Wannan v The Queen

[2007] HCATrans 105

[2007] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A19 of 2006

B e t w e e n -

BRENTON ANTHONY WANNAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 12.23 PM

Copyright in the High Court of Australia

MR J.D. EDWARDSON, QC:  May it please the Court, I appear with MS J.M. FULLER for the applicant.  (instructed by Michael Woods & Co)

MR P.R. BREBNER, QC:   May it please the Court, I appear with MS L.J. DUNLOP for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

KIRBY J:   Yes, Mr Edwardson.

MR EDWARDSON: May it please the Court, this application for special leave involves a question of law of public importance, namely, the extent to which evidence of prior sexual practices or preferences of a complainant with persons other than the accused is admissible as being relevant to the issue of consent at common law and subsequently section 34I of the Evidence Act 1929. A special feature of this case is that it was the prosecution that sought to introduce the evidence of prior sexual activity to refute the issue of consent. The impugned evidence is set out under tab 3 of the book of documents filed on behalf of the applicant. It is a one‑page transcript of the complainant’s evidence at trial and the relevant ‑ ‑ ‑

KIRBY J:   Let me pause here.  You need an extension of time, I think, or a waiver of the compliance with rule 41.02.  Is that opposed, on your understanding, by the Crown, or not?

MR EDWARDSON:   No, it is not opposed, your Honour.

KIRBY J:   Yes, very well.  You can assume that the Court, if otherwise you are entitled to special leave, will provide that extension.  Now, back to where we were.

MR EDWARDSON:   If the Court pleases.  In the book of the documents filed on behalf of the applicant under tab 3, although I do apologise it is listed as tab 2, there is the one‑page identification of the transcript of the complainant and lines 15 to 27 is the impugned evidence.  The evidence was that the complainant was menstruating at the time of the act of sexual intercourse, that she had never had any ‑ ‑ ‑

KIRBY J:   We do know the details.  We have read the application carefully and we know that this was the reason given by the complainant for why she would not have engaged in consensual sex with the applicant, or with anybody, at that time and that that was, as it were, put in to rebut the suggestion of your client that the complainant was engaged in a consensual sexual activity when she came back from the hotel.

MR EDWARDSON:   I am grateful for that intimation, your Honour.  I will move on in those circumstances.  This evidence was, according to the judgment of Chief Justice Doyle, with whom the other two judges agreed, admissible at common law as being relevant not to the prosecution case but to the defence case.  It was, so the court said, relevant to the likelihood of the complainant agreeing to engage in sexual activity in the circumstances described by Mr Wannan.  Her evidence, if accepted by the jury, could have led them to the conclusion that she would not have consented to the activity described by Mr Wannan and that could lead the jury to reject his version of the events.

KIRBY J:   Why is that wrong?  Why is it not relevant to answer the suggestion that she was a consenting party, that she had this abhorrence to having sexual activity at the time of menstruating?

MR EDWARDSON:   It is the applicant’s contention that a recitation of historical sexual practices or preferences by a complainant in a rape case is no more than a self‑serving justification by disposition reasoning for an assertion by the complainant that on this occasion the complainant did not or would not have consented to the act of sexual intercourse.

KIRBY J:   It was more than just on this occasion, was it not?  It was something that she was saying.  Now, it is true it was self‑serving, but a lot of evidence that is given is self‑serving by people because it is in the nature of human beings in their evidence to be endeavouring to explain their conduct.  So I do not think that elevates it into a class that is either inadmissible or suspect.  That is a matter for comment before the jury perhaps.

MR EDWARDSON:   This is not a case, your Honour, where the complainant gave evidence, as it were, in a self‑serving fashion by way of justification for the explanation for why she did not or would not have consented.  There was argument before the empanelment of the jury as to the parameters of this evidence and the extent to which this evidence was admissible and why and it is our contention, your Honour, that the prosecution should not have been permitted to go beyond the fact of menstruation or that in those circumstances she would not consent.  She went much further than that.

KIRBY J:   Just pause and assume for a moment that this is the complainant’s true statement of her sexual conduct, why is that a matter that should not, at least at common law, go before the jury as something which they can give weight to, accept, disbelieve?  Why should it be kept out, that the complainant is a person who has this fastidious approach of her own?

MR EDWARDSON:   Because, I suppose, in one sense one can say – and I appreciate that this obviously could be the subject of comment in the event that this evidence is admitted – but the circumstances in which a sexual act takes place are always subject to a whole variety of variables.  It might be the individual, it might be the circumstances of the moment, it might be the extent to which a person has or has not consumed alcohol.  There is no way in which a defendant could in these circumstances ever refute or seriously test that assertion, namely, “I do not have sex when I am menstruating.  I have never permitted that to happen in the past”.  We submit that the difficulty ‑ ‑ ‑

HAYNE J:   Can I understand exactly what you are putting.  Are you saying the evidence is not relevant or are you saying the evidence is not admissible?

