Matthews v The Queen

[1991] HCATrans 247

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A2 of 1991

B e t w e e n -

DOUGLAS JAMES MATTHEWS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY. 4 SEPTEMBER 1991. AT 10.04 AM

Copyright in the High Court of Australia

Matthews 1 4/9/91

MS M. SHAW:  May it please the Court, I appear with my

learned friend, MR C.J. CALDICOTT, for the applicant. (instructed by Caldicott & Co)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with

MS A.M. VANSTONE, for the respondent. (instructed

by the Crown Solicitor for South Australia)

MASON CJ: Mr Solicitor. Yes, Ms Shaw?

MS SHAW:  If the Court pleases, this is an application for

an extension of time within which to appeal and an

application for special leave.

MASON CJ:  You need not be concerned about the extension of time, Ms Shaw.

MS SHAW:  Thank you. If the Court pleases. I understand

Your Honours have a copy of the list of

authorities, a case book of the relevant materials

and the trial judge's summing up.

MASON CJ: Yes, I think that is right.

MS SHAW:  The summary of the applicant's argument appears at

page 9 of the application book.

MASON CJ: Yes, we have read that.

MS SHAW:  The first special leave point is: can you rely

upon an out of court statement from which you

propose to infer the state of mind of the maker, in
order to prove a future state of mind, when the
statement in question does not amount to an
expression of intention? Further, having inferred

a future state of mind of the maker, can you rely

on that future state of mind to infer the likely

future conduct of the maker and thereby undermine
an accused's account of that future event? It is submitted that the state of mind

evidence should be admissible in only two broad

categories: firstly, to show the state of mind of
the maker at that time if that is at issue in the

case and, secondly, to show a future intent of the

maker to perform an act if the occurrence of that

act is at issue.

It is submitted, in this case, that the Court

of Criminal Appeal, by deciding that state of mind

evidence could be relied upon to infer a future

state of mind, erroneously extended the principles

contained in the judgment of this Court in Walton

v Reg, (1988-1989) 166 CLR 283, as to the use to

which state of mind evidence can be put.

Matthews 4/9/91

It is submitted that the judgment of the Court

of Criminal Appeal is contrary to the remarks of

His Honour former Chief Justice Barwick in Reg v Wilson, (1970) 123 CLR 334, in particular at page 339, as to what evidence is admissible to
prove the relationship between the parties.

Further, it is submitted that the approach of the Court of Criminal Appeal is inconsistent with

the approach of the House of Lords in

Reg v Blastland, (1986) 1 AC 41, and, in

particular, at pages 53 to 55, as to the test of

admissibility of state of mind evidence.

The Court of Criminal Appeal decided that the

statements relied upon to infer state of mind could
be used for a number of purposes. His Honour the

Acting Chief Justice agreed with the conclusions of

His Honour Justice Bollen, who dealt extensively

with the grounds of appeal relating to this topic.

First of all, dealing with the purpose relating to proof of relationship between the parties,

His Honour Justice Bollen said, at page 55 of the

application book, that the statements of the
deceased made out of court to other parties were

admissible both upon the rape charge and on the

murder charge. The count of rape and murder were

separately charged on the information, however, on

the Crown case, the rape and murder occurred

contemporaneously, that is, they constituted, in

effect, one act.

At page 55, dealing in particular with this

topic of evidence of relationship, at about

point 5, His Honour said:

Evidence proving the state to which the

relationship of the parties had descended was

relevant to the charge both of rape and

murder. It negated or tended to negate the

evidence of the accused which I have just
mentioned.	And, moreover, the history of the

relationship was relevant as background

against which the central allegations touching

murder and rape had to be considered by the

jury.

MASON CJ:  Had not the trial judge confined the use of that

evidence to the charge of rape in his directions to

the jury?

MS SHAW:  He had, but the charge of rape, as I have said, on

the Crown case, was a charge which occurred

contemporaneously with the act of murder, that is,

the act of causing death. When the trial judge gave his directions to the jury he directed the jury as to the elements of the crime of rape in

Matthews 4/9/91

relation to the accused's admitted act of

intercourse. The accused's admitted act of

intercourse had, in fact, occurred at least two to

three hours before the act causing death. The

sequence of events was that the accused went to the

house at about ten past seven; he said that an act

of intercourse occurred before he went to leave the

house at about 9 o'clock. He was seen by a

neighbour at the house between 9 and 9.20, so there

was no dispute that he was at the house at an

earlier point in time. Death did not occur until

about 12 o'clock. Between the time the accused
left the house and the time of death, when the

accused said he returned at 11.30, there is

evidence that the deceased spoke to Mr Evans, who

was her boyfriend at that time, at about 10.15.

So, it was not a case where there was a

continuing transaction between the accused's
admitted act of intercourse, at an earlier point in
time, say, approximately 8 o'clock, and the act
causing death at about midnight. Therefore, when
the learned trial judge directed the jury as to the
use of state of mind evidence, and its relevance to
the accused's admitted act of intercourse, the

confusion that must result is that: are the jury

there considering the accused's act of intercourse

as at about 8 o'clock, or are they referring to the

act of rape, on the Crown case, which occurred as
at the time of death? Because on the accused's

case there was no act of rape at the time of death.

