Versi v The Queen

[2014] HCATrans 163

[2014] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S296 of 2013

B e t w e e n -

PETER VERSI

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 AUGUST 2014, AT 10.02 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.C. CONDE, for the applicant.  (instructed by Nyman Gibson Stewart)

MR L.A. BABB, SC:   May it please the Court, I appear with my learned friend, MS K.N. SHEAD.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours will have our outline of submissions.  Your Honours, may I go, as I think paragraph 1 of those suggests, immediately to the basic facts which your Honours will see in our written submissions in paragraph 7 and following.  Could I endeavour to state them in very short order?

The applicant was found guilty on two of four counts of sexual assault on a stepdaughter, alleged to have occurred in the period 1981 to 1987, a long time before the trial, 24 to 30 years.  The two counts on which he was convicted were counts 2 and 3, and your Honours will see in paragraph 8 of our written submissions the relative severity of the two counts with count 3 being significantly more severe in terms of potential penalty than count 2.  The nature of the conduct in relation to counts 2 and 3 is set out in paragraph 9 of our submissions. 

May I indicate to your Honours where the detail can be seen, but shortly?  That is in the reasons for judgment of the Court of Criminal Appeal, first of all in relation to count 2.  You will see that at page 592 of volume 2 in paragraph 52 of that court’s reasons.  Your Honours, so far as count 3 is concerned, your Honours will see that on the next page, 593, in paragraph 55. 

Now, your Honours, the four counts were in relation to the conduct alleged so far as the one complainant was concerned, but the Crown also sought to adduce evidence from someone who is described in the material as SD1.  SD1 had been a stepdaughter of the applicant during a previous marriage, and the nature of that evidence is referred to in our written submissions in paragraph 12 and your Honours can see the detail of that referred to in the reasons for judgment in the Court of Criminal Appeal at page 612, paragraphs 95 to 96.

As was noted in paragraph 95 of the Court of Criminal Appeal’s reasons at page 612, at the commencement of paragraph 95, the evidence of SD1 was admitted in relation to count 2 only and was admitted as “coincidence evidence”.  Your Honours, I will come to that term and the meaning to be attributed to it in just a moment if I may. 

Your Honours, the trial judge directed the jury in relation to the limited use which might be made of the evidence of SD1, and your Honours will see the direction extracted relevantly in our written submissions in paragraph 13 and your Honours will see the transcript of it in volume 2, page 513, about line 39 through to page 515, about line 19 and if I could go to that for just a moment to page 513 in volume 2, and your Honours will see line 39. 

Your Honours, might I say, you will see a few corrections and underlinings and things and repetitions.  There was an attempt to agree upon some matters that were not entirely clear from the transcript and it had not been corrected.  The judge was a judge who was an acting judge and ceased to hold that office, so that is why one sees words like “I’ll withdraw that” underlined and things of that kind.  Your Honours, his Honour says:

I will turn first to what is called ladies and gentlemen the coincidence evidence -

and his Honour goes on to describe that.  Then if I could go to page 514, about line 28, his Honour says:

It is only Count 2 in the indictment because it is Count 2 in the indictment that refers to the acts involving the touching of the penis in the medical circumstances that are said to be spurious.  You musn’t take [the] evidence . . . into account when you are reasoning in respects of Counts 1, 3 and 4 and if during your discussions it drifts into that then you should correct the position.

Your Honours will see the ruling going on to about line 19 on page 515.  The giving of a direction to that effect was consistent with a ruling his Honour had made before the substantive commencement – if it can put it that way – of the trial and you will see that ruling in volume 1 at page 48, lines 21 to 50.  You will see the ruling in the last two lines, particularly on page 48.

Your Honours, I mentioned the use of the term “coincidence rule”. Now, that term comes about from section 98(1) of the Evidence Act 1995, and your Honours’ copy of that, if your Honours do not otherwise have it is in the annexure to the applicant’s submissions in‑ chief. You will see a rule described as the tendency rule in section 97, and then section 98 is described as the “coincidence rule”.

Now, your Honours, the opening words of section 98(1) bear the clarity usually attracted by drafting by a committee, but if I could say in relation to it, to put it as shortly as possible, it amounts to this, that evidence that two or more events occurred is not admissible to prove that a person did a particular act ‑ your Honours, I am conscious I am omitting some words – on the basis of similarities in the acts or circumstances making it improbable that those events occurred coincidentally. That evidence is not admissible unless the two conditions in section 98(1)(a) and (b) are satisfied and relevantly, your Honours, 98(1)(b), and that is:

the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Your Honours, probative value is itself a term defined in the dictionary to the Act.  You will see it on the next page of those submissions at about line 15.  Your Honours, that means that the court of trial must make a decision that evidence of that nature be admitted, otherwise it cannot be used.  Could I pause to say, although we do not have the particular provision in this material, that pursuant to section 5F of the Criminal Appeal Act, there is an appeal available to the Crown to the Court of Criminal Appeal in relation to rulings on evidence.

