Tully v The Queen

[2006] HCATrans 343

[2006] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 2006

B e t w e e n -

RAYMOND DOUGLAS TULLY

Appellant

and

THE QUEEN

Respondent

KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2006, AT 10.40 AM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it pleases the Court, I appear with my learned junior, MS K.A.M. GREENWOOD, for the appellant.  (instructed by Welldon Zande & Reddy)

MRS L.J. CLARE:   If it please the Court, I appear with MS V.A. LOURY for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Kimmins.

MR KIMMINS:   By leave granted on 10 March 2006, two specific areas are open for debate in the instant appeal, the first dealing with proper directions to be given to a jury by a trial judge in relation to a complainant’s evidence given in a sexual assault trial, and the second dealing with aspects of uncharged acts.  So far as the first is concerned, if I could take the Court to transcript 242 ‑ ‑ ‑

KIRBY J:   Just pause for one moment.  No application was made at the trial for any direction on either of the points that you are now entertaining?

MR KIMMINS:   No, that is correct, your Honour.  It can be seen that on appeal there was a ground taken in relation to the competent representation of the appellant at trial.

KIRBY J:   Where is that?

MR KIMMINS:   There were a number of aspects discussed, the most relevant being probably at 248.  Line 40 deals with probably the closest point I can take the Court to so far as one of my grounds are concerned.

HAYNE J:   Do we have a final version of notice of appeal in the Court of Appeal?  We have what looks to be a holding form of notice at 230:

conviction was unsafe and unsatisfactory –

and yet it is evident that the grounds changed in argument.

MR KIMMINS:   I apologise ‑ ‑ ‑

KIRBY J:   If you have that that could perhaps be handed up later, after lunch?

MR KIMMINS:   Yes, your Honour, thank you.  Page 242 primarily covers the first of the grounds that we seek to argue in relation to the directions given by the learned trial judge touching upon the evidence of the complainant.  At paragraph [53] Justice Keane identified two passages where it is said that her Honour’s directions in relation to the need to scrutinise the evidence of the complainant were covered.

CALLINAN J:   Mr Kimmins, did not Justice Keane say in the Court of Appeal that this was a case in which delay would not, as it were, have deprived the appellant of opportunity to mount a defence which is I think the matter that was discussed in Doggett that it is the deprivation of the opportunity of actually marshalling a defence.  There seems to be a finding by Justice Keane that this was not such a case.  Now, what do you say about that?  Am I right about that?  I think he did ‑ ‑ ‑

MR KIMMINS:   I accept that that is a correct reading of what his Honour does have to say.  The first point we would make, your Honour, in relation to that is this.  One of the primary reasons he seizes upon that is that on the appeal there was sought to be adduced new evidence – if I could use that term – which had been marshalled by the appellant’s subsequent solicitor on appeal.  There were a number of affidavits obtained but those affidavits only related to some of the offences that he was charged with.  The first point I make in relation to that is that it is not at the point of appeal that one should consider whether there was a forensic disadvantage, but at the time that the matter went to the jury.

CALLINAN J:   Right, but no doubt the affidavits were intended to show that this was the situation at the time that the matter went to the jury.  Was that evidence received?

MR KIMMINS:   In the court?

CALLINAN J:   Yes, in the court?

MR KIMMINS:   Yes.

CALLINAN J:   Is it in the ‑ ‑ ‑

MR KIMMINS:   It is not in the record, your Honour.

CALLINAN J:   What did Justice Keane say about that then?

MR KIMMINS:   Could I take the Court to ‑ ‑ ‑

CALLINAN J:   I take it – was it objected to, the evidence?

MR KIMMINS:   No.

CALLINAN J:   It was not objected to, it was received by the Court of Appeal, is that correct?

MR KIMMINS:   I am sorry, your Honour, could I withdraw that.  I am uncertain now as to the actual decision made by the court.  There was argument in relation to the material.  They received it for the purpose of argument but at the end of the day I cannot honestly say whether leave was granted to rely upon it.  I do apologise.

KIRBY J:   Ms Clare, can you help us on this?

MRS CLARE:   It is clear from the judgment that the statements that were obtained post conviction – there were affidavits filed in the court, the court examined them.  Justice Keane examined those affidavits and considered whether or not the evidence was cogent and whether or not the failure to lead that evidence deprived the appellant of a chance of acquittal.

CALLINAN J:   Does that mean, Mrs Clare – take it in stages, you did not appear in the Court of Appeal, is that correct?

MRS CLARE:   That is so.

CALLINAN J:   Was objection taken, do you know, on the part of the Crown to the reception of that evidence?

MRS CLARE:   I am sorry, your Honour, at this point I cannot answer that question.  All I can say is that it was received for the purpose of considering the ground of appeal against the competence of counsel, and the question of whether or not the trial miscarried because of the incompetence of counsel was measured on the basis of the contents of the affidavit material, as well as the evidence actually led at trial, as it ordinarily would be if a question of miscarriage based upon new evidence is raised.

CALLINAN J:   I suppose it is really for Mr Kimmins if he wants to rely upon any of that material ‑ if it was received, and it seems to me that it was received from what you say – to have had it included in the record, but it is not, so ‑ ‑ ‑

KIRBY J:   It is relevant at least to this extent on your submissions, you make a point that no submission was made at trial, that there should be redirection?

MRS CLARE:   That is so.

KIRBY J:   And therefore if in fact the affidavits which were before the Court of Appeal are in any way relevant to, as it were, answering that point then perhaps as they are part of the record we ought to have them.

CALLINAN J:   We need to know also whether in fact they were objected to.  You can no doubt ascertain the position in relation to that, but I would like to know precisely what the Crown’s attitude was and whether – it does not seem likely that it was, but whether there was a ruling actually made as to admissibility or whether we just have to infer that they were admitted because Justice Keane dealt with them.

MRS CLARE:   Yes.  I can find that out for your Honour, but the ordinary practice in my experience in the Court of Appeal where there this ground of appeal of competence of counsel is raised is that evidence is offered to the court and the court then considers whether or not it is cogent enough to make out the ground of appeal without necessarily a finding of ‑ ‑ ‑

CALLINAN J:   Mrs Clare, from our point of view – and this is not your fault - it seems to be a practice of the Court of Appeal, but from our point of view it is critical that we know whether the evidence was received – whether, for example, it was only received with a view to examining it ‑ provisionally received with a view to examining it to see whether it should be admitted in evidence ‑ ‑ ‑

MRS CLARE:   Yes.

KIRBY J:   Or perhaps for an amendment of the grounds of the notice of appeal which, as Justice Hayne pointed out, are formally in very general terms?

MRS CLARE:   The current grounds of appeal?

KIRBY J:   The grounds of appeal in the Court of Appeal as filed?

MRS CLARE:   Yes.

CALLINAN J:   The point I wanted to make was it is a two‑stage process, really.  The court looks at it to see whether it satisfies the criteria, in effect, for fresh evidence, if it does not then it is not admitted.  If it does, it is then admitted, but no conclusive decision is made at that first stage, if it is admitted, that it is going to be in the end persuasive one way or the other, and it really is unsatisfactory unless we know precisely what the position is.  As I say, it is not because of anything you have done or have not done but it may be that you cannot help us a great deal but I do want to know.  Thank you.

MRS CLARE:   I will find out for your Honour, thank you.

KIRBY J:   I would add to what I said earlier that you also make a point that some of the evidence about uncharged acts came out of cross‑examination?

MRS CLARE:   Yes.

KIRBY J:   That in turn might be relevant to the question of the competency of the person who cross‑examined?

MRS CLARE:   Perhaps I should respond to that in my argument?

KIRBY J:   Yes, indeed.

MRS CLARE:   Thank you.

HAYNE J:   Mr Kimmins, is there any complaint in this Court about competence of counsel?  There is not, is there?

MR KIMMINS:   We did not seek special leave in relation to that.  The decision of Justice Keane when he started talking about incompetence of the counsel is at 237, paragraph [36] under the heading “The incompetence of the appellant’s legal advisers”.

KIRBY J:   I rather took Justice Callinan’s question to be addressed to what weight we give to the fact that no application was made at the trial to redirect or maybe it is also relevant to the cross‑examination, I do not know, but anyway we will allow you to decide what you want us to do in this and we will hear what Mrs Clare has to say later.

MR KIMMINS:   Yes, your Honour, thank you.

CALLINAN J:   Following upon what Justice Hayne has elicited from you, there is no ground for argument about incompetence of counsel, well then should we not infer that the failure – I will not use “failure” but the decision not to seek a redirection – a Longman redirection – was not an ill‑advised decision at the time, that therefore nothing should turn upon or you should not get the benefit of any suggestion that the direction should have been given.

MR KIMMINS:   Possibly I could deal with it this way?

CALLINAN J:   But it was more probably than not a tactical decision.  Why should we not start from that position?

MR KIMMINS:   Dealing with the tactical aspect of it, one looks for a reason as to why one would tactically suggest that a judge not direct a jury in relation to assessing or scrutinising the evidence of the primary Crown witness and there is no ‑ ‑ ‑

CALLINAN J:   All right, anyway we proceed on this basis entirely on the understanding that nothing turns on counsel’s competence or otherwise in relation to this aspect or to any aspect of the case.

MR KIMMINS:   There is no ground of appeal in this Court in relation to that.  Could I just add a caveat that we were somewhat bound by the decision of this Court in Ali and the more recent decision in Nudd in relation to the prospects of being successful in an appeal especially to this Court in relation to the competence of counsel, having regard to those two recent pronunciations of this Court.  It seems that so far as Justice Keane was concerned, your Honour, about - he relied upon Ali’s Case as such and there was no further proceeding taken to attempt to obtain special leave on that ground.

KIRBY J:   Yes, well, let us move on after those preliminary skirmishes.  You come back to your first argument.

MR KIMMINS:   Yes, your Honour.  I had taken the Court to what Justice Keane had identified ‑ ‑ ‑

KIRBY J:   He seemed to think that Robinson was a very special case.

MR KIMMINS:   Yes.

KIRBY J:   Now, what is your submission in relation to that?

MR KIMMINS:   It seems that nowhere in the decision of the Court in Robinson’s Case is there any reference to it to be treated as a unique or special or exceptional case at all.

KIRBY J:   There was no change in the statutory law of Queensland in the intervening time between Robinson and the hearing of this appeal?

MR KIMMINS:   Except this, it seems that – I do not have the date, I can find it – at the time of Robinson, and I will take the Court to Robinson’s decision at 167 in paragraph 17.  The terms of section 632 are set out.  Could I take the Court to the last line of paragraph (3) where it refers to terms in terms of “any class of complainants as unreliable witnesses”.  There has been an amendment in relation to that and I take the Court to 245 of the record book.  Justice Keane in paragraph [65], the last sentence on the page at 55, notes that the section is now in terms of “any class of persons as unreliable witness”.  So the word “complainants” has been replaced by the word “persons”.

KIRBY J:   Is that not an important amendment because the point of distinction that was made by the Court in Robinson was between, as it were, alluding to the class of complainants and alluding to any particular risks of children?  I am thinking of that passage that Justice Keane cites in paragraph [25] or is it earlier?  No, it is in [23]:

As a matter of statutory construction, the prohibition in sub‑section (3) is limited to complainants.  As a matter of framing a summing‑up, in a case such as the present, a trial judge would be ill advised to seek to draw that distinction –

between complainants and children.

MR KIMMINS:   I am sorry, your Honour ‑ ‑ ‑

KIRBY J:   Paragraph 23, at the end of that paragraph, you will see there is a reference to:

the supposed unreliability of child witnesses as a class.

Then the Court says that:

As a matter of statutory construction, the prohibition in sub‑section (3) is limited to complainants.

Now, what do you say is the effect of the amendment to the Criminal Law (Sexual Offences) Act to substitute “persons” for “complainant”?

MR KIMMINS:   It widens the groups that can be considered as such taken outside the realm of just being complainants, but it makes it appropriate and apposite in cases such as accomplices, prison informants.

HAYNE J:   Is not the consequence of the section this, that no longer can a court proceed from a premise that a class of persons who is intrinsically unreliable – and the Code certainly does not say that classes of persons are to be set about as intrinsically reliable, rather what (3) makes plain is that directions may – other provisions would have it should – be moulded according to the circumstances of the case?

MR KIMMINS:   I cannot deny that, and it depends upon what takes place at the trial as such.

HAYNE J:   In particular in this case?

MR KIMMINS:   Yes, your Honour.

HAYNE J:   You cannot argue from the fact that a child is concerned to a conclusion about whether corroboration is or is not required, but what Robinson shows is that evidence of a kind, which at least on one view of events is not radically different from the evidence in issue in this case, is evidence that should attract warnings to juries, but it is because of the way the evidence comes out in the particular case, not from any a priori premise, children, women, complainants, whatever the class is, are intrinsically unreliable.

MR KIMMINS:   I accept that, your Honour.

HAYNE J:   Is not the point that when you go to paragraph 25 in Robinson, the particular witness in this case, yes, was of an age, but is shown to have been of a particular level of understanding at that age.  There was a period that has elapsed.  There is inconsistency and so on.  Those things should attract a warning, and that is the point.  It is good or bad, is it not?

MR KIMMINS:   Yes, that is correct.

HAYNE J:   What would you list as the list of features that should have been the subject of warning?

MR KIMMINS:   The age of the claimant at the time of the commission of the offences, and also at the time of testifying.

KIRBY J:   That is 12 and 14 respectively?

MR KIMMINS:   Nine to 10 for the time of the commission of the offences, and then 14 at the time of trial.  Secondly, the delay in the ‑ ‑ ‑

KIRBY J:   Nine to 10 at offences, 12 at complaint and 14 at trial?

MR KIMMINS:   And 14 at trial, yes.  Secondly, the delay in the preliminary complaint to the mother; thirdly, the failure to complain when first spoken to by the police about penile penetration, the delay in bringing the matter to the attention of the appellant ‑ ‑ ‑

KIRBY J:   There was not much delay after the complaint – the complaint to police.  On my note, it was on 4 April 2002, that was the first interview, and the second on 8 May?

MR KIMMINS:   Yes.

KIRBY J:   I thought that the confrontation of the appellant was very shortly after that?

MR KIMMINS:   The only thing I could pick up from the record book, your Honour, is in the evidence of a police officer who I assume was the arresting officer, a witness by the name of Rabnott, and at 90 of the record book at line 27 he was asked the question:

And you were forwarded a file by the New South Wales Police early in 2003; is that correct?---That’s right, yes.

KIRBY J:   But the trial was held in July 2004?

MR KIMMINS:   Yes.  The next question, your Honour, was – sorry, the one after:

And when was that search carried out?---That was carried out in October 2003.

So as best as I can assume there, when they went to speak to the appellant in relation to the incidents themselves a search of the house was conducted, and that was in October of 2003, so 15 or 17 months after the complaint had been made, and then the trial was concluded in July of 2004.

KIRBY J:   I thought I had read something that suggested it was not long after the interview that he was informed, but it may not be so.  It may have been just an inference I drew.

MR KIMMINS:   I apologise if it is there.

KIRBY J:   Anyway, you say that is the only evidence in the record that you could find?

MR KIMMINS:   That is the only evidence that I can bring to mind at this stage which may give some indication as to when he was informed of the incidents.

KIRBY J:   So they are the three elements, age, delay and the nature of the complaints.  Anything else?

MR KIMMINS:   The following matters could also be taken into account.  The fact that there was a distinction in evidence given by the complainant and the mother so far as what was described as “the Agnes Waters incident”, the fact that there was an allegation of the complainant that as a 9 or 10‑year‑old child she was raped penilely 30 times and digitally penetrated on about a dozen occasions, and there was no medical evidence either way in relation to that.  I accept at this stage that my friend makes reference to it in her outline but it was still a matter that could be well drawn to the attention of the jury.

