Kerim v The Queen

[1989] HCATrans 151

•

. "i

• -~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1988

B e t w e e n -

ALLAN GRIFFITHS KERIM

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

Kerim

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 29 JUNE 1989, AT 10. 17 AM

Copyright in the High Court of Australia

BlTl/1/ND 1 29/6/89

MR W. SOFRONOFF, QC:  May it please the Court, I appear with

my learned friend, MR P.A. HASTIE, for the

applicant. (instructed by Litster Mann & Ffrench)

MR P.G. NASE:  May it please the Court, I appear with

MR W.J. BYRNE, on behalf of the respondent.

(instructed by the Director of Prosecutions)

MASON CJ:	Yes, Mr Sofronoff.
MR SOFRONOFF:	Your Honours, may I hand up copies of our

summary of argument.

MASON CJ:  Yes. Now, you are abandoning the existing proposed

grounds of appeal and proceeding on the grounds

stated in the summary of argument and in the

later affidavit that was filed?

MR SOFRONOFF:	Yes, Your Honour.
MASON CJ:	And essentially this is on the footing that

this point would not have been open to you in

the Court of Criminal Appeal by reason of existing

decisions of that court?

MR SOFRONOFF:  Yes, Your Honour. Could I take Your Honours

first to page 162 of the record to the reasons of Mr Justice Shepherdson. There, His Honour, having agreed with the reasons of Mr Justice Connolly,

said:

that the evidence of "a guilty passion"
for the child which had ceased some three
years before the 1986 rape was properly
admissible in the light of the decision

of RV WITHAM -

and TJW.

Your Honours, we submit that WITHAM and

TJW were both wrongly decided, that TJW is an

unsatisfactory authority because it was an Attorney-

General's reference in which there was no argument

on the other side and in which the question that

was asked of the Court of Criminal Appeal was

whether the authority of WITHAM had been affected

by recent decisions of this Court and the applicant

concedes that WITHAM had not been affected by

decisions of this Court. But the question was

not asked, "Was WITHAM correct?", and it appears
to have been assumed in the reasons of Their Honours

in TJW that if WITHAM had not been affected by

decisions of this Court recently given that it

was correct.

Could I take Your Honours then to page 160

to the reasons of Mr Justice Connolly. At the

BlTl/2/ND	2
Kerim

top of the page - the sentence actually begins

on the preceding page with the word "Moreover" -

His Honour says:

Moreover the fact is that the appellant

was also tried on a charge of indecent dealing

with the complainant when she was considerably

younger. He was acquitted, possibly because

the jury thought that her recollection of

events from when she was eight years of

age might not be reliable. The fact however

is that they had evidence of a guilty passion

for this child going back many years. She

had said however that it ceased some three

years previously. Mr Nase for the Crown

pointed out that the evidence about the

love bite -

which was in dispute as to its admissibility

both at the trial and on appeal -

and its aftermath was capable of being regarded

by the jury as something which may have

stimulated the appellant's sexual interest
in the child, particularly as it occurred

approximately one fortnight before the events

charged. If they accepted her evidence,

as they must have, the reference to his

sexual penetration of the complainant as

punishment for what she had let Edward do

is capable of being regarded as confirming

this.

And His Honour finds that the submission is correct.

Your Honours, what we submit that that shows

is that the jury might well have had regard to
evidence of indecent acts committed more than

three years previous to the rape of which the

applicant was convicted - of the offence for which

the applicant was convicted, because the Court

of Criminal Appeal certainly did so notwithstanding
that he had been acquitted.	And the Court of

Criminal Appeal did so because, on the authority

of WITHAM and TJW and ALLEN and other cases in

Queensland it was entitled to do so and we

submit that those authorities are wrong for two

reasons:  one is that do nothing more - that

they are, in effect, authorities for the proposition
that propensity evidence is admissible on sexual

cases when it is not on other cases; and, secondly,

we submit that those authorities are wrong because

the authorities upon which they themselves rely

do not support that proposition or, alternatively,

if they do, they themselves are unreasoned authorities

which simply draw support from other cases which

do not support that proposition.