Your Honours, the barrier, such as it may be, provided for by section 98(1)(b) on the admission of such evidence, is raised rather higher by the statute in criminal cases and that is done by section 101 and to a degree, by section 137.  Section 101, your Honours will see on page 2 of that annexure and could I refer first to subsection 1.  It only applies in criminal proceedings and it applies in addition to section 97 and, sorry, relevantly 98.  Section 101(2) says that:

coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Now, your Honours will see also section 137 on the same page, but if I could return to section 101(2).  Your Honours, its terms make it clear, in our submission, that it cannot be used ‑ they are the words of the provision – it:

cannot be used against the defendant –

in a criminal proceeding –

unless the probative value . . . substantially outweighs any prejudicial effect . . . on the defendant.

So, your Honours, could I move from those provisions to the position at trial, which I will be able to do quickly, and I will go to what happened in the Court of Criminal Appeal.  Your Honours, before the trial judge the question of danger of unfair prejudice arose in two respects.  One was whether the evidence of SD1 should be admitted on count 2.  The second question was the effect of the admission of SD1’s evidence on count 2 where the defendant was also on trial for other sexually related and more serious offences.  The admission of the evidence was opposed on both aspects.

Could I say – your Honours, I propose to deal with them, if I may, in a sense, in the reverse order to that in which I just mentioned them.  But could I say in particular, in relation to the effect of its submission on counts other than count 2, that it was contended on behalf of the applicant that prejudice on counts other than count 2 occasioned by admission of the evidence of SD1 could not be obviated simply by giving directions.

Your Honours, may I take your Honours to volume 1 for a moment where you – I refer your Honours to the relevant passages in that regard ‑ you will see, first of all, page 18, Mr Odgers was appearing for the applicant, lines 34 to 38, an introductory passage.  Then, page 24, lines about 34 to 40.

BELL J:   Mr Jackson, can I just clarify one matter when you take us to Mr Odgers’ submissions?  Those submissions were directed to considerations not only of SD1’s evidence as evidence of coincidence supporting a conclusion of guilt on count 2, but I think they were directed to the prosecution’s contention that SD1’s evidence was evidence of a tendency to indecently and/or sexually assault children related to the applicant by marriage.  I think, ultimately, his Honour’s ruling is to be understood as a ruling that the tender of the evidence as tendency in relation to each count was rejected and SD1’s evidence was admitted as evidence of coincidence on count 2.

MR JACKSON:   Yes, your Honour.

BELL J:   So it might be that some of the submissions addressing possible prejudice were directed to the prejudice of evidence of a claimed tendency to indecently or sexually assault children related to the applicant by marriage.

MR JACKSON:   Your Honour, may I say this?  The way in which the notice pursuant to 98(1), and perhaps 97(1), was given was broader than the decision that the judge actually made.

BELL J:   Yes.

MR JACKSON:   The decision that the judge made appears to have contained two elements.  First of all, if I could single out the SD1 evidence, that it was to be regarded as coincidence evidence; not tendency, but evidence which could be only used in relation to count 2.  That is the first point, your Honours.

So far as the tendency evidence is concerned, what the judge appears to have been dealing with is the evidence of, in a sense – I am sorry, I will start again.  The evidence which the judge regarded as tendency evidence appears to have been evidence of the complainant, and evidence of the complainant going to what had happened and the fact that there was a sexual interest, if I could put it that way, because the larger claim for tendency which would perhaps involve SD1 appears to have been rejected.

BELL J:   Yes.  The availability of the evidence adduced by the prosecution in support of proof of guilt of each count was accepted by the applicant at trial as being admissible in support of a conclusion of guilt on each other count; in other words, there was no challenge to the availability of the evidence on each count as admissible on the other by reason of tendency, that being a tendency that might be described as a sexual interest in the complainant, which is quite distinct from a proven tendency to sexually assault children related to one by marriage.

MR JACKSON:   Yes, quite, your Honour.  As your Honour was putting that to me, I was about to say that it did not relate to SD1, but your Honour’s last remarks included that, I think.  Your Honours, may I just go ‑ ‑ ‑

FRENCH CJ:   Mr Jackson, I am sorry, could I just take you back for a moment to the draft notice of appeal at 672, grounds 2 and 3, which go to the question of admissibility.  Having regard to the fact that this is a referred application for special leave, how do you characterise the basis of the application?  Is this a visitation case, or is there an ‑ ‑ ‑

MR JACKSON:   Visitation, your Honour, a miscarriage of justice visitation case, yes.

FRENCH CJ:   Yes, all right.

MR JACKSON:   Your Honour, I think that is what our summary of argument, which is in the materials, says, and I do not think I can take it beyond that.

FRENCH CJ:   Yes, thanks.