Further, the non‑satisfaction of the complainant’s account in relation to all offences, ie, that she had established to the jury’s satisfaction beyond reasonable doubt in relation to – the Crown had not established her credibility to the satisfaction of the jury beyond reasonable doubt in relation to the three counts that they were hung on.

Finally, there were aspects of – and this possibly could be taken into account with the earlier reference to delay making complaint.  It was at trial for the first time in relation to at least two or three allegations or two or three of the offences that she added further material in relation to what had occurred, ie, that on an occasion where she said she was touched on the outside of the vagina, she was - at trial she testified for the first time that she was actually digitally penetrated at that stage.  I accept that that can well be tied up in the question of the delay in making allegations, but it was as late as trial that matters were brought to the attention of the court for the first time.

HEYDON J:   Were these matters drawn to the attention of the jury by counsel for the accused?

MR KIMMINS:   All I can go on, your Honour, is her Honour’s summary of the defence address, and that is at transcript 216.

KIRBY J:   Is that where the passage arises that gives rise to your submission that the complaint is that the judge simply gave a summary of what counsel had said and did not lend her own authority to any warnings or observations to the jury of her own?

MR KIMMINS:   That is one part, your Honour.  The other part ‑ ‑ ‑

KIRBY J:   Where do we find that?  Where is that?

MR KIMMINS:   Your Honour, the first part is at 213 of the record book where at line 15 her Honour starts:

Now, just turning to the various addresses –

and she starts with the Crown, and then over to 214, the first paragraph between lines 1 and 12.  That is the first passage that Justice Keane outlined in the first transcript reference I took the Court to and that is at 242, paragraph [53] of Justice Keane’s decision.  That is the first paragraph between lines 12 and 17.  Then so far as the second of those that Justice Keane refers to in paragraph [53] on transcript 242, between lines 18 and 25, that can be found in her Honour’s summing‑up at transcript 216 between lines 23 and 40.  It is the third paragraph down the page when her Honour starts “The defence, on the other hand, say her evidence is”,
et cetera.  So there is one passage referred to when his Honour is summarising the address for the prosecution and the other passage is when her Honour is summarising the defence address.

KIRBY J:   Now, Justice Keane at [53] that you just took us to says that the judge directed the jury “the Crown has to prove”.  Now, is there anywhere where the judge comes close to directing the jury of her own response to those submissions?

MR KIMMINS:   The only other area that I would take the Court to just by way of completeness, at 178 line 20 through to 179, 35 where her Honour is giving general directions in relation to assessing the testimony of the witnesses.  So I would submit that it is a general discussion by her Honour but that seems to be the only other passage in her Honour’s summing‑up that comes anywhere near to assistance to the jury about assessment of anyone’s evidence at trial.

KIRBY J:   Yes.  It cannot be said that by directing their attention to what the Crown says that the judge was then endorsing that what the Crown said and what the accused said in these matters was a matter that she was telling them they had to take into account?

MR KIMMINS:   Not at all, your Honour, and it was such an important matter in the shape of this trial.  It was a basic direction that should have come backed by the authority of her Honour’s position as a judge.

KIRBY J:   You say in your written submissions that for centuries judges have been telling juries of the danger of convicting persons on the evidence of only one person?

MR KIMMINS:   Yes, your Honour.

KIRBY J:   Now, would that be an admissible direction in the face of the Criminal Law (Sexual Offences) Act?

MR KIMMINS:   I would still submit that it is apposite.  This Court in Robinson’s Case adopted the passage which is referred to in ‑ ‑ ‑

KIRBY J:   Is the vice that the statute has addressed at undermining particular evidence, even in its general language of “person” as distinct from “complainant”?

MR KIMMINS:   It talks in terms of classes of persons.  If we are dealing with a particular person, a trial which is conducted upon the say‑so of a single witness effectively, as we have submitted which would occur here, section 632 would not in itself as such stop that from being a direction which can and should be given in appropriate cases.

KIRBY J:   Yes.  Is there anything else you want say on this first point?  Apart from Robinson is there anything else said in this Court concerning this or is Robinson the latest word on this?

MR KIMMINS:   Robinson would be the latest word, I would submit.

KIRBY J:   I think you collected the applications of Robinson ‑ ‑ ‑

MR KIMMINS:   Yes, I have.

KIRBY J:   Are they all in other intermediate courts? 

MR KIMMINS:   Yes, your Honour.

KIRBY J:   Has this Court referred to Robinson since it was decided?

MR KIMMINS:   As I remember, it is not the case where it is been actually – I have a copy of the - I do not know whether it actually made it into the appeal record book, but a copy of the case ‑ ‑ ‑

KIRBY J:   You said there was an appendix, I have not found it.

MR KIMMINS:   Yes, it did not make it, I do not think.  I can hand that up to the Court.

KIRBY J:   Yes, if you would.  Anyway, there is nowhere that you have found where it has been doubted, qualified or elaborated in this Court?

MR KIMMINS:   Not in this Court, but I will just double check that to be the case - no.

KIRBY J:   Yes.

MR KIMMINS:   Possibly the only two matters that I can touch ‑ ‑ ‑

KIRBY J:   I see there are a couple of cases where it has been distinguished.  Is there any common thread of the decisions where Robinson has been distinguished?

MR KIMMINS:   As I read these cases, your Honour, it is primarily factually – there were not sufficient facts to make it a case where a direction was given.  So once again ‑ ‑ ‑

HEYDON J:   One of them is this case, R v TN is this case.

MR KIMMINS:   That is correct.

KIRBY J:   Yes.

MR KIMMINS:   I suppose the only other two matters that I would refer to would be these.  There was reference made, and this is really to deal with the question of the delay aspects, and I take the Court to 248 at paragraph [75].  That is where his Honour disposes of the reference to a Longman direction being needed as such.

KIRBY J:   This is not quite the Longman – this is not a very great delay of the kind that Longman was addressing.

MR KIMMINS:   No, I accept that.

KIRBY J:   This is more a direction concerning the unsafety of the particular circumstances of the case.

MR KIMMINS:   I accept that and what I am trying to do is also to add in the question of the delay itself.

KIRBY J:   Well, delay is a component in the unsafety but it is not really a case that calls for a Longman direction as such.

MR KIMMINS:   No, but it is an added factor which would warrant a strong direction being given.  I just refer the Court to the case of Heuston, which is referred to in footnote 29.  I have copies of those; that decision did not make it into the record book, I hand up copies of that.

KIRBY J:   Why are you bringing this case to our attention?

MR KIMMINS:   It is really in relation to the question of the timing of the – but it was a similar point in time.  It was five and half years from the time of the complaint to the time of trial and the court considered in that particular case possibly it was right at the borderline but it may well have been appropriate in the circumstances to have given a direction in relation to it and I would just refer the Court to paragraph [51].

KIRBY J:   Yes.

MR KIMMINS:   There was the second matter ‑ ‑ ‑

KIRBY J:   Just before you leave Justice Keane, apart from saying that Robinson was a very special case as he felt and referring to some particularities of the facts there, was there any other basis on which his Honour concluded that no general warning was appropriate in this case?

MR KIMMINS:   Transcript 244, paragraph [59], the last sentence in that paragraph, his Honour purports to say - what I have referred the Court to - was no stronger warning was required than that in this particular case.

KIRBY J:   That will, of course, often be the case that it is the evidence of the complainant, no corroboration, and that is the circumstance which perhaps calls forth the type of warning that Robinson is talking about.

MR KIMMINS:   Yes, your Honour.  Further, I refer the Court to 247, about halfway down paragraph [70], starting:

In my view, in the present case, no occasion arose for the giving of a warning as a direction necessary to avoid a miscarriage of justice.  The “dangers”, if any, of acting upon the evidence of the complainant were equally obvious to the jury:  there is no special judicial knowledge to be brought to bear in the assessment of the reliability of the complainant’s evidence; and there was no other aspect of the case which bore upon the assessment of the evidence of which a judge, but not a jury, would be aware.

The submission that we make in our outline and also I make here is that his Honour did not conclude that there were in fact any dangers and, in fact, said if there were any they would be equally open to a jury to understand as compared to a judge.

KIRBY J:   You have referred to the fact that the jury rejected the counts 1, 2 and 10 – they were the counts of rape, were they?

MR KIMMINS:   There was one indecent dealing and two rapes.

KIRBY J:   Can they be explained by the jury being affected by the medical evidence that the degree of penetration had not been sufficient in her case to rupture the hymen?

MR KIMMINS:   The rapes could be, but there is the indecent dealing charge which was count 1.

CALLINAN J:   It is referred to at page 233 in paragraph [7].  It does not seem to be different in kind from those upon which he was convicted although it is the first in time.

MR KIMMINS:   That is correct.

CALLINAN J:   Mr Kimmins, could I just ask you this, paragraph [64] at page 245, his Honour is dealing with section 4A(4).  After construing it he says, well, delays of themselves could not be suggested to the jury as a reason for scepticism and he says:

And for the reasons I have given, the other circumstances of this case were not such as to require a warning that special scrutiny -

What do you take to be the particular reasons and circumstances to which his Honour is referring?

MR KIMMINS:   In the first part of the paragraph, your Honour?

CALLINAN J:   No, in the last two sentences.  No, the last sentence - what are the reasons?

MR KIMMINS:   Where he has rejected that age can be taken into account, the fact that the failure to complain can be taken into account.  I think what his Honour has basically said is that just leaves you with the question of delay and that by itself ‑ ‑ ‑

CALLINAN J:   Yes, I understand that, but when he says:

for the reasons I have given, the other circumstances of this case were not such as to require a warning -

What are the other circumstances which negate the need for a warning of delay in combination that other factors may have been relevant?

MR KIMMINS:   I cannot answer that, your Honour.  I suppose one might say that when his Honour was looking at the evidence where there is reference to cross ‑ ‑ ‑

CALLINAN J:   Does his Honour – I mean I must say I have had a little difficulty in finding where his Honour articulates reasons and refers to circumstances which he apparently regarded as negating the need for any warning, that is, those circumstances taken in combination with delay.

MR KIMMINS:   Especially, sorry, your Honour, just reading that again, “for the reasons I have given” – so, prior to paragraph [64].

CALLINAN J:   Yes, but I just do not know which ones and I do not know what other particular circumstances ‑ ‑ ‑

KIRBY J:   I think in fairness to Justice Keane, his way of reasoning is, we now have a new regime following the Criminal Law (Sexual Offences) Act.  We do not have to give the obligations of corroboration and warning of particular persons as was common in the past.  This is the new regime, there is nothing peculiar or unusual about this case, it is a very typical and ordinary case of a young complainant who is making these complaints.  Because there is nothing unusual or particular about it, as of the naïve and unusual circumstances that he felt existed in Robinson, Robinson does not apply, no obligation of warning.  Therefore, the jury decides the matter without the benefit of any judicial warning and that is how the statute intended it to be.

MR KIMMINS:   That is an interpretation.  That is the way his Honour presented the argument.

KIRBY J:   Well, now, what is wrong with that?

MR KIMMINS:   There were sufficient features which were identified in this particular case despite the fact it may well have been considered to be an ordinary type of case that comes before the District Court day in and day out.  But that still did not take away from the fact that a man was on trial for serious offences where there were matters which the trial judge, because of the office the judge should have been able to been able to assist the jury with in directing them so that there was not a miscarriage of justice.

KIRBY J:   Reading through the cases this morning that you put before us, a factor that seems to trouble appellate courts is if they feel that the case is one where there could be a miscarriage of justice, at least in this case, a factor relevant to that was the medical evidence concerning the complainant.  Where did that medical evidence end up?  There was some dispute about the significance of the unruptured hymen.

MR KIMMINS:   My learned friend has, in her outline, attempted to summarise it at 3.12, and that is on page 6.  It is the last sentence which is not in fact correct as I read it:

Her opinion changed because of published research which indicated that the absence of injury was not a neutral finding on the issue of full penile penetration.

In fact, I understand the passage to say it was a neutral finding.  So if I take the Court to the reference at 13 which is at transcript 6, lines 1 to 10 and 40 to 50; more so at between 10 and 15.

KIRBY J:   What do you say is the effect of this evidence?

MR KIMMINS:   The way it has been left there it does not confirm or negate penile penetration thus leaving it to the jury for them to consider whether a nine to 10‑year‑old girl who had been penilely penetrated on 30 occasions plus digitally penetrated on at least a dozen occasions – whether there should have been some indication or tell‑tale signs, as such.  The jury did not have to accept the doctor; in fact, the doctor had originally said that it did not support her claims but because of published research in a journal that caused her to change her initial view.  So it was really in the providence of the jury to consider it and it was a factor which, as the Court has already noted, may well have led to the jury not being able to agree upon the verdicts in relation to the two counts of rape.

KIRBY J:   Yes, well, we will hear what Mrs Clare has to say about that in due course.  Come to your second argument now.  Unless - do you have anything to add on that first one?

MR KIMMINS:   There were only two other factors in relation to the first one and that is the form of the warning, if I could submit to the Court that in this particular case that the words “dangerous to convict” would have been appropriate to use.  Could I refer the Court to the following ‑ ‑ ‑

KIRBY J:   Is that really – that sounds a bit strong, today.  I mean, it is one thing for the judge to draw a matter to the attention of the jury and make sure that they give proper consideration to it, “dangerous to convict” is a very strong direction from a judge.

MR KIMMINS:   There seems to be two schools of thought in relation to it and over the years the form of the warning has included the words “dangerous to convict”.  It seems more so that in a number of cases more recently the words “should scrutinise the evidence of the complainant carefully” seems to be a phrase which seems to find favour.

KIRBY J:   That seems to be less offensive to the statutory attempt to get away from the old “dangerous to convict” approach that required corroboration and required strong warnings against children’s evidence.

MR KIMMINS:   Yes, I was going to refer briefly to three authorities.  The first is a New South Wales decision of Johnston (1998) 45 NSWLR 362 – I hand up copies to the Court. I take the Court to page 375 and Chief Justice Spigelman, just after point B, said:

A review of those authorities suggest the following propositions relevant to the determination of this case -

I take the Court to paragraph F on that page ‑ ‑ ‑

KIRBY J:   Yes.  This is (vii)?

MR KIMMINS:   Yes, your Honour.

HEYDON J:   This is a case about a Longman warning, is it not?

MR KIMMINS:   Yes, I accept that.

HEYDON J:   The present appeal is not about a Longman warning.

MR KIMMINS:   No, it is not. 

KIRBY J:   See, here you only have really a matter of at most four years, is it not?

MR KIMMINS:   Five and a half, your Honour.

KIRBY J:   Five years – and the complainant was aged nine to 10, so really she is only a little girl in the beginning of the period.

MR KIMMINS:   This Court in Robinson did not articulate what may well in the circumstances be the appropriate direction to give.  That is why I raise at the stage what would be the proper form of the direction to be given.

KIRBY J:   Apart from Chief Justice Spigelman’s observations on this, you say you have two other cases?

MR KIMMINS:   There are two other cases that I can refer the Court to.  The BWT which I think made it into the ‑ ‑ ‑

KIRBY J:   Is that in the compilation?

MR KIMMINS:   No, sorry, your Honour.  I hand up a copy of that – that is BWT (2002) 129 A Crim R 153.

KIRBY J:   Whose decision is this?

MR KIMMINS:   This is the New South Wales Court of Appeal.  I accept, once again, it is a Longman decision and I take the Court to 189 to 192.

