Taylor v The Queen

[1989] HCATrans 76

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl46 of 1988

B e t w e e n -

GARY PAUL TAYLOR

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

Taylor

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 APRIL 1989, AT 12. 45 PM

Copyright in the High Court of Australia

C2T32/l/SH 1 7/4/89

MR G.R. JAMES, QC:  May it please the Court, in that matter

I appear for the applicant with my learned friend,

MR T.A. GAME. (instructed by MacMahon & Drake)

MR R.O. BLANCH, QC:  May it please the Court, I appear in

this matter with my learned friend, MR P.J. BERMAN,
for the Crown. (instructed by Solicitor farPublic

Prosecutions).

MASON CJ:  Mr James, we do not have much time available to us

at the moment but, perhaps, you may be good enough

to pass in your outline of submission and we can

look at that during the adjournment.

MR JAMES:  May it please the Court. I could indicate to the

Court two passages in the judgment of the Court of

Criminal Appeal that may be directly relevant. At

pages63 to 65 in the judgment of the Chief Judge at

common law, Mr Justice Lee, commencing with the

words "Mr James of counsel" on page 63 and the

evidence and the findings of fact, as it were, of

that court appears at pages 61 to 63 and at pages 54

to 55; page 47 and 48 expose the issue as I think was

said in SIMS and, from one viewpoint the admissibility

of the similar fact material in effect would sound the

death knell of the defence. The inadmissibility of

the similar fact material in this case was found by
the trial judge to indicate that the Crown could not

reasonably expect to succeed on any prosecution.

That appears from page 48.

MASON CJ:  Thank you, Mr James. We:w±il. adjourn now and

resume at 2.15 pm.

AT 12.47 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.26 PM:

MASON CJ:  Yes, Mr James.

MR JAMES: Prior to the luncheon adjournment, I had taken

the Court to pages 63 to 65 of the appeal book. If

I might take the Court to the passage that

commences at page 63, which appears to contain

the essential reasoning of the Court of Criminal

Appeal.	Commencing at line 6, appears this
paragraph:

Mr James of Queen's Counsel has submitted

that in the light of the evidence that is

before the court, the Court should conclude

that there is the possibility that the

young children were 'infected' by what was

going on and then discussed and talked
about it to the point where one could
never be satisfied that what they were

complaining of was their own recollection

or merely imagination or innocent concoction.

Stopping there, that is no doubt put as compendious

of various different things that were said on the

appeal. The submission that was made was that

the evidence lacked that requisite quality of

independence such that it should not be admitted

as similar fact evidence and the court's attention

was drawn to the then recent decision of this

Court in HOCH.

It was not a submission that it was necessary

for the defence to persuade the court:

-to the point where_one could never be

satisfied that what they were complaining

of was their own recollection or merely

imagination or innocent concoction.

And in our submission to put it in that way is to mistake the judgments and all of them, both of the majority and the minority in HOCH.

(Continued on page 4)

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MR JAMES (continuing):  The court then turned, at line 13 -

or the chief judge turned at line 13 - to matters

arising from the factual material:

It cannot be denied that Sam Sly told his parents of

his complaints. It cannot be denied that the

mothers of the children in question would have
talked between themselves and to their children

about the matter, but that is not the end of the

matter in my view. One can, in my view, with

reasonable confidence, put to one side the evidence

in regard to the television progranrrne and the

press publicity. It says nothing at all about

the manner in which these offences were conrrnitted.

As I said earlier, there is no basis for any

suggestion that the children concocted amongst

themselves their version.

Stopping there, in so far as that is a reference to a deliberate conspiracy arising through animosity

to produce false stories against the teacher there

is no quarrel with that sentence. But if from that

could be derived any concession on the part of the

defence that the combination of such matters as peer

group pressure, the fact that these allegations and

the detail of them were discussed amongst the children

and were the talk of the town and gave rise to the

newspaper publicity and in due course to television
publicity, such as to produce that possibility of

infection referred to as part of the basis underlying

a cause conrrnon to the witnesses by Lord Wilberforce,

then, in our submission, that is to mistake the

submission.

GAUDRON J:  When you put that submission, Mr James, you refer

to the detail of the offences. That is quite critical

to your position, is it not?

MR JAMES:  No, with respect. The detail of the offences was

clearly enough discussed amongst the children.

The Sly allegations were some four months or more

earlier than the other complaints. In case I have

phrased that wrongly I should repeat it. The detail of

the complaints was discussed amongst the children.
The Court of Criminal Appeal accepted that the detail
of the complaints may well have been discussed by the
parents with the children. What the court is adverting

to here is the fact that the detail of the complaints

were not publicized in the newspapers and on television.

(Continued on page 5)

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MR JAMES (continuing):  But what was published in the newspapers

and on television was quite adequate to engender a

climate in which children might well say, "Me too"

and that was the point of the exercise; that is to

say that it is not a proper conclusion to draw that

merely because there has not been a specific and

detailed recital in those two aspects of the media

that one can negate the fact of media publicity

engendering a climate in which the infection process

occurs.

Indeed, the reasoning at the bottom of page 63,

at line 24, poses the question that, in our submission,

shows a mistaken approach to the judgment of this
Court in HOCH:

Is: it possible, then one asks oneself, that the children other than Sly were so affected

by what they heard that they just imagined or

were prepared to go along with a proposition

that the appellant had dealt with them in
the same way?

