KSB v The Queen

[1992] HCATrans 133

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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
DEANE J

GAUDRON J

Copyright in the High Court of Australia 1 6/5/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MAY 1992, AT 12.36 PM

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 P.S. HASTINGS:  May it please the Court, I appear with my

learned friend, MR A.J. ROBERTSON, for the

respondent.	(instructed by the Director of Public
Prosecutions)

MASON CJ: Yes, Mr Tilmouth?

MR TILMOUTH:  Your Honours, when the applicant in this case

took the very unusual course of putting into issue
or putting into evidence the previous conduct in

this case, he did so for three basic reasons.

Those reasons, to state them briefly, Your Honours,

were these. His defence was that the motive of his

daughter for giving the evidence against him was

that she was using the previous matters as a threat

hanging over his head. In order of course to

demonstrate that, it necessarily involved reference

back to the 1984 matters.

It should also be said in that context as well

that when she was cross-examined about this matter

of a threat, she denied it. She was forced to

admit it, however, when her interview, which was

apparently tape recorded, was put to her.

The second broad matter which led the defence

to lead it was that in the earlier matters, she had

made a complaint, it was argued without

embarrassment. Her reason in this case for making

a fairly late complaint, three years or

material by the defence was to demonstrate if the defence could that the stated reason of

thereabouts, was said by her to be embarrassment.

embarrassment was not credible in view of the past

history.

The third factor was a factor of

inconsistency. When the complainant finally did

make a complaint, approximately three years later,

not only did she not refer to, in the original

interview, at least, any question of vaginal or

sexual intercourse count 2; she was specifically
asked three times whether it had happened and

denied that it had happened and specifically said

that the last time her father had done that to her

was in 1984. So, in other words - there are other

peripheral issues, of course - in order to make out

his defence, the applicant necessarily had to

introduce that previous material for those reasons.

2   6/5/92

Now, of course, as Your Honours know from the application books, when it came to the summing up,

however, that material was put to the jury in an

enlarged way. By that I mean not only for the

purposes of the defendant's case, but it was put to

the jury as being corroborative material.

Your Honours, the relevant part of the summing up

is at page 8 and those which follow in the appeal
book and, of course, it is reproduced at page 29

and those that follow in the Full Court's judgment

and I do not read it all, but I make these points

about what we submit the net effect of that was.

The first is, may it please Your Honours, that

the effect of the summing up as a whole was very
strongly to state not that these matters are

capable of being corroboration, but it is for you

to decide whether they are and what use you make of

them. The net effect, in our submission, as the

Full Court found, was that the judge was making

that link between leaving it for the jury to decide

and simply directing the jury that this material

was corroboration; indeed, very strong

corroboration. And just to emphasize a few short

passages, Your Honours, at page 8, where the

direction begins, there are such references in

there, for example, in the last paragraph:

I cannot see any reason why you would not

accept the corroborative evidence, but if you

did not -

and so on. On page 9, at about point 4, in the

paragraph that commences there:

Well, I tell you as a matter of law -

and incidentally His Honour, of course, had

directed the jury in conventional terms earlier

that they were bound by his directions on the law -

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
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 -

and so on.

In the next paragraph, it commences:

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

and a little further down, about four lines:

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acts of the very nature of which he is now

charged upon the same person; it seems to be

very strong corroboration indeed -

and then His Honour goes on to state a policy

consideration, to which I will return in a moment,

and talks about other usage of that material.

At page 10, at the end of that first

paragraph:

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 -

and, in the third to last line of that paragraph,

the words were used "is very substantial
corroboration" .

Now, Your Honours, with that quick review, of course, I acknowledge that there are other passages

and they are the strongest ones, as it were,
against the applicant. But, in our respectful

submission, properly read with emphasis on those

passages, the direction was effectively one, "This

is corroboration" and not, "It is a matter for

you".

DEANE J: Is that paragraph from the preceding sentence on

page 10 the last that His Honour said on

corroboration, or did he come back to it?

MR TILMOUTH:  "If you accept it and there is no reason why

you should not accept it", is that the passage,

Your Honour?

DEANE J: No, page 10, "But what I tell you", beginning

there, and ending "a few years earlier".

MR TILMOUTH:	Yes, that is another one in the same
DEANE J:	But that is the end of what His Honour said on

corroboration, is it?

MR TILMOUTH:  No, the next paragraph is corroboration as

well, Your Honour. The end of it is at about

point 3 or 4 on that page.

DEANE J: That is what I said, ending with a "few years

earlier".

4   6/5/92

MR TILMOUTH:  Yes, I beg your pardon, that is so. The whole

direction was virtually about two pages in total.

Your Honours, the next point I make is this,

and conceding for the moment that the evidence of

prior sexual relationship had the capacity to be

corroborative in the sense that it involved

evidence of an unnatural relationship with his

daughter, in any event the direction went further

than just relationship evidence, so to speak.

I mention just a few passages to demonstrate

that point. At page 9, Your Honours, and I

mentioned this a moment ago in another context,

that second large paragraph, right in the middle,

His Honour uses the words:

It ..... is the accused's own evidence of his

having committed acts of indecency of the very

type alleged -

and, in the middle of the next paragraph he uses

the words -

had previously committed indecent acts of the

very nature of which he is now charged -

and His Honour then goes on to add a further

reference to some incidental evidence about another

1984 matter.