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Kerim
McHUGH J;	But is it not well established that in a sexual

case that it is open to the jury to receive evidence
of previous sexual acts between the parties for

the purpose of proving the relationship between

them and to explain why the offence may have

occurred on the particular occasion? Are not

cases like BALL V DIRECTOR OF PUBLIC PROSECUTION,

ETHERINGTON in South Australia, GELLIN in New

South Wales - - -

MR SOFRONOFF:  Your Honour, could I deal with those three

in turn? BALL was a case where, before the law

was changed to make incest an offence, a brother

and sister had had sexual relations with each

other; the law was then changed; thereafter,

they were charged with an offence committed on

a particular date. The only evidence against

them was that they were living in the same house,

that they slept in the same bedroom and that

there was one bed in that room. So it was a

circumstantial case and the jury was going to

be asked to draw the inference from those facts

that they had had intercourse on a particular

day.

It was sought to lead the prior acts of

admitted intercourse -the lady had had a child -
to say that it is safe to draw that inference

because previously they had had such relations

therefore on this occasion when we have nothing

more than circumstantial evidence they probably

did so and you can be satisfied beyond all reasonable
doubt that they did.

So it was a case where evidence of prior acts was led to negative what might otherwise

be open, an innocent explanation for a brother

and sister sleeping in the same bed in the same

house.

Your Honour has said that BALL is authority

for the proposition in WITHAM and TJW and it

is often cited as authority for the proposition

in WITHAM and TJW but we submit that it is wrongly

cited for that proposition because WITHAM and

TJW, as Mr Justice Connolly shows in his reasons and Mr Justice Shepherdson in his, go much further

and in a case where there is direct evidence

by a complainant that an act occurred, on the

authority supposedly of BALL, evidence of guilty

passion is led. And the phrase "guilty passion" - - -

McHUGH J:  The word "guilty" is probably unfortunate but

it goes to prove pass ion, does it not? It may

explain the relationship between the parties;

sometimes it would be totally unreal just to

isolate the facts relied on in support of the

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Kerim

charge without having regard to the previous

sexual history between the parties.

MR SOFRONOFF:  Your Honour, that is the reason given by

Mr Justice Stable in WITHAM that it would be

unfair to the Crown, in effect, to put one isolated

act before the jury without having the other

acts of indecent dealing, perhaps for a number

of years, before them as well and that the jury

might say, "Well, we aren't prepared to accept

that this act happened out of the blue.". But

why should they be more able to accept that at

some particular point a man began to act in that

fashion out of the blue?

We submit that the only reason is because they would be given the opportunity to say, "That's

the sort of man he is. 11	And we submit that that
can be demonstrated in this way:	assume,

Your Honour, that a man is charged with an offence

against a girl A and that evidence is sought

to be led that he had had prior indecent dealings,
of a similar kind but not sufficiently similar

to be similar fact evidence, against Band C;

we submit that it is uncontroversial that that

evidence could not be led. It cannot make any

difference if B happens to be the same person

as A.

DAWSON J: Why not? Because, you see, certainly it does

establish a propensity but it also establishes

something else, namely a relationship.

MR SOFRONOFF:  Your Honour, when one says a "relationship"

one must mean, in this context, something other

than father and daughter or step-father and daughter.

DAWSON J:	No, a sexual relationship.
MR SOFRONOFF:	A sexual attraction.

DAWSON J:  A sexual relationship.

MR SOFRONOFF:  Your Honour, the sexual relationship can only

be in a case of unwilling dealing with a child;

one where a man has a propensity to do these

sorts of acts.

DAWSON J: Certainly it proves propensity but it proves

something beyond that.

MR SOFRONOFF:  We submit not because it might well be a

concidence that the particular complainant happens

to be victim through availability. It may well

be that the man is a paedophile and that the

only evidence that the Crown has available to

it is, as in this case, evidence of acts occuring

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Kerim

more than three years prior to the offence.

That does not, we submit, show a relationship;

it shows a propensity. And if the child had

been another child it would not have been admitted.

In our submission, it does not show a relationship.

If the evidence went this far, Your Honour, that

it did show a particular attraction for a

particular person and a desire to have sexual

relations for a particular person then we would

accept that, in common with cases where greed

or revenge, evidence of those sorts of things,

is led in cases of violence or stealing, that

it would be admissible. But the mere acts of

indecency, we submit, do not show that, they

show nothing more, we submit, than propensity.

McHUGH J	Well, GELLIN's case, which is an authority against you, was decided in 1913 in New South
Wales. To my knowledge, at least for 25 years
in New South Wales, this sort of evidence has
been tendered, probably in hundreds of cases,
and I gather from my reading of reports in other happened. So you are really seeking to turn
back the clock in a very large way.

