Phillips v The Queen

[2005] HCATrans 919

[2005] HCATrans 919

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B58 of 2005

B e t w e e n -

DANIEL CRIS PHILLIPS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 NOVEMBER 2005, AT 12.04 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR J.D. HENRY, for the appellant.  (instructed by Robertson O’Gorman)

MRS L.J. CLARE:   If the Court pleases, I appear with MS S.G. BAIN for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Glynn.

MR GLYNN:   Your Honours, the probative value of the evidence of six complainants alleging that the appellant had dealt with them sexually without their consent was identified by the learned trial judge as being a basis for the admission of the evidence of each and therefore justifying the joinder of the charges in the particular hearing.  At appeal book 1, page 31, line 20 his Honour this to say:

The probative value of the evidence is its ability to show the improbability of similar lies by each of the complainants.

One could almost imagine that if each of these counts were tried separately, at the conclusion of the case defence counsel would be urging the jury to have doubts about the truthfulness of the complainant’s evidence or its reliability because it would be highly unlikely that the accused, knowing that he was able to be identified, knowing that he was proceeding to sexual intercourse against the complainant’s will, would do such a thing because of the potential consequences.

To adapt the words of Pincus JA in R v Wackerow –

where his Honour gives the reference –

if the jury accepts the evidence of the complaint in count 6, it must make a guilty verdict on counts 1 to 5, one which a rational jury would much more readily reach and vice versa.

His Honour in directing the jury similarly identified the use of the evidence of each five of the complainants in respect of the sixth.  At appeal book 5 ‑ ‑ ‑

KIRBY J:   Let me get a fact clear in my mind.  Is it the fact that each of the complainants first made a complaint without knowing of the existence of the other complainants?

MR GLYNN:   No, your Honour, I do not think that is exactly correct.  The complainant M made a complaint shortly after the ‑ ‑ ‑

KIRBY J:   I notice in the Court of Appeal names of the complainants were not identified.

MR GLYNN:   I am sorry, yes, I probably should not.

KIRBY J:   Maybe we can find the same procedure for avoiding that.

MR GLYNN:   Yes.  If I can get a list I will try and remember ‑ ‑ ‑

KIRBY J:   Otherwise it goes on the Internet and anybody can Google it and look it up and it is not really fair to people.

MR GLYNN:   I accept your Honour’s reminder in that regard.  The complainant M made a complaint to police shortly after the events.  A number of the others were approached by police but there had been some who had spoken particularly to the complainant L on the telephone.  I think there were two who had spoken to her. 

KIRBY J:   Do not trouble about it now but there is a suggestion in the respondent’s submission that the complaint was made without knowledge of the involvement or complaints of others and I would like to get that clear in my mind at some stage, with reference to the evidence.

MR GLYNN:   I will just check.  I thought we responded to that in our response but perhaps…..  Mr Henry who was in the trial, your Honour, reminds me that if one is talking about complaint to someone else that is true except in respect of S.  However, if one is talking about to the police then that is not correct.

GLEESON CJ:   You were just giving us a reference to volume 5 of the appeal book.

MR GLYNN:   Yes, your Honour, page 1841, line 34 to 1842, line 12.  His Honour said:

You will recall that I drew your attention to the one common essential element and that is the absence of consent.  If [DP] is not guilty of all those charges as he says he is then all six girls have lied when they say that he did something of a sexual nature to them without their consent.  I emphasise again that [DP] does not have to prove his innocence.  Prosecution must prove his guilt.  I am simply explaining the only use you may make of the combined evidence of all of the girls together in the process of finally reaching a verdict of guilty or not guilty in relation to each offence.

So you ask yourselves this, what are the probabilities that all six girls have lied when they say they did not consent to [DP] dealing with them sexually.

GLEESON CJ:   Just a second.  We are not anonymising the appellant, are we, because we have already listed his name in today’s Court list.

MR GLYNN:   I am sorry, your Honour, because it was, in fact, in the Court of Appeal referred to apparently, or it was named as “PS”, so that is all, because that is why I was doing it that way.

GLEESON CJ:   We do not have to worry about that, do we?

MR GLYNN:   No, no, it was just that his Honour drew my attention to it earlier and I was trying to remain consistent, but I will read it as is:

Daniel Phillips dealing with them sexually.  If you think it could possibly be just an unlucky coincidence –

and then his Honour goes on.  But what his Honour is saying, in our submission, is that what you do is use the evidence of all six to say, “What are the chances that he lied when they say they did not consent to sexual activity with him?”  Now, his Honour, in fact, had earlier in his first ruling - there were two pre-trial rulings, one when there were five complainants and then another one when the sixth complainant was sought to be joined – at appeal book 1, page 15, line 3 his Honour had recognised, in my submission, that that was not sufficient.  He said at line 12:

Therefore before even considering the details of the complainants’ stories there is some probative value in the fact that there are five complaints of rape against the accused.  The objective improbability that five different females would all make a false complaint of rape against the one accused is enormous.  But that reasoning alone cannot be used unless there are additional features which add to the probative value of the account of each of the girls when viewed in light of the accounts of all of the other girls.

Yet by the time his Honour finally comes to direct the jury, his Honour is saying that it draws its probative value from the fact that there are six girls all saying that they did not consent and that the jury are to assess the improbability that each of them lied when they said that.

KIRBY J:   But that was against a background of some discussion, was it not, about the common features except for the last one:  all of them in a relatively small community in a town in Queensland; secondly, that all were within the age of the accused and known to the accused; thirdly, that force was used; fourthly, that it generally began as consensual fun and so on but went beyond that; fifthly, the fellatio was a common element in all elements and, sixthly, in at least two or three of them that there was an element of lifting and carrying of the girl.

MR GLYNN:   Your Honour, I was going to come to those later, but my submission is essentially that those do not produce in these sort of non‑stranger rape type situations a great deal in the way of probative force such as to justify the joinder and to overcome or to balance out the enormous prejudice of having six girls there complaining that they were the subject of his having sexual intercourse without their consent.

Secondly, what is identified as being the probative value is the fact of the lack - of the girls not consenting.  In other words, what is being identified is the conduct of the complainants rather than the conduct of the appellant.  It was justified, in our submission, on the basis of a misunderstanding of statements in this Court where the Court said that where there was evidence of common lies, the improbability of common lies could justify the admission of the evidence.  What the Court was talking about in those cases was the improbability of people telling lies about markedly similar conduct by a person, or by one person, as justifying the admission of the evidence and giving it the probative value that was necessary to outweigh the prejudicial effect of the multiplicity of charges.