The point here is, with respect, that the

additional reference to things like "of the very
type alleged against him" and "of the very same
nature" is intruding, in our submission, into an
inadmissible area; that is to say, the area which

is sometimes called similar fact evidence. Even if

this evidence was admissible as relationship

evidence it could not have been admissible on the

very type alleged here or the very same nature

basis.

Indeed, Your Honours, the 1984 matters which

were indecency charges were only similar, if at
all, on count 2 which was the sexual intercourse
count. Count 1 and count 3 were different

indecencies altogether and, as I understand it,

there was nothing in the 1984 matters which bore

any similarity, still less striking similarity, to

the current matters.

The next point we make about the defects in

this summing up is the	issue of policy put by
His Honour at page 9.	In that second to last
paragraph, towards the	foot of the page, His Honour
said:

6/5/92

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.

Then, His Honour goes on to put the policy issue as

being:

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.

Your Honour, there are two significant things to
say about that: first of all, obviously, that was

not a direction, at least in so far as it refers to

policy matters, regarding any supposed

infallibility of child witnesses. It was a

direction about infallibility of witnesses

generally in sexual cases.	It had nothing to do
with children at all.

More than that, Your Honours, from the

legislation which applied, which is at pages 31

and 32 in Your Honours' appeal book, in the reasons

for judgment of the Full Court, Your Honours will

see this legislation is similar to almost - uniform

is not the right word but there has been recent
legislation in all States and territories in this

area and this is typical of it, although there are

variations.

Subsection (2), Your Honours, on page 32 of

section 76F, Your Honours will note provides 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.

What has happened, if the Court pleases, in my

submission, is that not only has the policy reason
been directed to the wrong circumstance - sexual

offences instead of child evidence - it has

actually been given in violation of the statute

which applied. The statute did, I should add,

Your Honours, under subsection (3)(a), also on page 32, leave with the judge:

6   6/5/92

on the trial of any person, to give the jury a

warning to the effect that it is unsafe to

convict a person on the uncorroborated sworn

evidence of a child.

So the old corroboration principle still applied, but the principles relating to sexual offences had
been overruled, so to speak. That led, in our

submission, to further error in the Full Court,

where it determined - - -

GAUDRON J: Before you go on, do I take it that you concede

that this evidence was capable of corroborating?

MR TILMOUTH:  Yes, I do, for the reasons expressed by the

Full Court. I make some other points about

preliminary steps which should have been undertaken
before it could be left on that basis, but I

concede that it can be corroboration, is capable of

amounting to corroboration.

GAUDRON J: And because it is evidence of a past

relationship?

MR TILMOUTH:  Yes, but more specifically because it is

evidence of. an unnatural relationship. Maybe that

is a different way of saying the same thing. But

of course, before the jury could use it that way,

they would have to be satisfied, in our submission,

that there was a continuing relationship of that

kind.

GAUDRON J: That is why I asked.

MR TILMOUTH:  That is what is missing as well in the summing

up. In our submission, if the judge was minded to

leave this to the jury in this way, he ought to

have directed the jury that before they could use

it as corroborative, they would have to be

satisfied that the relationship had not been

severed but that it continued; they would have to
take into account the 18 months which elapsed
between the last of the 84 offending and the
commencement of the late 85 offending, which is the

commencement point of this series of offences;

they would have to be given a warning - - -

GAUDRON J: But there was no evidence, was there?

MR TILMOUTH:  Yes, there was, Your Honour.

GAUDRON J: There was evidence. It just does not appear in

these books?

MR TILMOUTH:  No, it does not. It can be gathered from the

Full Court, but what it came to was this: in July

of 1984 a complaint was made, the applicant was

6/5/92

questioned, and he made straight admissions about

those offences. He left the home, but was invited

back into the home in November 1984 by the

complainant.	She telephoned him to invite him back
into the home.	The applicant was sentenced in

December of that year and was placed on the

suspended sentence. Hence the reference in the

applicant's case to her threat, "It was only a

matter of a phone call to bring you home and it's

only a matter of a phone call to put you back into

gaol".

Now, of course, having come home then, in late

1984, after having left in July 1984, the first

allegation of offending is shortly after Christmas

in 1985. Hence my reference to a period or a gap

of about 18 months. That is what the evidence was,

Your Honours, in very summary form.

So, in our submission, going back to page 32,

not only was there an inapposite direction on

policy reasons for corroboration, an inapplicable

direction which had no meaning to this case on the

facts, it was also in violation of the section, and

that led the Full Court to observe, at page 35,

nevertheless, towards the bottom of that long

central paragraph, Your Honours, four or five lines

from the bottom at about point 8:

The trial judge saw her and considered the

warning appropriate. He was entitled to

follow the rule of practice and draw the
jury's attention to the danger of convicting

on the uncorroborated evidence of the

complainant, having regard to her age.

Now, in our submission, that is an error, at least in so far as the direction was a direction

which was one related to sexual offences and not a

direction related to child witnesses, and I would

add, without referring to it, of course, the

direction would not only violate the section, but

violate this Court's ruling Longman's case, which,

we submit, is to the same effect.

The real policy considerations, Your Honours,

in our submissions, which a proper direction would require, according to the established cases, would

involve references to the potential for influence
of third parties, imagination of children,
impressionability, limited understanding, and so

on. They are a number of expressions in the cases,

but they would plainly - if they were policy
considerations relating to children - involve
different considerations than they would for sexual
offences.