The Court of Criminal Appeal has approached its task by asking itself that question which, indeed, catches

up what appears at line 10 above:

To the point where one could never be

satisfied that what they were complaining

of was their own recollection or merely

imagination or innocent concoction~

The term "concoction" is used in various senses in

the judgments and His Honour then goes on to say:

It is true that they did not until February

disclose the appellant's alleged mis-doings -

By that stage, the Sam Sly complaints were months

old; the discussion amongst the parents had been

occurring and, indeed, I think in all cases but one,

the parents and citizens' meeting had occurred. There
had been the press publicity and the talk of the town

and the television crew had arrived to film for the

television prograrrnne. However, the chief judge, in

dealing with that proposition and in discounting it,

says, at the top of page 64:

But in regard to that it can confidently

be said from experience in these courts,

that it frequently requires something in
the nature of a trigger to cause a child

to make a disclosure of an event such as

those we are considering here.

We have no quarrel with the proposition that a trigger may well be

required to have actual events disclosed.

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MR JAMES (continuing):  The problem arises that the

trigger may just as well disclose the existence

of infection as it discloses the existence of

truth. His Honour then turned - - -

BRENNAN J:	What are we looking for here, Mr James? Are we looking to review the conclusions of
fact arrived at by the Court?
MR JAMES:	It may be that we are asking the Court to

do that in one sense, and that is that in

terms of the court's judgment being a

discretionary judgment, that the court has

so mistaken the facts, or alternatively that the conclusion that the court has drawn from the facts is such that the court acting reasonably

could not have drawn. I am adopting the language

of HOUSE V R for the purposes of what I _put in

that regard. Accepting that it is a difficult

proposition to put to this Court - - -

MASON CJ: Particularly in an interlocutory application.

MR JANES:  Your Honour, in a sense this is not interlocutory.

When one comes to look at section SF it would appear

that this decision would decide finally the

question of the mode of trial. Once the Court of

Criminal Appeal has given that decision, unless

there is a change in circumstances or fresh

evidence, that would be the mode of trial and

in a criminal case it has been accepted, of course,

that such questions of joinder can only be raised

at the conclusion of the trial in the event that

one can point to workings of a miscarriage of

justice.

In section SF, in addition, there is a

rather unusual feature, perhaps I should take the

Court to that. Section SF was recently inserted

into the New South Wales CRIMINAL APPEAL ACT	1912
and reads, including the headnote:

Appeal after interlocutory judgment or
order.	(1) This section applies to -

(a) proceedings (including committal proceedings)

for the prosecution of offenders on indictment in the Supreme Court or in the District Court;

(2) The Attorney General or the Director of

Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings

to which this section applies.

(3) Any other party to proceedings to

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which this section may appeal to the

Court of Criminal Appeal against an

interlocutory judgment or order given or

made in the proceedings -

(a) if the Court of Criminal Appeal gives

leave to appeal; or

(b) if the judge ..... of the court of trial

certifies that the judgment or order is a

proper one for determination on appeal.

There was in this case such a certification. That

avoided the problem of leave from the Court of

Criminal Appeal. Subsection (6) however:

If leave to appeal under this section is

refused by the Court of Criminal Appeal,
the refusal does not preclude any other
appeal following a conviction on the matter

to which the refused application for leave to

appeal related.

It appears that the legislature there has distinguished

quite carefully between the consequences of the grant
of leave to appeal - I should say, the refusal of
leave to appeal and the consequence of the refusal

of an appeal.

The workings of this section in New South Wales

have so far received some attention from the

point of view of individual applications. The working

out of the jurisprudence embodying it has not yet occurred, but the question will undoubtedly arise

as to whether or not there having been a certification,

or the grant of leave, that disposes of the question

after trial unless there has been some fresh

evidence or change in circumstances.

In addition, in this case, although the

judgment is interlocutory, it is one of that

class of judgments which so affects the rights

of the parties as to provide for an effective
determination of the issue and that is why I

drew the Court's attention to what the trial judge

said at page 48 of the appeal book concerning the

Crown's position. It is most unusual to come here,

we accept, from an interlocutory decision and we have

referred, both in our list of authorities and in

argument, to what this Court had said in

ADAM P. BROWN MALE FASHIONS V PHILLIP MORRIS, 148 CLR.

It is a case, however, in our submission,

which squarely falls within section 35A(b):

where the interests of the administration of

justice, either generally or in the particular

case, require consideration by the High Court

of the judgment to which the application relates.

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MR JAMES: (continuing):· Because, firstly, it concerns the proper

role to be played by the Court of Criminal Appeal

when dealing with an interlocutory question under

section SF, a new section, and a new section designed

to avoid particular problems in New South Wales.

Secondly, because, in our submission, the

approach of the Court of Criminal Appeal is not

in accordance with the approach that is proper,

an error of law but an error of law only having

been detected in the trial judge and, further,

in that it appears that the Court of Criminal

Appeal has itself reached views as to the evidence and the consequences thereof, obtruding into those

views being some personal opinions.

Your Honours, if I take Your Honours to that

question, which is at the top of page 64:

the nature of a trigger -

the examination by Mr Justice Lee of the question

of induction of the complaints - by leading questions

as to the detail - it commences at line 5:

Further, their "complaints" were not induced by leading questions as to whether or not

the teacher, the appellant, had whilst they

were on the floor interfered with them -

far from it, they were simply asked whether

anything had happened or questions of that

nature and it seems to me that there is no

real scope for any conclusion that the idea

of molestation on the floor was planted into

a child's mind as something that may have

happened to the child.

