R v Dennis Bauer (a pseudonym) (No 2)

[2017] HCATrans 269

[2017] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2017

B e t w e e n -

THE QUEEN

Applicant

and

DENNIS BAUER (A PSEUDONYM) (NO 2)

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2017, AT 10.12 AM

Copyright in the High Court of Australia

MR B.F. KISSANE, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the applicant.  (instructed by Solicitor for Public Prosecutions (Vic))

MS C.A. BOSTON:   May it please the Court, I appear on behalf of the respondent.  (instructed by Doogue + George)

GAGELER J:   Yes, Mr Kissane.

MR KISSANE:   Thank you, your Honour.  Your Honours will have noticed that in the court below there were four discrete grounds on which the respondent succeeded.  The main reason we are here in this Court is grounds 2 and 3, although we say that the court below erred in relation to grounds 1 and 4 as well. 

Ground 1, in short – it is a short point – was the construction of a statutory test that involved a discretion of the trial judge.  There were a number of matters that were required to be taken into account in relation to that statutory test which related to the use of evidence that had been recorded at a previous trial.

What we say is that in relation to that test the court below transposed one of those factors, that is, the availability or willingness of the complainant to give evidence, and turned that into a requirement that the Crown establish an unwillingness to give evidence and a requirement that that unwillingness be established by evidence, albeit that in the trial court there was no application by defence counsel to cross‑examine the complainant whose evidence was to be pre‑recorded.  The trial judge went through each of the factors. 

What we say is that availability or willingness was simply one factor that the court was required to take into account.  What the Court of Appeal has done is to transpose that into a requirement for the Crown to establish unwillingness.  We say that the court below was wrong in relation to ground 1.  We are on strong grounds there in relation to the statutory construction.

Ground 4 was a ground that related to complaint ‑ what is certainly known at common law as complaint evidence.  It is evidence submitted under section 66 previous representations, in this case, of the complainant.  The court below found that that evidence ought not to have been admitted on two bases:  one, it ought to have been excluded under section 66; and, secondly, that section 137 required that it be excluded.

In our submission again the court below erred, and plainly so.  The evidence in question, in our submission, was plainly fresh in the memory of the complainant witness, who gave evidence that the conversation occurred.  The conversation was at the end of the period that related to the offending.  So this is not a circumstance where there was a gap of one year, five years or 10 years.

GORDON J:   What were the relevant events, though, for that complaint evidence?

MR KISSANE:   The complaint evidence was to some extent general, your Honour, and it was evidence that a number of activities had occurred.  One of those was that, during the period of the offending, the respondent had played pornographic videos to the complainant and that she had been then requested to act out those videos.  That was a general complaint – an uncharged act, really, although it was a specific complaint in relation to ground 1.

EDELMAN J:   Does not the generality of the complaint and the length of the period of time militate against it being fresh in the memory?

MR KISSANE:   Except that, your Honour, it was a complaint that was made at the end of the period and it was at least part of the complaint – that is, that she had been interfered with by the respondent and, in addition to that, that he had played pornographic videos to her and asked her to act out those videos.  They were matters that covered the whole of the period, so, although it was general, it is not a situation that it occurred some time or some years after.  The complaint that was made, and particularly the one about pornographic videos, which she gave evidence that that occurred through the period.  So she was talking about matters that had either just stopped ‑ the evidence was not clear – or perhaps had not stopped at all.

GAGELER J:   Your point about your proposed ground 4 is that you have a strongly arguable case, not that ground 4 in itself would warrant the grant of special leave to appeal, as I understand it.

MR KISSANE:   Yes.  As I indicated to the Court, the reason we are here is in relation to the tendency argument.  That is ground 2.  Ground 3, the severance argument, really follows on from ground 2, in our submission.

GORDON J:   Is your complaint in relation to ground 2 principle and application of principle?

MR KISSANE:   It is both principle and the application of principle, your Honour.  We say that if the majority in IMM is applied then the court below should have allowed the evidence of uncharged acts, the evidence of TB, the evidence of the charges to be admitted as tendency evidence on the basis that, taken together, that body of evidence showed that the ‑ ‑ ‑

GAGELER J:   Mr Kissane, I think we might be assisted by hearing from Ms Boston at this stage.  Thank you.

MR KISSANE:   Yes.  Thank you, your Honour.

MS BOSTON:   Your Honours, in respect of ground 1, it is the case that in almost all cases a complainant is going to prefer not to give evidence.  It is just a given.  It is an inherently stressful experience.  It cannot be the case that in every case where an adult complainant of a sexual offence prefers not to give evidence that the default position is that their pre‑recorded evidence be replayed.  That just cannot be what Parliament intended.  In fact, it is not what the words say, and it is apparent from the statement of compatibility that that was not what Parliament intended either.

