Jaensch v The Queen

[2001] HCATrans 93

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P75 of 2000

B e t w e e n -

HANS ANTON JAENSCH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON FRIDAY, 6 APRIL 2001, AT 2.02 PM

Copyright in the High Court of Australia

MR R.K. WILLIAMSON:   May it please your Honours, I appear for Mr Jaensch, the applicant.  (instructed by Williamson & Co)

MR R.E. COCK, QC:   Your Honours, I represent the Crown.  (instructed by the Director of Public Prosecutions)

MR WILLIAMSON:   Your Honours, dealing with proposed ground (1) first of all, the prosecutor’s attempt at the trial that a description of the occasion the subject of count 1 was an abject failure.  Similarly, the complainant did not describe at all, let alone sufficiently, an occasion; an occasion the subject of count 1.  Indeed, her evidence was vaguer than the generalities dressed up as particulars by the prosecutor in his opening.  The net result of this which the Court of Criminal Appeal failed to see was that there was, in fact, no occasion described.  There was in fact and in law no case to go to the jury.  No occasion means no case.

It had nothing to do with the credibility of the complainant but because the defence went to the effort of proving that the occasion which was arguably described or particularised by the complainant in her statement to the police, because the defence went to the effort of proving that that occasion could not have happened, the Court of Criminal Appeal, through Justice Pidgeon, saw the problems with her evidence in terms of her credibility rather than in terms of her sufficiency – that evidence being whether it was sufficient or adequate.

The prosecutor’s opening did certainly describe a sexual act but to defend someone who is accused of committing such an act, indeed, any act, criminal act or admission, you need a description of the occasion.  What the defence got here from the prosecutor, as I say, was not good enough.  All the defence got – and this is quoted at application book, page 122 - were these alleged particulars:  1, it happened at a time when the complainant’s mother may – I emphasise that word “may” – have been in hospital.  That is really, your Honours, not a particular.  No 2, it happened at some time in a period of 18 months when the applicant had a Renault.  That is 18 months, which is obviously a long time.  It happened at night.  It happened after a drive in a car with the applicant, a car which she, the complainant, only thinks was the Renault.

During that drive certain words of a sexual nature were spoken.  It happened in a particular bedroom after that drive when the mother was not at home.  We do not know where.  Now, these vague circumstances do not satisfy the criminal law’s requirement for particularity, they merely involve, to quote Justice Fitzgerald in Rogers, No 1 on the applicant’s list of authorities ‑ ‑ ‑

GLEESON CJ:   Mr Williamson, where do you find the error in the judgment of Justice Pidgeon on this point?

MR WILLIAMSON:   When he deals with the point and it is described as an “inconsistency point”, your Honour.

GLEESON CJ:   What page of the application book?

MR WILLIAMSON:   Page 92, paragraph 38, lines 17 through to 40.  His Honour says:

The second particular claims that the evidence of the complainant was inconsistent with the Crown’s opening address.

That second particular is a particular of the main ground which is that the conviction was unsafe and unsatisfactory.  I submit and I concede that using the word “inconsistent” and the way that these particular grounds were drafted in the Court of Criminal Appeal at page 72 of the application book did not home in closely on this particular point.

GLEESON CJ:   But Justice Pidgeon just followed the language of the ground of appeal and responded to it.

MR WILLIAMSON:   Yes.  Whilst he is responding to it, your Honour, he says, and this is at line 30:

The defence was able to establish that the only time the complainant’s mother was in hospital was at a time when the applicant did not own a Renault –

so, your Honours, what happened was that the defence came to court thinking that these 18 months when the Renault was owned was the time the offence happened.  It was further particularised before trial by saying that during those 18 months the mother was in hospital.  The defence went to court and proved – and no one doubts that this was proven – that 6 months before the start of those 18 months was the only time the mother was in hospital.  So, that clearly raised in the collective mind of the Court of Criminal Appeal the point that I am making and that is that there was no occasion.

GLEESON CJ:   I would like to understand a little better than I do the second ground of appeal, that is the second particular of the ground that the verdict was unsafe and unsatisfactory.  That is what we are dealing with, is it not?

MR WILLIAMSON:   Yes.

