Sakail v The Queen

[1991] HCATrans 151

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1991

B e t w e e n -

JOSEPH SAKAIL

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J

McHUGH J

Sakail 1 24/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 24 JUNE 1991, AT 4.15 PM

Copyright ih the High Court of Australia

MR S.R. NORRISH, QC: May it please the Court, I appear for

· the applicant with my learned friend,

MR S.J. ODGERS.	(instructed by McIntyre Stower &
Bovey)

MR B.J. BUTLER:  May it please Your Honours, I appear for

the respondent with my friend, MR D.C. BOYLE.

(instructed by the Director of Prosecutions)

DAWSON J: Yes, Mr Norrish.

MR NORRISH:  Thank you, Your Honour. I have four copies of

the outline of argument to hand up to Your Honours.

Your Honour, there are, arising out of the

application for special leave, two issues for
consideration, in our submission, and requiring the
grant of special leave. They are an examination of
the nature of evidence capable of constituting
corroboration in a case such as this and, secondly,

whether evidence of propensity is admissible to

prove relationship and thereby corroborate specific

allegations of sexual assault.

We would submit to Your Honours that the error

of law to be identified in the approach of the

Court of Criminal Appeal was determining that the

evidence of the admission of the applicant was

admissible as evidence of relationship, and we

submit to Your Honours that having regard to what

this Court said in Harriman, Their Honours did not
appropriately determine the question of whether, in
the circumstances, the discretion to exclude the
material ought be exercised and, secondly,

Their Honours failed to appropriately determine

whether the evidence relied upon as corroboration

at the trial was capable of corroborating the two

counts in the indictment.

The Court of Criminal Appeal held, as

Your Honours might recall from the appeal book,

that the trial judge had misdirected the jury as to

the use that could be made of the applicant's

admission of unrelated wrongful conduct,
determining that the direction given by the learned

trial judge was, in fact, too favourable to the

applicant. The gravamen of the application here

and.the matter that requires, in our respectful

submission, the grant of special leave is that the

Court of Criminal Appeal, in determining the

matter, asserted, in effect, that evidence that is

contradictory of a witness may constitute

corroboration of the matters charged. In our

submission, that is a misstatement of what this

Court said in Doney in respect of what did

constitute corroboration and involved what we would

respectfully submit to Your Honours is a perversion

Sakail 2 24/6/91

of the relevant principles concerning the

identification of evidence capable of corroborating

a complainant in a case such as this and the

application of that material for that purpose.

Your Honours might note that this was a case

in which, as was outlined in the earlier

application before Your Honours, where the trial

judge was required to direct the jury that it would

be dangerous to convict the accused in the absence

of corroboration. In fact, the evidence of the
accused's statement to the police was the only
evidence relied upon by the Crown to corroborate
the prosecutrix's allegations.

The relevant evidence which was said to constitute an admission of non-consensual sexual

intercourse with the complainant is to be found at

page 19, and at pages 26 to 28 of the appeal book

in the summary of that evidence by the trial judge.

At page 25 of the appeal book, the trial judge

directed the jury that it was dangerous to convict

on the uncorroborated evidence of the complainant

and identified the statements the applicant made to

the investigating police as being the evidence

which was capable in law of amounting to

corroboration. The way he left it to the jury,

which the Court of Criminal Appeal held was in

error, was to suggest to the jury that the

statements made by the accused could be relied upon
to corroborate one or other of the complaints of

rape but not both.

Your Honours, the particular statements of the

accused to the police, we would respectfully

submit, if given in evidence now would require a

McKinney warning before a jury could proceed to

rely upon those statements as being evidence of

corroboration.

McHUGH J:  Why do you say that? McKinney only applies when

the only evidence against the accused is a

confession, or substantially the only evidence.

Here you have the complainant herself implicating.

MR NORRISH:  Yes. Your Honours, we would respectfully

submit that in the circumstances of the case where

the applicant was a person who had limited

understanding of the English language allegedly

made admissions to the police in the course of an

interview which did not take place in the presence

of legal advisers, whose adoption of the truth of

the admission in the presence of the legal adviser

was equivocal, and in circumstances where the

admission itself was challenged as to its

accuracy, there being a conflict between the entry

in the notebook of one of the police officers as to

Sakail 3 24/6/91

what was said, to that of the evidence of the

police as to the statements of the accused are

circumstances which, in all the circumstances,

would require, if not a McKinney warning, some

warning to be given to the jury before the jury

could proceed to accept that the evidence of the statements could constitute corroboration if, in

fact, that statement could so do.