MR EDWARDSON:   Both.  We are saying it is not relevant.  What a person may or may not have done with a person other than the accused on different occasions in circumstances of sex has no relevance unless there is some direct nexus between that act and the act which is the subject of the charge.  In the alternative, we say that one cannot reason that one would not or could not or did not consent on a particular occasion by reference to what a person may or may not have done on other occasions in the past with other persons.

The problem, we submit, is that it takes the jury focus entirely away from the occasion in question and diverts from the jury the issue of what did actually happen on this particular occasion and that is why, we submit, that there is no justification for the admissibility of this evidence.  As far as we understand it, the only comparable example of the prosecution being permitted to lead evidence which deals with past sexual history, or lack of it, is the situation of virginity.  That is a situation which was permitted in two decisions referred to in the outline, the Queensland case of Allingham v The Queen and the South Australian decision of R v Byzcko.

HAYNE J:   Do you accept that it would be relevant evidence for a complainant to say that he or she had never previously had a sexual experience?

MR EDWARDSON:   I say that generally, no.  It may be relevant in the circumstances envisaged in the two cases that I have mentioned.  Virginity was permitted in the unusual circumstances of both of those cases, that is, disparity of age between the parties, that is the complainant on the one hand and the accused on the other, the fact that they did not know each other, the fact that it was almost an anonymous meeting and the fact of virginity made it much more inherently unlikely that the complainant would consent in those circumstances.

That is a far cry from the situation of the case at Bar, namely, a situation where you have two adults who are sexually experienced and the complainant who, on the prosecution case, was asleep at the time, at least at the commencement of the act of cunnilingus which gave rise to the subject of this charge, justifying her position with the permission of the court by reference to what she would or would not permit or had or had not permitted on other occasions.

We say that it is not admissible at common law. Even if it was permissible at common law, it is, we would submit, clearly only led for the purposes of the general disposition of the complainant which is expressly prohibited under section 34I(3) and alternatively, if, as was contended by Chief Justice Doyle it is not general disposition or at least only led for the purposes of general disposition evidence, it does fall properly within section 34I(1)(b) it could never in the circumstances of this case be elevated to the status of having substantial probative value justifying its admissibility.

Can I pause briefly to say that in the decision of Bull v The Queen (2000) 201 CLR 443 included in the book of documents, in particular at paragraphs 58 and 59, both of which were referred to by Chief Justice Doyle in his judgment, Chief Justice Doyle said that the evidence, that is this evidence, was not used by means of “kind of person” reasoning. However, the concept of disposition, in our submission, as discussed by your Honour Justice Hayne and also Justices McHugh and Gummow was construed:

as referring to any characteristics of the complainant which suggests that he or she is the “kind of person” who would have engaged in the conduct in question -

and that:

a person’s tendencies or propensities as things intrinsic to the individual . . . are part of the character of the person so that given a relevant set of conditions or circumstances the person concerned has a tendency or propensity to act in a particular way. 

It is our respectful submission that the converse must equally apply, that is, whether or not a person would not consent in a given set of circumstances given the criteria being fulfilled.  It is our respectful submission that the general prohibition which exists under subsection (3) or, alternatively, the common law simply does not envisage what I call self‑serving justification of the position contended for by the complainant in this case.

It is important to remember that normally cases that obviously deal with the issue of an application by the accused to cross‑examine the complainant as to sexual activities separate and distinct from the events which give rise to the charge, the act of sexual intercourse can take any number of forms between people in a relationship, let alone in circumstances of infidelity or a one-night stand.  The variables which I had mentioned a moment ago, such as alcohol, mood, heightened sense of arousal, who the participants are, are all important considerations in the determination of whether or not a person will or will not permit a particular act to occur on a given occasion.

It is a quantum leap, if not a bootstraps argument, in our submission, to suggest that simply because a person has not in the past permitted a particular act to occur, there is and can be always a first time and the difficulty for the accused, as was recognised by Chief Justice Doyle in this case at paragraph 47 was, as he said:

The fact that the Defence would find it difficult, and perhaps impossible, to test or rebut this evidence was of no particular significance . . . That could not make it unjust to admit the evidence.

I should point out that on three separate occasions the trial judge specifically told the members of the jury that defence counsel did not challenge her, that is the complainant, in relation to her assertion that she did not have intercourse while she was menstruating or that she had never had any form of sexual intercourse when in this condition.  It is difficult to see how one could seriously challenge an assertion such as this when you are not privy to her behaviour, sexually at least, with persons other than the accused.

HAYNE J:   Maybe, but it is not unknown in a criminal case for there to be evidence that the accused person cannot readily meet.  I understand that.  That seems to lead nowhere.  The question is whether this evidence was relevant.  If it was relevant, was it admissible? 