GLEESON CJ:   What your predecessor called “the inconsistency” was given as a particular of a ground that the verdict was unsafe and unsatisfactory.

MR WILLIAMSON:   Yes.  It is not the way I would have put it, your Honour.

GLEESON CJ:   No, we need not get hung up on that phrase but, whether it is the way you put it or not, it is the ground to which the Court of Appeal had to respond.

MR WILLIAMSON:   And it is very closely connected to the next particular.  The two are very close.

GLEESON CJ:   A very rude person, reading particular 2 of ground (2) would respond to it by say, “So what?”

MR WILLIAMSON:   I readily concede that, your Honour, but in the way that it was dealt with – I did not argue the appeal – by Justice Pidgeon, who was the only member of the Court of Criminal Appeal who dealt with it, is quite clear that the point was made to the Court of Criminal Appeal that there was a huge problem with the way the complainant’s evidence came out.  It is quite clear that the defence went to that trial armed to prove that the occasion of which they had been given notice could not have happened.

GLEESON CJ:   But there was no ground of appeal that said there was a miscarriage of justice or a denial of natural justice because of what occurred.  This complaint was put as a particular of the ground that the verdict was unsafe and unsatisfactory.  That is the way the court dealt with it.

MR WILLIAMSON:   Yes, and this Court has said how unsatisfactory “unsafe and unsatisfactory” is.

GLEESON CJ:   Let us not get hung up on that.

MR WILLIAMSON:   No.  Maybe it - - -

GLEESON CJ:   The court was doing what courts do all the time.  It was responding to the argument that was advanced to it.

MR WILLIAMSON:   Your Honour, I do concede that these are very blunt instruments, these particulars, of this equally or more blunt instrument, “unsafe and unsatisfactory”.  They are blunt instruments to deal with the point that I am clearly and obviously raising and that is that there was no occasion alleged by the Crown, there was no occasion alleged by the complainant and - - -

KIRBY J:   There was an occasion but it was not, you say, with very great particularity.

MR WILLIAMSON:   I say it was with very great vagueness and it is not an occasion ‑ ‑ ‑

KIRBY J:   But that is the nature of offences that occur long ago.  That is just the nature of it, unfortunately.

MR WILLIAMSON:   Well, your Honour, the Queensland authorities, particularly Rogers, is not, with respect, consistent with that proposition.  The Queensland authorities, particularly Justice Fitzgerald, says that the occasion must be particularised.  It was must described so that the trial is fair.  The bottom line here is this man is being convicted of an offence which happened some time in a period of 25 months.

GLEESON CJ:   And that was unfair to him, you say?

MR WILLIAMSON:   Certainly it was unfair.

GLEESON CJ:   You may say that but what ground of appeal complained of that?

MR WILLIAMSON:   I would submit that “unsafe and unsatisfactory” refers to that, your Honour.

GLEESON CJ:   We all know what “unsafe and unsatisfactory” means.  It is a phrase that has been criticised but it goes to the sufficiency of the evidence to safely convict the accused.

MR WILLIAMSON:   Presumably that is exactly the point that is made by particulars 2 and 3.  Because of the inconsistencies, the evidence was insufficient.  It should have been seen as too vague and too inconsistent to justify a finding beyond reasonable doubt.  Perhaps, your Honour, the bottom line is that in law this applicant has been convicted of an offence, the evidence in relation to which just fails to be adequate.

GLEESON CJ:   Where do we see the count relating to this offence?

MR WILLIAMSON:   In the indictment, your Honour, on page 1.  It is count 1.

GLEESON CJ:   “On a date unknown”.

MR WILLIAMSON:   I would just make the Crampton point, your Honours, that this gentleman is in the position of Mr Crampton, that is he is being convicted of an offence which the evidence did not disclose had been committed.  I say that because it is just simply not good enough in terms of the requirements for particularity to have the evidence in such a vague state.

KIRBY J:   But a Longman direction was given by her Honour, was it not?

MR WILLIAMSON:   A faulty Longman direction was given by her Honour, a very faulty one, I submit.  I would never concede that the Longman direction was adequate but that is not - other than the point that I have raised in my other grounds, I do not pursue that in this Court because counsel indicated that he was happy with the other aspects of Longman which were raised.  But, of course, there is that ground of appeal where her Honour the trial judge indicates that the evidence was in fact corroborated when it is common ground that it was not corroborated.  That is the Longman point that I am raising further down the track.