The only relevance of state of mind evidence

to the rape count, on the Crown case, was to prove

that it occurred at all at the time of death and,

therefore, on the Crown case, the evidence of state of mind could have no probative value; could throw

no light on whether or not the act of rape occurred

at the time of death.

It is submitted - just coming back to the

first purpose, the evidence of relationship - that

when His Honour went on to quote from the judgment

of the High Court in Wilson's case, he included the

passage in the remarks of His Honour the former

Chief Justice, at pages 339 to 340, in respect of

which the applicant says the reasoning of

His Honour Justice Bollen is inconsistent. In particular, just before the reference to

Bedingfield, His Honour the former Chief Justice -

this appears at page 56 of the application book -

said this:

It may at once be conceded that, if the

statement attributed to the deceased had not

been part of the evidence of a quarrel of a

significant kind, the statement of her opinion

Matthews 4 4/9/91

of the applicant's attitude or intention

towards her would have been inadmissible.

Therefore, it is the applicant's submission

that His Honour was in error in relying on the

remarks in the case of Reg v Wilson in order to

support the reasoning that out of court statements

of a deceased, in particular, as to her husband's

intentions towards her can be admitted as evidence

of relationship. The two vital statements, in so

far as prejudice to the accused were concerned,

were, first of all, a statement made going back to

approximately 21 September - about a week before -

by the deceased to a police officer, which is set

out at page 62 of the application book. The death

occurred the following Wednesday on 27 September.

The report to Constable Clark, which is set out, includes a report by the deceased that:

her ex husband had attended and had been

trying to get into the flat by banging on the

doors and windows.

The constable then described the deceased:

demeanour ..... visibly upset ..... fairly	well
hysterical and worried about her safety.

Then the constable reported that he was told by the

deceased that:

she had already taken out a restraining order

against her husband and she wanted -

the police -

to enforce it.

The restraining order had never been served and,

indeed, was not served prior to death.	She was
told by the police that they could do nothing more

at that stage because the restraint order had not

been served. And then on page 63 of the

application book, the deceased is reported as

saying:

She said 'Well that's it then, you'll find me

dead'.

And this was described as having been said in the

context of her fear of her husband more than once

and under her breath.

The second, which we submit is an inflammatory

and prejudicial statement to the accused, appears

at page 59 to 60 of the appeal book, relating to

the evidence of the deceased's friend Pamela Joy

Matthews	4/9/91 Smith. Firstly, there is reference to an occasion
which must be prior to the taking out of the
restraint order - approximately a week before. And
then on page 60 there is reference to the evidence of Mrs Smith concerning her conversation with the
deceased on the night of the deceased's death,
Wednesday 27 September. It was a phone call at
about 8.30 pm - on page 61. The terms of the phone
call are that it was a statement by the deceased
that she was terrified of her husband, that:

She said that she was scared. She said that

he had been to the flat and he had threatened
her and he was going to wait for her and he

was going to kill her.

And Mrs Smith said that she told the deceased to

get out of the flat. This conversation was said to

continue for about:

15 to 20 minutes.

In the time frame of events that night, the

accused said he was at the house until about 9

o'clock. If Mrs Smith's evidence as to the time of

the phone call is correct that would put the

accused at the house at the time. The accused's

evidence was that whilst he was at the house he did hear a phone call but he did not know who it was to

and did not hear what was said. Although, of

course, the terms of relying on the truth of what
was said, for the purposes of the argument - the
terms of the phone call - are that, in fact, he had

already been to the flat and she was frightened he

was going to kill her in the future.

As I said, there was then this gap in events

when the accused left the house and returned later,

at about 11.30, when he said the circumstances of

the deceased's death occurred in a situation of

provocation having arisen. Not only was the evidence of the deceased's

state of mind considered by the Court of Criminal

Appeal to be admissible, in relation to proving the
relationship between the parties, upon both the

rape and the murder charge, His Honour

Justice Bollen also considered that there were a

number of other purposes to which that evidence

could be put by a jury. Those various purposes are

set out in the passage from 54 to 55 of the

application book, and are summarized at page 66.

statements could be put on the murder count:

In particular, just over half-way down, where

Matthews 6 4/9/91

The use available ''on" murder was to prove or

help to prove fear, to show what the

relationship between the accused and deceased

had come to and to negate the truth of the

appellant's story of pleasant love making and

a suggestion of reconciliation by the deceased

on the night of her death.

Just to clarify, particularly, the last

heading and, of course, the last heading must refer

to the accused's act of intercourse which he said

took place during his earlier visit to the house.

The accused's account of that act of lovemaking was

that it was consensual, however it was

unsatisfactory, and that after the act of

intercourse was completed his wife appeared upset

because - he put it down to the unsatisfactory

nature of the act of intercourse. It was during

that period and prior to the act of intercourse

that there was talk of the accused coming to

collect furniture. And the accused's account was

that at that time the deceased said words to the

effect, 'Well, you can take me as well', and that

was interpreted by the accused as being a

suggestion of possible reconciliation.

However, the circumstances of the accused's

attendance at the later occasion were not at all in
the nature of pleasant lovemaking or a suggestion
of reconciliation. In fact, the accused's account
of returning later was that he had entered through
the back door by the use of a key which he had
kept, that is, not at the deceased's invitation;

that when he entered the lights were out; he went

into the bedroom; the deceased was asleep and he

kissed her to wake her up and that her demeanour

thereafter was anger, laughing at him when he told

her that he wished to apologize for the failure

earlier of their lovemaking and she slapped his

face and ridiculed him at the suggestion that there

should be any other act.

