Kiellerup v The Queen

[1999] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 1998

B e t w e e n -

PAUL KIELLERUP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 12.42 PM

Copyright in the High Court of Australia

MS S.J. POINTING:   If it please the Court, I appear on behalf of the applicant.  (instructed by Noel Woodall & Associates)

MR D.L. MEREDITH:  Your Honours, I appear on behalf of the respondent, with my learned friend, MR C.W. HEATON.  (instructed by the Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Ms Pointing.

MS POINTING:   Your Honours, the point of special general importance raised in this case concerns the use of evidence of uncharged criminal offences as proof of a guilty passion.  Essentially, the question and the point raised is whether it is proper for the jury to be instructed that they can more readily infer guilt from evidence of uncharged criminal offences where that evidence has not itself met the standard criteria or test for propensity evidence and has been, it may be said, introduced as part of the background and part of the evidence that is described in the case of Gipp v The Queen as tending to establish the background.

Now, your Honours, if I might just refer to the two short passages which are specifically complained of in the trial judge’s summing up, and I will take your Honours to page 10 of the record, at about line 55, where the trial judge states in reference to this uncharged evidence:

Human nature, being what it is, then if you accept that he did have that inappropriate sexual interest in the child then you may more readily conclude that he touched the child in the way she has described with respect to these four charges.

Again, his Honour refers to a similar proposition in respect of another piece of the evidence at page ‑ ‑ ‑

CALLINAN J:   But, Ms Pointing, he does go on to say that:

it is important to keep in mind that you are trying him on these four charges and these four charges only.

MS POINTING:   Yes, certainly, your Honour.  Of course, the summing up should be viewed as a whole, however, in my submission, this particular case, where there are two identifiable passages where his Honour has specifically invited the jury to infer guilt from the evidence of the uncharged acts, and infer guilt of the offences, particularly where they have not been instructed that these other offences, the uncharged offences, must be proven beyond reasonable doubt and his Honour has not said this simply once.  He has given his judicial weight to the proposition twice and he has, in fact, said that human nature tells us that if somebody commits an offence, or if somebody engages in conduct of this kind on one occasion, then you can more readily infer that they have done it again or that they have committed the offences.

CALLINAN J:   Was it not accepted by, at least, the majority of the Judges in Gipp, that evidence of a guilty passion could be received?

MS POINTING:   Your Honour, I do not believe that there is a yes or no answer to that.

CALLINAN J:   There have been earlier decisions which made that plain and I rather suspect that my decision which went further, perhaps, than some of the others in Gipp also made it clear, did it not, that the evidence could be received if it was evidence of a guilty passion?

MS POINTING:   Yes, your Honour.  However, the question that was not considered in Gipp, is whether or not the jury can be told that they can infer guilt from a guilty passion.  That they can actually use that evidence as mere propensity evidence.  So, essentially, the decision in Gipp, whilst it was addressed to the more general allegations and the basis for admissibility of evidence of uncharged acts in circumstances where the jury are told it forms part of the background, we have quite a dissimilar situation here where the jury are invited, not just to simply view it in context, look at it as part of the background, but to take that further step and, essentially, reason that the defendant or the applicant may be guilty of these offences because he has previously committed similar offences.

Your Honour, the decision in Gipp, in my submission, does not specifically address the question of guilty passion evidence and the two questions raised from this particular matter here are whether or not the court can instruct a jury that they can infer guilt from evidence of a guilty passion in the first place.  In other words, whether the trial judge has erred in this particular case in so instructing the jury.  Or, alternatively, whether, if that guilt can be inferred, that evidence must then meet the same test as propensity evidence must travel through before it is admissible in court.

McHUGH J:   One of your problems is, is it not, that not only was the admissibility of this evidence not objected to, but counsel who appeared did not seek any relevant direction?  There was a direction sought at page 30 but it is in terms which is substantially different from the issues which you now point to.

MS POINTING:   Your Honour, the direction that was sought is, perhaps – it is a bit difficult to understand what direction was, in fact, being sought.  However, one of the meanings that can be attributed, certainly, to that statement by counsel, was that the jury should be instructed that this is not part of the background behaviour, that the offences are not part of the continued background, and that these offences are quite separate and it would be wrong of the jury to say, “Because he has done it in the past, he has possibly done it again”.

McHUGH J:   Yes, but it is a different point than the point which you seek to make, is it not?

MS POINTING:   Your Honour, in the sense that I seek to attack the basis of the admissibility of the evidence in the first place, yes, it is.  But, certainly, there is two sides to my argument and the other is whether the jury, in any event, should have been directed that they could infer guilt.

McHUGH J:   But do you not also have another hurdle to overcome on a special leave application and that is that the only ground argued and determined by the Court of Appeal was that the convictions were unsafe and unsatisfactory?

MS POINTING:   Certainly, your Honour, I do, and that is readily conceded in the outline and, by the same token, the Crown readily concede that the authority of this Court in the past and, particularly, in Gipp, the same situation arose and that where there has been a manifest miscarriage of justice, that it is in the interest of justice for the Court to determine the point.  Your Honour, whilst it was not argued in the Court of Appeal, certainly the judgment does make reference to the trial judge’s summing up and commends it as being very careful directions to the jury which, in my submission, could not be said, in view of the fact that it has been used as propensity evidence.