The vice of the directions of the trial judge

and the vice of the decision of the Court of

Criminal Appeal is, in our respectful submission,

that the nature of the statements made by the

accused could not have been used to corroborate

either one of the counts - - -

DAWSON J: Well, you are not relying on the absence of a

McKinney direction for special leave.

MR NORRISH:  No, Your Honour, no.

DAWSON J: There is no point of principles involved there

because McKinney is in place now and that has

settled that point.

MR NORRISH:  Yes, and it post-dates the trial. The point

that I was seeking to make in relation to either

the McKinney direction or some other warning that
the jury might be given in its assessment of the

statements made by the applicant is that the

evidence relied upon by the Crown to corroborate

the complainant was not clear and unequivocal.

DAWSON J:  Now, perhaps you 9an isolate that point. The

evidence did not, apparently, relate to any	of the
two incidents which were contained in the
charge -

MR NORRISH: That is exactly right.

DAWSON J:  - - - but merely, at best, constitute an

admission that on some other occasion the accused

had had sexual intercourse with the prosecutrix

without her consent.

MR NORRISH: With respect, we would draw issue

DAWSON J: Is that going too far?

MR NORRISH: Yes, I believe, with respect, that that goes

too far.

DAWSON J: But at its highest that is

MR NORRISH:  At its very highest. The issue of whether it

was a non-consensual act of sexual intercourse is

Sakail 4 24/6/91

the area of equivocation in the interpretation of

what the applicant said.

DAWSON J: But you would say even at its highest that would

not amount to corroboration in relation to the

offences in question, would you?

MR NORRISH: That is correct, Your Honour.

DAWSON J:  Why?

MR NORRISH: Because it is not evidence which in a material

respect confirms or supports the testimony of the

prosecutrix. This was a case where the

prosecutrix, under cross-examination, identified

only two acts of intercourse, neither of which were

referable to the admission allegedly made by the

applicant, put at its highest, as you say, of an

act of intercourse of a non-consensual nature. In

our respectful submission, having regard to what

the Court said in Doney in the brief summary it

made of Baskerville and the other authorities

dealing with what constituted corroboration,

evidence which is contradicted by the prosecutrix

cannot be used for the purposes of corroborating

the prosecutrix's allegations. Hence, arises this

issue which we respectfully submit to Your Honours

warrants the grant of special leave.

DAWSON J:	Why does it not prove - and I am merely putting to you what the Court of Criminal Appeal said -
that the accused had a guilty passion with respect
to the prosecutrix such that he was prepared to
commit rape on occasions?  Why does that not prove
the nature of the relationship between the two?
MR NORRISH:	Your Honour, one of the difficulties with the

evidence was the difficulty that I raised with

Your Honour when Your Honour sought to encapsulate

what the admission amounted to. It was not clear

in its terms. It was, at its highest, what

Your Honour described it, but on another view of

the evidence it was merely an admission of an act

of sexual intercourse which, in our respectful

submission, could not support a proposition that it

was evidence of guilty passion.

· Furthermore, Your Honours, we would say that

the court was required, in determining that that

evidence was available for that purpose, to apply

the tests that are now set down as a consequence of

this Court's decision in Harriman to determine

whether evidence which may amount to propensity

evidence can be used as evidence of a
circumstantial nature or for some other relevant

purpose to the charge brought by the. Crown. We

would respectfully submit that if that exercise,

Sakail 24/6/91

that analysis was undertaken in respect of this

admission, having regard to the particulars arising out of the prosecutrix's evidence and having regard

to the equivocal and unsatisfactory nature of the

admissions, the court would have to address its

mind as to whether its prejudice far outweighed any

probative value which was available from it,

bearing in mind what I said earlier that it is not

clearly probative of an act of sexual intercourse

without the consent of the prosecutrix on a time or

on an occasion other than - - -

DAWSON J:  I am not sure that I appreciate that. He did

say - when asked, in referring to a particular

occasion:

Did Christina want to have sex with you?

He said: No. How do you know that?---I don't know.

You say that is equivocal, do you?

MR NORRISH:  Your Honour, in the circumstances with a person

with limited understanding of the English language,

a Papua New Guinean native, we would respectfully

say, yes, that is right.

