jogging

distance of the accused's home and the other two

attacks were near his work.

MR HIDDEN:	Yes, in Summer Hill, Your Honour.
McHUGH J:	Now was there anything further relied on from the point of view of similarities?

MR HIDDEN: Mostly, Your Honour, I believe that is about it.

The details of those were fleshed out a little, but

that is basically about it, I think, Your Honour.

McHUGH J: Well why do you say they are stock in trade?

MR HIDDEN:  Your Honour, the only reason we suggest that

expression - perhaps we should take Your Honour to

the passage from which that expression is drawn -

if we could take Your Honours to Sutton v The Queen

(1983-4) 152 CLR 528. In the judgment of the then

Chief Justice Sir Harry Gibbs at page 535,

His Honour refers with approval to some words of

Mr Colin Tapper in an article in the Modern Law

Review and at about point three that extract

appears:

"The similarity must after all be capable of

identifying the actor in the other incidents

with the accused. This is best achieved by

showing a shared and significant deviation

from the common norm for criminal acts of that

type." It will not be sufficient if the

similar acts alleged "are themselves so common

place that they can provide no sure ground for

saying that they point to the commission by

the accused of the offence under

consideration" .

And His Honour went on:	or if, although not commonplace, they are "the
stock in trade" of persons who commit crimes of that particular kind.

Now, Your Honours, rapes of women in their private homes are not rare, but they are not as common as

rapes in other circumstances. So one can speak

here of an offender of a particular kind, the

offender who invades a women's private home and

commits a sexual assault there.

Now, that of itself is not your normal rape, I

suppose, Your Honours. However, once an offender

Hunter 10 15/11/90

embarks upon that kind of enterprise he would be

expected to do certain things which what might not

attend a rape committed in other circumstances. It

is in that sense that we apprehend that

Sir Harry Gibbs was distinguishing between the

expression "commonplace", on the one hand, that is

things that you would expect in any rape in any

circumstances and, on the other hand, the stock in

trade of rapists of a particular kind.

Now here, we would submit, Your Honours, the

similarities really relate to the sort of things

you would expect a rapist to do in a woman's

private home: he would want to keep it quiet; he

is likely to gag her; he is likely to restrain her

in some way particularly when he wishes to escape

by tying her; he will be anxious to tell her not

to scream, that she will not hurt; all those sorts

of things which might not happen in other

circumstances but will certainly happen when a rape

is committed in a private home.

Now, everything here, we submit - there are

perhaps a couple of unusual features to which

attention ought specifically to be drawn, but the

sort of matters which Your Honour Mr Justice McHugh

summarized, we would submit, are the stock in trade

of persons who commit rapes in a private home and,

Your Honours, it is our submission that the

judgment of the Court of Criminal Appeal in this

case makes it clear that that aspect of the

decision in Sutton was, with respect, inadequately

understood.

DEANE J:	Was there any violence in
MR HIDDEN:	No actual violence, Your Honour, no.

DEANE J: That is about the most striking thing of them all,

is it not, the complete absence of violence in the

similar context in which -

MR HIDDEN:  From that, Your Honour, excludes the sexual

attack itself, obviously.

DEANE J: Yes.

MR HIDDEN:  Your Honour, with respect no, many a sexual

assault is not attended by any other violence and

by any other injury apart from the sexual attack

itself.

DEANE J:  I cannot claim any experience, but it strikes me

as surprising that in a break in and sexual attack

on a woman at night in her own home there should be

not only no violence of the sort I am referring to

but a spoken assurance and disavowal of violence.

Hunter 11 15/11/90

MR HIDDEN: Well, Your Honour, with respect, I would submit

that a man who enters a woman's home for sexual

gratification is going to avoid violence if

possible. He wants to keep her quiet so he will

physically restrain her from screaming by gagging

or putting his hand over her mouth; he will either

threaten her, as was done in some of these cases,

"Shut up or I'll" - in the case of Ms Lees, I
think - "Shut up or I'll hurt you", but in other

cases she was, in a sense, reassured, "Be quiet, I

won't hurt you". Of course, not uncommonly, I

would submit, Your Honours, the woman is then

restrained in such a way that any physical
resistance from her is wellnigh impossible

therefore no irrelevant physical violence would

occur for that very reason.

