KSB v The Queen

[1992] HCATrans 223

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IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1992

B e t w e e n -

K.S.B.

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

B(2) 1 6/8/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 AUGUST 1992, AT 2.13 PM

Copyright in the High Court of Australia

MR s.w. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR S.H. PILKINTON, for the

applicant. (instructed by Porter Pilkinton)

MR K.J. CRISPIN, QC:  May it please the Court, I appear with

my learned friend, MR P.S. HASTINGS, for the

respondent.	(instructed by the Director of Public
Prosecutions)

MASON CJ:  I should say at the outset that I express the

Court's regret that counsel have been held up so long but the circumstances were beyond our control.

MR TILMOUTH:  May it please the Court. We have endeavoured

to trim our argument in view of those exigencies

and, indeed, I think the Court would have by now

the written outline for both parties, in fact.

MASON CJ: Yes, we have.

MR TILMOUTH:	Your Honours, I think, would also have a summary of the evidence. There should be a short
chronology and summary of the evidence.
MASON CJ:	Mr Tilmouth, we will just take a minute or two to

read through your outline of submissions.

MR TILMOUTH:  May it please the Court. The other materials

we submitted by consent of my learned friends was a

legislation summary.

MASON CJ: Yes, we have that.

MR TILMOUTH:  I will deal with the legislation a little

later but the point is that for current

purpose ..... there is comparable legislation; there

are some differences but there is comparable

legislation in all but Queensland and the Northern

Territory to the section under consideration here.

Your Honours, because of the factual summary,

I will not go into the facts at all in detail but

may I just spend a minute in opening explaining why

it was that the defence introduced the evidence of

prior conduct, why it had to, in the nature of the

case.

The case was, of course, one of a general

denial, and that would be obvious from the papers.

And, of course, the applicant himself had given evidence that he had embarked upon a new course -

he was on a suspended sentence, of course - and

there was no way, as he put it, that this was going

to happen again.

B(2) 2 6/8/92

In effect, the case for him was that the

allegations were not new but they arose out of the

old 1984 matters and that these were just a

repetition of them, at least in the case of the

first three charges; the third one was new on its

facts.

Your Honours, at the risk of simplicity, there

were three reasons why the applicant was locked into having to bring up these previous matters,

despite their obvious prejudice. This is just our paraphrase or summary; I can go to the evidence if

needed but this is a quick paraphrase.

The first was this, Your Honours. The

applicant's case was that there had been, on one or

two occasions, a threat by the daughter arising out of the family situation, which was not good, at the

end of the arguments that had been had. The threat was, as the applicant gave evidence, in effect, "It took a phone call to bring you back, and it'll only

take a phone call to send you away again".

That was in reference to, of course, the fact

that the applicant had come back into the family

home at the request of his daughter, the

complainant - she had telephoned him - and it was

also a threat made in the context that she had

known from the 1984 matters, and had been told,

apparently, that if this happened again she could

complain in the same way she had before. Put

another way, the only way he could explain the

threat was necessarily by reference to the 1984

matter. So it had to be raised in that context.

The second of the three factors was this: on

the· complainant's evidence, and it was agreed by

the father - he had come back into the family home

·in about November 1984, and the new series of

conduct commenced about 13 months later, in

December 1985, count 1.

Now, of course, as the Court would know the

initial complaint was not made until 2 December

1988, three years later in round terms, and part of

his defence was that there was no complaint
because, simply put, there was no misconduct to

complain about, and force was given to that

argument because, again, the complainant had

readily agreed that not only had she complained and

knew, therefore, how to complain about the 1984

matters, but that she had been told by the

authorities if it happened again it was simply a

matter of a phone call, to paraphrase the threat

argument in order to complain about any resumption

of the conduct.

B(2) 3 6/8/92

So, once again, the defence could only give colour to the lack of complaint by eliciting the

fact that she had previously complained, she knew

of the mechanism for complaint and knew and had

been told that it was simply a matter of advising

the authorities again if this misconduct rearose.

And the third issue was this, Your Honours,

that there was no complaint at all in the December

1988 interview when the first complaints were made

as to the second count which is the intercourse
count. Indeed, not only was no complaint made
about it at that time but several times the

complainant was asked whether there was

intercourse, and again this is my rough paraphrase,

but had expressly disavowed, on the applicant's

case, at least three times that there was any

intercourse at all from 1985 onwards. She had

expressly said things like, "That only happened the

first time" or "That only happened in 1984" which,

of course, was a denial, in effect, that it had

happened later.

So, in the first complaint of December 1988

there was an express disavowal of any intercourse

whatsoever, but in the complainant's own terms, the

terms of that omission by her in effect were a

reference back to the 1984 matters -

that did not happen now; it happened in 1984.

So in order to tease out the selective complaint,

as it were, the only way the applicant could do

that was again to draw out the 1984 matters to

show, because of the terms that the complainant had

used to exclude intercourse on the recent bout of

complaints, was to show the contrast in actually

employing the words she had said, such as:

That happened the first time.

That did not happen now, it only happened in

1984.

So, Your Honours, in short then, the applicant was

locked into teasing out the earlier matters,

despite their obvious prejudice. Now, that

occurred as well in the context of the fact that

the Crown had expressly elected not to call the

evidence for any purpose, and that appears at

pages 5 to 6 of the application book, Your Honours.

There was a preliminary argument on the issue of whether there should be a closed court, I think,

and during the course of that argument, at the

bottom of page 5, His Honour the trial judge asked

the prosecutor, three lines from the bottom:

B(2) 4 6/8/92

Just let me ask you this; you mention evidence

of other incidents which - and indeed of

previous convictions, as I understand it.

What evidence will you elicit from the victim?

Mr Lalor: I will elicit none but I imagine my

friend will because that is his defence.

His Honour:  You are going to elicit evidence

of the three counts?

Mr Lalor:  I am sorry, I will not elicit -

"evidence" probably should be in there -

of prior convictions, I will elicit evidence

as I have opened to the jury only.

His Honour: But you have not opened similar

facts?

Mr Lalor: No, and I will not - - -

His Honour:  You are not going to lead similar

fact evidence?

Mr Lalor: No.

His Honour:  So your evidence is confined to

these three occasions?

And the prosecutor said:

That is right, Your Honour.

So the Crown had not sought to rely upon this

evidence on a similar fact basis and, it was not mentioned, but obviously on any other footing on which it might have been justified as evidence of

guilt. Now, what happened, may it please

Your Honours, is, as Your Honours will see from the

but the evidence was introduced by the defence - by	summary, and I will not refer or read the evidence,
the applicant - in cross-examination of the
complainant, and the evidence is outlined there,
and it was introduced in chief by the applicant as
well - some more detail was given - and some
further detail was elicited in cross-examination
about the earlier 1984 matters, extending the
period and so on. All of that is outlined in
Your Honours' summary which you have there.

So the case progressed, as it were, as counsel

had predicted it would, during the course of

preliminary argument. Now, Your Honours, could we

say this, and this is made clear in our written

outline: we do not pretend for a moment that once

B(2) 6/8/92

it was in it was only in for the limited purposes

at the behest of the defence, for the reasons I

briefly outlined a few moments ago. We concede

that if it was properly admissible and properly

dealt with on adequate directions to the jury, it

could have been admissible for other purposes.

Unnatural relationship is one which was referred to

in the judgments. We concede that point. We do

not concede it was admissible on a similar fact

basis, but it would not matter if we concede it is

admissible generally anyway. Nor do we argue

against the proposition it was capable of amounting

to corroboration.

In other words, Your Honours, we are not

saying, simply because the Crown disowned leading
it that they were foreclosed from relying on it for

proper purposes later on. Not so. Once it was

admissible it was admissible for proper purposes on

proper directions.

We should add this, however: on my

instructions the Crown did not in its address to
the jury rely on it either on a similar fact basis

or on the unnatural relationship basis which

His Honour the trial judge, as upheld in the Full

Court, said it was admissible. The first time that

it came out on this wider basis was in His Honour's

directions to the jury.

It is true - and the directions are at

page 88, may it please the Court, from the middle

of the page, and this is the passage Your Honours
no doubt would have read as well isolated by the

Full Court in its judgment at page 109, the same

passage I am about to go to. This was the first

time during the trial that the question of

·corroboration had arisen in the way that His Honour

left it to the jury. His Honour began with this

expression:

Now, a lot has been said to you about the need

for corroboration.

That arose from submissions made to the jury by my

learned junior. He mentioned to the jury about the

need for corroboration and made submissions to them

there was none. On my instructions that is the

only basis during the course of the trial that the

question of corroboration had arisen until these

directions came.

