Martin v The Queen

[2001] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S238 of 2000

B e t w e e n -

SHAYNE WALTER MARTIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 2.41 PM

Copyright in the High Court of Australia

MR D.A. SMALLBONE:   May it please your Honours, I appear for the applicant.  (instructed by G.H. Healey & Co)

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

GLEESON CJ:   Yes, Mr Smallbone.

MR SMALLBONE:   Your Honours, I begin by making a couple of points about the proviso.  The first submission that I make is that if the evidence of Ms Mooij was admissible not to prove a tendency and not to rebut a coincidence, but for another purpose, it does not follow that there was no miscarriage of justice, because it would have been the obligation of the trial judge to give a direction that the evidence could not be used for the purpose of tendency or coincidence.  That follows from the decision of the Court in Gipp following BRS and it is also consistent with section 95 of the Evidence Act, which limits the use of evidence tendered for another purpose, prohibiting it from being used as evidence of tendency or coincidence evidence.

Secondly, if the evidence had been admitted on a different basis, when his Honour came to consider whether it was liable to be excluded in the exercise of discretion, his Honour would have been approaching that discretion from a different starting point and it cannot be assumed that the result would have been the same.

GLEESON CJ:   Can I get one thing about the facts clear, Mr Smallbone?

MR SMALLBONE:   Yes, your Honour.

GLEESON CJ:   Am I right in thinking that the central issue at this trial was whether or not your client got into bed with the complainant while she was asleep and then began sexual activity with her or whether, as he said, she was wide awake at the time he got into bed with her and invited him in?

MR SMALLBONE:   That is not, in my submission, an accurate description of the central issue.

GLEESON CJ:   What was the defence case?

MR SMALLBONE:   The defence case was that she consented to the activity and ‑ ‑ ‑

GLEESON CJ:   What was his account of the activity?

MR SMALLBONE:   His account was that he got into bed with her.

GLEESON CJ:   While she was awake or asleep?

MR SMALLBONE:   While she was awake, but even if she was initially asleep, that she awoke ‑ ‑ ‑

GLEESON CJ:   Do not worry about the “but even if”.  His case was that he got into bed with her while she was awake?

MR SMALLBONE:   Yes.

GLEESON CJ:   And how did he come to do that, on his case?

MR SMALLBONE:   He initiated that.  That is, he entered the room and got into bed with her.

GLEESON CJ:   She being awake?

MR SMALLBONE:   That is his case.

GLEESON CJ:   And happy for him to be in bed with her, apparently.  That was his case.

MR SMALLBONE:   Apparently.

GLEESON CJ:   Right.  Now we come to the “but even if”.

MR SMALLBONE:   Even if she was asleep initially, he got into bed with her and before any activity took place she awoke and co‑operated.

GLEESON CJ:   Right.  So his case was a denial that he ever engaged in any form of sexual activity with a sleeping woman?

MR SMALLBONE:   Yes.  The essential point is that the evidence of Ms Mooij was not probative of his intention.

GLEESON CJ:   Why was it not probative of the fact that he had a tendency to engage in sexual activity with sleeping women, which might be thought a relevant fact having regard to the central issue at the trial?

MR SMALLBONE:   The trial judge’s direction was that the complainant co‑operated under a mistaken belief that the accused was her boyfriend.

CALLINAN J:   Mr Smallbone, Justice Ireland at page 56 of the application book in paragraph 25 says that, in effect, the complainant must have woken up, or accepts that the complainant must have woken up, because his Honour speaks of the belief:

The complainant said that she believed this to be her boyfriend but she did not look and nothing was said.

So that certainly is evidence – there was evidence that the complainant was awake, certainly at some stage, during the course of sexual activity and sexual activity must have continued after she was awake.

MR SMALLBONE:   Yes, and that is confirmed, your Honour, at page 28 of the application book.  If your Honours look at the direction that was given to the jury, at line 15 his Honour says:

Now, if you are satisfied beyond reasonable doubt that that intercourse took place without consent, for any reason (the reason advanced by the Complainant is that it was her belief that it was Simon, her boyfriend, who was doing these things to her) ‑ ‑ ‑

GLEESON CJ:   At the time this evidence was led, nobody knew whether your client was going to give evidence, I presume?