DEANE J:  And what about - I have not read all the

material - the urgency of the sexual attack? I got

the impression from the evidence that I did read
that in cases I looked at there seemed to be a

surprising lack of urgency involved.	Was there
some notable exception to that?

MR HIDDEN: Yes, Your Honours, there were some variations

and, indeed, it must be said that the most

significant - I am sorry, Your Honour, perhaps I

should put it this way: the most leisurely - if I

could use that word - sexual attacks were in the

two cases in respect of which there was direct

evidence tending to implicate the applicant:

Ms Armstrong and Ms Lees.

With Ms Armstrong there was fairly elaborate

foreplay. I know this sounds absurd but almost of

a rather, intimate nature. With Ms Lees there was something rather similar and fulsome praise of her

appearance.

The other attacks were more, if I can use the expression, Your Honour, mundane, the more blunt,

to the point, type of sexual activity that one

would expect in a rape.

DAWSON J:  Of course the circumstances will tend to differ

with the reaction of the victim.

MR HIDDEN: Undoubtedly, Your Honour, yes, undoubtedly but

again, of course, when one is looking to

similarities between a series of events so as to

see whether the very exceptional rule of

admissibility relating to similar facts can be

applied, we would submit it is very dangerous to say, "Well, because certain things didn't happen

this time there may be an explanation for that

which wasn't present on the first occasion".

Hunter 12 15/11/90

DAWSON J: But, in the end, it is a question of degree, is

it not, and it is not a question of principle in

this case? Even if we thought the Court of Appeal

was wrong, we could not do anything more than

restate the principle.

MR HIDDEN:  Your Honour, restate and, perhaps, flesh out the

principle, Your Honour. I mean, the words of the

Chief Justice to which we -

DAWSON J: When I say, if we thought the Court of Criminal

Appeal was wrong, if we would have come to a

different conclusion employing the same reasoning

process, that is what it amounts to, but that is

not a ground for special leave.

MR HIDDEN: Perhaps not of itself, Your Honour, but we do

submit that - this is, of course, dealing with the

first point, as Your Honour Justice Brennan

summarized it - what was said in Sutton as to an

accumulation of common circumstances needs to be

restated perhaps and perhaps elaborated upon a

little in the light of the way the Court of

Criminal Appeal handled this matter and, of course,

that does not touch on the dissimilarity.

BRENNAN J: What elaboration is possible?

MR HIDDEN: Perhaps, Your Honour, the real point here is

that very passage from the judgment of the

Chief Justice to which I have referred. One way of

interpreting the Court of Criminal Appeal's

judgment, we would submit, Your Honour, is this:

that the Court of Criminal Appeal said of the

similarities in this case that they were not

commonplace and that would be difficult to argue

with. But, the Court of Criminal Appeal saw as

remarkable and inconsistent with coincidence

features which were, in the words of the

Chief Justice, "the stock in trade of offenders of

this kind".

DAWSON J: Even that has to be qualified because a pattern

of commonplace features - a particular pattern of

commonplace features - may be enough especially

where you couple that with a fair degree of

uniformity in the description of the physical

characteristics of the man so far as the victims

could describe him.

MR HIDDEN:	The physique, Your Honour means? Yes.
DAWSON J: The physique and dress and so on.	You really

cannot lay down any particular rules.

MR HIDDEN:  I appreciate that, Your Honour, and I am not suggesting that any particular rule -

Hunter 13 15/11/90

DAWSON J:  What I am saying is, the mere fact that they are

commonplace features may not be significant if

there is a pattern which is unique, or so

overwhelmingly cumulative notwithstanding that each

one is a commonplace feature.

MR HIDDEN:  I appreciate that, Your Honour, although we

would submit that - - -

DAWSON J:  I mean, all rapists tend, in the end, to do the

same thing.

MR HIDDEN:  Yes. Your Honour, we appreciate that there may

be a pattern of commonplace features which is

repeated so consistently that one could say

coincidence is eliminated but there would have to

be great consistency in the pattern if the features

are otherwise commonplace.