So that, in the applicant's submission, what

was in issue were the events that occurred at the

later visit of the accused to the deceased's

premises, and that the description that His Honour

there gives that relates only to the earlier visit
but which, of course, was not the subject of, on

the Crown case, the rape count or it was not the

occasion at which the death occurred.

Therefore, in the applicant's submission, the

issue for the jury being whether or not the accused
had deliberately killed his wife during an act of
sexual intercourse - that being the Crown case - or

whether, on the defence case, the accused killed

his wife in circumstances of provocation but where

Matthews 4/9/91

there was no contemporaneous act of intercourse,

then evidence of relationship - as His Honour put

it - and evidence of the fear that the deceased had

was not probative as to whether or not an act of

intercourse occurred at the time and during the act

causing death.

It is the applicant's submission that so much

that the applicant can rely on, the remarks in the

joint judgment of Their Honours in Shaw v Reg,
(1952) 85 CLR 365, and in particular in the

judgment of Their Honours, commencing at page 371.

In that particular case the accused had denied that

he was responsible for the deceased's death.

There, basis for the admissibility of a prior
history of violence by the prisoner to the deceased
and, indeed, of threats to kill the deceased was

put forward by the Crown as being admissible in

that:

it tends to show either motive or possible

motive, or grounds of resentment on the part

of Sylvia Holmes and consequent anger and

violence on the prisoner's part, or the

prisoner's hostility to the use of a

contraceptive in sexual intercourse or threats

to Sylvia Holmes betokening hostility or a

desire, presumably an intermittently recurrent

desire, to kill her or else that it tends to

rebut a possible defence that the prisoner

bore such affection to her that he would be

unlikely to kill her.

At the bottom of page 376 and on to page 377,

Their Honours dealt with the admissibility and relevance of the evidence of prior threats of violence and acts of violence towards the deceased.

At page 377, Their Honours conclude that topic by

saying, in the last sentence of the first

paragraph:

That, however, leads to the third observation,

namely, that in the particular circumstances

of this case the frequent use of violence by
the prisoner towards the woman with whom he

was living and threats that one day he would

kill her, especially when repeated over a long period, do not necessarily tend to support the inference that he deliberately killed her and

do anything but tend to show that he killed

her in the course of attempting to commit
rape.

MASON CJ: Yes, but as that sentence indicates its force

depends very much on the particular circumstances

of the case. Because there you had threats of

violence - exhibitions of violence - over a period

Matthews 4/9/91

of time, but none the less a continuing, and
evidently willing, association between the two

individuals, and that was the critical factor.

MS SHAW: That is so but, in my submission, there are two

aspects to the case which are relevant to my

argument. The first is that of course

Their Honours were dealing not with hearsay statements or, when I say hearsay, a statement

unilaterally by the deceased to a third party. And

secondly, the importance of identifying what is in
issue and how relationship evidence can bear upon
the vital issue here, namely, did an act of

intercourse occur at the time of the act of

strangulation.

GAUDRON J: Well, Ms Shaw, it either did occur then or at

the earlier time and if the evidence went to

negating the earlier time it went to establishing

that it happened at the later time.	Is that not
so?

MS SHAW:  Not necessarily, because

GAUDRON J: There is no suggestion, is there, of more than two possible occasions on which intercourse might

have occurred?

MS SHAW: That is so.

GAUDRON J:  And if it did not happen on the earlier

occasion, it happened on the later?

MS SHAW: That is so.

GAUDRON J:  And if the evidence tended to negative its

having happened, in the manner recounted by the

accused, then it was relevant to prove that it

happened at the later.

MS SHAW:  Yes, but that, in my submission, one could not get

any assistance in making that determination from

relationship evidence.

GAUDRON J: But it is not purely relationship evidence, is

it? I mean, you can characterize it in that way if

you like in the context of the murder charge, but

in the context of the rape charge it was evidence

rebutting an explanation advanced by your client
which tended to put sexual intercourse at an

earlier point of time, and in a particular manner?

MS SHAW:  The only method of rebutting the accused's account

was to say that it was positive that it occurred at

a later time. The Crown case was that it occurred

at a later time so that the use of the evidence is,

Matthews 9 4/9/91

in effect, to prove the Crown case rather than

undermine the accused.

GAUDRON J: Yes, but it proves the Crown case by calling

into question the account given by the accused.

MS SHAW:  But the difficulty, in my submission, is that just

because you undermine his account of it occurring

earlier, you are not undermining his account of it

having occurred earlier, you are really undermining

his account of the circumstances in which it

occurred. But even if you do undermine his account

of it having occurred earlier you are not thereby

saying that it occurred at the time or whether or

not it was shortly before or during the act of

manual strangulation.

GAUDRON J: There is no suggestion of any other possibility

but one or the other, is that not right?

MS SHAW:  The Crown case was, of course, it occurred during

the act of strangulation; the defence case was

that there was no act at that time. So that

evidence of relationship is not probative of the
accused's account that it occurred earlier or it

occurred later.