KIRBY J:   This is Justice Sully’s, I think we have looked at this in another case once, but I do not remember which.

MR KIMMINS:   I will not take the Court through it, but they are the pages where his Honour deals with ‑ ‑ ‑

KIRBY J:   What was the delay in that case?

MR KIMMINS:   It was much longer than this, it was ‑ ‑ ‑

KIRBY J:   I think this was the celebrated disagreement between Justice Wood and Justice Sully in relation to what we had required in respect of Longman.

MR KIMMINS:   I cannot at this ‑ ‑ ‑

KIRBY J:   Do not worry, we will have a look at that.

MR KIMMINS:   It is an older case, there is a reference on page 166 to:

the complainant’s evidence was that sexual activity occurred between the prisoner and her at least twice a week over the period of seven years to 1982 -

and it is a 2002 case, so it is a ‑ ‑ ‑

KIRBY J:   So it is 20 years, it is a Longman‑type delay.

MR KIMMINS:   Yes, and that is all the cases referred to between those pages, this Court’s decisions in Longman, Doggett, Crampton, et cetera.

KIRBY J:   What is the third case?

MR KIMMINS:   The third case is BFB (2003) 87 SASR 278 – it made it into the cases, it is the South Australian Court of Appeal, and the paragraph is at 45 on page 284.

KIRBY J:   Yes.

MR KIMMINS:   They are the three in relation to dangerous to convict.  So far as the other phrases are concerned, could I provide the Court with other instances of scrutinising the complainant’s evidence with care, but I accept that that seems to be a phrase used more often in other cases.

KIRBY J:   All this just goes to show how important it is that the actual direction given is tailored to the particular circumstance of the case.  If you have a 20‑year delay, that is a Longman-type warning and it is dangerous to convict and if it is a shorter delay and a very young complainant, one is not thinking in terms of such a strong direction.

MR KIMMINS:   I suppose all of the factors that we have identified put this into the same category as a Longman-type case, especially having regard to the medical aspects of it as well.

KIRBY J:   Yes.

MR KIMMINS:   The Court, I believe, your Honour, at this special leave application, asked that some consideration be given to what current thinking is in other jurisdictions.

KIRBY J:   Yes, I think Justice Gummow and I raised that.

MR KIMMINS:   Yes.

KIRBY J:   You have added some cases from other jurisdictions.

MR KIMMINS:   Yes, your Honour.  It seems that the UK situation is primarily ‑ ‑ ‑

HAYNE J:   About what?  Uncharged acts or about warnings?

MR KIMMINS:   No, in relation to directions to juries in relation to the complainants.

KIRBY J:   Are they against the background of similar legislation on abolition of corroboration ‑ ‑ ‑

MR KIMMINS:   Effectively.  Probably the Privy Council ‑ ‑ ‑

KIRBY J:   What is the best case?

MR KIMMINS:   Gilbert is the Privy Council decision.

KIRBY J:   Where was that on appeal from?

MR KIMMINS:   The Court of Appeal of the Eastern Caribbean.

KIRBY J:   Yes, what did their Lordships say?  What paragraph?

MR KIMMINS:   I am sorry, your Honour, I just ‑ ‑ ‑

HEYDON J:   This is a pre-section 632 type, this is on common l0aw warnings.

MR KIMMINS:   It is common law.

HEYDON J:   Well, it has nothing to do with the present position in Queensland then, has it?

MR KIMMINS:   No, I am not suggesting it is.  The Court asked for some idea in relation to what other jurisdictions have considered so far as directions to be given in relation to cases involving complainants.

HAYNE J:   Does not this highlight the particular point, not only the need to begin with the statute but also the point that formulae will not do.  The formulaic approach to charging a jury is not helpful to the jury.  Simply taking the relevant pages from the bench book and chanting them at the jury is of no assistance.

MR KIMMINS:   Yes, your Honour.

HAYNE J:   In the present case you refer to age, delay, nature or quality of the complaint.  If you are right to say that Robinson required a warning without using the formulae “scrutinise with care” or “dangerous to convict”, what exactly was the judge to warn the jury about? 

MR KIMMINS:   It would be because of the combination of factors there and the fact that an appellant in the position of this particular appellant was at a forensic disadvantage in attempting to marshal a defence, in a situation where a period of time had elapsed, as such here, and also because it was an allegation made by a complainant where the only retort he could have would be it did not happen and that because of the jurisprudence and the knowledge of the judiciary over many centuries, the miscarriages that have occurred, that the jury would be wise to look for corroborative evidence of the complainant, if we are not going to use that word, of some supporting evidence for the complainant before they would proceed to convict the man of the serious offences.

HAYNE J:   Well, the statute enjoins against proceeding by way of class.

MR KIMMINS:   Yes.

HAYNE J:   Does that not necessarily enjoin against saying it is the law’s experience that complaints of this nature require special care, special examination or the like?

MR KIMMINS:   No, your Honour, I would submit that what we are dealing with here is this particular – the cases themselves talk in terms of the special knowledge that a court may have that a jury does not possess.

HEYDON J:   What is that in this case?

MR KIMMINS:   A history of miscarriages of justice and in particular circumstances where a jury may feel that the evidence of a nine‑year‑old child or a 14‑year‑old child in circumstances should be believed well and truly without any further question or scrutiny given to it.

HEYDON J:   Because such children as a class are not reliable?

MR KIMMINS:   No, I accept what your Honour is saying.  In this particular case, I would be submitting that what the judge would be able to do is as I indicated before.  I indicated to the Court that what they were dealing with here was the evidence of a person who was at the time nine or 10 years old, that it occurred over a period of time whilst she was at that age, that that person is then purporting to recount some five to five and half years later incidents which she said occurred at that particular time.  In those circumstances, the jury may wish to give – and I just adopt this particular point as itself leaving aside the other factors I have raised – scrutinise that person’s evidence because in the circumstances they may find that it can be unreliable.

HAYNE J:   Is more required than what is said in paragraph 26 of Robinson which seems to contain at least these elements – one, the judge must marshal the difficulties; second, the judge must warn the jury that because there is this set of difficulties, look carefully, scrutinise.  What more, if anything, is required, whether by reference to paragraph 26 or otherwise?

MR KIMMINS:   I would also submit that a direction in the terms of that - I suppose it is an expansion of “scrutinise the evidence” but “look for supporting evidence or corroborative evidence” would also be relevant too.

HAYNE J:   And if there is, or there is evidence that is capable of amounting to corroboration, you would expect the judge to go on to point it out or to point out its absence.

MR KIMMINS:   Yes, because the effect of the direction is to look for other supporting material to back up or support the complainant’s evidence and when there is none that is a factor that should be drawn to the jury’s attention, thus making it dangerous to convict or ‑ ‑ ‑

KIRBY J:   Perhaps what lies behind this is the thought that – leave aside entirely the fact that this is a sexual complaint and a young person.  To deprive another person of their liberty for a very long time is a very serious thing and that to do that on the evidence of one person is permissible but you have to take into account the need to be satisfied beyond reasonable doubt that the general directions deal with this and this is simply the particularity in the particular case of factors that, as it were, explain why the law requires beyond reasonable doubt.

MR KIMMINS:   There is a recent text that we came across in preparation, copies of which we have included in the back of one of the volumes.  Articles and texts, it is volume IV.  The cover sheet of that text did not find its way into the photocopy but it is the last flag.

KIRBY J:   Do you have the cover sheet?

MR KIMMINS:   Yes, I do.  I hand that up.

KIRBY J:   Perhaps you can hand that up and we will put it with volume IV of your materials.  What is the name of the text?

MR KIMMINS:   Delayed Prosecution for Childhood Sexual Abuse.  It was published in June 2006.  The reason I refer to it is because the author at page 129 on point 1 talks about “Australia:  the single witness warning”, and refers to Murray.  I draw it to the Court’s attention because of your Honour’s comments.

KIRBY J:   Yes, thank you.  It could not be more up to date.

HEYDON J:   You mentioned that judges know and juries do not know that there have been miscarriages of justice.  What are they in this category?  One knows of miscarriage of justice in relation to identification evidence, but what are the matters peculiar to the judicial memory of miscarriage of justice in this area?

MR KIMMINS:   I suppose the one that springs to mind is where there is a domestic break‑up between an accused person and the mother of a child.  Allegations do often appear subsequent to that in relation to a possible retribution on behalf of one person or there are in fact, as time goes on, recantations of allegations of sexual molestation.  I cannot point to the Court at this stage and I have not come prepared with any authorities in relation to recantations or anything that your Honour may consider to be relevant.

KIRBY J:   I wondered in this case the fact that the complaint was made to police in New South Wales and the complainant was aged 12 at the time of the interview, does that indicate that the mother went with the complainant to New South Wales separately from the appellant?

MR KIMMINS:   As I understand it.

KIRBY J:   Did the evidence indicate that the relationship between the mother and the appellant had broken up?

MR KIMMINS:   I understand that that was ‑ ‑ ‑

CALLINAN J:   About 18 months to two years before, was it not?

MR KIMMINS:   Yes, they had separated.

KIRBY J:   You had better give us a reference to that if you would.  You can do that after lunch.

MR KIMMINS:   Yes, your Honour.

KIRBY J:   You are going to reach the second argument relating to uncharged acts?

MR KIMMINS:   Yes, your Honour.  I suppose the first point to make basic from the law that in any criminal trial it is at the prosecution’s discretion as to what charges find their way onto an indictment, ie, what the accused person is to be indicted upon, and, secondly, what evidence will be brought or sought to be adduced by the prosecution at trial to satisfy a jury to the requisite standard on the indicted charges.

In this particular case the prosecutor at trial chose 10 instances of sexual abuse and included 10 charges on the indictment, so it was at the prosecution’s discretion that those 10 charges occurred.  The facts of the counts for present purposes are effectively outlined in my learned friend’s outline between pages 2 and 3 where in a tabular form my learned friend has gone through and identified the occasion which each of the counts were based upon and then in the third column identifies the conduct, or effectively the evidence, that was relied upon by the prosecution to establish that count.

So far as what have been described as the uncharged acts, my learned friend too has at page 5 of her outline under paragraph 3.8, once again in tabular form, identified what the prosecution suggested were the uncharged acts.  At no stage prior to the summing‑up was any aspect of the uncharged acts discussed between counsel and the learned trial judge.  There was nothing discussed prior to any evidence being called.  There was nothing discussed prior to the addresses, nor was there anything prior to the summing‑up as to what the uncharged acts were, how they were to be utilised in the shape of the trial or how the jury were to in fact react upon it.  Her Honour in her summing‑up at transcript 180, line 1 through to 182, line 15 dealt with the aspect of uncharged acts.

HAYNE J:   Sorry, just before you come to what her Honour did about it, can I just understand how it got into evidence.  First, do you accept that the relevant evidence is that tabulated by the respondent at page 5 of the submissions?

MR KIMMINS:   For the most part, yes, but there is a second point which I will describe as the FJB point which are uncharged acts which his Honour Justice Keane described as being part of the res gestae, so there are – they can be identified, if we go back to page 2 of my learned friend’s outline.  For instance, the summary of count 4, in the third of the columns under “Conduct” my friend notes:

Under cross examination the complainant said his finger went inside her vagina ‑ ‑ ‑

HAYNE J:   The point to which I want to get is:  what of the evidence of uncharged acts was led by the Crown and what of the evidence of uncharged acts emerged in cross‑examination?

MR KIMMINS:   I have not specifically identified but I accept there were aspects raised by defence counsel in cross‑examination.

HAYNE J:   Is there any that was raised by the Crown in‑chief?

MR KIMMINS:   Yes.  One that comes to mind straight off is – despite what I had in my outline, there is reference to the digital penetration of the vagina on a dozen occasions.  That was in the first of the interviews with the police.

HAYNE J:   The record of interview contained a number of statements about uncharged acts.

MR KIMMINS:   There was reference to Agnes Waters as well.

HAYNE J:   No application made to exclude those portions of the record of interview and all of the evidence with which we are concerned was received without objection or elicited by the defence.

MR KIMMINS:   Some of it was elicited, I believe, in cross‑examination.  Could I reserve my right in relation to identifying those aspects of it.

KIRBY J:   We have to have the factual basis before we know what the law is.  We have to know exactly what the facts were.

MR KIMMINS:   Possibly if I could for the present purposes indicate that – if the Court is content to proceed this way.  A number of the uncharged acts were led as part and parcel of the Crown case in the interviews with the police and a number of those were also identified by defence counsel during cross‑examination.

HEYDON J:   Could I just raise a small matter that is a bit troubling.  We have on page 105, for example, the start of an interview between Detective Sergeant Smith and the complainant at the complainant’s home and at page 127 of that interview we find her narrating an incident which is described in the middle of page 5 of the respondent’s outline of argument.  Is it the case that to some extent the evidence‑in‑chief was given by tendering these records of interview not with the accused but with the complainant?

MR KIMMINS:   That was the evidence‑in‑chief, apart from some ‑ ‑ ‑

HEYDON J:   The whole of it?

MR KIMMINS:   The whole of it.  There were some clean-up questions, if I could use that description, that the Crown Prosecutor asked the complainant.  The Court can see that on transcript 22 through to 38.

KIRBY J:   It is not uncommon in these cases that one gets the position that the prosecutor is carefully trying to shepherd the witness to the particular matters charged in the indictment but the witness blurts out more information and that is often hard to control.  Did that happen in this trial or not?

MR KIMMINS:   No, the Crown Prosecutor – I am sorry about the reference before.  Between transcript 22 and transcript 25 is the sum total of the evidence‑in‑chief outside of the facts contained in the two interviews with the police.

CALLINAN J:   There is a statutory basis, is there not, for the out‑of‑court statement?

MR KIMMINS:   That is correct, your Honour.

CALLINAN J:   What is that statutory ‑ ‑ ‑

MR KIMMINS:   It is section 93A of the Evidence Act.

CALLINAN J:   Can you give us a copy of that at some stage, please.

MR KIMMINS:   Yes, your Honour, I will.

KIRBY J:   This is designed to save young witnesses the problem of giving lengthy evidence in court, is it?

MR KIMMINS:   Giving evidence at the committal hearing and also at trial.

KIRBY J:   You will give us that after lunch, 93A.

MR KIMMINS:   Yes, your Honour.

CALLINAN J:   At page 28 there is cross‑examination of the complainant about a diary that she kept and at line 53 there is evidence that she underlined the dates of incidents.  Did that diary ever find its way into evidence?

MR KIMMINS:   I do not believe it did.

CALLINAN J:   So your side could have been required to tender that.

MR KIMMINS:   Could have been.

CALLINAN J:   But as it was, it is secondary evidence of a document that was received that presumably related to a lot of other events, uncharged events, and that was adduced by your side in cross‑examination.

MR KIMMINS:   I accept that, your Honour, as it appears there.  I am reminded that, as can be seen at line 55, it talks about the date that it happened and sometimes she would draw a skull and crossbones indicating that to her.

CALLINAN J:   The position is that your side at the trial adduced rather non‑specific evidence but nonetheless evidence of other occasions.

MR KIMMINS:   I accept that, your Honour.

HAYNE J:   Then is the hypothesis for our consideration that at trial the evidence of uncharged acts that was given was treated as being relevant – not only relevant but admitted?

MR KIMMINS:   I am doing the best to answer that question, your Honour.  Could I suggest this.  It does not seem by terribly many of the questions that were posed by defence counsel that any forensic advantage could have been gained whatsoever by a number of the questions asked.  I then go to the next proposition that it does not appear clear on anything contained in the material that any thought had been given whatsoever to whether an objection should be taken, what the relevance of the evidence was and in any way, shape or form a discussion – any thought brought to the factors to what the relevance of those factors were in the case.

