Robins v The Queen

[2000] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 1999

B e t w e e n -

TREVOR PAUL ROBINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 MARCH 2000, AT 1.10 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:  If the Court pleases, I appear with my learned friend, MR D. PETRACCARO, for the applicant.  (instructed by Caldicott & Co)

MR S.A. MILLSTEED, QC:  If the Court pleases, I appear with my learned friend, MR N. ALEXANDRIDES, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, the only part of the application pursued is that which concerns section 34i of the Evidence Act although, as your Honours will see in a moment, the question of the probative value of the relationship evidence in so far as it cuts on sexual relations between the applicant and the complainant, will still be raised in the course of that argument.  Your Honours, the applicant’s submission is that section 34i enacts an important substantive legal rule affecting criminal trials in cases of sexual offences.

GLEESON CJ:   Where do we find it most convenient?

MR KOURAKIS:   Your Honours can find it in the book of documents, there ought to be just one, under the second tab, I think it is, if, indeed, it is convenient to go there first.

GLEESON CJ:   So, this section operates, you say, to prevent a woman who claims to be the victim of a sexual offence from giving evidence that, at the time of the offence, she was in fear of the alleged attacker by reason of his earlier sexual attacks on her?

MR KOURAKIS:   Not if that fear was relevant to a way in which to describe or explain a way in which she acted at the time of the offence.  Certainly not.  A primary submission that is made is that the evidence of previous sexual relations in this case did not advance over and above what is sometimes described as context or general background.  But what is notable about this case is the failure on the part of the court to identify the way in which any of the earlier sexual encounters were relevant at all.

GLEESON CJ:   Where do we most conveniently see the evidence, Mr Kourakis?

MR KOURAKIS:   Your Honours will see the briefest summary of it, that is adequate enough, in the judgment of the Court of Appeal, their honours Justices Perry and Nyland, commencing at page 71 of the application book firstly.  Your Honours will see under the heading “Factual Background” a description of the matters and, in my respectful submission, a description which really does not advance an analysis of the probative value when one comes to consider what happened on the night, much at all.  The relationship is described as “stormy”.  The applicant described as “sexually demanding”.  In my submission, a lot of ambiguity about whether that approach by the applicant ever amounted to the offence of rape.  Indeed, the Court of Appeal held that that evidence never amounted to evidence of an earlier rape ‑ ‑ ‑

GLEESON CJ:   Did the trial judge refer to this evidence in his summing up?

MR KOURAKIS:   Yes.

GLEESON CJ:   Where do we find that please?

MR KOURAKIS:   Extensively, your Honour.  If your Honours were to go really from page 36 of the application book, one finds a discussion of the background at page 36, 37, which then turns into a description of the narrative of the incident.  His Honour is really simply tracing through the complainant’s evidence.

GLEESON CJ:   Now, I was really asking you if you could show me more about the detail of the evidence.  I see a brief summary of it at page 71, but did the trial judge refer to the – I am looking for the best place to understand what the evidence actually was.

MR KOURAKIS:   Is your Honour asking as to the evidence of the previous relationship?

GLEESON CJ:   The evidence which you say was inadmissible.

MR KOURAKIS:   Yes.  That is at page 36, your Honour.  For example, from line 10 she spoke of sexual relations after her the de facto relationship ended.  From about line 14:

Sometimes, she said, he had been extremely forceful.  Sometimes, she said, they did have sexual intercourse on access visits, at times by consent, mainly at his house – - -

CALLINAN J:   I thought that might have helped your client, that evidence.

MR KOURAKIS:   If your Honour pleases, it was the position that there was no objection to the admission of this evidence by counsel at the trial ‑ ‑ ‑

CALLINAN J:   Because it was helpful to your client.

MR KOURAKIS:   Well, in my submission, not in a way which was substantially probative.  If, by helpful, your Honour means this, that because she had consented some time earlier, and on the complainant’s case that was as long as two and a half years or so earlier, on the applicant’s case even 10 months earlier, it meant in some way that she had consented on this occasion.  In my submission, that, in fact, is not helpful.  It is not probative of whether she consented on that night or not.

GLEESON CJ:   But you have, I think, just given the explanation of why this evidence was not given in more detail.  There was no objection to it and, in particular, there was no objection to the form in which it was given.  Nobody required the complainant to be more explicit about these things.

MR KOURAKIS:   That is so, your Honour.

CALLINAN J:   It might have been in your client’s interest, at times, to have been very vague.

MR KOURAKIS:   It may have been and that, if your Honour pleases, I have to concede on the reading of the transcript and what is reported in the judgments and summing up.  It appears to have been the approach that was taken.

CALLINAN J:   It seems likely that it was thought to be helpful at the trial otherwise there would have been objection taken.

MR KOURAKIS:   Yes, and it must have been.  For that reason, the separate application, or ground, which related to the admission of this evidence amounting to a miscarriage of justice, is not pursued because it appears to have been led as a result of a decision at trial.  But the remaining ground goes to section 34i and involves this submission.  That section 34i is an Act that is a substantive rule of law governing criminal trials for sexual offences and an obligation is – sorry, the evidence is made inadmissible unless the trial judge considers it and decides to give leave, and there are certain discretionary aspects to that.

But, importantly, in subsection (2), which was introduced by amendment in 1984, it is provided that the evidence “shall not be adduced” except by leave, but then in subsection (3), as a precondition to the granting of leave, so even before one comes to consider the discretion, it is provided that leave “shall not be granted” unless the judge is satisfied that:

(a) an allegation has been, or is to be, made by or on behalf of the prosecution or the defence –

Sorry, your Honours, I am afraid I am reading from the wrong section.  Are your Honours reading the Act headed Evidence Act 1976?

