BRS v The Queen S23/1997 [1997] HCATrans 150 (27 May 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S23 of 1997

B e t w e e n -

BRS

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

TOOHEY J

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 27 MAY 1997, AT 10.18 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, in that matter I appear with my learned friend MR S.J. ODGERS for the appellant. (instructed by Greg Walsh & Co)

MR R. KELEMAN, SC: May it please the Court, I appear with my learned friend MR P.G. BERMAN for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, there is a preliminary matter that needs to be determined relating to the use of initials of the appellant. Practice direction No 5 of 1996 requires a direction be given that the use of initials be continued. Justice Toohey, when this matter was before the Court as an application for special leave on 14 February this year in Sydney, made such an order and I would ask the Court that that order be continued for the purpose of these proceedings.

BRENNAN CJ: What is the ground of the application, Mr Byrne?

MR BYRNE: The ground on which that is based, your Honour, is that the identification of the appellant by his full name and by reference to other facts that may be disclosed in the material might lead to the identification of the complainant in the matter. It has been throughout a matter which is the subject of a non-publication order. That was in the trial proceedings in the District Court and in the proceedings in the Court of Criminal Appeal. The appellant, as he was in that court, was referred to by his initials alone.

BRENNAN CJ: In order to protect the complainant?

MR BYRNE: That was the basis primarily on which it was made.

BRENNAN CJ: What is the Crown's attitude to this application, Mr Keleman?

MR KELEMAN: We would support the application. In fact, it is consistent with the provisions in the New South Wales Crimes Act under 578 and 578A. We would also take the view that the identification of the appellant may well, in turn, lead to the identification of the complainant. So we would support the application.

BRENNAN CJ: Yes, thank you. Yes, very well, the order will be made. Reference to the appellant will be by the initials BRS.

MR BYRNE: May it please the Court. Your Honours, the appellant was convicted of five offences of sexual assault following a trial at which the Crown led evidence from the complainant H together with evidence from a witness W who gave evidence of incidents of alleged sexual misconduct by the appellant towards him, that is W, on occasions which were separate from the events concerning the complainant which were the subject of the charges.

Your Honours, this appeal raises three essential questions. Firstly, whether the evidence of the witness W was capable of being corroboration of the complainant H. The resolution of that question, in turn, depends upon a determination of whether the evidence of W was admissible and for what purposes it was admissible and, in particular, whether the evidence of W was capable of being used as positive evidence of guilt tending to confirm the complainant H's account of the events which gave rise to the charges.

The second issue, your Honours, is whether, if the evidence of W was admitted for any purpose, directions would necessarily need to be given on the legitimate use that could be made of the evidence of the witness W and the third question is whether the failure to give the required directions on the permissible use of that evidence has occasioned a miscarriage of justice.

KIRBY J: The second ground was if the evidence of W was admitted. It was admitted, as I understand, without objection on your part.

MR BYRNE: It was, your Honour. The basis on which it was admitted without objection was a limited basis and it should be said that senior counsel for the appellant at his trial made it, in our submission, clear that it was his contention that the only basis on which the evidence of W was admissible was as evidence to rebut evidence of good character that was called effectively on behalf of the appellant.

TOOHEY J: He did not seek a ruling to that effect at the time, did he, Mr Byrne?

MR BYRNE: He did not seek formally a ruling as to the basis on which the evidence was admissible. I can take your Honours to that part of the - - -

TOOHEY J: I did not want to take you out the order of your address, but you can leave that if you like.

MR BYRNE: It is perhaps an appropriate issue with respect, your Honour, to deal with at this stage. The question is raised - it was initially raised, it should be said, by the learned Crown Prosecutor at an earlier stage of the trial at page 120 of the appeal books. If I can take your Honours to that material which is in the first volume.

KIRBY J: The witness W was brought back from Belgium, as I read the transcript.

MR BYRNE: That is right, your Honour.

KIRBY J: Does that indicate that there was some prior - or does the transcript show that there was some prior discussion as to how he would be used intended for the Crown?

MR BYRNE: That is not indicated on the transcript materials, but it was probably the case. I would have to say that I am not certain what - the precise situation, but it was probably the case.