8   6/5/92

The other point I make, Your Honours, about

the summing up, is this, and I partly do it in

answer to questions by Your Honour Justice Gaudron,
and that is this, that there was absolutely no

direction about impermissible use. Not only did

the judge not give directions about the jury having
to be satisfied that there was a link between the

two stages of offending, and so on - I have already

put those matters principally to Your Honour

Justice Gaudron - but there was no direction about

impermissible use. Just because he has done it

before does not mean to say he has done it again: a

warning against propensity reasoning, or reasoning

along bad character lines. That sort of

direction, in our submission, would have been

conventionally required in order to ensure that the
jury use this evidence for proper purposes and not

for improper purposes.

Finally, on the summing up, could I make this

point, Your Honours. The accused, of course, as I

have said, had introduced this evidence - - -

MASON CJ:  Mr Tilmouth, we shall adjourn at this point and

we will resume at 2.15 pm.

MR TILMOUTH:  May it please the Court.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

MASON CJ: Yes, Mr Tilmouth?

MR TILMOUTH:  Your Honours, finally on the summing up but

independently of any point about corroboration, I

make this point. Needless to say, a major

consideration in the trial was the question of

credibility and which party was to be preferred or,

put another way, where the truth lay was obviously

central to the jury's consideration.

One major argument that was presented for the applicant by his counsel was that the applicant was

honest and reliable. He had been frank enough to

confess openly to the jury about the 1984 matters

which were clearly matters prejudicial to him.

Much force was stressed upon that as being an indicator of his reliability as a witness in the case. At page 14 of the appeal book, Your Honours,

in the summing up itself, His Honour said this at

6/5/92

about point 4, the paragraph commencing in the

middle of the page, of this particular issue:

You were reminded that, or you 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. Evidence

of prior association, of prior guilty conduct between the prosecutrix, complainant, victim,

call it whatever you like in a sexual case,

and the accused, is evidence to show the
nature of the relationship.

And the rest of the charge on that page continued in the same strong vein.

GAUDRON J:	You accept the correctness of that, do you not?
MR TILMOUTH:	No, with respect, we do not.

GAUDRON J: Well, how do you accept that it can constitute

corroboration if you do not accept that?

MR TILMOUTH:  In this way, may it please Your Honours. The

Crown had expressly disavowed relying on any of

this material as part of its own proof in the case.

At the start of the trial there was an exchange

between His Honour and Crown counsel, where the

Crown expressly said, "We do not intend to prove any of the 1984 material for any reason". So, the only way it was introduced as evidence in the case

was through the accused's own cross-examination in

evidence.

Of course, then, it may be admissible not only wider reason I have conceded, but my answer to	for the reasons he put it forward, but for the
Your Honour is, in the way that the trial was
shaped, and the issues were shaped, it would not
have got before the jury other than through the accused because the Crown did not intend to lead
it. So, the point is, although it may have become
admissible for other or additional reasons than those proffered by the accused, the fact is the jury would not have heard about it if he had not
introduced it.

Your Honours, the point I was going to make

is, that strong direction is repeated four times on

the rest of the page. I do not read the rest of

it, but His Honour said in the fourth line in the

10   6/5/92

next paragraph, "It is not right to say", and so

on, and in 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.

So, in our submission, irrespective of questions of

admissibility, the way the trial had shaped itself,

one of the major arguments which the applicant had

in his favour was effectively taken away by those

directions.

DEANE J: Did the applicant give evidence, Mr Tilmouth?

MR TILMOUTH:  He did.

DEANE J: Did the Crown assurance at the beginning extend to

cross-examination?

MR TILMOUTH:  Yes, just to elicit a little more material.

The accused cross-examined the complainant and gave

evidence to the effect that he had frankly admitted

the 1984 matters and to give the dates of them.

The Crown elicited - I think this is correct - in

cross-examination of the applicant a little more
material to indicate, I think, that it was a course

of conduct of about 18 months duration in those

1984 earlier matters. So the answer is "Yes",

there was a slightly enlargening of the field.

But never, apart from that, was there any

reliance upon it on the basis that His Honour put

it to the jury. The point, in my submission, is an

obvious one: it may have been admissible, as I

have conceded, but the Crown did not pursue it and

the only way it came to the jury's attention was

through the accused; and the submission is

obviously that a major point he had to support his

own credibility was wrongly taken away.

DEANE J:  Which of the points you are now making were raised

before His Honour?

MASON CJ:

MR TILMOUTH: With respect, the current point I make was

raised at page 16 - page 15 is perhaps a better

start. Mr Pilkinton said:

your Honour, there are two matters that I wish

to raise. 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

11   6/5/92

convictions of the accused could only become
admissible in the way that I suggested to the

jury.

HIS HONOUR:	No, but that is not what you
put -

and so on. And then there was a discussion, over

on to page 16. In the middle of the passage at the

top from Mr Pilkinton - - -

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.

His Honour went on to explain why, and then

Mr Pilkinton repeated at about point 4 to 5 that

the Crown expressly did not profess or produce the

evidence on a similar fact basis. Then His Honour

went on to talk about corroboration, "guilty

passion", and so on.