The court below has carefully considered the relevant legislation and the matters that were put before the learned trial judge and has uncontroversially, in my respectful submission, found that that pre‑recorded evidence ought not to have been played, on two distinct bases.  The court was right to conclude, in my respectful submission, that a preference not to give evidence did not mean that it was in the interests of justice for the complainant’s recording to be played.  I do not propose to speak more about that ground in the circumstances, given that it is not the main issue relied upon by the applicant.

In respect of the complaint, my learned friend submitted that it is not a circumstance where there is a gap of one year.  That is not the case.  The alleged offending commenced in around 1988 and concluded in around 1998.  The timing of the complaint itself cannot be determined with any precision.  The complaint witness said that she could not exactly recall what happened because it happened so many years ago.

In terms of the substance of the complaint, it was a matter of the complaint witness AF asking questions inviting answers in respect of particular pieces of conduct.  For example, she asked whether he tossed him off or sucked him off.  RC replied in the affirmative in respect of those matters.  The last charge that related to either such conduct was in 1990 to 1992, in respect of the allegation that he had forced her to masturbate him, and between 1992 and 1994, in respect of penile oral penetration.  The earliest time at which the complaint could have been made was in 1997 and as late as 1998.  It is actually more than a year.  It is at least a matter of some three years and up to eight years.

GORDON J:   So you have two points in relation to ground 4:  one, it not being fresh, on your case; and, second, the nature of the complaint?

MS BOSTON:   That is correct, your Honour.

GORDON J:   It is the manner in which it was adduced.

MS BOSTON:   That is correct, your Honour, and they are the two fundamental matters which caused the court below uncontroversially, in my respectful submission, to conclude that it had not been established that the matters being represented about were fresh in the complainant’s memory when she made them.  Therefore, it simply was not admissible evidence under section 66 of the Evidence Act and in any event ought to have been excluded pursuant to section 137.

Quite apart from the applicant’s arguments about grounds 2 and 3, this ground alone was clearly the right decision in the court below.  A retrial was accordingly clearly the correct result.  It is not an appropriate case, whatever view the Court might take about the other grounds, for those matters to be determined.  Inadmissible evidence was clearly before the court which ought not have been.

The other problem with that complaint was that there were inconsistencies between what RC said to AF with the other evidence in the case.  In that complaint, she was asked by AF whether the respondent had fingered her.  She said that he had not.  Many of the allegations ultimately were that the respondent had touched and penetrated the complainant’s vagina with his finger.  So there were internal inconsistencies.  She also told AF that she was the first person that she had told about this.  But, by RC’s own evidence, she had already told another friend and her mother when she was 12 years old. 

Pausing there, those witnesses were not called.  RC gave evidence about complaining to a number of people, and none of those witnesses were called.  The only complaint witness, to use that term, who was called was AF.  The complainant also told AF, in that same conversation, that her foster mother, JW, was mean to her, made her do chores, go to bed at 4 o’clock, and make her own dinner.  All of the other evidence in the case showed that that was not the case.  RC’s own half sister, TB, denied that that was the case, as did the foster mother, JW. 

To summarise in relation to that ground, the court below clearly reached the right decision in relation to that ground, and that alone is a reason to refuse special leave.

GAGELER J:   Let us just explore that for a moment.  The court has directed that there be a new trial.  On the reasoning of the court, that new trial could not include charge 2, I think.

MS BOSTON:   Correct.

GAGELER J:   So grounds 2 and 3, treating them as tied together, are still relevant to the working out of the order that has been made, even if you are right about ground 4.

MS BOSTON:   Yes, I accept that, your Honour.

GORDON J:   What do you say about ground 2?

MS BOSTON:   There is no point of principle, in answer to the question your Honour asked my learned friend in his submissions.  The court below has very carefully considered the judgments of this Court in both Hughes and IMM and has very carefully drawn out the relevant principles and has, on the facts of this case, determined that the evidence did not reach the level of having significant probative value, as required by section 97.  Turning in particular to the evidence of TB ‑ ‑ ‑

GORDON J:   What was the tendency that was the subject of the notice?

MS BOSTON:   The tendency the subject of the notice is set out at application book page 151.  This was a further amended notice.  It recited in part:

The tendency sought to be proved is the tendency of [the applicant] to act in a particular way, namely:

i.to have a sexual interest in his foster daughter [RC] . . .; and

ii.a willingness to act on that sexual interest in respect of [RC] –

The notice itself simply set out the 18 charged offences plus six uncharged acts.  It did not give any assistance to the learned trial judge as to which purported tendency evidence would be admissible in relation to which charge.  That is of course something which this Court has said in Hughes must be considered, that the proposed tendency evidence must be considered in respect of each charge.  I should pause there. 