MR JACKSON:   Your Honours, as with all these things, no doubt questions of the application of statutory provisions are involved, but that does not, to use the expression again, quite get one to a different barrier.

FRENCH CJ:   To what extent does your case depend upon differences of view about the evaluation of probative value and prejudice?

MR JACKSON:   Well, your Honour, to the extent that there is a difference of view between the trial judge and the Court of Criminal Appeal, that is an important point, undoubtedly a different evaluation.  But what one sees, in our submission, is that the Court of Criminal Appeal did not evaluate the question of prejudice except really in the result.  I want to deal with that, your Honour, but when one comes to the approach that the Court of Criminal Appeal took one can see, as we will be submitting shortly, that the Court of Appeal did treat the evidence of SD1 as germane to the resolution of count 3 and by doing so itself engaged in the conduct which demonstrated the risk of prejudice.

FRENCH CJ:   So you are saying they failed to address the criterion of prejudice?

MR JACKSON:   Well, your Honour, they failed to address it as an issue, but when they dealt with the case, they dealt with it in a way where their own conduct of it demonstrated the prejudice that was caused by admission of the evidence.  But, your Honour, that is ‑ ‑ ‑

FRENCH CJ:   Yes.

BELL J:   Mr Jackson, can I just take this up with you?  The rejection of the evidence of SD1 as evidence of a tendency on the part of the applicant to indecently assault children related to him by marriage may be understood as informing the clear direction to the jury that they were to view SD1’s evidence as relevant evidence by way of coincidence reasoning on count 2 and not otherwise.  But given the acceptance that the evidence in support of each count was admissible in considering the balance of counts because it answered the description of tendency in the sense of the tendency to be sexually interested in the complainant, what was wrong with reasoning, if the jury were to conclude that guilt was established on count 2, including taking into account, if need be, SD1’s evidence that might support a process of reasoning that the applicant was sexually attracted to his stepdaughter, making more plausible her account that he had acted on that attraction on the occasion charged in count 3?

MR JACKSON:   Well, your Honour, I am just trying to find the statement in relation to tendency.  So far as the tendency issue is concerned – and I will correct myself if I am wrong – but I had understood it being accepted that - perhaps put differently - that the fact of conviction might be on count 2, as well as any other count, used as evidence of showing a sexual attraction to the complainant.

BELL J:   Yes.

MR JACKSON:   Having said that, your Honour, it does not go so far ‑ as I would understand the argument that was mounted – it does not go so far as to saying that the evidence of SD1 might be used in relation to counts 1, 3 and 4.

BELL J:   Perhaps not directly, Mr Jackson, but as I understand the reasoning of the Court of Criminal Appeal it is that if, in relation to count 1, one achieves a level of satisfaction beyond reasonable doubt that the complainant’s account is true, taking into account the coincidence evidence of SD1, that conclusion respecting the credibility of the complainant as to the sexual incident charged in count 2 may bear relevantly on a conclusion that the complainant’s account of the event charged in count 3 was proved beyond reasonable doubt.

MR JACKSON:   Well, your Honour, we would say that reasoning of that nature is in the end erroneous, and erroneous because if you have circumstances where there is a ruling and the trial is conducted on the basis that the evidence of SD1 is only to be used in relation to count 2 ‑ your Honour said count 1 to me before - I think your Honour meant count 2 ‑ ‑ ‑

BELL J:   Yes.

MR JACKSON:   ‑ ‑ ‑ but in relation to count 2, then forming the view as to credibility inherent in the finding on count 2, namely that the evidence of the complainant is not to be accepted and that the evidence of his wife is unsafe in some respect, that inevitably involves, in our submission, using the evidence of SD1 for a purpose beyond count 2 itself and, your Honour, I was going to say inevitably involves that because what one is saying is that looking at the evidence as a whole, the evidence which is the evidence on count 2, including SD1, that evidence has the consequence that the disbelief – assumed disbelief – of those two witnesses is something that carries over into count 3.  In our submission, that is erroneous in circumstances where there is a restriction on the use of the evidence.

BELL J:   I wonder if I can just take you to application book 9, Mr Odgers’ concession – I am sorry, I am at the wrong point.  It is the trial judge’s summary that the applicant was not challenging the admissibility of evidence of each count as tendency on the other count – that is at about line 24, and I think a little earlier – yes, sorry, it is page 7, at about line 16:

we don’t challenge the admission of each count as tendency evidence in respect of other counts.

That is to be understood as an acceptance that the evidence on each count was admissible on the other as tendency by reason of sexual interest in the complainant.  You contend, Mr Jackson, that in light of a ruling that SD1’s evidence was admissible on count 2 only and not evidence of a tendency to indecently assault children related by marriage on counts 1, 3 and 4, it was necessary to direct the jury that though the evidence of each count was admissible in support of the prosecution case on each other count, if the jury were satisfied of guilt on count 2 it was necessary then to go through the exercise of, as it were, compartmentalising the evidence of SD1, putting that to one side, notwithstanding that the jury were satisfied of guilt, and then looking at the balance of the evidence on that count in considering whether they were satisfied of the credibility of her account on the other counts.