KIRBY J: We better stick to the transcript, I think.

MR BYRNE: Yes. The situation was, your Honour, that it was disclosed to the Crown prior to the trial that the defence would be relying on evidence of good character on the question of guilt, and the Crown indicated that it intended to call the evidence of W. But the Crown's purpose in calling W went further than merely the question of character, and that fact is made clear by the Crown and in what the learned Crown Prosecutor said at page 120 of the appeal book and, in particular, if I can take your Honours to the third paragraph, at about line 33, where the learned Crown Prosecutor said, referring to the evidence of the witness W:

His evidence has two-fold relevance now, in my submission. One because it is evidence that would rebut character evidence. Secondly, it may afford evidence of corroboration of -

the evidence of the complainant.

KIRBY J: Where was that? What page was that, I am sorry?

MR BYRNE: I am sorry, your Honour, that was page 120 of the - it is in the first volume of the appeal book, and at line 33 to line 36. So that, at that stage of the trial the Crown Prosecutor was making it clear that, in his submission, there was, as he described it, a twofold basis on which the evidence of the witness W should be admitted. Your Honours, that issue rested until considerably later in the second volume of the - - -

TOOHEY J: Just pausing there for a moment, Mr Byrne, the reference to corroboration is, as I understand it, a sort of non- technical reference in the sense that corroboration was required in respect of what, some of the offences and not required in respect of others, or at least there was an obligation to warn in respect of some and not others?

MR BYRNE: Your Honour, the situation was that none of the charges which the appellant faced were charges in which corroboration was required. In relation to four of the charges, the first four charges on the indictment, they were not prescribed sexual offences. There was in relation to those charges no application of that section of the New South Wales Crimes Act which provides that it is not - I am sorry, that a corroboration warning need not be given.

KIRBY J: What is that section?

MR BYRNE: That section of the Crimes Act, your Honour, is section 405C. Section 405C provides that a warning should be given - I am sorry, there is no requirement to give a warning in prescribed sexual offences. The only prescribed sexual offences on the indictment in this charge were the two counts which were brought under section 78K.

BRENNAN CJ: Mr Byrne, my copy of the Crimes Act has 405C deleted as a - - -

MR BYRNE: Yes, it has been repealed, your Honour, by the Evidence Act which commenced on 1 September 1995. This trial, being conducted in June 1995, was conducted prior to the repeal of section - - -

BRENNAN CJ: Were the terms of 405C short or long? Do you have a copy of them?

MR BYRNE: I do have them here. They are relatively long.

BRENNAN CJ: Perhaps a copy of them could be provided to us afterwards.

MR BYRNE: Certainly, your Honour, I will arrange for that to be done.

KIRBY J: There was some discussion with Judge Court about the difficulty of framing a direction, was there not?

MR BYRNE: There was, and it was conceded by Mr Porter appearing for the appellant that the circumstances were such that it was not desirable that any specific direction be given.

BRENNAN CJ: What was the good character that was put in issue?

MR BYRNE: Your Honour, the evidence of good character that was called - - -

BRENNAN CJ: Whatever it was, what was the nature of the character that was put in issue?

MR BYRNE: The Crown contended that the evidence of the witness W, which was to the effect that there was sexual misconduct by the appellant on occasions, was evidence rebutting good character. The good character evidence was evidence called from various witnesses who said that the appellant was a person with a very high reputation as a teacher. There was general evidence of the fact that he had no prior convictions, matters of that nature.

BRENNAN CJ: But the relevant good character would have been that he was not given to this sort of conduct, would it not?

MR BYRNE: Yes, your Honour, and also it went of course to the question of his credibility as well, because the appellant did give evidence on oath, and it was also relevant to the determination of the credibility of his denials that were made to investigating police when the matter was first raised by them with him. The evidence of good character, so far as it went - there were three witnesses called in the case for the appellant who gave positive evidence of his good character. That was Mr Bruce Keyes. His evidence is at page 317 of the appeal book.

TOOHEY J: But in a sense, Mr Byrne, this is putting it round the wrong way, is it not? The character evidence would only come in through the accused's own case. This has arisen at the point where the Crown is seeking to call a witness and at page 120 explains what purpose that evidence is to serve. That is, presumably, in anticipation and knowing that character evidence is to be called.

