Kwh v The Queen

[1995] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S34 of 1995

B e t w e e n -

KWH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 11.28 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant with my learned friend, MS J.A. KEYS.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Yes, Mr Norrish.

MR NORRISH:   Your Honours, this application relies upon four issues which are said to be matters of special importance.  The first two are related to one another and are concerned with the issue of the admissibility of evidence relied upon as background or context disclosing criminal conduct other than that charged in the indictment and whether there ought to be limits to the reception of that evidence, particularly in circumstances where an accused faces a large number of charges which could be said to adequately by themselves describe the alleged relationship between the applicant and the complainants who allege sexual misconduct.

It is a matter in relation to the first two issues which raises the issue of what is relevant evidence of background or context for the purposes of the admissibility of that evidence under what could be described as either Harriman or even Hoch principles.  It raises secondly the issue of whether evidence of this nature ‑ ‑ ‑

DAWSON J:   Objection on those grounds was never taken at the trial.  The only objection was that the evidence was unnecessary because there are sufficient counts to establish the guilty passion, or whatever you like to call it, without calling this evidence.  That is not really an objection to the evidence on the basis that it was so prejudicial that it ought to have been excluded.

MR NORRISH:   Your Honour, can I deal with that matter in two ways?  If I can take your Honours to the application book very briefly.  At page 88 of the appllication book, before the Court of Criminal Appeal was an affidavit from the applicant’s barrister at trial who explained the absence of later objection to the material complained of in the Court of Criminal Appeal after the initial objection taken at the commencement of the trial, and I note that the Crown has very kindly supplied to the Court a copy of the extract of the transcript which deals with the initial objection.

If your Honours have regard to the bottom of the application book at page 88 and the top of page 89, an extract from counsel’s affidavit sets out the explanation counsel had for the failure to object to some of the material which was elicited, particularly from persons other than the complainant who gave evidence of alleged sexual assaults and violence that had not occurred in the presence of the complainants.

DAWSON J:   The transcript does not really bear that out, does it?

MR NORRISH:   Your Honour, in a sense it does, because your Honour might note - and I have to go, of course, if I may, to the Crown’s annexure.

DAWSON J:   Yes.

MR NORRISH:   The transcript shows that the applicant’s concern was to object to evidence other than that charged in the indictments.  True it is the way in which he was framing the objection at that particular time, he was referring at that time to the evidence from the complainants of alleged incidents occurring which were not charged in the indictment.  However, when one has regard to the very short judgment of the trial judge and the extract where his Honour said that he proposed:

to allow the Crown to introduce the background evidence for the limited purpose of establishing the precise nature of the relationship.

Then counsel’s apprehension that his Honour was, in effect, ruling upon background evidence generally from whatever source can be explained.  It is not without some significance that in the summing up, when the trial judge came to deal with the evidence other than that from the complainants about other acts of violence and other alleged sexual assaults, his Honour specifically referred to it as evidence that had been received as background evidence or evidence which was received to explain the context of the relationship and to explain why the complainants had not complained to the police earlier than they had.

TOOHEY J:   But there must be a lot of force in what was said by, I think the Chief Justice, that given the rather unusual features of this case, that it might well have suited the defence to have this evidence in because the defence case was that witnesses were concocting evidence and, in the language of the Chief Justice, in some respects it suits the defence for that story to be as extreme and apparently outlandish as possible.

MR NORRISH:   Your Honour, that may have been so if it was confined only to the evidence of the complainants, but we would respectfully submit that firstly the affidavit of the counsel presented to the Court of Criminal Appeal made it plain that there was no tactical consideration taken in respect of the failure to object.  It was, in fact, an understanding that counsel had - wrong or otherwise - of the nature of the trial judge’s ruling.  Secondly, there could not possibly have been any tactical advantage for the accused in allowing evidence to be given from sources other than the complainants of sexual assaults that had not occurred in the presence of the complainants.

McHUGH J:   Mr Norrish, I thought after 35 years in the law that there would be no aspect of human conduct that could surprise me, but this does.  I have never read anything like it.

MR NORRISH:   It is a bizarre case, your Honour, and there lies the vice of relying upon evidence that relates to matters outside the counts in the indictment to endeavour to establish what is said to be the background or the context in which the offences occurred.  It should be said that some of the more bizarre elements of the allegations were indicted upon.

McHUGH J:   Well, I know, but ‑ ‑ ‑

MR NORRISH:   I also point out in passing, in relation to the question that Justice Toohey raised with me, one area of evidence was the subject of objection which was later relied upon in the trial judge’s summing up as evidence of background.

TOOHEY J:   That was the witness G, is it?