If by that His Honour is referring to the terms

of the questioning inducing the complaint, one

cannot quarrel with that, but that questioning

occurs some months after these matters had become

a matter of public debate and in addition there

had been the specific matters of detail put between

the children.

BRENNAN J: Mr James, those questions of what put ideas into

children's minds, they would be questions that

could be raised in cross-examination at the trial,

are they not?

MR JAMES:	They could, Your Honour.
BRENNAN J:	And here we have a case where we are asked to

come to a conclusion on the possibility of concoction

without that evidence before us.

MR JAMES:  Your Honours, that is always a consequence of

having to deal with	that initial problem involving
joinder of counts.

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BRENNAN J:	Yes.
MR JAMES:	The trial judge, as was made clear by this Court in

HOCH, has to reach his conclusion prior to the

trial as to the permissibility of the joinder

of the counts and to do that he has to reach a

conclusion as to the admissibility of the evidence.

GAUDRON J:  And, in so doing, at least in New South Wales, he would have available to him or her the depositions.

MR JAMES: Certainly.

GAUDRON J:	Which we do not.
MR JAMES:	They were in this case.
GAUDRON J:	We do not have them.
MR JAMES:	Certainly. I am not asking for a general review

from this Court. I am asking for a review - - -

GAUDRON J:  But it is not a question of general review,

Mr James. It is a question that the probative value of

such evidence has got to be assessed according

to common understanding of human affairs and that

can only be done in the light of what is then

known.

MR JAMES:  The trial judge had the depositions and had the

common understanding; he reached a view that

there was a possibility on the material before
him; that material then went to the Court of

Criminal Appeal which held that he had erred in his formulation of the test and then reached a

view which was much less favourable on the same

material, on the findings, as it were, of fact -

they are not true findings of fact, they are findings

of what inferences are available - and, indeed,

the view that they reached, the view that the

majority reached, at least, was that their findings

gave no room for an inference of concoction.

I am content, and I am putting it before this

Court in this way, to rely on their findings and I

would have to if I was coming to this Court now or

findings of the trial judge and the Court

following trial. It would not be a matter for the the

of Criminal Appeal.

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MR JAMES (continuing): Whether it be at trial, before

trial or afterwards, the question of joinder

has to be dealt with, in our submission, on the

basis of what inferences, what reasonable or

rational - however one wishes to put it -

inferences remain open to permit the admissibility

of this material. And from that viewpoint, it

perhaps matters not whether one is talking about

a likelihood, possibility, real possibility,

significant possibility, probability, chance,

danger, real or otherwise. And for the purposes

of what we seek to put, we would not seek to

distinguish between the formulations of the

majority or the minority in HOCH.

In our submission, on a reading of those

matters found by the trial judge and the Court

of Criminal Appeal, there could not be a case

where there was a greater body of material to

support the process of infection unless the media

had specifically gone into the precise detail

or unless, in the depositions, the children had

said that they were infected. You could not,

in our submission, get much better than this

on the facts, for a judge to have to decide.

And when one reviews what Mr Justice Lee

says at page 64 when he adverts to - at line 20:

Given that there was conversation between the

boys and girls in the class as to Sam Sly's

allegations - and it would be a perfectly

natural thing - and given that the matters

were talked about between the parents

themselves and, no doubt, possibly in the

hearing of their children and even with

their children, I am not satisfied that

this is a case in which one should say
that there is a "possibility" in the way
the High Court used that word of the

children's evidence being "infected".

GAUDRON J: That stops short of acknowledging that there

was discussion of the detail of Sam Sly's

experience.

MR JAMES:  Yes:

Given that there was conversation between the

boys and girls in the class as to Sam Sly's

allegations -

and, in that regard, there were some findings.

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MR JAMES (continuing): At page 61 line 20 - perhaps I should

go back to the top of page 61. His Honour is

referring to:

a motive for concoction.

and then commences:

Nothing of that kind is suggested here but

what is claimed is that in the unusual

circumstances of the present case there is

a possibility that the children were "infected"

by the talk and discussion with each other,

for Sam had told the other three boys of

what the teacher had done to him, by the

discussion the children would have had with their parents and from the media. publicity

which occurred in regard to the disclosure

of the fact that the appellant had a previous
conviction and I shall refer to the facts
in regard to those matters now.

And he refers to the complaint to Philomena Leone and the fact that no statement was ever taken from

Sam Sly and then at page 61, line 20:

Sam Sly made his complaints known to each

of the other complainants in the group and

to his father.	The matter rested there until early
the following year.	None of the other boys

made any complaints until certain events

which I mention now occurred early the

following year. On 5 February 1986 a Parents'

and Citizens' meeting took place at the

Young Public School.

There is the reference to the prior conviction and,

at page 62, line 7:

Prior to the public meeting, the allegation that

Sam Sly had made that he had been interfered with

were known throughout the the township of Young

and, in fact, there is evidence that indicates

that that subject matter was the talk of the

town. The fact of the matter is that, except

for the complaint of Joshua Hall which did not

come until another event which occurred later,

none of the other boys in either group complained

until that public meeting was held.

And then is raised the TV programme.

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MR JAMES (continuing): It is at the bottom of page -62 at

line 26 commencing with the word "However".

However, it is proper to point out that there

is no evidence at all there was ever a publication

or broadcast or transmission of any material

which could lead to a conclusion as to what the

actual indecent assaults alleged were.

One complainant, John Cunnington, made his

allegation to the police onl8 February which

was the day of the television programme.