The other thing to point out, Your Honours, is this: this matter was never debated at all before

His Honour. It was debated at the start of the

trial only in the sense that the Crown expressly

disavowed any reliance on it in its case.

Mr Pilkinton at the start of the case - this is not

in the transcript Your Honours had, but we have
copies if it becomes necessary - the Crown
expressly disavowed use of it. Mr Pilkinton
expressly informed His Honour that he was intending

to introduce it as part of the defence case.

Nowhere during the course of the trial was it

relied upon, I am instructed, even during the

Crown's address in the way that His Honour finally
left it to the jury.	And the first time, of

course, that Mr Pilkinton became aware that it was

going to be put to the jury in this way was when he

sat there and heard the summing up, and the matters

he raised, of course, have to be considered in that

background.

Now, Your Honours, as to the question of

special leave, in our submission, there are a

number of matters which I enumerated either relying

or in combination which justify the grant of

special leave. But there is one additional factor

and, in our submission, this case demonstrates it.

Your Honours, our submission is that the

traditional corroboration warning in the familiar

terms is outdated and largely inapplicable to

12   6/5/92

modern conditions. In our submission, one

criticism which may be made of it as a general

matter is that it tends to focus the attention of
the jury on the corroborative material and
exaggerate its importance in the case to the
exclusion of the central issue, of course, which is

the guilt or innocence of the accused. This case,

in our submission, demonstrates that point very

well.

I have already highlighted the passages during the course of the section on corroboration which,

in my submission, clearly show that the type of

direction given here has the capacity to put the

focus on the corroborative material and exaggerate

its importance in the overall case.

The second matter which might be said about

the traditional warning is that it is good where

there is no corroboration, but it can be very
counterproductive where there is. The corollary of

the direction that it is unsafe to convict where

there is no corroboration is that it is safe to

convict where there is, and that too, in our

submission, demonstrates, as in this case, the

inapplicability, or outmodedness, as it were, of

the corroboration direction.

The third factor is, in our submission, that

it has become unnecessarily confusing and complex.

The division of function between judge and jury,
for example, the first point I developed,

demonstrates the point and in this case, the way in

which His Honour left to the jury, shows that there

is confusion between the function of the judge in

identifying material which is capable of being
corroborative and the function of the jury in
deciding whether it is. As Your Honours would

know, the Supreme Court of Canada in Vetrovic,

albeit in an accomplice case, has decided to do

away with the traditional warning and that, in

combination with statutory amendments in Canada,

has led courts now to give warnings appropriate to

the case rather than the general traditional

warning which may have little or no relevance to

the fact of the case, and our submission is that it

would be appropriate for the Court to consider the

same arguments as the Full Canadian Supreme Court

accepted in Vetrovic.

There is a recent case in 1989 of Reg v

Accused in New Zealand where the High Court of New

Zealand, the Full Bench has appeared to have gone

the same way and, of course, to a point, in the
areas outside the traditional categories where
corroboration is required, accomplices, sexual
cases and child witnesses, this Court in Longman,

13   6/5/92

of course, has now said that the appropriate

warning is not one of fixed formulation or fixed

words, it is one that meets the justice of the case

and the issues as they arise, rather than - it is

the particular warning rather than a general

warning in traditional terms.

Finally, Your Honours - and the Full Court

hinted at this without developing the point - some

might as well say that the old notion which derives

from Dossi's case in 1913, that children are

inherently a class of witnesses whose evidence is

suspect, may too be a doubtful proposition in modern conditions, and the traditional policy considerations which have led courts to give

directions about child witnesses may not be
applicable these days. I have mentioned only a few

of them in passing and it is not appropriate now to
elaborate them, but they are mentioned in the
cases.

So, in addition to the matters I have already pointed out to the Court, specifically related to

defects in this summing up, our submission is, in

addition to those matters, that it is appropriate

now to consider altogether what a proper direction

would be in the case of child witnesses and, in our

submission, this case is clearly, with respect, a

suitable vehicle because the very defects I have

endeavoured to suggest may exist in traditional

warnings are evident in this case.	I have
endeavoured to identify them.

So, if the Court pleases, our submission is,

for those two reasons, this case, as it emerged
and the general principles related to corroboration

of child witnesses, is an appropriate case for

special leave and the case is a suitable vehicle to

ventilate those issues.

MASON CJ:	How appropriate are your grounds of appeal to the case you have foreshadowed?
MR TILMOUTH:	Perhaps they are not so appropriate in terms.

MASON CJ: They do not appear to be satisfactory, do they,

to a number of the matters you have advanced? You

have said nothing in support of ground 4.

MR TILMOUTH:  Could I point out, Your Honours, the last

point I have made about what a proper direction

should be on modern conditions is in the affidavit,

paragraph 4.1, page 50 of the appeal book. The

questions of law which I have endeavoured to draw

the Court's attention to are largely outlined in

paragraph 3, and perhaps also in paragraph 4.

14   6/5/92

MASON CJ:	I do not understand paragraph 4 to have been developed by you at all in what you have put to us.
MR TILMOUTH:	On page 51, Your Honour?

MASON CJ: Page 55 I was looking at - it is 2.4.

MR TILMOUTH:  I have effectively conceded 2.4, if the Court

pleases, to the extent that I concede this evidence

was capable of being corroborative, but there had

to be proper prerequisite directions.	I have
developed that argument.