In argument in the County Court – this was before Hughes – senior counsel for the respondent had taken issue with the broad‑brush nature of that notice.  Ultimately, the court below found it did not need to make a decision about whether the notice was defective ‑ notice, of course, being a precondition for admissibility under the Evidence Act.  But it was clearly defective broad brush, not in accordance with what this Court has required in Hughes. 

EDELMAN J:   Do you maintain that the source of the tendency evidence was properly characterised as coming from a single complainant?

MS BOSTON:   That is not what the court below said, with respect, your Honour.  Certainly as regards the evidence of RC, that is what the court below was saying.  In this case the jury was given no direction about the starting point for tendency reasoning.  For example, it was open to the jury, on the directions that they were given, that they could reject TB’s evidence but nevertheless engage in tendency reasoning as between the evidence given only by RC.  Certainly, reasoning as between RC’s evidence is bootstrap reasoning. 

As for TB’s evidence, the court below properly, in my respectful submission, characterised her evidence as vague.  The court found that it did not even satisfy the first of the two considerations which this Court set out in Hughes when a trial judge is to determine whether evidence has significant probative value.  It did not even support the tendency alleged in the notice.  If I can go to the evidence itself ‑ ‑ ‑

EDELMAN J:   Just before you do that, in relation to this single complainant point, how do you say paragraph 64 of the Court of Appeal’s reasons should be understood?

MS BOSTON:   Paragraph 64 of the judgment of the court below, your Honour?

EDELMAN J:   Yes.

MS BOSTON:   Paragraph 64 of the judgment of the court below is simply another way of expressing what the majority of this Court said in IMM.

EDELMAN J:   But none of that would be relevant if it were not thought that there were a single complainant.

MS BOSTON:   It is relevant to the extent that, because of the broad brush way in which the evidence was left to the jury, they were permitted to engage in tendency reasoning only between the evidence of RC, so to that extent it is relevant, with respect.  It is consistent with what the majority of this Court said in IMM, paragraphs 63 and 64. 

There is probably no reason for me to read that out, but your Honour Justice Gageler also said something about that in that same case, at paragraph 107.  It is just a matter of logic, in my respectful submission.  If you have evidence from the one source, saying, “This happened on another occasion,” how can that possibly, as a matter of common sense, make it more likely that they are telling the truth about another occasion?

EDELMAN J:   Unless, of course, it is supported, as in this case by TB.

MS BOSTON:   I will come to that, your Honour.  It is not supported, with respect, because of the reasons of the court below.  I refer in particular to paragraph 82, which appears at application book page 174.  That is where the court below points out that the event in 1990 – it was actually before 1990.  It was when TB was aged four years old – this is the witness.  She gave evidence that the respondent had placed RC’s hand on his penis.  The respondent was at that time in the bath with TB, aged four ‑ gave evidence that RC came into the bathroom and placed RC’s hand on his penis.  There was no evidence about where RC was at that time, whether she was also in the bath by the time that that happened. 

She also gave evidence that there was a washer, a flannel, on the respondent’s penis at that time.  No evidence about whether that washer was still there at the time that the respondent was said to have placed RC’s hand on his penis.  To that extent it is isolated.  It is not inherently sexual in the sense that it is in a bath, possibly with a washer, a flannel.  Again, four years old.  She subsequently denies, in 2000 ‑ when she speaks to police she is told about RC’s allegations.  She denies having seen anything relevant about sexual offending. 

Then in 2010 she ultimately, after her girlfriend complained of being indecently assaulted by the respondent – that is the point at which she, for the first time, makes these allegations of having witnessed these events.  She gives the evidence in 2013, 25 years after, as a four‑year‑old she is said to have witnessed this incident in the bathroom.  The jury was permitted to reason that in those circumstances that made it more likely that the respondent committed the charged offences.

In respect of the uncharged act, the court below also correctly found that TB’s evidence was too vague.  She said she was no older than six or seven at the time of this alleged incident.  So it is some 22 years before she finally gave the evidence.  She only knew that it was the respondent in the bed with RC because of his voice and because the foster mother, JW, was out somewhere.  She was not even able to see clearly enough to be able to identify him. 

That gives some indication as to the strength of that evidence - inherently not a sexual matter – too vague, too vague to permissibly support tendency reasoning.  There is no reason for this Court to reconsider what

the court below has very carefully already done by careful consideration of all the transcript.  In terms of severance ‑ ‑ ‑

GORDON J:   Do you accept that it follows with ground 2?