His Honour, when he is referring to the lack of detail,

is referring to the lack of detail in the media

reporting rather than in the discussions between

the children and the children's parents. His Honour

having looked at that matter at page 65 says this:

In evaluating the evidence in this case and in
cases of this nature as to whether there is a
possibility of concoction or infection, the
matter must always be looked at with great care
and against the background of human experience
and understanding of the likely reaction of
children in given circumstances. It seems to

me that it is a matter of pure speculation as

to whether they would be infected. There is no

evidence either specifically or in the overall

global circumstances which gives rise to

suspicion that they would be infected. It is

merely argumentative specualtion that they might

have been.

Now, in our submission, what His Honour has done there,

having reviewed the factual material, is to draw

a conclusion based on his own view of what the reaction

of children might be. - of. these children might be,

not arising so much trom the evidence but from

some view of his own.

BRENNAN J:  Well, must he not do that?

MR JAMES:  There does have to be some role for his own experience

there, Your Honour, but the movement from the

utilization of his understanding of the likely

reaction of children in given circumstances to reviewing

the evidentiary material is not explained at all in

his reasons. He does not say, for instance, "My

experience is that children do not falsely complain."

He does not refer to matters of that sort which would allow one to test or in any way see how His Honour regards what had gone on by way of, what we have

submitted, was a process of infection, was innocuous.

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MR JAMES (continuing):  On the face of it, in a small country

town where there are all these discussions and where

the material has received this sort of publicity, if

there was room for an infection case, that is the

environment in which one would expect it to breed.

Now, what - - -

BRENNAN J: Well, what you are in fact saying is that we

should rely upon our view of human experience

rather than on His Honour's.

MR JAMES: Well, Your Honour, I am not after this Court's view

of human experience. The trial judge did, at page 45,

express the view that there was a possibility but did

not - and His Honour at line 19, dealing with his

earlier judgment which was headed "Draft reasons for

judgment" but was embodied in what he put on this

occasion, said:

I acknowled_ged the possibility that the evidence of the children who made the allegations so

much later was tainted by collusion, fantasy

or suggestion; but it did not seem to me that

there was a "real chance" of that, such as

should lead to its exclusion.

At page 35 of the appeal book - and I should hasten

to say that His Honour was delivering this judgment

before this Court had handed down its judgment in

HOCH - says, and perhaps one should commence at

line 5:

Mr Game has taken me to many parts of the

evidence which suggests that one or other

of the children have, at various times,

told the others or some of the others of

the particular allegations he or she makes
against the accused; that the allegations
were widely discussed amongst parents of

the children and that some of the children

may have heard or even taken part in some

of the discussions; that some of the

allegations were in fact not made until

after a P & C meeting at which at least

the fact that allegations were made against

the accused were discussed; and that one at least was not made until after a television programme which focused on the allegation

that the accused had been re-employed by

the Department of Education notwithstanding

a previous conviction of assaults on children.

The possibility of concoction or fantasy or

response to suggestion exists. It does in every

case. The passages cited from the authorities

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recognize the obvious fact that the more

individuals who make allegations, the

less realistic is the likelihood of
collaboration; and the more striking
similarity of the allegations the less

likely it is that fantasy or suggestion

plays a part. There is not in my view

in the present case sufficient reason to

fear that the children's evidence is

tainted to lead me to hold on this ground
that the similar fact evidence does not

have strong probative force.

The strong probative force reference relates back

to an earlier portion of His Honour's judgment where

he had referred to strong probative force as meaning

"the ability, if believed, to support the particular
allegation in respect of which the evidence is
tendered". But the approach there, Your Honours, is

not in accordance with this Court's view in HOCH

where the onus is on the tendering party, the Crown,
to rebut the reasonable. possibility - reasonable,

we would accept to be considered in the light of

"practical" or, indeed, to echo words that were

spoken here earlier today, "realistic" possibility

that, in the circumstances of the given case, there
was a process of infection rather than for the

defence to be able to assert that there is such a

possibility - or, more correctly - that there is

direct evidence that such a thing occurred in the

case of the instant complainants and that is, also,

the way in which the Court of Criminal Appeal went
about its decision and embarked upon the question
of deciding whether the factual circumstances were

sufficiently similar; then moving to the question

of whether they should be excluded because the

defence was able to point to a realistic

evidentiary proposition to show that these children

were not telling the truth.

Now that, in our submission, is not in accord

with what this Court has said in all the judgments

in HOCH and, to embark on it that way is, in effect,

to deprive HOCH of any significance unless you have

an acknowledgement in the depositions or on a voir

dire from the complainants that they, themselves,

may be or are affected.

(Continued on page 15)

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MR JAMES (continuing):  The judgment of the Court ·of

Criminal Appeal, having reviewed the nature of

the charges, at page 54 sets out that passage that

I had read to the Court from the judgment of

the trial judge earlier, at line 8, and that

is set out by way of history. The court then

turns, at page 55, to what it regarded as

two points that had been argued before us, at

line 6:

firstly, that His Honour Judge Badgery-Parker

was in error in holding that in each group

the evidence of each of the children as

to the commission of the offence charged

was admissible as a similar fact in proof

of the other counts in that group and secondly,

that if such evidence did in respect of

one or both groups constitute similar fact

evidence, it was in any event inadmissible
for that purpose because of the possibility
of invention by the children concerned;
not malicious invention in the sense of
concoction but invention through "infection"

as suggested by Wilberforce Lin DIRECTOR

OF PUBLIC PROSECUTIONS V BOARDMAN -

And the court went on to examine the question of

the factual similarity from pages 56 to 57, reaching
the conclusion, at line 22:

In my opinion there is in the events

described by the children a sufficiency
of "striking similarity" to qualify those
events as similar facts.