MR SMALLBONE:   No.

GLEESON CJ:   At the time this evidence was led, it was possible, was it not, that your client, when he came to give evidence, might have said, “I am not the sort of person who goes around engaging in sexual activity with sleeping women”?

MR SMALLBONE:   His Honour referred at page 7 in his judgment, the trial judge’s judgment, on the admissibility of the evidence at line 56 or 57:

The accused has foreshadowed, through his learned counsel, that his defence will be that the girl was not asleep at the relevant time, and that consensual intercourse took place between him and her.

GLEESON CJ:   Yes.  Now, why would it not have been part of that defence for him to say, as he may well have said if it had not been for this evidence, “I am not the sort of person who” – I will try to avoid colloquialisms – “makes attempts upon sleeping women”?

MR SMALLBONE:   That was not the case that he propounded.  It was not the case that – I am sorry, I withdraw that.  That may have been a possibility, but the evidence of Ms Mooij was not relevant to prove that.  The issue was his intention concerning proceeding against the possibility that there was a mistake by the complainant.  That was the fact in issue to which the evidence of Ms Mooij had to be probative.

GLEESON CJ:   I cannot understand why the evidence of Ms Mooij would not have been probative on the central issue, that is, whether or not he got into bed and started engaging in sexual activity with a woman who was asleep at the time he started.  Of course she woke up, because it is common ground that she ordered him out.

MR SMALLBONE:   Well, there is a difference, your Honour, between making that approach and arousing the person and then making a decision whether to proceed, on the one hand, and the other possibility of simply making an approach directly while the person is asleep and proceeding whether or not that person wakes up.

GLEESON CJ:   But the central battle line that was drawn at the trial, the main issue, was whether or not, at the time he got into bed with the complainant, she was asleep.  She said she was asleep at that time.  She woke up later, before he finished what he started.  He says she was wide awake all the time.  Now, on the probabilities as to which of those competing versions was true, evidence that he had a tendency to get into bed and engage in sexual activities with a sleeping woman was of some probative value, was it not?

MR SMALLBONE:   Only if there was no reasonable hypothesis available that that tendency was a tendency to proceed while the person was still asleep rather than a tendency to attempt to arouse that person and then proceed.

HAYNE J:   What was it about the evidence that was elicited from Ms Mooij that was so prejudicial to your client?  If you articulate that, I suspect that tends to reveal why it was admissible.  So what was the prejudice?

MR SMALLBONE:   It was prejudicial in two ways, your Honour.  It was prejudicial because it exposed him to criticism for immoral behaviour and it was prejudicial because it distracted attention from the critical issue of the mistake.

HAYNE J:   The real sting of the evidence was that – how long before the events the subject of the charge?

MR SMALLBONE:   About half and hour.

HAYNE J:   Half an hour before the events the subject of the charge there had been an event with another woman that had some elements similar, on one view of the facts, to the events that were said to give rise to the charges.

MR SMALLBONE:   Well, they were similar at a more general level of abstraction and this is where one needs to be careful about precisely what level of abstraction is used.

GLEESON CJ:   Well, it showed him to be what might be called something of a speculator.

MR SMALLBONE:   Yes, but that is not enough, in my submission.  I mean, that is very similar to the case of the R v Rodley, where, as your Honours will recall, the other event, other than the event charged, took place about an hour later and consisted of the prisoner climbing down the woman’s chimney and then having consensual intercourse and the Court of Appeal there said that that was not relevant.  In many ways, this case is very much analogous to that.  It shows a level of similarity at a more general level of abstraction, but not at the precise level that is germane to the critical fact in issue, namely the mistake.