MS BOSTON:   It really does.  They are bound up together, in my submission, one way or the other, because of the very highly prejudicial nature of tendency evidence.  Of course, although the common law has been abrogated by the Evidence Act, the inherent prejudice in tendency evidence, which justified the very significant restrictions on tendency evidence at common law, still exists.  Your Honour Justice Gageler, of course, in Hughes talked about some of those prejudices.  If there is nothing further that I can assist the Court with, those are my submissions.

GAGELER J:   Thank you.  Mr Kissane, it would be helpful if you would address the factual submissions made concerning ground 2.

MR KISSANE:   Yes, your Honour.  We say in relation to ground 2 that the evidence was capable of sexual interest and the tendency that was sought to be used in the trial court was a sexual interest in the complainant and a willingness to act on that.

GORDON J:   Just so I am clear, as I understood, it was a sexual interest in RC and a willingness to act in respect of that sexual interest in relation to RC.

MR KISSANE:   Yes, your Honour.

GORDON J:   What is the answer to the single source?  Is that because TB’s evidence is said to be supportive of the complainant’s evidence?

MR KISSANE:   Yes.  TB’s evidence is evidence from a different source, albeit that in this ‑ ‑ ‑

EDELMAN J:   What do you say about the proposition that TB’s evidence is so inherently distant that this case could practically be treated as though it were a single‑source case?

MR KISSANE:   In a sense it is a single‑source case, but with ‑ ‑ ‑

EDELMAN J:   I am sorry, a single uncorroborated‑source case.

MR KISSANE:   That is really a question of weight that applies to TB’s evidence.  TB gave evidence of a charged act, which is charge 2, gave evidence of an uncharged act, which albeit that the Court of Appeal below said they were not certain about, it was clearly of a sexual nature.  Once you are in a situation where you have supporting evidence from another source, what we say is that TB’s evidence was capable, along with the other evidence, of establishing the sexual interest that was set out in the tendency notice. 

What we say is that TB’s evidence supports, but you do not look at that in isolation; you look at that with the whole body of the evidence that was present in this case.  This was offending that occurred over 10 years.  It was observations within the period of offending, both the charged and uncharged acts, so in those circumstances it was capable of, we say, providing significant support to the tendency that was sought to be used in this case.

EDELMAN J:   Do you say that the Court of Appeal’s reasons go any further than saying that, on a proper examination of the whole of the record, TB’s evidence was so distant or so inherently incapable of providing substantial support that the nature of the complaint should really be treated as one which is effectively an uncorroborated complaint with a single source?

MR KISSANE:   We agree that that was the argument that the Court of Appeal below in effect used, but we say it was wrong.

EDELMAN J:   Is not that then just a question of the special leave question becoming one of examination of the primary record to determine the extent to which TB’s evidence provides substantial or significant, to use your phrase, corroboration?

MR KISSANE:   To some extent it does, yes, but we say it raises important issues as to single‑complainant evidence in this State.  Paragraphs 62 and 63 of the majority in IMM were used by the court to, in effect, say that the tendency evidence that was sought should not be admitted.  We say it is of some importance to explore that issue further.

GORDON J:   Is it right to say that the Court of Appeal’s focus, especially at 82, on the special feature was the wrong question?  I say that for this reason.  You start with a tendency notice, which is tendency to have a sexual interest in RC and to act on that sexual interest.  We are not looking for special features, are we, like in Hughes or IMM?  In a sense, they have approached, arguably, the tendency notice from the wrong angle.  In other words, it is not specific conduct, it is not special feature about the sexual conduct, as I understand the tendency notice.  Is that right?

MR KISSANE:   Yes, it is about sexual interest.  So what the court has done, in our submission, is looked at RC’s evidence and said that there is no special feature, then it has looked at TB’s evidence and said that there is no

special feature.  But what the notice was directed towards was a tendency to have a sexual interest in the complainant and a willingness to act on it.  What the court has done is looked at individual parts of the evidence and looked for special features, whereas we say that what the court should have done is looked at the totality of the evidence.

GAGELER J:   Thank you very much, Mr Kissane.  There will be a grant of special leave to appeal in this matter on all four grounds indicated in the application. 

The parties should be aware that new appeal procedures will come into effect on 1 January of next year, which will involve quite a different process for the preparation of appeal books and for the timing of the preparation of submissions.  A document setting out the gist of the procedures can be obtained immediately from the Registry.

The Court will now adjourn to 3.30 pm on Monday, 5 February 2018, in Canberra.

AT 10.45 AM THE MATTER WAS CONCLUDED