And the similar facts are set out from page 57,

line 25, to the bottom of the page:

In each instance the offence occurred on

the floor and while the child was reading,

and each one took the form of the appellant

positioning his body to bring his penis

into contact with the rear portion of the

child's lower anatomy.

Citing again from Lord Wilberforce in BOARDMAN,

the passage that was referred to in HOCH,

Mr Justice Lee reached the view that the trial

judge had come to a correct conclusion in regard
to the sufficiency of similarity of the allegations

in group 1. That passage, it is short, perhaps

it bears repeating:

" .. the facts testified to by the several

witness bear to each other such a striking

similarity that they must when judged by

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experience and common sense, either all

be true or have arisen from a cause common

to the witnesses or from pure co-incidence.

The jury may therefore properly be asked

to judge whether the right conclusion is
that all are true so that each story is

supported by the other(s)."

And at that point, all that is being examined

is the sufficiency of the similarity. The

sufficiency of the similarity, of course, as

Lord Wilberforce points out, may well be due

not only to the same thing having occurred but

also to the process of the cause common.

On page 59 His Honour turns to what was

set out as the second matter, at line 8:

That brings me to the second matter

which was argued by Mr James of Queen's

Counsel on behalf of the appellant, namely,

that even if the acts by the boys in

group (1) constitute similar acts, their evidence is not admissible in support of the other counts in that group.

And refers to the further observations of

Lord Wilberforce in defining the cause common

and that citation is at line 18 through to

line 4 on page 60 and thereafter appears citations

from HOCH.	His Honour pauses at line 17 to
say:

I pause here to mention that

Judge Badgery-Parker in his judgment on

the first application, i.e. when he divided

the counts into the two groups, used the

expression "real chance of concoction"

apparently as the test of admissibility

and it is clear that that is not the test

propounded by Mason CJ, Wilson and Gaudron JJ.

However, having made that observation it

is pertinent to point out that in the judgment

of Brennan and Dawson JJ their Honours at

p 11 say:

(Continued on page 17)

C2T43/2/ND	16	7/4/89
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MR JAMES (continuing):

"If there is a real danger of the concoction

of similar fact evidence it is consistent

with the attitude which the law adopts toward

evidence of that kind that it should exclude it

upon the basis that its probative value is

depreciated to an extent that a jury rr~y be

tempted to act upon prejudice rather than proof."

The test which, in my view, is appropriate

to be applied is that set out in the judgement

of the majority.

Stopping there, it is clear enough from what was said

by this Court in all the judgments in HOCH, it is the potentiality of the evidence to which one has regard. That potentiality, in our submission, may be

established by inference from the facts that are found

in terms of the circumstances under which the complaints

and allegations are made and once found, once that

factual material is found, certainly inductive

reasoning can be used to support the proposition and

pragmatic experience. But where experience is to

deny to what has been found, the quality of infection,

then the nature of that experience at least should be- -set out

so one can see how it accords with general experience.

That does not appear here and there does appear, in our submission, to be a leap from having found the

material through to the proposition that it is a

purely speculative exercise or a merely theoretical

possibility that is being referred to. What more

could one have, really, by way of background in a

case which is being prosecuted to support the

existence of infection than one has in this case?

I had - taken the Court to mat ,appears at page 61 concerning

the matters of fact through to page 63 and I should say

in that regard that perhaps I should take the Court to

what Mr Justice Grove at page 65 and, perhaps at

line 24: 

I only add that in my view it is important

to recognize that the touchstone of admissibility

of evidence of this kind can be striking

similarity and this does not necessarily

involve uniqueness or unusualness or the like.

And His Honour refers to various formulations:

I am likewise of a view that the material

suggests no possibility beyond the purely

theoretical or speculative that the recounting

of the similar facts by the child complainants
derive from an infectious transfer of
information from some external source;

whether other children, parents, local discussion

or even wider media coverage.

C2T44/l/VH	17	7/4/89
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And His Honour is of the view that that should be

confirmed. So His Honour, in essence, adopts

the reasoning of Mr Justice Lee. Justice Matthews

appears, with respect, to have mistaken the point:

I initially held some concern as to the

possibility of concoction arising from

infection of the children, other than

Sam Sly, which in turn could have arisen

from public discussion about the appellant's

background. For discussion was rife,

apparently, in their small country town about

February 1986 when they made their complaints.

However, there is no suggestion in the evidence

of any animosity towards the appellant on the

part of these children. No motive has been

suggested for any concoction by them. In

the circumstances, I could not regard that

possibility as anything, other than a theoretical

one.

And she agreed. Your Honours, we are not asserting

that these six-year old children have, after the
lapse of all those months and in the light of
public discussion, embarked upon a deliberate
conspiracy. We are submitting that what was occurred
within the community, on these findings and the
findings of the trial judge, is such that one could

not be persuaded that there is not a reasonable

possibility that any of these allegations did not

arise through the process of infection. It is a

common enough process to see where children, through

peer group pressure, if one puts it in sociological

terms or psychological terms, desire to conform with

what they feel are their parents' desires or

otherwise, assert what amounts to "me too." If one
cannot discount that as a reasonable possibility
in this case, then there has not been, in our

submission, a proper application of what this Court

said in HOCH.