GLEESON CJ:   Well, you keep saying that was the critical fact in issue.  That was one of the critical facts in issue.  I would have thought the first critical fact in issue was whether or not, at the time he got into the bed of this complainant, she was awake or asleep and his primary case was, “At the time I got into bed with her, she was awake”.  Now, true it is the judge had to direct the jury about other considerations that would arise in the event that they resolved that issue against your client, but just at the moment I am having difficulty understanding why this evidence did not go to that issue.

MR SMALLBONE:   Because there is a reasonable hypothesis of innocence available even if you are a person who gets into bed with sleeping women, the reasonable ‑ ‑ ‑

GLEESON CJ:   Yes, it does not prove he is guilty, but it was relevant to the Crown case to prove that he got into bed with a sleeping woman.  Evidence is not admissible only if on its own it proves the guilt of the accused.

MR SMALLBONE:   This being what is colloquially referred to as “similar fact evidence”, it had to be the case that there was no other reasonable hypothesis consistent with innocence available.  That flows, in my submission, from Hoch.  So my submission is that if the sleeping factor was not critical to a fact in issue, then that would not make it admissible if there was a reasonable hypothesis available that was consistent with innocence.

GLEESON CJ:   Why was it not critical to the fact in issue?

MR SMALLBONE:   Because the fact in issue was not whether the woman was asleep, but whether, having woken, she then consented.  In one sense, whether she was asleep or not was merely part of the background.

GLEESON CJ:   The Court of Criminal Appeal expressed it in terms of recklessness, I think.  They said, “This is a man who will engage in activity reckless of whether there is consent”, or whatever.  Well, that is a legal way of saying, to put it bluntly, “This is a man who will try it on”.  Why was that not a fact in issue?

MR SMALLBONE:   Well, that depends what one means by “trying it on”.

CALLINAN J:   “Try it on absent consent”.  You need to add those words.

MR SMALLBONE:   Yes, I draw that distinction.  Try it on as to whether or not you will get consent is a hypothesis consistent with innocence and consistent with the incident with Ms Mooij.

GLEESON CJ:   Where do we see the charge – I am just looking for the charge, Mr Smallbone, just give me a moment.  The definition of “sexual intercourse” in the New South Wales legislation, as I recollect it, is very wide, is that right?

MR SMALLBONE:   Yes, your Honour.

GLEESON CJ:   When did the act or acts of sexual intercourse on the Crown case begin?

MR SMALLBONE:   There were three and the first was digital ‑ ‑ ‑

GLEESON CJ:   Exactly.  “Sexual intercourse”, according to the definition, includes, amongst other things, the things that the complainant says he did before she came to the realisation as to who he was.

MR SMALLBONE:   Yes.  All three counts.

GLEESON CJ:   The first count was the one you have just described.  What was the second count?

MR SMALLBONE:   The second count was cunnilingus and the third count was penetration with a penis.

GLEESON CJ:   Right.  Just taking the first count, her evidence, as I understand it, is that that began while she was asleep.

MR SMALLBONE:   I do not think that is correct, your Honour.

GLEESON CJ:   Where do I find that referred to in the summing up?

MR SMALLBONE:   It begins at page 27 of the application book and your Honour will see about line 36 or 37 under the heading “First charge”, that first charge is the digital charge.  If one goes over the page, to page 28, your Honours will see the direction that I adverted your Honours to earlier.

GLEESON CJ:   I am just looking for her evidence as to what happened in relation to the first count.  Is there anywhere we can conveniently find that?  Maybe it is in the judgment of the Court of Criminal Appeal.

MR SMALLBONE:   My learned friend suggests page 56 paragraph 25.

GLEESON CJ:   Thank you.

MR SMALLBONE:   And that is consistent with the trial judge’s direction, at pages 27 and 28.

GLEESON CJ:   So her account of what happens is that she is asleep and she wakes up to find someone engaging in sexual activity with her, which culminates in what she describes at line 50, and she says at that stage she is not objecting to what is going on because she thinks it is her boyfriend.

MR SMALLBONE:   Yes.