Your Honour, it was a little more complicated

than that in any event. First of all, the

applicant was interviewed by the police by himself,

and this conversation occurred before some

representative of what I understood to be the local

Aboriginal Legal Service attended upon the police

station and the police gave evidence that the

conversation which Your Honour has quoted, which

appears at page 19 of the appeal book, occurred -

and I am relying now entirely upon the summary that
is available from the summing up.	When one looks

at the way in which His Honour treated the evidence

of the conversations in the summing up further, at

pages 26 to 28 His Honour repeated, in effect, what

he had earlier summarized in the evidence.

Your Honours would go on to note at page 26

that - if I just find the relevant passage - yes,

it was recorded - the statement of one of the
detectives recorded the conversation as including

the question:

Did Christina want to have sex with you?---No.

DAWSON J:  What is the point that you are making at the

moment?

Sakail 6 24/6/91

MR NORRISH: It is a bit unclear from the summing up. There

was a marked distinction between the evidence that

the police officer gave of the conversation and

what was recorded in one of the detective's

notebooks as being the conversation recorded as it

occurred or shortly after it occurred and the

significant question, as I understand it, that was

missing from the notebook was the critical question
that Your Honour would suggest is unequivocally a

statement of recognition of lack of consent. So,

there was a live factual issue at the trial as to

whether the applicant had, in fact, been asked the
question, "Did Christina want to have sex with

you?", and replied "No."

DAWSON J:  Yes. When you are dealing with corroboration, it

is a question of whether there is evidence capable

of amounting to corroboration, - - -

MR NORRISH: 

Yes, and it is true that what - - -

DAWSON J: 

- - - whether the jury accept it or not.

MR NORRISH: 

Doney did say that it may be vague or uncertain but if it was, prima facie, capable of - - -

DAWSON J: 

Can you summarize how the trial judge said the

jury could use these questions and answers if they
accepted that they were made?

MR NORRISH:  Yes, Your Honour. The trial judge told the

jury that - I do apologize, I thought I had it

marked. I think the summary of it appears in the

judgment of the Court of Criminal Appeal.

McHUGH J: It is at page 16, is it not, of the summing up?

MR NORRISH: 

I was going to take Your Honours to page 64 of

the judgment of the Court of Criminal Appeal where
Their Honours said that:

The learned trial judge apparently was

persuaded that a portion of the appellant's

answers might be taken as conveying that he

had had sex with the complainant once without

her consent.

Over the page - at the bottom of page 64 and the

top of page 65:

The learned trial judge directed the jury that the conversation, if they accepted that it had occurred and considered that they should act

upon it, was capable of constituting

corroboration but only in respect of either
the first occasion or the second occasion but

not both and not otherwise.

Sakail 7 24/6/91

And the reason for that, as I understand

His Honour's summing up, was that being an

admission of only one act of intercourse and there

being denials of acts of intercourse specifically
posited with the applicant in the course of other

interrogation that, in the circumstances, it could

only corroborate one count and therefore, as the
complainant was alleging two counts of intercourse,

one in May, one in November, the evidence could

only therefore corroborate one of those alleged
acts. The problem with that, of course, is that

the admission of the applicant in respect of the

act of intercourse that he said that he had with

the complainant was in respect of an event
unrelated to the two specific events relied upon by

the prosecutrix and the Crown.

DAWSON J: So, you say, well that direction was not

available and the basis on which the Court of

Criminal Appeal put it, namely, as a matter of

propensity, was not available in the circumstances

and therefore there was no corroboration on the

evidence?

MR NORRISH: That is exactly right.

DAWSON J: Well, that is the point, is it not?

MR NORRISH: That is exactly the point and in the

circumstances where, if Your Honours have regard to

what we say is the complainant's evidence on the

matter, which I think is summarized briefly at

pages 60 to 61 of the appeal book in the judgment

of the Court of Criminal Appeal and also at

pages 76 to 77 - - -

DAWSON J: Yes. Well now, there was evidence of a

non-consensual act of intercourse on some occasion

other than the two occasions charged?

MR NORRISH: That is right.
DAWSON J:	You say it was weak evidence but there was

evidence. Why is that not corroboration of

intercourse on one or other of the - well, both of

the two occasions charged?

MR NORRISH:  We would respectfully submit firstly, it is not

circumstantial evidence such as to confirm the

testimony of the prosecutrix in respect of the two

identifiable acts of intercourse that she gave

evidence of.