GLEESON CJ:   Where do we find the trial judge’s direction on this inconsistency?

MR WILLIAMSON:   It is wrapped up with the Longman point, your Honour.  Her Honour says in her redirection:

Now, the defence asks me to put to you that ‑ ‑ ‑

GLEESON CJ:   What page is this, Mr Williamson?

MR WILLIAMSON:   This is at page 67.  At line 16 it appears, or about 19.  It is wrapped up in the point that it is part of the defence case that there are these inconsistencies and therefore you cannot rely on it.

KIRBY J:   You complain about her Honour’s statement, “The defence asks me to put to you”?

MR WILLIAMSON:   I certainly do, your Honour.  That is the - - -

KIRBY J:   I wonder why her Honour put it that way instead of lending her own authority to the instruction.

MR WILLIAMSON:   She says, your Honour, right on the last page there, on page 68, to defence counsel, in the absence of the jury, once they had retired to consider their verdicts:

The only reason I mentioned that you had raised them was that this mass of things coming all by themselves I think have to be read in the context of the whole direction and there is some prejudice to the crown from having them all come here at the end when they will remember them.

GLEESON CJ:   Were the applications for redirection made in front of the jury? 

MR WILLIAMSON:   No, your Honour.  And your Honour Justice Kirby refers to the second time that this remark was said.  It is said right at the beginning, page 65, line 37: 

Now, members of the jury, in your absence a number of matters have been raised with me on behalf of the defence in this case that they consider need to be put to you by me and I have considered these at some length.  The reason I mention that they’re mentioned by the defence is that if you take these now, as you’re going to, in isolation it will seem very lopsided.  They have to be read in conjunction with what I said before –

so her Honour was clearly worried that all these remarks which appeared to be pro-defence were going to be virtually the only thing that ‑ ‑ ‑

KIRBY J:   They would be the last thing she would be saying to the jury. 

MR WILLIAMSON:   Yes.  And, in my submission, that could never, ever, be a sufficient reason.  In my submission, there could be no justification for ‑ ‑ ‑

KIRBY J:   Yes, but when her Honour gave that instruction, counsel then appearing for the applicant said that he had nothing to add.  He did not seek any further redirection or withdrawal of those statements? 

MR WILLIAMSON:   He was told pretty promptly, your Honour, why those comments would ‑ ‑ ‑

KIRBY J:   Before that, he indicated that he had no complaint? 

MR WILLIAMSON:   No, your Honour.  My submission is that the trial ‑ ‑ ‑

KIRBY J:   I think it would have been preferable if her Honour had not said it, but it is not really sufficient to, as it were, erase the effect of what she said.  Obviously, she was concerned, as you have indicated, with leaving the jury with these last thoughts, and that that could lead to a lopsided impression in their mind. 

MR WILLIAMSON:   And her Honour could never, ever, realistically speaking, bring the jury back and say, “Look, forget that I just expressed reluctance about expressing these points.  Just delete that from your mind, ladies and gentlemen of the jury”  ‑ ‑ ‑

KIRBY J:   My question got you to jump over your second point, which was the relationship evidence. 

MR WILLIAMSON:   Relationship evidence.  My submission, your Honours, is that this is the almost ideal vehicle – it is the ideal vehicle, given the marginal nature of the allegations, to confront the controversy that surrounds relationship evidence, “controversy” being the word that your Honour Justice Kirby used in KRM, handed down a month ago, at page 24, paragraph 104, to describe Justice McHugh’s discussion of the decision in Gipp, where it relates to precisely this issue.  His Honour Justice Anderson in the Court of Criminal Appeal, I submit, concedes what amounts to the marginal nature of these allegations.  At page 101, he says at paragraph 65: 

Generally speaking, and depending on the precise circumstances of the case, it is unlikely that evidence that a father (or stepfather) allowed a teenage daughter to take alcohol and smoke marijuana in the home would be probative of an allegation that he had sexually assaulted her. 