DAWSON J: May I ask you this? If there is a pattern -

perhaps it does not go to the extent to which you

say it goes - but in addition to that there is a

fair degree of identification, not identification

which would serve to identify the accused if you

consider the case separately, but does provide a

link between the various cases. What do you say

then?

MR HIDDEN: Again, Your Honour, that would strengthen the

case but would still not necessarily get us there unless the descriptions included some detail that

is unusual. To speak of a man as of being about

five foot ten and muscly, solidly built, is a

description of millions of men. Now, there were a

couple of references to a prominent nose and we can

tell you, in fact, Your Honours, that that is true

of this man, but we would submit - - -

DAWSON J: That is true, you see, and if that is so and some

witnesses identify that and then you link up what

other witnesses said which was common, you may come

to a conclusion that the coincidences are just too

much.

MR HIDDEN: Indeed one might.

DAWSON J: All I am saying to you is it is a matter of

degree, and it is a matter of considering the kind

of evidence, the jury being told that they must think that the similarities are such that it is

beyond coincidence, and they were told that.

MR HIDDEN: Yes, the jury must be told that, Your Honour,

true, but the learned trial judge has himself to be

satisfied of that before the joint trial is

permitted.

Hunter 14 15/11/90

DAWSON J: Well, he said he was.

BRENNAN J:  Mr Hidden, could I just take you back because

you have been dealing, I think, with your first

point chiefly.

MR HIDDEN:	Yes.
BRENNAN J:	It certainly has an overlap with the other

points. But could you state in the best form for

your own argument the proposition of fact which you

say illustrates a misapprehension of the principle

by the Court of Criminal Appeal?

MR HIDDEN:  Yes, would Your Honour just bear with me while I

turn to the judgment of that court. That

commences, Your Honours, at page 627 of volume II

of the application book.

TOOHEY J: For some reason we seem to have two copies of the

judgment.

MR HIDDEN:  I beg your pardon, Your Honours. I noticed

that. I, in fact, had not noticed that until I

commenced - it seems the judgment was reproduced

and then reproduced as an annexure to the

affidavit.	I think I am actually looking at the
annexure to the affidavit, Your Honours.	If it is

convenient to Your Honours to look at it as it is

paginated there, and for my learned friend who may

have - we would submit, Your Honours, that it is

implicit in the way Their Honours reasoned it, and

I will turn to this in just a moment, that they

were not recognizing the intermediate step

recognized by Sir Harry Gibbs in Sutton's case.

They were saying, "There are here similarities which are not commonplace; therefore, the similar

fact principle is invoked."

They have not looked at the intermediate step

of the stock in trade of an offender of a

particular kind, because in the nature of things an

offender of a particular kind does not commit an

offence which is itself commonplace.

Now, Their Honours say at page 633 of the

application book, Their Honours having referred to

a number of passages from Sutton, refer to the

chart which had been presented to the court. They

refer to the times at which the victims were

attacked, being of course usually late evening,

small hours of the morning, with one exception

being afternoon. They refer to the ages of the

victims which cover a wide range, but they then go

on to say at line 20, Your Honours:

Hunter 15 15/11/90

Other aspects of the various attacks

showed greater similarities. Thus, in all

cases, the victims were attacked in their own

homes while they were alone and in

circumstances which indicated that they must

have been under observation for an appreciable

time. In each case entry was probably gained

by a window and all but one of the premises

entered were on the ground floor. In each

case, the victim was warned against screaming

or making a noise and told that she would not

be hurt or something to the same effect. A

disguise was used, either a black beanie, a
balaclava or a stocking over the head, in six
of the cases. In each case the assailant

placed his hand over the victim's mouth and an

article, a tea towel, a pillow slip and on one

occasion a bikini, was placed over the

victim's head or against the head. In six of

the seven cases the victim was left with her

hands tied after the sexual attack and in six

of the seven cases the victim was either

rolled on her stomach or was lying face down

before the rape. There was a degree of

similarity in the words used by the assailant.