MR SOFRONOFF:  Your Honour, yes, we are. And could we say

this about GELLIN, ETHERINGTON and TJW? They

are, we submit, in conflict with the decision

of the Victorian Full Court in HERBERT and with

the Western Australian Full Court in HORNE, copies

of which I will hand up. In HORNE, the question

was directly raised whether such evidence could

be tendered and the court said, "Only if it goes

to an issue such as to negative consent." For

example, consent is an issue in a rape case,
why did not the girl complain about it, evidence

of prior acts to show that he has intimidated

her is led. HORNE is authority for the proposition,

"Well, if that's the reason you are leading it,"

as it was in that case, "you can but not for

any other reason."

McHUGH J:  But you seem to be categorizing these cases in

various ways to rebut defences, negative, innocent
explanations, and so on, and circumstantial evidence,

but the truth is that they are just all circumstantial

evidence cases, are they not?

MR SOFRONOFF:  Yes, and this case, and the other cases in

which this sort of evidence has been led, are not

circumstantial evidence cases. They are cases of

direct evidence by a girl, and what makes it so

strikingly more believable when she says he has been

doing it for a long time is that the jury can say,

"Well, that is the sort of man he is. He's been

doing it for ages". To take Mr Justice Staple's

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Kerim

point in WITHAM, why should that be less of an
invitation to defence counsel to say, "Why should

this father suddenly have turned into a monster?".

His Honour said, if you lead one act, defence counsel

can say, "Why did this father suddenly become a
monster?", and we submit, firstly, that you would not

be entitled to make that submission. It would be a misleading submission if he knew that there was

evidence to the contrary but, secondly, the

submission could still be made if some prior acts

had been alleged.

So the only purpose, we submit, of leading such

evidence, absent an involved series of transactions

such as occurred in O'REGAN in Queensland where the

father had been refused sexual intercourse with the

wife, that morning he did it with daughter A, then
called daughter Bin and did it with her, and it

was argued unsuccessfully, and correctly, we submit,

unsuccessfully, that the evidence of the two acts

could be tried together and the evidence was
admissible against each other - the same transaction,

just as in this case the indecent dealing in the motel

room was inextricably bound up with the rape in the

motel room, and they had to be dealt with together,

otherwise it would be unintelligible. But evidence
of acts more than three years before, in our

submission, do not show a relationship, do not show a particular desire for this particular girl. They show nothing more than the man is a paedophile.

BRENNAN J:  Why do you say they do not show any desire for

this girl?

MR SOFRONOFF:  I should put it another way, your Honour.

They do not necessarily show a desire for this girl.

BRENNAN J:	Are they capable of showing it?
MR SOFRONOFF:	It is capable, with something more.

BRENNAN J:  If it is capable of showing it, why is not whether it shows it or not a matter for the jury?

MR SOFRONOFF:	Because something more would be necessary before it would be capable of showing it, something
like - - -
BRENNAN J:	What is the something more?
MR SOFRONOFF:	As in GELLIN where not only were there

previous acts of intercourse with the same girl, but

he told her to stop working at Grace Bros I think

it was, began to pay her a wage and, in effect, made

her a mistress. That point was made by the West

Australian court in HORNE, that in that sort of

case clearly it shows a relationship from which one

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can more safely then draw the conclusion that on a

particular day he probably did have sexual

intercourse.

McHUGH J:  What about a case like ETHERINGTON, the South

Australian case? Was it a grandfather and a

daughter - a small girl, anyway?

MR SOFRONOFF:  Your Honour, in ETHERINGTON the case, if my

memory serves me, went a bit further because they were

able to argue on the facts that there were no other

people with an opportunity to commit the acts.	So
it was not just evidence of prior acts, but that
as well.	Our submission is a mere prior history

of dealing improperly with a person sexually,

labelled as guilty passion or labelled as the

true relationship between the parties, does not

raise any inference at all and does not show motive

in that sense. It merely shows a propensity and

a damning propensity and that that is the true

purpose and effect of leading such evidence which

is disguised by asserting that it shows a guilty

passion or that it shows the true relationship or

it shows something else.

McHUGH J:  But it is circumstantial evidence, is it not,

that goes to proof of a fact in issue and, at the
same tim~ just happens to disclose another criminal

offence?