His Honour then goes on to say:  “However” - at page 102, line 10.  So he is saying it looks as though this evidence is not admissible.  Then his Honour says at line 8: 

However, where the evidence does not go so far as to provide any direct link between the one kind of conduct and the other, prima facie –

I emphasise that word “prima facie” –

the evidence would not be admissible ‑ ‑ ‑

KIRBY J:   But the primary judge took the view that unless you had these elements in what she called the “jigsaw” you would not be seeing the whole picture ‑ ‑ ‑

MR WILLIAMSON:   Yes, I submit ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ I mean, one could take the view that you put about smoking marijuana, but walking into the shower and insisting on - allowing his dressing gown to fall open and ‑ ‑ ‑

MR WILLIAMSON:   They are perfectly consistent with innocent behaviour in terms of innocence of the offences charged.  Your Honour, my submission is that no reasonable view would see those, particularly those allegations ‑ ‑ ‑

GLEESON CJ:   I suppose the argument against you was that taken individually, any one of the them might have been consistent with innocent behaviour in relation to the offences charged, but collectively, the combined effect of them was as the Crown alleged. 

MR WILLIAMSON:   That view might be taken and would be taken, your Honour, but it just does not stand up to scrutiny, in my submission.  What it immediately did was make the trial lopsided, and made it a debate about whether all these peripheral things actually happened rather than the actual alleged offences happened.  My submission is that, on any reasonable view, collectively, this evidence did nothing more than go to discredit the character of the applicant, and it did not. 

It did not, in my submission, your Honour, on any reasonable view, have the direct relevance that is referred to by, for example, her Honour Justice Gaudron in Gipp.  Justice Gaudron conditions the admissibility of this evidence on it having “a special probative quality to make its admission a similar fact or as propensity evidence, or that it be otherwise directly relevant”.  And that “directly relevant” is directly inconsistent with the concession made by Justice Anderson, who concedes that there is no direct link. 

KIRBY J:   Remind me what the marshmallow factor ‑ ‑ ‑

MR WILLIAMSON:   That is – again, it is described as a marshmallow game, but that is incorrect, your Honour.  It is really a game of chasey, that happened some time after 1 November, and the evidence simply was that the applicant and the complainant were playing chasey when they disappear, they come back, and she has a marshmallow in her underpants or near her crotch, or something like that.  That is it.  It is very vague, it is perfectly consistent with an innocent game of chasey, and that is it.  These very marginal allegations have nothing to do with criminal conduct, and that takes this case out of the ruck, because every case that I have read deals with uncharged and chargeable sexual misconduct.  This case – none of these ‑ ‑ ‑

KIRBY J:   In this case, it was giving alcohol, walking into the bathroom and allowing his dressing gown to fall open, insisting on the girls bathing without their swimming costumes – that included his natural daughter, did it not? 

MR WILLIAMSON:   Yes. 

KIRBY J:   And this marshmallow incident. 

MR WILLIAMSON:   Yes.  And taking her to a restaurant or the casino restaurant when she turned 16, for her birthday, and to other restaurants on other occasions; talking with ‑ ‑ ‑

KIRBY J:   Were all of these elements objected to at the trial? 

MR WILLIAMSON:   Absolutely, your Honour.  Vigorous objection, overruled, on each and every one of these points. 

KIRBY J:   Is it your point that this is not specific to the matter charged but is likely, by being prejudicial to the applicant, to cause the jury to take its focus off the actual charges with which the applicant ‑ ‑ ‑

MR WILLIAMSON:   Absolutely, your Honour.  I would submit that this sort of evidence, particularly relating to the alcohol and cannabis, is likely to inflame a jury.  There are many people - - -

GLEESON CJ:   That is your time, Mr Williamson, thank you.  Yes, Mr Cock.  Mr Cock, we do not need to hear you in relation to Mr Williamson’s first point about the matter that was referred to in the ground of appeal as inconsistency but we want to hear what you have to say about the other matters that he argued.

MR COCK:   Thank you, your Honour.  The trial judge’s direction to the jury in relation to a number of matters obviously focused upon the submissions by counsel.  After that, of course, we know that the jury adjourned and defence counsel sought a redirection.  There was some argument and her Honour was persuaded to make that and my friend complains that her Honour effectively reduced the judicial authority she had given to that redirection, as I understand the submission, by explaining to the jury that she was making part of, at least, the request of the applicant’s counsel. 