KIRBY J:   But does that have the logic that in the event that there is non‑stranger sexual intercourse that the features are always going to be of a certain degree of commonality and that therefore in every case you have to have a separate trial for fear that ‑ ‑ ‑

MR GLYNN:   No.  There may be features of the way in which it occurs that will justify.  Our submission here is that they do not exist in this particular case, but that is not to say that it can never be that there will be features of the conduct of the appellant that will justify the joinder.  That is not the case here.  What is relied upon is the fact that six girls said that they said no.  That is what it really came down to, was that six girls said that they said no.

KIRBY J:   But it did not only come down to that.  It was the age of the girls, the relativity of their age to the appellant, the fact that they were known to the appellant, the fact that they were in the particular town and that that there were certain features, query whether they were striking features that were common to the different separate offences.  I think the essence of the debate is whether they were striking and certainly in respect of the last, the Brisbane offence, there is a separate problem with that one but in respect of the Innisfail offences the question is whether they were strikingly similar.

MR GLYNN:   Your Honour, my submission is that that tended to fall by the wayside as the trial developed and it really came back to this one issue that the learned trial judge put to the jury and that is this question of the improbability of common lies, namely – and he actually says this – whether the girls were lying when they said they did not consent.  That is where his Honour finally got to.  This was against a background where there had been two pre‑trial applications and a number of applications during the course of the trial to discharge the jury on the basis of this very evidence.

GUMMOW J:   Paragraph 4.23 of your submissions is the details of the disclosure to investigation.

MR GLYNN:   Yes, your Honour.  Yes, that is where it is set out in a fairly summary form.

GLEESON CJ:   Mr Glynn, I have not looked closely at the detail but there are statutory provisions in Queensland that are referred to in the written submissions.  Do they produce any significantly different consequence from that that applies generally?  In other words, does this case turn on the statutory provisions?

MR GLYNN:   Section 132A of the Evidence Act, your Honour, says that a judge may not have regard to the risk of – I am sorry, I am just getting the words, your Honour.

GLEESON CJ:   I notice that in Mrs Clare’s submissions ‑ ‑ ‑

MR GLYNN:   The risk of concoction –

HEYDON J:   “Collusion or suggestion”.

MR GLYNN:    ‑ ‑ ‑ in making the decision as to whether – collusion, sorry, in making the decision as to whether the evidence is admissible.

GLEESON CJ:   Are we concerned with that?

MR GLYNN:   Although there was an issue about collusion at the Court of Appeal stage it is not an issue here as far as my submissions are concerned.

GLEESON CJ:   Is a way of putting your submissions, just by reference to the language of that section, that this was not evidence, the probative value of which outweighed its potentially prejudicial effect

MR GLYNN:   That is right.

GLEESON CJ:   That is your argument?

MR GLYNN:   That is essentially the argument, your Honour, and secondly, that what was being tested was the veracity of the complainants.  In other words, the jury were being asked to say, well, what are the chances that six girls would tell lies about not consenting to sexual intercourse?

KIRBY J:   Can I put the counter argument so you can respond to it, that there may be some young people, young males, who do not know that “No” means no and that if there is a pattern in a small community of friends and known people who are known to them of repeated instances where “No” did not mean no that that does have sufficient striking similarity to permit a trial judge to say, “Well, I’ll let the jury work it out and hear them altogether”.

MR GLYNN:   My submission is that that is not sufficient.  It really does not take it outside the non-stranger rape situation.  In other words, if you live in a small town and you are accused of rape by a number of girls, that should not make the evidence admissible as having some particular characteristic that raises its probative value to a level by which it overcomes the prejudicial – and really what is described in one of the cases to which I refer your Honours, Handy – the poisonously prejudicial effect of multiple complainants accusing you of the same offence.  In other words, the evidence requires a much higher level of similarity, if I can put it that way, before it can be said that there is sufficient probative value to overcome the prejudicial effect.

HAYNE J:   Can I strip the argument back a bit.  The question in each case was did he have intercourse without consent of the complainant?  If in fact he did, that is have intercourse without consent, with one or more of the complainants, it may be that it is more probable than otherwise would be the case that he did with one of the others.  But the question in each case is did he.  To ask whether it is likely/unlikely, probable/improbable that the complainants lied is at least to tend to the error identified in Palmer v The Queen 193 CLR 1 where it is said that it is error to say to the jury, “You’ve got to ask yourself why would the complainant tell lies”.

MR GLYNN:   Yes, it does, I am sorry.  I regret that I did not refer your Honours to Palmer because it does raise that sort of issue.

KIRBY J:   We had a series of those cases in the beginning of this century, I think, in about 2000, 2002, of judges asking why would they tell lies.

MR GLYNN:   That is right.

KIRBY J:   I think we had about three of them.

MR GLYNN:   Yes.  Palmer was the one that I must say I am familiar with, your Honour, but no doubt there are others.  Palmer I think was perhaps the first of them and that is why it is better known.

HAYNE J:   It is known to me for other reasons, Mr Glynn.  Page 15 of the appeal book, the proposition, “The objective improbability that five different females would all make a false complaint of rape against the one accused is enormous”, seems to carry within it the proposition that you know whether the complaint is true or false.  In any event, the trial judge goes from that proposition – may/may not contain within itself this difficulty about assuming falsity – to the proposition that that reasoning alone cannot be used unless something more is shown.  I understand your case comes down to the proposition that nothing more was shown other than that it was the Crown case that the accused man was a rapist of persons who were known to him.

MR GLYNN:   That is right.

GLEESON CJ:   According to Mrs Clare’s submissions, whether she is right or wrong, the striking similarity lies in the fact that whoever did this was a huge risk taker.

MR GLYNN:   Yes, your Honour, that could be said of anybody who commits the non‑stranger rape in that they take an enormous risk that – and the risk comes from the fact that they are identifiable.  So it all comes out of this people known to each other, therefore can be identified, therefore is a risk taker.  But it all turns on the fact that he is known to each of the complainants and if the fact that you are known to the complainants can justify or gives it sufficient probative value then the level at which the probative value is set is, in my submission, very low. 