Your Honours, the decision, in our submission,

on those findings, unless one says, as the Court of

Criminal Appeal did, that you cannot draw that

inference from that material. then, in our submission,

one can and one would, unless there was anything to

the contrary and there is nothing to the contrary,

is one which would not stand within the discretionary

tests applied by this Court in HOUSE.

(Continued on page 19)

C2T44/2/VH	18	7/4/89
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MR JAMES (continuing): Further if one has regard to what this

Court has said in NORBIS V NORBIS, if the discretion

has miscarried on a matter of guidelines or principle
to such an extent that the conclusion appears wrong,
or if one regards it as a matter of legal significance

because it turns on that legal question of admissibility,

however one has regard to it, in our submission

if such an inference is fairly open from the material

then the decision is wrong and reviewable and can only

be reviewed in this Court. The consequences, of course,

are that the matter goes to trial with the joint

counts, the children are called, there is - if the

material is admitted - that question of cross-examination

of children who are then at the time some six years
of age in the light of some four years of public
controversy since and then, if there is a conviction,

in due course an appeal, subject to the problems

under section SF and an examination then of the

adequacy of the material in the light of the jury

verdict. The section SF was introduced to avoid

exactly that sort of problem and albeit that it is
interlocutory this case, in our submission, supports
the proposition that this matter should be disposed

of as early as possible and by this Court because it has about it a very strong element of finality.

Your Honours, whatever the function of the

Court of Criminal Appeal under section SF, which is

not yet worked out, in our submission it is not a simple rehearing on the material before the trial judge and if it is not that then the question of the

findings of the trial judge and the findings of the

Court of Appeal are matters that can be examined

to see whether or not such an inference is fairly

open and we would put the submission, putting it at

its strongest, that to say that there is no such

inference that could arise from that material

without more is a matter to which almost the manifest

error test would apply, because when one looks at it

one almost comes to the point of saying, "Good gracious,

one would think that you could conclude there is a

possibility of infection there", unless some other

matter is raised to suggest that possibility is not a

real one.

GAUDRON J: Again I come back, it does depend on the detail

having been discussed and although there is a reference

to detail in the judgments below there is detail and

detail. We are in no position to know whether the

detail that was discussed was that it was in the

classroom, ful_l stop.

MR JAMES:  There is nothing in the appeal book on which I can

rely beyond the matters I have taken the Court to,

but I am really in a position where one could never
be able to rely on the detail except when it came to

the conclusion of the matter after the verdict of the

C2T4S/l/MB	19	7/4/89
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jury on a review as it were on the basis of ..... ,

unsafe and unsatisfactory, or something of that nature

because one is bound by such findings as both the

trial judge and the Court of Criminal Appeal made.

GAUDRON J: Well, it may be that all things considered it was

not really appropriate for the issue to be tested on

appeal at an interlocutory stage.

MR JAMES:  It may be, but it is the only time that one can

prior to trial - - -

GAUDRON J:  Well, of course, prior to trial, but could I put

this to you. It must be the case, must it not, Mr James,
that where you rely on innocent infection, that that

will be available as a reasonable explanation only

if it can be shown that the specific detail either was

or was likely to have been cormnunicated as between

the people?

MR JAMES:  Your Honour, let me not answer that in a general

way. We simply say that the findings of

Judge Badgery-Parker and the findings of the Court

of Criminal Appeal establish that specific detail

was cormnunicated but do not say what it was.

(Continued on page 21)

C2T45/2/MB	20	7/4/89
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GAUDRON J:	Yes.
MR JAMES:	By the very nature, however, of what the

Court of Criminal Appeal says about the

similarity, the exploration of the question

of similarity, we get a certain basic degree of

similarity and a certain basic degree of detail.

That is expressed in that passage of the child

lying on the floor, reading a book in the classroom, the teacher lying on the child rubbing the penis on the buttocks area. We

have got that much of the specific detail alone. But

how much more detail could one get from six-year-

old children being interrogated - - -

GAUDRON J: Yes, but it does not say that that is the detail

that was communicated as between the children.

MR JAMES:  No, all one has is that the detail of the

allegations was communicated. This Court would

have to compare the varying accounts but that

leaves one in the position where the appellate
opportunity is gone and deprived of because the

findings themselves are not specific enough.

I suppose that is an answer to the proposition I

put to the Court that what more could be wanted,

and that being the specific and precise detail

of each allegation. One can perhaps answer it

this way: the more precise and detailed, the

greater precision of correspondence in the

allegations, perhaps the greater likelihood that

they in fact arose from a cause ca:rm::m. That is in

fact recognizea in one sense by the Court of

Criminal Appeal when it took into account the

dissimilar allegations which had been severed

for the purpose of saying it was less likely

that the children who made similar allegations

had made them from a cause common. We would not

seek to criticize that as a matter so going to

the root of the judgment as to merit success here,

even if it is not logically perhaps a proper course

to take when examining the similar allegations,

but from the mere fact the court adverts to that

material, one can get the correspondence of the

allegations and the form of them.

Leave aside for the moment the question of

detail, and going to the delay in complaints

and the eliciting of the complaints themselves,

one has not only a more than four month delay,

there is only one count in which there has been

anything like a spontaneous complaint and it

was the defence application that that count should

be separately tried from the subsequent counts.