MR BYRNE: Yes. It was more than that though, your Honour, because there was in fact cross-examination of prosecution witnesses on the question of the accused's character. Your Honours, the relevant parts of the transcript, if I can just take your Honours briefly to that: page 125 of the appeal book contains the evidence of Dr Carter who was the headmaster of the school where the appellant taught and where at least some of these alleged offences were said to have been committed. The relevant parts are on page 125 of the appeal book - and this witness was a witness for the Crown - but Mr Porter cross- examining him said at line 42:

Q. You had a high opinion of BRS, did you not?

A. Yes, Indeed.

Q. And still do?

A. Indeed.

Q. What sort of master was he?

A. He was one of the most outstanding primary school teachers that I have known. I say that both as a parent and Headmaster.

There was earlier evidence in the evidence of a witness, Barbara Stone, whose relevant evidence is at page 117 of the appeal book, and at line 30, Mr Porter cross-examining her as a witness in the Crown case:

Q. You knew BRS quite well?

A. Yes.

Q. What sort of person was he?

A. Very nice young man.

Q. Good teacher?

A. Very good teacher.

That material emerged in the case for the prosecution and there was also evidence called in the prosecution case from police officers who were involved in the investigation of the offence to the effect that the appellant had no prior convictions. There was then positive evidence called in his own case. He himself put himself before the court as a person of good character - that was at page 240 of the appeal book. Those three witnesses called on his behalf who gave evidence of character were a Mr Keyes, a fellow teacher, a Ms Bernardos, who was a friend, and a Ms Turner.

BRENNAN CJ: What page is Bernardos and Turner?

MR BYRNE: Bernardos, the relevant evidence, your Honour, is at page 323 at line 20 and the evidence of Ms Turner at page 324 at line 6 and her evidence in relation to the question of character more particularly at page 325 at line 35 where she was asked:

What is your opinion of him?

referring to the appellant, and she said:

I think it is exemplary.

Q. Would you expand on that?

A. I think he is one of the finest teachers I have seen, and I have been teaching a long time -a lot longer than BRS has. He is a caring person. He believes giving every child the maximum opportunity. He was the type of teacher that the headmaster of the junior school was tired of, because all the parents wanted their child in BRS's class because he was such an excellent teacher and carer.

There is also a reference, I am reminded, at line 32 on page 325, to which I have just been referring, asking the witness whether she went with the appellant on overseas trips where they took children from the school together, and the answer given was:

Yes, I knew him. I wouldn't have gone with him unless I felt totally comfortable with him.

So, there was a body of evidence called, both in the form of examination of witnesses for the Crown and evidence called in the defence case, which was to establish the fact of the appellant's good character, as material that was necessary to be taken into account on the question of guilt. The evidence that was called from the witness W was, as Justice Kirby said, admitted without objection, but it was admitted without objection to its use as evidence rebutting the evidence of good character. It was not conceded by Mr Porter that that evidence was admissible, or could be used for any other purpose.

Your Honours, that position taken by Mr Porter, appearing for the appellant, was made clear. If I can take your Honours back to page 220 of the appeal book, what happened in the events as they unfolded at the trial was that the witness W was called. He had completed his evidence-in-chief, and his cross-examination was continuing, and then there was a pause, where the jury were excused from the court, and the learned trial judge raised with counsel, in the absence of the jury, the basis on which the evidence was before the court. That material, your Honours, is at page 220, and it commences at about line 12, where the learned trial judge said:

Mr Porter, I realise that this is being led without objection, but I am somewhat perturbed about it.

Mr Porter said the appellant:

has put his character in issue. This is the only matter apparently that can be brought against his character. That is the basis upon which it is led.

It was then put by Mr Porter a little further down at line 26:

It was a decision made with considerable thought. It was considered that we should not abandon our good character because of this allegation.

It was then that the Crown Prosecutor again returned to that issue that he had earlier raised, which I have referred your Honours to at page 120 of the appeal book. The Crown Prosecutor said - - -

TOOHEY J: Could I just interrupt you for a moment, Mr Byrne. The notation at the foot of that page suggests cross-examination of the witness, but is that the position at that point?