Now, as the Court knows, the directions on

corroboration put the 1984 matters on a wider
footing than just relevancy to the defence case,

and put it as being corroborative and,

Your Honours, the key directions go for two pages

B(2) 6 6/8/92

through to page 90, and I will start by reading

some of it. I acknowledge, of course, that the

directions on corroboration must be considered as a

whole both under the subject-matter of

corroboration and in the context of the whole

summing up. I may, of course, isolate passages

about which we complain, but those principles we

have in mind.

It commenced in this way, may it please the

Court - this is page 88 line 31:

Now, I have to give you a direction of law

about corroboration in this case, which is a

sexual case involving a child. I am required

to warn you that it is unsafe to convict a

person charged with a sexual offence on the

uncorroborated sworn evidence of a child.

What you have to determine is whether - first

of all - whether there is any corroboration of
the sworn evidence of Kerri. If there is,

then you could ignore that warning because you

would be entitled to convict on the sworn

evidence of Kerri supported by the

corroborative evidence.

I cannot see any reason why you would not

accept the corroborative evidence, but if you

did not, for some reason accept the evidence

of corroboration, which I am going to tell you

about, then you would have to have regard to

the warning that it is unsafe to convict on
the uncorroborated sworn evidence of a child.

First of all, I tell you what corroboration

is, and it is what you would expect it to be.

It is some independent testimony, that is,

independent of the child which affects the

accused by connecting him, or tending to

connect him with the crime and which confirms

in some material particular -

and I do not read on from there; it is a standard

Baskerville direction. There has been some more

recent law, of course, as to whether Baskerville is

actually right, but there is no problem about that.

Then, on 89, His Honour gives an example in the

next paragraph - I pass over that, it is irrelevant

for our purposes - and continues in this way, at

line 14:

Well, I tell you as a matter of law -

it is a significant expression, in our submission -

that there is - that you may find this is very
strong corroboration in this case. It is a

matter for you, but the evidence of

B(2) 6/8/92

corroboration, which you may regard as
corroboration, is the accused's own evidence
of his having committed acts of indecency of
the very type alleged against him now and of

his having done that prior to July 1984 when

he was charged and pleaded guilty in the

Magistrate's Court.	The acts which he
admitted were those -

and they are outlined in the next three lines.	It
continues, at line 26:

You may think it is difficult to conceive of stronger corroboration of an allegation of a

sexual offence than the admission of the

accused that he had previously committed

indecent acts of the very nature of which he

is now charged upon the same person; it seems

to be very strong corroboration indeed.

Incidentally, it appears from his

cross-examination -

and then a further particular, which is outlined in

our summary which was elicited in cross-examination

is mentioned, of previous misconduct. His Honour

then, at line 37, mentioned the policy, and I will

make submissions about the relevance of the

policy - but I will just read it - which underlies

the warning or warnings.

You may think it helpful if I endeavour to

identify the rationale of the rule of practice

which requires the jury to be warned of the

danger of convicting on the uncorroborated

testimony of the victim of a sexual offence.

Your Honours will note the contrast. On the

previous page it talked about sexual offences and

children; this direction now relates solely to

sexual offences, or this part of it does, anyway.

That rationale is that, as a matter of common

experience, people do sometimes tell an

entirely false story, a story which is very
easy to fabricate and extremely difficult to

refute. Therefore, the traditional wisdom is:

it is wise for juries to be warned that they
should look for independent evidence.

Again, that was the traditional warning at least

before statutory intervention, in sexual cases that

is to say. I read on, Your Honours:

But independent evidence coming from the

accused, himself, which tends to show sexual

desire for the victim, and some measure of gratification of that desire, supports the

B(2) 6/8/92

case for the prosecution because it is

consistent with the allegations that the

accused now faces and makes unlawful and

unnatural behaviour credible; it explains the

whole thing. And it may serve to allay any

concern that the jury - you - may be having

that Kerri's allegation is a fabrication. How

much weight you attach to it is for you. But

what I tell you is, that is very strong

corroboration if you accept it and there is no

reason why you should not accept it, coming

from his own lips.

The plain evidence from the accused himself of

the prior sexual conduct of which he pleaded guilty is very potent corroboration and very incriminating so far as these present

allegations are concerned, which Kerri now

makes. Nevertheless, I say again, you should

scrutinise her evidence with special care, and

if after giving her evidence that special

scrutiny you are satisfied that she is

thoroughly reliable, you can act upon her

evidence without any corroboration, but as I

have already told you, there is very

substantial corroboration of her story from

his own admitted guilty conduct towards her in

the few years earlier.

May it please Your Honours, I am sorry to have read

it all, but it is at the heart of the case, apart

from the question of the statute. What our

submission about it is is this: it is true that

there are at times expressions embedded within
these two pages such as, "It is a matter for you

how you regard it", and so on, but fairly read, may

it please Your Honours, our submission about that

is that when His Honour was talking in those terms,

such as at page 88, around about line 35, "you have

to determine whether" and so on, it appears those

and similar phrases are used more in the context

not of "It's a matter for you. I'm directing you

that this is capable of being corroboration, but

it's a matter for you to determine whether it is".

It is our respectful submission that fairly

put, when His Honour has qualified his directions

by those and similar phrases that he is really

talking about the quality of the evidence rather
than its capacity as corroborative evidence. In

other words, if one were to isolate those various

passages, His Honour is not saying, as he

traditionally should do, "I direct you as a matter

of law this evidence is capable of being
corroboration, but whether it is corroboration is a
matter for you", His Honour is really saying, "It

is corroboration, but how strongly you regard it is

B(2) 9 6/8/92

a matter for you." Put another way, it is a

direction about the quality of the corroboration,

but not the initial requirement whether it is

corroborative or not.

The second submission is in any event,

Your Honours, that overall the directions were very

emphatic and very strong. In all there are eight

directions which, in our submission, fairly read as

a whole and in proper context were really

directions that this is very strong corroboration

and were not directions that, "It's for you to

determine whether it is corroborative."

Can I just identify them. I have read the

passage as a whole. We submit they are as follows:

page 88, about line 43, the passage commencing:

I cannot see any reason why you would not

accept the corroborative evidence -

is the first. The second is at page 89, line 14:

Well, I tell you as a matter of law that there

is - that you may find this is very strong

corroboration -

That is an example as well as the first submission

I put:

there is - that you may find this is very

strong corroboration -

Those words "that you may find" are more indicative

in our submission of a direction not that it is

capable of being corroboration, but more that "You

may find it's very strong corroboration" - quality,

not quantity, as it were.

The third similar direction is page 89,

line 26, the passage commencing in the middle of

the page:

You may think it is difficult to conceive of stronger corroboration -

et cetera.	The fourth of these passages is at 89,
line 31:

it seems to be very strong corroboration - The fifth is at page 90, approximately line 7 - at

all events, the last three lines of that paragraph

at the top of page 90:

But what I tell you is, that is very strong

corroboration if you accept it and there is no

B(2) 10 6/8/92

reason why you should not accept it, coming

from his own lips.

The sixth particular, is at line 11 on page 90 -

is very potent corroboration and very incriminating so far as these present

allegations are concerned.

The seventh is the very last part of the same

direction, lines 19 to 21:

there is very substantial corroboration of her

story from his own admitted guilty conduct

towards her in the few years earlier.

So, Your Honours, what we submit all of that comes

to is that the directions were in their total

effect directions to the jury that this evidence

was very powerful corroboration indeed and left out

the required step that this is capable of being

corroboration, what you make for it is for you to

determine.

The Full Court agreed with the submission but applied the proviso, at page 120, in these terms -

at the top of that page, dealing with this

submission, the Full Court dealt with it in this

way:

Finally, it was submitted on behalf of

the appellant that his Honour was in error in
his summing-up in directing the jury that

evidence of the prior acts of indecency and

intercourse amounted to corroboration,

amounted indeed to very strong corroboration,

rather than directing the jury that they might

find such evidence was corroboration if they

were so minded. There is some force in this

submission.	The passages relied upon as
constituting error proceed from the premise

put to the jury by his Honour that there was

no reason why they should reject the accused's

evidence. They go on to state in very clear

terms, in the first instance "that is very
strong corroboration", in the second instance
"the plain evidence from the accused .... is
very potent corroboration and very

incriminating", and in the third instance,

"that is very substantial corroboration of her

story". These directions on their face would

appear to direct the jury that the accused's

own evidence goes beyond providing material

for the jury to evaluate and assess as to its

weight and corroborative effect and to give

clear instruction that that evidence

B(2) 11 6/8/92

constitutes (not may constitute) corroboration

of the complainant's evidence.

