Loguancio v The Queen

[2000] HCATrans 573

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 2000

B e t w e e n -

ANTONIO CHRISTOPHER LOGUANCIO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 12.06 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant.  (instructed by Leanne Warren & Associates)

MR G.R. FLATMAN, QC:   May it please the Court, I appear with my learned friend, MS M.E. SEXTON, for the respondent.  (instructed by the Solicitor for Public Prosecutions)

McHUGH J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, there are three questions raised - three grounds dealt with but I want to deal with the first two, in particular the question dealing with the standard of proof concerning uncharged acts and secondly, the related directions concerning the purposes for which uncharged acts might be used in a case such as the present, and were used in this particular case.

Before I turn to the specific facts, on the question of the standard of proof, since Gipp’s Case it seems that there has been quite a deal of disagreement amongst Courts of Appeal throughout the country on the question of the standard of proof to be applied, if at all, to uncharged acts.

HAYNE J:   Now, can we treat the subject matter of uncharged acts as an undifferentiated whole.  Firstly, the circumstances in which evidence of these uncharged acts came out in this trial differed from that which often obtains.  Secondly, the use that it was said might or could be made of this evidence of uncharged acts also differed in some respects, did it not, from the use that sometimes is said to be open to a jury in some cases?

MR CROUCHER:   That is so, your Honour.  Turning to the first part though of the different way in which the evidence came out, the evidence of uncharged acts of violence simpliciter, if I can put it that way, was led over objection and ruling, both specific and generalised.  The evidence of uncharged acts of rape it was understood would not be led at all by the Crown.  However, in the course of evidence-in‑chief it seems, inadvertently, some of that was led, a specific instance, in particular, which was associated with uncharged allegations of violence as well.

HAYNE J:   But the more common problem of uncharged acts arises in the offences against a minor where it is usually put under the rubric of guilty passion.

MR CROUCHER:   Yes, your Honour.

HAYNE J:   Not the problem that confronted the parties in this trial.

MR CROUCHER:   One of the issues though, your Honour, is how those terms like “guilty passion”, “relationship”, “context”, what they all mean and whether they are overlapping notions in any event.  Part of the question that relates to the second ground and, indeed, overlaps with this first ground dealing with the issue of the standard of proof is the complaint that when speaking of relationship one is also really speaking of guilty passion and one is also really speaking of context.

In particular, what a jury should be told is that the evidence is led to establish a relationship in order that the context of the allegations might be understood so that they simply do not come out of the blue, otherwise an allegation, an extraordinary allegation - some of the allegations in this case were extreme or extraordinary allegations – that they would have some context or meaning to them, otherwise an allegation of the particular rapes that occurred or were alleged to have occurred in this case, would seem, if they came out of the blue, to be extraordinary allegations.  So that that question of guilty passion or relationship or context or whichever is the appropriate way of describing these things is an important question in itself.

There is also in the authorities, it seems, looseness and disagreement about those concepts.  Sometimes the concept of guilty passion or sexual interest is used interchangeably with relationship it seems, and context.  Other times they are treated as separate purposes.

But it is my submission that in a case like this, and for that matter in the child sexual case that your Honour referred to, the point in the end is much the same, that is to say that whenever there is evidence of ongoing sexual abuse prior to, beforehand, at the time of or subsequent thereto the charged allegations, it is in the evidence that goes to some sort of sexual relationship, whether it be an improper relationship between a child and an adult or whether a non‑consensual relationship between a husband and wife.

HAYNE J:   The broadest outline of the Crown case in this matter was, was it not, that this was a violent and abusive relationship between husband and wife in which certain particular physical and sexual events occurred, which were the subject of charges?

MR CROUCHER:   Yes.

HAYNE J:   The thrust of your submission is, is it not, that the Crown had to prove beyond reasonable doubt by reference to identified events that this was, in truth, a violent and abusive relationship?

MR CROUCHER:   Indeed, your Honour, that, as well as ‑ ‑ ‑

HAYNE J:   That seems a very large proposition when the man is on trial for identified offences.

MR CROUCHER:   In my submission it was important, particularly in this case, given the particular circumstances of this particular case.  This was a case where there was no corroboration at all of the charged rapes.  There was corroboration of the charged violence.  There was no corroboration of the charged rapes.

HAYNE J:   I will leave aside the corroboration.  I am not sure that that is right.  There was the forensic evidence about what was found on certain of the ‑ ‑ ‑

MR CROUCHER:   The chair?

HAYNE J:   Yes.

MR CROUCHER:   That was, in the end, in a sense, scotched, I think, by his Honour.

HAYNE J:   Well, leave it aside for the moment.

MR CROUCHER:   There was also the fact that the uncharged allegations were that there was daily rape and beatings between about the last, I think, eight months or so of the relationship, in particular, from August 1996 and through until the relationship ended with his arrest in April.  Now, during that same period there are various charged allegations – rapes and also violence.

Now, if the evidence is that this is occurring daily then it must have been, in the jury’s mind, impossible to separate the charged from the uncharged allegations, much in the same way that the court found favour with the argument in FJB’s Case about matters being separably bound up.