MR JACKSON:   Yes, your Honour.  Yes, we do.  Could I just say in relation to page 7, your Honour will also see about line 38, we do object to that evidence as tendency or coincidence evidence.  So what had been said a little further up the page was qualified by what was ‑ ‑ ‑

BELL J:   But that was to the tender of the evidence of SD1 as evidence of a tendency to sexually interfere with children related by marriage.  Now, that never became part of the trial.  His Honour’s directions to the jury might have been more fulsome but one would understand they were a clear direction not to reason because of SD1’s evidence that he was guilty of the other counts because of a tendency of that kind.

MR JACKSON:   Well, your Honour, I do not wish to be at cross‑purposes with your Honour, but what we would seek to say is that where you have a trial where rulings of the nature that are in question have been made and where the question arises as to conviction on the two counts on which there was a conviction, one of them based on the evidence of SD1, and there is an endeavour to attack those convictions, the manner in which the Court of Criminal Appeal went about it by saying that the decision on count 2 – the verdict on count 2 had the consequence that the – I am sorry, the verdict on count 2, bearing in mind the significance which the Court of Criminal Appeal gave to the evidence of SD1, meant that the jury was entitled to treat for the purposes of count 3 the evidence of the applicant and the evidence of his wife as being evidence which was to be treated as affected adversely by the findings on credibility inherent in the judgment on count 2 - was erroneous in circumstances where the ruling that had been made was that the jury was not to take into account count 2 - that evidence – when dealing with count 3 and in particular, your Honour - I have not put that entirely clearly I do not think, but what we are trying to say is that it was wrong for the Court of Criminal Appeal to seek to justify the conviction on count 3 by what had happened in relation to count 2 and to treat the verdict on count 2 as one which was, for practical purposes, decisive on count 3. 

Now, your Honour, I need to elaborate that a bit, but may I move on to that.  Your Honours will see, if I could go to volume 2 at page 628, that the relevant aspects of sections 98 and 101 were raised in the Court of Criminal Appeal.  You will see the reference to those provisions on page 628 and you will see at about line 41 on page 628 Justice Adams saying essentially what the argument was.  But, your Honours, where does one see a discussion of that issue? 

Your Honours, there is a peremptory rejection of the contention at the start of paragraph 128 on page 629 but, your Honours, one then looks to see the reasoning relied on, first of all, in that paragraph to support it.  Essentially, there is the reference in the second sentence of that paragraph to the possibility of guilt on one count as establishing the existence of “a sexual interest in the complainant”.  Your Honours, in a sense that supports rather the negatives prejudice.

FRENCH CJ:   There is a distinction, is there not, between resorting to evidence relating to one count to support a finding on another, on the one hand, and using a finding on one count to support a finding on another?

MR JACKSON:   Your Honour, I think that is correct, yes.  Your Honour, could I say one also ‑ your Honour sees in the last five or six lines of paragraph 128 the assertion, which is also found in paragraph 159, and I will come to it a little more fully in a moment, that the guilt on count 2 “necessarily involved satisfaction” (a) that the applicant “was lying” and, (b) “that his wife’s evidence was unreliable” in relation to count 2 and that “the jury would be entitled to use” that view “in considering the other counts”.

Now, your Honours, as I said, I will come back to that in moment, but it does seem to involve doing the very thing which the ruling on admissibility was designed to prevent and, your Honours, one then sees at paragraph ‑ ‑ ‑

BELL J:   Mr Jackson, can I just take this up with you?  If your submission is right, surely the conclusion would drive one to the view that the error lay in the joint trial.  It would be a highly artificial process, would it not, to suggest that evidence admissible in each count to establish, but because of an assertion that the applicant had a sexual interest in the complainant, required in relation to the evidence of SD1 on count 2 that it be in some way quarantined, and one really cannot imagine that that is an exercise that a jury could engage in.

Surely the admission that the evidence on one count was admissible in support of the prosecution on the other counts was determinative in that sense.  The issue that the trial judge was dealing with on the application respecting coincidence and tendency was the broader claim of the prosecution to mount a case that the applicant was a man who had a tendency to sexually assault his stepchildren.  His Honour ruled against that and then gave directions to the jury seeking to ensure that the jury did not reason in that prohibited way.

MR JACKSON:   Well, your Honour, the point that your Honour makes about the inability to quarantine is the very thing about which we complain.  We complain that it is case where the evidence should not have been admitted because it could not be quarantined, and the test provided for by section 101(2) for admissibility was not satisfied.  The judge should not have admitted it.  He should not have admitted it at all, and that is why ‑ ‑ ‑

BELL J:   So the argument is one about whether or not the judge erred in the determination that he had to make under section 98 and 101 and whether the Court of Criminal Appeal failed to so conclude.