Such passages must be read in the light

of the whole of the summing-up. It is true,

as Gibbs J said in Kelleher at 555, that "for

a judge to decide that the evidence capable of

corroborating the complainant does amount to
corroboration and that therefore the jury need

not guidance as to the manner in which

uncorroborated testimony should be approached,

would be to usurp the jury's function".

That, of course, is our point, in a nutshell.

Nevertheless, there was ample guidance to the

jury in this case. The trial judge gave the

jury adequate directions about their exclusive

role as finders of fact, he explained to them

the difference between questions of law and questions of fact and emphasised on several
occasions not only that the weight of evidence

was a matter for the jury but that the

evidence of the complainant had to be

scrutinized with special care. He also gave

adequate direction about the standard and onus

of proof and of what was meant by

corroboration. Taking the summing-up as a

whole including the.passage quoted earlier in this judgment in which, amongst other things,

his Honour instructed the jury on the footing

that it was a matter for the jury to determine

whether the accused's evidence amounted to

corroboration, the jury could not have been

left in any confusion about their role or how

they should go about deciding whether they
accepted the evidence of the complainant to

the extent necessary to found a conviction.

With respect, it is agreed that in other parts of

directions about onus of proof, if they could not	the summing up His Honour gave perfectly standard
be satisfied where the truth lies their duty was to
acquit, the facts were for them, the law was for
him and so on. But there is two points we make
about that: the first has already been made, the directions were so emphatic and so compounded over
seven passages which we have isolated that they
unquestionably, in our submission, amounted to a direction that this was corroboration of the strongest variety or, at all events, they were so
strong that when the Full Court said they could not
have been left in any confusion, in our submission,
was putting it too highly for an appellate court.

The second and other point is this: at

pages 82 and 83, His Honour gave perfectly usual

B(2) 12 6/8/92

directions about the jury's role as arbiters of the

facts as to the law. Page 82 line 21 and the five

or six that follow. I do not read it,

Your Honours; it is perfectly standard. And at

page 83, right at the top of the page, line 2:

the law you must accept -

And line 11 to 12:

On the other hand, my directions on the law

are binding upon you.

And Your Honours may recall one of the passengers

in this corroboration direction was, "I tell you as

a matter of law" and so on, but Your Honours, there

was a direction on page 84 which, in our respectful

submission, rather limited the jury's role as

arbiters of the facts, and which should be

considered in this context of the application by
the Full Court of the proviso, and this is at
page 84 line 12 or 13, point three of the page, the

fresh paragraph:

So your role is to decide the facts. And I

should give you some assistance as to what a

fact is. A fact is one which answers the

question, "What did happen?" If it is an

answer to that question, "What did happen?"

then it is for you to determine. And you will

see that that is precisely what your function

is in relation to the three incidents, which

are charged as counts in the indictment. What

did happen?

Of course, in relation to the corroborative

material, that did happen, of course; that was an

'admitted fact. The question, of course, is what

use the jury can make of it, and I have already

made my submissions about the emphatic nature of

the directions.

Your Honours, the next point is that the

direction at page 89, the policy direction which I

read in the paragraph commencing at line 37, was a

direction related to sexual cases and the policy
outlined had nothing at all to do with the

infirmaties, if any, of child witnesses as distinct

from complainants in sexual cases simpliciter and,

in our respectful submission, had nothing at all to

do with the facts of this case. What was in issue

had nothing to do with the fact that the

traditional Henry v Manning direction was given.

The facts and the areas in dispute were those I

have outlined in brief earlier.

BRENNAN J:  How does this lead to relief for your client?

B(2) 13 6/8/92

MR TILMOUTH: Well, in two ways, may it please Your Honour:

the first is, in our submission, a direction would

have been better directed towards the more

traditional reason, Dossi's case and perhaps

Hargan's case, at least Justice Barton, to

explaining why there may be difficulties with child

witnesses.

BRENNAN J: But this girl here was of fairly mature years.

MR TILMOUTH:	She was, but as the Full Court said, the learned trial judge had obviously seen her and made
up his own mind that a direction was appropriate in
this case. The Full Court relied on the Court of
Appeal in England in Morgan for that. In Morgan's
case the child there, or one of the children
anyway, was also 16 years of age. So, the answer
is, with respect, the learned trial judge felt the
need for the warning, he being in the better
position to assess the situation.
The second answer, with respect, anyway is that the appropriate warning to avoid a perceptible
miscarriage of justice would have been more one
directed to the question of the threats. Had Kerri
shown moral responsibility in making the threat,
she admitted she had made them; initially she
denied having made them, but when confronted with
the record of interview she had given, she admitted
that she had threatened in the manner I have
explained on a couple of occasions. And a better
direction would have been directed towards her moral responsibility in making a threat -

it is only a phone call to bring you back, and

another one to send you away -

indicated a degree of moral irresponsibility so far

as the consequences were for her father.

BRENNAN J:  I must be missing something, Mr Tilmouth. Do

you say there is some obligation to give such a

direction?

MR TILMOUTH:  Yes we do, if the Court pleases, arising from

common law, from Dossi's case and from Hargan's

case, and it is a separate warning in the case of

child witnesses. Our submission is that that rule

has developed quite independently of the Henry and

Manning and Kelleher rule in sexual cases alone.

But the real point in this case is that the

direction that I have just identified at page 89

had nothing to do with the facts of the case at

all. It was quite irrelevant to the issues which

had been joined. It was a direction, in any event,

as to traditional sexual cases and had nothing to

do with infirmities of age.

B(2) 14 6/8/92

Your Honours, we have outlined the policy

which has underlied cases like Dossi and Hargan and

so on - paragraph 6.1. We do not pretend a proper

direction in this case would have in any way dealt

with all those matters. Briefly stated, what we
submit would have been an appropriate direction

here would have been the question of moral

responsibility or irresponsibility - I have dealt

with that - the question of the failure to complain

until December 1988 when these matters are

commenced in 1985; the selective complaint which I

have already outlined; the delay in making the

complaint and so on. And the other thing, with

respect, to say about this direction, both

generally and in its specific application to the
policy, it was counter-productive in this case

because it had the effect of highlighting the

evidence of previous matters which, of course, was

extremely prejudicial when it was put in this

light. Its real basis for admission for the

defence case was to draw the distinction and make

the contrast between the ability to complain

before, the failure to do it this time and so on,

whereas these directions over these two pages

hammered, with respect, its prejudicial feature and

left aside its other aspect of supporting the

defence.

The other thing to say, with respect, is this,

before I come to the question of the statute and

the statute is essentially that which we build the

special leave point around. The directions as the

Full Court acknowledged came from the case of

McKeon, Justice Connolly, which is referred to in

the Full Court judgment and I do not go to it, it

is pages 116 to 117 of the application book. But
in.that case, Your Honours, it is true that

Justice Connolly did describe evidence of this kind as potentially being strongly corroborative, but in

that case there were five counts over a number of years. The accused in that case had made denials

and was acquitted on the first four but had made a

very cogent confession on the last count -
contemporaneous confession - the count being of
intercourse involving all but intercourse taking

place.

Now, of course, it is very easy to see on the

facts of that case that a confession to all but

intercourse on the very precise occasion that that

count 5 related to was clearly capable of being

cogent corroboration and, in our submission, to

simply lift a judgment in a Full Court on a

different factual basis and put it into a summing

up in this case, and not only call it corroborative

evidence or capable of being corroborative because

of the unnatural relationship which it was capable

B(2) 15 6/8/92

of disclosing, but elevating it to the status of

you could hardly think of stronger corroboration,

very incriminating and so on, was putting it

entirely out of its place in the context of this

case.

DAWSON J:  You do not say it was not capable of being

corroborated, do you?

MR TILMOUTH:	No, it was on proper direction.
DAWSON J:	By way of similar fact?
MR TILMOUTH:	No, on the basis it showed an unnatural

relationship in the past.

DAWSON J: Yes.

MR TILMOUTH:  The basis upon which the Full Court held it to

be admissible. We entirely accept that line of

reasoning, and that His Honour would have been

justified, despite the posture of the Crown, in

directing the jury that it was capable of being

corroboration on that footing whether it was - - -

DAWSON J: Even though it was not admitted for that purpose?

MR TILMOUTH: That is right. It was admitted by the defence

for a limited purpose but it really, with respect, opened the field of the father's relationship with

his daughter. I suppose it was relevant whether

the judge wanted to put it to the jury on that
basis or how strongly he put it that the Crown were
not relying on it. But we accept it was capable of

being admissible on the footing of unnatural

relationship.

DAWSON J;	The Crown did not rely on it, of course.
MR TILMOUTH:	No, they did not.
DAWSON J:	I suppose when evidence is in it can be used for

whatever purpose is useful.