When one looks at the directions of the trial judge, they are quite contradictory because, on the one hand, his Honour directed the jury that it was not to be used as propensity evidence, it was not there to show that this man had a disposition for committing these types of offences.  In the next paragraph, his Honour goes on to invite the jury to infer guilt.  So, essentially, in my submission, a direction is required, or some authority is required from this Court to say that evidence of a guilty passion is not able to be used to infer guilt in the circumstances, that is, as evidence of propensity to commit offences, unless it meets the strict test of admissibility in respect of similar fact evidence.  Your Honours, there are obviously, in my submission, quite good reasons for that. 

McHUGH J:   This is a most unpromising vehicle for the grant of special leave when it concerns a direction and a failure to direct; no relevant point is taken at the trial; no relevant point is taken in the Court of Appeal and then you ask the High Court to grant special leave to appeal because the judge did not say something which may or may not have affected the result of the case.

MS POINTING:   Yes, your Honour.  However, in my submission, the matter that brings this – well, the feature of this case that involves the manifest miscarriage of justice is the clear statement - two statements - made to the jury that they can infer guilt.  It is not a situation of the jury simply not being addressed that they should not infer guilt because they have actually been told that they should or that they are able to and, in my submission, it is quite clear from the summing up that they have been invited to do so. 

CALLINAN J:   I do not read what his Honour said at page 132 that way, I must say, Ms Pointing.  His Honour was making it clear, I thought, that he was speaking about the possibility or, perhaps, even the probability of an inappropriate sexual interest in the young female child which is another way of saying that, perhaps, guilty passion.  But then his Honour clearly went on to say that they had to keep in mind that they were trying him on the four charges only.  I do not think his Honour invited them to infer guilt from the propensity.  What his Honour was saying was there was evidence which was capable of establishing an inappropriate sexual interest.

MS POINTING:   Your Honour, when reading the summing up as a whole, in my submission, however, the further reference ‑ ‑ ‑

CALLINAN J:   Yes, you were going to give us the further reference ‑ ‑ ‑

MS POINTING:   The further reference is at page 12 of the record, 134 of the transcript, lines 25 to 40, or line 30 to 40.

CALLINAN J:   Sorry, what page?

MS POINTING:   Page 12 of the record, page 134 of the summing up.

McHUGH J:   Page 134 at the bottom.

CALLINAN J:   Thank you.

MS POINTING:   Where his Honour again goes on to say:

And the same comment I made a few moments ago about human nature being what it is – it may allow you to more readily conclude that if a man has that sort of inappropriate interest in a female child, he may indulge that interest on other occasions.

The particular type of evidence we were talking about in this case was – one of the parts of the evidence was specific evidence from the mother of the complainant when she spoke of the complainant lying beside her, the applicant on the other side, she awoke in the middle of the night, found his hand on her daughter’s crotch, and the explanation was given for that, that the applicant was not aware that he was doing that on purpose and it was done whilst asleep.

Now, in my submission, one of the reasons for assessing that particular piece of evidence on the test for admissibility of similar fact evidence or propensity evidence, is because the trial judge is obviously in a far better position to assess whether or not there is a reasonable or rational explanation of that evidence, and to simply give that task to the jury is inviting or is allowing the jury to, perhaps, give some greater significance to that evidence than would otherwise be given to it by the trial judge.

McHUGH J:   I keep coming back to the point that I put to you.  You want us to lay down a rule of law - we do not have the advantage of the judgments in the Court of Criminal Appeal on the matter, point was not taken at the trial.  It makes it very difficult to grant special leave.  Justice Hayne and I have gone so far as to say that we doubt that there is any constitutional basis for doing it but it was done in Gipp but, nevertheless, it has to be an exceptional case to allow a point to be taken about a direction that was not raised at the trial and was not raised in the Court of Appeal.

CALLINAN J:   Ms Pointing, I think some of these matters that you are raising are really dealt with in Gipp which may have been decided at about the same time as his Honour’s summing up.

MS POINTING:   Perhaps some of the matters raised in my summary of argument, are raised, certainly, in Gipp, yes.  In my submission, however, the point raised, certainly this morning in oral submissions, was not addressed in Gipp.

CALLINAN J:   I think some of the comments that were made in Gipp may cover it, Ms Pointing, I am sorry, having regard to the view that I take of the summing up.

MS POINTING:   Certainly, your Honour.  Perhaps, your Honour’s judgment in Gipp may cover this particular situation, however, I can only say that to allow a decision of the Court of Appeal, even in spite of the fact that there is not a lengthy consideration of this issue, but to allow a decision of the Court of Appeal to stand in this particular case is to allow an authority, in Queensland, to exist, which trial judges obviously have regard to.  There is the risk that trial judges may ‑ ‑ ‑

CALLINAN J:   Trial judges will have regard to Gipp now.