MASON CJ: Otherwise you regard the grounds as covering what

you want to put?

MR TILMOUTH:  The grounds do not specifically invite the

Court to reconsider what a proper direction should
be, and the grounds, of course, do talk about

corroboration in 2.2 and 2.3, the issues which I

have addressed largely as impermissible use and so

on, but perhaps there is some deficiency in them, if the Court pleases. What I have put is covered in the combination of the application papers, the

draft grounds of appeal and the affidavit in

support.

MASON CJ: But it needs to be covered in the grounds of the

notice of appeal on its own.

MR TILMOUTH:  Yes. To the extent there is a deficiency, if

the Court were minded to grant special leave, I can

only seek the Court's indulgence to submit a fresh

draft notice of appeal. If the Court pleases.

MASON CJ: Very well. Yes, Mr Hastings?

MR HASTINGS:  May it please Your Honours. I had prepared an

outline of argument in anticipation of the matters

which I understood to be raised in the draft ground

of appeal, but most of that material now seems to

be unnecessary and it would seem therefore to be of

little assistance to Your Honours to give you what

I had prepared. I will therefore deal with the

matters which have been raised in the order in

which they have.

Might I simply say in relation to the matters

argued generally that as Your Honours, I think,

have perceived, the vast majority of the points

taken by my learned friend today have not either

been raised in the application, raised before the

Federal Court, nor taken at the trial. I think the

two exceptions to that are the argument concerning

the error of the trial judge in expressing his view

as to corroboration too strongly. Quite clearly,

that was taken in the Federal Court, but in

15   6/5/92

relation to that we say the Federal Court was alert

to the danger and dealt with it and came to the

view that there was no error or miscarriage of

justice when viewing the summing up as a totality.

The second point which at least has been

raised before in the draft grounds of appeal was

the argument that the trial judge should have given

a direction about impermissible use of the material

concerning propensity or bad character, although it

has then to be said that that matter was not raised
in the Federal Court, nor was the point taken at
the trial.

The result, Your Honours, in my submission is that what my learned friend has done, with great

respect to him, is to abandon what seemed to be the principal ground of the application and embark upon

an exercise of combing through the summing up in

order to find flaws which would provide an arguable

basis for intervention by this Court. But the end

result, in my submission, Your Honours, is that

nothing has been raised of general importance or

public importance or, as may have been the case if

the original argument had been persisted with, an

argument involving the necessity to resolve a

conflict of law as it was interpreted by various

courts.

Having said that, Your Honours, I will briefly

then turn to the specific matters. My learned

friend has put the point concerning His Honour's

view as to corroboration being too strong and I

concede that His Honour, after some early

expressions of the appropriate formula in terms of

inviting the jury to come to their own view, by the

time he had addressed the matter on the third or
fourth time had, in fact, abandoned any

preconditions and was simply stating the position

correct understanding of his role - as an expression of his view which on, perhaps, a

DEANE J:  But it was not as an expression of his view. I

mean, if you look at the end of the relevant

passages, His Honour is not saying, "I think", he

is saying, "But what I tell you". Now, coming from

a judge in a summing up to a jury, that would be

understood as a direction.

MR TILMOUTH:	Yes, I am accepting that, Your Honour.
DEANE J:	How can you say what the Federal Court has said at

page 42, that:

the jury could not have been left in any

confusion about their role -

16   6/5/92

when the judge has told them that it is very strong

corroboration?

MR TILMOUTH:  In those particular passages he did,

Your Honour.

DEANE J:	They were the last passages.
MR TILMOUTH:	Yes, but in the preamble which led to those statements he had made it clear that it was their
function and not his, and in his first two statements in relation to the matter he had introduced the words "you may think", or words to
that effect, in order to emphasize the fact that it
was their task.

DEANE J: Yes, well, it is not permissible, but put yourself

in the jury room and one juror says, "Looking at

the issues in this case, that isn't much

corroboration", presuming the jury understands

corroboration. The other jurors are likely to say,

"But the judge directed us that it's very strong

corroboration".

MR HASTINGS:  Your Honour, it comes to the position of

having to look at the direction as a whole, as the

Federal Court did, and they came to the view that

when viewed as a whole the earlier remarks tempered
what followed and that in its general effect it did

not amount to an error.

DEANE J: Because the jury could not have failed to

understand that the judge did not mean what he

said?

MR HASTINGS:  I think, Your Honour, on the basis that what

the judge said at the end had to be looked at in

the light of what he had said at the beginning, and

that was, "It was a matter for them" and, indeed,

he did use the words again towards the conclusion

although I admit, in between, some rather positive

statements of his own.

DEANE J: But there is something after that, is there?

MR HASTINGS:  No, Your Honour, in the last passage - it is

the top of page 10, the first paragraph which

follows from the previous page explains the whole

thing:

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 -

17   6/5/92

and I concede at the outset, Your Honour, that it
then goes beyond what normally one would expect

from a trial judge.

But, Your Honour, all I can say is that the

risk is that in looking at those passages in

isolation one then ignores what has been said to

the jury generally about their function. In so far

as this Court is invited to play a role, my

submission is that the Federal Court have properly

been alerted to the problem and have embarked upon

an examination of the summing up as a whole and

come to the view that there is no miscarriage of

justice. If that be the case, there would be no

warrant for this Court to need to intervene in

order to rectify a problem which has already been

identified by the Court below and considered not to

be something which warrants the verdict being

overturned. Other than that, Your Honour, I cannot
ignore the fact that some of His Honour's remarks

were stronger than perhaps necessary or desirable.