GLEESON CJ:   Yes.  What you were just reading from is about the disposition of the victim.

MR KOURAKIS:   Yes, and is the section before the amendment.  Can I ask your Honours to go to the next page and it is the section in this form that governed this trial.

GLEESON CJ:   This is Act No 90 of 1984.

MR KOURAKIS:   Yes.

GLEESON CJ:   That is the one I was looking at.

MR KOURAKIS:   Sorry, your Honour, I was looking at the wrong one.

GLEESON CJ:   Right, now ‑ ‑ ‑

MR KOURAKIS:   I apologise for the inconvenience.

GLEESON CJ:   - - - subsection (3) only deals with evidence about the disposition of the victim.

MR KOURAKIS:   Yes.  Your Honour, I have made a mistake in references to the subsection numbers because I was looking at the wrong Act.  Can I take your Honour back to section 34i(1) which provides that:

no question shall be asked or evidence admitted –

(a)  as to the sexual reputation…..

or

(b)  except with the leave of the judge, as to the alleged victim’s sexual activities before or after the events of and surrounding the alleged offence –

Then subsection (2) provides that in considering the discretion, the question of “unnecessary distress” and “humiliation” shall be considered, but then goes on to provide that leave shall not be granted at all.  That is, there follows certain preconditions to the granting of leave, the first of which is that the evidence is of substantial probative value or, alternatively, in terms of cross-examination material, that it might impair the reliability of the alleged victim.

GLEESON CJ:   As I understand it, you lost this argument in the Court of Criminal Appeal on the basis that no judge would be likely to have exercised that discretion against the admissibility of this evidence, bearing in mind that this was evidence of a complainant wanting to tell her story about why she submitted on a particular occasion.

MR KOURAKIS:   Yes, and that is precisely how the Court of Appeal dealt with it in paragraph 107 at page 88 and it is, with respect, in that paragraph that I submit that there has been an error in the approach to section 34i.  At page 88 in that paragraph, their Honours Justices Perry and Nyland said this:

Given the attitude of C –

the complainant –

and of counsel for the appellant –

which attitude was, on the face of it, that they both wanted it in –

if an application to that end had been made, there seems little doubt that the trial judge would have granted leave to the Crown to lead the evidence.

In my respectful submission, that is simply not so.  The prohibition enacted in section 34i is not one that can be waived by parties in that particular criminal prosecution.

CALLINAN J:   Why was not the evidence of substantial probative value with respect to the relationship between the complainant and the accused?

MR KOURAKIS:   If your Honour pleases, evidence could have been led quite simply without any evidence about the nature of their sexual relations ‑ ‑ ‑

CALLINAN J:   But it was a sexual relationship.  That is what made their sexual relations relevant because it was not a casual relationship.  That explains why, perhaps, she might not have been as shocked to see him there as somebody else who did not know him and who had not had a sexual relationship might have been – when he turned up in her bedroom.

MR KOURAKIS:   It was not an issue as to why she was not shocked to see him.  They have had contact over the time.  They had had some ‑ ‑ ‑

CALLINAN J:   Not shocked to see him at, what was it, 2 or 3 o’clock in the morning, under the influence of alcohol and with sexual relations on his mind?

MR KOURAKIS:   Your Honour, more particularly, it was not a case of the defence saying, “Look, you must have consented because you showed no shock when he arrived”.  That simply was not a forensic issue ‑ ‑ ‑

CALLINAN J:   Well, that he was there at all at that hour in the morning, the relationship is relevant to that.

MR KOURAKIS:   That he was there at that time of the morning might have been evidence that he was there because he hoped to have sexual relations, but the nature of their sexual relationship before and, in particular, whether he had been sexually demanding, sheds no light on whether the complainant consented on that occasion or not.

GLEESON CJ:   I am not so sure about that.  The central issue in this case was whether she consented or whether she merely submitted and she said that she acted as she did because, in part, of his behaviour towards her in the past.  Now, was not his behaviour towards her in the past a most material matter for the jury to take into account in considering whether she consented or whether she merely submitted?

MR KOURAKIS:   Well, if your Honour pleases, that really was not how the complainant put her case.  She said that he came into the room and he attempted to undress her, she continued to attempt to redress herself.  It was not a question of simple submission for that reason.  She fell asleep after the sexual intercourse, not because of anything about their relationship before.  She did not call the police, not because of anything about the relationship before but because she did not want the police to come to the home where the children were.  There just was not a real forensic issue which their stormy relationship, his demanding attitude to sex, helped eliminate.

GLEESON CJ:   If you did not know the background and history of their relationship, it might have been quite difficult to evaluate her conduct in trying to reach a decision on what was the central issue in the case.  At least

that was the way the Crown was putting it and the defence were not concerned to argue against that.

MR KOURAKIS:   Yes.

GLEESON CJ:   In those circumstances, it would have been rather surprising if a trial judge had excluded the evidence, would it not?

MR KOURAKIS:   In my submission, not, because the section imposes an obligation on the trial judge to satisfy himself or herself that there is, indeed, a substantial probative value and if, for tactical reasons, the prosecutor and the defence wish to proceed in a truncated or summary way which does not elicit the detail which might explain the probative weight of the evidence, then the fact still remains that the evidence has been admitted when it ought not because no substantial probative weight has been shown and established.  So, the discretion to admit simply did not arise.  If the Court pleases.

GLEESON CJ:   Thank you.  We do not need to hear counsel for the respondent in this matter.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal to warrant a grant of special leave.  The application is refused.

We will adjourn for a short time to reconstitute.

AT 1.25 PM THE MATTER WAS CONCLUDED