HAYNE J:   As to the relevance, whether perforce or by design, ultimately the appellant went to the jury, did he not, on the basis that the complainant had so exaggerated events that you could not believe her?

MR KIMMINS:   That was one of the bases.

HAYNE J:   The foundation for that was the evidence that had been elicited about the uncharged acts.

MR KIMMINS:   Led by the Crown or not objected to, I accept, but it was led as part of the Crown case.

HAYNE J:   The difficulty, Mr Kimmins, that you should be aware of so that you can deal with it if you can is if the premise is this evidence is relevant, the question of necessary directions to the jury then takes on a different quality.

MR KIMMINS:   Could I indicate at this stage the proposition advanced before this Court is that there was relevance in relation to some of the uncharged acts obviously, but the question is how they became relevant in the face of the court.  There was no objection taken to the admissibility of it and there are no submissions made at this hearing that the evidence may not have been admissible.  I am stuck with that.  It found its way into court.  The real question and the point that we start off with is what was the relevance.  It seems that her Honour in the pages that I have just identified to the Court is the first person to identify right at the end of the trial what might be the relevance.  There was no direction given to the jury when the evidence on uncharged acts came out as to what they could do with it and it seems that the only assistance that this Court can obtain as to what might have been the relevance of it is from what her Honour did say.

HEYDON J:   You do not complain about the failure of the judge to direct the jury as the evidence came out.  There is no ground of appeal about that.

MR KIMMINS:   No.  It is a matter which is picked up in a number of the authorities, that when looked at properly it should have been ‑ ‑ ‑

HEYDON J:   We have to proceed in a structured fashion, I think, and I am taking the structure from grounds 2 and 3 of the notice of appeal.

MR KIMMINS:   Yes, your Honour.  Our point is that at a time when it was very critical to instruct the jury in relation to what use they could make of the uncharged acts, that there were a number of non‑directions and misdirections so far as this evidence is concerned.

KIRBY J:   Let us approach a structured argument by first of all identifying what her Honour did say and then what you say is wrong with it and then what you say is the way in which it ought to have been dealt with.

MR KIMMINS:   Page 180 of the transcript, line 1.  The first thing to note in relation to the first paragraph is this.  Her Honour noted on the second line that there was:

evidence from the complainant about a number of offences which haven’t been charged.

So that is the first thing.  Her Honour identifies them as offences, not acts, not instances, but offences.  Then she goes on to indicate:

You must remember that the accused is charged only with the 10 offences –

So there right from the start she really lumps into the one category there are offences not charged and offences charged.

HAYNE J:   Look, Mr Kimmins, go to page 259.  There is your notice of appeal.  To which aspect of which ground does this submission go?

MR KIMMINS:   Primarily I was going to (b), your Honour.  That is where I am headed.  I am trying to attempt to look at what ‑ ‑ ‑

HEYDON J:   Ground 3(b)?

MR KIMMINS:   Yes, your Honour.  I deal with that.  The points that we refer to are - to continue on, at the third paragraph down the page her Honour when referring to:

Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only . . . it shows . . . the real nature of the relationship between the accused and the complainant and it does put the 10 charges in their proper context, but you should really only have regard to the evidence of the incidents, not the subject of the charges, if you find them reliable.

So that is primarily the major direction given by the learned judge in relation to the uncharged ‑ ‑ ‑

KIRBY J:   Yes, but she goes on to give some negative directions.

MR KIMMINS:   I accept that.  The negative direction is at 181, lines 1 to 15.  Her Honour then reiterates in the second paragraph on 181:

Remember that the evidence of the incidents, not the subject of the charges, comes before you only for the limited purpose ‑ ‑ ‑

CALLINAN J:   Justice Keane said the evidence was relationship evidence.  That is at paragraph [88] at 251.  I must say initially I find it a little difficult to see how it could establish a relationship because the fact that they were living in the same household and that they were left alone was beyond dispute.

KIRBY J:   But is what his Honour referring to as a relationship, that instead of being the relationship of a stepfather or person in the household with a little girl, it had become a sexual relationship?  We in the law insist upon particularity and charges but in the real world, if there is a sexual relationship that helps you to understand better the particular events that become the subject of the charge.

MR KIMMINS:   Yes, your Honour.  That is how the law has looked at it.  We have a situation - if I could really cut to the chase, there are 10 offences alleged to have been committed over an 18‑month period of time.  Ten offences in themselves one would suggest would establish a sexual relationship as such.  There is this other evidence which has found its way in to attempt to bolster, one might think, that there has been a sexual relationship.

HAYNE J:   That is the point about admissibility, Mr Kimmins, and there is no point made.  That is the difficulty.

CALLINAN J:   The starting point seems to have been that the complainant told the police officer that there were 30 occasions and that was never objected to.  Then there was cross‑examination in relation to that matter, there having been no earlier objection.

MR KIMMINS:   Yes, that is the case.  In relation to what the learned trial judge should have directed the jury and also it should have been accepted more so that in the shape of the factual basis of which the uncharged acts as they are identified in my learned friend’s outline sit, they being very much more serious than the allegations which found their way onto the indictment and represented the 10 charges, the only real basis on which a jury could have considered them is if they came under one of the categories that your Honour Justice Callinan referred to in Gipp’s Case.  If I could take the Court to that.

CALLINAN J:   I was somewhat critical, I think, of relationship - too broad an approach to relationship evidence, although I think I am the only one who said that, am I not?

MR KIMMINS:   Yes, your Honour.  Paragraph 176 at page 166.  Your Honour commences at paragraph 173 on 164 but the primary passage is at 176.

KIRBY J:   There is an awful lot been written on this issue.  As Justice Heydon said, we have to have some sort of structure in the argument.

MR KIMMINS:   I was going to start off by looking at the various judgments of Gipp if the Court wished me to and move from that point on.

HEYDON J:   Just pausing there, that paragraph 176 is about “The dangers of admitting evidence”.

MR KIMMINS:   I am sorry, your Honour?

HEYDON J:   It starts with “The dangers of admitting evidence” and then goes on about “the need to explain its purpose and utility”.  Your complaint is about a failure to explain properly the purpose and utility.

MR KIMMINS:   That is correct, your Honour, yes.  I have to accept the admission but as to what the purpose was, in this particular case we submit that it had to be admissible for a particular reason having regard to the gravity of the allegations which came under the uncharged acts and as such it was effectively – it had to be received strictly.

HEYDON J:   One school of thought is – I know it did not happen in this trial – that at a trial counsel who complains of a direction should hand to the judge a form of words or, alternatively, dictate very slowly the precise form of words.  What form of words should the judge in this case have employed that was not employed on pages 180 to 182?

MR KIMMINS:   Can I take the Court, please, to the volume under the cases of articles and texts.  I take the Court to an article by Ross QC headed “Evidence of Uncharged Criminal Acts”.  It does not appear that my copy is numbered.  It is the fourth article in.

HAYNE J:   It is immediately before the divider marked “Texts”.

MR KIMMINS:   That is correct, your Honour.  At the bottom of page 197 it starts but it is more so 198 where the author talks in terms of “POSSIBLE DIRECTIONS”.  I would submit that that is what we would submit is close to what would be required probably with – so far as point 5 is concerned, it depends on what this Court considers is the appropriate onus, which I will deal with in due course, and possibly a further direction that none of this evidence bolsters the evidence of the complainant so far as the charged acts were concerned.  That comes from Justice Dowsett’s comments in the case of R which we have referred to in our outline.

HEYDON J:   Which particular numbered paragraphs did not the trial judge comply with?  She complied with 1 and she complied with 2.

MR KIMMINS:   Yes, I accept that.  So far as 3 is concerned, she left it just at relationship without further identifying how it could be used.

HEYDON J:   Mr Ross says only the purpose is to “show the relationship”, so which is the paragraph that corresponds to your most recent criticism?

MR KIMMINS:   I suppose the point I make is, your Honour, that we would submit that the only way that this evidence could have been admitted and admissible was that it showed effectively the sexual desire or what was being described in the case as a guilty passion as such.

HEYDON J:   That would be pure similar fact evidence.  That would be Ball v The King.

MR KIMMINS:   That is where I would submit that ‑ ‑ ‑

HEYDON J:   The judge said it was not to be used in that way.

MR KIMMINS:   I accept that.  This is the point that I was attempting to make at the start.  There was never any discussion in relation to what the relevance of it to the case was except when she said it was just relationship evidence per se and that was the end of it.  If it went in as relationship evidence, we submit that she did not describe how it was to be used.  How the fact of the finding of a relationship could have anything to do whatsoever with the finding of a person guilty in relation to any of the offences ‑ ‑ ‑

HEYDON J:   There does seem to be a requirement additional to those which Mr Ross prescribes.  I have some sympathy with your submission that to, as it were, offer an incantatory phrase about relationship evidence is not helpful but it must be done thousands of times a year.

MR KIMMINS:   That is why we submit this Court should take stock of the directions which are given in relation to this ‑ ‑ ‑

HEYDON J:   It is not in Mr Ross’ summary, so what is the direction that the judge failed to give?

MR KIMMINS:   I am going to take the Court to a case of DRG.

HAYNE J:   No.  Do not take me to a case.  You tell me what you say is wrong, then take me to the case.

MR KIMMINS:   All right.  We would submit that where her Honour talks at 180 that:

it shows the prosecution says, the real nature of the relationship -

that it says that the judge should have directed that the only, words to the effect of the only way that this can have any relevance to the course that the trial had taken was showing that there had been ‑ and then for whatever the reasons are including why there was no complaint made, why the first charge occurred, why there was no surprise on behalf of the complainant, why the accused was able to over a period of time do these things ‑ ‑ ‑

HAYNE J:   Can I go back a stage, Mr Kimmins, and tell you the difficulties that I have so far in this branch of the argument so that you may deal with them.

MR KIMMINS:   Yes, your Honour.

HAYNE J:   The evidence goes in, the judge has no argument about whether it goes in, it goes in without objection.  The judge does not know at that stage how either side is using it.  Does the judge learn anything in the course of addresses about how either side wishes to use this evidence?  Does the Crown go to the jury using this evidence on a particular basis?  Does the accused go to the jury on a particular basis about this evidence or is the trial judge at large when she comes to do her charge?

MR KIMMINS:   Well, the first thing is I cannot because the addresses have not been – I have not seen the addresses given by either side.  I cannot comment in relation to what either side said of it.  So leaving that to one side, one would have thought that the trial judge would have been responsible to give proper legal directions to the jury in the confines of the way that the evidence was utilised at trial.

HAYNE J:   If the trial judge is left, there is evidence to which no one has objected, which she has given no assistance about how it is going to be used, what else can she say except, “Look, this, inferentially, as best I can make of it, seems to be put to you as going to the relationship between these two persons but focus if you will, jury, on the charges”.  Leave aside the standard of proof question which I understand is a separate one.  What more can the trial judge say than, “I have this evidence.  You have it, it goes to relationship”, but is she to go on and tell the jury about uses that they may or may not make of it which parties have not agitated in the course of trial?

MR KIMMINS:   I would have thought, your Honour, that that being the case it would have been incumbent upon her Honour to raise with either side as to how they say it was relevant and what directions were to be given.  There were, having regard to the gravity and the magnitude of the number of acts which were alleged to have been uncharged acts in this particular case, they being very much more substantial than, as I have said, the offences on the indictment, what was she to do with them?  What were the jury to do with those ‑ ‑ ‑

HAYNE J:   Being a trial judge is a perilous job, I know, but this seems to be adding a particular peril to it.

KIRBY J:   But normally questions of relevance are ruled on by the judge after an objection.  They are not dealt with by the judge on their own initiative.

MR KIMMINS:   Oftentimes, at first instance, prior to the start ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ because the judge does not know how the whole thing is going to pan out.

MR KIMMINS:   I accept that, but at the start of the summing‑up, by the time the addresses had finished, at least there should have been an inquiry in relation to how she should address the jury in relation to it.  It seems, and I will be fair to her Honour, that a lot of what she said here came from the bench book and seems to have been just a recitation of what is in the bench book.  So her Honour has just gone ahead and addressed that way without, as we identified before, realistic ‑ ‑ ‑

KIRBY J:   Now, what do you say that she should have said at this point in the charge, 181?

MR KIMMINS:   Before I go onto that could I, in answering your Honour’s question, by raising with counsel prior to the start of the trial (1) what the relevance of the evidence was and then looking at each of the uncharged acts that were identified ‑ ‑ ‑

KIRBY J:   But prior to the start of the trial the judge would not have known whether the Crown was going to lead ‑ ‑ ‑

MR KIMMINS:   Sorry, the summing‑up – I apologise.

KIRBY J:   Yes.

MR KIMMINS:   The start of the summing‑up – what were the identifiable acts of the uncharged acts that were before the court, the relevance of their admission, how it is alleged that each of those affects the question of relationship, whether it is the relevance being that because of uncharged acts which occurred prior to the first charged act may well explain why there was no surprise on the first charged act.  I think that is one of the examples which the cases give us.  It seems that in this case that is not such a reason because as at best I can understand it count 1 represents the first incident of any sexual molestation, so that one is not appropriate. 

It may well be that it explains why he was able to ask her without any objection to come into another part of the house so he could molest her, but at least those things could be identified to the jury as to what the relevance of them are and they may take them into account.  As I have attempted to, in the outline, put it, probably as the highest as I can, that it was open to - the way it was left ‑ the jury to investigate and probably at page 11 of the outline, paragraphs 44 and 47 when looking at ‑ ‑ ‑

KIRBY J:   There is an awful lot of dicta and possibly some holdings of courts that say it is admissible for the purpose of showing a relationship.

MR KIMMINS:   I accept that.

KIRBY J:   So what the judge was saying here is pretty orthodox against that background.  Now, what it all means and what the jury take it to mean as to how they can use it, I am not completely clear because it does seem – and this might be just repeating what Justice Callinan said in Gipp – that the danger is that the existence of the relationship becomes the glue that holds together the proof of the actual offences charged in the indictment.

MR KIMMINS:   Yes.

CALLINAN J:   You would think the relationship, if it is going to be proved or it is probative of that, would need to be a relationship different from the relationship which the facts and the offences actually charged would establish ‑ ‑ ‑

MR KIMMINS:   Identified in the charged acts.

CALLINAN J:   I see her Honour, the trial judge, referred to “context”.  I do not really understand that because context, I would have thought, was rarely proved by the proving that the mother was living with the appellant, and the child was there, and other members of the family were there from time to time, and there were opportunities for the appellant to do what he was alleged to have done, and that he did what he did on 10 occasions.  It is not a small number of occasions.  That establishes, if the jury accepted beyond reasonable doubt, a sexual relationship.

MR KIMMINS:   That is as I identified before with the ‑ ‑ ‑

CALLINAN J:   I do not understand what is meant about the context and that does not resolve your problem about not seeking directions

MR KIMMINS:   No, I accept that.

CALLINAN J:    ‑ ‑ ‑ and not objecting to the evidence or anything of that kind.  But I do not really understand.  Relationship has not been defined.

MR KIMMINS:   No.

CALLINAN J:   It is a vague concept.  In Gipp, however, I was talking much more about background evidence.  That is what I was concerned about.

MR KIMMINS:   Yes.

CALLINAN J:   There were references in some of the cases to background evidence and those references were even less specific than the references to relationship evidence.

MR KIMMINS:   Yes.

KIRBY J:   In a sense this is not a particularly good vehicle for the Court to deal with the issue of uncharged acts, quite apart from the fact that we are not here seven.  First, there was no objection to any of the evidence of the uncharged acts at the trial.  Second, there was no request to the trial judge, before the summing‑up, to consider submissions from counsel concerning the directions.  Thirdly, there were no requests at the end of the charge requesting redirection in any particular way.