As well, despite the allegation that this abuse was occurring on such a frequent basis, particularly the rapes and violence, but particularly the rapes and, as well, the complaint that these caused internal injuries and as well as the admission from the complainant that she was attending the doctor fairly regularly throughout this period, there was no complaint to any doctor about any such injuries, about any such rape at all.

The Crown then, when that point was raised, as it understandably was in cross‑examination of the complainant, then sought to lead evidence of “battered woman syndrome” evidence, which was based on the expert’s opinion based on the evidence of the complainant about the extent of the abuse, not just the charged allegations but the whole of her evidence.

HAYNE J:   But we are coming away, are we not, from the bases of your application?  In a trial of this kind what is fundamental is that everybody’s eye stays on the ball, namely, that there are identified charges and have the Crown established them.  The thrust of your submission is that, in addition to focusing on that, the jury should be required to consider the separate question of whether uncharged events have been demonstrated to be true beyond reasonable doubt.  So that the jury may engage in what process of reasoning, do you say?

MR CROUCHER:   In order that if, when the jury is considering that evidence for the prescribed purposes for which it is led, for example, if it has been led for context or relationship or guilty passion or whatever it is called, then ‑ ‑ ‑

HAYNE J:   But in this case.  What was the chain of reasoning that either the jury could or, you say, impermissibly might have engaged in?

MR CROUCHER:   They might have accepted that there was a long history and continuing history of sexual and physical abuse, found such a thing on a less than criminal standard and then, inevitably found that the charged acts occurred without having proper resort to the criminal standard.  That is part of the point.  As I say, in the particular circumstances of this case, because the allegations were so extreme that it was going on daily during the same period that the charged allegations arise as well ‑ ‑ ‑

McHUGH J:   But the jury were told that the evidence was limited to putting the complainant’s evidence into a realistic setting.

MR CROUCHER:   That is what they were told about the rapes, your Honour, the uncharged rapes.

McHUGH J:   Yes.

MR CROUCHER:   About the uncharged violence they were told three different things.

McHUGH J:   Three different, yes.

MR CROUCHER:   Yes.  In addition to context or realistic setting, they were told that it goes to relationship, and that is part of the complaint as well.  What were the jury to think?  What does context mean unless it means that there has been an ongoing violent relationship or ongoing improper sexual relationship or both, and then to say in addition, it is relevant to relationship as well.

It is submitted that that is wrong headed, that in the end it is all part of the one idea, if you like.  Relationship and context, or guilty passion, as it is sometimes called, and context – they are all two sides of the one coin or all parts of the same concept going in the end to the notion of putting something in a realistic context or setting so that it is simply not an allegation out of the blue.  That is the point of that type of evidence, unless one gets to the second stage of the propensity‑type cases where it is led for similar fact reasons than these types, a different issue again.

But there are other factors as well in this particular case that may have led the jury, or impermissibly may have led the jury into an impermissible line of reasoning and relying on those uncharged allegations.  In particular, these allegations were highly prejudicial in themselves, the particular charged allegations, but to say that rape and beatings are going on daily for a period of eight months and also at various times prior thereto, is an extraordinarily prejudicial thing.

HAYNE J:   Let us put this just in a little context, can we?  This man was standing trial on 32 counts.  He was not charged with one count.

MR CROUCHER:   No.

HAYNE J:   No.

MR CROUCHER:   That is understood, your Honour.

HAYNE J:   Yes.

MR CROUCHER:   But the weight of prejudice can be so great in the end that no directions can cure it, in my submission.  The other thing that the jury were told, which I have not referred to in the summary of argument, and if I could take your Honours ‑ ‑ ‑

McHUGH J:   But prejudice does not mean that the evidence is adverse to the accused.  Prejudice means that it is likely to divert the tribunal of fact from its proper task.  The evidence was admissible.  It does not matter how damning it was from the point of view of your client.  It could not be excluded unless it was likely to divert the jury from its proper task and, given the evidence concerning the 32 charges, that is another large proposition.

MR CROUCHER:   Your Honours, if I might turn your Honours to page 130 of the application book, starting at the bottom line.  When his Honour opened his directions to the jury he dealt with a couple of issues that arose out of the address of counsel, one of which starts at line 28 on page 130 where his Honour says:

The other matter that I want to mention to you is that during the course of his address to you Mr Montgomery said to you on two occasions, one referring to the evidence of –

the complainant –

that she was raped in a Seymour motel I think on the first weekend‑

now, that was one of the specific uncharged allegations –

and her evidence as to a rape at the Reservoir unit after which she was tied up with orange rope and handcuffed –

and just interposing there, that was the uncharged allegation led in evidence‑in‑chief, not only the uncharged rope but also the uncharged violence associated therewith –

Mr Montgomery said to you words to the effect, “Well, the Crown can’t believe it because she’s not charged with it.”  Now let me make it quite clear to you.  The belief of the Crown, the belief of Mr Slim is quite irrelevant.  The belief of counsel at either end of the Bar table is quite irrelevant.  My belief is quite irrelevant.  The only person in this court, the only persons in this court whose belief is of any importance and relevance is yours.