GAUDRON J: But it does go even one step further, does it

not? If you negate the accused's account of the

earlier act of sexual intercourse you also negate

his account of provocation.

MS SHAW:	I am sorry, Your Honour, I missed the last bit?
GAUDRON J:	By negating the accused's earlier account you

are also negating his account or his claim of

provocation. The two march together.

MS SHAW:  That is so, that if you place the accused's act of

intercourse at the time of the act causing death,

then automatically provocation is negated.

GAUDRON J: But provocation is also negated if it tends to

negate the account which the accused gave of the

earlier act of intercourse, because the whole

foundation of this provocation is this earlier

consensual act of intercourse.

MS SHAW:  Yes, or not so much that there is an earlier

consensual act of intercourse, but that the act of

intercourse occurred at an earlier time. And the

evidence of relationship, in my submission, does
not necessarily bear upon whether or not the

earlier act of intercourse is consensual or whether it occurred at a later time. The most it can do is

suggest that there is an unhappy relationship,

therefore you want to take the long jump of saying

Matthews 10 4/9/91

she would not be involved in sexual intercourse.

In my submission, that does not necessarily follow.

In any event, the difficulty in this

particular case is that the learned trial judge,

when he directed the jury, transposed the accused's

admitted act of intercourse to the act the Crown

relied on at the time of death; that he presented the case to the jury on the basis of the accused's

admitted act of intercourse - - -

GAUDRON J:	Or "claimed" is perhaps more accurate?
MS SHAW:	Yes, sorry, on the basis of the claimed act of

intercourse and, with respect, Your Honour's

Justice Gaudron's comments about the significance

of that, is the very reason why the applicant says

that the learned trial judge's directions

effectively precluded or foreclosed any issue of

provocation having been raised. Because once you

direct the jury that the act of intercourse in

dispute is the one that the accused admits, namely,

the one that is consensual on his account, and you

say that on the Crown case that occurs at the time

of death, well then the accused's account of a

provocation possibly arising is totally foreclosed.

Perhaps if I can just take the Court, briefly

and quickly, to the way His Honour did that, to
transpose the admitted act to the act occurring at

the time of death. In the summing up, first of

all, at page 11, line 25, His Honour said:

In this case there is no dispute as to

the fact that intercourse occurred on the
night Mrs Matthews died between her and her

husband. What is disputed as to the first

charge of rape, the essential ingredients of

which I am about to come to, is the woman's

state of mind at that time, and the accused's

state of mind at the time of the intercourse

he admits occurred.

And he goes on to say that the accused says it is

consensual; the Crown say the opposite:

It is for you, the jury, to consider what you think about the charge and whether in the

light of the evidence you are satisfied -

that it has been proved against the accused. So,
that when he commences to direct the jury on the

count of rape, which is on the information, he

tells the jury not that it is disputed that it

occurred at a different time to what the Crown is

saying but that the only issue for them is the

issue of consent.

Matthews 11 4/9/91

Further, at page 13 of the summing up, he then

tells the jury that it could be either/or this act

of intercourse and, in particular, he puts the

Crown case as being that they can rely upon the act

on the basis that it:

occurred at that time referred to in the
information and, on the evidence, just before

or within hours of her death.

He then goes on, at page 14, line 10, to put the

Crown case on the basis that the count of rape

depends upon:

circumstantial evidence and now from the
accused's own admission as to intercourse, be

it in the course of his evidence -

and when he spoke to the police. When he deals

with the evidence of state of mind and he puts to

the jury the use to which that evidence can be put

as to state of mind on the charge of rape - this

page has not got the numbering down the side, but
at page 36, when he is dealing with the evidence of
the various witnesses, at about point 3, His Honour

says:

It is the prosecution's case that the accused

was in fear of her husband, so much in fear of him that she was not consenting to intercourse

with him. She might have been submitting to

such an act out of fear, but she was not

consenting to the intercourse the accused says

occurred on the night of Wednesday,

27 September.

When he goes on to refer to Mrs Smith's

evidence, he then tells the jury, at the bottom of
the page, again referring to the time

interchangeably in the last sentence:

the deceased's state of mind then from which	It can only be used by you as evidence as to
you may, if you wish, draw the inference that
at that time and perhaps later that same night
she, the deceased, was in fear of her life to the point that she could well have submitted
to intercourse, not consented to it.

He refers again to the disputed act of intercourse being that admitted by the accused, at

page 39, when he gives the jury a general direction

as to the relationship evidence; it being:

good evidence of the real relationship between

the accused and the deceased to the point that

with that evidence and other evidence -

Matthews 12 4/9/91

His Honour says that what the Crown says is that:

you should be satisfied beyond reasonable

doubt as to her state of mind at the time of

the disputed act of intercourse; disputed

from the accused's evidence and his statement

to the police, as to whether it was consensual

or not.

His final direction to the jury on this topic,

in my submission, is when he, in effect, transposed

that the accused's admitted act to the occasion

when the act of manual strangulation occurs. At

page 42, His Honour said, at about point 3:

But that evidence as to James is

circumstantial evidence that you may use in

conjunction with other circumstantial evidence

that you find proved beyond reasonable doubt

from which you might infer the accused's state

of mind at the time of intercourse, at the

time when he took hold of his wife's neck.