MR JACKSON:   Well, your Honour, may I seek to put it to say, yes, that is right.  However, it is rather more than that.  It is more than that because when one looks at the way in which the Court of Criminal Appeal did seek to deal with the matter, one sees that it, in our submission, did not properly deal with the appeal on that issue on the first place but, secondly, to the extent to which it did deal with the success or failure of the appeal it fell into the error which existed because of admission of the evidence in the first place and it brought about, in our submission, a strong case where their convictions should have been quashed.

CRENNAN J:   The reference to admissibility of the evidence in the first place picks up, does it not, on this point in paragraph 2 of your hand up document?  The complaint always comes back to, does it not, the assertion that the SD1’s evidence did not have sufficient probative value to outweigh the prejudicial effect?

MR JACKSON:   Yes, your Honour, the prejudicial effect in two respects.  One in relation to count 2 itself, the other is in relation to the other counts.

CRENNAN J:   Other counts, yes, I understand.

MR JACKSON:   So if I could just add something in relation to your Honour Justice Bell, the case does not, in our submission, fall into the category where it is simply a difference of view about the application of the provisions, it goes beyond that.

BELL J:   I am sorry, Mr Jackson, I do not quite appreciate in what respect.  The complaint, it seems to be, is that the 101 test on your contention plainly was not satisfied such that the Court of Criminal Appeal erred in concluding that the evidence had been rightly received.

MR JACKSON:   Yes, that is so, your Honour, yes.

BELL J:   That is the real nub of it, is it not?

MR JACKSON:   That is at the nub of it but we say, your Honours, that it is a case where the result of the Court of Appeal’s decision on the issue is one which has brought about a significant injustice and I cannot take that beyond that but that is what we say.  Your Honours, may I – I was dealing ‑ ‑ ‑

FRENCH CJ:   Sorry, do you have any difficulty with what the Court – I think Justice Adams says at 133 of his – at page 631, that is just in relation to the tendency use of that finding.  It goes back to the question I put to you before about the distinction between the use of a finding on one count and the use of evidence needed to establish that.  It may be slightly artificial in the real world but that seems to be the basis on which you would put it.  If you find guilt on count 2 that can be used to – and, of course, that may be based upon SD1’s evidence in part.  You say that does not make any difference to your point.

MR JACKSON:   Your Honour, may I come to 133 in just a moment?  I am going to deal with it.  What I was going to say, your Honours, was that having referred to paragraph 128 one comes then to paragraphs 129 and 130.  One sees a discussion of the evidence but it does not touch on the issue of prejudice arising under section 101.

If one goes to paragraphs 131 and 132, they do not address the issue.  Then when one comes to paragraph 133, to which your Honour was referring, one sees that in paragraph 133, your Honours, it appears to be dealing with the evidence of SD1, but the reference to the risk of prejudice is not dealt with at all except that – your Honours will see in the last six lines of the paragraph ‑ ‑ ‑

BELL J:   Which paragraph is this?

MR JACKSON:   I am sorry, 133, your Honour, page 632.

BELL J:   Thank you.

MR JACKSON:   You will see commencing in the third line on that page:

As to the risk that the jury might simply move . . . his Honour directed them that they must not so reason.  It is not contended that these directions were erroneous.

In fact, there was a ground of appeal in relation to those directions, but they followed from his ruling, as it were.  Your Honours, I said there was a ground of appeal.  You will see that referred to both at page 588, paragraph 41, and page 627, paragraph 126.

Your Honours, one then sees, if I could go back to page 632, at paragraphs 134 to 139 a discussion of the issue whether there was an error in the trial judge’s view on the nature of the proof required for coincidence evidence.  Your Honours, there was some difference of view between two of the judges on the court – it does not seem to matter for present purposes.  But in those passages, one does not see any discussion of section 101 or of the tests which it required to be applied.  All that one has is the conclusion at paragraph 141 that there is no reason – this is at the bottom of page 634:

to suppose that the jury disregarded the judge’s emphatic warning to the jury that the coincidence evidence concerned only count 2.

Your Honours, there was in fact a very good reason to suppose that the jury had it disregarded, and a good reason for supposing it was that the Court of Criminal Appeal itself did that very thing.  I will come to that in just a moment.

Your Honours, one is not talking in relation to section 101 of a kind of House v The King discretion.  What one is talking about is that the terms of section 101 make it absolutely clear that coincidence evidence cannot be used “unless the probative value . . . substantially outweighs”, et cetera.  That issue, we would submit, simply was not dealt with by the Court of Criminal Appeal.