I should also say this to you -

and this is the particular passage –

It may well be, no doubt, that there are other considerations which operate so far as the Crown is concerned on what matters are included in a presentment.  You will notice that it seems that each of the allegations, the charges of rape in the presentment –

so he is talking about rapes –

are charges in which it is alleged that the alleged rape was associated with, or accompanied by, some violence.

Now that, in my submission, read together with all of the other particular circumstances of the case, is potentially putting the jury on a path that the uncharged allegations of violence are very important to a determination of whether or not the rapes occurred and there is a risk that a jury engaged in this impermissible line of reasoning, using that evidence at a less than criminal standard to be an indispensable link in its chain of reasoning to guilt in a particular case, that is part of the risk that, in my submission, is disclosed in this particular charge as well as, as I say, the unusual circumstances.

Going back to the question of the failure to complain and the failure to see doctors and the like and the expert evidence, that obviously became a big issue, if I could put it that way, your Honours, a focus of the trial that the complainant had failed to complain to doctors in those circumstances and had failed to complain to police or other authorities until late in the piece.

It is submitted that given the unusual nature of “battered woman syndrome” evidence and the unusual link that it could create in a jury’s chain of reasoning as to whether or not to accept someone’s explanation, “Well, I didn’t complain because of X, Y and Z”, that it was essential that the basis for that opinion be proved beyond reasonable doubt.  The basis for that opinion was not just the charged allegations but the multiplicity of uncharged allegations, in particular, daily rape and beatings.

Of course, there was other evidence from the other expert basically accepting that if that evidence were shown then it still placed her outside the realms of the particular syndrome and, therefore, his opinion was that most people would leave in those circumstances but nevertheless that set of circumstances is apt to have a jury rely heavily on that type of evidence before it was prepared to accept beyond reasonable doubt the particular allegations so that it could have formed a link in the chain of reasoning and therefore, Shepherd-type reasoning, in my submission, could, in particular, apply.

As I say, the courts in this State and in New South Wales as well, and other States have been vexed by these questions.  Your Honours will notice at page 313 of the application book I referred to his Honour Mr Justice Callaway’s particular comments at paragraph 36 where he says that:

Several distinct topics are discussed in Gipp v R but, both in this State and in New South Wales, it is a decision which has proved hard to apply correctly.  In most cases, counsel would be well advised to steer clear of it.  Like R v FJB and R v Pearce, it turns to no small extent on its own facts.

Well, that may or may not be so but, in my submission, the courts are looking for guidance on this very question.  Similarly, under the issue of the appropriate directions as to purpose, his Honour Mr Justice Tadgell in Pearce’s Case – this is on the same page – after referring to Schneider says this:

So, too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) –

this is this argument about the duality or the two‑sided nature of relationship and context –

for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above.

I have referred your Honours to, in the materials provided yesterday, a decision of R v MM in the New South Wales Court of Appeal recently, where in the one court different judges took different views about this very issue.  In my submission, it is a matter of national importance and it is a matter that Courts of Appeal and trial judges need guidance on.

It is respectfully conceded, as Justice Hayne pointed out initially, that it is a little bit different from the usual case where it is a child sexual case.  The same issues apply, in a sense all the more so because this is one where there are not just sexual allegations but violent allegations as well, uncharged allegations, and not just “It happened regularly” but specific occasions were identified as well as these generalised allegations.       If one goes back to the comments of your Honours Justices McHugh and Hayne in Gipp’s Case itself ‑ ‑ ‑

McHUGH J:   That was a case of guilty passion where specific offences were relied on to prove guilty passion.

MR CROUCHER:   I understood it was the opposite, that your Honours were saying that were there specific allegations then there would have been a requirement to prove them beyond a reasonable doubt.  Well, there were both specific allegations and ‑ ‑ ‑

McHUGH J:   We said if there had have been.

MR CROUCHER:   Yes, as your Honour pleases.  In this case there are both.

McHUGH J:   Yes.

MR CROUCHER:   So it raises the question squarely and not only the question of specific allegations but also the generalised evidence as well and in the particular circumstances.

McHUGH J:   Yes, right.  I notice your time is up, Mr Croucher.

MR CROUCHER:   Yes, may it please the Court.

McHUGH J:   Thank you, Mr Croucher.  The Court does not need to hear you, Mr Flatman.

Evidence was given at the applicant’s trial that he had committed sexual and other violent assaults on the complainant on occasions other than those the subject of the many charges against him.  The evidence was not led, as is sometimes the case, to establish the existence of the accused’s guilty passion but to provide evidence of relationship between the accused and the complainant and of the context in which the offences were alleged to have occurred.  This is not a suitable vehicle for considering general questions about what is sometimes called relationship evidence and which the applicant seeks to raise in this application.  We are not persuaded that there was, in this case, any miscarriage of justice.  Special leave to appeal is refused.

The Court will now adjourn till 2.30 pm.

AT 12.28 PM THE MATTER WAS CONCLUDED