MR TILMOUTH: For proper purposes, yes, and on proper

directions. I have said that a number of time

because as the Court knows from our outline, we say

that there was failure to give usual directions

about impermissible use and so on. I will deal

with that in a moment.

BRENNAN J: But once in - I know that you are saying with

proper directions and so forth, but could you make

this more specific? In what way should the jury

have been directed, in your submission?

B(2) 16 6/8/92

MR TILMOUTH: Well, apart from the matters we have outlined

in paragraph 6.3, traditional warnings about

directing juries not to regard it as evidence of

propensity or bad character, to deal with each

count in isolation, and so on, the real issue, with

respect, was this: had that relationship continued

or resumed after the father came back into the

house, or had it been completely severed? A proper
direction, in our submission, would have been
something along the lines roughly put this way:

this evidence has been introduced by the defence

for these reasons. It is capable, however, of
members of the jury corroborating the evidence of

Kerri if you accept that the relationship continued

or resumed. But to simply direct the jury, because

it happened in the past, therefore it was cogent

corroboration as to later events, in our

submission -

DAWSON J:	You see, I do not understand that.
BRENNAN J:	I do not understand it either.
DAWSON J:	You talk about relationship, and I know guilty

passions, and so on, and I know Ball's case talks

of all of that, but I thought in modern times we

recognize that whatever term you use, this is

propensity evidence. It shows a propensity if it

was so on the part of this man to engage in that

conduct with that particular person. Now, we keep

propensity evidence out usually unless its
probative value is such as to outweigh its

prejudicial effect. Now, I find it a little

difficult to fit all this into these circumstances.

MR TILMOUTH: Well, with respect, if the evidence was only

that he had done it in the past without relating it

to the future, it would only have been disposition

evidence or -

DAWSON J: That is all it ever is.
MR TILMOUTH:	Yes, I accept that and I understand the line

of reasoning in Harriman and S v Reg and so on.	It
has to be more than just propensity.	It has to be

highly relevant or one of the other tabs that are

used.

DAWSON J: In fact, really, when you look at propensity

evidence it is not very much different to the
ordinary rule that you do not admit prejudicial

evidence unless its probative value warrants it.

MR TILMOUTH: Correct.

B(2) 17 6/8/92

DAWSON J: And we all went up all sorts of paths after

Makin's case and we are only coming back to the

true path now.

MR TILMOUTH:  Yes. But with respect, Your Honours, this

evidence only became highly probative as to the

three counts on this information if the jury had

first accepted that the previous relationship had

continued or resumed. If they had found that as a

fact, of course, they would have essentially

resolved the main issue. They would have found the

applicant guilty on one or a number of the counts.

But if it was left simply as "he has done it

before; therefore, it is strongly corroborative of
the fact he would do it again", that is no more

than saying - - -

DAWSON J: Yes, but I do not know whether this fits in with

your case, but it is just the trouble that I

have - it was admitted for a particular purpose,

the evidence - - -

MR TILMOUTH:	Yes.
DAWSON J:	- - - but if the judge had had to consider

whether it would be admissible as propensity

evidence, relationship evidence if you like, then

he would have had to consider whether, in fact, it
had a probative value which outweighed its

prejudicial value.	He did not consider that
question.	But then in coming to see what it could

be used for, surely he did have to consider that

question, and if he considered that its probative
value was slight in relation to prejudice, he

should have told the jury, "You cannot use it for any other purpose than the defence put it forward

for", and therefore then it could not be

corroboration.

MR TILMOUTH: Well, I accept that, of course, and our

concession that it is capable of being

corroboration is only on the footing that it is

first shown that the relationship has resumed,

otherwise it was only propensity or disposition

evidence which was not elevated beyond the required

status to make it highly relevant in the Harriman -

BRENNAN J: That was the very fact which the evidence was -

if it were corroboration - was being tendered to

prove.

MR TILMOUTH:  Well, as His Honour put it to the jury it was,

with respect, but better directions, with respect,

than those given here were required.

B(2) 18 6/8/92

Could I further answer Your Honour

Justice Dawson this way: there was no discussion

at all about the footing or the uses of this

evidence during the course of the trial or before the summing up. At the conclusion of the summing

up there was. At page 95, for the first time this

matter was raised. There had been no suggestion

any earlier in the trial that this evidence was

going to be used against the applicant, so to

speak, and as I mentioned earlier, even the Crown

did not, in its address, use it in this way.

At page 95, after the jury retired and counsel

were invited to seek further directions, my learned

junior said, at line 32, that there were two

matters:

Firstly, sir, in relation to your Honour's

correction of what I said; I would submit,

your Honour, that given the Crown specifically

declined to lead similar fact evidence in this

case, the prior convictions of the accused

could only become admissible in the way that I

suggested to the jury.

And His Honour said:

No, but that is not what you put to the jury.

What you put to the jury was that he had given

evidence and frankly admitted his prior

criminal conduct.

And there was further discussion and Mr Pilkinton,

at page 96, about line 9 or 10:

But with respect to the matters that

happened - arising out of which the accused

was convicted, I would submit that that

evidence was not admissible except through the

accused, for the reason that he advanced it.

HIS HONOUR:  I do not agree.

And Mr Pilkinton then raised, in the middle of the

page, about line 23, again the fact that the Crown

had disowned the evidence, as it were, at the start

of the case, and then His Honour raised the

question of Justice McHugh, in particular, in

Harriman's case, at lines 32-33, and then another

point was discussed.

Over on page 97, His Honour mentioned McKeon's

case, the case I have already mentioned in passing

a moment ago, and the basis upon which the evidence

was admitted, as His Honour put it, in that first

largish paragraph on page 97:

B(2) 19 6/8/92

I suggest you look at -

McKeon's case - it has got "Keogh's case" there,

but it is just an error -

which is reported in 31 ACR ..... And they say

in that case that admissions by an accused

person of prior sexual behaviour with the
victim in a criminal case is corroboration of

the victim's story.

MR PILKINTON:	Even of later events?
HIS HONOUR:	Even of later events. Yes, of

course. Corroboration of the later events

and - - -

MR PILKINTON:	Even though they might be some
years apart?
HIS HONOUR:	Even so.

MR PILKINTON: It seem illogical, with

respect.

And His Honour goes on to state the basis on which

he put it to the jury:

No, I do not think it is illogical at all for the same reason it shows the guilty passion

and the gratification of that passion.	I
mean, it is a quaint term but both

Mr Justice Connolly and Mr Justice Thomas so

describe it and I find myself in complete

agreement.

So His Honour had let it in on that footing. Can I

remind Your Honours again, in McKeon's case the

evidence was an admission that the very conduct

alleged in count 5 had occurred on the day and the

time and place specified, except for intercourse

taking place, and it is easy to see, on those

facts, that that kind of admission is plainly

capable of being strong corroboration.

This case was different. The previous conduct

was at least 13 months old; it involved similar

matters in two counts and dissimilar in one count;

and the real question was whether, when the

applicant came back, he had stopped what had

happened in the past or whether he had resumed it.

And until the jury had found, in effect, that there

was a link between the past and the present, the

previous conduct could have been no more than

simply either propensity evidence simpliciter - - -

DAWSON J: Which the Crown was not alleging in -

B(2) 20 6/8/92

MR TILMOUTH:  No, quite, or as a disposition without more -

DAWSON J: It is the same thing.

MR TILMOUTH:  - - - unrelated to time and place and

circumstances we have here. So the concession is

made that it was capable of being corroborative,

but only in - - -

GAUDRON J: For my part I do not understand that concession.

I just do not see how it ever gets to that point.

If you can explain it to me, I would be grateful.

MR TILMOUTH:  Perhaps the concession is too readily made,

but the answer to it is in our paragraph 6.5. The

concession is made earlier in paragraph 6.3, but

what we were saying was in 6.5 - - -

GAUDRON J: Yes, but that is meaningless, is it not, unless

they act on the uncorroborated evidence of the

complainant to reach that position?

MR TILMOUTH: That is correct.

GAUDRON J: And that is the very reason why the

corroboration warning is being given, namely that

they should not act on the uncorroborated evidence

to reach that position.

MR TILMOUTH:  Yes, I accept that, may it please Your Honour.

If they had found beyond reasonable doubt, as in

6.5, that the relationship had continued, they have

essentially found the charges have been proved. As

Your Honour points out, to do that divorced from

the previous misconduct must have been on the
uncorroborated evidence of the child alone. In

effect, deciding that the conduct had continued or

resumed was deciding the central issue. Perhaps it

is rather inelegantly expressed, at least in oral

argument.

GAUDRON J:  It is not the elegance of the expression that

worries me; it is the validity of the concession.

