Phillips v The Queen

[2005] HCATrans 455

[2005] HCATrans 455

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B56 of 2004

B e t w e e n -

DANIEL CRIS PHILLIPS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.37 AM

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 applicant.  (instructed by Robertson O’Gorman)

MRS L.J. CLARE:   May it please the Court, I appear with my learned friend, MS S.G. BAIN, for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Glynn.

MR GLYNN:   Your Honours, the applicant was charged, amongst other things, with six counts of rape against five complainants and one count of assault with intent to rape against a sixth complainant.  He was convicted of three counts of rape and on two alternatives of the offence of unlawful carnal knowledge with respect to four complainants and of assault with intent to rape in respect of a fifth complainant.  The rape offences were alleged to have been committed at Innisfail over a period of about 16 to 17 months and the assault with intent to rape in Brisbane about 18 months after the last of the rape offences.  All of the matters were tried together.

There are two issues which are raised by the application.  The first relates to the joint hearing of all of the charges, which really turns on the issue of whether the evidence on each of the offences was admissible on the trial of each of the other offences, and for that we rely on De Jesus v The Queen, which is in our list of authorities.  It is our submission that the evidence of each count on the trial of the others amounted to no more than evidence of a propensity to commit sexual assaults when an opportunity arose.

The substance of our submission is derived from the joint judgment of the majority in Pfennig v The Queen.  There the Court said that the categories of evidence of propensity which were admissible in proof of an offence were wider than had previously been accepted that required the evidence for admission to pass what Justice McHugh described in KRM v The Queen at page 231 as “a stringent test”.  Pfennig established that for propensity evidence to be admissible ‑ ‑ ‑

GUMMOW J:   Justice McHugh dissented in Pfennig, did he not?

MR GLYNN:   He did, your Honour, yes.  As I said, he later then described the test as a stringent one.

GUMMOW J:   Yes.

MR GLYNN:   Pfennig established the proposition that to be admissible the propensity evidence must have no reasonable explanation other than as supporting the inference that the applicant is guilty of the offence that is charged.  The basis for the admission of the evidence in this case is summarised in the evidence of Justice Williams, who really gave what was effectively the judgment of the court, at paragraphs [58] to [61] of the application book.  It is a fairly lengthy passage, pages 321 to 323.  It might be quicker if I let your Honours simply read ‑ ‑ ‑

GUMMOW J:   If one goes to paragraph [61] perhaps at the top of 323. What do you say about that?

MR GLYNN:   Your Honours, if you go, for example, perhaps firstly to paragraph [58] at the bottom of 321, where his Honour groups the features.  These features alone or in combination are unremarkable in offences of this type.  The use of essentially – for example, if you look at (c) and (d):

(c)      All of the girls were within the accused’s extended circle of friends.

GUMMOW J:   This is all happening in what town?

MR GLYNN:   Innisfail, your Honour.  It is, as your Honour would appreciate, a fairly small community.

GUMMOW J:   Yes.

MR GLYNN:  

(c)      All of the girls were within the accused’s extended circle of friends.
(d)      In all case each of the girls was readily able to identify the accused, and he must have known that.

Now, that is really making two points out of one point and it really shows the artificiality of this approach of building up a number of little points of similarity and trying to justify the admissibility of the evidence on the basis that thereby is created some particular feature of similarity, whereas what you have really is in combination a series of unremarkable points.  I should say there was a joinder application in respect of the five Innisfail complainants and then a later application was to add the Brisbane one.  At paragraph [60] there is again summarised the bases for all of the joinders, which change slightly but still retain the same essential features.  In Pfennig, which is No 7 of the applicant’s authorities in the booklet, at page 482, starting at about the middle of the page, the Court says:

Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged.  The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred.

Of course it is a combination of the improbability and the degree of similarity, whereas what seems to have been the basis of the trial judge’s focus was simply on the aspect of improbability rather than on the required degree of similarity in the various offences.

GUMMOW J:   I think it can be said against you that the judge’s direction was a very strong and clear one.