DAWSON J: Why not? If he is prepared to rape her on one

occasion, why is he not prepared to do it on

another?

Sakail	24/6/91
MR NORRISH:	Your Honour, I suppose the answer to that is that in assessing what constitutes evidence capable
of corroborating a complainant in a case such as
this, it has to be - - -
DAWSON J:	There are two things that one is inclined to get

muddled up. Really, the evidence which is relied

on is nothing more than propensity evidence, is it?

MR NORRISH: That is exactly right.

DAWSON J:  And it is a question of whether its cogency outweighs its prejudicial effect.

MR NORRISH: If one applies the Harriman test.

DAWSON J: Yes, but we are not talking about that here. We

are talking about whether it was corroboration.

MR NORRISH:	Yes.
DAWSON J:	And does it not tend to confirm the complainant's

story in a material particular and to implicate the

accused?

MR NORRISH:  Your Honours, we would firstly submit that

there is a threshold issue to be addressed and the
threshold issue is was that statement by the

applicant admissible?

DAWSON J: That is not the point you raise, is it?

MR NORRISH:  No. Well, it is the point we raise in the

sense that for the Court of Criminal Appeal to take

the path it did and determine that the evidence was

available as corroboration of both counts - - -

DAWSON J:  Once it is in, it is in and you are not

complaining about the fact that it was admitted,

nor was that point taken below.

MR NORRISH: There was an objection, Your Honour. It was

referred to in the decision of the Court of

Criminal Appeal as a desultory objection, I

believe, and later withdrawn and I cannot

second-guess what it was but I - - -

DAWSON J: Yes. So, the evidence is in. Now, are you

suggesting that propensity evidence of this sort,

once it is in, does not constitute confirmation?

MR NORRISH:  Your Honour, in the circumstances of the detail

of the evidence given by the complainant, no,

because it is evidence, if accepted as being a

statement made by the accused which is contradicted

by the prosecutrix's own accounts of what happened.

Sakail 9 24/6/91

TOOHEY J: Not contradicted necessarily, is it? The two may

not square in the sense that the complainant gave

evidence of two occasions but there are really two

steps, are there not? I mean, as I understand your

argument, you say this statement, whatever it

amounts to, is not corroboration in the sense that

it is any corroboration of what the complainant

said happened on either of the two occasions - - -

MR NORRISH:	Yes.
TOOHEY J:	- - - and I do not know there is any argument

about that. But says the Court of Appeal,

"Nevertheless, it is corroboration in a general

sense of a relationship or it points to a

relationship between the complainant and the

accused involving non-consensual intercourse and to

that extent it is capable of corroborating what the

complainant said happened on other occasions."

Now, is that not the argument you have to meet?

MR NORRISH:  I suppose I can meet that argument in part by

referring to what the Court of Criminal Appeal said

when it said that a denial will never become an

admission no matter how many different views one

takes of it. And the facts of the matter are that

in the circumstances in which the specific

allegations were put to the applicant, he denied

that he had sex of a non-consensual nature or sex

at all with the complainant; certainly at least in

respect of one of the counts, I think the count

involving the alleged act of sexual intercourse in

May.

We respectfully submit that the issue that really calls for the grant of special leave in this

matter is a consideration of whether this type of

evidence of alleged guilty passion which cannot be

in any way made referable to the specific

allegations made by the complainant, can ever be

capable of corroborating what the complainant alleges, particularly in circumstances where what	the applicant has admitted to is not confirmed in
the testimony of the prosecutrix.

DAWSON J: But that involves saying that the evidence is not

relevant. But, of course, propensity evidence is
relevant and when you talk about "guilty passion"

and "relationships" and so on, you are really only

saying that this particular accused has a

particular propensity or a propensity of a

particular sort such that its probative value makes

it admissible and, of course, once it is admitted
it does prove that he is more likely to have done

this.

Sakail 10 24/6/91

MR NORRISH: That is the danger of acting upon it in that

way.

DAWSON J: But that is the way propensity evidence operates.

MR NORRISH:  Yes, but this Court has not said that

propensity evidence is available, generally

speaking, unless it be relevant to an issue.

DAWSON J: It has never ever said - never ever said that

propensity evidence is not relevant. Clearly, that

is why it is admitted.

MR NORRISH: Sorry, I withdraw that, yes.

DAWSON J:  What it has said is that its prejudicial effect

on most occasions will outweigh its probative

value.