MR TILMOUTH:  That is what I was referring to. The

concession is made in 6.3 that evidence, generally

speaking, of prior acts is admissible, but the only

basis upon which we could see it admissible in this

case is on the 6.5 basis. That, of course,

involves a circularity of reasoning, as in Perry's

case. There was no link other than the fact it
happened in 1984 with the current spate of charges

at all. There was no nexus, there was no

contemporaneous admission, there was no

corroborative event or any other matter.

B(2) 21 6/8/92

DEANE J: But can you not test it in the abstract? Assume

the charge was of these offences and there was no

evidence of previous offences, but there was
evidence that 14 months before these offences the

accused had written a letter saying, "I have an

overwhelming unnatural passion to have relations

with my daughter". To my mind that would be

tremendously strong corroboration.

MR TILMOUTH:  Yes, it could be.

DEANE J: If that is corroboration, if evidence of facts

which show that he had that abnormal passion

14 months ago, must equally be corroboration not

because of the criminal convictions, but because of

what they show.

MR TILMOUTH: With respect, the first example, the 14 months

letter, is capable of showing a link or a thread

with the subsequent conduct because it is a

confession about general desire. In this case the

situation was quite different.	The man had come
back - - -

DEANE J:  I follow the facts, but assume in this case he had

denied the previous conduct and it was proved.	It
must have been corroboration. The fact that he
admits it surely may make it less powerful as

corroboration, depending which way you see the

case, but it does not stop its corroborative value

in terms of these offences.

MR TILMOUTH: With respect, the difficulty is, in our

respectful submission, the one that has really been

debated -

DAWSON J: In fact there is no doubt the evidence, once in,

was probative for the purposes for which

Justice Deane says it is. That is obviously why it

is excluded, unless it is sufficiently probative

because it is strong evidence, likely to be

prejudicial, but the worry is that it was only ever

admitted on a limited basis and the trial judge

never faced up to the question, which is a serious

question, whether he should admit or exclude it as

propensity evidence. Without any debate on that subject he then brings it in for that purpose as

corroboration, that is my difficulty.

MR TILMOUTH: 

Yes, and nor did he, with respect, consider

the question, "Well, if I am going to admit it on
such wide a basis, what is the basis?", and nor,

with respect did he consider, "Well, what

directions do I give to overcome prejudice?",

Your Honour Justice Brennan in Sutton's case. The

difficulty is, in one sense, evidence of an

unnatural relationship is so unusual that one can

B(2) 

6/8/92

see its probative force, in general, but in this

case there was a threshold question about

admissibility because the real question was whether

there had been a severance, which was the

applicant's case.	"No way", he said, "was I going
to engage upon this again.	We are starting a new

life. She invited me back on the suspended

sentence - - -

DAWSON J: That would be a relevant circumstance - a very

relevant circumstance - for the judge to take into

account in deciding whether to exclude this as

propensity evidence, or to let it in.

MR TILMOUTH: It would, indeed, and further, with respect,

even having decided to let it in, they would be

relevant subject-matters for a proper protective

direction against improper prejudice, and that is

why, as inelegantly expressed as 6.5 may be, the

only basis upon which this evidence could have been

admitted on the Harriman principle, or a proper

propensity basis, if there was connection in the

first place - - -

DAWSON J: A sufficient connection.

MR TILMOUTH: 

A sufficient connection of the highly

probative kind, which made it probative rather than
simply just prejudicial of the later matters, and

it is evident from the debate from Your Honours,

with respect, on one footing, it could be
admissible, but there are a number of preconditions

to its admissibility in the end result which meant

that the jury, if they were satisfied that the

relationship had resumed or continued, they had
found against the applicant on the central issue.

But, in any event, even if it was rightly admitted,

· clearly with respect a number of preliminary

directions were required as to how the jury should

use it, if at all, over and above those I have

already mentioned in the context of the

corrob9ration direction.

So, with respect, in a sense, it might be said

that the question of whether it was admissible at

all arose, and that partly depended upon whether it

was too distant in point in time and place to be

highly relevant on these matters, or alternatively,

even it was admitted as having some connection, in

our submission, clearly proper and substantial

protective directions were required.

Your Honours, the other thing we submit about

this is that the direction, certainly the policy

explanation at page 89, the Henry and Manning

policy direction, was simply an infringement of the

statute. Your Honours have the statute in the

23   6/8/92

materials we have submitted and the relevant

statute section is section 76F of the Evidence Act

of the Australian Capital Territory. That

provision, Your Honours, is also in the

Full Court's judgment at page 111. Paragraph (1)

of that section abolishes:

any rule of law or practice requiring the

corroboration of evidence -

warning be given - in the fourth line of that

subsection - I only paraphrased for time purposes -

uses the word "abolished" in relation to prescribed

sexual offences. Your Honour, these offences here, the indecency and the intercourse, were prescribed offences within the meaning of the Act.

Subsection (2) goes further, however, to provide

that:

Nothing in this section shall affect the right

of the judge in prescribed sexual offence

proceedings to comment on any evidence that

may be unreliable but the judge shall not, in

such proceedings, give a warning to the jury

to the effect that it is unsafe to convict the

accused person on the uncorroborated evidence

of the complainant.

And our submission is, and I will come to Longman's

case in a moment, that is the very warning that was

abolished and prohibited which was given at page 9,

line 37 and those which follow. The other thing to

notice about this provision, Your Honours, is that

it saves - - -

BRENNAN J:  I do not understand how it is that if a warning

which is in aid of the defence is given in breach

of the statute that that somehow allows the defence

a ground of appeal.

MR TILMOUTH: With respect, Your Honour, the Full Court made

that point and said, in effect, we had a double

warning, a child's warning and a sexual offence

warning. Our submission is - and I endeavoured to

make it earlier - the warning was inapplicable and

inappropriate to the case and was counter-

productive. What was required here, with respect,

was a specific warning which dealt with the issues

in the case rather than some general policy

consideration such as that evident at page 89.

BRENNAN J: What should have been said?

MR TILMOUTH: With respect, as I outlined earlier, in this

case, the moral responsibility of the child, that

is one of the traditional bases of the warning

against convicting on the evidence of children.

B(2) 24 6/8/92

BRENNAN J: What do you mean "the moral responsibility of

the child"?

MR TILMOUTH: 

In our submission, there was evidence that the

16-year-old girl, she had threatened her father
with the phone call issue, that showed, with

respect, a degree of irresponsibility on her part

towards the consequences which her father would

face, "It took a phone call to bring you home and

one to send you off".  It was a very serious matter

for the applicant, of course, if she made a false

complaint which, of course, was our case.

The fact that she made those threats showed a

degree of irresponsibility or immaturity, at least,

towards the consequences which would ensue for her

father had she carried those threats out.

BRENNAN J:  I am sorry, I am quite lost, Mr Tilmouth. Do

you mean that a child who if, in fact, being

violated by her father said that, that that would

indicate some lack of moral responsibility on that

child's part?

MR TILMOUTH:  Not per se, of course, not. It might show, on

one view, a high degree of moral responsibility.

But, in this case, Your Honours, that threat was

made as she eventually admitted, in the context of

there being family disputes and in the context of

her not having complained for quite a period of

time when, on her own evidence, this relationship

had resumed in December 1985. The complaint was

not until three years later. It was in that period

of time, although the evidence was very imprecise

as to when these threats were made, that it was

alleged and conceded that she had made these

th~eats. If they were hollow threats, not based

upon offences, then they were very serious matters

so far as the father was concerned.

DAWSON J: Your real complaint is that the reasons why it is

unsafe to convict on the uncorroborated evidence of	a child are different from the reasons why it used	to be thought that it was unsafe to convict on the
uncorroborated evidence of a sexual complainant.
And the judge, in getting it wrong, did not explain
to the jury why it was that you needed
corroboration of the child.

MR TILMOUTH:  Quite so, and the reason he gave was not only,

in our submission, forbidden by the statute but it
did not have any meaning in the context of the
case. If the judge warns the jury it is dangerous
to convict and then gives a completely, with
respect, inapplicable reason for it then the
warning is really not of much value if the reason

given for it does not arise in the case.

B(2) 25 6/8/92

BRENNAN J:  It would be even more meaningless if you were to

say that because children of tender years cannot be

relied upon to observe things properly, may not
recall things properly. You are not suggesting

that that is - - -

MR TILMOUTH:  No, as I said earlier, with respect, in that

paragraph where we set out the policy reasons

behind Dossi, we have just set out all of them as

they appear in the cases. All we suggest in this

case is the type of warning that I have already

outlined, something that had relevance to the case.