MR GLYNN:   Your Honour will see there is no complaint about the judge’s direction, I accept that.  The problem with it does not lie in the direction.  It lies in fact that all of this evidence impermissibly went before the jury.  With the best will in the world, as De Jesus makes the point, juries will find it impossible, particularly in sexual offences, to put out of their minds all of the other evidence if it is not admissible on the particular count that they are considering.  The difficulty you have here is that even though there is no complaint about the careful directions on this point, that evidence was before the jury and it was impermissibly before the jury.  That really is the issue. 

That passage continues over until the end of the first paragraph on 483.  Towards the end the majority say:

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.

Then further down the same page in the last paragraph, the third sentence, the Court says:

Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial.

It is the identifiable hallmark that is critical, in my submission, to the justification for its admission.  In my submission, those matters identified in the judgment of the Court of Appeal do not bespeak any particular hallmark such as to justify the admission of the evidence, given its highly prejudicial effect.

The learned trial judge, as I submitted to your Honours, really placed his emphasis on part only of the principle, and this can be seen by looking at pages 7 and 8 of the application book, where his Honour was making a ruling on the first of the joinder applications.  Your Honours will see that starting on page 7 his Honour refers to a passage from Hoch where there is a reference to “sufficient similarity to each other as to make evidence on one happening admissible in proof of the others”.  Then he goes to a second passage, where the Court said:

“Certainly that is the thrust of its probative value.  That value lies in the improbability –

and his Honour emphasised “improbability” –

of the witnesses giving accounts of happenings having the requisite degree of similarity –

and again in the next passage, again he underlines “improbability of similar lies” and again in the next passage he underlines “improbability”.

GUMMOW J:   Yes.  Part of the problem is that Hoch pre‑dates Pfennig and the Court had not been speaking particularly with one voice in the earlier cases, and Pfennig was meant to draw it all together.

MR GLYNN:   It did, but these were passages that really were approved of in Pfennig.  That is the significance of them.  The fact is that his Honour has focused on improbability of what he describes in parts as “similar lies”, but he fails to focus, it is submitted, on the requirement of the happenings having the sufficient degree of similarity, which is really part of the concept.  What you end up with is this artificial collection of points of similarity, but not such as to raise a proposition which could be described as a hallmark of the evidence.  The evidence was admitted for a single purpose, as is made plain by the summing up.  It was to establish the improbability of all of the girls having lied when they said that they did not consent to sexual intercourse. 

The relevant part of the summing up is extracted in a lengthy passage in the judgment of Justice Williams at paragraph [67], which is at page 323 of the application book, and if I could take your Honours just briefly to a couple of passages there.  It begins at the bottom of 323, and the passages I am going to are at 324 and 325.  At line 33 on page 324:

You may use it to measure the probability of all six girls telling a similar lie.

At line 39:

If PS 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.

At line 45:

So you ask yourselves this, what are the probabilities that all six girls have lied when they say they did not consent –

and then there is a similar passage at line 49, and again at line 6 on page 325. 

It is our submission that propensity evidence, whether it passes the stringent test laid down by the Court in Pfennig or not, must be directed to proof of conduct of the accused and not to the state of mind of the complainants.  That is really what it was directed to here.  It was directed towards establishing that if one girl did not consent, then the evidence could be used to establish that the other girls did not consent as well.  In my submission, that is not a proper use of evidence of this sort.

HEYDON J:   But your client’s “defences” varied, did they not?

MR GLYNN:   They did, your Honour.

HEYDON J:   As to some he said there was consent, and as to others he denied the actus reus.

MR GLYNN:   He said it did not occur, and my learned friend wrongly suggests that K was one of them, but in respect of two others, L and W, mistake of fact was also allowed to go to the jury, but his defences did vary from complainant to complainant.

