Peake v The Queen

[1997] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A47 of 1996

B e t w e e n -

DEAN JAMES PEAKE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 4 SEPTEMBER 1997, AT 3.17 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, for the applicant.  (instructed by D’Angelo Kavanagh)

MS W.J. ABRAHAM   May it please the Court, I appear with my learned friend, MR J.A. POWELL, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mrs Shaw.

MRS SHAW:   The question which arises on this application is whether evidence of prior criminal conduct, which is led to establish relationship, is required to satisfy the high test of cogency recognised by this Court in the more recent decision of Pfennig v The Queen.  The Court of Criminal Appeal took the view it needed only satisfy a bare test of relevance, even though in this case it was acknowledged that the prior acts of violence were evidence of prior criminal conduct.  It was to be relied on circumstantially to infer intention.

BRENNAN CJ:   To negative accident, was it not?

MRS SHAW:   Specifically the direction her Honour gave to the jury was that, as put in the Crown case, that they could rely on it as part of the circumstantial evidence from which to infer intention.  Can I take your Honours to the directions of the learned trial judge.  It appears in the application book - this is on this topic of the inference of intention - commencing at page 32 where her Honour specifically addressed the jury about hoew they go about inferring the intention.  The intention in this case, of course, was the intention to kill.  Page 33 at line 5 she then says to the jury:

So in this case you should look at what the accused said and what he did, and you ask yourselves whether it is possible to infer either a specific intention, or, indeed, the fact that at the time, if it is the case in your view that it is a reasonable possibility that he was really not intending to do anything in particular, or there was a loss of self-control.

In other words, although that is a misdirection, her Honour then goes on to refer, line 30 for example, she tells the jury about the fact that you can rely on inferences which must be proved beyond reasonable doubt, and then she says:

In the present case, in looking at this question of intention, you will need carefully to consider the actions of the accused as he went over to the house of the Economous that night.

Mr Powell, in the course of his address, suggested to you that you could infer that the accused went to the house that night, to use his words ‘with killing on his mind’ as a result of a number of factors.  he referred to, firstly, the prior relationship between these people -

and then she went on to refer to the other matters that were relied on by the Crown.  So the case had been presented by the Crown to the jury upon the basis that these prior incidents of violence which were alleged as against the separate complainants could be used to infer an intention to kill at the time he went to the house.  We say that that approach, your Honours, is erroneous and in conflict with the approach of this Court in Pfennig v The Queen in that in Pfennig v The Queen the Court was concerned not with the purpose for which the evidence was led but was concerned, in particular, with the nature of the evidence. 

KIRBY J:   Justice Olsson who dissented in the order in the court below was against you on this point.  He said this was simply the background facts and that it was not a similar fact case at all.  It seems a pretty strong argument, a pretty strong point of view, that her Honour was just really referring to the prior relationship as part of the background.

MRS SHAW:   Your Honour, in fact what his Honour Justice Olsson went on to say was that the evidence was specifically relevant to the critical issue of intent, referring to the Crown’s argument to the jury, so it was not just a question of relationship, it was a question of the inference of intent.

BRENNAN CJ:   Let us assume that instead of all this evidence there had been evidence of the accused repeatedly saying to each of the victims, “I hate you, I hate you” over a period of time.  Would that have been admissible?

MRS SHAW:   Yes, your Honour.  The reason for that is this:  what Pfennig is concerned with is prior criminal offences which suggest propensity to act in a similar way in the future.  In other words, the dangerous reasoning, the prejudicial effect of the evidence is if this man has been violent in the past, for example, he attempted to ram a car or he punched the wife, then the jury might reason that that shows he is a man who is capable of forming an intention to kill and reason through that route to guilt, rather than considering the offence on its merits.  And only if a judge decides, when he considers that evidence, for example the ramming incident, does it have such cogency in the context of this case that there is no rational explanation, according to the Pfennig test with guilt, that it ought to be admitted.  In other words, what this evidence is concerned with is to prevent prejudice dominating the reasoning of the jury, rather than cogency.

BRENNAN CJ:   What you are saying is it is not merely evidence of the relationship, it is evidence of violent conduct, and it is the violent conduct that may have been misused?

MRS SHAW:   That is so.  Your Honour, can I explain ‑ ‑ ‑

BRENNAN CJ:   But one cannot deny the admissibility to prove the relationship, can one?

MRS SHAW:   That is so, your Honour, provided it passes the Pfennig test.  Can I perhaps draw the distinction with Wilson in this way.  The Court of Appeal relied on Wilson v The Queen, a decision in this Court, to suggest that relationship evidence effectively fell into a separate category which escaped the Pfennig test because it was probative only of relationship.  On the facts of Wilson’s Case, what the Court was concerned with was the issue of statements made by the deceased wife during heated quarrels.  The Court was not concerned with prior violence or prior violent conduct.  True it is that in one of those conversations there was a push, but the argument of the appellant was that this prior evidence - this evidence of the statements made by the wife during the course of the trial was not probative of motive and, therefore, was not relevant.