The assailant was generally described -

and they go on to refer to the description.

MR HIDDEN:  In so far as Their Honours relied upon the

similarity of all victims being attacked in their

own homes; being under observation; entry through

a window; warned against screaming; use of a

disguise; the victims face being covered and the

victim being tied or restrained in some way:	those
clearly were similarities which the Court of

Criminal Appeal saw as significant and which they saw as tipping the scales in favour of the

application of a similar fact principle.

In our submission, what the Court of Criminal

Appeal has missed is that while those matters may

not be commonplace in sexual assaults they are the	stock in trade of the person who commits a sexual	attack in a woman's private home and they are no
more than that. It is that intermediate class that
they miss, we submit.

McHUGH J: Well, did they, because at page 635 they refer to

your submission about that, from lines 9 through

to 21. They refer to your submission that these

were:

commonplace in such cases

and then they refer to the fact that there was:

Hunter 16 15/11/90

no one circumstance ..... which was

"sufficiently striking -

but -

it was the accumulation of common.

MR HIDDEN:  Yes.

McHUGH J: It rather looks - - -

MR HIDDEN: Well, that is Their Honours finding,

Your Honour, yes.

McHUGH J: Well, I appreciate that but whether they gave

much weight to it is another question but they

certainly had in mind your basic submission about

stock in trade.

MR HIDDEN:  Yes, Your Honour, but I can assure Your Honours

that specific submission was made but - - -

McHUGH J:  I know. I am not suggesting for a moment it is

not. They just put it in slightly different

language. They say that you submitted that this

is:

commonplace in such cases.

MR HIDDEN:  In such cases, Your Honour, yes but, in our

submission, what the Court should have said was

this: these similarities are not commonplace, that

is, they are not the sort of things you would find
in any rape; secondly, they are not the stock in
trade, they are not the sort of thing you would

expect to find in any rape committed in a private home. It is that intermediate step the court has

not made, Your Honour, and we would submit, that

the way in which the court reasoned the matter

indicates sub silentio that that intermediate step

was not made and it should have been made in this

case.

DEANE J: But what if you had 100 what you would call

commonplace features and the whole 100 were present

in every one of the cases? The fact that there was

only, say, a one-in-four chance of any one of them

being present in the average would not mean that,

looked at as an accumulation, you would not come

into a similar fact situation.

MR HIDDEN:  Your Honour, with respect, it would depend on what they were. We would submit that if one

selected six rape reports at random from police

records you would probably 100 similarities between

them. It would depend on what they were.

Hunter 17 15/11/90

DEANE J: That is all I am -

MR HIDDEN:  The accumulation still has to leap off the page.

One has to say, "Good heavens, that accumulation is

quite striking".

DEANE J: That is what the court has held though, is it not?

MR HIDDEN:  Yes, but Your Honour, we would submit, that

sub silentio the court has held it because, as we

say, it has not taken the intermediate step. You

see the very fact that the court referred to as one

of the similarities the fact that the victims were

all attacked in their own homes is significant

because that is not to the point at all; of course

they were. That is not a relevant similarity

because what we are talking about here, in our

submission, is the stock in trade of men who attack

women in their own homes.

What Their Honours have done is seen the stock

in trade of a particular kind of rapist; observed that that is different from the behaviour of other rapists in other circumstances and have said,

"Well, that's enough". We would submit that they

have missed the very intermediate step to which

Sir Harry Gibbs expressly referred in Sutton.

DAWSON J: What do you say to the fact that in these

circumstances your client did exhibit a propensity

to rape because of the two cases in which his

identity was established ..... and therefore that is
a factor that has been taken into account in

relation to the other cases as well?

MR HIDDEN: Well; the first question, I suppose,

Your Honour, is whether the two cases are

sufficient to show a propensity to anything

but - - -

DAWSON J:  Well, the jury obviously accepted - ..... what

process they followed - but there were two cases in

which there was real evidence that he was the

assailant, is that not right?

MR HIDDEN: Yes, one much stronger than the other,

Your Honour. Perhaps it might be useful to turn to

the one where the evidence is very strong and that

was the palm print - - -

TOOHEY J: Well, in respect of that, you did not argue to

the Court of Criminal Appeal that that verdict was

unsafe or unsatisfactory.