MR NORRISH:	Yes.
DAWSON J: And for that reason it is excluded.	But where,

for particular reasons, its probative value is so

strong that it ought to be admitted, it is. Well,

on this occasion, it was admitted. Now, you cannot

say that it is irrelevant because it has never been

said that propensity evidence is irrelevant - well,

not recently, anyway.

MR NORRISH:  Your Honours, if I might withdraw the reference

to relevance and simply put it as this, that it is
not evidence capable of corroborating the
complainant's allegations of sexual intercourse

with her consent.

DAWSON J: But if evidence is relevant and implicates the

accused - and above all, propensity evidence would

do that, relevant to the matters charged and

implicates the accused, then it must corroborate.

MR NORRISH:  Your Honour, with respect, no, because this was

not one of those cases where the complainant was

alleging a series of sexual assaults, if I might

call rape that for the purposes of my argument,

over a lengthy period of time and there was

difficulty in particularizing the number of acts

and the time and place at which particular acts

occurred. This complainant had given evidence of

only two acts of sexual intercourse and was able to

sufficiently particularize the surrounding

circumstances to enable the jury to be told that

they occurred in March and November. The applicant

made an alleged admission of non-consensual sexual

intercourse occurring at some other time.

DAWSON J:  We appreciate that. So that at most this

was propensity evidence and you say - and this is

Sakail 11 24/6/91

the issue - after all, this is only an application

for special leave.

MR NORRISH: Yes, I appreciate that.

DAWSON J:  The issue is whether propensity evidence of this

sort can constitute corroboration.

MR NORRISH: That is exactly right.

DAWSON J: Well, that is the point you say requires

ventilation.

MR NORRISH:  I have not referred to Chamilos in our outline,

but this matter was the subject of consideration by the New South Wales Court of Criminal Appeal in the case of Reg v Chamilos, a different type of case

involving a series of acts of sexual intercourse

with a daughter over a long period of time and the

admissibility of evidence of guilty passion to

corroborate the complainant's account in respect of

those series of offences. Chamilos is unreported.

It is not reported in the Australian Criminal

Reports. We would respectfully submit that this

particular situation is quite different from the

"guilty passion" cases as I earlier mentioned where

there is some admission made by the accused which

is not clearly referable to particular allegations,

but where there is supposedly a course of conduct

over a lengthy period of time. I stress again this

was a case where the Crown case rested upon an

allegation of two quite discrete acts of sexual

intercourse occurring at particular times.

DAWSON J:	I think we have that point.
McHUGH J:	I do not think you would get special leave on

that. That is very much one off. The point of

principle is, as the presiding Judge put to you,

whether or not propensity evidence is admissible as

proof of corroboration. That is your point of

principle, is it not?

MR NORRISH: Yes, that is correct.

DAWSON J: Well, that is the point you want to raise?

MR NORRISH: That is the point we wish to raise, yes.

DAWSON J: Perhaps we will hear the Crown on that.

MR NORRISH: Yes, thank you, Your Honour.

MR BUTLER: If it please the Court, I hand up our outline.

DAWSON J: You would not seek to support the trial judge's

direction on this point, would you, Mr Butler?

Sakail 12 24/6/91

MR BUTLER: Only to this extent, Your Honour, that there was

a view of the interview evidence of the admission

which might have resulted in direct evidence of an

admission of the particular offence upon which the
accused was convicted. You see, the answers given

by the applicant could be viewed either as a

grudging admission to one of the occasions alleged

by the Crown. The Crown case was always that there

were two occasions of non-consensual sexual

intercourse. Alternatively, it could be viewed as

another occasion of non-consensual sexual

intercourse if it is accepted to have been an

admission of that.

The two occasions alleged by the Crown: one

being earlier in time in May 1988, was an occasion

when it was said this occurred when the applicant's

wife was present at their home and this was the

occasion when a visit had occurred to Trinity

Wharf. The second occasion had occurred late in

that year in November 1988 just before, on the

Crown case, the complainant had been admitted to

hospital very ill and the complainant's allegation

was that she had been taken by the applicant when

she was severely debilitated and could not resist.