In BAR, which is referred to in our list of cases as No 1, there are some passages from the judgment of the Court of Appeal in Queensland which we would submit are apposite to this particular case.  Briefly the facts in BAR was that a girl, K, had made complaints against the appellant, as had a girl, B.  There were, I think, 18 counts in respect of K to which he pleaded guilty, and seven further counts in respect of B to which he pleaded not guilty.  The evidence in respect of the K counts was put before the jury on the trial of the evidence in respect of the B counts.  At paragraph [9] Justice McPherson in his judgment says:

This, in short, was an instance in which the evidence of the similar facts adduced by the prosecution to prove its case on counts 18 to 25 was not disputed either seriously or at all.  It is, however, at this point that the legal problem arises.  It cannot, from the mere fact that one witness at the trial tells the truth, be logically deduced that any other witness at the trial is also doing so.

At paragraph [12] of the same judgment, in the last three sentences of that paragraph his Honour, referring to Pfennig v The Queen, says:

When one comes to apply it to the evidence of the complainant in this case, there can be only one answer to the question posed.  A rational or reasonable view of K’s evidence that is consistent with innocence is available here.  It is that, although the appellant committed the offences again K, he may not have performed the acts that B claimed were committed against her.

Then Justice Chesterman, who was the second judge in the majority, said at paragraph [97], which is at page 28 of the judgment, said this:

The evidence in question here does not pass this test.  The circumstances that the appellant indecently dealt with, and sexually assaulted, K over nine years does not make it objectively improbable that he did not indecently deal with B in a later time span of five years.  The similar fact evidence is reasonably consistent with the appellant’s innocence on counts 18 to 24.  It is not objectively improbable that he molested one girl but not the other.

Our submission is that in this case what in fact has been done with the propensity evidence is to invite the jury to say, “Because if you find that he committed the offence in respect of one you can use that – that is, that that girl didn’t consent – to find that the second girl didn’t consent”.  Of course, it is our submission that that is a totally impermissible use of propensity evidence.

HEYDON J:   So you really have two points then, have you, that point plus an anterior point that there was not sufficient similarity.

MR GLYNN:   That is right, your Honour, yes.  Your Honours, there is reference by my learned friend to the fact that there were some acquittals.  In respect of one person he was acquitted totally – that is the girl K.  The girl K had previously been his girlfriend.  Whether that formed the basis for the jury’s verdict of course is mere guesswork.  I did not put it on my list of authorities - I gave it to my learned friend this morning – I brought copies of Glennon 179 CLR 1, where there was a short passage which deals with this. May I have your Honours’ leave to refer to it, please?

GUMMOW J:   Yes.

MR GLYNN:   The passage to which I refer is about halfway down page 9 in the main paragraph where the majority say:

It is significant that the jury acquitted the applicant on counts involving two of the young people.  This fact demonstrates that, in relation to some charges, the jury accepted the applicant’s defence at least to the extent of finding a reasonable doubt as to his guilt.  In those circumstances, it is possible that, had the trial judge not misdirected them as to the applicant’s veracity, the jury might have accepted the applicant’s testimony in respect to the Palmieri incident and acquitted him on that count.

The point that I seek to make is that the fact that the jury acquitted on some counts, or found him guilty of lesser offences on some counts, really does not dispose of either of the principal questions.

GUMMOW J:   Yes.

MR GLYNN:   Your Honours, if I could pass to the second point, unless there is something that I ‑ ‑ ‑

HEYDON J:   Well, there a couple of red lights in front of you.

MR GLYNN:   I am sorry.

GUMMOW J:   Tell us what you want to say about the second point, Mr Glynn.

MR GLYNN:   Your Honours, in respect of the inconsistent verdicts, they are justified by Justice Williams in his judgment at paragraph [127].  He says that one of the reasons may have been that the jury had been given directions about mistake of fact.  There were given no directions about mistake of fact in respect of M.  On the evidence in respect of M, there could never have been an issue of mistake of fact.  She complains of a threat with a bat, she complains of crying and saying “No” and the accused in his evidence denied sexual contact of the sort alleged by M. So the question of mistake of fact could never have arisen.