In relation to the next matter, Your Honours,

the complaint was, as I understand the argument,

that the relationship evidence was permitted by the

judge to be treated as similar fact material and

was thereby permitted to be left in an inadmissible

area when it was really only admissible on the

basis of corroboration. The particular point was

made that the use of His Honour's words on page 9

were inappropriate in so far as he had said in the

second full paragraph a reference to:

acts of indecency of the very type alleged

against him now -

and in the third full paragraph, a reference to -

committed indecent acts of the very nature of

which he is now charged upon the same person -

Your Honours, in relation to that, firstly I

submit that the words are not spoken in the context of similar fact material arid nor is the trial judge

there in any way suggesting that the jury would

treat it as such in order to come to a view

concerning the guilt of the applicant in relation

to the matters with which he was then charged.	It
was only ever put to the jury on the basis of corroboration on the particular issues which were
relevant thereto.

Secondly, Your Honours, in my submission,

His Honour's words were apt in so far as he

referred to acts of indecency of the very type

alleged and of the very nature of which he is now

charged because, if one looks at the summary of

18   6/5/92

that activity at page 27, it would appear that that

is a fair description of the two groups of

activity. At page 27, the Federal Court set out

the evidence of the appellant himself, at about

point 5:

He stated that in December 1984 he pleaded

guilty to charges alleging acts of indecency

by him upon her, including the touching of her
body in the area of the breasts and other

areas and the insertion of his finger into her

vagina.

And then, on the following page, at about point 2:

During the cross-examination of the

appellant by counsel for the prosecution, part
of the contents of a record of interview with

police on 23 July 1984 was put to the

appellant. He agreed that on that occasion he

had told the police that he had inserted his

little finger into the complainant's vagina on

about twelve occasions when she was about

8 years old. A number of other questions and

answers were put to him which it is not

necessary to set out in detail, but sufficient
to say that they disclosed a course of
indecent dealings with the child over a period

of eighteen months or so prior to

23 July 1984.

Now, the three counts were, firstly, one of

handling the breasts and vagina of the child, in

the first count and, according to the resume given

on page 27, that type of behaviour was admitted by

the applicant previously in so far as the admission

is said to be as to the touching of her body in the
area of the breasts and other areas and the

insertion of the finger into the vagina; the second

count alleged digital penetration - that also

seemed to be the subject of a prior admission; and

the one matter which perhaps may be in some way

said to be dissimilar was the third count, which

alleged an episode of cutting of pubic hair of the

complainant and being placed into an envelope.

Well, it is difficult for this Court to form a

view in the absence of the totality of the

material, which is summarized very briefly by the

Federal Court as being said to be:

a course of indecent dealings with the child

over a period of eighteen months -

but, in my submission, the broad description there

provided would seem to justify His Honour's

19   6/5/92

description in the words that are used on page 9,

and so the complaint now made has no substance.

Your Honours, it was then put that, on page 9,

where His Honour purported to provide the policy or
the rationale of the rule of practice, at about
point 7, several errors occurred. Firstly, it was

suggested that the learned trial judge erred in

dealing with the rationale on the basis of a

direction in relation to a sexual offence instead

of in relation to an offence involving a child.

Your Honours, the answer to that, we suggest,

is that the scene was quite clearly set in the

summing up as recorded on page 8 of the appeal book
where His Honour quite clearly indicated the topic

he was embarking upon was the necessity of

corroboration in the case of evidence given by a

child, and that appears at about point 5 in the

paragraph saying:

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

for corroboration.

Might I just pause on those words to say in

response to a point made late by my learned friend

concerning the element of surprise, because this

matter only arose in the course of His Honour's

summing up, that it would seem from that line that

there certainly had been a great deal of discussion

about corroboration prior to that point. But the

point that I was proceeding to make was in what

follows. His Honour went on to say:

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.

Then in the following paragraph at the bottom of the page, he again says:

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.

He uses "child" again in the second-last sentence,

and thereby His Honour is quite clearly indicating

that the topic which he was proceeding to address

in relation to corroboration is that which involved

the need for corroboration of a child. So, in my

20   6/5/92

submission, whilst it necessarily overlapped into

the question of sexual offences because of the

nature of the charge, fundamentally what His Honour

was dealing with was the necessity for

corroboration of evidence of a child.

Complaint was also made that in so doing the

learned trial judge had transgressed the statutory
provision which effectively abolished the rule

which required a direction to be given in relation

to corroboration in sexual offences. My answer to
that personally is that it was not a direction in
relation to sexual offences, but in relation to a
child. Secondly, if there was a transgression of
that rule, it would be as the Federal Court, in my

submission, correctly perceived, a direction to the

advantage of the accused rather than to his

disadvantage.

Clearly, the object of the rule which was

abolished was to benefit an accused person by

having a jury told of the dangers of convicting

upon uncorroborated evidence so that the abolition

of that rule was to the disadvantage of an accused

and to, in fact, if that were the case to have the

benefit of a direction would, in my submission, be

to his benefit in any event.

Again, Your Honours, I pause to say that none

of those matters were the subject of any complaint

at the trial or, indeed, in the Federal Court.