That is the Sam Sly count. As to that the

question would arise as to the admissibility of

C2T46/l/JM	21	7/4/89
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the subsequent complaints on that count; I

leave aside for the moment the question of the

admissibility of the Sam Sly complaint on the

other counts. But when one has regard to that

there is a real problem as to the admissibility
of those subsequent complaints to prove the

truth of the Sly allegation and that, in our submission, exposes most starkly the problem

in this case concerning the admissibility

because if there is to be a joint trial of

all counts, then each allegation will become,

as this Court put it in HOCH, not only corroborative

of the veracity of each of the complainants but

also independent proof of the ultimate conclusion

on each complaint. There would be grave difficulty

in the trial in that regard and the directions - and the trial judge may have to undertake this -

would be immensely difficult. But that is not

a matter really with which I need trouble this

Court except on the proposition that this matter

should be dealt with by this Court in so far as

it can, notwithstanding that it be interlocutory.

Unless I can assist the Court further,

they are the submissions we make.

MASON CJ:  Thank you, Mr James. Yes, Mr Blanch?

(Continued on page 23)

C2T46/l/JM	22	7/4/89
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MR BLANCH. I hand up, Your Honours, an outline of·our

submissions. The first matter in the submissions,

Your Honours, does not seem to have been argued by my friend.

MASON CJ:	No.
MR BLANCH:	The one matter of factual detail that arose

during the course of my friend's address was the

question of whether the detail of the allegations

had been communicated between the children. There is no evidence at all in the judgment of the Court of Criminal Appeal nor in the judgment of the

learned trial judge contained in the appeal book

which suggests in any way that the detail was

communicated and Mr Justice Lee, in our submission,

was correct,particularly in talking about the

television programme which dealt with the question

of allegations being made. But, as Mr Justice Lee

pointed out, there was nothing in that programme
to indicate the nature of the allegations which

was the peculiarity, the similarity, of the accused

rubbing himself on children already on the floor.

There is nothing in those judgments to indicate,

and there is nothing otherwise that I am aware

of to indicate, that that detail was in fact

communicated. With respect, we adopt the observations

of Justice Gaudron as to those matters because
it is the detail of the allegations which comprises
the important aspect of this both as to the possibility

of concoction and as to the hallmark of similarity.

DEANE J:: ~ut how far does all this go? I mean, when one

reaches the stage in a country town of public

meetings and a class like this, there must be,

must there not, a real possibility that the child

at the centre of the commotion has told a couple

of his friends and those friends have told their

friends and that it has spread like wildfire,

the details, among the class.

MR BLANCH:  Your Honour, there is always, as I think has

been observed by each of the judges who has looked

at the matter so far, a possibility in that sense.

But it is quite clear that Judge Badgery Parker,

in the first place, was talking about a mere

theoretical possibility because he says there

always is and that is what he was speaking of

and each of the judges of the Court of Criminal

Appeal have said the same thing.

DEANE J:	But is that what the majority judgment in HOCH
is talking about? That it is not enough if you can look at the facts and see there is a real possibility?

C2T47/l/SDL	23	7/4/89
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MR BLANCH:	In our submission, it is, Your Honour.	I do not

know that it is necessary to go this far for the

purpose of this argument but, in our submission,

it is simply because of this: that the majority

of the Court in HOCH explained the law in respect
of concoction as an aspect of the law of circumstantial

evidence which deals with the possibilites, other

rational hypotheses, inconsistent with the guilt

of the accused.

If the possibility of concoction is one such

possibility then perforce it is a rational or

reasonable explanation and therefore a reasonable

possibility, it would be our submission, Your Honour.

DEANE J: Except Their Honours say:

His Lordship there posited the possibility

of concoction, not a probability or real

chance.

MR BLANCH:  Your Honour, the word used was "real chance"

and not "possibility". But the majority in its

judgment made it perfectly clear that what was

being discussed was an aspect of the law of

circumstantial evidence and that, of necessity,

involves something more than a theoretical or

vague possibility.

(Continued on page 25)

C2T47/2/SDL	24	7/4/89
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MR BLANCH (continuing): But, leaving aside the legal aspect of

that particular argument, that appears to have been

side-stepped in a way by Mr Justice Lee, because he

simply said that he was using the term "possibility" in the way that the High Court used that term. But,

nevertheless, the important factual consideration

it comes back to is the question that Your Honour

askedme leading into tha~ and that was the question

of the possibility of this having arisen.

Now, the point that I wish to make about that factually is the point that Justice Gaudron was

making initially about that, that there is no evidence

in the appeal book to indicate that there was any such discussion and the conclusion reached by the

Court of Criminal Appeal as to that, on page 63 at

line 17, was:

One can, in my view, with reasonable confidence

put to one side the evidence in regard to the

television programme and the press publicity.

It says nothing at all about the manner in

which these offences were committed.

·DEANE J:	I do not want to delay things but, if you a.re looking
at it realistically, you cannot expect the accused to
have that evidence which means may it not be more
important as to whether there was evidence that it
did not happen.

MR BLANCH: Well, Your Honour, the fact was that the trial

judge and, I think, the Court of Criminal Appeal had

access to the depositions where there was

cross-examination of the children as to those

matters and the matter proceeded on that basis and

there is no suggestion that, arising out of any of
that, there occurred information as to the detail

of what occurred in the classroom such as to - and

that is why, in our submission, there is no conclusion

by any of the judges who saw all the detail that

there was anything other than the merest

theoretical possibility.

I think those questions have, in fact, taken me

through the matters that I wished to put to the

Court unless the Court wishes to hear from me about

any other matter.

MASON CJ: Thank you, Mr Blanch. Yes, Mr James.

MR JAMES:  Might I take the Court to page 36 of the appeal book?