I was going to refer your Honours to a couple of the passages in Mackenzie, which are at pages 367 and 368, where there is approval of statements from a judgment in South Australia of Kirkman, where there is

reference to the fact that a jury may sometimes take a merciful view of the evidence.  Of course, here it could be hardly said that the jury took a merciful view in that, firstly, they did not acquit him entirely.  They convicted him of an offence of unlawful carnal knowledge in respect of the first.  Secondly, if they were going to take a merciful view, one would have expected it would have been in respect of the second count, where on the complainant’s evidence the bat was not produced, there were no threats with the bat and on her own evidence her protestations and denials of consent were muted as compared to the first.

GUMMOW J:   Thank you.

MR GLYNN:   Thank you, your Honours.

GUMMOW J:   Yes, Mrs Clare.  What do you say as to the last matter Mr Glynn was addressing us on?

MRS CLARE:   Well, the applicant has to show, to succeed, that there was no reasonable explanation, that is clear.  It was a case where the jury could simply have taken the view that the Crown had overloaded the charges in respect of her for what was essentially one episode of rape.  It was divided only by a cigarette break and it then resumed.  It was not a long episode.

The point my friend makes about the bat should not be misinterpreted.  The complainant made it clear that she was aware that the bat was present at all times.  She was afraid of the bat, and that was clear from other evidence in relation to the telephone call that she made and tape‑recorded subsequently.  It was a very strong case in relation to this complaint because, firstly, the complainant left in the middle of the night to escape from him.  She fled to some neighbours.  She was in a place where she had never been before, she did not know.  She had to get assistance then to travel into town at 4 o’clock in the morning.  She made a complaint to a rape crisis centre or a youth shelter and then to the police that very day.  That very day she telephoned the applicant, and the recording of that interview contains admissions to the use of the bat as a weapon, or to impose a threat.

It also contains admissions which could be easily interpreted as admissions to non-consensual activity, consistent with what she said.  The applicant apologised for that activity, said he knew that she had said no – or indicated that he did not disagree with her when she was saying that she had said no, and apologised for his behaviour and said that he was deeply sorry.

There is also the videotape of the before and after shots taken by him at a time when they were cavorting around, drinking and having fun, and then another part of that videotape shows the complainant withdrawn – a far different state lying naked and showing her genitals.  At the end of that segment there is what Justice Williams refers to a “girlish smile”, I think.

HEYDON J:   “Laughing girlish smile”.

MRS CLARE:   “Laughing girlish smile”.  The complainant’s evidence was that she was doing whatever she needed to do because she was afraid that he was going to assault her.  Her evidence was that he had thrown the bat out the window.  My recollection is that that also was supported by the telephone call and also by the fact that the police found the bat outside the window when they arrived.  So it was an extremely strong case.  It may have been that the jury just thought that the Crown should not have been charging two charges in respect of what really was one episode.  They took a similar course with counts 1 and 2, which concerned a charge of indecent assault and rape, and they convicted only on the second count.

In respect of all other complainants where there was in some instances protracted activity, there was only one charge.  So the jury may have, consistent with that, thought that it was better simply to leave the one count of rape or, alternatively, they may have concluded that they should give the applicant the benefit of the doubt in relation to consent for the first part of what happened, and then being satisfied that the continuation of that just could not be mistaken by anyone in the applicant’s position.  Does the Court wish me to address the similar fact point?

GUMMOW J:   Yes, in particular, this construction of this category.  The first time it is constructed seems to be on page 9, paragraph [29].

MRS CLARE:   These are the lists of similarities.

GUMMOW J:   Yes, so-called similarities.

MRS CLARE:   What needs to be understood, in my respectful submission, from the beginning is that this was not a hallmark case, nor did it need to be.  My learned friend has quoted to you from Hoch that the position in Hoch and the references to similar fact evidence, striking similarity, were dealt with by the joint judgment in Pfennig at page 482 where, after quoting from Hoch at the top of the page in relation to “striking similarities”, the Court said:

This passage should not be understood as asserting that “striking similarities” or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.