The prosecution seeks to rely upon the accused's statements together with other facts

proved independently of him to have to

conclude that not only did he know that his wife was not consenting to intercourse, but

also that when he was having intercourse with her, he intended either to kill, or cause her

really serious harm when applying pressure to

her neck.

So that His Honour, in the applicant's submission,

thereby transposes the accused's admitted act to
the occasion when the act of strangulation

occurred. Therefore, as - - -

GAUDRON J:  I must say I do not read that act of

transposition into that passage.

MS SHAW:  Your Honour, if the Crown case was that the act -

which it was - of rape occurred at the time of

death, then, of course, the issue was not consent;

it was whether or not the act occurred. And

His Honour is there repeating in terms of what the jury ultimately have to find, that the issue for

them is consent. At no stage does he tell the

jury, "The issue for you on the Crown case is

whether the act occurred, at the time the Crown

said it did".

GAUDRON J: There are two aspects to it, Ms Shaw, it is not

just that it occurred but that it was attended by

those features which made it rape.

Matthews	13	4/9/91
MS SHAW:	That is so.	But in order to get to the second

step one has to be satisfied that the act occurred

at that time and, if it occurred during the course

of an act of strangulation, that one would have

thought that the other matters were not live

issues. And throughout this judgment His Honour

has not canvassed the section 73(5) conditions
which, of course, would have been relevant if the

issue was, had the act of intercourse occurred at

an earlier point in time because on the accused's

account, even to the police, there was no attendant

section 73(5) condition.

But perhaps finally on the topic of

relationship evidence, it is the applicant's

submission that in no circumstances should

relationship evidence be proved by the unilateral

statements of the deceased, that the judgment in
the High Court in Wilson was directed towards the
relevance of the attitude of the parties to each
other as evidenced by what they said to each other
in a quarrel. It was not that the statements of

the deceased were being used to reflect on the

prisoner's credibility in that case, the statements

of the deceased were being used to characterize the

quarrel and thereby to reflect relationship.

MASON CJ: Is not Walton and also Benz authority for the

receivability of unilateral statements by an

individual?

MS SHAW: In Walton's case, in my submission, the Court was

dealing with the admissibility of a statement to

indicate the future intent of the deceased to

perform certain conduct and the cases cited by the

Court to admit evidence of a statement by the

deceased to indicate her intention to go to

Elizabeth the next day were admitted upon the basis

that people normally carry out their express

intentions and, in my submission, that is quite a

different category of admissibility to evidence of

state of mind when you want to infer from a

particular state of mind another potential future
state of mind, because the steps involved are: you

use the statement to infer her present state of

mind; you then rely on the present state of mind

to assume that this is how she would continue to

think at a future point in time; then you rely on

the future point in time state of mind to say,

"This is how she would have behaved".

It is that category of state of mind evidence

which, in my submission, is not the subject of
Walton's case and it is clearly not the subject of

Reg v Benz because Benz was concerned with a state

of mind which occurred in a res gestae situation

and was directly relevant to an issue as at the

Matthews 14 4/9/91

time the statement was made; that is when the

alleged murder was said to have been occurring or

immediately after.

So that it is the applicant's submission that this is a case for special leave because this Court

has not considered the uses to which state of mind

evidence can be put, apart from those two

situations. And it is the applicant's submission

that the authorities indicate that there are no

other categories, that Reg v Blastland, the House

of Lords decision, clearly expresses the view that

state of mind evidence must be shown to be directly
relevant to an issue and not to be a basis upon

which one can infer future states of mind.

In addition, the applicant refers the Court to

a United States case which canvasses both these

issues and it is the case of the United States v

Brown when a similar fact situation arose and the

court canvassed a similar statement by the deceased to his wife, there, that he believe he was going to

be killed. United States v Brown,

(1973) 490 F2d 758, a decision of the United States

Court of Appeals, District of Columbia Court, and

in that particular case the court said, for example

- if I can perhaps rely on this; it is a better

expression of the argument I put to the Court - at

page 771 of the judgment, in the first column:

Through a circuitous series of inferences, the

court reverses the effect of the statement so

as to reflect on defendant's intent and

actions rather than the state of mind of the

declarant (victim).

Their Honour considered the test of relevance - - -

GAUDRON J:  But in that case the victim's state of mind was

not relevant as such. This is a case where the

victim's state of mind is relevant, is it not?

MS SHAW:  In our submission, the victim's state of mind is

not relevant to the issue of whether or not the act

of intercourse occurred at the time of the act of

manual strangulation.

GAUDRON J: But you cannot just isolate the question of

whether or not it occurred at that time. The

charge was rape, there was no challenge to the

charge proceeding with the murder charge and the

Crown therefore had to prove all those other

features which go to make an act of sexual

intercourse rape.

MS SHAW:  In our submission, the Crown cannot justify the

admissibility of evidence upon the basis of

Matthews 15 4/9/91

indicating that it goes to an issue that is not a

live issue.

GAUDRON J: But it clearly was not admitted and it clearly

was a live issue because - it was a double issue,

in effect. There was the false issue in one sense

of a consensual act of intercourse at some earlier time. On the Crown's case there was a false issue

to be negatived and shown as such. The second

issue, on the Crown's case, was that there was an

act of rape at a later stage and on both of them,

both issues, the victim's state of mind was

relevant.