Now, the Court in Wilson said, well, it is, because it does show the depths to which the relationship effectively had sunk and relied on the Court of Crown Cases, the remarks of his Honour Justice Kennedy in Bond’s Case.    What we say is significant about Wilson’s Case in reliance on Bond is this.  True it is that his Honour Justice Kennedy did make the statement as to the relevance of relationship in Bond’s Case.  However, that statement was made in the context of his Honour Justice Kennedy considering the application of Makin principles.  In other words, in Bond’s Case itself the court was concerned with the admissibility of an alleged prior offence by the accused and the court was concerned as to the cogency of that evidence to prove knowledge, which was the issue before the court.  When the court referred to that issue of relevance, it later went on to test the cogency of the evidence of prior conduct according to what were then known as the Makin principles, system and the like, and concluded in the end it was a systems case.

BRENNAN CJ:   Now, one can readily understand how one ought not to admit evidence of propensity to engage in a certain kind of conduct when the issue for determination by the jury is whether the accused engaged in that kind of conduct.  That is where you have problems of the actus reus.  Was this the person who committed the rape?  Did the schoolmaster violate the boy, et cetera?  But that is not the problem here, is it?  It is not a question of whether he did or did not wield the sword; it is a question of the mens rea.  So there is no real risk of the jury misusing the evidence of the acts of violence in order to determine whether the sword was wielded; the only question is whether that evidence was admissible to assist the jury in coming to a conclusion as to the mental element.

MRS SHAW:   Your Honour, can I deal with your Honour’s question in two ways.  First of all, what your Honour has put to me is certainly in line with what his Honour Justice McHugh said in his dissenting opinion in Pfennig.  In other words, his Honour Justice McHugh did not agree that the Pfennig test of the majority was universal, that is that it applied to any evidence that disclosed prior criminal offences.  However, the majority in their statement of principle at page 464 - if I can take the Court to that - in the joint judgment of his Honour the former Chief Justice, Justice Deane and Justice Dawson make it plain, in our submission, that evidence of propensity which falls within the category of similar fact evidence, relationship evidence or identity evidence, “which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged”, that is the subject of this judgment.

Having considered the various authorities, the Makin principles, and in particular including cases like Boardman ‑ ‑ ‑

BRENNAN CJ:   Can I just delay you for a moment.  That next sentence:

It is always propensity evidence but it may be propensity evidence which falls within -

and then a number of categories are referred to:

similar fact evidence, relationship evidence or identity evidence.

Now, similar fact evidence and identity evidence are necessarily questions of actus reus, are they not?

MRS SHAW:   Not necessarily, your Honour, with respect.  Of course Sutton’s Case was a similar fact case but it was a question of identity.

BRENNAN CJ:   Identity, yes.  And that is whether the person who did the act was the accused.

MRS SHAW:   Yes.

BRENNAN CJ:   That is objective actus reus material.

MRS SHAW:   Yes.

BRENNAN CJ:   Is there any case where the propensity principle has been applied dealing solely with questions of mental element?

MRS SHAW:   Your Honour, I must say I cannot necessarily think of one off the top of my head, but what I put to the Court is that it is plain from the judgment of the court, when it comes to consider those three categories, that it applies a universal test.  If I can take the Court to page 480 - this is after a discussion of all of the authorities - and in particular the Hoch test - I take the Court to the foot of page 482 where the Court discussed the question of disputed similar facts, and the Court went on to say, the last three lines:

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.  And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

And their Honours at page 485 set out the test that the trial judge must apply.  Now, your Honours, without referring to a case by way of example as to intent, can I put this to the Court, that when the jury did come in due course to consider the question of intent to kill, because the Crown were putting to the jury, “You can rely on the relationship evidence for the purposes of inferring intent”, then even on the Shepherd approach, that is an intermediate step in the proof to guilt.  In other words, the jury would have to be satisfied beyond reasonable doubt of the factual basis for drawing the inference to guilt.

So, in other words, your Honours, what I am putting to the Court is that the importance or the potential prejudice of this evidence is indeed in a high category and the test which the majority put forward is a universal test which arises, not because of the issue which is to be determined, but because of the nature of the evidence.

KIRBY J:   I would see that, the prejudice, and I do understand fully your argument about propensity evidence, but here is simply a statement or some statements by her Honour about the background which existed between the parties and which the jury would have heard.  This does not have the smack of danger that cases of sexual allegations do in the case of propensity evidence.

