Lear v The Queen

[1998] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M86 of 1996

B e t w e e n -

TERRENCE JOHN LEAR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 MAY 1998, AT 2.43 PM

Copyright in the High Court of Australia

MR J.W. LEE:   If the Court pleases, I appear on behalf of the applicant.  (instructed by T.T. O’Brien)

MR P.A. COGHLAN, QC:   I appear with my learned friend, MR R.A. ELSTON, for the respondent, if it please.  (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

GUMMOW J:   Mr Lee.

MR LEE:   Thank you, your Honour.  Could I say that, as set out in the outline of argument, null argument will be addressed to a number of the draft grounds of appeal.  I concentrate primarily ‑ ‑ ‑

GUMMOW J:   The application book is rather confusing.  Can you take us to the right version of the grounds of appeal and then indicate which grounds are not to be pressed?

MR LEE:   The grounds of appeal are set out at page 88 of the application book.

GUMMOW J:   Yes.  Grounds 1 and 2, are they still pressed?

MR LEE:   Yes, 1 and 2 will be pressed, your Honour, and 3 and 4 and 6.

GUMMOW J:   But not 5?  I am not encouraging you.

MR LEE:   No, your Honour.  In effect, the ‑ ‑ ‑

GUMMOW J:   What about the appeal against sentence?

MR LEE:   The appeal against sentence is pressed, your Honour, yes.  Now, if I can go straight to what, in my submission, is at the heart of the matter and that is this, that both the primary trial judge and the Court of Appeal relied very substantially on the decision of the High Court in Phillips.  However, since Phillips was decided in 1985, in 1986 the right in Victoria to make ‑ ‑ ‑

GUMMOW J:   Phillips was on Queensland legislation, was it not?

MR LEE:   Yes, it was, but it is in virtually identical terms, your Honour.  Since that time in 1986 the right to make an unsworn statement was abolished and in Victoria the right to give unsworn evidence was instated but then, in 1993, the right to give unsworn evidence was also taken away.  So that it is submitted that ‑ ‑ ‑

GUMMOW J:   So what is the end result now at the time of his trial?

MR LEE: The end result now is the only choice is stand mute or get into the witness box, so in the circumstances - and there is an intermediate stage that I should point to and that was that under the provisions of the unsworn evidence legislation, section 399 could apply to somebody who gave unsworn evidence equally as to somebody who gave sworn evidence. But the position now is, since 1986, that any person now who is exposed to the rigours of section 399 has no means realistically in the situation that Mr Lear found himself in of putting his story before the jury without exposing himself to enormous prejudice.

Here, as is apparent from the material, Mr Lear found himself in the situation where, if he gave evidence, the fact that he had two prior convictions for rape would have been before the jury in a situation where the defence as raised by the record of interview was one of consent.  The further matter that I submit calls for an authoritative decision by the High Court is this, that the two authorities that are referred to, your Honour - and I apologise for this, but it is a typographical error - the first in the list of authorities should be P v The Queen, not R v The Queen.  That is a decision of the South Australian Supreme Court post‑Phillips which takes the view that was pressed on the Court of Appeal, but rejected, that where the allegations made against - which I concede give rise to at law the operation of section 399, that they do involve imputations on the complainant’s character - P says that where those imputations are essential to the nature of the defence, as it is submitted they are here, then leave should not be granted to the prosecution except in very exceptional circumstances.

Chinmaya, which is a decision of the Queensland Court of Appeal, takes up the use of the word “unfettered discretion” which was used by the Court in Phillips’ Case.  Now, it is my submission that although the word “unfettered” is used, that cannot mean what unfettered means in the Oxford Dictionary.  It must mean a discretion still must be judicially exercised rather than unfettered, and it is my submission that a very important factor that must be weighed is whether the allegation is put simply as a smear tactic or whether it bears relationship to the very real conduct of the defence.  Now, here ‑ ‑ ‑

GUMMOW J:   It is said against you here that the trial judge in the particular circumstances exercised his discretion on this preliminary basis, at any rate, on a ground with which the Court of Criminal Appeal felt it should not interfere.

MR LEE:   I agree, your Honour.

GUMMOW J:   It is then said that, anyway, it was only preliminary footing and nothing was heard of it again in the course of the trial.