It was open, upon the answers given, for, in

my submission, the jury to take the view that there

was a concession and an admission in relation to

non-consensual sexual intercourse but when the

questioning descended to detail on matters which

might have been felt to be more embarrassing that,

in fact, the applicant denied those details;

firstly, that he did it when the complainant was

sick and, secondly, that he did it when his wife

was at home. Now, that was a view the jury could

take of it and that was the way His Honour the
learned trial judge approached it, but directing
the jury that since there was a clear admission

only of one occasion that it could only be

referable to one of the two occasions charged and

that the jury were left to determine whether they	accepted the evidence as going to one of the two
occasions charged.
The other alternative is that it is taken as an admission to a single occasion of non-consensual
sexual intercourse but that occasion is undefined.
If that is the case it might have referred to one
or other of the occasions charged or to another
occasion, indeed, because that was not the Crown
case. The Crown case was that there were only two
possible occasions. But, nevertheless, a concession by the accused that he had, in effect,
raped the complainant was very powerful evidence
that indicated the true nature of the relationship
between those two people.

Sakail 13 24/6/91

DAWSON J: That is the real point of the application, is it

not?

MR BUTLER:  Yes. Well, that is my ultimate point and really

the point taken by the Court of Criminal Appeal,

that in making that admission the accused indicated

that he, in respect of this particular complainant,

had some sexual desire and was prepared to go to

some lengths in gratifying that sexual desire on an

unspecified occasion and that must, in my

submission; have been highly relevant on the issue as to the whether or not he might have gratified a

sexual desire on the occasions charged.

TOOHEY J: Well, on the occasion charged as it turned out.

MR BUTLER:	Yes.
TOOHEY J:	One has to put the first incident, really, out of

mind for the purposes of the appeal to the Court of

Criminal Appeal.

MR BUTLER:  Yes, I accept that, Your Honour. The jury

acquitted in relation to the first instance.

TOOHEY J: So, really, the question which the Court of

Criminal Appeal had to look at was whether this admission was corroboration of the particular

incident, being the second incident to which the

complainant deposed or whether, though not directly

relevant to that incident, it was nevertheless
relevant because of the sort of conduct it admitted

to. Would it be right to say that the Court of

Criminal Appeal approached the matter only on the second of those two ·oases, that is, that it was

corroboration not because it referred to the

incident in question but because of the sort of

conduct that it had constituted an admission on?

MR BUTLER:  That would be correct. The Court of Criminal

Appeal felt that it was not possible for the jury

or other of the two occasions, and therefore they	to determine from the answers an admission to one	approached it solely on the basis that it was an
admission to an unspecified occasion of sexual
intercourse. In fact, the reasoning by which they
approached it was along the lines of really
referring to a third occasion, if you like.

TOOHEY J: Well, that is the case you have to beat, is it

not: whether that evidence, though not relating -

and we have to assume that it did not relate for

the purpose of this exercise - to the second

incident, was nevertheless capable of corroborating

it.

MR BUTLER: Yes, and it is my submission that it would be.

Sakail 14 24/6/91

TOOHEY J:  And why?

MR BUTLER: For all the reasons, in my submission, that

evidence of a relationship between two people

becomes admissible and relevant and although in

this case we are talking about corroboration, the

same sort of principle applies.

I would refer Your Honours to the decision of the Queensland Court of Criminal Appeal in R v McK,

(1986) 1 Qd R. I provide copies of that. That was

a case of multiple counts of incest where the

accused was acquitted on four of the five counts

and convicted on the final one.

TOOHEY J: But those cases of incest of which there were a

number are cases in which the consent of the

complainant is not really a material consideration,

is it? The evidence goes to show the likelihood

that on the occasions of which the child, if it be

a child, complained, that evidence is corroborated

by the existence of similar conduct on other

occasions. Does the principle apply directly to

cases of rape? In other words, if the accused had

said, "Yes, I slept with the complainant on a

number of occasions. She was quite happy to do

that", is that evidence capable of corroborating an

allegation of rape on another occasion?

MR BUTLER:  I would submit that it would. It is stronger in

this case because the admission by the accused was

to non-consensual intercourse.

TOOHEY J: Yes, I appreciate that but I had put that other

example to you, really, as perhaps a means of

testing the question we ultimately have to look at.

MR BUTLER:  I would submit that it would be even if it had

not have been an admission to non-consensual

intercourse because it makes more probable the

story of the complainant in the context of the

situation we have here. Obviously, in other

factual situations it may not be so probative but

here we had a situation where we had a relatively

young girl living in the same house with this

accused and his wife in that domestic situation,

and in that context the desire - if one might say,

the sexual desire of the accused - would be unexpected and the gratification of it in a

situation where the complainant is alleging that

there was rape.