MS SHAW:  In our submission, the victim's state of mind was

not relevant, that is her state of mind - for

example, on the evidence of Mrs Smith, that is the

phone call would have been after intercourse. The

victim's state of mind could not undermine the

accused's account of consensual activity before.

And as to the later act of rape, the victim's state

of mind could not throw any light on whether or not

the act occurred at that time.

That, in our submission, is the way that the

test of relevance should be approached, that you

identify the issue. And in United States v Brown

they put it as the vital issue because you are

dealing with evidence which the accused is unable

to contest and you are dealing with evidence, in
this case, which is - for example, saying that he

is going to kill me is directly - to use the

expressed on United States of America v Brown -

dispositive of the case against the accused.

But if the jury accept that the wife said to

Mrs Smith, "He is going to come back and kill me",

and they use it for an improper purpose, then the

accused's case that this was a death in

circumstances of provocation is totally refuted

because it indicates that well before he went back,

he was going to kill her.

And it is in that way that, when dealing with

out of court statements which cannot be refuted by

an accused, then the Court must bear in mind the

importance of the evidence being directly relevant

to the fact in issue or the issue and not some

other subsidiary fact or some other issue that the

Crown say they wish to make a live issue. Because

when the jury were directed here as to the
admissibility of the state of mind evidence and the

admissibility of the letters on the rape, they were

told, "Well, this is relevant to consent in

relation to the act occurring at the time of

death". Of course, the only light that evidence

Matthews 16 4/9/91

could throw on the act occurring at the time of

death was that it occurred at that time.

DEANE J:  I do not follow that. Why, if you assume against

yourself that the jury were persuaded that the

sexual intercourse took place at the time of death,

was not all this evidence relevant on the question

whether it was consented to?

MS SHAW:  Because on the Crown case the act occurred during

an act of manual strangulation and, therefore,

there could be no issue of consent. The deceased

could not consent to an act of manual strangulation

accompanying her act of intercourse. If she was

going to consent to the act of rape she was also

consenting to the act of manual strangulation.

That was the act that was in issue.

DEANE J: But I thought everything was in issue?

MS SHAW: Well, I think it is going back to a case of Reg v

Thompson, in 1918, where they talk about the Crown

cannot infer or presume fancy defences by an

accused in order to rebut them at the outset.

DEANE J: But, you see, if you look at the issue in the

case, it was common ground that there had been

sexual intercourse.

MS SHAW:	Yes.
DEANE J:	The accused said it happened at one time, the

Crown said it happened at another time. That was

an issue. But the real issue was whether the

intercourse that had taken place was consensual or

not. Now, if you look at the direction in terms of

that real issue, your argument about transposition

seems to me to fall. If you disregard the real

issue and look at the case in terms of what the

Crown had to prove, then the Crown had to prove

lack of consent to the sexual intercourse it
alleged took place.	It really goes around in a
circle, does it not?

MS SHAW:  It depends on which approach - where you begin.

DEANE J: Where you come in?

MS SHAW:  Where you come in. And Your Honour, that probably

also brings in the difficulties of the

section 73(5) direction because if one is

attempting to prove that this earlier act is an act

of rape then, of course, it is only an act of rape

if it is accompanied by the section 73(5)

condition.

Matthews 17 4/9/91

DEANE J: There was no application for a separate trial on

the rape and murder charges, was there?

MS SHAW: There was not.

DEANE J:  And was any request for a redirection made in

relation to these matters?

MS SHAW:  The request for the redirection related to section

73(5).

DEANE J:  Where do we find that?

MS SHAW: That appears - it is in fact raised, first of all,

by the Crown prosecutor in the summing up at

page 46. Ms Vanstone requested a section 73(5)

direction and asked His Honour to direct the jury

that the letters could be taken into account to

prove the lack of consent. Mr Caldicott, for the

accused, at page 47, submitted that:

there must be a proximity in time to -

whatever the act that is relied on for the purposes

of satisfying the section 73(5) condition to the

rape, the letters having been received by the

deceased at least 12 days before the night of the

deceased's death. His Honour then redirected the
jury in relation to the count of rape upon the
basis that they could rely on the letters to
satisfy the special demand of the subsection and,

at page 50, Mr Caldicott expressed his concern

about His Honour's directions throughout his

summing up, that:

if the woman submitted that her free will was

overborne -

that is, submitted rather than freely consented,

and that His Honour's directions were insufficient.

So that those were the only matters on that topic

that were raised by defence counsel, although

perhaps bearing in mind that the directions

commence at page 11 and conclude at page 42, it is

our submission that, irrespective of counsel's
failure to raise it, the entire summing up would

have left the jury confused as to how they were to approach the count of rape. Were they considering whether or not the rape which was the subject of

the count was that at the earlier occasion in
respect of which they had to find a section 73(5)

condition and consider the accused's account in

relation to that event as he gave it in evidence

and to the police or were they to consider the act

of rape on the basis that it occurred at the time

of the act of manual strangulation? And on reading

the entire summing up it is our submission that one

Matthews 18 4/9/91

cannot discern what possible approach the jury

could have taken to that determination. In our

submission, therefore, the accused's trial

miscarried and he did not get the trial to which he

was entitled.