MR SOFRONOFF:  Your Honour, we submit that if that were so then

similarly prior acts of stealing could be

circumstantial evidence and, of course, they are relevant. I think this Court in SUTTON quoted a

passage from BOARDMAN where one of the Lordships

said, "Such evidence is, of course, relevant because

it does show a propensity. Recidivists do tend to

re-offend, but as a matter of policy we exclude it,

because where does it end?" We exclude it and

in my submission, here, yes, it does. As a matter

of common sense, if you like, if a man is shown to

have done it before it is more likely tha~ he would

have done it again rather than a man who has never

been shown to have done it before. But that is

the same with all recidivists, all people with a

criminal bent or a peculiar bent.

McHUGH J:  Well, if you want to talk about disposition, it

may be in these cases it is specific disposition

in relation to a particular person, whereas in the case of a theft you are talking about general disposition.

MR SOFRONOFF:  Yes, Your Honour, but even so we would submit

that it shows nothing more than a propensity. If one could show a particular drive to have illicit

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relations with a particular person - if the evidence

went that far. then we submit that that would be akin to

motive, or hating a particular person led as evidence

that he killed a particular person. But if you just

show that perhaps out of a number of children that

a person has dealt with this happened to be one of

them, we do not know any more - perhaps there were

a number of others, then we submit you have got

nothing more than a bit of evidence of propensity.

The distinction,we submit,is between evidence

which does indeed show a particular propensity,

as Your Honour put it -GELLIN was such a case - and

evidence which shows nothing more on its own than

the propensity. Your Honours, I have submitted

that TJW and WITHAM cannot be supported by the

authorities referred to in them and to save time I

have prepared what I have called a "genealogy" which

lists the cases referred to in each and in the
appropriate case the cases referred to in those

cases with a short summary of what it is rather than

going through each of them.

I would like to go through one or two. Could I

hand up copies, Your Honours?	I have, ~f course,
copies of the cases.

(Continued on page 10)

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Kerim

M.ASON CJ:  Yes, Mr Sofronoff? We do not want to go into the

authorities in too much detail because at the

outset we are considering the case on the basis of

an application for special leave and the question

is whether or not what you want to put by way of
substantive argument is worthy of the grant of
special leave. So, if you would approach the

matter on that footing.

MR SOFRONOFF:  Yes, certainly, Your Honour. If then, by way

of summary, I could say this. Most of the cases

have, as their genesis, REARDEN which, itself, is

referred to in BALL. REARDEN was an old case - may

I hand that up to Your Honour - consistently with

the basis upon which - - -

MASON CJ:	Yes.
MR SOFRONOFF:	Your Honours, while that is being extracted:

REARDEN was a case where a man had been charged

with raping a young girl who lived in the same house

as he and her mother. Evidence was sought to be

led that he raped her on the Tuesday - that is the

charge - and that subsequent rapes

.	occurred on almost each of the days followin8 that
and it was objected to. It does not clearly emerge

what the basis ·was for the application but what

does emerge from Mr Justice Wills' argument and

ultimately his reasons is this, that he refers to

pure circumstantial evidence cases where evidence

of prior acts, albeit, and notwithstanding that
they are criminal acts or show propensity, but
where such acts are led to drive home the
circumstantial evidence and, in particular,

His Lordship said that he himself had let in such

evidence in a case called GARNER. Now, GARNER,

curiously, is almost on all fours with PERRY, where
a man in GARNER had been poisoning with arsenic

various people through the years and it was sought to
lead the same sort of evidence as was led in PERRY
about the previous conduct. And, His Honour

Mr Justice Wills in REARDEN - in GARNER - and we

have that authority here - let in that evidence

because it was a purely circumstantial case.

McHUGH J:  Well, what do you say about the correctness of

REARDEN? Do you say it is - - -

MR SOFRONOFF:  We say it is correct if it is a case about

letting in such evidence either on a circumstantial

case or to negative consent. And, could I deal

with that negativing of consent point? That

appears - - -

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BRENNAN J:  Before you deal with that, could I just take

you to the other basis, and that is the

circumstantial evidence case because it seems

from you argument that you are putting those cases,

as it were, to one side. But, circumstantial

evidence is admissible because of its relevance to

prove the fact in issue.

MR SOFRONOFF:	Yes.
BRENNAN J:	And, if it is right to say that evidence of a

passion between an accused and a female is admissible

in circumstantial evidence cases where some sexual

act is charged, then why is it not a general

proposition that evidence of that relationship or of

that passion is admissible generally, for whatever

purpose?