Could I come to the second aspect of the Court of Criminal Appeal’s decision?  Your Honours will see that ground 4 of the appeal in the Court of Criminal Appeal was discussed at pages 639 and following, paragraph 152.  You will see a reference to section 6(1) of the Criminal Appeal Act, and your Honours will see his Honour discussing the evidence at paragraphs 153 through to 155.  Your Honours, I will not attempt to read from it.  Your Honours will see a discussion of it by his Honour.  Then he comes to paragraph 156 where he says:

Leaving aside the evidence of SD1, so far as one can judge from the transcript, it is fair to say, I think, that there are sound reasons for concluding that the evidence of the complainant as to counts 2 and 3 was not so persuasive as to dispel the significant doubts raised by a number of seeming implausibilities and inconsistencies ‑

Pausing at that point, his Honour then went on in that paragraph to say ‑

However . . . these doubts are resolved by the “jury’s advantage in seeing and hearing the evidence”.

Well, it could be to say, your Honours, that the evidence, at least in relation to count 2, included the evidence of SD1.  Then one sees in paragraph 157 the significance of that evidence.  His Honour went on to say:

Accepting that I may have underestimated the problems with the complainant’s evidence, the decisive matter which I have found convincing is the evidence of SD1.  As I have mentioned, SD1 was cross‑examined –

et cetera, and your Honours will see that dealt with in the remainder of paragraph 157.  Then, your Honours, there is paragraph 158:  Having left aside “joint concoction”, you will see the last three lines of paragraph 158:

Taking the coincidence evidence into account ‑ and bearing in mind the problems with the complainant’s evidence ‑ I am persuaded beyond reasonable doubt that the applicant is guilty of count 2.

But then, your Honours, he goes on to deal with count 3, and count 3 commences – a discussion of that commences at paragraph 159.  Now, in paragraph 159, referring to the conclusion in paragraph 158 that he has just reached, his Honour says specifically that the view on count 2 means that the finding as to the applicant’s credibility inherent in the finding of guilt on count 2 can ‑ and I am using his Honour’s words –

and should be used to assess the credibility of his denials, otherwise apparently believable, in respect of the other counts.

Now that, in our submission, necessarily involved taking the evidence of SD1 into account on count 3; necessarily involved, in our submission, because the finding as to credibility to which his Honour refers is one which is on count 2 ‑ is based on the evidence of SD1.  That is what his Honour says, in effect.

BELL J:   What is wrong with that reasoning?

MR JACKSON:   Well, your Honour, it is wrong, in our submission, in circumstances where the best basis on which the evidence was admitted in the first place was that it was subject to a condition.  The condition was that it could only be used in relation to count 2.

BELL J:   That was in the context of a concession that the evidence on one count was admissible on the other as evidence of tendency identified as sexual interest in the complainant.  It was not available to the jury to reason that the applicant was a person with a tendency to interfere with children related by marriage and to reason from that conclusion that he must be guilty of sexually interfering with the complainant.  But they are very different matters, Mr Jackson, and against the concession, it seems to me difficult to make good your point.

MR JACKSON:   Well, your Honour, if I may submit, with respect, the concession was, in our submission, not that all the evidence might be used, but rather that the fact of a conviction on one count might be used as some evidence of a sexual attraction on another.  No more, no less.

BELL J:   That is not the way it was put and it would be – the basis upon which counts are tried together ordinarily involves a recognition that the evidence on one is admissible on the other, since if it were not there would be strong reasons for a separate trial.  Now, the concession recorded at application book 7 is in terms, do not challenge the admission of each count as tendency evidence in respect of the other counts.

MR JACKSON:   Yes, your Honour, we – and you will see, at line 39:

We do object to that evidence as tendency or coincidence evidence ‑

It was let in as ‑ ‑ ‑

BELL J:   That is in the context of the issue being determined on the voir dire, which included the Crown’s application that SD1’s evidence be admitted as tendency as well as coincidence evidence.

MR JACKSON:   Your Honour, the argument that was advanced on behalf of the applicant in the hearing of that application raised the very question of the use that might be made of the evidence of SD1 if admitted.  Your Honours will see that at page 24, at lines 30 to 43.  You will see, your Honours, page 25, about line 10, through to line 31, and about line 45 on that page to the bottom of the page, and your Honours’ reference at the top of page 26 and also page 27, about line 39 to 45.

FRENCH CJ:   Is it an aspect of your argument that once it is accepted that a finding – I am not talking about the evidence – that a finding of guilt on count 2 may inform the reasoning to guilt on count 3 by reference to sexual interest determined as a result of the finding on count 2, given that the finding in count 2 depends, in part, upon the evidence of SD1 that the quarantining direction as to the use of SD1 is illusory?

MR JACKSON:   No, it is not, your Honour.  I am sorry – maybe I am not sure if I am entirely clear what your Honour ‑ ‑ ‑

FRENCH CJ:   I am trying to see – you are suggesting that prejudice was not adequately addressed because the evidence of SD1 leaks into the jury’s deliberations beyond that of guilt on count 2 ‑ ‑ ‑

MR JACKSON:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑and it does not matter for your purposes whether they are confined to using a finding on count 2 to support a finding on count 3 if the finding on count 2 rests, in part, upon the evidence of SD1, the prejudice flows through to their reasoning in relation to count 3.