MRS SHAW:   Your Honour, in our submission, there are in fact two aspects of greater danger in this case.  In the way her Honour left the matter to the jury - this is at the page 12 direction where her Honour effectively said to the jury, “Look, you do not have to resolve the issues between the parties; you can simply assume there is a volatile relationship and take that into account as background.”  The difficulty with that approach, of course, is that the jury are not being required to resolve the dispute between the accused ‑ ‑ ‑

KIRBY J:   That is true, but this was a 16-year-old girl with parents of a different ethnicity who strongly resented the relationship and she gave birth to a child and there was not, as I understand it, real doubt that there was some animosity.  The question was its degree and extent and the indicia.  So I took what her Honour was saying was just pointing to that background and leaving it at that.  It does not seem to be your better point.  You have a second point in this case.

MRS SHAW:   But, your Honour, can I just say about that that ‑ ‑ ‑

KIRBY J:   You got the draft directions in this case, did you not?  No application for redirection was made.  My understanding was that in this case her Honour had a draft.

MRS SHAW:   That is so.

KIRBY J:   She provided it to counsel, they both looked at it and nobody asked for any changes.

MRS SHAW:   That is so.  But, your Honour, we say here the failure to give correct directions compounds the wrongful admission.  In other words, here the objection was made to the evidence.  True it is that evidence of emotional upset, evidence of antagonism might well have fitted into her Honour’s background direction, but what she ruled to be admissible were, in fact, disparate acts of violence.  In other words one act, in particular, involving the father, an alleged ramming of the car, which was at least 18 months before and at a time when the parties were in and out of reconciliation, the cogency of that evidence ‑ ‑ ‑

KIRBY J:   I see your time is about to run out and there is this point that Justice Olsson dissented on which I think we ought to hear you on, because it seemed to me your better point.

MRS SHAW:   Can I turn to the directions immediately.  Your Honours, we say, for the reasons that I put to the Court earlier, that because her Honour left it to the jury to infer intent, then it was important that the directions to the jury at page 10, when her Honour dealt with the evidence of relationship, her Honour set out the different allegations ‑ ‑ ‑

KIRBY J:   Justice Olsson’s point was that her Honour had to say that on those past matters where they were in dispute, they had to be satisfied beyond reasonable doubt, but far from doing that, she put it on a much, much lower basis.

MRS SHAW:   That is so.

KIRBY J:   Now, where is the passage which is complained of?

MRS SHAW:   Your Honour, the specific passage is at page 12 line 5.  Her honour said to the jury:

There are, ladies and gentlemen, other allegations and counter-allegations of disharmony between these people, but I do not propose to canvass them.  As you have already been told, you are not obliged to determine the rights and wrongs of these earlier events.

That was something that the Crown prosecutor had told them in his address.

Whatever the truth of those matters might be, I suggest that it is likely you’ll be satisfied that there was a fairly volatile relationship between the accused and the various members of the Economou family leading up to 27 April this year.

KIRBY J:   Now, what her Honour should have said, in your submission, is “If you consider that any of the past circumstances may be relevant, then you have to be satisfied, where they are disputed, that they have been proved by the Crown beyond reasonable doubt.”

MRS SHAW:   That is so, your Honour.

KIRBY J:   And that leaving it on the basis that whatever the truth might be was, as it were, leaving it at a much lower basis of proof, just saying, well, you can just decide that as you please.

TOOHEY J:   You would really need to look at what follows on page 12, would you not, in order to put the direction in context because while the trial judge does not use the expression “beyond reasonable doubt”, she does go on, from about line 40 onwards to say:

it would be quite wrong for you to reason that just because you are satisfied that the accused committed an unlawful act -

and so on.  So it is not quite in the isolation, perhaps, the passage at the top of page 12 might suggest.

MRS SHAW:   Your Honour, the difficulty about the unsatisfactory nature of that is that, indeed, her Honour had already foreclosed from the jury the need to determine the rights and wrongs between the parties and, secondly, it invites the jury to use as a makeweight the disparate allegations from the separate complaints.  So that the real danger here is that the jury having heard allegations from three separate complainants, not showing similarities, not necessarily showing connection, disputed but different motives with different explanations, might simply use them in a compendious way to improperly come to a conclusion about the nature of the relationship and then to improperly draw an inference from the nature of the relationship.  And the crucial thing here is whether or not the jury might have wrongly drawn an inference contrary to the accused, particularly bearing in mind the later invitation by her Honour to proceed to rely on the circumstantial evidence to draw an inference as to the specific intention in issue in this case.

I notice my time has expired, your Honours.

BRENNAN CJ:   Thank you, Mrs Shaw.  We need not trouble you, Ms Abraham.

The prospects of appeal, whether on the question of admissibility or on the question of inadequate directions, are not sufficient to warrant a grant of special leave.  Accordingly special leave is refused.

AT 3.40 PM THE MATTER WAS CONCLUDED