This directection, with respect, in the policy

given was perfectly irrelevant. Not only, with

respect, was it compounded by the corroboration

warning in general but the policy given - - -

DEANE J: But when you look at it, it is not all that

irrelevant. I mean, it was quite helpful:

as a matter of common experience, people do

sometimes tell an entirely false story, a

story which is very easy to fabricate and

extremely difficult to refute.

I mean that is spot on here.

MR TILMOUTH: Well, with respect, that has superficial

attraction because, in a sense, that was the

applicant's case; it is easy to make and it was

embedded in the threat, but it had nothing to do

with traditional wisdom; it had to do with the very

unique facts of this case, so quite unique indeed.

DEANE J:  But it was a good warning to get in the context of

this case.

MR TILMOBTH: Well, in our respectful submission, as it

turned out in its context, it was quite

counter-productive, because although, in one sense,

our case was that it was easy for her to make, but	the applicant was saying, well she was making these threats and could have easily made the complaint,	she had not made it for three years. But that
arose out of these circumstances of the case; nothing to do with sexual cases or traditional
wisdom. Those reasons arose for entirely different
reasons than the facts of this case. I accept the
superficial attraction but,with respect, when one
thinks about it, in our submission, it really did
not ring true here. And, in our respectful
submission, the directions along the lines I have
indicated were required.

May it please Your Honours, the point I was

developing was that the direction contravenes

section 76F and without reading the legislation on

B(2) 26 6/8/92

the summary that Your Honours have, can we simply

make the point that the ruling in this case, which
condoned the direction, in the Full Court that is

to say, is not just an isolated piece of

legislation; it is one that is in fairly comparable

terms, except for the Northern Territory and

Queensland.

Your Honours, I do not read the legislation.

Our summary is divided into three parts: absolute

prohibition, which this one is, Victoria; partial

prohibition as in the case in Longman, the Western

Australian prohibition, and may it please

Your Honours, the discretionary sections are 5 and

6 in New South Wales and South Australia. But, may

it please the Court, our submission is that the
effect of Longman's case is on any of this

legislation that the direction of this kind,

certainly at page 89, was forbidden by all the

comparable legislation.

May it please Your Honours, could I take the

Court very briefly to Longman's case,(1989)

168 CLR 79. The legislation, as I have said,

involved here was the Western Australian

legislation, which is what we have put under the

partial prohibition provision - partial prohibition

type of legislation - and the provision is outlined

at page 83. The difference between it and the

current legislation is that the judge, under

paragraph (b) of the Western Australian provision,

was entitled, at least so far as the legislation

was concerned, to give a warning, provided he was

satisfied that such a warning was justified.

Now, what this Court held, in our submission, ~as that whatever warning a judge might have

decided to give in order to avoid a perceptible

risk of miscarriage of justice, it could not be a

warning of the Henry and Manning, Kellaher type;

that is to say, it could not be a warning of the

type that His Honour gave at page 89. At least the

policy reasons for it were prohibited.

Now, the passages which support that

proposition, Your Honours, are in the joint

judgment of Your Honours Justice Brennan and Dawson

and His Honour Justice Toohey, at pages 84 to 85.

I do not read the long passages there.

Your Honours point out at 85 to 86 that the

legislation, although apparently giving a

discretion to give a warning, abolishes the

traditional Henry and Manning warning, over on to

page 86, but leaves intact - this is towards

point 4 to point 5 on page 86, just above the

references to Bromley and Carr:

B(2) 27 6/8/92

the special rule, the general law requires a

warning to be given whenever a warning is

necessary to avoid a perceptible risk of

miscarriage of justice arising -

and our submission, of course, would add to the

authorities, apart from Bromley and Carr, such

authorities as Dossi and Hargan, as an additional

category.

BRENNAN J:  I do not know that that is quite what was said

there because he left out the words "from the

circumstances of the case".

MR TILMOUTH: That is true.

BRENNAN J:  The Dossi case is where you are looking at

witnesses of a particular class.

MR TILMOUTH: That is right.

BRENNAN J: And it is a very different category.

MR TILMOUTH:  In our submission this legislation has

expressly, of course, and the other legislation

that is set for those mentioned under 7 and 8 which

have express provisions in relation to children,

the Victorian one abolishing the Dossi direction

and the New South Wales one leaving it permissive

rather than mandatory, in our submission the other

legislation leaves the Dossi type warning intact if

it exists as a warning required as a matter of

practice.

But, with respect, the passage, although all of. these pages are important·, the passage I would

highlight, if the Court pleases, is a passage on 87

and then one on 87 and 88, in which three Judges of

this Court said, towards the middle of the page,

page 87 I am now on, this is five lines from the

end of that paragraph: 

A warning may be required because of the

circumstances of the case other than, albeit

in conjunction with, the sexual character of

the issues which the alleged victim's evidence
is tendered to prove. Paragraph (a) leaves

that situation unaffected.

And can I read on because this is what we submit is

the case law forbidding a comment like the one in

this case:

Furthermore, what par. (a) abolishes is

the requirement to give a warning, not a

judge's discretion to comment on the

circumstances of the case. No longer may the

B(2) 28 6/8/92

judge tell the jury that it is dangerous to

convict in the circumstances described in par.

(a) because the experience of the courts has

shown it to be so, but the judge may invite

the jury in sexual cases (as is done in other
criminal cases) to make their own evaluation
of the alleged victim's evidence in the light

of common human experience. By force of par.

(a) alleged victims of sexual offences no

longer form a class of suspect witnesses, but

neither do they form a class of especially

trustworthy witnesses. Their evidence is

subject to comment on credibility in the same

way as the evidence of alleged victims in

other criminal cases, but to comment only.

Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by

phrase, gesture or intonation, a caution about
the general reliability of the evidence of

alleged victims of sexual offences which is

tantamount to the warning the requirement for

which par. (a) eliminates.

Now, that is saying on the case law no more, in our respectful submission, than section 76F(2) says,

but the point is that the other legislation here,

which is dissimilar in some respects to the current

legislation, has been interpreted as Longman as

forbidding the traditional Henry and Manning

warning like that given on page 89. And that is

why, we submit, the special leave point arises on

the question of whether this is a proper direction

in view of fairly common legislation.

Your Honours, without reading further from

Longman's case, Your Honour Justice Deane, in our

submission, was of like mind. Page 95 the second

half of the page, where - this is my paraphrase of

all of that passage - Your Honour said that the

prohibited, they were Your Honour's words, and traditional Henry and Manning warning is positively	likewise His Honour Justice McHugh, at pages 106 to
107, at point 6 to 7 on page 106, in the last three lines of that paragraph, His Honour said:

The legislature may not have intended to

abolish the traditional rule. But that seems

to be the practical effect of s. 36BE(l)(b).

In other words, on all of the six pieces of

legislation on our legislative summary the

practical effect of that legislation is to abolish

a direction of the type given at page 89, and the

express terms of section 76F, of course, do the

same thing.

B(2) 29 6/8/92

Your Honours, the error, therefore, in our submission, in the Full Court, was in accepting

that this was a proper direction in light of the

statute. The Full Court considered the question,

at page 111, and asked itself, after the quotation,

or stated that:

A threshold question is whether the trial

judge was bound to give any direction about

corroboration at all. The rule of practice
that once required a jury to be warned against

convicting on the uncorroborated evidence of a

complainant on a charge of rape or other

offence of a sexual nature has been abolished.

And of course that is right. Section 76 is
mentioned. Then, after referring to the section

entirely, Their Honours went on, at page 112,

line 25, as follows:

The effect of the section is to impose a

general embargo on a judge giving the

conventional warning, but the embargo is

lifted to preserve any rule of law or practice

which requires a judge to warn the jury of the

danger of convicting on the uncorroborated

sworn evidence of a child.

Kelleher and Hargan are mentioned.

At page 113, the Court went on to consider the issue of the proper direction in the case and

mentioned - I do not read it, Your Honours -

Dossi's case, for example, at the bottom of

page 113, and concluded, at page 114, the last two

lines of that first paragraph:

The need -

for a direction -

(such as it is) remains in the Australian

Capital Territory.

In other words, the need for a warning in

accordance with Dossi, or a warning in relation to

children, the Full Court, in our respectful

submission, held it was still necessary.