MR LEE:   Well, that is so, but it was expressed in terms that indicated that if the applicant got into the witness box he would be cross‑examined and that prior convictions would be put to him.  Now, the Court of Appeal made the point that that was a preliminary ruling only or a preliminary set of guidelines only and it perhaps should have been revisited, but it is submitted, your Honour, that counsel in that situation, unless something changed in the course of the trial - and it did not - it ought not be required to revisit constantly rulings that a trial judge has already made and made in fairly clear terms.

Now, why I say that the learned trial judge and the Court of Appeal got it wrong is because they were, if you like, overborne by the decision of the High Court in Phillips and it is my submission that that decision now has to be looked at in the light of the fact of changed circumstances in that now there is no way that - for example, in Phillips’ Case he could have - well, I do not know whether he could have in Queensland at the time, but in Victoria he could have at the time given unsworn evidence or given an unsworn statement and, therefore, not ‑ ‑ ‑

GUMMOW J:   Is there any reliance on that as a strand in the reasoning in Phillips, that circumstance?

MR LEE:   No, your Honour, I do not believe so, but it was a fact of life.  Now, here the allegation or the prior convictions - and the grounds of appeal about section 37A ‑ ‑ ‑

GUMMOW J:   They are not pressed, as I understand it.

MR LEE:   No, your Honour.  Quite frankly, I think the judge and the Court of Appeal were correct in their - I did not draw the grounds.  I do not think there is anything in that.  It is clearly a reference to her sexual activities and, however one tries to dress it up, that is the primary purpose of it.  Now, here, however, the allegation is that she makes the complaint to divert attention from the fact that the applicant says she stole money from his car.  Now, if we take a step back from that, it is my submission that the fact that she has prior convictions for theft and other offences of dishonesty is, in fact, relevant and admissible evidence to prove that she stole on this occasion.

Now, the reasoning of Justice Dawson in Harriman’s Case was that a whole line of authority existed which he analysed to say that propensity evidence was always regarded as both relevant and admissible but was rejected because of its overwhelming prejudicial value.  Here the prejudicial probative argument has no force because she is not at risk of a criminal conviction as a result of the evidence of her prior convictions coming out.  So it is my submission that they are relevant, the fact of her prior convictions were relevant generally, genuinely, to a real fact in issue in the case:  whether she stole the money and, therefore, had a motive to make the allegations which she did make.

CALLINAN J:   Can you show me where the trial judge dealt with that?

MR LEE:   Yes, your Honour.  It commences, your Honour, at application book page 13 and it runs only for the two pages.

CALLINAN J:   In particular, where his Honour took into account what you say was a central aspect of the defence and was other than a mere imputation, as it were, against the credibility of the complainant.

MR LEE:   At page 14 line 10, I submit he is wrong about that when he says that it was “primarily.....intended to show her bad character”.

CALLINAN J:   Well, that is really a central part of your argument, is it not, that his Honour was wrong about that?

MR LEE:   Yes.

CALLINAN J:   That contaminated the exercise of the discretion.

MR LEE:   Yes.  I have got to be fair to his Honour in that, at that stage, he was dealing also with an application to cross‑examine - I am sorry, at that stage the prior convictions being talked about included the prior conviction for loitering for the purposes of prostitution.

CALLINAN J:   But does his Honour at any place separate the two?

MR LEE:   No, he does not, not that I am aware of, your Honour.

GUMMOW J:   Now, whereabouts does the Court of Criminal Appeal deal with this point arising at page 14?

CALLINAN J:   Page 45, is it, the bottom of page 45?  Page 46.

MR LEE:   Yes, at the bottom of page 45 of the application book.

GUMMOW J:   Yes, line 15 on 46, “A number of reasons were advanced”.  Now, is the reason you are now advancing one of the reasons that are then referred to?

MR LEE:   Yes, that is right, your Honour.

GUMMOW J:   Whereabouts?

MR LEE:  

These included the judge’s alleged failure to accept that the imputations were integral to the defence where the issue of motive was a powerful one and “critical distinctions” between the instant case and that of Phillips ‑ ‑ ‑

GUMMOW J:   Yes, thank you.  Where is that disposed of against you, as it were?

MR LEE:   On page 47 at line 8 is the commencement of it, your Honour.

GUMMOW J:   Yes.

CALLINAN J:   The Court of Appeal does not seem to distinguish between the two issues in the ruling, that is as to the convictions for prostitution and the convictions for theft.