GLEESON CJ:   Right.  Now, his case is, “I engaged in that kind of activity with her full knowledge and consent, she being wide awake at the time I got into bed with her”.  That is where the battle line is drawn.

MR SMALLBONE:   Yes, that kind of activity.  There was some dispute as to particular counts, but there was no dispute that the second count – that cunnilingus occurred.

GLEESON CJ:   Now, if the jury believed her account, then when they came to the question of knowledge of absence of consent on the part of your client, it was relevant for them to consider, was it not, whether he was a person who had a tendency to engage in speculative sexual activity with a woman who was asleep at the time he began it and who, presumably, was likely to wake up while he was doing it?

MR SMALLBONE:   No, only speculative in the sense of speculative absent consent.  There is no law against trying it on if one is only prepared to do so if one receives consent.

GLEESON CJ:   And the Crown case was, at least, that he did not care whether the woman consented or not?

MR SMALLBONE:   Yes.

GLEESON CJ:   Well, then the question is whether his behaviour towards the earlier woman had any probative significance on that question.

MR SMALLBONE:   Of consent.

GLEESON CJ:   Well, whether he did not care.

MR SMALLBONE:   Whether he did not care.

GLEESON CJ:   In other words, whether he was the sort of person who would get into bed with a sleeping woman, engage in sexual acts towards her ‑ ‑ ‑

MR SMALLBONE:   Well, engage in sexual assault.

GLEESON CJ:   ‑ ‑ ‑in the hope, for example, that he might get a certain degree of sexual gratification without her objection.

MR SMALLBONE:   Well, not that he would engage in sexual assault in the hope that she would not object; that is, the Crown had to show a tendency that he would commit these acts without adverting to the possibility of the mistake or without caring about that possibility and it had to show, in order for Ms Mooij’s evidence to be relevant, that it was probative of that issue and in order to do so that there was no reasonable hypothesis available than in his actions towards her he may have been prepared to engage in some sexual activity that fell short of sexual assault, but not to proceed as far as sexual intercourse, as defined by the New South Wales legislation, without consent.

GLEESON CJ:   He was prepared to engage in some form of sexual activity towards her while she was asleep, if her evidence is accepted.

MR SMALLBONE:   If Ms Mooij’s evidence is accepted, yes.

GLEESON CJ:   And if the complainant’s evidence is accepted.

MR SMALLBONE:   Yes.

GLEESON CJ:   If the complainant’s evidence was true, he had started doing things to her while she was asleep that would themselves at least constitute an indecent assault.

MR SMALLBONE:   Yes, but that is not the same as the issue of consent to intercourse.

GLEESON CJ:   All right, well, thank you, Mr Smallbone.  Yes, Mr Blackmore.

MR BLACKMORE:   Your Honours, this case was not a case of express consent.  This was always a case, at most in the applicant’s eyes, of implied consent.  The critical issue for the Crown in such a case was to establish what he understood the consent to be and the case here was the Crown had to establish that he did not have a genuine belief in consent and when she was asleep, we would submit, he had no basis for a genuine belief in consent, and yet he commenced sexual contact hoping that he might get consent.  That is what he did in this case.

What he did with Ms M was exactly the same thing, except that he got expressly repelled.  What the evidence went to was a tendency to have a state of mind to commence sexual activity with a woman, which was a vital aspect to his state of mind on that night, and that is what he commenced to do with this woman.  It turned into a situation of confusion, but as soon as she was fully aware ‑ ‑ ‑

CALLINAN J:   Well, it was a long period of confusion.

MR BLACKMORE:   Well, your Honour, this is at night.  This is at night in a room that is darkened.  She may have had an expectation that the activity involved would happen with somebody else.  I think it is a rather unfortunate suggestion that she was somehow consenting here.

CALLINAN J:   Well, I am not suggesting that.  I am just saying it was a long period and the length of the period might well have engendered a belief in the appellant’s mind.  It has nothing to do with the suggestion that the complainant was consenting and I did not put that to you.