Perhaps just then returning to the judgments of the Court of Appeal, His Honour Justice Bollen

did say that the statements relating to state of

mind could be admissible.

MASON CJ:  We are familiar with what is in the judgments.

There is no occasion to read them.

MS SHAW:  In summary, therefore, the applicant says that the

result of the judgment of the Court of Appeal is

that Walton's case has now been extended in

relation to the use to which state of mind evidence

can be put so that statements evidencing the state

of mind of a complainant in a sexual case - for

example, that she may have made to her mother or a

friend about her attitude to a person who might subsequently be charged with a sexual offence -

would be admissible to prove her likely lack of

consent on a future occasion and, therefore, one

could ask for evidence to be admitted both from the

prosecutrix and from the person to whom she spoke

as to her future unlikelihood of consenting to

intercourse. That kind of evidence is not

admissible even under the principles of recent

complaint as it presently stands.

The statements in question here included a

narration of past events, allegations of bad

character against the accused and opinions of the

maker as to the applicant's intention to kill her.

It is submitted that when a statement by the deceased includes the specific issue in the case,

namely whether or not the accused had a

premeditated intention to kill her, then such a

prejudicial value outweighs its probative value. statement should always be excluded because its In our submission, although it was contended

that this evidence was admissible as to the state

of mind in relation to rape, it was of such

prejudicial character on the murder charge that

evidence in that category should be excluded in any

event.

It is our submission, therefore, that in this

particular case the joinder of the counts and the

way that the case was left to the jury would have

left the accused with his defence, or the matter

raised by him of provocation, being effectively not

being able to be properly considered by the jury.

Matthews 19 4/9/91

Because the accused - the issue of provocation

that was raised by the applicant depended entirely

upon his credibility, then evidence of statements

made by the deceased indicating an intention by him

to kill her must gravely prejudice his case.	And,
in those circumstances, the admission of those

kinds of statements, in our submission, resulted in

a miscarriage of justice.

It is our submission that the accused was

entitled to a trial even if the charges were

improperly joined and counsel did not take the

point. The fact of the matter was that, in our submission, the result is that he did not get a

trial in accordance with proper directions to which

he was entitled.

If I can perhaps then move to the

section 73(5) special leave point as to the meaning

and operation of section 73(5) of the Criminal Law

Consolidation Act. The interpretation of this

subsection has not previously been considered by

the Court of Criminal Appeal in this State. It is

submitted that it is an important matter because it

affects all sexual offences between a husband and a

wife and it is submitted that the interpretation of

the Court of Criminal Appeal does not accord with

the purpose of the legislation.

His Honour Justice Jacobs, by adopting a

literal approach to the interpretation of the

section, decided that it was unnecessary for there to be a temporal connection between the sexual act

in dispute and the matter relied on.

It is the applicant's submission that the

intention of the legislation was to ensure that

there was a protection to an accused spouse by

reason of the need to prove an aggravating factor

in relation to the sexual act that occurred. This

intention, in our submission, is apparent from the

statement of the minister responsible for the

legislation when he introduced the amendment to the

House of Assembly on 30 November 1976. At page 120

of the case book, the Attorney-General said, at

page 2573 of Hansard, in the second column, dealing

with the new subclause (5) which was to be inserted

into th~ bill, about point 3:

The clause now provides that a person shall

not be convicted of rape unless one of four

other matters are present at the time of the

rape. The actual terms of the amendment

provide that the four matters referred to must
be part of or consist of or preceded or

accompany or be associated with the rape.	The
four matters are -

Matthews 20 4/9/91

set out.

The Government believes that the acceptance of

this amendment will not destroy the principle

of the Bill. It will possibly provide some

protection for an accused person.

GAUDRON J:  Ms Shaw, this argument can only be relevant on

the basis that the intercourse involved is that

claimed by the accused to have occurred some two or

three hours earlier?

MS SHAW:  If one is to say that all issues are live then one

would say that one has to prove section 73(5) at

the time of the Crown case of rape as well.	But,
in any event, it is a mandatory section.

GAUDRON J: Yes, but the argument could have no bearing or

relevance if it were found that the act of

intercourse concerned was that which led to or

occurred contemporaneously with the death.

MS SHAW: Well, it would depend upon whether or not one

relied on the argument of undermining the accused's

account of a consensual act earlier to prove that

in fact a rape occurred later and whether or not in
the process of that undermining you had to also

prove that there was a section 73(5) condition.

GAUDRON J: Yes, but the section 73(5) condition was wrapped

up in, if you like, the events which led to the

charges of murder and the act of sexual

intercourse, if it occurred, then.

MS SHAW:  Except that if one is relying - whether or not

section 73(5) has to be proved can only apply to

the count of rape on the information, in law.

GAUDRON J: That is right. That was the question I was

going to ask you. Was the Crown case ever that

they could convict for rape for an act of
intercourse which occurred at some time earlier in

the evening?

MS SHAW:	The way that His Honour left it to the jury on the
"either/or", that is that the act of intercourse

occurred either earlier or later, in our

submission, it appears he left it as an

alternative.

GAUDRON J:  Was that the subject of any application for

redirection or clarification?