HEYDON J:   She puts it more highly than that.  I mean, in several of the cases there were people very nearby.  If the victim had cried out there would have been an instant risk of detection.  Now, that seemed to me there is an answer to that, but it is not just knowledge between accused and victim.

MR GLYNN:   We in fact, I think, deal with that in our reply, your Honour, in which we point out that that is not entirely accurate, that in the case, for example, of M there was no one in the house other than the two.  Then in the case of L it was across the road in another allotment.  So that is not a common feature of all of the cases.  It certainly could be said to be present in some, but it does not take it much beyond the concept of the fact that all of these people were known to each other.  In my submission, it is not sufficient to give it the probative force which it needs to overcome the prejudicial effect of having this array of people saying that you had sex without consent.

At the end of the day, the way in which it is finally justified is that the unlikelihood that six people would be lying when they say that they did not consent – and, in our submission, that is a misreading of what this Court meant in Hoch and in Pfennig when it talked about the improbability of common lies, because what it was there talking about was the improbability of common lies about the conduct of – that is, the similarity of the conduct of the appellant rather than the state of mind of the complainants, which is the way it is put to the jury and the way it is finally justified by the learned trial judge.

KIRBY J:   Of course if you are right, then in every case of unlawful sexual – or allegations of unlawful sexual intercourse with a person known to the accused there probably has to be a separate trial.

MR GLYNN:   No, with respect, your Honour, there may be features of the way in which he does it that would justify the joinder in some cases.

KIRBY J:   There were features in this case, but they are ‑ ‑ ‑

MR GLYNN:   But not sufficient, with respect.

KIRBY J:   Well, that is what I say.  In most cases of sexual intercourse there is a limited repertoire and therefore the logic of where you are leading us is into separate trials which have very significant costs and other implications of course.

MR GLYNN:   Your Honour, the authorities – and there are a number that I refer to – make the point that there is – I will not say prima facie, but there is a strong position that at least initially the evidence, and certainly the Canadian case of Handy takes this point, that you start with the position that the evidence is inadmissible and then you look to the evidence that is sought to be admitted to see whether there is sufficient probative value to be identified in that evidence to justify its admission in the particular case, in other words, that these decisions have to be made on a case‑by‑case basis, but what must be kept in the forefront of the mind is, as I said, the poisonously prejudicial effect of the evidence and whether or not that is overcome, or the effect of that is justified, in leading the evidence by virtue of the very high probative value of the propensity evidence.

GLEESON CJ:   This expression “striking similarity” goes back to Makin, does it?

MR GLYNN:   Yes, I ‑ ‑ ‑

GLEESON CJ:   Or Boardman?

KIRBY J:   Boardman.

MR GLYNN:   Perhaps Boardman is the first, your Honour, yes.

GLEESON CJ:   There was a decision not all that long ago of the House of Lords where Lord Mackay of Clashfern wrote the leading judgment.

MR GLYNN:   DPP v P, your Honour.

GLEESON CJ:   Right.  Do you have a reference to that?

MR GLYNN: Yes, it is in our material. I will give your Honour the reference to that. It is [1991] 2 AC 447. Your Honour, my submission – and I make this with the greatest of respect – is that what DPP v P does is that it produces a somewhat fuzzy test and, in fact, increases the prospect of the lottery which his Lordship said that the test was designed to avoid.  If I could take your Honour to 460 and 461 of that judgment.  At the bottom of the page his Lordship says:

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.

The view that some feature of similarity beyond what has been described as the paederast’s or the incestuous father’s stock in trade before one victim’s evidence can be properly admitted upon the trial of another seems to have been stated for the first time in those terms in Reg v Inder.

But his Honour at the bottom of the paragraph goes on to reject that approach.  However, Chief Justice Gibbs did adopt just such a statement, or such an approach, in Sutton.  The reference to ‑ ‑ ‑

KIRBY J:   Is this some historical move?  You are throwing cases at us, and I realise you are answering questions, but can you discern any pattern of what has happened here, or are the courts just going round and round in circles saying, “Well, we recognise there are dangers in this and we recognise there’s prejudice.  Every case is going to depend on its own facts.  It’s a difficult problem.  You’ve got to give a leeway to judges at trial to make these difficult decisions, but there has to be something striking about it.  Just common facts and similarities are not enough”.  Can you really say very much more than that?

MR GLYNN:   Your Honour, what the authorities – with the exception of the DPP v P, which, in my submission, creates a somewhat fuzzy test, the decision of this Court in Pfennig, in Hoch, in Sutton – there are references in Sutton I think to Markby v The Queen – and the decision of the Supreme Court of Canada in Handy, all seem to start from the premise that the evidence of similar fact or propensity, whatever you call it, is highly prejudicial and that it is not admissible unless and until it is established that it has such a high probative value that it justifies the admission of the evidence despite the prejudicial effect.

In other words, in my submission, there is a strong position that the starting position is that the evidence is not admissible.  One then looks at what are said to be the features of the propensity evidence to assess whether or not they contain such a marked similarity as to create a probative effect that justifies the admission in the particular case.

KIRBY J:   I realise in general terms what you say is the poisonously prejudicial consequence of a trial of all these cases, all these accusations together.  Leave aside the last one, which I do think raises a separate problem, but would you express in your own words what you say is the prejudicial effect to your client of having the trial of all the accusations together.

MR GLYNN:   The prejudicial effect, your Honour, is that it is almost impossible for a jury to put out of their mind that you have six women saying “This man raped me” or “This man –” in one case – “tried to rape me”.  Now that ‑ ‑ ‑

KIRBY J:   But if that is the fact and if it is the time sequence and if there are common features why can we not trust juries to, with proper instruction, determine each accusation but against the background of the fact that there happened to be in this case five accusations?

MR GLYNN:   Your Honour, the fact of the high level of prejudice has been accepted by this Court in a series of a cases which start, or do not start with – I suppose Makin is the origin, but if you work through decisions such as Sutton, De Jesus, some passages from Markby, some passages from Harriman, then Pfennig, it is accepted in all of those that where you are accused of more than one offence there is a high degree of prejudice to an accused and a high degree of risk.  Now, it is said by Justice Brennan, as he then was, in one of the cases, and I cannot off the top of my head recall which, that there are occasions when a direction may be sufficient but what the effect of Sutton and De Jesus was that particularly in sexual cases the prejudice is so high that unless the evidence is admissible one on the other – that is the probative effect of the evidence is very high then the prejudice – you cannot rely on the jury being able to put the effect of it out of their mind by virtue of a direction.