Their Honours went on to consider Morgan's

case, which I mentioned in answer to one of

Your Honour's questions earlier, and to conclude at

the bottom of that paragraph that His Honour:

was entitled to follow the rule of practice

and draw the jury's attention to the danger of

B(2) 30 6/8/92

convicting on the uncorroborated evidence of

the complainant, having regard to her age -

despite the fact that it was 16 - and in our

submission there the matter should rest - and at

page 121, Your Honours, came to the conclusion, at

line 17 - and I think Your Honour Justice Brennan

has already mentioned this to me:

Indeed it could be said that his Honour

went beyond what was necessary in his warning
against convicting on the uncorroborated

evidence of the complainant, because he also

told the jury of how "the traditional wisdom"

perceived danger in convicting on the

uncorroborated testimony of the victim of a

sexual offence. Such a warning was not

necessary in the light of s.76F of the

Evidence Act. The accused had in effect the advantage of a double warning to the jury on

the suspect nature of the complainant as a

witness -

and so on. But, in our respectful submission,

apart from the points I have made to Your Honours

about what a proper direction should have been,

related to the facts of this case, our submission

was earlier and is now that it was counter-

productive for the reasons I have outlined but,
with respect, the error of law in the Full Court

was, in saying, at page 121, that the warning stood

- although it was not necessary it stood as a valid

warning as against section 76F. In our submission,

that is the error of law which, of course, does not

just affect this statute under consideration; it

affects the construction of all the others which

are mentioned.

Your Honours, I do not repeat what I said

earlier about the other lack of traditional

warnings. They are dealt with in paragraph 6.4.

Our respectful submission is that in the end

result, although a warning of whatever nature was

given, it was completely overshadowed by the

corroboration directions - I have given

particulars about that - and, with respect, the

only sensible reading of those warnings was that

His Honour was really telling the jury that this

was not just corroboration, but in the class of the

most powerful or potent or incrimination

corroboration that there could be. In our

submission, the point of law, therefore, justifying

special leave is the misconstruction of the statute

and the miscarriage of justice lies in the

directions which were given which I have outlined.

B(2) 31 6/8/92

One further matter, Your Honours - and I will

be brief on this. We do not pretend this is a

special leave point but it counts in the

application of a proviso. At page 94,

Your Honours, His Honour dealt with a submission

made by Mr Pilkinton when he had put to the jury as
part of one of the attributes that the jury could

consider in assessi~g the credit worthiness of the

applicant, was that he had introduced the

prejudicial evidence himself, and Mr Pilkinton had

made a point about that in his address to the jury

that, in effect, they would not have heard of it at

all unless the accused himself had not introduced

it. His Honour said at page 94, line 12, this, of

that submission:

I just want to deal with one other submission that was put to you on the part of, on behalf

of the accused by his counsel.	And that was
this.	You were reminded that the accused had

gone into the witness box, rather than adopt

one of the other courses that he had taken,

that he could have taken. So be it ..... He did

go into ·the witness box, and he gave you a

good look at him.

You were reminded that, or yoµ were told that

if he had not revealed his own guilty conduct in relation to his daughter in 1984, the laws

of evidence are such that you would not have

heard about that guilty conduct. And the way

it was put to you is but for his admissions,

you would never have known about it. What I

tell you, ladies and gentlemen, is that is

wrong. In this case, that is wrong.

And His Honour went on to say that, in all, four

times. Also at line 37:

It is not right to say to you that you would

never - but for his admissions, you would

never have known about it. It is simply not

correct.

And the commencing lines of the last paragraph:

So it is not correct to put to you, and I

would not raise it myself, but counsel raised

it and I am obliged to correct something which

was wrong in his address to you.

Now, what was erroneous about that, with respect, and one must remember that it comes at the end of a

very strong and, in our submission, quite

unfavourable direction on corroboration, was that

all that the applicant really had left after those

earlier directions was the point that he had been

B(2) 32 6/8/92

frank with the jury, and His Honour directed the

jury - in very emphatic terms, in our respectful

submission, by repeating at least four times that

that was not right or it was wrong - quite wrongly,

with respect.

It may be true, of course, that the evidence might have found a basis for admission on some

other footing, but the fact was in the way the

trial was conducted with the Crown disowning proof

of it in its case was that as it was, the only way it did come out was through the accused's own case

and, in our submission, whatever the accused had

left after the earlier strong directions on

corroboration were effectively taken away from him

with those very strong, in our respectful

submission, on the facts of the case, quite

erroneous directions. I do not want to be

pejorative, with respect, but the repetition of "It

was wrong" in short space of time four times, in

our submission, must have been very damning indeed

in the jury's mind of the applicant's case.

So, if the Court pleases, in our submission, a

special leave point is raised on the statutes and

there was a miscarriage of justice for the reasons

advanced. We should add, Your Honours, that the

only order we would seek as to the consequences

would be an order for retrial. We do not argue for

an acquittal. If the Court pleases.

MASON CJ: Thank you, Mr Tilmouth. Yes, Mr Crispin.

MR CRISPIN:  May it please the Court, if I could deal with

section 76F which my learned has announced as the

special leave point, it has been contended that is

a special leave point firstly because the Henry and

Manning direction is no longer available - - -

MASON CJ:  We need not trouble you on the section 76F point.

MR CRISPIN:  Thank you, Your Honour. In that event,

Your Honours, I seem to find myself addressing on

an application for special leave in which the only

issue upon which special leave has been sought is

one in relation to which I am invited to present no

submissions. But there plainly are other issues

that my learned friend puts as being a miscarriage

of justice points rather than matters upon which he
would seek, as I understand it, to obtain special
leave in the sense of relying upon them as special

leave points by themselves.

MASON CJ: But I understood him really to rely on the

administration of justice ground apart from

anything else as an entitlement to special leave.

B(2) 33 6/8/92

MR CRISPIN:  Your Honour, if I could then perhaps move to my

learned friend's outline of submissions and deal

with the remaining matters in the order in which he

puts them. He begins by setting out various

principles of law in paragraphs 1 to 6 inclusive

and so forth.

BRENNAN J:	We have read those.
MR CRISPIN:	The direction in relation to the child appears

in two places, one of which my learned friend has

already taken Your Honours to; the other passage

in relation - - -

BRENNAN J:  Mr Crispin, what do you say about the direction

as to the use which the jury could make of what was

said to be corroborative evidence?

MR CRISPIN:	Your Honour, we would submit that in substance the directions about the use of corroborative
evidence were in substance correct, that this was a
situation in which this material before the trial
started could be viewed by the prosecution as being
very much a two-edged sword. The Crown elected not
to lead it. The defence, on the other hand, elected to cross-examine it in and to rely upon it.

In those circumstances the accused cannot have

it both ways. If the material is required to be

in, he cannot have it in and rely, as it were, only

on one edge of the sword. We would submit that

this whole question of balancing the prejudicial

impact of the evidence against the probative value

of the evidence is an exercise that is normally

undertaken at the time of the admissibility of the

evidence.

There has not been, in our submission, a

principle laid down that the accused may elect to

call evidence of a particular aspect, rely upon it

for that purpose only but then say although it is

would elect to rely, none the less the judge should validly probative for matters upon which the Crown	tell the jury that they should ignore those aspects
because, after all, that would be prejudicial.

Certainly in the case of Donnini which my

learned friend I think referred to - - -

BRENNAN J:  It may not go that far, but what happened here

was that there had been a relationship exhibited by

the father towards the daughter in previous years

and the daughter's evidence had to be evaluated by

the jury in the light of that conceded fact.	So
that it was not subject, as it were, to the

reservation or qualification that she was telling a

B(2) 6/8/92

story which is so abnormal that nobody would be

likely to believe it.

So she was telling a story about her

relationship with her father who had conducted

himself that way in the past. The question then

was: had he continued to do it? Did these things

happen? In the light of the fact that that

concession was made as to what had happened in the

past, how did that prove as very strong

corroboration, to use His Honour's words, that the

events now alleged against him had occurred?

MR CRISPIN:  Your Honour, it was available, in my

submission, as evidence of what has been referred

to as "guilty passion" that he was a man who, as

His Honour had put it, entertained a desire towards

his daughter and had gratified that desire, that

that had occurred on a number of occasions over a

period of at least two or three years; then there

were further allegations occurring within about 12

months.

When one looks at corroboration, of course, it

does not have to, by itself, prove the commission

of the offences, it only has to, in the context of
the case, strengthen it, make it more likely. In

those circumstances it was open to a jury, in our

respectful submission, to conclude that it was far

more likely that somebody having that guilty

passion - to use the traditional phrase - had

committed the offences which his daughter has

described. In the same way as the example posed by

Justice Deane, if he had merely written a letter

saying, "I do have this great desire".

It is true, as my learned friend has pointed out, that there was a lapse of approximately a year

after moving home before the allegations were said

to have occurred again but that has to be set in
the context of the allegations.	The previous

events, as I say, had occurred over a period of

more than two years. It was then alleged by the

complainant that further events had occurred over
another period of years. The lapse of 12 months in

that context may not be seen as being

overwhelmingly decisive.

BRENNAN J: Then the question for us to decide is whether

the trial judge's directions in the passages

objected to went beyond a direction to the jury

that they might use that evidence in the manner

which you have just indicated.