MR LEE:   No, your Honour, and it has got to be said - I think it appears somewhere in the summary - that the prosecutor at the trial at least floated the possibility of there being a separation, both of the accused’s prior convictions, leaving out the prior convictions for rape, and the ‑ ‑ ‑

CALLINAN J:   At page 47 the Chief Justice says, speaking of the trial judge:

He considered, in my view, properly, that such a cross‑examination would be “primarily, or, indeed, solely intended to show her bad character”.

What would provide any basis for a discretionary ruling that the cross‑examination was intended solely to show her bad character?

MR LEE:   I do not think there is any, your Honour.

CALLINAN J:   I should really ask your opponent that.

MR LEE:   Yes, I think so.  The difficulty is when there was intermingled with it the application pursuant to section 37A and I think it fair to say that that muddied the waters.

CALLINAN J:   But really different considerations are involved.  They are quite different considerations.

MR LEE:   Yes, they are, your Honour.  With respect, I would agree with that.

CALLINAN J:   And I do not know whether you can lump them together and deal with them as if they are of a kind.

MR LEE:   With respect, I agree, but that is what appears to have happened, both in the Court of Appeal and in the trial, and I say that is what has led to the error.  It has coloured the whole decision, both by the learned trial judge and by the Court of Appeal.  It is also submitted that the Court of Appeal was incorrect in saying that there was no evidence that the ruling of the trial judge played any part in the decision of the applicant in not giving evidence.  With respect to the Court of Appeal, there is, of course, no evidence but it is self‑evident, one would have thought, that a man with prior convictions for rape is not going to get into the witness box on a rape trial and lead evidence that this was a consensual matter.

CALLINAN J:   Mr Lee, can I just take you back a step though?  How do you say that the fact that a complainant had prior convictions for theft was central to the question of her motive for making a complaint?

MR LEE:   The allegation was made by ‑ ‑ ‑

CALLINAN J:   Was it a propensity case?  Was it said that because she had stolen on other occasions, was that what was being said?

MR LEE:   Yes, your Honour.

CALLINAN J:   So it was going to be a propensity case?

MR LEE:   Yes.

CALLINAN J:   And were there enough features in common for it to constitute a propensity case?

MR LEE:   Well, there were - I believe she was at the time on a suspended sentence for theft for shoplifting.

CALLINAN J:   This was a theft from the glove box, was it?

MR LEE:   Console of the car, between the two seats, as I understand it.

CALLINAN J:   Well, how does that demonstrate propensity, the previous ones, a propensity to commit this crime, that is the crime of stealing?

MR LEE:   Well, it is a general propensity for stealing.

CALLINAN J:   But do you not need more than that?  Do you not need aspects of the offence which are similar?

MR LEE:   No, with respect, not.  On the reasoning of Justice Dawson in Harriman, Justice Dawson says that the striking similarity test for similar fact evidence, if you like, was really an aberration and that you did not need striking similarity for propensity.  It was just that the striking similarity added so much to the probative weight that it exceeded the prejudicial effect.  If I can take your Honour to that.

CALLINAN J:   Has there not been a much more recent case than this in the High Court for propensity?

GUMMOW J:   Yes, there has.

CALLINAN J:   There is a very recent case in the High Court in relation to propensity.

GUMMOW J:   Harriman is not the last word, is it?

CALLINAN J:   The case of the clothing that was left on the cliff and there were various other factual aspects of it.  I have forgotten ‑ ‑ ‑

MR LEE:   Pfennig, yes, your Honour.

CALLINAN J:   Yes.  What does Pfennig say about Harriman?  Does it say anything about Harriman?

MR LEE:   My friend has just told me enough to remind me of the facts of Pfennig.  I do not recall that it says anything that detracts from what I am submitting Justice Dawson said in Harriman and, in particular, the striking similarity point that your Honour raised is dealt with at the commencement of his judgment on page 597.

CALLINAN J:   What did the other members of the Court say on this proposition?  Did any of them say anything about it?

MR LEE:   Justice Brennan says:

where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion.  If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue ‑ ‑ ‑

GUMMOW J:   Well, that is the problem, is it not, here?

MR LEE:   Yes.

GUMMOW J:   In other words, you want to take it at a very general level of propensity.