McHUGH J:   To Gipp, and, in addition, this judgment does not deal with the points you are raising for the very point that they were not raised before the Court of Appeal, or before the judge.

MS POINTING:   Yes, your Honour.  In respect of the decision in Gipp, I can only say that found in certain of the judgments in that decision there is some reference to guilty passion evidence and, in my submission, the references found therein do not consider whether guilty passion evidence is capable of – or has to be assessed on the same test as similar fact evidence.

CALLINAN J:   Well, yes, it does.  I adopted some things that have been said by Justice McHugh in earlier cases.  There are some other matters that, perhaps, there may have been some difference between Justice McHugh and myself, but I have referred to a number of cases which earlier his Honour had referred to and accepted the proposition and, I think, restated it, that, subject to proper directions, evidence of a guilty passion could be received.  There are numerous earlier statements by not only Justice McHugh but other judges of this Court, to that effect.

MS POINTING:   Well, your Honour, in my submission, the statements do not go as far, or certainly are not examining propensity evidence, or are not examining the guilty passion evidence in light of that ‑ ‑ ‑

CALLINAN J:   Yes, but guilty passion evidence may be different from propensity evidence.  You speak as if they are the same.  Each is a separate head of admissibility.  There may even be cases, perhaps, in which the evidence would be admissible on either basis but, certainly, there will be many cases in which admissibility will depend upon either one or other of those heads.

MS POINTING:   Yes, your Honour.

CALLINAN J:   But they are both discussed at some length by three of the Judges, at least, in Gipp, and they have been discussed by other Judges of this Court well before that in other cases.

MS POINTING:   Yes, your Honour.

McHUGH J:   Ms Pointing, in your written submissions you contend that the evidence should not have been admitted at all.  You have not said anything about that in your oral submissions here today.  Do you ‑ ‑ ‑

MS POINTING:   Your Honour, in my submission, the evidence I have referred to – not the general evidence, the specific evidence of the mother – I do submit that that should not have been admitted at all, simply because the test for that, again, as I have earlier said, is whether or not that evidence has some rational or reasonable explanation, and I refer to the test as formulated in the decision of Pfennig.  Whilst there was, again, no argument in court on that issue, again, your Honours, the evidence itself, as I have earlier said, was so prejudicial and so slightly probative, even where the mother herself, the person who brought forward the evidence, acknowledged that the defendant, or the applicant, awoke and straight away stated that he did not know where his hand had been.  So, that evidence, in my submission, for the same reasons that it should be subjected to the tests of the similar fact evidence, or the propensity evidence, should not have been admitted. 

Your Honours, apart from my outline in that regard, I do not believe I can take you any further.  The only other feature, certainly, with regard to your Honours’ comments earlier, pertaining to whether this matter should be ventilated in this Court, as I have outlined at the conclusion of my written summary of argument, being that the – and one of the compelling reasons, and there are a number that combine together, some of which have obviously been considered by this Court at length, previously, including the failure to give the direction of the kind considered in the decision of Longman v The Queen.  The other, very unsatisfactory, in my submission, feature of part of the evidence, is found at page 9 of my outline, page 64 of the record.  Perhaps, I can refer your Honours to, firstly, page 3 of the outline at the bottom of the page headed “Other Evidence”.  The complainants mother gave evidence of a vaginal problem that the complainant child had had.  She had suffered from a – describing it as a red vagina, and stated when she had suffered this problem.  There was no other evidence as to exactly what caused the problem.  A police officer, however, was called to say that he attempted to get some medical records from a doctor in Mt Isa but had been told that they were destroyed.

Now, in my submission, that evidence, itself, should not have been left before the jury because it invites speculation, nothing more than mere speculation.  In fact, it could be seen, on one side of the evidence, that the Crown has – or that the police officer is adding some credence to the evidence by trying to locate records and the jury might take some inference

from that.  There was no direction on that at all, not raised, I concede, by defence counsel at the trial.

McHUGH J:   Yes.  I notice your time is up, Ms Pointing.

MS POINTING:   Thank you.

McHUGH J:   Thank you, very much.  Yes, the Court need not hear you, Mr Meredith. 

The applicant, who was convicted of four counts of indecently dealing with a girl under the age of 14 years, seeks special leave for appeal against an order of the Court of Appeal of Queensland dismissing his appeal against the convictions.  He contends that some evidence directed to prove a guilty passion for the complainant should not have been admitted.  He also raises questions concerning the grounds for admitting and the appropriate directions applicable to evidence of guilty passion.  He also complains of the failure to give a Longman direction.

No objection was taken to the admissibility of the evidence at the trial.  A redirection was sought in respect of the guilty passion evidence but it was made in terms which are substantially, indeed, dramatically different from the directions which the applicant now contends should have been given.  No request for a Longman direction was made, nor would it appear to have been a case which required one.  In the Court of Appeal, the only ground argued and determined was that the convictions of the applicant were unsafe and unsatisfactory.  In these circumstances, the case is not such an exceptional case as calls for the grant of special leave to appeal.  The application is dismissed. 

AT 1.06 PM THE MATTER WAS CONCLUDED