GLEESON CJ:   Did Lord Mackay do anything in DPP v P other than say there is no single verbal formula such as “strikingly similar” that can encapsulate all the circumstance in which the probative value of evidence will outweigh its prejudicial effect, and so at the bottom of 462 and the top of 463 he formulates what I understand to be his test.

MR GLYNN:   Yes.

GLEESON CJ:   That is, is it the case that the evidence, if accepted, would so strongly support the truth of the charge that it is fair to admit it notwithstanding its prejudicial effect and a little earlier on page 462 he says “striking similarity” may be a useful test in some cases but it cannot possibly be a universal formula.  The words, indeed the words of the statute, are probative value outweighing prejudicial effect.  That is the test.

MR GLYNN:   Yes, that is the test.   The probative value must be - and it is said that it must not be, in some of the authorities, it must not be minor.  It must be significant because of the high prejudicial effect that the evidence engenders.

GLEESON CJ:   Mr Glynn, I am not suggesting that the outcome of the present case turns at all on what I am about to raise, but there was something said in the judgment of this Court, in I think Pfennig that required what the Chinese would call clarification.  Are you familiar with the passage I am talking about?

MR GLYNN:   I suspect your Honour is talking about the passage – there is one passage which I have to say I did not – there are two words that I just do not understand the significance of and, also, it may be that your Honour is talking about how the test is to be applied.

GLEESON CJ:   I have in the back of my mind that Justice Thomas wrote a judgment in Queensland in which he ‑ ‑ ‑

MR GLYNN:   It is O’Keefe [2000] 1 Qd R 564.

GLEESON CJ:   I have it in mind because it is a passage that when I sat on the Court of Criminal Appeal I used to have to look at and avoid in some way.

MR GLYNN:   What his Honour did in O’Keefe was he created or – I should not say he created – he identified what he said was a two‑stage process for the admission of the evidence.  Whether that identification of two stages is of any great significance there is great debate about, I think, certainly amongst lawyers in that it could be argued that it has really created two steps out of what is one step, but ‑ ‑ ‑

KIRBY J:   What are the two steps?

MR GLYNN:   The two steps that his Honour identified are ‑ ‑ ‑

KIRBY J:   I tend to like two or three ‑ ‑ ‑

MR GLYNN:   I am sorry, your Honour?

KIRBY J:   Do not worry.  You have already suggested a few stages.  You have suggested that you start with a prima facie bias against admitting the evidence or having a common trial, so that is one stage.  Then you go on – I mean, we try to discipline the mind to approach these matters in a logical way so what did Justice Thomas say were the stages?

MR GLYNN:   I am just trying to find where it was – actually, in the headnote is probably as good as any, your Honour:

A judge in ruling upon the admissibility of propensity evidence in a criminal trial is required address two questions:

(a)      Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?

GLEESON CJ:   Yes, that is the one.

MR GLYNN:   Then:

(b)      If the propensity evidence is admitted, is the evidence as a whole (assuming its accuracy and truth) reasonably capable of excluding all innocent hypotheses?

GLEESON CJ:   Yes.  The problem with the first stage or the first question is that it seems to suggest that you can only get the evidence in if the evidence on its own proves the guilt which is very unusual.

MR GLYNN:   Yes.

HAYNE J:   And that is founded on what is said in Pfennig 182 CLR, particularly at 485 under the head “The role of the trial judge in admitting propensity evidence”.  That is the passage that founds the debate that has just been revealed.

MR GLYNN:   Yes.  The real essence of Pfennig is really found about between halfway down page 481 and perhaps some distance down page 484, but it encapsulates this test that must be applied by a judge which, as your Honour points out, effectively is the source of the quote that is – or at least it is said to be the source of the quote or the test formulated by Justice Thomas.

KIRBY J:   Can I ask, is it clear and common ground that in deciding whether or not you will have a joint trial of different offences against the one accused that the test to be applied is whether the evidence would be admissible under the Pfennig or statutory test?  In other words, you do not get one without the other.  It is like the old song Love and Marriage, you do not get the joint trial unless the evidence would be admissible in respect of all of the offences under the Pfennig test.

MR GLYNN:   I think that is common ground.  It was certainly the basis upon which it was fought at all stages of the trial and, as I understood the appeal, although I was not involved in the appeal, throughout the appeal.

GLEESON CJ:   In order to keep it in perspective, you have to remember that this is an appeal against conviction, not an appeal against the order ordering a joint trial.

MR GLYNN:   Yes.

GLEESON CJ:   So the question for the Appeal Court after there has been a joint trial and a conviction is, was there a miscarriage of justice?

MR GLYNN:   Yes, your Honour, I accept that and, in fact, I think we identify that as one of the issues in our outline.

HEYDON J:   I do not think the authorities are as absolute as you say.  You quote from Sutton v The Queen, Justice Brennan.  He says separate trials should generally be granted, but it is not absolute.  But the general rule is that if there is no cross‑admissibility then there cannot be a joinder of issue.

MR GLYNN:   That is right, and, I am sorry, I thought I did qualify it by saying that his Honour said that there were occasions when a direction might be sufficient, but then that is really taken a step further in De Jesus where it is accepted, in my submission, that the prejudice or the prejudicial effect of multiple complaints in sexual cases is such that really it can only be dealt with by separation if the evidence is not cross‑admissible.

HEYDON J:   That is what Chief Justice Gibbs said, yes.

MR GLYNN:   Yes, and I think, with respect, Justice Brennan accepted that in De Jesus as being a correct statement of the law.

KIRBY J:   Has any academic, do you know, written an essay on the history of this, of how Makin and Boardman came in and then the Australian attempts leading to Pfennig?  I mean, it really does suggest that the law moves in a crab-like way, trying on the one hand to face up to the efficiencies and sometimes the relevance of common evidence, and on the other hand to deal with the problem of prejudice to accused of linking them altogether in the one trial.

MR GLYNN:   I have to confess, your Honour, I did not look for such an article.