MR KIMMINS:   I am bound by the conduct of the defence counsel at first instance ‑ ‑ ‑

KIRBY J:   I realise that.

MR KIMMINS:    ‑ ‑ ‑ and attempting to indicate that even taking all those factors into account that the directions identified in her Honour’s summing‑up were so deficient that the court would consider what would be the appropriate directions to be given in a case similar to this and that is ‑ ‑ ‑

HEYDON J:   Well, we cannot do that unless we know what the addresses are.  We have to understand the whole of the trial to work out what the precise issues are.  The judge may have taken the view - one possibility is her mind was blank on the subject ‑ but she may well have taken the view that “All of this evidence has come in, not very much attention has been given to it, counsel for the accused probably regards it as inevitable that it would have come in, has taken the view that the best thing is not to make much of a fuss about it, so I will not make a fuss about it either because it would be unfair to the accused if I did”.  What else can a judge do if there is no protest or no submission indicating what she should do?

MR KIMMINS:   There is a duty cast upon a trial judge to, in the face of the way that the trial is being conducted and the evidence adduced ‑ ‑ ‑

HEYDON J:   What?  To object to all the evidence which the judge thinks is inadmissible?

MR KIMMINS:   No, I am not suggesting that there is any onus at all in relation to the question of objecting, but when it comes to having regard to the fact that the evidence is in - and it is before the jury in all its glory ‑ it is there before them for them to consider, for the judge at that stage to direct the jury how they are to interpret this very prejudicial material.

HAYNE J:   She has had no debate directed to this subject of why it is relevant.  The moment the trial judge embarks on a direction, “Look, this is how you may use it”, that is cast in anything but general terms the trial judge is embarking on a very perilous course because you do not have to sit long as a trial judge to know that counsel have reasons for doing things about which you do not know, you should not know, you never will know.  All you can do is deal with what you have.

CALLINAN J:   Mr Kimmins, to take up what his Honour has said, for example, the defence might want to say and may even have said it in this case, we do not have the addresses, but may have said, “This girl will say anything.  She said 30 times and she could not be specific about it.  How could you possibly accept her on anything?”  It may have been a possible approach.  It may have even been said.  As Justice Heydon has pointed out we do not know what was said.

MR KIMMINS:   Even if it was said by the defence, that still did not relieve her Honour of properly directing the jury as to how they are to use the evidence.  That could well have been covered in her Honour’s summary of the defence and the Crown addresses ‑ ‑ ‑

CALLINAN J:   But we do not know how her Honour could and should have dealt with it unless we know what the respective parties said about it.  There could have been an equally devastating response to that by the prosecution.  We just do not know.

MR KIMMINS:   The best we can get is really what is contained in her Honour’s summary of the pertinent points in each of the addresses and that is all that we have been provided with.

KIRBY J:   Now, from the point of view of the Court, this is a very important issue.  I think you have in your material that you have given us made a fair case that the law has not been clear and it is desirable that this Court deal with the issue but the question is, is this the case for the Court to deal with the issue in view of the imperfections that have been mentioned?

MR KIMMINS:   In our submission, it is because regardless of how the evidence got in, there was an onus cast upon the trial judge to properly direct the jury according to law and the jury received no assistance from her Honour as to how they were to interpret or utilise that.

KIRBY J:   Well, her Honour did refer to something which is in a lot of the cases and that is she gave positive and negative directions which you say come from a bench book, and which look as though they come from a bench book, about the way in which they were not to use the evidence and the way in which they could use the evidence in relation to a relationship.  Now, all of that, whilst it may not be perfect or the best way in which to deal with it, is fairly orthodox stuff.  No objection was taken to it at the trial. 

MR KIMMINS:   It may well be orthodox, but it is not correct and I accept that there is no direction taken.  Possibly on page 10 of my outline in the four points at paragraph 41, probably puts in summary form the best suggestion in relation to the inadequacies of what her Honour did.

HEYDON J:   Was this line of argument you have been presenting latterly put to the Court of Appeal?

MR KIMMINS:   Yes.

HEYDON J:   What did they say about it?

MR KIMMINS:   The court dealt with the submissions very quickly.

HEYDON J:   Paragraph [88] deals with the standard of proof question to which you have not yet come.

MR KIMMINS:   And then [89].

HEYDON J:   Well, that is standard of proof.

MR KIMMINS:   I am sorry, [90] and [91].

CALLINAN J:   I must say I am finding it difficult to see what further relevant aspect of relationship the uncharged acts would have proved over and above whatever was proved by proof of the offences.

MR KIMMINS:   I suppose, the two real aspects of her Honour’s directions that we look at in relation to both of the grounds that we rely upon here are the word “relationship” as to what that meant and what directions were appropriate to explain to the jury what it meant, what they could use it for and what they could not use it for.  The second question is the word “reliable” so far as the onus is concerned.  They seem to be the two words that ‑ ‑ ‑

KIRBY J:   Well, you addressed us on the first.

MR KIMMINS:   Yes.

KIRBY J:   What do you want to say about “reliable”?

MR KIMMINS:   As identified in the passage that I have taken the Court to ‑ ‑ ‑

KIRBY J:   What does “reliable” mean in this context?  It is certainly something short of “beyond reasonable doubt”.

MR KIMMINS:   It is short of something – a number of the cases talk about unless they find the complainant as accurate and truthful they could not rely upon her.  “Reliable” in itself ‑ ‑ ‑

KIRBY J:   Does that come from another case?  Was that in the bench book?

MR KIMMINS:   I believe that is in the bench book.

CALLINAN J:   Well, it means “reliable beyond reasonable doubt” though, does it not?  The judge on a number of occasions said that the offences had to be proved beyond reasonable doubt.  Is that not right?

MR KIMMINS:   We would submit not ‑ ‑ ‑

KIRBY J:   The magic phrase was not added in this context.

MR KIMMINS:   No, that is correct. 

KIRBY J:   But there is a very real question in the authorities as to whether the uncharged acts have, or have always, to be proved beyond reasonable doubt and then the law has resorted to these metaphors.  If it is a link in the chain then it has to be.  If it is a thread in the wire or some other such metaphor it is simply a factual circumstance and a background and it is only the charged acts that have to be proved beyond reasonable doubt.  So the law is not entirely clear on this subject.  That takes us back to whether this is the case in which to try to clarify it in view of the imperfections of the way in which it is tendered to us.  Anyway, you tell us what “reliable” means and what is the defect and any authority that is relevant that you want to refer to.

MR KIMMINS:   So far as the Court of Appeal is dealing with the matter, that is at 251, identified in paragraph [88] and Justice Keane seized upon the phrase “an indispensable link” in the chain of proof.

HEYDON J:   I think, actually, there is a more satisfactory way of putting that submission.

MR KIMMINS:   Yes, your Honour.

HEYDON J:   Justice Keane was not sort of running around trying to find something with which to assure the conviction of your client.  He was endeavouring to deal with an appeal.

MR KIMMINS:   Yes, your Honour.  Probably the starting point in relation to the question of standards really brings us back to Gipp’s Case again.  In relation to what can be found, as your Honour Justice Kirby has indicated, it seems it really depends on which particular – the authorities seem to say ‑ camp this evidence falls into, whether in fact it is the link in the chain or the thread of the rope.

KIRBY J:   What is your submission?  What do you say is the correct statement of the law?

MR KIMMINS:   The correct statement of the law is this, that in circumstances where uncharged acts, especially with the gravity of these, in fact as they were, that the jury should be directed specifically that they must find and establish beyond reasonable doubt before they could utilise them and be that in this particular case ‑ ‑ ‑

KIRBY J:   That seems to offend the principle that it is only the counts of the indictment that have to be proved beyond reasonable doubt.

MR KIMMINS:   There is discussion in the cases about the course of conduct or the uncharged acts represented by the course of conduct being sufficiently weighty to warrant the description of beyond reasonable proof, beyond reasonable doubt, that is, the course itself has been proved beyond reasonable doubt.  The authorities, as your Honour has indicated, do not speak as one in relation to how it all sits together.

KIRBY J:   Chief Justice Doyle in Nieterink, I think it is called, says that the jury should be told that if they use the evidence of the uncharged acts as a step in their reasoning to accept beyond reasonable doubt the proof of the charged acts, then the additional ingredient has to be proved beyond reasonable doubt.  That seems to be what Justice Keane is also saying here.  Sometimes it is explained in terms of res gestae.  If it is really part and parcel of the proof of the actual offence then because it is part and parcel, the actual offence has to be proved beyond reasonable doubt.

MR KIMMINS:   That is the second of the points that we raise the FJB point in relation to it, that it was part of the res gestae, ie, those factors of her evidence which she adduced at trial.  But when one looks at the – one cannot break up a sexual relationship as such and in this particular case it was the Crown’s contention that over a period of time, stretching some 18 months or so, he, at regular intervals, indecently assaulted her in a sexual ‑ ‑ ‑

CALLINAN J:   The truth is, really, it is propensity evidence and nobody wants to rely upon it or touch it as propensity evidence, but it plainly is.

MR KIMMINS:   Yes, because it talks in terms of offences.  It is evidence of offences.  Other offences being committed ‑ ‑ ‑

CALLINAN J:   Committed of the same kind, in the same way, in the same sorts of circumstances, but nobody wants to rely upon it as propensity evidence because of all of the conditions upon which that has to be admitted and what has to be said about it.

MR KIMMINS:   We accept that.  It has to be because it is ‑ ‑ ‑

CALLINAN J:   I thought it clearly was propensity evidence in Gipp.  That is what it really was.

MR KIMMINS:   Well, especially if you consider the proposition of being penilely raped on 30 occasions.

CALLINAN J:   In the same way, in the same sorts of circumstances, the same inducements, the same threats, the same sorts of places – satisfied every criterion, I would have thought.

KIRBY J:   Especially if you take her allegation of 30 instances of rape and more than a dozen of digital penetration.

MR KIMMINS:   Yes, exactly.

KIRBY J:   Well, I suppose it comes down to this.  You say the law on this subject is unclear and it ought to be cleared up and it is the job of this Court to do so and you have given us the material and good luck to you.  Is that what you are saying?

MR KIMMINS:   I am prepared to take the Court through various of the authorities to prove ‑ ‑ ‑

KIRBY J:   Which is the best authority from your client’s point of view?

MR KIMMINS:   In relation to the onus or in relation to the directions?

KIRBY J:   No.  Well, in relation to the directions that should be given for uncharged acts.  I thought what Chief Justice Doyle said in R v Nieterink (1999) 76 SASR 56 at 73 is pretty strong from your client’s point of view.

MR KIMMINS:   Yes, your Honour.

HAYNE J:   That is a view that depends, does it not, upon a certain sequence of jury reasoning?

MR KIMMINS:   Yes, your Honour.

HAYNE J:   Why should that sequence of jury reasoning be assumed or regarded as necessary in a case of this kind?

MR KIMMINS:   Because of the – one must assume, we would submit, because of the grave allegations which were made and the ‑ ‑ ‑

HAYNE J:   That is to say the jury cannot go into the jury room and say that, “We have heard a lot about other events that have said to have occurred.  Let’s forget about them for the moment.  Let’s focus only on the evidence that relates to the particular events.  Guilty or no?  I am satisfied beyond reasonable doubt.  Guilty”.

MR KIMMINS:   One would have thought that when a jury considers its verdict they would look to see ‑ for the first point is whether they can be satisfied that there was a sexual relationship ‑ if we are calling it “sexual relationship” evidence as such.  The first port of call is, “Let’s see whether there is a sexual relationship between these two people and let’s look at all of the acts, be they charged or uncharged acts.  Let’s lay them all on the table and just see.  Over a period of 18 months she says this happened on these occasions.  That being the case, well, we tend to conclude that possibly there was something going on at that stage.  Now, with that basic premise being established, let’s go on to consider whether we are satisfied beyond reasonable doubt in relation to the individual charges.”

That is one way of thinking, or, start off considering whether in fact each of the individual charges had been established beyond reasonable doubt.  If you get to an impasse where there is a question of probabilities, “We do not know whether in fact we believe her or not.  Let’s have a look at the other uncharged acts”, which will just push the Crown over the line in establishing proof beyond reasonable doubt.  There are a number of different ways a jury could go about it and as such one must direct accordingly to stop them impermissibly using it.

HAYNE J:   You may come back to this after lunch, of course, but it occurs to me that the premise for that is that the uncharged acts evidence has been simply admitted at large.  That, I think, is the false premise from which that aspect of the argument runs.  You cannot decide directions about uncharged acts at a level of generality of the kind that you are advancing, because the question of admissibility of the evidence affects the use that may be made of it.

MR KIMMINS:   The point that I would seek to make, your Honour, is this, that regardless of what was in the counsel’s mind, or not in the counsel’s mind at the time of the admission of the evidence, at the time that it came for the jury to consider it, they had to know what they were supposed to do with and they were not assisted by the directions given by the learned judge in relation to it.  As such there was the onus cast upon her to give appropriate directions to them as to what they are supposed to do with it according to law.

KIRBY J:   Yes.  Well, I think we get the general gist of what you are saying but we will come back to that point after lunch.

MR KIMMINS:   Thank you, your Honour.

KIRBY J:   We will adjourn now until a quarter past 2.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.10 PM:

KIRBY J:   Yes.

MR KIMMINS:   Over the luncheon break my junior contacted the court reporting bureau and I have been provided with a copy of the addresses of both counsel at trial.  Having regard to the matters raised by the Court prior to the break I would seek leave to hand up copies of the addresses of counsel.

KIRBY J:   This goes to which issue?

MR KIMMINS:   It is in relation to the aspect the Court raised with me you could not be certain in relation to how the uncharged acts were relied upon throughout the course of the trial because one of the aspects had to be what counsel made of it in their addresses.

KIRBY J:   Yes, I think you were asked about that several times.

MR KIMMINS:   Yes.

KIRBY J:   Yes, very well.  Hand it up.  Do you want to say anything, additionally, having read the transcript?

MR KIMMINS:   It is apparent that defence counsel made reference to – I am sorry, before I even get on to that, as an aside, it would seem that Crown counsel – harking back to the first of the points – made specific references to the age of the child when making a number of his submissions to the jury.

KIRBY J:   Where are you taking us?  What page?

MR KIMMINS:   Page 116 at about line 55, the reference to the “14‑year old child”, over to 117 between about lines 1 and 5:

a 10‑year old child . . . You all look young enough to remember what it’s like to be 14.

Page 119 at line 15:

but knowing what you do about 10 year olds ‑ ‑ ‑

CALLINAN J:   What page, sorry, Mr Kimmins?

MR KIMMINS:   Page 119, your Honour, at line 15, 121 between lines 20 and 30 and then a final reference to “making due allowance for” her at the bottom of 122, line 55 over to 123 at line 5.  That is specifically obviously deals with the first point we were talking about.  Now, so far as this second point in relation to the uncharged acts, I take the Court to 122 in the Crown Prosecutor’s address.  There he deals with the medical evidence, specifically touching upon, one would surmise, the 30 incidents of rape at about line 5.

CALLINAN J:   Were all of the other 30 incidents incidents of rape or are they some of just indecent dealing?

MR KIMMINS:   No, she indicated that they were insertions of the penis into her vagina to varying degrees.

CALLINAN J:   Thank you.

KIRBY J:   Yes.

MR KIMMINS:   The defence counsel at 124, lines 38 through to 50 referred to – I am sorry that is – yes, the interviews with the police officers and then over to 125, line 5 deals with the material from Agnes Waters.  That is down to about line 20.  From that point on there is reference there to a number of the charged acts.