Here, His Honour is discussing the view that he had reached at page 35, that is:

There is not in my view ..... sufficient

reason to fear that the children's evidence

C2T48/l/SH	25	7/4/89
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is tainted to lead me to hold on this

ground that the similar fact evidence

does not have strong probative force.

Discussing the difference between the views of

Lord Cross and Lord Wilberforce, at line 7:

It appears to me that the evidence here discloses no more than that the children

had told each other of what they allege

to have been happening to them; and
that children who had been unwilling to

come forward with allegations were prompted

to do so once they heard that they were not alone. There does not seem to me to be any

real basis in the evidence to conclude that

there is a real chance that the evidence is

tainted.

That embodies both reference to the discussion and

also to the matter raised with my learned friend by

Mr Justice Deane.

In addition, at page 36 - perhaps I should

return to page 35, lines 5 to 18, the reference to the discussion of the particular allegations he or

she makes against the accused and these are the

portions of the transcript to which Mr Game had

taken the trial judge and, in the Court of Criminal

Appeal, at pages 56 to 57, conn:nencing at line 29,

are the precise allegations of each of the persons

concerned. Firstly~

Sam Sly, gave evidence at the conn:nittal for trial that he was a pupil in first

class arid taught by the accu~ed in 1985.

He stated that die accused "rubbed his

penis on my bottom" when the~e was·nobody

else in the classroom and at the time

that occurred he was reading a book lying

down on the floor. He thought it was the

accused's idea to lie on the floor and he

thought that the accused gave him the book.

(Continued on page 27)

C2T48/2/SH	26	7/4/89
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MR JAMES (continuing):.

Both he and the accused were fully clothed.

He said under cross-examination that the

accused did similar things to him mostly

once a day but on one day he did it twice

both before and after lunch. The girl,

Isabel Hoffman, gave evidence at the committal that one day she went into the classroom and lay down on the floor to read

a book.	The accused came "and wriggled
on me".	She had lain on her tummy and the

accused got down on this hands and knees

and placed his bottom on her and wriggled.

She said that occurred after school. The

boy, Paul Quinn, said the accused "rubbed

his diddle on my bottom" and told 'him not to tell anyone. It happened lots of time

when he was reading. He would lie on his

stomach on the floor reading a book.	The
accused and he were both fully clothed.

The boy, John Cunnington, said that the accused lay on him when he was on the floor

reading. He would lie on his tummy and

the accused would lie on his back and "keep

moving around". It happened twice. He

said all the class was present when it

happened.

Those are the allegaltions in respect

of the counts which Judge Badgery-Parker

put into group (1).

I omit the group 2 accounts. My friend did say

that there was nothing in the appeal book or
elsewhere as to the communication of the detail
of the complaints. Before the Court of Criminal

Appeal there was specific reference to specific matters contained in the depositions which have not, of course, been reproduced in the appeal

book and they were referred to and were indexed

in the written submissions that were handed up

in the Court of Criminal Appeal, including that

in Isabel Hoffman's case the complaint was "Mummy,

you know what happened to Sam happened to me

once." Sam Sly at page 52 point 6 gave evidence

that he had gone to school and told his friends

of the precise matters. Isabel Hoffman, at

pages 80 point 7 to 81 point 3. Paul Quinn:

the total detail of his complaint was, "Mr Taylor

was lying next to me, he's been playing with

little boys". He changed his story, as was pointed

out, on a number of occasions.

MASON CJ:  Mr James, this is very unsatisfactory to read

material to us 'that is not before us.

C2T49 /1 /ND	27	7/4/89
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MR JAMES:  I appreciate that, Your Honour. It was put,

however, that there was no material in the appeal

book or otherwise. I am content to deal with

the matter on what is in the appeal book. I appreciate

what has been raised about the question of detail

but we do come here on an interlocutory appeal,

we accept that.

(Continued on page 29)

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MR JAMES (continuing):  We say that it raises a particular

important question for this Court and if the

Court of Criminal Appeal had been minded to discount

the cormnunication between the children and their parents as not having been in sufficient detail,

one would have expected a comment from them as they

did make with the media, including the newspaper

and the television, After all, it was to that

precise matter they gave attention when dealing

with that aspect.

Your Honours, perhaps that is all that I can

put in reply but our submission is that it is a proper
matter for special leave, particularly because of the

function the Court of Criminal Appeal is pursuing

under section SF and the approach that has been

taken to the judgment of this Court in HOCH.

MASON CJ:  Yes, thank you, Mr James. The Court will take a

it will take in this matter. short adjournment in order to determine the course

TSO	AT 3.31 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.40 PM:
MASON CJ:  This is an application for special leave to appeal

from an order of the New South Wales Court of Criminal

Appeal refusing to sever and order separate trials

of the counts in group one of the indictment or,

alternatively, of one particular count in the

indictment. The application seeks to challenge a

discretionary judgment made in the course of determining

an appeal from an interlocutory order. As a general

rule this Court is reluctant to grant special leave

to appeal in cases of this class and there is nothing

in this case that marks it as appropriate for this

Court to review the exercise of discretion by the

Court of Criminal Appeal. Indeed, it would be

detrimental to the administration of justice generally

if this Court were to intervene too readily at an

interlocutory stage in the criminal process and in

any event the Court would be handicapped in its

consideration of the appeal by the fact that the

bulk of the material before the Court of Criminal

Appeal is not before it. The application for special

leave to appeal is therefore refused.

AT 3.42 PM THE MATTER WAS ADJOURNED SINE DIE

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