GLEESON CJ:   I think there are many such articles.  I think this is probably one of the most favoured topics of authors.

MR GLYNN:   It is certainly a topic about which there is an enormous written, but whether there is one about the history of it, I could not tell your Honours.

KIRBY J:   It is more the concept that I am trying to understand, how the courts have addressed the concept.

MR GLYNN:   In Sutton ‑ ‑ ‑

HAYNE J:   Before you come to Sutton, can we try to strip it down to conceptual terms.  One, there is no question unless the evidence in issue is relevant.

MR GLYNN:   Yes, your Honour.

HAYNE J:   If the evidence is not relevant, never get there.

MR GLYNN:   That is right.

HAYNE J:   So step one you are dealing by hypothesis with a set of evidence that is relevant to the issues in the trial.  Step two seems to be that Makin and its successors represent a choice made by the courts to say that some classes of relevant evidence, classified as propensity evidence, stand in a special case.  The special case they stand in is prime facie they are out.  So you have at once a tension, a tension between the relevance of the evidence and the fact that it is excluded.

MR GLYNN:   Yes.

HAYNE J:   And the debate is about what is to be excluded and there seem to be two ideas that are running around at various levels in the debate.  One, let us not distract the jury.  Let us not distract the jury from considering the charge that is in issue.  That seems to underpin a lot of it and finds reflection in this joint trial sort of case because there is an assumption about cross‑admissibility which is underpinning the joint trial decision.  But the other thought that is running around in the background, unformed often enough, is this notion of prejudice and probative value.  Now, that is the conceptual framework within which all this occurs, is it not?

MR GLYNN:   Yes, except, your Honour, in my submission, the prejudicial effect and probative value in some way is at the centre of the resolution of the tension to which your Honour referred.

HAYNE J:   But by hypothesis this is relevant.  This is evidence that could assist the resolution of the issue tendered for the jury’s decision.  If it is not relevant, get rid of it.  So there is some probative value in it.

MR GLYNN:   I do not think that there is any doubt that it is relevant in the sense that if a person commits offence A and is charged with a similar offence B that, putting aside the issues of prejudice, it is evidence that is relevant.

GLEESON CJ:   Propensity must be relevant, must it not?

MR GLYNN:   Yes.

GLEESON CJ:   If propensity were not relevant, why would judges direct juries that evidence of good character is evidence that goes to the question of whether the accused is guilty or not guilty?

MR GLYNN:   I do not think that one has to go back to the issue of whether it is relevant.  I accept what Justice Hayne says, that we start from the position that it is relevant.

GLEESON CJ:   I think there is an interesting judgment of Justice Dawson’s in which he says this class of evidence is excluded not because it is relevant but because it is too relevant.  It is so relevant it is dynamite.

MR GLYNN:   I am not sure whether that is in Harriman or in Sutton that his Honour makes a comment.  In fact, I had marked a passage from his Honour’s judgment in Sutton to take your Honours to.  Yes, and that is the very point, that it is dynamite but it is dynamite partly because it is relevant and partly because it distracts the jury and may cause them to make their decisions on the wrong basis.  That is why it is generally excluded as being prejudicial.

KIRBY J:   Now, can I ask you, there is a statutory provision that requires the probative and prejudicial to be weighed.  Why are we dealing with common law principles if that is what the Parliament of Queensland has within its powers ordained?

MR GLYNN:   All that Parliament of Queensland has enacted is section 132A, which simply says what the court may not take into account in assessing that issue.

KIRBY J:   Is there a provision on joint trials, a statutory provision?

MR GLYNN:   Yes, section ‑ ‑ ‑

KIRBY J:   Is that one of those that you have mentioned in your ‑ ‑ ‑

MR GLYNN:   It is referred to in the passages and then there is also ‑ ‑ ‑

KIRBY J:   But that is just facultative, is it?  It does not spell out the circumstances in ‑ ‑ ‑

MR GLYNN:   Yes, it sets out a broad set of circumstances in which charges are joinable.  There is no doubt that under that provision these charges are joinable, but then there is a provision – I think we have set out most ‑ ‑ ‑

KIRBY J:   Section 597A?

MR GLYNN:   Yes, which permits the separation of the counts on the indictment by virtue of prejudice or embarrassment to the accused in the conduct of his trial.

KIRBY J:   So it does not really spell it out in a way that swamps the common law in this matter?

MR GLYNN:   No, not in my submission, your Honour.

GLEESON CJ:   Although this is not determinative of the present case, it cannot be the case in principle, can it, that in relation to the charge concerning complainant A the evidence of what occurred concerning complainant B is only admissible if standing on its own it would prove the guilt of the offence against complainant A.  As a matter of principle, that cannot be right, can it?

MR GLYNN:   No, it does not have to go so far as to prove the guilt.  It has to be admissible as evidence in the charge, or evidence in the case on the charge, but it does not have to prove it on its own, and in fact could not.

KIRBY J:   Stripping it away, is the reason for the prejudice that the trial ends up a trial of the accused’s character or the accused’s propensities rather than a trial of whether he did the actual offence?

MR GLYNN:   That is the essential prejudice, your Honour, yes.

HEYDON J:   Mr Glynn, you were sort of distancing yourself a bit from DPP v P before.  Mr Justice Callaway in the Victorian Court of Appeal said it was inconsistent with Pfennig’s Case and therefore was not part of Australian law – that is Best v The Queen [1998] 4 VR 603 at 608. You may wish to look at that.

MR GLYNN:   Your Honour, it is referred to in Pfennig but not necessarily with approval.

HEYDON J:   It is not explicitly repudiated.  It says that is the law in England or that now states the ‑ ‑ ‑

MR GLYNN:   That is right.  It simply is referred to as being the law in England without either adoption or repudiation.

HEYDON J:   But Mr Justice Callaway’s point is that it is just inconsistent with the Pfennig test and therefore not our law.

MR GLYNN:   Yes.  That is probably a view that I would share.  When I read DPP v P - as I said, it has a fuzziness to it, an imprecision, I suppose is a better term, in terms of its application than does Pfennig or the Canadian Case of Handy.

GLEESON CJ:   Yes, but there is something wrong in Pfennig.  There is a sentence in Pfennig that cannot be right.

MR GLYNN:   Your Honour, I will just see if I can find the passage that troubles me and see if it is the one that troubles your Honour.