MR HIDDEN:  Your Honour, we did not but perhaps what was

being submitted there needs to be fleshed out a

little. We were dealing with the ground of unsafe

Hunter 18 15/11/90

and unsatisfactory as sui generis and that is a

ground that, on the evidence before the jury, it

was not open to a jury to convict. Now, for that

reason and that reason alone, we did not submit

that the verdict should be set aside upon that

ground. We did, however, submit that if the case

were not a similar fact case all verdicts had to

be set aside because of the prejudice flowing from

the wrongful joinder of counts. That submission

was made.

DAWSON J: But the trial judge did direct the jury that

unless they were satisfied on those two cases that

was the end of the matter.

MR HIDDEN:  Those two or one or other of them, Your Honour,

yes. He said certainly they had to find in the

evidence relating to one or other of those counts

itself sufficient to identify the applicant as the

offender and then they could then go on and look at

the others and say, "Are they sufficiently similar

that you can draw that conclusion?"

DAWSON J: Once you are satisfied, you establish that not

only the man with this method, the man in that case

at least was a man with a propensity to commit

rape.

MR HIDDEN:  Yes.

DAWSON J: That is something that you throw into the balance

with all the other characteristics then in relation

to the other cases. That is fairly strong

evidence.

MR HIDDEN: Well, Your Honour, looking perhaps at the

Armstrong matter, which was the first matter dealt with in the indictment in the trial, certainly it

shows a man prepared to break into a woman's home

at night disguised; it shows a man who, in a

sense, attempts to reassure his victim rather than

specifically to threaten her. "Don't scream; I

won't hurt you. Don't say a word, you won't get

hurt". It shows a man who does not want himself to

be seen; she is gagged with a teatowel and a

pillowslip placed over her face.	The sexual
behaviour is rather remarkable.

DAWSON J:  I think perhaps I have not made myself clear.

Once you have established that the accused was

guilty of rape in one case, let us say the

Armstrong case, then the similar fact evidence in

the other cases becomes even stronger because, not only do the characteristics described point to the

accused, but also he is a rapist.

Hunter 19 15/11/90

MR HIDDEN:  Yes, well Your Honour, if the other

characteristics point to the accused, Your Honour,

yes.

DAWSON J:  I am putting you fairly and squarely that once

propensity evidence is admissible, you can take

account of the propensities having probative force

as propensities.

MR HIDDEN:  I appreciate that, Your Honour, that I believe

was fleshed out by this Court in Harriman, but in a

sense similar fact evidence is proven propensity to

commit a particular - - -

DAWSON J: Normally propensity evidence is excluded because

it is prejudicial, but when, for instance, coupled

with other facts, it becomes highly probative then

it is admissible and probative as propensity

evidence.

MR HIDDEN: Correct, Your Honour, yes, with respect Your

Honour - no doubt about that. Similar fact

evidence is necessarily propensity evidence.

DAWSON J:  So all I am saying is that if you establish one

case, you then have established that the accused

did have a propensity for rape and that is

something to be thrown into the balance with the

other similar facts.

MR HIDDEN:  Yes, if the other features are there, Your

Honour, yes.

BRENNAN J:	Mr Hidden, have you said all you wish to say with regard to the question of special leave?
MR HIDDEN:	I believe we have, Your Honour, and if we were

to proceed now it would be to analyse the

similarities and dissimilarities. On the question

of dissimilarities, well we submit also that the
Court of Criminal Appeal gave inadequate weight to

the dissimilarities which there were between the

seven events, not only as to the voice of the

offender, but also as to the nature of the sexual

contact and other incidentals. For example, in

some cases property was stolen and in others it was

not. Now again it would necessarily be a rather lengthy exercise to detail all of those, but the

dissimilarities, we would submit, Your Honour,

were, with respect, skated over by the Court of

Criminal Appeal and referred to, but given no

adequate weight and that is the other aspect, we

would submit, Your Honour, which calls for the

intervention and pronouncement of this Court.