MR BLACKMORE:   I am sorry, your Honour.  I withdraw that.  I did not mean to imply that.  But that is the critical issue though, with respect, that we say the earlier incident went to:  his state of mind, his preparedness to commence having sexual activity with this woman, without caring whether or not she was consenting or not.  It did not prove the whole of the case, but it was certainly a relevant issue in the case.  It was relevant to him.  He referred to it himself in his record of interview.  That is extracted in our written submissions, your Honour.

GLEESON CJ:   Where is that, Mr Blackmore?

MR BLACKMORE:   In paragraph 4 page 89 of the book, your Honour.  I have to acknowledge I did leave one word out of this passage that I have quoted here, but I will add it in – my friend pointed it out – at question 285.  This is an extract from the record of interview.

GLEESON CJ:   Am I right in thinking that his account of what happened was that he had received a deal of encouragement from the complainant earlier in the evening?

MR BLACKMORE:   That was how he portrayed it, yes, your Honour.  I think that is a fair way of looking at it.  He was implying that, not only earlier in that evening necessarily, but perhaps over a few days before that, that they had been friendly and there had been contact and there had been banter between them which may have, as he portrayed it, in his mind led him to believe that she would be interested in some sort of contact with him, but he also accepted that it did not get to the stage where he would be entitled to have sexual contact with her that night.

For a man to approach a woman who was asleep, you either need to have express consent or some very solid grounds for consent.  I mean, in a marriage it may be different, but here were two people who were not married, did not know each other, in foreign surroundings for both of them, and he approached her while she was asleep and, we say, without any reasonable expectation that she would consent.  That was precisely his state of mind, that you can derive from the evidence in relation to Ms M.  It was particularly relevant on that basis.  With respect, we have argued in the written submissions that it was relevant on the O’Leary basis as just being part of the general surrounding circumstances of the case.  Perhaps you did not have to go to tendency.

With respect to my friend’s argument that there would be some other direction required, can I just take your Honours briefly to the direction.  The direction is on page 33 of the book, commencing about line 26.  It says:

You must not use that incident in an impermissible way by saying “Well he did that to one girl while she was asleep, therefore he is likely to have done this to the other girl” you cannot use it in that way.

So he was, in fact, directing the jury against using it in an impermissible way for tendency evidence, which is the very point that my friend was making, that that was the direction that he required, but he then goes on and says:

What you can do is look at what happened there and then consider what would have been in his mind –

Your Honours, in addition to ‑ ‑ ‑

HAYNE J:   Is that direction a direction saying, “Don’t use it as tendency evidence.  Use it as direct evidence of his state of mind”?

MR BLACKMORE:   Well, I think it is, in fact, your Honour.  I agree with you and I think there was a degree of confusion perhaps in his Honour’s mind as to how he in fact admitted the evidence.  You will see that argument in my written submissions.

HAYNE J:   Do you say that it was supportable as direct evidence of the state of mind of the accused, having been rebuffed once 15 minutes before?

MR BLACKMORE:   Yes.

HAYNE J:   The argument is, I take it, “How could he reasonably have thought that the complainant was consenting?”.

MR BLACKMORE:   It goes further than that, in a sense.  It is that on this evening he wanted to engage in sexual intercourse with somebody.  That was his state of mind.  He approached one woman who he thought he liked and that he thought he may have an opportunity.  That was Ms M.  Having been rebuffed then, he says, “All right, I will just go to somebody else”, and hops into bed with another sleeping woman.  Can I just direct your Honours’ attention to the admission that he made as well.  At page 59 of the book – the last question on page 58:

The appellant, when asked what had happened, at first refused to answer but finally said . . . “I want to have sex with a girl and she said no and I don’t care I couldn’t be bothered”.

That is demonstrative, we say, of the state of mind that he had on this night.  He wanted to have some form of sexual contact with a woman on that night.  He was going to persist in this until it occurred or perhaps ‑ ‑ ‑

HAYNE J:   I think there might be about three or four different readings of that line.

MR BLACKMORE:   It could possibly be.  I concede it cannot necessarily be said to be simple.