MR SOFRONOFF:  Your Honour, in the circumstantial evidence

case - and BALL is the best example of that - there

was evidence of actual acts of intercourse between

brother and sister which went this far; that they

lived together as man and wife, that they had a

child together, lived in the same house and from

those facts, which show a true husband and wife

relationship between brother and sister, the jury

were asked to conclude that they could only draw one

inference from their sleeping in the same bed in the

same room on another day. In these cases - - -

BRENNAN J:  In other words, to use the language of the old

matrimonial cases, it was "passion plus opportunity".

MR SOFRONOFF:  Yes, Your Honour and some of the old divorce

cases I have relied upon in these cases as authority.

But, in these cases, that sort of evidence is not led;

~JW is an authority that only that sort of strong

evidence can be led as circumstantial evidence in

any case. TJW is authority that any acts of

indecent dealing that tend to show guilty passion -

or what is called a guilty passion - even three

years ago, as is evidenced by this case, is
admissible.	Now, we submit that that cannot be

wrong and it must be dangerous.

DAWSON J:  I am not sure how you are putting it, Mr Sofronoff.

You do not - and correct me if I am wrong - you are

not saying that if the evidence does establish a

particular sexual attraction towards the

prosecutrix, it is not admissible?

MR SOFRONOFF:	I am not saying that, no.
DAWSON J:	But, you are just saying the evidence does not

establish that in this case?

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MR SOFRONOFF:	Yes.
DAWSON J:	So that you are left with more propensity.

That is really the argument; the cases will not

carry us any further.

MR SOFRONOFF:  That is the argument and, I go further,

and I say that if TJW and WITHAM were to that

effect, then I would not have a ground upon which

special leave could be granted. But, TJW and

WITHAM go further than that and say, as

Mr Justice Thomas said in TJW, evidence of prior

relations is admissible because it tends to show

the true relationship or tends to show guilty

passion which His Honour said - -

DAWSON J:  There must be a limit to that. I mean, 25 years

ago one would think it would be questionable.	It
is a matter of degree, is it not?

MR SOFRONOFF: 

Well, Your Honour, I suppose all so-called

"similar fact" evidence is a question of degree
but, in terms of - - -

DAWSON J: 

But, really what I am putting to you, that you

are just questioning the probative value of this

evidence over and above its value of pure propensity

evidence.

MR SOFRONOFF:  Yes, Your Honour, as a matter of principle

and the submission is that TJW and WITHAM, and

other cases like that, say you can lead it and

we submit you cannot because it - - -

DAWSON J:	You can lead what?
MR SOFRONOFF:	Mere evidence of prior indecent acts,

nothing more than that, just mere evidence of prior

indecent acts. A man has relations with a young boy

on Tuesday; the charge is that he did it on

Thursday; the Tuesday is admissible, according to
TJW.	We submit that that is not right because it

tends to show nothing more than the fact that he

is a paedophile. It does not tend to show that he

has got a particular attraction for that particular

young boy. It just shows that he - - -

DAWSON J:  It does tend to show that. It may be that he

has an attraction for other boys but, at least,

it tends to show that, does it not?

MR SOFRONOFF:  I suppose that is right, Your Honour, yes,

that is right. But not, we submit, such that

one can say as a matter of principle, that evidence

of indecent dealings or sexual contact between

accused and complainant is, because it is evidence

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Kerim

of a so-called guilty passion or evidence of the

true relationship, therefore, admissible. Of

course, once it is in, then, of course, it does

have a strong effect but, we submit, illegitimately.

Your Honours, could I take YGur Honours

shortly to HORNE and HERBERT and then finish on

this preliminary basis? Your Honours, while the

cases are being taken out, HORNE was a case where

a man had b~en charged with cormnitting a rape

on 20 January. _Eviaence was led of another rape two

days, before on 18 January, and it was led to

negative consent only by establishing the course

of conduct by which the girl was terrorized into

acquiescing on the occasion charged, the later

occasion. The two accused were acquitted of that

charge and they were then charged with the rape

which had occurred earlier, on 18 January and

they pleaded autrefois acquit. The sole question

for the West Australian Full Court was whether the

evidence led, at ~he first trial, of the earlier

conduct was sufficient to make that plea good and,

not surprisingly, Their Honours said, "No, it was not a case of autrefois acquit" because they were never in peril of being convicted of the first rape.
But, at pages 11 to 12, the Chief Justice deals with the purpose for which such evidence can be

led and at the foot of the page, after referring

to JONES, His Honour said:

In the case of RV JONES, which was also

a case of rape, evidence was admitted of

a long course of conduct exhibit~d by the

accused towards the girl; not only

evidence of threats and terror exercised

over her, but also of previous acts of

ravishing. Baron Channell, in the course

of the case, said that he was of opinion

that although counsel for the prosecution

must confine himself to the one act of

ravishing charged, he might ask the
witness as to the previous conduct of the
prisoner towards her, not for the purpose
of establishing the particular assault

charged, but for the purpose of shewing that although she submitted she did not consent within the meaning of the consent

required by law; that if the accused set

up a reign of terror in his family and

obtained a certain influence over the

girl in conseuqnce of the fear and dread

she was laboring under, evidence of such

conduct was admissible to assist the jury in coming to a conclusion as to

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Kerim

whether the girl consented or not;

that it was a question for the jury under

all the circumstances whether she

consented of her own free will, or

whether she consented in consequence of

the reign of terror ..... In the case

before the Court there was evidence of

a long course of harsh conduct -

His Honour mentions that -

I think, therefore, that following the

opinion expressed by Baron Channell,

in RV JONES, it was open to the
learned Corrnnissioner to admit evidence
of the previous conduct of the accused
towards the girl with a view, not of

convicting him of the offence of rape,

because he had upon previous occasions

raped her, but of satisfying the jury that

his course of conduct was such as to

terrorise the girl to such an extent that

she submitted through fear of the

consequences which would follow if she

resisted.

Could I take Your Honours then to - - - ?

BRENNAN J:  Well, just put that to the test. Let us assume

occasion 1 x', with which I am charged, no	that the accused was prepared to say, "That on
consensual act took place between the girl and me".

MR SOFRONOFF:  Your Honour means no act?

BRENNAN J:  No consensual act. "And, indeed, I say, no

act took place but, certainly I do not for a

moment suggest that the girl consented".	On this
ruling, it would be inadmissible to adduce

evidence that he had raped the girl on the previous

half a dozen nights. "Consent" not really being

in issue.

MR SOFRONOFF:  Yes, and if that were the only - I am sorry,

Your Honour, no, because if he had raped her on

the preceding six nights you might well be into a

case of similar fact evidence where to prove an
event you prove a peculiar species of conduct which,

on Your Honour's example, would be admissible.

McHUGH J:  But, similar facts evidence is geneally almost

exclusive, is it not, dealing with relations

between the accused and third parties?

MR SOFRONOFF:  Yes.

BlT2/5/JH	14	29/6/89
Kerim

McHUGH J:  It is always circumstantial evidence, is it

not, in this class of case?

MR SOFRONOFF:  Yes, and we, for our part accept, that if

the evidence was led that tended to show a

peculiar course of conduct by the accused which

tended to negative his denial of the occurrence on the date charged, then it would be admitted, as it

was in SUTTON, for example, notwithstanding that

it was the same complainant; whether the same or a

different would not matter. And, if I could

respond then to the question Your Honour

Justice Brennan asked me, in the example

Your Honour gave me, it would be admissible probably on that basis, remarkable if it was not.

BRENNAN J:  Well then, I suppose this comes back to a

question that was put to you earlier, I think,

by Justice Dawson, that is that it really comes

back to a question of the nature of the probative

force of the act in question here.

MR SOFRONOFF:  Yes, Your Honour, but that is, we submit,

a question of admissibility, not discretion.

BRENNAN J:  Of course.

MR SOFRONOFF:  Yes. And so, our submission is that it is

incorrect to say,that as TJW purports to do and

as WITHAM does, that in general evidence of such

acts can be led simply as going into the melting

pot because it is a factor that tends to show

guilty passion or something else.

Could I just refer Your Honours to the other

passage in HORNE? Mr Justice McMillan, at the

top of page 15 deals with the basis upon which the

evidence was admitted:

If that evidence was admitted for the

purpose of proving what has been called a

reign of terror, I think it was rightly

admitted; if it was admitted for any

other purpose, it was improperly admitted.