MR LEE:   Yes, but I submit that even if I do not get that far, it would still be relevant as to her credit and here credit was a substantial issue.

CALLINAN J:   Credit is always an issue.

MR LEE:   Yes, but the fact ‑ ‑ ‑

CALLINAN J:   If you are going to make credit or an issue of credit your yardstick, the discretion will practically always be exercised..... cross‑examination.

MR LEE:   The words used in the section is if it gives rise to a substantial matter of credit, I think it is.  No, I am incorrect in saying that.  I have done what I accused the court of doing, mixed up section 37A and 399.

CALLINAN J:   Where does it mention “credit” in ‑ ‑ ‑

MR LEE:   No, I am wrong.  No, it is 37A that mentions “credit”, your Honour.

CALLINAN J:   What I put to you is right then really.

MR LEE:   Yes, but it depends - in my submission, it depends on the strength of the evidence, how strongly it affects credit and it is my submission that convictions for offences of dishonesty and, in particular, a conviction which would have demonstrated that she had breached a suspended sentence would go strongly to her credit.

CALLINAN J:   Let us accept that it does go to her credit.  There is nothing in the statute that gives you any prereffed or any position to enable you to cross‑examine simply because it goes to credit.

MR LEE:   No, your Honour.

CALLINAN J:   For myself, I would have been a little more attracted to your other point.  I am frankly concerned about the question whether any propensity, whether it was in terms of what his Honour Justice Dawson said or anybody else said, whether any of those criteria can be satisfied, and it seems to me that at the moment, unless you can point to some factors that the allegation was simply theft of an opportunistic kind and bearing no features in common or no demonstrable features in common at all with other offences of theft for which she had been convicted.

MR LEE:   If it is characterised as “theft of an opportunistic kind”, then it is submitted that there are some similarities in the sense that shoplifting is always theft of an opportunistic kind.

CALLINAN J:   I do not know about that.

MR LEE:   Well, not always.

CALLINAN J:   I suspect that people go out shopping.

MR LEE:   Yes, of course, but in the absence of any further material - and I do not think there was any setting out the complete factual basis of her previous conviction, only that it was shoplifting - I cannot really assist any further.

GUMMOW J:   Now, briefly, what do you want to say about sentence?

MR LEE:   Simply this, your Honour ‑ ‑ ‑

GUMMOW J:   You did rather well, really.  You got this evidence in and there is a debate about whether it should have got in, but it got in and you got some reduction.

MR LEE:   Yes.  It is simply this, your Honour, that ‑ ‑ ‑

GUMMOW J:   And we do not ordinarily intervene in sentencing matters where there is no question of principle, as you understand.

MR LEE:   I understand that.  It is my submission that there is a reason for a High Court intervention in this case, not so much because of the nature of

Mr Lear’s illness, but because it is submitted there will be an increasing prevalence of late diagnosed - there are a number of AIDS cases that have been dealt with in the Supreme Court.

GUMMOW J:   Indeed, but that can await a case where the expert evidence stacks up rather better than here or less disputatiously than here, can it not?

MR LEE:   That is not a matter that I can address argument to, your Honour.  That is a matter of opinion, pure and simple, and if your Honour is of that view, I do not think there is any way I could persuade you any different but, as to my understanding, there is no High Court authority on the effect of a late diagnosis, a diagnosis after sentence of a potentially fatal illness and, if this is not the proper vehicle for that case, well, so be it, but it is my submission that there is a point of principle that needs decision in that area.

GUMMOW J:   Yes, but after the court below has sorted out what its rule one way or the other is as to letting this material in at a later stage.

MR LEE:   Yes, your Honour.  I accept that it is not 100 per cent satisfactory.  Thank you, your Honour.

GUMMOW J:   Thank you, Mr Lee.  The Court has no need to call on you, Mr Coghlan.

Special leave is refused. The applicant is unable to demonstrate that the cross-examination, which the trial judge ruled would enable the prosecution to adduce evidence of the applicant’s prior convictions, was other than cross-examination involving imputations on the character of the complainant within the meaning of section 399 of the Crimes Act 1958 (Vic).

So far as sentence is concerned, no error of principle can be discerned in the Court of Criminal Appeal’s treatment of the exercise by the sentencing judge of his discretion.  As I have indicated, special leave is refused.

AT 3.12 PM THE MATTER WAS CONCLUDED