KIRBY J:   So, he is addressing on Agnes Waters which was an uncharged act.

MR KIMMINS:   That is correct, your Honour.

CALLINAN J:   What page, I am sorry?

MR KIMMINS:   That is 125, your Honour.  I thought there was an earlier reference to the 30 counts of rape by defence counsel.

HAYNE J:   Just before you come to that, the 125 piece has to be read with 124, line 55 and following.  The use which defence counsel is making of the uncharged act is:

So this is one of those extra bits of evidence about which there isn’t even a count, but I think it’s a good example of how you would have such a lot of difficulty with [the complainant’s] evidence.

MR KIMMINS:   I am sorry, I take the Court back to 123, at line 40 which refers to the 30 incidents of rape.

KIRBY J:   Why was defence counsel laying emphasis on this?

HEYDON J:   The bigger the allegation the bigger the lie.

MR KIMMINS:   That is effectively what is going to be said.

CALLINAN J:   Exactly, that is what I was putting, the point that counsel – the forensic point that counsel might have made.

MR KIMMINS:   Was trying to make out of that.  They, on my chance to go through it, seem to be the major areas that I was able to pick up where there seemed to be references made to uncharged acts.  I apologise to the Court if I have missed any.  I have attempted to skip through it over lunch.

KIRBY J:   Yes.

MR KIMMINS:   Apart from those matters that I have been able to identify at this stage - there seems to be – at 133 defence counsel refers to, at about line 48:

The medical evidence doesn’t help anybody either way.

The other factors, if I could address it this way, the Court posed the question as to whether this would be an appropriate vehicle for the Court to address aspects of uncharged acts.  As is patently obvious, there have been a number of discussions in relation to the various decisions of the members of the Court in Gipp’s Case and since that time a number of the State appellate courts have commented upon that there was no clear ratio from this Court and that they have attempted to look at it in the best possible way they could.

If I could refer the Court to R v Pearce [1999] 3 VR 287, which is one of the cases provided. Apart from the point that I was attempting to raise I take the Court to page 296 and paragraph [27]. As I said, this is not the point that I was attempting to make but if I could take the Court firstly to that aspect of it.

KIRBY J:   Yes.

MR KIMMINS:   Then, from that point on, they refer to your Honour Justice Kirby’s decision in Gipp on 297 at about line 10.  Then, at the bottom of the page, three lines from the bottom, they refer to Justice Callinan’s decision.  From the bottom of that page could I take the Court to:

Evidence of that kind has in recent years produced a number of practical problems and it continues to occupy, I venture to say, a ticklish area of the criminal law.  The potential difficulties, as well as the dangers –

then the quote from Justice Pincus in Schneider’s Case, especially the last sentence in the quote, specifically referring to “directing juries on the point” and I take the Court to the very next paragraph commencing:

So too, in this State ‑ ‑ ‑

KIRBY J:   Vonarx was a case that I referred to in Gipp.

MR KIMMINS:   That is correct, your Honour.

KIRBY J:   I think I said I agreed with – what was the approach in Vonarx?

MR KIMMINS:   Effectively, it was a ‑ ‑ ‑

KIRBY J:   This is in the Court of Appeal of Victoria?

MR KIMMINS:   Yes.  I think they basically adopted, or your Honour accepted they adopted the correct view in relation to looking at it prejudicially as compared to probatively, the balancing act.

KIRBY J:   Was Justice Hayne in Vonarx?

HAYNE J:   It was President Winneke, Justice Callaway and Justice Southwell. It is [1999] 3 VR 618.

KIRBY J:   I am always looking for Justice Hayne’s priors.

HAYNE J:   There is a long second presentment filed every time.

MR KIMMINS:   Taking on from that point, I was going to refer the Court to a Queensland authority of R v Bowman [2001] QCA 500. A copy of that was provided with the material, I believe.

KIRBY J:   Is this all leading to the suggestion that intermediate courts have no real clarity as to what they are to do in these cases and hence trial judges do not and hence it is varying – it is a bit over the place throughout the country?

MR KIMMINS:   That is correct, your Honour.

KIRBY J:   That may be given but if that is so I think this is obviously an important point.  I am still concerned that a Court of seven is really the proper place to deal with it and on an occasion where issues of admissibility have been properly taken and preferably requests for redirection properly made.

MR KIMMINS:   I accept - I wish this was that case, your Honour, but so far ‑ ‑ ‑

KIRBY J:   Anyway, you cannot change the record.  You have to do the best you can for your client on the record.

MR KIMMINS:   Yes, your Honour.

KIRBY J:   Press on.  What was this in the case of Pearce?

MR KIMMINS:   It is another example of the Queensland bench book being utilised and I am looking ‑ ‑ ‑

KIRBY J:   This is Bowman we are on, now?

MR KIMMINS:   Bowman, yes, your Honour, paragraph [22].

KIRBY J:   Does the trial judge’s direction in that case follow largely the direction given in the present case?

MR KIMMINS:   Yes.  I have copies of the bench book which I was going to hand up to the Court.

KIRBY J:   Yes, that would be helpful.

MR KIMMINS:   It is in similar terms to the directions by her Honour here.

KIRBY J:   Yes.

MR KIMMINS:   Of appropriate note on it is page 8 of Bowman’s Case, just prior to the start of paragraph [29] when it was noted, two sentences from the bottom:

In my view the judgments in KRM reflect a less stringent attitude towards the giving of such directions than might have been gleaned from the earlier cases of BRS, Gipp and Vonarx.  The necessity for such a direction depends very much upon the circumstances of the particular case and especially upon the perception of risk that the jury might engage in unfair stereotyping.

Our proposition seems to be reflected in a recent decision of the New South Wales Court of Appeal ‑ ‑ ‑

KIRBY J:   In the Court of Appeal or Court of Criminal Appeal?

MR KIMMINS:   The Court of Criminal Appeal, your Honour.  That is Qualtieri v Regina [2006] NSWCCA 95. I hand copies up to the Court.

KIRBY J:   What do you say is the principle that the New South Wales Court of Criminal Appeal has adopted in this case, Qualtieri?

MR KIMMINS:   They identify how powerful evidence of sexual relationship beyond charged acts can be.  Could I take the Court possibly to the bottom of page 22 with the heading, “Consideration of the problem”.  It is the last sentence on the page.

KIRBY J:   Is this a single judgment of the court?

MR KIMMINS:   No.

KIRBY J:   It is the reasons of the Chief Judge at Common Law?

MR KIMMINS:   Yes.

KIRBY J:   Yes.

MR KIMMINS:   Then over to paragraph 72 and 73.

KIRBY J:   Yes.  They have stated the problem.  What do they say is the solution?

MR KIMMINS:   Moving through, at 75, your Honour, on the next page culminating in paragraph 80 at the bottom of page 26.  I refer to the whole of paragraph 80, more particularly the last paragraph in paragraph 80.  That last paragraph is the position we would submit is appropriate in the circumstances of this case, regardless of the fact that there was no discussion by counsel with the learned judge in relation to the reasons that it was admitted.  The fact is it was admitted.  It had to be admitted for a reason and the jury had to be properly directed.

The final case I refer to, so far as the directions are concerned, is the case of R v DRG (2004) 150 A Crim R 496, which was amongst the material presented to the Court. It is of interest that between paragraphs 26 and 27 there was a ground of appeal in relation to the failure to give a warning in relation to the evidence of the complainant, but more particularly, the ground so far as the uncharged acts – at paragraph 55 which was ground 6 – and I refer the Court to what is contained at paragraph 56 on page 507, and also 57.

It is of interest to note that the court there, especially Chief Justice Doyle, has on a number of occasions adhered to the danger in using the words “relationship and context” to describe this type of evidence as well.

CALLINAN J:   What does it mean?  What sort of a relationship?  Once you charge more than one sexual count then obviously it is a sexual relationship.

MR KIMMINS:   Yes, your Honour.

KIRBY J:   There seemed to be, generally speaking, two streams in this:  the judges who take Justice Callinan’s view and are very concerned at the propensity reasoning which seems almost inherent in talk of relationships and the judges who believe it is hard to prevent the jury hearing matter commonly blurted out because complainants do not see things in specifics but in the general and that you have to just face the reality and accept that juries ultimately concentrate on the counts and direct their attention to whether they are proved.  How one reconciles those different streams in the authorities which are both reflecting realities in the criminal trial is difficult to see.

CALLINAN J:   What Chief Justice Doyle said, with all due respect, makes a lot of sense to me.  You can introduce it to counter what would otherwise be surprising or unexplained, but otherwise, to say “relationship”, I do not know what it means ‑ ‑ ‑

MR KIMMINS:   And the jury were not assisted here in relation to what it meant.  That is all I have so far ‑ ‑ ‑

KIRBY J:   I have raised with you on a number of occasions, and I will ask Mrs Clare this, and I only ask her for myself – in the event that when we go away to consider this matter we are concerned about whether the Court should deal with this as an entire Court, you collected all the materials and the arguments you put are in your written documentation, and the transcript is available, you might consider whether you would have any objection to the matter being dealt with on the transcript and on the arguments that are recorded by the entire Court.  I am not saying that course will be taken because that is a matter for us to decide, but that may be something which at some stage you would have to be asked formally to accept or not.

MR KIMMINS:   At this stage I could indicate that we would have no problems with that.

KIRBY J:   Yes, very well.  Thank you very much.  Yes, Mrs Clare.

MRS CLARE:   If it please the Court.  If I can deal first with the first ground which is the claim that a warning to have been given in relation to the dangers of convicting on the uncorroborated evidence, it is our submission that there is nothing in this case that necessitated a warning of that kind.  This is not a case where there was the possibility of some honest but distorted mistake about what had happened and it is not a case where the defence had in fact been impaired by the delay of the complainant to make a complaint for the matter to come to trial.

There was a modest delay and a plausible explanation for that delay.  There were detailed and highly specific allegations in the complainant’s evidence and there was confirmation of the reliability of the peripheral circumstances of the complainant’s evidence.  Indeed, there was support for aspects of her allegations in relation to, for example, the markings on the appellant’s body and the protracted period of time that he was with the complainant in the dark in the car park at the Camelot Hotel, which has gone unexplained, on the evidence.

There is the supporting evidence that the appellant in fact had guns and slept with a gun under his pillow, which ties in with the threats that were made to the complaint and there is support about the telephone calls that she claimed to have received after the relationship between her mother and the appellant had broken down and when he would specifically ask to talk to her, and there is support for the fact that she then, after a period of time, rejected his calls.

HEYDON J:   Your argument is that whether you call it corroboration or some form of confirmation there was material which made it unnecessary to include some of the particulars as a direction that the appellant is urging.

MRS CLARE:   Yes.  My argument is that this case was purely a case of credit.

HAYNE J:   There are very few child sexual cases that are not.

MRS CLARE:   That is so.

HAYNE J:   Why then does Robinson say what it does?  One view Robinson was nothing but a case dependent on the complainant’s credit.

MRS CLARE:   Yes.  Robinson’s facts are set out, of course, in paragraph 25 of that judgment but the underlying principle in that judgment was that the circumstances there obviously raised a perceptible risk of a miscarriage of justice.  The judgment, in my respectful submission, has to be seen in the context of the entrenched principles abided to by this Court in relation to the giving of warnings, that is, that warnings are not matters – warnings about the danger of evidence – particularly now we have the special legislative scheme – those warnings are not matters to be given as of course but they are exceptional features – exceptional creatures to be given where the law’s experience is such that it is greater than the experience of the jury.  If that is not the case then the jury’s skills and advantages in assessing the evidence have to be accepted.

KIRBY J:   I do not think it can be said, as Justice Keane said, that Robinson was a special case.  It really was simply another case in this category with its own special circumstances and what was said there, which was effectively adopting what Justice Lee had said in dissent in the Court of Appeal of Queensland, was that the statute does not exclude the judicial obligation to give warnings where that is required by the circumstances.

MRS CLARE:   The individual circumstances, that is so.

KIRBY J:   Here, there is the somewhat unsettling circumstance about the medical evidence and the allegation of 30 rapes and many of them with deep penetration and there is the fact that the mother split up with the boyfriend and they went to New South Wales and it was only then that the allegations were made, which it is said is a circumstance that sometimes accompanies accusations, as it were, in support of the mother, or perceived support of the mother, which may not be true.  That is the factual background and then you have the age, the delay and the circumstances of the case.

MRS CLARE:   Can I say, firstly, that all of these things need to be considered, of course, in the way in which the case was litigated.  Secondly, your Honour raises concerns about the medical evidence.

KIRBY J:   Yes.

MRS CLARE:   Clearly, the medical evidence was perhaps the strongest argument that the defence in this case had.  In my respectful submission, it is the motivation for the approach taken to the uncharged acts, but, having said that, because the defence sought to discredit the complainant and her allegations by saying, “She says this happened so many times and yet there is no medical support for that”, but at the same time the evidence of the doctor was that she could not discount the child’s evidence in light of medical research.  In the Court of Appeal the appellant was given the opportunity to provide a further and different opinion.  No further evidence was provided.  So it must be accepted, in my respectful submission, that the doctor’s evidence at trial was correct and that the allegations were not inherently unreliable in light of the medical evidence.

KIRBY J:   Obviously, the jury were affected by it.  I think that seems to be the explanation for the acquittals on two of the three counts on which the accused was acquitted.

MRS CLARE:   Yes.

CALLINAN J:   It was not an acquittal.  It was just disagreement, was it not?

KIRBY J:   I see.

CALLINAN J:   That is what I was going to ask you, do you know what happened?  Was he recharged or reindicted, re‑arraigned?

MRS CLARE:   No.

CALLINAN J:   So those three further charges never proceeded although there was an order for retrial?

MRS CLARE:   That is so.  In respect of those charges, one can speculate that the jury was also affected by the doctor’s evidence that the evidence of children in relation to the issue of penetration can be unreliable so that the evidence of penetration which came from the child and which was really emphasised in cross‑examination of her was – and I have attempted to refer to some of that in my outline ‑ ‑ ‑

CALLINAN J:   The other point you have is that the 30 uncharged acts were supposed to be acts of rape, is that not correct?

MRS CLARE:   Yes.

CALLINAN J:   But the jury rejected the only two acts of rape charged, is that right?

MRS CLARE:   Yes.

CALLINAN J:   So it may perhaps be a reasonable inference that they rejected or had no regard to the evidence of other rapes on other occasions.

MRS CLARE:   That is so.  It suggests that the jury was uninfluenced by propensity reasoning, that they actually adhered to the direction that was given because the most significant and the most obvious aspect of the uncharged acts was the allegation of repetitious rape and the jury did not convict on the rape charges.

Your Honour Justice Kirby also raised the issue of the background of the separation of the mother from the appellant.  With respect, this is not a case like other family disputes in that the relationship with the mother was not a long‑term one, it was something that had gone on for a ‑ ‑ ‑

CALLINAN J:   Also the first complaint to the mother was made quite a long time after the separation, is that right?

MRS CLARE:   That is so.

CALLINAN J:   How long was it?  Eighteen months or two years?

MRS CLARE:   About 18 months to ‑ ‑ ‑

CALLINAN J:   It was not as if she said, “Now I can tell you”, sort of thing?

MRS CLARE:   No.

CALLINAN J:   She said, “I prefer living here than living where we were living when I was molested” by the appellant.

MRS CLARE:   Yes, because they were living – they continued to live in close proximity, I suppose, reasonably close proximity to where the appellant lived.  He knew, one would imagine, where they lived because he continued to ring her.

CALLINAN J:   For about five or six months, I think.