Then, His Honour deals with it. And, about half-way

down, he deals with REARDEN and says:

I doubt very much, however, whether

Mr Justice Wills in that case intended to

deal with the matter in any way different

from that in which it had been dealt with

by Baron Channell in the case of RV JONES,

because, although there are certain passages

in his observations, during the course of

the argument and in his judgment, which can be

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relied upon - and were strenuously

relied upon in support of the
proposition that these offences were a

continuous offence - yet, I think, if

one looks at the whole case it would

seem that what was really influencing

the learned Judge in that case was the

fact that by admitting the evidence

which was tendered it would shew the

real nature of the case with which the

prisoner was being charged.

Your Honours, finally, could I refer you to

HERBERT, a copy of which, I think, has been handed

up.

McHUGH J:  HERBERT is not really in point, though, that it is a

subsequent act case, is it not?

MR SOFRONOFF:  Well, WITHAM says prior or subsequent,

Your Honour - I am sorry, TJW. The question was,

whether on the authority of the recent decisions

of this Court, prior and subsequent acts cannot be

led and the CCA said, "Well, it can".

McHUGH J:  Yes, well, I would have thought "subsequent acts"

might be in a different class.

MR SOFRONOFF:  Yes, well, REARDEN which is the, as I said,

the genesis of it all, was 'subsequent acts"

and, in my submission, subsequent acts are in a

different class but they are not treated so by the
authorities.

Your Honours, could I take you to the foot of page 346 and over to page 347:

(Continued on pagel7)

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MR SOFRONOFF (continuing):  After dealing with cases of pure

circumstantial evidence and so on, at the foot of

page 346 the Chief Justice went on to deal with

another class of cases which he said:

sometimes obscures the clearness of

this proposition.

His Honour went on at the foot of page 346:

Evidence is clearly admissible as to acts

which are so closely connected with the

act charged as to form part of the relevant

circumstances.

We would submit that that is correct, with respect, as

charges 2 and 3 were related here.

The facts forming the history of the acts constituting the offence charged

cannot be excluded without rendering

such acts unintelligible. And facts

which are relevant from that point of

view are not excluded by reason that they show that the prisoner has been

guilty of other offences than the offence
charged.

McHUGH J: Is he talking soley about a res gestae case?

MR SOFRONOFF:  No, Your Honour, he is, I gather - consistently

with a case like O'REGAN in this State - talking

about offences which happen to occur in a way that
they are so related to each other that one simply

cannot separate it as happened in O'REGAN where - - -

McHUGH J: Yes, I know O'REGAN.

MR SOFRONOFF:  Yes.

You can show the history of the offence, and you are not precluded from doing	that merely because there is involved in
it a criminal history of the prisoner.
The case of RV GELLIN is an example of
this class of case. It was necessary to make the commission of the offence charged intelligible to show the
relations which existed between the
prisoner and the girl; that was shown by the history of their previous relations -
that they were old acquaintances, that he
was in the habit of taking her out, that
he had given her money, and so on.

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Could I just pause there, Your Honours: and that he had invited her to leave her place of employ and that he instead paid her the wage.

That was merely the history of the

case, and was admissible although it

involved the disclosure of other offences

with which the prisoner was not charged.

All the cases which have teen decided

in which evidence of similar acts by the

prisoner have been admitted are explained

on one or other of the principles I have

mentioned. In the case of RV REARDEN the

prisoner was charged with raping a little

girl on a Thursday; she did not complain.

Subsequently he had connection with her

again, and on the Monday, the mother,

seeing something, questioned the girl .....

The girl alleged that when the prisoner

did the act with which he was charged on the

Thursday he threatened her. Willes, J, admitted the evidence as to the subsequent

acts of connection because they were so
close to the act charged as to form part

of one transaction, and the girl had said

nothing on account of the terror with which

the prisoner had inspired her. The Judge

admitted evidence of all the acts as being

one continuous act, all influenced by the

terror of the child in the first instance. intelligible, but I think it may be

understood on the principles which I have

stated.

For all these reasons, the evidence

in question here appears to me to be

not admissible.

Your Honours, those are our submissions, unless

there is something else I can say· to assist

Your Honours.

MASON CJ: Thank you. The Court will take a short adjournment

in order to consider the course that it will take

in this matter.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.02 AM:

MASON CJ:  The Court need not trouble you, Mr Nase.

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We are not persuaded that the evidence in

support of the first count in the indictment was

inadmissible in relation to the second and third
counts or that its reception resulted in a

miscarriage of justice in the trial of those two

counts.

Accordingly, the application for special leave

to appeal is refused.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE

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