It was then argued that there was an error in

the directions given by the learned trial judge

because he should have instructed the jury in the

context of the material which was available for

corroboration that they would first have to be

satisfied that the evidence of the prior

relationship was not nullified by some severance of

that relationship or by virtue of the lapse in

time. Again, Your Honours, in my submission, that

is a matter of fact and, no doubt, had been

ventilated quite fully in the course of the trial.

Secondly, there was no complaint made at the time

that such a direction should be added. And,

thirdly, it again generates a situation in which it

would be necessary for this Court to have a much

broader view of the conduct of the trial than is

possible in the refined way in which the matter has

come before it.

My learned friend also argued that in the

course of dealing with the policy, or rationale of
the rule, there were other matters which should
have been incorporated in that discourse in

addition to the two substantial matters that were

referred to by the judge. Again, these are matters

21   6/5/92

of degree, I submit, and matters of fact, and if

there was a true deficiency because of some other

elements of the argument concerning a need for

corroboration of children, those matters should

have either been raised at the time or, in any

event, would need to be assessed on a broader view

than is available to the Court in these current

circumstances.

It was also said that there was no direction

given about impermissible use on the material which

was discussed in the course of corroboration and,

in particular, the jury should have had the benefit

of an instruction from His Honour that they were

not to use the evidence as mere propensity or

evidence of bad character. Again, in my

submission, the precise omission of that material

has to be assessed in the overall context of the

trial, but what one can say is that those notions

are more apt to a discussion in relation to similar

fact and the force of any material which was

tendered by the Crown on that basis and in that

scenario, clearly a jury would have to be warned

that the evidence was of such force that it could

only be treated by the jury ultimately as similar

fact if it went beyond mere propensity or evidence

of bad character, but here, of course, the matter

in issue was one of corroboration.

GAUDRON J: It is important, is it not, to have regard to

what it is that was being corroborated, or what had

to be corroborated, namely whether the acts

happened at all, and the only basis that the

earlier evidence could seemingly corroborate their

having happened a second time is by reason of

propensity, is it not?

MR HASTINGS: Well, Your Honours, propensity is a word which

has become a little shrouded with disrepute, might

I say, as a result of discussion in Harriman and

other cases and, I suppose, it needs to be looked

at as mere propensity in the way in which it is to

be disapproved, but as a general concept, it seems

to have gained some momentum in Harriman as being

something which is really the rationale behind the

admissibility of similar fact material, and - - -

GAUDRON J: But there is something more than propensity when

you are talking about similar fact material.	You
have two given sets of facts, as it were - - -

MR HASTINGS:	Yes.
GAUDRON J:	- - - and you are arguing from one given set of

facts to the other by reason of propensity of a

kind that is not to be found in the general

community, but here you are not arguing from one

22   6/5/92

given set of facts to another, except by way of

propensity.

MR HASTINGS:  Yes. Generally, Your Honour, that is correct.

However, the propensity is of such a degree because

of the striking similarity between the earlier

conduct and the later conduct.

GAUDRON J:  But the conduct is in issue here. The conduct

itself is in issue. If it were an issue as to who

had done it, that would be one question, but that

is not the issue. It is: did it happen at all?

MR HASTINGS:  Yes, Your Honour. In my submission, it is of

strong probative force to find that that person

admits that on a prior occasion he has carried out

almost identical acts to the same complainant.

GAUDRON J: Then what is it over and above propensity that

is then involved?

MR HASTINGS: Because, Your Honour, it would, to use the

words, offend common sense or affront common sense

to exclude from the knowledge of the jury the

occurrence of those events when they are asked to

consider the matters in issue. In other words, if

the jury were simply asked to look at the events in

1987 and 1988 - - -

GAUDRON J: They are being asked to reason: he did it once

before; therefore he did it again.

MR HASTINGS:  Not strictly, Your Honour. He did it on a

number of occasions over a period of time before.

GAUDRON J: And he has done it again; therefore he has done

it again.

MR HASTINGS: That is a factor to be taken into account,

yes, because if one had simply the evidence of the

complainant without any evidence of the fact that

he had done it before, her evidence would be far

less persuasive, and her evidence is strengthened

or supported by the knowledge that he - - -

GAUDRON J:  It seems to me that overlooks that what had to

be proved was that it happened again, and the

question ultimately therefore comes: "Can you

reason?" That seems to be the way it was left to

the jury. He did it before, so he did it again,

which is a form of reasoning that has generally

been discountenanced by the courts.

MR HASTINGS: With great respect, Your Honour, that is an

underlying flaw, I suppose, in the whole notion of

similar fact evidence, and it then becomes a

question - - -

23   6/5/92

GAUDRON J:  No, similar fact evidence is about something

else. It is about when you have got two given sets

of facts, about the improbability - by reason of

one, it is improbable that the other happened other

than as said.

MR HASTINGS:  Your Honour, one of the ironies of this case,

I suppose, is - and I have not been able to

ascertain why - that the Crown chose not to lead

this evidence as similar fact material in its case.

GAUDRON J: Because maybe it is not similar fact evidence.

MR HASTINGS:  Your Honour, my submission would be that it

would be very easy to justify the fact that it was,

because there was a striking similarity in the

passages that I have outlined.

GAUDRON J: If it happened.