HAYNE J:   Punctuation might just matter.

MR BLACKMORE:   And translation and I think, in fact, it was a foreign visitor, as were the other people involved.

HAYNE J:   Yes, “she said no and I don’t care I couldn’t be bothered” is very different.

CALLINAN J:   I do not understand – I cannot decide what that means myself.

MR BLACKMORE:   In any case, in our submission, and as we have made the submissions in the written submissions, it was clearly admissible evidence on the O’Leary principle, which has been applied by this Court recently in many cases.  Bull’s Case was an example.  Gipp’s Case is another example.  We say the evidence was evidence which was admissible on that basis; that the warning that his Honour gave to the jury was an appropriate warning about impermissible use and that even if – well, I do not make any concession about that – it was admissible on that basis.  In addition, it was also admissible on tendency, coincidence basis.  It fitted within all of the definitions in the Act.  It was significantly probative and there was not sufficient prejudice involved in it to remove it.  Therefore we simply argue it was properly admissible in this case.

GLEESON CJ:   Yes, Mr Smallbone.

MR SMALLBONE:   Your Honour, in relation to the direction at page 33, I point to line 27 where the trial judge is saying:

You must not use that incident in an impermissible way by saying “Well he did that to one girl while she was asleep, therefore he is likely to have done this to the other girl” you cannot use it in that way.  That would be a most improper way to use it.  What you can do is look at what happened and then consider what would have been in his mind immediately after that incident, as to consent or lack of consent to sexual intercourse.

GLEESON CJ:   That incident being the earlier incident?

MR SMALLBONE:   Yes – well, one could read it that way or one could read it as after what occurred whilst she was asleep.

HAYNE J:   I think that is a bit hard.  His Honour is talking entirely about the earlier incident there, is he not, the incident with Ms M?

MR SMALLBONE:   Well, perhaps so, your Honour, but my submission is that his Honour is not directing there that the evidence cannot be used as tendency evidence; au contraire, he is saying, “You can look at what happened there and consider what would have been in his mind immediately after that as to consent or lack of consent”.  What his Honour seems to be doing is saying that, “You cannot look at what happened before the woman awoke in each case and infer from that something about consent.  You have to develop a tendency from what occurred after waking to assist in the inference from one case to the other”.  That seems to leave it open to the jury to use it as tendency evidence or as coincidence evidence.

The second submission I make relates to the record of interview and I simply direct your Honours’ attention ‑ ‑ ‑

CALLINAN J:   What page is this, Mr Smallbone?

MR SMALLBONE:   My learned friend referred to page 89 and the questions and answers there set out.  The last answer referred to is the line to which my learned friend referred to as a word being omitted and the word is “just” before the word “jump”.  I have dealt with this at page 95, showing some of the context into which those extracts from the record of interview are to be put as indicating that he had in his mind, whether or not it be objectively the case, some reason for encouragement. 

In relation to the O’Leary submission, I just reiterate what I said at the outset concerning the direction that would necessarily have been given if this evidence had been admitted on a different basis as showing that O’Leary cannot be a short answer to an appeal if special leave is granted.  A new trial would be needed, in any event, because the omission of an appropriate direction about the use of the evidence would itself be a factor entitling him to a new trial.

GLEESON CJ:   Well, that was your proviso argument at the beginning?

MR SMALLBONE:   Yes.  The other thing I would say about O’Leary is that there is a controversy as to how far evidence can be used otherwise than – that is evidence on the res gestae principle can be used and if special leave were granted, the applicant would seek to support the propositions advanced by your Honour Justice Callinan in Gipp at paragraphs 181 to 182, where your Honour said:

I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide

“part of the essential background” against which the other evidence is to be evaluated.

I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible).  If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive.  There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.

Those are my submissions.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 3.18 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.22 PM:

GLEESON CJ:   In this matter the Court, by majority, is of the view that there was no miscarriage of justice and that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

We will adjourn for a short time to reconstitute.

AT 3.22 PM THE MATTER WAS CONCLUDED