MR JACKSON:   Yes, your Honour, yes.  Your Honour, the ‑ ‑ ‑

FRENCH CJ:   So it is not protected by the direction, that is the point, because they are allowed to use it for tendency purposes.

MR JACKSON:   Yes, your Honour, yes.  Your Honour, could I just say, I was going to deal with paragraph 159.  I dealt with the first aspect of it.  You will see then in the second aspect of it that ‑ sorry, may I just say this ‑ if one looks first of all at what is said in paragraph 159 as to the evidence of the applicant on count 3, and your Honours will see that the finding as to credibility inherent in the finding of guilt of count 2 it is said:

can and should be used . . . to assess the credibility of his denials.

Your Honours, and I am submitting, I think, that that necessarily involved taking the evidence of SD1 into account on count 3 and it did so necessarily because of the observation at paragraph 157 in relation to count 2 that the decisive matter was the evidence of SD1 and, your Honours, then secondly, your Honours, if one looks at the last sentence of 158:

Taking the coincidence evidence into account . . . I am persuaded beyond reasonable doubt that the applicant is guilty of count 2.

Your Honours, the second point about paragraph 159 was that it was said that it also shows, as your Honour said, that:

Mrs Versi’s evidence . . . is either unreliable or irrelevant ‑

and, again, that is based on the same considerations.  And, your Honours, the third matter, at the top of page 644, it said:

Moreover, once it be accepted beyond reasonable doubt that the applicant was guilty of count 2 ‑

which, of course, is based again on the decisive matter, SD1’s evidence ‑

this demonstrates a sexual interest ‑

et cetera.  Well, your Honour, that again is based on the same consideration.  So, your Honours, we would submit that the approach taken by the Court of Criminal Appeal was erroneous.  It was a case where there were separate charges.  SD1’s evidence was admitted for limited purposes; it could only be used on count 2 and the actual use by the Court of Criminal Appeal provided a clear illustration of the danger and prejudice occasioned by admitting SD1’s evidence in the first place.

Your Honours, if I could pause at that point, might I endeavour to set out the position which, we would submit, would obtain if the submissions we have made were accepted.  In the first place, we would submit, it would make it apparent that the Court of Criminal Appeal had not dealt with the contention that the requirements for admissibility under section 98, but more particularly 101, had not been satisfied.

We would submit that it would mean ‑ and I hope your Honours will forgive me for saying so ‑ it would mean at least, we would submit, that the appeal to this Court should be allowed and the decision of the Court of Criminal Appeal dismissing the appeals to it against conviction should be set aside, and a question would then arise, your Honours, whether this Court should itself dispose of the matter or if the matter should be remitted to the Court of Criminal Appeal for further consideration.

Now, your Honours, we would submit that the former course, namely, that the Court should itself dispose of the matter, is the appropriate course.  That is for a number of reasons but, importantly, the approach taken by the Court of Criminal Appeal itself demonstrated not just the possibility of prejudice, but the likelihood of prejudice.  The Court of Criminal Appeal used the evidence of SD1 in considering count 3.

Could we refer your Honours in that regard to our reply submissions, in paragraph 5?  Your Honours, could I also submit that if one looks at our learned friend’s written submissions, they do seem to support the view that SD1’s evidence could not be strictly quarantined.  If I could go to paragraph 6.51 on page 13 of those submissions, it said it was not possible, strictly, to quarantine SD1’s evidence to count 2, given its obvious significance beyond that count and, your Honours, if that is so, that was the position, then in our submission it should not have been allowed in evidence.  Also at paragraph 6.51 where your Honours will see it is said by our learned friends that once admitted, SD1’s evidence had significance beyond count 2 and, your Honours, that is to do the very thing, in our submission, which the condition of admissibility was designed to prevent.

Your Honours, could I refer to our reply submissions, in paragraph 3, in relation to this question?  Could I move then for just a moment to the notice of contention which our learned friends seek to rely on if special leave be granted.  That is attached to the respondent’s submissions, and your Honours will see that it sets out a – it refers to three grounds on which it is contended that the evidence of SD1 was also admissible.  It was admissible as coincidence evidence on all counts.  It was admissible as tendency evidence on all counts.  It was admissible to rebut evidence of good character.  Now, your Honours, we referred to this in our reply submissions in paragraph 4.  May I take your Honours to that in just a moment?  I have referred to these matters at this point because much of the respondent’s argument seems to be based on an assumption that the evidence of SD1 was available to be used for purposes other than count 2.