MR EDWARDSON:   With respect, point taken, but in the context of this case it is the combination of factors that confronted the accused, that is, was it admissible in the first place?  If it was admissible at all, how could it be used in a permissible way?  Our contention, as I have said already, is that it was not admissible at common law, it could not be used in the way envisaged, in our respectful submission, by Chief Justice Doyle, that is, that the jury ‑ ‑ ‑

KIRBY J:   Do you want to say anything in relation to the Evidence Act - section 34I(1), I think it is?

MR EDWARDSON: Yes, I do. Section 34I(1)(b) is the provision by which the prosecution were permitted to lead evidence of this evidence. They had to get over the threshold test, the threshold test being ‑ ‑ ‑

HAYNE J: It is not a permission to the prosecution to lead the evidence at all. If the evidence is relevant, prima facie, it is admissible. If it is to be found not admissible, it has to be found not admissible on the application of a rule. Section 34I presents the question whether this evidence, though otherwise relevant, was not admissible.

MR EDWARDSON: But before it can be admitted under section 34I(1)(b) there must be a finding by the Court that the evidence is of substantial probative value under subsection (2)(a). In other words, it might be prima facie admissible at common law, and I have put my submissions on that, but then once it falls within the category of being evidence dealing with the victim’s sexual activities, in this case before the events of the alleged defence, then even though it is prima facie admissible at common law, the prosecution who are making the application for the receipt of this evidence still had to pass a threshold test under subsection (2), that is, that it was of substantial probative value. It is our respectful submission that this evidence on any view could never pass that test.

KIRBY J:   Yes, but if you look at subsection (2) you will see the mischief to which Parliament is addressing its attention, which is to give effect to the principle “that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment”.  This is not evidence that was tendered that tends to run into that mischief.  On the contrary, it is tendered by a person which the jury can accept or not accept that this was her invariable practice.

MR EDWARDSON:   Moreover, in the context of the judge being required to “give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation”, et cetera, they had the positive assertion from the prosecution that the complainant had provided a statement to that effect and was prepared to give evidence of that fact.  So there is no doubt that subsection (2) is directed to the avoidance of the sort of distress envisaged by the subsection in those circumstances.

Nonetheless, the prosecution still had to get over the threshold test of, was this of substantive probative value?  Moreover, the prosecution had to put this evidence outside of subsection (3) and, for the reasons that I have mentioned, in our respectful submission, if one looks at the actual evidence that was led, this evidence was no more than evidence which was led only for the purposes of raising inference from some general disposition of the alleged victim, that is, her general practice in the past.

KIRBY J:   It really is not (3).  You may have some point on (2)(a), but it is not her general disposition which was in issue, that is to say, is she a good person or a bad person, good character, bad character.  It is her specific behaviour.

MR EDWARDSON:   Except that the way in which the evidence was envisaged and separately led was no more than a general application of what was her practice in the past.  As I understand what fell from the Court in Bull v The Queen, that would satisfy the test of general disposition as that expression is understood.  At least the reasoning, of course, in Bull v The Queen was adopted by the Chief Justice in the judgment of the case at Bar. 

So ultimately we say that this is a matter of public importance.  We contend that the circumstances of this case do have far‑reaching implications when one considers the basis upon which this evidence was admitted.  If this reasoning is correct, a complainant could be permitted to give evidence of the circumstances in which the complainant was prepared to engage in sexual activity, a practice from which it is asserted that there has been no departures based on concepts such as fidelity, religious beliefs, abstinence from certain forms of sexual activity as bearing on the question of consent to an unrelated act of sexual intercourse with the accused.

The existence of consent, for example, is not, so the Court said in Bull, to be inferred from the character and tendencies of the complainant but is to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime and that, in my submission, is not what happened in the case at Bar.

The decided cases almost exclusively deal with applications by defendants to adduce evidence of the complainant’s previous sexual activities.  The only exceptions appear to be the cases dealing with the relevance of evidence of virginity.  Accordingly, to the extent that the prosecution can adduce evidence of previous sexual activities constituting a practice of a complainant to establish the unlikelihood of consent is, in our submission, a matter of general importance.  May it please the Court.

KIRBY J:   Can I just ask you, Justice Anderson dissented and favoured different orders but, as I understand it, that was on grounds only, grounds 3 and 6, and it did not touch the matter that you have elected to argue before this Court.  So that on that matter the Court of Criminal Appeal was unanimous, is that correct?

MR EDWARDSON:   Yes, it was.

KIRBY J:   Thank you very much.  Mr Brebner, the Court does not need your assistance.

The issue in this application for special leave is whether certain evidence of the complainant in a case of rape was relevant and, if relevant, admissible under the law as it applies in South Australia.

We consider that the Court of Criminal Appeal, constituted by Chief Justice Doyle and Justices Besanko and Anderson, who were unanimous in this respect, was correct both in its analysis and in its conclusion.  We consider that there has been no error and no miscarriage of justice.  While we would cure the time default on the part of the applicant, we dismiss the application for special leave.

The Court will now adjourn for the succeeding video link to Brisbane.

AT 12.44 PM THE MATTER WAS CONCLUDED