GLEESON CJ:   The one that troubles me is at 485.

GUMMOW J:   About point 6, “More than that”.

GLEESON CJ:   The sentence in the middle of the page beginning with the words “More than that”.

MR GLYNN:   Yes, I was just marking that as a ‑ ‑ ‑

GLEESON CJ:   It looks like a return to what was said by this Court in Chamberlain and backed away from very quickly in Shepherd.

MR GLYNN:   In Shepherd, yes.  There is little doubt, in my submission, your Honour, that the effect of Pfennig is to suggest that the judge has to be satisfied beyond reasonable doubt of certain things before he can permit the jury to consider them.  Now, that is criticised in the Canadian case of Handy.

GLEESON CJ:   What is the reference?

MR GLYNN:   Handy is ‑ ‑ ‑

GUMMOW J:   It is 213 DLR (4^th) 385.

MR GLYNN:   Yes, that is right, thank you, your Honour.

KIRBY J:   Is that in any way affected by the charter?

MR GLYNN:   Not as I read the decision, your Honour.  The only point, with respect, where it departs from Pfennig is on the standard of the test to be applied by the trial judge where they say that the judgment to be applied by the trial judge is on the balance of probabilities.  I think that is – I am going on my memory here, your Honour – I think that is in paragraphs 73 and 74.

HEYDON J:   The criticism that the Chief Justice just made of Pfennig was one made by Justice Deane in Sutton v the Queen but Justice Deane was a party to the majority reasons in Pfennig.

MR GLYNN:   Yes.  There has been an evolution in this evidence in that initially the evidence was always referred to as similar fact evidence.  It applied to classes of evidence and of recent years, and it is really a relatively recent, in the last 10 to 20 years, that classes of evidence have been disposed of, the requirement for striking similarity has been removed, in other words it is said that it is not required in all cases although it is certainly required, as I read the authorities, still required in cases of identification and its move towards a more centralised and single test where the focus is on the fact the evidence is evidence of propensity and there is a need to, before the evidence can be admitted, pass a test of having a high probative value such as to justify its admission despite the prejudice it engenders.

KIRBY J:   Could you give an example in a case of the kind that is presently before the Court where there was an element that would lift the case from just a series of alleged sexual encounters to one where there would be the striking similarity.

MR GLYNN:   Your Honour, this is just one off the top of my head ‑ ‑ ‑

KIRBY J:   Maybe from the cases.

MR GLYNN:   I could not think of one from the cases, but an example might be if on every occasion the person tied the complainant’s hands behind her back or something like that.

GLEESON CJ:   That is the problem and it is the problem fastened onto by Lord Mackay.  He says it depends on what the issue in the case is.  I would accept what you just said if the issue in the case was identification.  In other words, if there was a masked man who did this and the question was whether it was your client and in every case he did something like that and it was proved that he was the person in one case and then you were extrapolating that to the others, I could accept that.  But where the issue is of consent, you bump up against the problem that you first raised, do you not?  Why would it touch on the issue of consent that ‑ ‑ ‑

MR GLYNN:   I accept your Honour’s point.  That is a mistake on my part.

GLEESON CJ:   Perhaps you might like to have a think about that question over the luncheon adjournment, Mr Glynn, bearing in mind what Lord Mackay said about the fact that the problem of seeking a single formula lies in the fact that there is not always a single problem in these circumstances.  Sometimes it is a question of identification, sometimes it is a question of consent.

KIRBY J:   But even if there was no element of identification, tying up, one assumes, is not so common that it would be irrelevant even if the person knew the accused.  If this was a common feature of his sexual repertoire, then maybe that would be sufficient to make it striking, though we do know from research starting with Dr Kinsey and thereafter that the assumptions of the normalcy of sexual encounters often are not borne out by empirical research.

MR GLYNN:   Your Honour, I am sorry, I am not ‑ ‑ ‑

KIRBY J:   I have concluded what I wanted to say.

MR GLYNN:   If I could return what your Honour the Chief Justice raised, the point that I took probably is in error in that it does not point – well, it does really.  It points to the issue of consent because if you tie someone up it goes to consent.

GLEESON CJ:   Am I right in thinking that in this case consent was the only issue?

MR GLYNN:   No, your Honour.  In two cases the jury were instructed in respect of mistake of fact.

GLEESON CJ:   No, but was it common ground that your client actually had sexual relations with all these complainants?

MR GLYNN:   No.  In fact, he denied sexual relations with M – I know he denied sexual relations with more than one of the complainants.

HEYDON J:   TK, because he was acquitted of that.

MR GLYNN:   K, that is right, and that was one he was acquitted of.

GLEESON CJ:   The issues at trial were more complex than the issue of consent?

MR GLYNN:   Yes, because there was, as it turned out, two cases where mistake of fact was left and he himself denied sexual intercourse or sexual conduct with – I think probably sexual intercourse is a safer term to use ‑ ‑ ‑

GLEESON CJ:   But there was one of the cases where they had evidence of a recorded telephone conversation.

MR GLYNN:   That is in the case of M, your Honour.

GLEESON CJ:   What was his answer to that?  What was his answer to the apparent admissions he made in the telephone conversation?

MR GLYNN:   Can I deal with that after lunch?

GLEESON CJ:   Certainly.

MR GLYNN:   I could not answer that now.

GLEESON CJ:   All right.  We will adjourn until 2.00 pm.

MR GLYNN:   Thank you, your Honour.

AT 1.04 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ:   Yes, Mr Glynn.

MR GLYNN:   Thank you, your Honour.  Your Honour the Chief Justice raised the question with me about the explanation given by the appellant for the telephone call that was intercepted.  Your Honour, there is some background to it and that is the way in which M left.  She was living with her boyfriend and she left her boyfriend under circumstances whereby the appellant was talking to the boyfriend, by arrangement, whilst she climbed out a window, joined a third person who then, with the appellant, drove her to a place called Mena Creek where they saw friends and then eventually went back to his place.  That is essentially to be found at page 700 of the record in volume 2 from lines 5 to 40.  I will not take your Honours to the evidence in detail, but that is the reference. 