In my respectful submission, to ensure that her subsequent redirection was not lopsided, that was a valid technique for her Honour to adopt, and indeed, in respect of the most crucial feature of that warning, that being a Longman warning, using the term “dangerous” - about which there is some debate in this State as to whether that is actually necessary - but her Honour went as far as using the term “dangerous to convict”.  But, in fact, she prefaced that particular part of the direction without any observation that she was doing it at the request of counsel for the defence, gave her complete judicial authority to it, indeed, concluded her remarks with that.  In my respectful submission, there is no special leave point in her Honour seeking to encapsulate her redirection in part, at least, by reference to submissions made to her by counsel for the applicant. 

KIRBY J:   Can I ask you this.  I dimly recall seeing - when a jury is sent out and then brought back in again, a judge feels a natural inclination to explain the context of why they are being brought back in.  And it may be that that is all that her Honour was endeavouring to do by opening with,  “The defendant asked me to say this”, but she then repeated it.  It is just a question of whether that is something that is commonly done.  I am not sure.  The question is whether, by putting it that way, she is effectively saying, “The defendant asked me to put this to you.  I am not telling you this as a judge, because - and I have troubled you to have come back ‑ because it is my duty to refuse to do so”.  That is the suggestion to us. 

MR COCK:   I agree with your Honour that the point, if there be a point, is that her Honour’s approach really removed judicial authority to what she was actually saying to the jury.  And, in my submission, that is not the effect of what her Honour did.  That was the way in which, I think, the Court of Criminal Appeal approached it, and, in my submission, correctly came to the view, as they were entitled, that she did not remove the judicial authority and, indeed, as I say, focused particularly on the very strong Longman corroboration – as to the corroboration warning.  In my submission, it is not particularly a common thing to happen this way.  It happens in the course of a particular trial, whether a reason – her Honour in fact explained to counsel after he had no point to make, why she did it.  That becomes another telling factor against ‑ ‑ ‑

KIRBY J:   It is a question of whether that showed a certain, shall we say, anxiety by her Honour about the way she had put it, given that he had raised no objection to her redirection.  However, I think we have got the point, so there is no point belabouring it.  The more substantial question is the relationship evidence.  Many of those items on their own would be completely innocent and would happen in the best of families - people walking into bathrooms or so on - but it is a question of whether, in combination, they really create a picture of a pretty poor stepfather or stepfather with some sexual fascination with his stepdaughter. 

MR COCK:   Your Honour, even the bathroom incident is not as innocent as your Honour’s short description suggests.  Indeed, there was really a discussion with the complainant to the effect that she should leave the bathroom door open.  Now that seems to us to be a feature of even that aspect of it that goes beyond what would be considered normal in an appropriate relationship in a family such as this.  We simply would adopt, with respect, the observations your Honour the Chief Justice made that, whilst taken individually, one may of itself not be sufficient to assist the jury, the combination of each of these separate facets demonstrate a sufficiently inappropriate relationship with a sexual innuendo as to properly require it to be placed before the jury, so they can see the context in which the three separate allegations arise. 

KIRBY J:   It is dangerous territory, though, because it can lead to disproportionate prejudice against an accused.  Was any warning given by the primary judge, the trial judge, to the effect that there can be innocent explanations for these incidents? 

MR COCK:   Certainly, and indeed, even in respect of the alcohol and the marijuana incident, her Honour was very careful to explain to the jury that it was only being introduced for their attention for a specific purpose and they should be very careful not to use it for an inappropriate purpose, and even described effectively what that inappropriate purpose would be. 

GLEESON CJ:   Am I right in thinking that the trial judge put it to the jury on the basis that the use that was available to them of evidence was, if I may put it this way, that this man had a romantic association with his stepdaughter, and that that was an unusual circumstance which was necessary for them to take into account – assuming they accepted the evidence – in evaluating the complaints. 

MR COCK:   That is certainly how we understood it.  It is certainly the way in which the Court of Criminal Appeal understood it. 