MR CRISPIN: Yes, I think that is so, Your Honour, with

respect. When one turns to what His Honour said -

I do not propose to take Your Honours through it in

B(2) 35 6/8/92

any detail - he begins at page 84 by talking about

the youth of the person. It is not in the context
of corroboration but he certainly invites the

jury - he asks the jury, about line 33:

What did you think of Kerri? Bearing in mind

all your abilities, your experience, your

knowledge of young people, what did you think

of her as a witness in a criminal case? What

judgment, according to the use of your own

fact finding capacities, would you make of

her, as a reliable witness? The standard, of

course, is not a standard of perfect ..... She

is young. You will make allowance for that.

She may have human failings.	You make
allowance for that.

She may have faulty recollection.

And so forth. You make allowance for her youth.

Having said all that and emphasized her youth, he

then turns to speak about corroboration and he

begins, about line 37 on page 88:

What you have to determine is whether - first

of all - whether there is any corroboration of
the sworn evidence of Kerri. If there is,

then you could ignore that warning -

and so forth. The words are there in black and

white. There certainly are occasions when he says

baldly, ttit is a matter of strong corroborationtt,

but it is said in the context of the whole summing

up which begins by talking about how questions of

fact are for them. It then embarks upon the
discussion of her youth; it then goes to

corroboration by saying, "It's a matter for you to

·determine first", and in the course of then

explaining corroboration he makes some fairly

robust statements about this being strong

corroboration.

The view taken by the Federal Court was that

notwithstanding the fact that some of the phrases

may have been fairly robust statements none the

less it was clear that it was a matter for the jury
to determine, for them to take into account and

that they were not confused or there was no basis

upon which it could be concluded that they were

confused in the nature of their function.	We would
submit that those observations are correct.

Now, the directions on corroboration, of

course, are attacked on a number of specific bases. It is put, for example, on point 6.1 of my learned

friend's summary of submissions that an adequate

direction should have referred the reasons for the

B(2) 36 6/8/92

warning, such as the potential influence of third party or parents, immaturity, irresponsibility of children, incapacity to comprehend events, and so

forth. There are several things we would say about

that: the first is that, apart from the fact that

she was a young person, which His Honour did stress

in the passage at page 84, none of those matters

were suggested to the complainant in cross-
examination as being reasons why her evidence
should not be accepted, and the accused in his

evidence did not suggest that that was an

explanation.

The accused, in his evidence, essentially

suggested that this was a young woman who was very

angry and resentful because of parental discipline,

who had, as it were, set out to blackmail him into

relaxing the discipline and it was put on that

basis. So there was no basis upon which any of

those particular explanations could or should have

been put to the jury and, indeed, no directions to

that effect were sought.

The Federal Court, in dealing with the

appellant's case at page 105 of the appeal book,

said:

The appellant's case was that the

complainant's story was a fabrication,

motivated by her resentment of his attempts to subject her to an ordinary measure of parental

discipline. He sought to show that as part of

her resistance to parental discipline, she

exploited a vulnerability on his part brought

about by his having pleaded guilty in

December 1984 to charges of sexual misconduct

with her in that year -

and that was the issue which was put to the jury.

Now, can I just take Your Honours very briefly

to a short passage in Donnini, referring to an

earlier decision. In the judgment of

Sir Garfield Barwick at page 124, His Honour - - -

BRENNAN J: What is the referencet?

MR CRISPIN:  I am sorry, Your Honour; it is Donnini v Reg,

(1972) 128 CLR 114. At page 124, Sir Garfield

Barwick refers to the earlier decision of Reg v

Kennewell, which is a South Australian case, and

notes that:

The accused in that case was charged with

indecent assault.on a female under sixteen

years of age. Evidence of similar acts with

respect to the same female was admitted to

B(2) 37 6/8/92

establish that the accused had a sexual
passion for the particular girl and, for that

reason, was likely to have committed the crime

with which he was charged. The directions by

the trial judge as to the probative purpose

and value of similar facts adduced in evidence

were challenged as insufficient. In

delivering the judgment of the Full Court of

the Supreme Court of South Australia,

Chief Justice Murray said:

"In every case where the evidence" (that is,

of similar acts) "is admitted there is a

possibility that the jury may draw the

inference that the accused is guilty of the

offence charged because he has committed other

like offences, but we cannot find a trance of
any rule or practice that it is the duty of
the judge to warn the jury against that

inference. In many cases, perhaps in most, he

would do so, but it is a matter of his

discretion, and, if no miscarriage of justice

has resulted, this Court cannot interfere. A

miscarriage of justice might arise if the

evidence were that the accused had committed
other similar offences on other girls, because

that would show propensity for the particular

crime, as distinct from sexual passion for the

particular girl. The evidence was not of that

nature here, and, in our opinion, the jury could not have given the wrong value to it,

especially in view of the repeated warnings of

the learned Judge that the charge was of

indecent assault on or about ... " a particular

day.

Your Honours, we submit that is the case here,

that evidence was properly admitted of guilty

passion for a particular girl, it was made
perfectly plain upon the whole of the summing up

that the jury were to consider a number of discrete

corroborative was clearly set out by the trial	offences, and the manner in which that evidence was	judge in the passage of his summing up which
appears at the foot of page 89 where he said that:

independent evidence coming from the accused,

himself, which tends to show sexual desire for
the victim, and some measure of gratification
of that desire, supports the case for the

prosecution because it is consistent with the

allegations that the accused now faces and

makes unlawful and unnatural behaviour

credible; it explains the whole thing. And it

may serve to allay any concern that the jury -

you - may be having that Kerri's allegation is

a fabrication.

B(2) 38 6/8/92

Now, my learned friend has submitted that

there should have been some sort of warning to the

effect that the jury should have been warned that

they must be satisfied that that unnatural passion
or guilty passion, as it were, was continuing at

the time the offences were committed. In my

respectful submission that could not possibly be

regarded as a condition precedent to the material
having corroborative value. A jury was entitled to

look at the evidence, accept that it was evidence

of a guilty passion at some stage and to regard

that as some evidence in relation to what occurred

later, in the same way as a jury may have regard

for a threat written at some antecedent period.

It would be a bizarre result indeed if

evidence of that sort had to be regarded as

irrelevant unless and until the jury decided that

the accused was guilty of the offences with which

he was charged, and they could then regard that as

providing in some way a further feeling of comfort

about the decision that they had already made.

Various alternative formulations are provided

in my learned friend's outline. I do not propose

to go through them in any detail unless

Your Honours wish me to do so. The matter of Dossi

was a case in which it was conceded there was no

corroboration and hence a warning about it perhaps

needed to be in greater care. There is one matter

that I should however take up, that is that my

learned friend's submissions seemed to involve, as

it were, some sort of novel suggestion akin to

evidentiary estoppel, that if the Crown does not

initially rely upon a matter in opening it cannot

subsequently rely upon the evidence once it is

admitted, even at the request of the accused.

That, as I have already put, involves embracing a

standard in relation to evidence which may amount to a two-edged sword, that you can really have it

both ways. I would submit that there is not only

no authority for that proposition but there is no

principle upon which it would be sustained.

When one looks at the summing up overall, the

position regarding corroboration appears to be as

follows, that His Honour referred to evidence and

told them that they may find that it was strong

corroboration in the case. It is conceded, as I

understand my learned friend's contentions, that it

was in fact capable of amounting to corroboration.

His Honour then gave several warnings in

relation to the evidence of the young person which,
if anything, are more favourable than the accused

was entitled to receive, and there is nothing which

I would submit arises as a really viable issue in

B(2) 39 6/8/92

the application other than perhaps the strength

with which His Honour expressed some of the

statements.

Now, as a matter of general principle, of

course, a trial judge is entitled to express
matters, from time to time, in strong terms

provided it is clear that it is a decision for the

jury. That is not to say, of course, that there may not be occasions upon which the observations are made in such strong terms as to give rise to a

potential risk of a miscarriage of justice and, in those circumstances, Courts of Criminal Appeal, or in this case the Full Court of the Federal Court of

Australia, would no doubt intervene. But, in my

submission, there is no point of general public

importance which can be gleaned by a scrutiny of

the particular observations made in relation to the

facts of this particular case. Unless there is

anything further Your Honours wish me to deal with,

those are our submissions.

MASON CJ: Yes, thank you, Mr Crispin. Mr Tilmouth?

MR TILMOUTH:	No matters in reply, if the Court pleases.
MASON CJ:	The Court will take a short adjournment in order to consider the course it will take in this matter.

AT 3.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.03 PM:

MASON CJ:  The Court will consider its decision in this

matter.

AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

B(2) 40 6/8/92