Your Honours, in his evidence‑in‑chief the appellant explained, in effect, that the telephone call was part of a plan between himself and M to, as it were, protect her from her boyfriend and enable her, if she wanted, to move back in with him by him taking some of the blame.  That is to be found in the record at volume 3, page 1180 from about 16 to about 23 and then further at page 1186 from about 12 to about 47.  It is not easy to read because his expression is not all that clear, but my submission is that is the effect of it, that, in other words, it was the product of some pre‑arrangement.

GLEESON CJ:   Thank you, Mr Glynn.

MR GLYNN:   Your Honours, I had proposed to take your Honours to some passages from some of the earlier judgments as they do help to perhaps show some of the history of the development of the principle in Pfennig and even – and I discovered this, I must say, to some surprise when I found it – to the concept of the fact that concerned your Honour the Chief Justice at page 485 of the judgment in Pfennig in the judgment of Justice Dawson.

If I could refer your Honours to Sutton 152 CLR 528, initially to the judgment of Chief Justice Gibbs at page 533. Four lines from the bottom his Honour says this:

It remains necessary to consider whether the evidence is relevant in some other than the prohibited way, but even if the evidence is so relevant it will not be admitted unless it is strongly probative or really material.  This was the view accepted by four members of the Court in Markby v The Queen.  The reason for requiring that the evidence should have a specially high probative value is succinctly expressed in an article by Mr Hoffmann in Law Quarterly Review, vol 91 (1975) 193, at p 194:

“Ordinarily similar fact evidence is excluded because it is very prejudicial.  It is unfair to the accused to allow the jury to hear it because they are likely to give it more weight than it really deserves.  But this unfairness disappears when the similar fact evidence actually does have a very high probative value, and in such exceptional cases justice requires it to be admitted.”

The law now affords a double safeguard against the injustice that may be caused by evidence of this kind.  First, there is a rule of admissibility which excludes, as a matter of law, evidence unless it is probative, and strongly probative, of the offence charged; it will not answer that description if it does no more than show bad character or propensity or disposition to commit crime, or the sort of crime charged . . . It would in my respectful opinion be entirely to misconceive the effect of Director of Public Prosecutions v Boardman to think that it does no more than lay down rules of guidance for the exercise of a discretion.  Clearly their Lordships intended to state a rule of law –

His Honour gives some references and then he says:

In Perry v The Queen, I pointed out the importance of the distinction.  It may be that it will not often be necessary to exercise the discretion to exclude evidence of this kind if the rule of admissibility has been correctly applied.

I told your Honours that his Honour referred to the stock in trade argument which was disavowed by his Lordship in DPP v P, halfway down the page just above the second paragraph starting on that page:

It will not be sufficient if the similar acts alleged “are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration”, or if, although not commonplace, they are “the stock in trade” of persons who commit crimes of that particular kind.

KIRBY J:   What page is that?

MR GLYNN:   I am sorry, your Honour, that was at 535.  Before I forget, at page 548 Justice Brennan said about 12 lines down the page:

The prima facie rule of exclusion is not open to doubt.  In adopting this approach, Perry is clearly in the mainstream of settled authority.  Evidence of similar facts consisting in proof of the commission of offences other than the offence charged is therefore a particular category of circumstantial evidence which is subject to a special exclusionary rule.  It is wrong to regard evidence of that kind as undifferentiated from circumstantial evidence generally and to hold, as Wells J held, that there are no categories of circumstantial evidence.

His Honour then approved of a statement by Acting Chief Justice Gibbs in Markby to this effect:

“To be admissible the evidence must have ‘a strong degree of probative force’ . . . or ‘a really material bearing on the issues to be decided . . . it may not be going too far to say that it will be admissible only if it is ‘so very relevant that to exclude it would be an affront to common sense’.

Justice Deane said at 559, the first complete paragraph which actually commences on the page:

In recent cases in this Court (Markby and Perry v The Queen) and in the House of Lords (Boardman), one finds statements to the effect that “similar fact evidence” is only admissible if it possesses “a strong degree of probative force”.  Such statements may well serve as timely admonitions of the need to safeguard against erosion of the general rule of exclusion by ensuring that the admission of “similar fact evidence” is restricted to the case where it is properly and positively seen, when viewed in the context of the evidence as a whole, as having a “really material bearing on the actual issues to be decided” –

Then, finally, if I could come to the passage from the judgment of Justice Dawson at page 564, at the fourth line on the page his Honour says:

The question which arises with similar fact evidence, which because of its prejudicial nature is treated as a special kind of circumstantial evidence, is not only what direction should be given to the jury but whether the evidence is admissible at all.  Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence.

GLEESON CJ:   Stop right there.

MR GLYNN:   That is the point, I know.

GLEESON CJ:   That is what was criticised by the Canadians.

MR GLYNN:   That is exactly right, your Honour.

GLEESON CJ:   They said there is a radical difference between a judge deciding whether evidence is admissible and a jury deciding on the whole of the evidence whether it has been established beyond reasonable doubt that somebody is guilty.

MR GLYNN:   In fact, I have the Canadian case here to take your Honours to, because it is the point of difference between the Canadian case and, as I see it, the only real point of difference between the Canadian case and this Court in Pfennig.  But I was bringing your Honours’ attention to this to show you that it had some history before Pfennig because I must say I thought, and I think many lawyers think, that Pfennig laid down a brand new test that had never previously been referred to.  I must say that certainly was my view until I read this passage.  His Honour goes on:

If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the ‑ ‑ ‑

GLEESON CJ:   “[O]f that evidence”, “a rational view of that evidence”.

MR GLYNN:   Yes.

GLEESON CJ:   On its own?

MR GLYNN:   That is what his Honour is saying.

GLEESON CJ:   That is Chamberlain.

MR GLYNN:   It is similar to Chamberlain, yes, your Honour, but it finds expression then in the majority judgment in Pfennig.  I really read this to give your Honours the development as to how it came about.  It was not as though it was plucked from nowhere.  There was some respectable history towards it.

HEYDON J:   The Pfennig test is different from that.  Under the Pfennig test you view the impugned evidence in the context of all the evidence, do you not?

MR GLYNN:   I think the Pfennig test seems to say you do both, your Honour, but that finally you must look at it against the whole of the evidence.  There is no doubt that Pfennig says that.  But this seems to be part of the history of the development of the principle which was espoused in Pfennig.  That is really all I am bringing it to your Honours’ attention ‑ ‑ ‑

GLEESON CJ:   That has been the great problem that courts of criminal appeal have had with Pfennig, whether it was intended to say you apply that test of looking at this evidence on its own or whether it only really meant to say, as I think Justice Thomas interpreted it, it really only meant to say you look at the evidence in the light of the whole context.