KIRBY J:   Where is a good passage where that warning was given by the primary judge?  Because taking a stepdaughter or daughter to a casino restaurant when she is, I think, 16, is of itself a completely innocent fact.  The fact that she is dressed up and goes to the casino restaurant – goodness gracious, that would happen as a special event in many children’s lives. 

MR COCK:   But, your Honour, even there her evidence was that she was encouraged to, in fact, dress beyond her age.  Again, it is ‑ ‑ ‑

KIRBY J:   Yes, but many a 16-year-old girl will dress beyond her age.  When she goes out to a casino, she will try to be sophisticated and a woman of the world for the night. 

GLEESON CJ:   Well, presumably, one of the women of the world around the place was the trial judge, and she made an appreciation of what she thought was a use the jury could make of this evidence.  I am just looking for where she directed them on it. 

MR COCK:   Yes, I can only find it picked up, your Honour, in Justice Pidgeon’s judgment at page 87 of the application book, in paragraph 24 of his Honour’s judgment.  I am just having trouble cross‑referencing that with the actual passage in the transcript.  But his Honour reproduces it at page 87 of the application book.  Your Honour will see there, his Honour in fact reproduced over a page of her Honour’s direction to the jury, indeed, cautioning them about the use of it for prejudicial purposes – recognising its potential, in that respect. 

KIRBY J:   Where is the actual warning? 

MR COCK:   The warning is there at ‑ ‑ ‑

KIRBY J:   You see, I saw in another case today where evidence of marijuana was raised, and the judge gave a very strong direction that that was to be put out of mind because it was irrelevant to the charge that was before the court, whereas in this one it is slipping in.  And there would be a lot of parents, on the jury, who would think that is a very serious thing for a person to do. 

GLEESON CJ:   Am I right in thinking that it is in the middle of page 89 that you get Justice Pidgeon summarising the way this thing was left to the jury? 

MR COCK:   Yes. 

GLEESON CJ:   The marriage of the applicant to his wife was “starting to disintegrate” and he was “turning his attention to the complainant as a substitute”.  And that was the picture that was sought to be created. 

MR COCK:   That is right.

KIRBY J:   I understand that, but what I would like is the passage where the judge says words to the effect, “Well, many parents take their children out to a casino restaurant, and the issue of the court is not the marijuana smoking and you have to be very careful how you use this”.  There would be many parents in the Australian community who would react with a strong sense of outrage that a father or stepfather had given the child a bong.  It is the duty of the trial judge to make sure that they do not, as it were, punish the defendant for that, and become blinded by these incidents which are not of themselves the matters with which the accused is charged. 

MR COCK:   Yes, your Honour ‑ ‑ ‑

KIRBY J:   Did the trial judge give a warning of that kind or not? 

MR COCK:   Yes, your Honour.  Page 50 of the application book, at line 10: 

Now, particularly with the cannabis and the alcohol, ladies and gentlemen, it is important that you don’t simply rely on any evidence –

et cetera.  She describes it as - not knowing the attitude of everyone to those substances, explaining that it has been brought to them for a particular purpose.  And also, then, of course, reinforcing the defence case, particularly in respect of that, that it did not ever happen.  Your Honour, there is a prejudicial warning about it at 49, line 20: 

Now, that evidence can be used by you only when you consider whether you are satisfied the accused had an inappropriate sexual interest in the complainant.  It cannot be used as evidence simply prejudicial against the accused or showing some propensity on his part –

and going on then, too, your Honours.  That, in my submission, both reinforces it right at the beginning and at the end of the passage dealing with that particular aspect of the Crown evidence, and, in my submission, sufficiently reinforces the correct approach the jury are to take.  The only other observation relevant, of course, is the ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Cock.  Yes, Mr Williamson? 