DAWSON J: Well, you simply put it that the sexual

attraction of the prosecutrix to the accused was
sufficient for him to avail himself of an
opportunity to have intercourse with her, if

necessary, without her consent.

Sakail 15 24/6/91

MR BUTLER:	Yes.
DAWSON J:	I do not see how you can get away from

propensity. That establishes a propensity - call

it a guilty passion, if you like - on his part. It

certainly implicates him and tends to make more

likely the story told by the prosecutrix.	It is as
simply as that, is it not?

MR BUTLER:  Yes, that is my submission, Your Honour.

McHUGH J: But is not the special leave point in the case

this: that corroboration requires evidence which

tends to confirm other evidence? Now, is there any

case where propensity evidence has been admitted not for the purpose of proving the fact in issue but for the purpose of tending to confirm other

evidence? I do not think R v Ball is such a case.

There the evidence was lead, so it has always

seemed to me, for the purpose of proving that

intercourse took place between the relevant dates.

But is there any case? Off the top of my head, I

cannot think of one where propensity evidence has

been proven for the purpose of establishing

corroboration as opposed to a fact in issue.

MR BUTLER:	I have not considered the cases from that point of view, Your Honour.
DAWSON J:	You see, it is a difficult case because if this

evidence had been looked at by itself and had not been really intended to prove, as the trial judge

viewed it, as proving the intercourse on one or

other of the two occasions in question. It may

have been excluded as unduly prejudicial.

MR BUTLER: Well, I would submit not, Your Honour.

DAWSON J: Well, it was not anyway, so there you have it.

MR BUTLER:  Yes. It was not objected to but I would submit

that it would have been admissible as being

circumstantial evidence which was probative for the

reasons that I am advanced.

McHUGH J: Well, that is one view of it. That does not seem

to be the view the trial judge took of it. He has

narrowed it and it is on this other issue that

maybe there is a point of principle involved in the

case.

MR BUTLER:  If I could refer Your Honours to what His Honour

Mr Justice Connolly said in McK at page 477. That

was a situation where there was an admission of

behaviour which fell short of the incest alleged.

There was an admission, if it was accepted, that

the accused had on a particular occasion - I think

Sakail 16 24/6/91

I recall it being in bed with the complainant - and

that he touched her to some extent on that

occasion. There was some indecent behaviour.

His Honour said at about line 20 on page 477:

It is difficult to conceive of stronger

corroboration of an allegation of sexual
offence than, for example, the admission of
the prisoner that he attempted to commit the
offence or that he did some indecent act to

the complainant of a nature likely, in the

natural course of things, to lead to the

commission of the act charged.

And further down at about line 34:

Independent evidence, whether confessional or

otherwise which tends to show sexual desire
for the victim and some measure of
gratification of that desire, supports the

case for the prosecution because it is

consistent with the allegation made by the

victim, it makes unlawful and unnatural

behaviour credible and it serves to allay the natural concern of the jury that the victim's allegation is a fabrication.

Much the same sort of reasoning, in my respectful submission, as we find in Harriman v Reg in

relation to the admission of relationship evidence

there.

What we have is a situation where the

complainant alleges these two occasions of rape. We must look for evidence which tends to support the complainant on the relevant elements, that is,

identity of the accused and consent and the

commission of the sexual intercourse. In my

submission, this evidence does do that. It

supports the complainant in all those regards

because it illuminates the nature of the

relationship in a situation where the jury

otherwise might have been left as incredulous that

this man who resided with his wife in a domestic

situation with this girl would have had

intercourse on the two occasions alleged. Once he

concedes that on an occasion, not necessarily those occasions, he has had intercourse against her will, that tends to support the allegation of the

complainant in all the relevant aspects, in my

submission.

TOOHEY J:	Mr Butler, is it clear whether the complainant simply gave evidence of two occasions without
necessarily excluding the third occasion, or that
she gave evidence in such a way as to make it clear

Sakail 17 24/6/91

that intercourse, whether consensual or otherwise,

took place only on the two occasions referred to?