MR HASTINGS:	On the first occasion?
GAUDRON J:	No, if it happened the second time.
MR HASTINGS:	As to the fact as to whether it happened on

the second occasion, the fact that it had happened before, in my submission, is very probative of the very issue in relation to the second occasion.

That, in my submission, is a fundamental

justification for the admission of similar fact

evidence.

What I was going to say, Your Honour, is that

it is somewhat ironic that the Crown chose not to

run with the similar fact evidence but, nevertheless, later sought to use it as corroboration which, I suppose, in the roundabout

way achieved the same result because it led

to - - -

GAUDRON J: It does raise the question, "How this evidence

could be used", really, does it not?

MR HASTINGS:  Yes. It was specifically used as

corroboration in so far as it strengthened the
version given by the complainant and bearing in
mind that the complainant comprised the whole case,

I suppose is not illogical that, in the one breath,

it should seem to be corroboration and on the other

hand could also be justified as similar fact

because the Crown stood or fell by the words of the

complainant. Her evidence, in a corroborative

sense, was strengthened, we say, greatly by the

fact that there was a concession that it happened

before over a period of time not long before these

particular charges.

6/5/92

Your Honour, in answer to your specific

question, in my submission, as a matter of degree

this was of such striking probative force that it

would have been affront to common sense to leave it

out. One only has to contemplate the reaction of a jury, in my submission, if they had been obliged to hear this trial, on the word of a complainant

against the applicant, and then to find out later

that they were denied access to knowledge of the

fact that not long before these particular

allegations occurred the defendant had admittedly been involved in precisely the same conduct. One

would think that a jury, as a normal reaction by

virtue of common sense, would be outraged at being

denied that knowledge because - and I come back to,

perhaps, being repetitive with this - the point

that it is highly probative of the issues in

relation to the second occurrences.

Your Honours, after lunch my learned friend

made the point concerning His Honour's rebuke of

counsel at page 14 where the learned trial judge

appeared to admonish counsel for asserting that it

was the actions of the complainant who had brought

forward the knowledge of the prior activity. My

learned friend said that thereby the learned trial

judge took away the point which was being made on

behalf of the applicant. The point was said to be

that because the applicant had been frank in 1984,

that could be used as an indicator of his

reliability in his denial of the events which

occurred in 1987 and 1988.

My answer is short, Your Honour, and that

simply is that the point was left unaffected and

that is that the admonition of counsel as to who it

was who was responsible for raising the evidence

did not detract from the point that was sought to

be made on behalf of the accused which was that

because he had been frank in 1984 his disavowal of

the allegations in 1988 could be taken as being

reliable. In my submission, that point remained

unaffected by the disagreement between the trial

judge and counsel as to who should have the benefit

of raising the matter.

Finally, Your Honours, in relation to the matter argued by my learned friend in relation to a

basis for special leave involving the suggestion

that this would be an appropriate matter in which
to restate the law concerning corroboration, in my

submission, Your Honour, this would not factually

be an appropriate case. Apart from the point that

it has not been raised previously, one of the
matters advanced by my learned friend was the point
that the directions on corroboration tend to focus

25   6/5/92

on the corroborative material to the exclusion of

the facts relating to the central issue.

Your Honour, if that be a complaint, it could

hardly be one which applies to this case because I

would perceive that argument to be applicable, if

at all, in relation to where there was a contest

about the corroborative material so that, in a

sense, the jury would be distracted into the fact

finding exercise for the purposes of determining

whether the corroborative material occurred or not

and thereby distracted from the task of determining

the real facts at issue. That scenario does not

seem to exist here because the facts inherent in

the corroborative material were a matter of common
ground and concession and, indeed, led to a large

extent by the applicant.

So that, it was not a case in which there was

undue emphasis on the corroborative material. It

was a simple exercise of noting it and then

undertaking quite a simple logical task of applying

that to the facts in issue. So that in that sense,

in my submission, this would not be an appropriate

matter for the Court to intervene in order to

entertain such a restatement. Unless there are any

other matters, those are my submissions.

MASON CJ:  Thank you, Mr Hastings. Do you want to say

anything in reply, Mr Tilmouth?

MR TILMOUTH:  No, if the Court pleases.

'

MASON CJ:  The Court will take a short adjournment to

consider the course it will take in this matter.

AT 3.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.11 PM: 

MASON CJ: Instead of granting special leave to appeal in

this matter, the Court has decided that the

application should be referred to a Full Bench of

the Court for comprehensive argument.

I should say that it will be sufficient for

the parties to rely on the materials currently
before the Court, but they will need to give

consideration to filing, in addition, so far as the

applicant is concerned, of an amended notice of

appeal setting out the precise grounds to be argued

26   6/5/92

and, in addition, consideration should be given by both parties to supplementing the materials before

the Court to the extent that is considered
necessary. That is very much a matter in the hands
of the parties because we do not know what the

other materials consist of.

Mr Tilmouth, what is the present position with

the applicant?

MR TILMOUTH: In custody, Your Honours.

MASON CJ:  And over what period of time is he to be in

custody?

MR TILMOUTH:  A three year non-parole period expires, I am

told, in October 1993.

MASON CJ: Thank you. In those circumstances, the Court

will adjourn.

AT 3.13 PM THE MATTER WAS ADJOURNED SINE DIE

27 6/5/92