The Court then went on to lay down the test that was in fact relevant; that is to say that there needs to be a distinctive propensity and a cogent connection between the issue at trial and the evidence sought to be admitted.

HEYDON J:   Which precise passage are you referring to?

MRS CLARE:   Perhaps the best in relation to that is over the page at 483.  At the bottom of that page:

Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial.  On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case.

Then over the page the Court goes on to talk about the need for:

objective improbability of some event having occurred . . . in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. 

That is the test laid down in Pfennig, and that is the way that his Honour approached this in determining the issue of whether or not the evidence ought to be admitted and the - although he mentions those other lists of similar features, at the crux of his decision was his assessment that the common feature, the key to all of these cases, was this ‑ ‑ ‑

GUMMOW J:   Was what?

MRS CLARE:   - - - ability to be identified and a reckless disregard for that fact, that his behaviour was bold in the face of what ordinary people might see as absurd and dangerous behaviour, though he was liable to be discovered because the girls knew who he was and yet he continued.  So it was persistence in the face of resistance with those who could identify him, and that is the point his Honour was making.

GUMMOW J:   Part of the trouble with Pfennig is that these statements are pitched at such a high level of generality.

MRS CLARE:   Yes, and it is only by looking at the ‑ ‑ ‑

GUMMOW J:   And perhaps circularity too.

MRS CLARE:   But in relation to a case like this, which really does not rely on striking similarity but just on that distinctive feature, it then becomes the question, as the Court said, of objective improbability.  It is the combined force of those multiple cases which then determines ‑ ‑ ‑

GUMMOW J:   What do you say about the Queensland Court of Appeal case in ‑ ‑ ‑

MRS CLARE:   BAR?

GUMMOW J:   BAR, yes.

MRS CLARE:   That is a different case because it was a case that really needed striking similarities because there were only two girls involved.  This is a case where, in line with those cases referred to at page 321 of the judgment, quotes from Sims and also Boardman, where it is the combined force of the evidence that really reached the degree of cogency, that is the objective improbability.  The Court of Appeal in Sims, as quoted at page 321:

“The probative force of all the acts together is much greater than one alone –

is an obvious statement.  So it comes down to what cogency can be gained from experience and logic, to ‑ ‑ ‑

GUMMOW J:   Just tell me again what the crystallised factor is here.

MRS CLARE:   It is the fact that the applicant, knowing that he could be identified, in each case persisted in the face of resistance with a ‑ ‑ ‑

GUMMOW J:   Clearly a young person in a not particularly large country town.

MRS CLARE:   Yes.

GUMMOW J:   Some 16 years of age, was he not?

MRS CLARE:   I think he was 18 at the time of the last offence, which was in Brisbane.

GUMMOW J:   He started off at 16, did he not?

MRS CLARE:   He started off at 16, that is right.

GUMMOW J:   Yes.  Now, what about him?

MRS CLARE:   And his Honour pointed out ‑ ‑ ‑

HEYDON J:   The reckless disregard of the consequences; is it suggested there were people nearby who might have, as it were ‑ ‑ ‑

MRS CLARE:   Yes.  In most cases there were other people nearby.  For example, in the last instance his mother was at the house.  In other instances there were a couple of people there for what had been a social event or a party.  In relation to BS there were parents in the next room.  So they have – when his Honour says “reckless disregard”, that was a very real point.  As his Honour pointed out, this is a case where it would be likely if these matters were tried individually that defence counsel would come along and say to the jury, “This is so unlikely that anyone would behave like this, in such circumstances where they are bound to be caught, where they face such a high risk of discovery”, and yet here we have six instances where girls had no contact with each other before they made complaints; each saying the same thing, and that was where the probative force came in this case.

GUMMOW J:   All right.

MRS CLARE:   Thank you.

GUMMOW J:   There will be a grant of leave in this matter.

AT 11.13 AM THE MATTER WAS CONCLUDED