MR NORRISH:   That was witness G who is the witness whose evidence forms the substance of the third special leave point in the application.  We say, your Honours, notwithstanding recent consideration of the general area of the admissibility of evidence that might otherwise disclose a disposition to commit offences, that there is no clear direction from this Court as to the extent to which evidence said to be of a background nature not charged in the indictment ought be admitted.  We respectfully submit to the Court in respect of special leave points 2 and 3 that this decision widens the circumstances in which such evidence will be received, bearing in mind ‑ ‑ ‑

TOOHEY J:   It would be very difficult to be definitive about something like this, would it not?  You could say that the evidence falls on one side of the line or the other, I suppose.

MR NORRISH:   Yes, and in a sense that may be a matter that may be limited to discretion as opposed to the admissibility issue; but we say this matter raises both admissibility and discretionary considerations.  The admissibility issue is determining what is relevant to a fact in issue in the trial.  In our submission, in the context of these matters, much of the evidence was not relevant to a fact in issue in the trial, given the evidence of the complainants themselves.

TOOHEY J:   But that, I think, points up a difficulty - namely that you are seeking special leave; there has been a review of the evidence by the Court of Criminal Appeal, and it is hard to see that we could do much more if we granted special leave than conduct a review for our own purposes.

MR NORRISH:   We would submit that ‑ ‑ ‑

TOOHEY J:   Can I just add, in other words, the principles are reasonably well laid down.  It is their application in the facts of particular cases that causes the problem.

MR NORRISH:   We respectfully submit, your Honours, that particularly Justice Dunford erred, as he was the principal judge reviewing the material.  His assessment of the material and particularly at the bottom - if I could just take your Honours to two passages on this particular point.  At the bottom of page 90 of the application book his Honour said this:

Once it is accepted that the ratio for admission of the evidence of other sexual misconduct on the part of the appellant -

and this is a reference to sexual misconduct against other people -

includes providing the proper background and setting for a complainant’s evidence so that the jury may be in a better position to assess her credibility in relation to the events charged in the indictment, I see no reason why such evidence should be limited to that of other conduct involving the appellant and the complainants, and this case provides an ideal example of the relevance of such evidence.

In our submission, that statement that evidence from other sources in some way has relevance to the credibility of the complainants in the context of this type of trial, in our submission, is wrong.

TOOHEY J:   It may in a particular case, and it may not in another.  That again only reinforces the problem regarding this as a special leave case.

MR NORRISH:   Yes.  If I may just very briefly take your Honours just further in the same page of the application book, his Honour went on to say:

in addition, evidence of sexual activities involving the appellant with other members of the household showed the type of activities in which the appellant engaged, thereby providing background and making more credible the complainants’ evidence that he engaged in such conduct with them.  Such evidence was therefore probative of the Crown case, and accordingly admissible.  It was not merely directed to showing a propensity to commit this type of offence.

In our submission, that statement demonstrates exactly the type of evidence which simply shows either, to use the expression, a propensity or a disposition, to commit a particular ‑ ‑ ‑

McHUGH J:   But is that right?  It would be difficult to imagine a worse vehicle to test this.  As the Chief Justice said, the complainants claimed that the family background in which they and the appellant lived was one in which sexual perversion, bestiality and torture were commonplace.  Against that background, surely all this evidence was admissible.  If you look at it in terms of prejudice it is impossible to think that in this case any of this other evidence could have prejudiced this accused when you have regard to the counts in the indictment.

MR NORRISH:   That was the point that was made on appeal and reference was made to Justice Hunt’s comments in Beserick about there comes a time when going beyond the counts in the indictment is pointless, given the nature of the allegations.  May I say this:  it was an unusual case because not only did the ‑ ‑ ‑

McHUGH J:   “Unusual” is a mild word.

MR NORRISH:   By that I mean unusual in the sense that the defence case comprised not only the sworn evidence of the applicant who could have made an unsworn statement, but there was evidence from the mothers of the two young women to contradict their assertions in relation to the matters which were the subject of charge, as well as the evidence of the solicitor as to the statement that they had signed on a previous occasion denying that there had been any allegations of sexual misconduct.

McHUGH J:   Yes, I know, but on the other hand there is the evidence of the witness at the strip poker game and ‑ ‑ ‑

MR NORRISH:   Yes, but which was inconclusive on the actual sexual assault aspect, although it was evidence of opportunity for sexual assault to occur.

McHUGH J:   Yes.

MR NORRISH:   It was a matter, your Honour, where we say that the receipt into evidence of this additional material created the miscarriage of justice that we complain about if one looks at the case as having for the benefit of the applicant the support of the evidence of the mothers of the complainants.

In relation to the last two special leave points, if I may turn to those just very briefly.  Firstly, the material which is the subject of complaint in the third special leave point, of course, was material received by the court as relevant either in re‑examination or in further examination‑in‑chief, which is what his Honour allowed.  To explain the evidence of the witness G as to the reason that he disliked the applicant, it is quite clear from the transcript that that is the basis upon which it was being led and that is the basis upon which it was received.  Of course, it was dealt with very briefly in cross‑examination by the applicant’s counsel - given the context of the trial, quite understandably so.