MR WILLIAMSON:   Your Honour, the trial judge’s efforts at a warning start at page 48, line 42: 

For these reasons, before you act upon ‑

It is the start of the Longman-type direction.  And this exacerbates the Longman point – or it reinforces my Longman point, because the way this relationship evidence is introduced is as potential corroboration: 

There has been a body of evidence led by the crown about what is suggested to be support –

that is, corroboration –

that is, evidence of an inappropriate sexual interest on the part of the accused in this girl who was at the time his stepdaughter.  You will need to consider that evidence very carefully.  It includes the evidence about not wearing bathers –

the marshmallows - over the page - discussions about mushrooms and masturbation, celebration of first period.  It goes on - the bathrobe incident, down to ‑ ‑ ‑

KIRBY J:   But is it not the real factual background against which the jury have to come to a conclusion in this case?  I mean, it is part of the truth of the relationship between the accused and the stepdaughter, if it is believed, if it is accepted.  I mean, one by one – going to the casino, swimming without bathers – you might explain each, but it is the fact that there are so many indicia of an inappropriate sexual interest in this stepdaughter ‑ ‑ ‑

MR WILLIAMSON:   Your Honour, there just simply is not enough.  There is not a great number of these separate factors to create that impression.  They are all vague, they are all equally consistent with innocence of the offences charged, and all - each of them alone, and certainly cumulatively – are consistent with a non-sexual relationship.  They might reflect badly on – if they were accepted, they would definitely reflect badly upon the jury’s assessment of the man’s character, but it is a long way from there to ‑ ‑ ‑

KIRBY J:   He had a dispute about the bong, did he not?  He said it was found ‑ ‑ ‑

MR WILLIAMSON:   Yes, he said he was ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ by the road, so there was a factual dispute that had to be resolved.  But it is the combination of them that builds a picture which, if it were not before the jury, would not really give them the full situation in which to judge the particular offence. 

MR WILLIAMSON:   My submission is that that is just not the case, in this case, your Honour.  The combination simply created the impression that the man was an unlikeable fellow who had an inappropriate interest or relationship with his daughter – his stepdaughter.  The trial judge, in her reasons for admitting the evidence, which are different from the reasons given by Justice Pidgeon, referred to by my learned friend – in those reasons he uses interchangeably the words “sexual relationship” with “abnormal relationship”, or “inappropriate relationship”.  These facts are truly borderline.  And that is why this is an ideal vehicle for this Court to visit that issue of relationship evidence. 

They are truly borderline facts.  They bring into stark relief the differences in approach.  There was no other rational view test or whether it is for some other purpose test, as described by Justice McHugh in KRM.  Is it part of the essential background?  There is authority for the proposition that it has to be part of the essential background – essential for the jury.  Was it essential that the jury know about these things?  My submission is that no reasonable view would have it that it was essential that the jury hear about these things.  And even if it were to be accepted that, collectively taken, these allegations were part of the background and were relevant, my submission is that they should have readily been rejected in the exercise of the ordinary discretion regarding probity of value versus prejudicial value. 

The trial miscarried; it went off the rails when this evidence went in, in my submission, your Honours, and this case is the case that, I would submit, raises those issues that, as I understand it, some members of the Court are interested in looking at.  The words said by her Honour the trial judge do not adequately counter the prejudice, because all her Honour ever does is say, “Do not be prejudiced.  Do not let this evidence be used prejudicially”.  She uses that word without going into explaining what she means by that.  She says at page 49, line 20:  “Now, that evidence can ‑ ‑ ‑

GLEESON CJ:   Five minutes, Mr Williamson. 

MR WILLIAMSON:   Is up, or to go? 

GLEESON CJ:   Five minutes has gone. 

KIRBY J:   I think you should finish the sentence. 

MR WILLIAMSON:   Thank you, your Honour: 

That evidence can be used by you only when you consider whether you are satisfied the accused had an inappropriate sexual interest in the complainant.  It cannot be used as evidence simply prejudicial against the accused ‑ ‑ ‑

KIRBY J:   That is a warning.  That is what I was looking for. 

MR WILLIAMSON:   That is not good enough, in my submission.  That is the trouble.  Her Honour does not explain what she means when she says that. 

KIRBY J:   It could have been stronger, but it is a warning. 

MR WILLIAMSON:   May it please your Honours. 

GLEESON CJ:   In this matter the Court is of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal and the Court is not persuaded that there has been any miscarriage of justice.  The application is refused.

We will adjourn for a short time to enable arrangements to be made with Adelaide.

AT 2.40 PM THE MATTER WAS CONCLUDED