Again, without the developing it at this

stage, Your

Hunter 20 15/11/90

Honours, a recent decision of the Court of Criminal

Appeal in England dealt with the very question of

dissimilarities and that was The Queen v Beggs,

(1990) Cr App R 430, a very different case from

this, but one which specifically dealt with the
question of dissimilarities, ruling out the
proposition that a common offender committed all

crimes. It is not necessary to take Your Honours

specifically to that now and as we have said Your

Honours - well I think Your Honour Justice Brennan

has, with respect, succinctly summarized our second

special leave point that it relates to

dissimilarities in general and in particular to the

fact that the learned trial judge at the outset, in

effect, papered over apparent dissimilarities in

the expectation that they might be cured by

evidence in the trial which we submit he was not

entitled to do.

And the third point, as we have said,

Your Honours is, it is our submission that where it does appear at the end of the day that counts have

been joined because the evidence does not pass

muster as similar fact evidence, then in our

submission the normal course must be that the jury

is discharged in respect of all counts on the

indictment and it would be an unusual case where

the trial could proceed to verdict without

impermissible prejudice. Those shortly are the

special leave points, Your Honours.

BRENNAN J:  The Court will adjourn briefly to consider what

course it should next take.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.45 AM:

BRENNAN J:  We need not trouble you, Ms Robinson.

The application for special leave in this case

is supported by argument in favour of three

propositions: first, that an accumulation of
commonplace factors consisting of acts which are

"stock in trade" of offenders of the relevant kind

is insufficient to found the admission of similar

fact evidence unless the accumulation itself

reveals a striking similarity. The argument finds

clearest support in the language of

Chief Justice Gibbs in Sutton v Reg. (1984)

152 CLR 528, at page 535.

Hunter 21 15/11/90

Second, that in determining an application for

separate trial of different counts joined in an
indictment, a judge must take into account the

dissimilarities which appear in the depositions or

other material on which his decision is made, and
is not entitled to reach his decision by

speculating that, on the trial, the dissimilarities

may disappear or be diminished.

Third, that when, on a trial of several counts joined in an indictment, evidence has been admitted

on a similar fact basis on all counts but the

evidence on one count proves to be insufficient to

warrant a conviction on that count and the accused
is acquitted by direction, the jury should be
discharged from giving a verdict on the remaining

counts.

As to the first ground, in our view the Court

of Criminal Appeal correctly stated the principle

as laid down by this Court in Sutton v Reg. The

application of that principle to the case in hand

involves no more than a detailed consideration of

the facts. Nothing has been said which warrants a

grant of special leave on this ground.

As to the second proposition, we note that the

trial judge said this:

"There are also points of distinction which,

if the evidence were accepted literally would

mean that the crimes could not have been
committed by the same person. However, these
differences are basically concerned with

observations of the assailant in situations

where some inaccuracies are to be expected and

I do not regard those distinctions as

conclusive.	A jury may well do so but that is
another question.	I think of greater

importance for the purpose of the present

application is consideration of the number and

type of points of similarity."

And later, he said: 

"I have no doubt that on closer analysis of

the evidence it will be possible to find more
points of similarities, not over all seven but
in groups and also more points of

distinction."

His Honour had already made clear his appreciation of the fact that the question for him was this:

"Was each of the crimes committed in the

manner so strikingly similar to the others

that a jury could reasonably conclude that the

Hunter 22 15/11/90

same person was guilty of all the crimes in

question?"

for separate trials.

In that context, we see no error of principle in application

As to the third proposition, there may be some

cases in which, in the circumstances posited, it

would be necessary to discharge a jury in order to

avoid unfairness in the trial of the remaining

counts. Much depends on the circumstances. In

this case, having regard to the careful direction
given by the trial judge to the jury, we do not
think that the case calls for the grant of special

leave. Accordingly, special leave is refused.

MR HIDDEN:	May it please the Court.
BRENNAN J:	The Court will adjourn until 9.30 am tomorrow morning in Melbourne.

AT 11.49 AM THE MATTER WAS ADJOURNED SINE DIE

Hunter 23 15/11/90