MR BUTLER:  No. The evidence was clear that she excluded

the other occasions. There was another aspect

which appears from the judgment of Mr Justice Ryan

at page 82 of the record.	He points out there that
in the -

cross-examination of the complainant it was

suggested to her by the accused's counsel that

he -

that is the accused -

had sex with her in August -

and that was consensual. So, the way in which the

parties joined issue, although that was denied and

thus was not evidence, was that the Crown was

clearly saying that there were these two occasions,

one in May and one in November and they were the

only occasions of intercourse and on both occasions

it was non-consensual. There was the interview

that I have already canvassed and when questioned

in relation to another occasion in August, it was

denied by the complainant that sex was had at that

time. The defence submission was that, of course,

no admission had been made to the police officers

that the complainant did not want to have sex with

the accused.

My learned friend raised something about that.

Perhaps I ought to just very quickly clarify it.

The question was, "Did Christina want to have sex

with you?", and the answer was said to be, "No".

That was the evidence given by the interviewing

officer who said that she took notes of the

conversation. The notes were tendered by consent

and clearly show that question in that form.

The corroborating officer was cross-examined

on the basis that in his statement which was

tendered on the committal the statement did not

accord with that. I think it was on the basis that

the statement did not include the word "want".

DAWSON J: But clearly there was evidence on which the jury

could -

MR BUTLER: Yes, but there was evidence upon which the jury

could consider it. I do not know if I can put my

submissions higher than that, Your Honours.

DAWSON J: Thank you, Mr Butler. Yes, Mr Norrish?

Sakail 18 24/6/91

MR NORRISH:  Your Honours, I do not know whether

Your Honours wish me to refer you to the R v McK.

Our respectful submission would be that it is of no

relevance to the point that we raise, bearing in

mind that the evidence referred to as being

corroborative of the complainant was directly

referable to a particular incident and does not

attack the point.

Your Honours, if I could just take up one

aspect of the discussion between the learned Crown

prosecutor and yourselves. It is clear that the

trial judge treated the admission, once admitted,

as being corroborative of either one or the other

counts.	He did not address the question of
propensity at all.	Should I just say, by way of

clarification, that we would submit to Your Honours

that, putting aside the issue of whether propensity

evidence can corroborate in the circumstances that

have been discussed, the issue still has to be

addressed, in our respectful submission, in

determining the matter if special leave is granted

as to whether - - -

McHUGH J:  I have been thinking about it since I made that

statement earlier, but propensity evidence is

really admitted as corroboration quite regularly,

is it not, and is that not really the basis of the
special relationship cases and the guilty passion

cases?

MR NORRISH: Yes, except in so far as the propensity

evidence bears some relationship in time to the

allegations which give rise to the charges alleged

in the indictment and that is one of the

difficulties in this case, that the admission of
the applicant was not referable to what the

complainant swore with the two acts of sexual

intercourse she had with the applicant.

Your Honours might just note at page 77 of the

appeal book where the learned judgment of the

Chief Justice refers to the fact, at line 10:	Notwithstanding the variations in her evidence
it is fair to say that in the end she
fundamentally adhered to her story that
intercourse had occurred between the appellant
and herself on two occasions and on two occasions only, namely in May and November.

The point that I was going to simply make was

this: that what is intrinsic in our application is

a consideration of whether the Court of Criminal

Appeal, having determined that the admission of the

applicant was evidence of propensity, thereby

providing circumstantial evidence of a

relationship, whether it, the court, ought to have

Sakail 19 24/6/91

undertaken the exercise of determining whether, in

those circumstances, the evidence was admissible

for that purpo,se. It was admitted at the trial for

another purpose. The Court of Criminal Appeal

having undertaken the task of determining that it

was propensity evidence, evidence of special

relationship, thereby capable of corroborating both

counts in the indictment, ought first to have

considered the threshold issue of whether it was

admissible for that purpose and that task was not

undertaken by the court at all.

DAWSON J:  I do not know that you can do that. Once

evidence is in, it is in, but the point is well

made.

MR NORRISH: Yes. Well, there is a difficulty and it

perhaps, to some extent, is an intellectual

exercise by the court but it is an honest

intellectual exercise to do that before going on to

apply the evidence for some other purpose which was

not advanced at the trial. They are our

submissions in reply, if Your Honours please.

DAWSON J:  Thank you. The Court will take a short

adjournment to determine the course it will take.

AT 5.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 5.15 PM

DAWSON J: Whilst the point which the applicant seeks to

raise may, in other circumstances, warrant the

grant of special leave, we are not persuaded,

having regard to all the evidence, that this case

is an appropriate vehicle for that purpose.

Special leave is therefore refused.

AT 5.16 PM THE MATTER WAS ADJOURNED SINE DIE

Sakail 20 24/6/91