MRS CLARE:   Yes, with those threats.  One can understand why then there is a logical chronology with the complaints very soon after the move interstate and away from his access.  So it is not like a normal case of a complaint being thrown up in the mire of a separation.

CALLINAN J:   And with the evidence of his threatening her with guns and, I think, knives on one occasion, is that right?

MRS CLARE:   Yes.

KIRBY J:   Where do we find the evidence about the circumstances of the living separately after the offences?

MRS CLARE:   Perhaps I can give that reference to your Honour shortly?

KIRBY J:   Yes, if you would.

MRS CLARE:   But to go back to the Robinson point, it is our submission that Robinson really is another example of something which is – a case which raises some aspect of unreliability which is otherwise hidden from the jury.  It may not be apparent to the jury and that it is another example of that factor which was identified in Longman by Justices McHugh and Deane about an honest and convincing witness who may be mistaken by a distorted fantasy from waking, sleeping or some other aspect which goes back to, in Longman, of course, and in Crampton as well, was consideration of an adult memory of what happened long ago in childhood.

The case of Heuston, which my friend refers to, seems to summarise this fact or this kind of aspect as one where delay allows the prosecution evidence to give the – or gives the prosecution evidence the misleading appearance of plausibility.  That is at page 432 in paragraph 50 of that case.  That is not this kind of case, in our submission.

This is a case which was, as I said, purely one of credit.  It was one where the complainant was either lying about her allegations of sexual activity or she was truthful.  There is nothing inherently unreliable in the account that she gave and it can be contrasted with Robinson itself where, although there was only a three‑year delay in that case, the circumstances outlined in paragraph 25 are very odd.

It was an isolated incident of a waking child.  There was no lead up to the incident.  There was no subsequent conduct.  There was no conversation.  The Court said it was most peculiar there was no conversation at the time.  Subsequently, relations between the parties were amicable.  There was a denial by the appellant that anything had happened and the complainant had a history that suggested he was suggestible.

That, in my respectful submission, is a very different case to the one that we have here where it is far removed from that concept of distorted imagination or, as Justice Deane in Longman talked about, the fantasy of a sleeping child.  We have a complainant who maintained that she marked her diary with individual episodes of things that happened to her, a complainant who recounts specific conversations that happened in the course of the abuse, a complainant who recounts the threats that were made to her about disclosure in very clear terms and a complainant who alleges that the conduct was repetitious over a period of seven to 12 months.

KIRBY J:   There is still a delay of almost two years from the termination of the alleged sexual conduct and the complaint to the mother.

MRS CLARE:   Yes.

KIRBY J:   Then there is a further year and a half, year and a bit after the interviews that the appellant was charged.

MRS CLARE:   Yes.  Well, there has to be, of course, something more than delay.  Section 4A(4) is unique to Queensland.  It was not a provision which was in operation at the time that Robinson was decided.  It came into effect in 2004.  It is not a section which has been adopted by any other State in the country.

KIRBY J:   But it does not purport to forbid judicial instruction and comment where that is necessary for a fair trial.

MRS CLARE:   Where the individual circumstances of a case allow.  But what it does prevent is a direction or a suggestion that delay alone makes the complaint unreliable.  Now, because a child sexual complainant is no longer an unreliable class of suspect witness, it is not enough, or that is not a material factor to add to the question of delay, so there has to be something more in the circumstances of the case which make the case of such exceptional character that a warning is required.

KIRBY J:   Here the suggestion is that it is a combination of (a) the age of the complainant, (b) the delay until complaint and then the further delay until charge and (c) the nature and quality of the complaint, particularly the allegation of 30 rapes when the child’s hymen was intact.

MRS CLARE:   Every case, particularly every case of repetitive abuse, sexual abuse of a child will have inconsistencies.  In our submission, it would offend the legislative intent to say that mere inconsistencies alone in the context of delay are enough to require a warning.

HAYNE J:   There are two steps implicit in that proposition which need to be exposed.  First, in order for the judge at trial to identify for the jury the issues in the case, is it either appropriate or necessary for the judge to assemble for the jury at least the chief instances of difficulty presented by the single witness who gives evidence of the alleged crime?

MRS CLARE:   Sorry, your Honour, if ‑ ‑ ‑

HAYNE J:   Is it necessary or appropriate, two separate questions, for the judge to assemble for the jury the difficulties that are presented by the complainant’s evidence?

MRS CLARE:   The judge has to do what is necessary to allow the jury to properly evaluate the evidence.

HAYNE J:   The judge has to decide what are the real issues in the particular case.

MRS CLARE:   Yes.

HAYNE J:   In a single witness case, as this is, leave aside the doctor, is it a part of that function to assemble for the use of the jury the difficulties that are presented by that witness’ evidence?  If the next step is if that is necessary, should the judge say anything to the jury about how they approach those difficulties?

MRS CLARE:   It is a difficult question to answer in the abstract, but fundamentally a judge does have an obligation to ensure that the jury is alive to the issues so that the jury can fairly evaluate the evidence.  There is, of course – and I think your Honour’s question is getting to this – the difference between the need for comment and the need for warning and in this case the issues were in fact, in my respectful submission, drawn to the attention of the jury by the way in which her Honour dealt with them.

HAYNE J:   But is Robinson any more than a particular example of the general proposition recorded in Alford v Magee, namely, it is the judge’s function to decide what are the real issues in the case and, two, to tell the jury in the light of the law what those issues are and then tell them so much of the law as they need to know to decide those issues?

MRS CLARE:   It is consistent with that principle, yes.

KIRBY J:   If it is a general proposition it is not a special case.

MRS CLARE:   Robinson?

KIRBY J:   I mean, every case is special, but I am just concerned at the way Justice Keane was inclined to sideline it as a special case whereas, in fact, on one view it is an application in this type of case which is quite common of the general principle in Alford v Magee.

MRS CLARE:   Yes.

HAYNE J:   When you read the judge’s charge here and you look and say, well, what is the judge telling the jury about what are the issues, her Honour tells the jury, in effect, this case stands or falls on the complainant’s evidence.  Both counsel have gone to the jury on that basis.  But it is not especially helpful to the jury.  They know the case stands or falls on the complainant’s evidence.  Should the judge go a step further and say, “Look, it stands or falls on the complainant’s evidence.  Here are what are said to be the difficulties about her evidence?  There is this reference to 30 rapes, there is this embellished account of Agnes Waters, here are these difficulties.  You have one witness against the accused man.  Look at her evidence with care”.  That is what Robinson seems to be coming down to.

MRS CLARE:   But Robinson had a particular risk and that was that the jury may overlook the fact that that witness was mistaken or distorted in his recollection because of the suggestibility, because it was a sleep/waking offence and because the circumstances surrounding it in no way supported and seemed to contradict it.  This is not that kind of case, in my respectful submission.

HEYDON J:   Your argument would put some weight I imagine on the words in the second line of paragraph 25 of Robinson 197 CLR 162 at 170:

there were particular features of the case which demanded a suitable warning.

One of those features was the one you just referred to about being half awake.

MRS CLARE:   Yes, yes.  In Longman Justice Deane referred to the potential dangers or potential danger not otherwise apparent to the jury.  In Jones your Honour Justice Kirby emphasised the fact that our jury system is based upon the assumption that juries have the expertise and the capacity to assess witnesses and evaluate proof.  In that same case in Jones (1997) 191 CLR 439 Chief Justice Brennan at page 442, halfway through the second‑last paragraph, said:

Exceptionally, judicial experience is sometimes accorded greater weight than the experience of a jury –

exceptionally, it is sometimes accorded a greater weight –

in which case a trial judge is required to give the jury a warning that alerts them to what judicial experience has shown.  Otherwise the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict.  In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs.

The jury may overlook in a particular case the forensic difficulties that delay has raised for an accused.  In a particular case a jury may overlook a particular feature of the case that raises some underlying unreliability or potential unreliability of the complainant.  But the present case does not have those hidden features. 

KIRBY J:   What was the case on the single witness accusation?

MRS CLARE:   KRM?

KIRBY J:   I thought it was another one.  Murray?

MRS CLARE:   Murray.

KIRBY J:   What do you have to say about Murray?

MRS CLARE:   I am sorry, I cannot at present draw to my mind what Murray is about.

HAYNE J:   There is a long part of Murray extracted in Robinson at paragraph 21 on particularly page 169 and I am sure there is more to be said about Murray than the extract.  In particular, the conclusion of the first of the paragraphs quoted:

In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care ‑ ‑ ‑

MRS CLARE:   Yes.  Well, earlier in that same paragraph on that same page there is reference to, as his Honour Justice Heydon said: 

That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman.  Moreover, the very nature of the prosecution’s onus of proof may require a judge to advert to the absence of corroboration.

But it certainly does not say in every case and if it were every case, of course, it would be contrary to the legislative force of section 632 and section 4A.

KIRBY J:   New South Wales had that provision in section 405C(2) of the Crimes Act, so that it is not exactly the same as the Queensland provision, but ‑ ‑ ‑

MRS CLARE:   It permits comment.

KIRBY J:   It is nonetheless stopping – well, it is terminating the old common law of corroboration and notwithstanding that, Justice Lee, who is very experienced in these matters, said that where it was simply the evidence of one witness it was common to tell the jury they must scrutinise it with great care.

MRS CLARE:   Yes.

KIRBY J:   Given the seriousness that follows from a conviction, is that not a proper thing to tell the jury and with particular regard to any factors in the case that require the jury’s special consideration, because that is was Robinson seems to be saying.  Of course, the judges in Robinson then explained it in terms of the facts of that case, but I did not take that to be confined to those facts.  It was a general proposition.

MRS CLARE:   Well, my submission is that it goes back to the general principle of the requirements for a warning, a warning being necessary where there is some factor which the jury would not otherwise or may overlook.  Just on the issue of section 4A and the New South Wales provision, the interstate provisions allow for comment to be made.  Section 4A makes no allowance for a comment to be made about delay and the liability generally.  It abolishes Kilby altogether.  So it is not about a matter of balancing the comment or the direction, but it abolishes it.

KIRBY J:   I think we understand your submissions on that point.  Is there anything else you want to say?  Is there any authority that has not been drawn to our notice that you want to draw to our attention now?

MRS CLARE:   Your Honour Justice Kirby asked me for reference to the relationship termination.

KIRBY J:   Yes.

MRS CLARE:   Pages 75 to 76 of the appeal book.

KIRBY J:   Thank you.  You are not aware of any reference to Robinson in this Court since Robinson was delivered?

MRS CLARE:   No.  Perhaps the only other reference that I would make is to the case of Gilbert in the Privy Council, which my learned friend has already referred the Court to.

KIRBY J:   Of course, as Justice Heydon pointed out, that is against the background of the common law I think, not against the background of the statute which is one of the important points in this case.

MRS CLARE:   I do not know what page it is – but in the copied version by my learned friend marked 536 it refers to the legislation abolishing the statute.  So that is in the second paragraph at page 536.  But the only point that I make in relation to that case is the observations or the approach taken in that court and with approval of – this is at page 539 at the bottom, paragraph H ‑ ‑ ‑

KIRBY J:   Which series is this in, do you know?

MRS CLARE:   No, I do not.

KIRBY J:   It may be on the cover sheet.

HAYNE J: [2002] 2 AC 531.

KIRBY J:   Yes, 539?

MRS CLARE:   At 539 the case of Makanjuola under principles – or the quote of general principles that appears over the page at 540 and in particular the point that:

The judge will often consider that no special warning is required at all.  Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution.  In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate –

That, in my respectful submission, is consistent both with our legislation and the way in which this Court has previously approached the question that, whilst there is a temptation from the side of the defence to constantly push to extend the category of case which warrants a warning, the principle of law enshrined in the legislation is clear and the present case is not a case that necessitated more than that which was done.

KIRBY J:   Yes.  Now you come to the uncharged acts.

CALLINAN J:   Just before you do that, there is a passage in the evidence on page 36, beginning at about line 38 which suggests that there was an attempt to get this forensic advantage to which Justice Heydon referred, the bigger the allegation, the bigger the lie.  In fact, there was some forensic progress made by Ms Demack who represented the accused:

Well, see I suggest to you . . . that Ray didn’t have sex with you 30 times?---Well it was quite a few times.

Well you’ve told us it would have been about maybe five or six –

So all of the other acts being acts that alleged to complete, as it were, sexual intercourse it is obvious that there was much damage done to that allegation and that probably explains why the rape charges failed – or did not succeed and may ground an inference that the jury disregarded this anyway and they had a basis for doing so?

MRS CLARE:   Yes.

HAYNE J:   You can see the use made of it in final addresses particularly at page 133 of addresses, lines 10 to 22, where trial counsel for the accused placed a deal of emphasis on the 30 event allegation.

MRS CLARE:   Yes, and, in fact, it was she who sought out additional episodes and that that is how the reference to Agnes Waters came into existence.

HAYNE J:   Then goes to the jury saying, “Well, she says 30, but we got a couple at Agnes Waters and that is your lot”.

MRS CLARE:   Yes, and her Honour referred a number of times to the Agnes Waters evidence and how it might significantly damage the credibility of the complainant.

CALLINAN J:   The fact of self‑contradiction must have been a major aspect of the attack upon the complainant.

MRS CLARE:   Yes, and at the same time it had to be apparent to the jury, the way her Honour ‑ ‑ ‑

KIRBY J:   There are dangers in your pressing that too far, because if you press that too far then you get into a problem under McKenzie that you have a certain inconsistency between not accepting her on the 30 alleged rapes, but accepting her on the digital penetration because it is all part of a one according to her.

MRS CLARE:   Yes, but there is another way of resolving that dilemma and it seems, by the way in which the jury proceeded to its verdict, that this was they way that it did proceed.  That was that whilst the witness was honest, she was a child and they considered her to be unreliable in some matters, such as the issue of penetration, as suggested by the doctor.

CALLINAN J:   He was not convicted on any offence of penetration of any kind, is that right?

MRS CLARE:   He was not convicted on counts 2 and 5 which were the two rapes.  Count 1 included an allegation of rape, but it was charged only as an indecent dealing. 

CALLINAN J:   Yes.

MRS CLARE:   That is the way his Honour Justice Keane reasoned the jury’s approach, that it was bound up with that notion of the problem of penetration.

CALLINAN J:   Wait a moment, was he convicted of count 7?

MRS CLARE:   Count 7, yes.

CALLINAN J:   That is the penetration offence.

MRS CLARE:   Yes, but that ‑ ‑ ‑

CALLINAN J:   Different sort of penetration.

MRS CLARE:   Different penetration.

KIRBY J:   Yes, now, you are moving on now to the second argument?

MRS CLARE:   Thank you, your Honour.  I know it is getting late.

KIRBY J:   No, it is not that it is getting late, but there is a courtroom behind you ‑ ‑ ‑

HEYDON J:   Just as a matter of detail, count 7 was not a charge of digital penetration.  It was a charge of indecent dealing.

MRS CLARE:   Yes.

HEYDON J:   Where the facts alleged involved penetration.

MRS CLARE:   Included that, and her Honour in the way in which she left the allegations for each episode relating to a count to the jury did not distinguish between what was a necessary part of the charge of indecent dealing and what was not.  But certainly in count 1 the issue of whether or not there was sexual intercourse was a factor that had been emphasised to the jury and would have been apparent to them when they considered their verdict.

In relation to the issue of whether or not the relationship evidence, or the use of the relationship evidence should have been particularised with greater specificity, our submission is that there was no risk in the context of this summing‑up that the jury would have reason to guilt through propensity because the judge told them in the clearest of terms that they could not do that and, of course, a jury has to be taken to have accepted and acted on the instructions given.  Secondly, if greater ‑ ‑ ‑

KIRBY J:   There is a lot of wisdom though in what Justice Callinan said in Gipp that juries can be told that but it is very hard for them to put out of mind the uncharged acts when considering whether the charged acts have been proved.  It is asking a lot of them.