MR GLYNN:   Well, Justice Thomas seems to say that you look at both.

GLEESON CJ:   Yes.

MR GLYNN:   That seems to be the purpose of his two rules.

GLEESON CJ:   He was bound by Pfennig.

MR GLYNN:   Yes, I am not criticising him for it.  I am simply saying that that seemed to be what he was saying. 

HAYNE J:   Pfennig gives controlling weight to the parenthetical clause “viewed in the context of the prosecution case”.

MR GLYNN:   Yes.

HAYNE J:   The question becomes, what is meant by that?

MR GLYNN:   I think that it has been interpreted, your Honour, as meaning that you take the prosecution case as true and you judge it against the background of that prosecution case.  Now, whether that is what their Honours meant, I have to say it is hard to be certain because there does not appear to be anything else in the judgment that makes it plain and, again, as your Honour the Chief Justice has pointed out, it certainly creates for some interesting debate at the Court of Appeal level.

HAYNE J:   But does it mean that at the point of admissibility, because it may be a question that emerges in pre‑trial rulings, that the trial judge on the Pfennig test is to understand the way in which the Crown puts its case and the assertions that are to be made by the Crown and then for himself or herself assess whether the disputed similar fact evidence has a construction that would be consistent with innocence and, if so, excludes it?

MR GLYNN:   Yes.

HAYNE J:   Is that the way in which it would operate if this stood?

MR GLYNN:   Well, that is the way it appears that it should operate as it stands.  I have to say, your Honours, our submission in this case – I am sorry.

HAYNE J:   What is wrong with that if that is the way it is meant to operate?

MR GLYNN:   I am not criticising it.  In fact, your Honour, it seems, despite what the Canadians say, it still leaves room for the jury to make a decision because the jury still have to assess the evidence and decide whether they accept it.  What the trial judge has to do is decide whether he should put it before the jury and give them the opportunity to assess it and accept it.  So it does not remove the jury from the arena.  It simply, perhaps, limits the occasions when they can exercise their function about the evidence.

HAYNE J:   And the conclusion reached in Pfennig was that the particular disputed evidence there was rightly admitted, was it not?

MR GLYNN:   Yes, but that, of course – and I know that there are statements that disagree with the submission I am about to make – was extremely powerful evidence that was advanced in Pfennig and, again, it was evidence, the truth of which was not disputed.  I am just trying to cut short this last passage:

Of course, the question is ultimately one for the jury but if in order to rule that the evidence is admissible the trial judge must conclude (as it is clear he must) that it has a stronger degree of probative force than would lead merely to the conclusion that it is capable of being regarded, apart from propensity, as pointing to guilt, then it seems to me to follow that before admitting the evidence the trial judge himself must conclude that a reasonable jury would, if they accept the evidence, regard it as being inconsistent with innocence.

But one of the points I wanted to draw from that was the significance of the high probative value that the evidence must have, that is in his Honour’s view, before it can be admissible – whoever applies the test, but it must have that high degree of probative value to be admissible, otherwise the exclusionary rule tends to be too easily defeated.

Your Honours, I said I would come to the Canadian case of Handy 213 DLR (4th) 385. It is a single judgment of Justice Binnie but it is the judgment of the court as such. At page 405, paragraph [55] the court says:

Similar fact evidence is thus presumptively inadmissible.  The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

Your Honours, he later dealt specifically with Pfennig and he said that the test, that is the judge being satisfied beyond reasonable doubt, was setting the gatekeeper test at too high a level and that the more appropriate level was on the balance of probabilities.

GLEESON CJ:   Where does he deal with that?

MR GLYNN:   I will just see if I can find that.

GUMMOW J:   Page 415.

MR GLYNN:   Pages 415 and 416, your Honour, paragraphs [95], [96] and [97].  They say in [97]:

In my view, the “conclusiveness” test takes the trial judge’s “gatekeeper” function too far into the domain of the trier of fact.

It is really a question of degree as to how far the trial judge must go.

HAYNE J:   And upon what hypotheses.  Is the trial judge to assume, for the purpose of application of the test, that the other prosecution evidence is to be accepted?

MR GLYNN:   Yes, I do not think that that is actually dealt with in Handy, your Honour.

HAYNE J:   It is touched on, though not drawn out, in paragraph [95] by the parenthetical “taken together with the other evidence in the case”, and much seems to turn on what significance is given to that parenthetical.

MR GLYNN:   Because, your Honour, where you have here a series of disputed events ‑ ‑ ‑

HAYNE J:   Yes.  This case may present other aspects and other issues, but confining ourselves for the moment to what is meant in Pfennig, it seems to me that something at least may be said to turn on what is meant by that, “taken with the other evidence in the case”.

MR GLYNN:   If I can put this in a general way.  In the Queensland cases the approach seems to be that one takes the prosecution case as it is presented.

HAYNE J:   In this case it may be that the issue becomes whether demonstrating that the accused man had intercourse with A without her consent says anything about whether B gave her consent to other transactions of a sexual kind occurring on a different occasion.

MR GLYNN:   The very point I make, your Honour, is that it is really not even logical to permit that sort of conclusion to be drawn because what you are saying is that because one woman has a particular state of mind, you can draw an inference that another woman has a similar state of mind, and that is why ‑ ‑ ‑

HAYNE J:   That is slid over perhaps by putting it in terms of would all these complainants be telling lies.

MR GLYNN:   Yes.  If one adjusts the question to is this person in the habit of having sexual intercourse without the consent of the other party, then you get directly into the field of mere propensity and nothing further.  So that, whichever way one approaches the test adopted by the learned trial judge and which seems to have found acceptance in the Court of Appeal, you are left with this – either it is evidence of mere propensity or it asks the jury to decide a question that logically one step does not flow from the other.  Simply because one woman says “I didn’t consent” gives no weight or no assistance with whether or not another woman did or did not consent.

MR GLYNN:   Thank you, your Honour.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 10.15 am on Tuesday of next week.

AT 3.55 PM THE MATTER WAS ADJOURNED