Could I go back then, your Honours, to paragraph 4 of our reply submissions?  As we there submit, the first two grounds of that notice of contention failed at trial, were not raised in the Court of Criminal Appeal and there is no appeal from that ruling.  Secondly, in relation to each of those grounds, if they had been in play at the trial in the sense that they had been allowed, further directions would have to be given.  Thirdly, there would have been argument on the issue in the Court of Criminal Appeal.  The third ground in that notice is that SD1’s evidence was admissible to rebut evidence of good character.  Well, that could only be pursuant to section 110, but that could only be if the evidence was allowed as tendency rather than coincidence evidence, because your Honours will see from section 110 which is set out in our reply that, whilst it deals with various types of evidence, it does not refer to coincidence evidence.

Now, your Honours, I said a moment ago that I referred to the notice of contention because the respondent’s argument seems to be based in some respects on an assumption that the evidence of SD1 was, in reality, available to be used for purposes other than count 2, and one can see a practical illustration of that, your Honours, in for example, paragraph 6.16.  You will see in 6.16 where the last sentence of it refers to the – or the first two lines of that part of it ‑ your Honours, that act “were the differences” which – the reference to the fact that these:

were the differences which made the evidence inadmissible other than on count 2 –

and the reference to –

no medical aspect to the pretence used to massage –

et cetera, is a reference to count 3 rather than count 2.  Your Honours, may I deal with a couple of remaining matters?  In our submission, if we are correct, the evidence of SD1 should not have been admitted and should not have been admitted at all.

KIEFEL J:   Mr Jackson, could I just ask you this.  Your submissions tend to focus upon the degree of prejudice to found the inadmissibility of the evidence.  Do you place much reliance upon the inherent weakness of the evidence?

MR JACKSON:   Yes, your Honour, and that is what I am coming to now.  I was going to say, your Honours, there are grounds in addition to those with which I have so far dealt, on which we submit the evidence should not have been admitted on ground 2, in any event.  In that regard, your Honours, could I go first to the summary of argument on the special leave application which is in volume 2 commencing at page 675.  You will see in paragraph 1 a reference to the broader question.

KIEFEL J:   I am sorry, which page was that, Mr Jackson?

MR JACKSON:   Page 675, your Honour.  Paragraph 1 sets out the issue, and then, your Honours, if one goes to paragraph 12 at page 677, you will see the two aspects referred to in subparagraphs (a) and (b) of paragraph 12.  I think (a) was the particular matter your Honour was referring to.  It is a summary version of the argument, and then when one goes to paragraphs 13 to 23, the detailed argument in support of them.

Your Honours, may I correct one thing?  That is in paragraph 21, and it has occurred in a couple of other places, and that is the fifth line of paragraph 21.  SD1’s mother’s witness statement, we had thought had been in evidence at some point.  Apparently, it was not.  Your Honours, may we

delete the reference there and also in a couple of other places where it appears?

Your Honours, could we just say, without reading through all the material we have set out there, may I just seek to draw attention to several aspects?  First of all, as to the charge on count 2, the conduct may have been inappropriate and seriously inappropriate, but the medical reason for it was not spurious.  There was no ruse or trick; he was in fact suffering from the condition that brought about the need for it.  It might not be the most charming way to go about life, but that was the nature of it; there was no ruse or trick.  As to the conduct involved, the circumstances involving SD1 were very significantly more serious than those involved in relation to count 2.  You will see that referred to in paragraph 17 of the submissions on page 678.  Your Honours, we would refer also to the matters set out in paragraphs 18 to 22 with the qualification that I have mentioned in paragraph 21.

Your Honours, we have set those matters out also in our written submissions in‑chief, in paragraphs 39 and 40.  Your Honours, in our submission, the case was not one by any means of there being a ‑ to use the older words ‑ striking similarity.  What they were was they did not, in our submission, satisfy that or the relevant test.  In our submission, your Honours, the requirements of section 98 and 101(2) could not have been met.

Your Honours, for the reasons that we have set out in our written submissions in‑chief at paragraph 36, in our submission, there was a miscarriage of justice and your Honours will see we refer to three consequences under the headings which are between paragraphs 36 and 37, 43 and 44, and 50 and 51.  Your Honours, we rely on our written submissions.  Those are the oral submissions I wish to make.

FRENCH CJ:   Thank you, Mr Jackson.  The Court will adjourn briefly to consider what course it should take.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.25 AM:

FRENCH CJ:   We will not need to trouble you, Mr Babb.

This application for special leave depends on the asserted failure of the trial judge and the Court of Criminal Appeal to adequately consider the probative value of coincidence evidence and the prejudice occasioned by its admission in this case.  In our opinion, the applicant has not demonstrated, having regard to the appropriate use of tendency reasoning from a finding on count 2 to a finding on count 3, that there was a danger of unfair prejudice giving rise to a miscarriage of justice.  Special leave will be refused.

The Court now adjourns until 9.00 am tomorrow in Sydney for pronouncement of orders, and 9.30 am tomorrow in Melbourne.

AT 11.26 AM THE MATTER WAS ADJOURNED