MRS CLARE:   Each case of course has to be taken on its own facts and in the context of the summing‑up itself, but if one moves from Gipp to KRM, for example ‑ ‑ ‑

KIRBY J:   Gipp was a very much greater delay, was it not?

MRS CLARE:   Gipp was a delay of – I cannot recall now but it extended back I think to when she was four years of age, so it was a long delay and it also was a case where there was no propensity warning given.  That was of course an evil in that case.  KRM is the case where there was a maintaining a relationship offence plus 17 discrete offences and the Court concluded that there was no miscarriage of justice in the absence of a propensity warning in that case.  There was a lot of general evidence given but there was no miscarriage of justice in that case. 

In our respectful submission, KRM shows a less stringent attitude perhaps to that consideration of risk of propensity reasoning in relation to a single witness.  Where there is one witness alleging both the relationship, the uncharged acts, if that witness is the only source of both the direct allegations of the offences charged and relationship evidence then it follows that it is less tempting for the jury to engage in propensity reasoning because it is an issue of the credit of that witness.  It is a different case from BRS where there were a number of witnesses giving evidence about sexual activity, or Hoch.

CALLINAN J:   You heard what I said to Mr Kimmins about relationship evidence and this may or may not be the case to deal with it, but I really do have problems with it.  Take this case.  Everything you need to know about the relationship you get from the evidence of the charged acts.  The uncharged acts do not add anything so far as relationship is concerned, do they?

MRS CLARE:   They do.

CALLINAN J:   What do they add?

MRS CLARE:   Firstly, they can explain some level of inconsistency or uncertainty in the complainant’s evidence.

CALLINAN J:   What does that have to do with relationship, the fact that the complainant is not wholly consistent?

MRS CLARE:   It depends on the level of inconsistency of course.

CALLINAN J:   It has nothing to do with any of the uncharged acts, does it?

MRS CLARE:   But a child who is subjected to repetitive abuse over a period of time may still be honest but confuse a particular incident.  That was relevant in this case, in my submission.

CALLINAN J:   It became relevant once the evidence was admitted.

MRS CLARE:   It also was relevant – the Crown Prosecutor relied upon it to say ‑ ‑ ‑

CALLINAN J:   Is your proposition then that here it served to explain inconsistencies?

MRS CLARE:   Yes.

CALLINAN J:   What does that have to do with relationship?  Once you have said it served to explain inconsistencies, you have really said everything you can say in justification of it.  Whether that is legal justification may or may not be another question.  It sounds a bit like self‑corroboration to me.

MRS CLARE:   The purpose of relationship evidence is to make the complainant’s evidence more intelligible, to put it in its context and to ‑ ‑ ‑

CALLINAN J:   But it was perfectly intelligible on the evidence of the 10 counts that were charged.  What needed to be made more intelligible than that body of evidence?

MRS CLARE:   For example, in relation to count 3, which is the incidence of sexual activity at camp where the family is camping with other friends.

CALLINAN J:   But you proved that they camped.  Was an offence alleged in respect of that period?

MRS CLARE:   Yes.

CALLINAN J:   That is a relationship there, is it not, that the family were close enough and they were camping and that there was opportunity and the opportunity was availed of.  What does an alleged uncharged act 12 months before at some other place have to do with that?

MRS CLARE:   The period of uncharged acts seems to be round about a seven to 12 month period.

CALLINAN J:   All right, take six months before.

MRS CLARE:   But my point is, for example, in that respect the fact that this man had been – that there was a relationship established between these two people of activity and compliance explains why he would be as bold as doing what he did in a camping ground with other people around.

CALLINAN J:   But you get that from the first two offences charged or, if you like, the three offences that are charged.  You do not need to go to other uncharged acts to get that information.

MRS CLARE:   The jury might think that there is a world of – whilst there is some risk involved in the abuse inside the family home, a two‑storey home with mother upstairs, there is a much greater risk involved the very next time doing this – which would be count 3.

CALLINAN J:   That sounds very like tendency and propensity evidence to me once you put it that way.  That is the problem about this.  I think in effect this evidence is tending to prove propensity and unless that is acknowledged and properly and frankly acknowledged by the prosecution - and the prosecution gets the advantage of having that evidence before the jury without the disadvantage of the very strict warnings of which Justice McHugh spoke that should be given in respect of it.  That is what concerns me, Ms Clare.

MRS CLARE:   I understand your Honour’s concern but there is a difference, in my submission, between evidence which stops the jury from looking at the acts in a vacuum, in an artificial way ‑ ‑ ‑

CALLINAN J:   But it is not a vacuum, it is a very rich body of evidence relating to 10 incidents and, quite rightly, the surrounding circumstances of those 10 incidents but it is a long way removed from other acts on other occasions at other places at other times.

MRS CLARE:   There was no dispute, as has already been said.  There has never been an argument until perhaps today that this evidence would not have been admissible.

CALLINAN J:   That is one of your best points.  I was asking for your submissions in relation to relationship evidence and I was trying to expose my problems with it, that is all, and give you an opportunity to deal with it.

MRS CLARE:   I am sorry if I am not assisting your Honour.  Another aspect for which this evidence was relevant, in our submission, is to show why the complainant did not complain immediately.  The reference to the use of guns, threats about menacing her with guns were not specifically tied to particular counts on the indictment.

CALLINAN J:   No, but could well have been because that is all that had to be explained.  All that had to be explained was why there was no complaint in respect of the 10 charged acts.  There was no need to explain why there was no complaint about the 30 uncharged acts.  What you have said really highlights one of the problems.  Unless one looks at this evidence at the beginning, identifies its character and quality and makes it clear that it has been tendered upon that basis, unless that happens, we have exactly the sorts of problems that occurred here.  We have the argument anyway that is being carried on here.

MRS CLARE:   Yes.

KIRBY J:   One gets an impression that there is a division of opinion within the intermediate courts in Australia and that in at least South Australia in Nieterink and DRG and in New South Wales in Qualtieri, there is a view which is rather similar to the concern that Justice Callinan has just been expressing, whereas that concern is not evident in the Court of Appeal of Queensland.  What do you say about the existence of that diversity and why the Queensland approach is correct?

MRS CLARE:   In our submission, DRG really stands on its own in support of the appellant’s argument.  Nieterink, in our submission, is not a particularly great help because that was a case where the overall failure of the summing‑up was to remove the risk of propensity reasoning.  There was no direction against reasoning by propensity.  At page 73 of the judgment in paragraphs 90 to 92 it is clear that it was a combination of factors which led to that decision but that included importantly a direction not to reason that the appellant was that kind of person.  That direction was not given.  Further, the remedy in Nieterink for the failure to specify the use to which the relationship evidence could be put was said to be a direction that the evidence could be used to show a sexual attraction - Chief Justice Doyle at page 73 or Justice Perry at page 75.

CALLINAN J:   Ms Clare, in Wilson v The Queen 123 CLR 334 Chief Justice Barwick at page 339 says in relation to relationship evidence:

If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible.

His Honour really qualifies any absolute proposition of the admission of evidence of relationship.  He seems to say that there really has to be something special about it that you need.

MRS CLARE:   Yes.  It has to have some relevance beyond, as your Honour said, mere background.

CALLINAN J:   He says:

It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn.

MRS CLARE:   Yes.

KIRBY J:   Here the evidence was admitted without objection, so we have got it before us.  The question is what warning should have been given.

MRS CLARE:   Yes.  The summing‑up was very clear how not to use that evidence.  The summing‑up was very clear that the relationship evidence could be used to discredit the complainant and thereby to advantage the appellant.  There is no complaint about any of that.  The only complaint is that her Honour did not explain how the relationship evidence could have assisted the Crown case.

CALLINAN J:   In the circumstances her Honour may have been placed in the position of least said, best said.  The parties had not identified the nature of the evidence and its purpose and utility.

HAYNE J:   Or, alternatively, where the defence has gone to the jury relying on it.

MRS CLARE:   Yes.

HAYNE J:   And the Crown has not.

MRS CLARE:   The case of BJC, which is a Victorian case which is relied on by our learned friends, again, in our submission, is of little comfort in this argument because ultimately the direction which was approved in that case was this at pages 126 and 127:

the question whether he had an improper relationship with his daughter –

or it could be used to show whether he had an improper relationship with his daughter –

thus rendering it more likely that he did in fact commit the offences -

That is the only addition that is not present here.  In BJC the Victorian court said that that was an entirely appropriate direction but it is difficult to see how a direction like that could have advanced the appellant’s position here.

We say most of the Australian authorities directly support the direction that was given in this case, that the authorities collected follow the approach of the Victorian Court of Criminal Appeal in Grech and also – or follow an approach which is comparable to that taken in Grech and also by the Western Australia court in Cook.  The direction in our case is consistent with that guide direction which was given in Grech [1997] 2 VR 609 at 614 and that guide direction refers to a description to establish relationship as part of the context, which is the same description given here. Grech was ‑ ‑ ‑

CALLINAN J:   What is the context?  I have the same problem with that as I have about relationship.  Context is meaningless unless you identify what the context is and what particular aspect of the context the uncharged acts necessarily go to because they must necessarily go, otherwise evidence of them cannot be admitted.

KIRBY J:   On one view, proving facts relevant to a relationship is dangerous because the jury may then think, “We don’t really have to worry too much about the actual charges.  We just ask was there this relationship and ask that at the beginning.  If the answer is yes, all of this is simply proof of particular incidents in that relationship”.  That is the danger and it is really a propensity reason.

MRS CLARE:   Yes, but when you look at what her Honour specifically told the jury here at page 181, that risk is gone.

CALLINAN J:   But earlier she was echoing some of the statements in this Court.  She says at page 180, “it does put the 10 charges in their proper context”.  What context?  What is she talking about that adds anything to the evidence of the 10 charges?

MRS CLARE:   It enables the jury to consider the way in which – to consider the narrative, to evaluate the allegations of the offences in light of the way in which ‑ ‑ ‑

CALLINAN J:   The narrative is complete with the evidence of the 10 charges.  You are talking about a different narrative once you go outside them.  You are talking about a narrative of the other uncharged acts.

MRS CLARE:   Yes, but because the whole picture defines the way in which these people interact with each other.

CALLINAN J:   No, but the picture is a complete picture.  I will not say it again, Ms Clare, but the picture is a complete picture with the evidence of the 10 charges.  That is the problem.  People are not paying enough attention to what the true context is and to what relationship the evidence is said to be going and whether that relationship is sufficiently proved by the evidence concerning the charges in question.  I will not say any more about it but you can see my problem.

MRS CLARE:   I understand your Honour’s problem.

KIRBY J:   Do you have anything else to add?

MRS CLARE:   If I could just say in relation to Grech, it refers to Vonarx and, your Honour, as you have already noted, quoted Vonarx with approval in Gipp at paragraph 141, I think.  That passage is again consistent with the way in which the present directions were given.  Grech was most recently applied in the unreported decision of BAH [2005] VSCA 197. BAH expressly rejected the argument that has been raised here.  The summing‑up, the direction, in that case which was said to be sufficient was an expression “so that you might understand the real nature of the relationship”.

Finally, in relation to the standard of proof, we submit that whatever the standard of proof that is appropriate for uncharged acts in this case the jury would not have been aware of any distinction between beyond reasonable doubt and what her Honour was directing for the uncharged acts.  We say that because her Honour did not refer to a standard of proof unlike the direction in Gipp.  Her Honour used the terms “accept” and “reliable” and in amongst that direction of contemporaneous directions at the beginning and in the middle of those directions was directions to the jury that they had to be satisfied beyond reasonable doubt of the evidence relating to the charge.

HAYNE J:   All of that submission is predicated on the assumption that either party was going to the jury on the proposition of the uncharged acts could be used to demonstrate guilt, at least in my observation.  Neither the Crown went to the jury on that basis nor, of course, did the accused.  The uncharged acts were in issue on the accused’s case that she has made it up and look at the exaggeration.

CALLINAN J:   There is no request for a redirection either.

MRS CLARE:   No.  That approach to limit where relationship evidence is limited to exclude propensity reasoning is consistent on all authorities with a view that beyond reasonable doubt direction is not required.  The only case that stands out in that is Clifford.  That is a case that relies on what was said by Chief Justice Doyle in Nieterink but his Honour the Chief Justice clarified what he meant in that case in IK and in IK, both in the judgment of the Chief Justice in paragraph 126 and in the judgment of Justice Vanstone at 152, reiterates the ordinary principles apply.

KIRBY J:   Mrs Clare, you will remember that I raised with Mr Kimmins the possibility that this matter might be committed to the entire Court.  Are you able to say anything now or would you prefer to take instructions and decide that at a later stage?

MRS CLARE:   No, I am happy to abide by that.

KIRBY J:   Well, nothing will be done and the Court will decide the matter as it is presently constituted unless the parties are notified.  Yes, Mr Kimmins.

MR KIMMINS:   In relation to that first point, my learned friend indicated that it really was a case where the complainant was either lying or the complainant was truthful.  That is problematic when one considers the hung jury in relation to three counts.  It is explicable why the jury may well have been hung so far as the two counts of rape, but so far as the first count involving the indecent dealing, that is inexplicable, we would submit.  Even leaving that to one side, the fact is that some of the jury were concerned and did not accept the complainant as being a truthful witness in relation to those three counts.

HAYNE J:   No, were not persuaded beyond reasonable doubt.  This is not a choice between truth and falsehood.  It is a choice between persuasion beyond reasonable doubt and not being persuaded beyond reasonable doubt.

MR KIMMINS:   Where the evidence relies primarily upon the evidence of the one witness being the complainant.

HAYNE J:   Yes.

MR KIMMINS:   They were prepared in some cases to accept that, the ones they were convicted of and some of their number were not prepared to accept her evidence which was categoric in relation to what she had to say about that and some of the jury were not prepared to accept that.

KIRBY J:   Yes, but as McKenzie points out, this is inherent in the particularity procedures of our criminal trial.  You are going to get jurors who will, with the proper instructions about the criminal onus, reach a view on particular counts that they are not persuaded.

MR KIMMINS:   It is a factor, we would submit, which would lead to the conclusion that a strong warning was required and that is the point I seek to make.  My learned friend indicated that it seems to have been an easing off of the views accepted in Gipp in the case of KRM.  The Court would be well aware of the view that it has taken recently in the case of Phillips when dealing with propensity evidence.  The Court reiterated in quite strong terms when a case involving propensity arguments are before the Court, they have to be strict ‑ ‑ ‑

KIRBY J:   What is the reference to Phillips?

MR KIMMINS: [2006] HCA 4, your Honour. In relation to the question is what juries – I have copies of the case if ‑ ‑ ‑

KIRBY J:   You can hand that up after we retire.

MR KIMMINS:   Yes.  So far as how juries may in fact interpret directions by judges where they come to mixed verdicts, I merely refer the Court to the book by Lewis at pages 197 and 198.

KIRBY J:   Yes, we will certainly be reading those.

MR KIMMINS:   Finally, so far as the question of the onus of proof is concerned, the position adopted, we have submitted, by the appellant is that which is contained in Clifford between paragraphs 42 and 59, and more particularly at paragraphs 55 and 56.  I thank the Court.

KIRBY J:   The Court will reserve its decision in this appeal.  We will now adjourn into this Court and Court 3 for the following special leaves.

AT 3.36 PM THE MATTER WAS ADJOURNED