When the matter came for direction to the jury, however, that evidence was not explained to the jury as received for the limited purpose, which we would respectfully submit the transcript makes clear, but was receivable in addition to all the other evidence of sexual misconduct alleged by the complainants and the other witnesses not charged, as evidence of the “background” in which the alleged offences had occurred.

I appreciate this issue was addressed in B v The Queen and I have referred to the judgment of Justice Brennan and the judgment of Justices Dawson and Gaudron in relation to the issue of evidence being received in on one basis being used for another basis.  This matter can be distinguished from B v The Queen in the sense that in B the evidence was deliberately adduced by the accused in order to explain a motive for the complainant to lie.  In this matter the evidence was adduced by the Crown to allow the witnesses in question to explain the basis upon which they had earlier expressed their dislike for the applicant, and its importance was elevated way beyond that upon which it was received.

We respectfully submit that the use of the evidence for that purpose caused a miscarriage of justice and we respectfully submit that notwithstanding what was said by this Court in B v The Queen that the issue of the uses to which evidence may be put legitimately after the evidence has been received is a matter of special importance requiring the grant of special leave.

DAWSON J:   But in the context of the trial it could not have made much difference, could it?

MR NORRISH:   I go back to the point I made earlier; that is a very difficult matter to assess, given the very unusual circumstances of the case.  But it may have been the straw that broke the camel’s back because this was an allegation of homosexual violation which in the circumstances may have added to the allegations a dimension very prejudicial to the applicant which the applicant did not need, given the rest of the evidence that was relied upon by the Crown to prove his guilt in relation to the matters charged.

The fourth matter which is the subject of application for special leave concerns the evidence in reply, or in fact the granting to the Crown of leave to conduct a case in reply.  Your Honours, the evidence relied upon by the Crown ‑ ‑ ‑

DAWSON J:   That was done for your benefit, was it not really, so that you could cross‑examine?

MR NORRISH:   For our benefit?  I do not understand, that could not possibly have been for our ‑ ‑ ‑

DAWSON J:   It was a question of cross‑examination, was it not?

MR NORRISH:   Yes.  The Crown cross‑examined the witnesses as to statements they had made to other witnesses in the case who had been called by the Crown alleging or signifying knowledge on the part of the defence witnesses of some of the allegations against the accused, or the fact that those allegations may be true.  In the case of the evidence from the woman called in reply, that was evidence of a statement made by one of the mothers which was of a purely hearsay nature and totally lacking in particularity.  The Crown had introduced the material by cross‑examining the particular witness on the basis that she was not telling the truth, having regard to what she had earlier said to a witness who had an interest in the case.  The other statement made by the other witness in the defence case was allegedly statements made to a police officer who was involved in the investigation of the matter.

We respectfully submit that the evidence was of the character described in Cheney which we referred to in our written submissions, that it

by its nature had a prejudice to the applicant which went beyond any assistance it may have given to the jury in terms of assessing the truthfulness or otherwise of the witnesses called in the defence case.  There was a possibility of concoction, particularly on the part of the woman whose evidence was called in reply, and of course the evidence of the police officer was of such a character that we respectfully submit that at the very least it was a discretionary matter that should have been exercised in favour of the applicant such as to not allow that evidence to be given.  We submit that the special leave issue in relation to that evidence is determining this Court once again revisiting the issue of the Crown’s case in reply in determining the limits which must be imposed upon the right of the Crown.

DAWSON J:   It has endeavoured to do that fairly recently in the past, has it not?

MR NORRISH:   Yes, your Honour, but this case involves a somewhat different situation than the earlier judgments of this Court.  If one goes back a little bit to Chin, we are talking about evidence in reply that was directly relevant to the issue of ‑ ‑ ‑

DAWSON J:   When was Chin decided?

MR NORRISH:   1984 - about 11 years ago.  It seems like yesterday but it is - we submit that this material was not direct evidence.  It was evidence of hearsay assertions that could not have been led in the Crown case and only arose as an issue because of the cross‑examination of the Crown.  As it was limited to credit we respectfully submit that it was subject to the then common law restrictions upon calling evidence on collateral matters to rebut assertions by the witness.  They are the submissions we wish to make in support of the application.

DAWSON J:   Thank you, Mr Norrish.  We need not trouble you, Mr Keleman.

Having regard to the fact that at trial no objection was taken, upon the basis of prejudice, to the evidence which is now challenged, and having regard to the fact that it may have been to the advantage of the applicant to rely upon that evidence for the purpose of his defence, this case is not a suitable one in which to grant special leave to appeal upon the first ground.  Moreover, we are not persuaded that there was any error in principle in the approach which was adopted by the Court of Criminal Appeal.  We
do not think that any of the other points which are raised would give rise to any point of principle warranting a grant of special leave and special leave to appeal is accordingly refused.

AT 11.49 AM THE MATTER WAS CONCLUDED