MS SHAW:  No, it was not, but, at the same time, if that is

the result, then, clearly, how does one come to a conclusion about the base upon which this man was

convicted? And if one has to rely on an

Matthews 21 4/9/91

undermining of the accused's account of consensual
rape to prove the Crown case of rape later, then

can you also infer in your undermining that that

later act of rape was accompanied by a

section 73(5) condition? And how far do you go

when you make the inference from refuting the

accused's account to proving the Crown account?

It is our submission that the approach of the

Court of Criminal Appeal to this section is

erroneous in three specific respects: the first,

as I put to the Court, is that His Honour

Justice Jacobs, by adopting a literal approach to

the section, in particular at page 39, and his

interpretation of the words of the section, thereby

expanded their meaning.

At page 39, His Honour considered that the

learned trial judge's directions were unnecessary but as to the suggestion or the argument put that

there should be a closer temporal association

between the threats and the offence His Honour

considered that by construing the words "associated

with" as having some extra meaning to ''accompanied

by", then that expanded interpretation of the time

frame was justified.

His Honour, at page 39, referred to the death

threats as having been received by the wife a few

days earlier. In fact they were 12 days before.

But the applicant's submission is that the

direction should be and the law should be that the

preceding act or the act which constitutes one of

the four matters in section 73(5) must have an

influence on the giving of consent.	The issue is:
did the deceased or the prosecutrix consent?	And

those matters in the subsection are there inserted

by Parliament to provide a protection in relation

to the issue of consent. And, here, on the facts,

it could not be said that the letters received

12 days before had any bearing upon the issue of

consent.

But in sexual case, if it was the law that a

husband and wife who were continuing to live

together had - there had been, for example, an act
of violence 12 days before, they lived under the

same roof, then an act of intercourse occurred, the

interpretation of the section by our Court of

Appeal could mean that the previous act of violence

which may had no bearing upon the act of

intercourse would be admissible against an accused.

So that, in our submission, what the section

is doing is, in effect, allowing evidence to become

admitted which is bad character evidence that would

otherwise not be admissible if it could not be

Matthews 22 4/9/91

shown to have any relevance to the issue of the

giving of consent by the prosecutrix. That, in our

submission, was not the intention of Parliament and

the section should be interpreted so that the act

which is - that within section 73(5) occurs as at

the time of the act of intercourse.

This interpretation is, in our submission, borne out by the approach of His Honour

Justice Bollen who decides that the act of manual

strangulation which occurred, presumably after the

act of penetration, was able to constitute an act

occasioning at least bodily harm for the purposes

of section 73(5).

Therefore, it is the applicant's submission

that what His Honour is contemplating is that a

section 73(5) condition can be fulfilled by an act

of violence that occurs after penetration and,

clearly, in that situation, the act of violence

could have no bearing at all on the issue as to

whether or not the prosecutrix was consenting as at

the time of penetration. And that, in our

submission, again, opens up the admission of

evidence in relation to sexual offences which would

otherwise not be admissible and which have no

bearing on the issue of consent.

Thirdly, His Honour the Acting Chief Justice said that when a rape count is joined with a murder

count and it is a Crown case of contemporaneous

rape/murder, then in such a case the Crown does not

have to prove section 73(5) at all. At page 38,

His Honour the Acting Chief Justice said:

On the Crown case, of more or less

contemporaneous rape and murder, it is obvious

that the section could not avail the

appellant; and if the jury were to entertain

the applicant's own account at the trial, as a

reasonable possibility, it was consensual
sexual intercourse.	The only scenario which

might attract the section was the possibility

that sexual intercourse occurred when the

appellant said it did -

It is our submission that His Honour

the Acting Chief Justice has thereby contemplated

there being occasions when the mandatory terms of the section do not need to be complied with. And

in the applicant's submission, because of the terms

of the section, then in all cases a direction must

be given. That His Honour Justice Jacobs makes the

conclusion that the direction need not be given in

this case merely bears out the impropriety of the

joinder; that the joinder, in effect, prevented

proper directions being given to the jury in this

Matthews 23 4/9/91

case because it was impossible for the jury to give

separate consideration to the counts as they were

asked to do by His Honour when the two charges were

part and parcel of one continuous act.

In our submission, the request of the jury to

consider the evidence admissible, particularly the
state of mind evidence, on the counts separately
could not possibly occur, that when they were
considering the rape count and the act in question

they had to be considering the murder count and the

issues could not be properly separated in the

jury's mind.

I have already addressed the Court on the

basis upon which the applicant says that this is a proper vehicle for the questions of special leave,

in particular - - -

MASON CJ:	You have covered that.
MS SHAW:	Yes, I have covered that, if Your Honours please.

And I have covered the submission that the evidence was so prejudicial to his defence that a

substantial miscarriage of justice has occurred.

May it please the Court.

MASON CJ: Thank you, Ms Shaw. The Court need not trouble

you, Mr Solicitor. The Court considers that there

was no miscarriage of justice in this case,

occasioned either by wrongful reception of evidence

or instructions to the jury which were unduly

unfavourable to the applicant. The summing up by

the trial judge must be read in the light of what

were the real issues at the trial.

In reaching our conclusion that there was no miscarriage of justice, we have had regard to the fact that at the trial the applicant did not seek	redirections on the matters now complained of.	The
application for special leave to appeal is therefore refused.

AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

Matthews 24 4/9/91