MR BYRNE: Yes, your Honour.

TOOHEY J: I only ask you because the judge says:

I realise this is being led without objection -

which might suggest that it was coming in through examination in- chief.

MR BYRNE: Yes, your Honour. The examination in-chief of the witness commenced at page 204 and continued until page 213. Mr Porter's cross-examination commenced towards the bottom of page 213 and it was well into the cross-examination of the witness W when this issue was raised in the absence of the jury.

TOOHEY J: But by that stage the evidence was all in, so far as the Crown was concerned.

MR BYRNE: Certainly. But there was still, at that stage, in our respectful submission, a real issue as to the purpose for which it was in. Whilst it is conceded that Mr Porter did not object to the admissibility of the evidence on the basis that it was evidence of character and available to the prosecution to rebut the evidence of good character that had been called and was to be called in the case, Mr Porter had not conceded that it was admissible for any other purpose.

Your Honours, senior counsel's position in that regard was made, with respect, even clearer, in our submission, in what he said in his address to the jury, and your Honours have that material in the appeal books, in particular at page 386, where Mr Porter's address is recorded. He said this - and this of course followed the address given by the learned Crown Prosecutor which put before the jury various ways in which the evidence of the witness W might be used - Mr Porter said this at page 386, line 5:

And it is quite surprising really that the only allegation against the appellant of a sexual kind is that made by the witness W and it's not a homosexual allegation at all as he himself admits, but the accusation of the witness W is evidence before you in -

and it should read "refutation" -

of the Accused's claim that he is a person of good character, that's all it does, it doesn't corroborate the charge of course, if anything it shows that the appellant was not homosexual because there was nothing homosexual whatever about what the witness W alleges.

Your Honours, that theme, if that is an appropriate description, was taken up again by Mr Porter after the learned judge had completed his summing up to the jury and it was at that stage that Mr Porter made it, in our submission, abundantly clear the basis on which he considered the evidence had been admitted and also sought specific directions from the learned trial judge about the use which could be made of the evidence of the witness W.

Your Honours, by way of introduction, it should be said that the learned trial judge's summing up was a relatively short summing up having regard to the issues that were raised in the trial and, indeed, having regard to the length of the trial itself, but at the conclusion of his Honour's summing up - and the most useful reference, your Honours, is perhaps to take your Honours to page 398 of the appeal book - the learned trial judge invited senior counsel to add anything, and there was a discussion which is not fully transcribed but apparently referred to the question of corroboration - that is at line 20 of page 398 - and his Honour there said, and this was in the presence of the jury:

I do not intend to say anything about it.

The Crown Prosecutor was then asked whether was anything that he wished the learned judge to add. He said that, apparently referring to the question of corroboration, was something that the learned judge should say something about.

Your Honours, the next relevant material appears at page 399 of the appeal book where Mr Porter said this at line 5:

I would say if your Honour pleases that in the circumstances of this case your Honour should give a direction that, two things, (1) that there is no corroboration and there is no corroboration whether by the witness W or anyone else and (2) that your Honour should direct the Jury that it's a matter that they could take into account in considering their verdict.

Then Mr Porter said this and this, in our submission, is a matter of considerable significance, at line 11:

I think your Honour particularly in the light of some of the submissions made by the Crown should direct the Jury that in fact there is no corroboration as such of the complainant's story.

HIS HONOUR: Well subject to anything that the Crown wants to put to me that's the view I came to overnight, that I myself cannot see anything in the evidence which is even capable of being corroboration.

PORTER: That's my submission precisely your Honour.

Then Mr Porter said this at line 25, again returning to the question of the basis of the admissibility of the evidence of the witness W and the use to which it could legitimately be put, and he said this:

See, I mean W's evidence was purely and simply relevant to refuting good character, nothing else.

And his Honour made an observation, to which Mr Porter responded:

That's precisely my submission your Honour, but I think your Honour should tell the Jury this.

There was then submissions by the learned Crown Prosecutor in relation to the basis on which he contended the evidence of the witness W might be used and, ultimately, the learned judge determined - and that determination appears at the top of page 402 of the appeal book - not to give any further directions at all.

Your Honours, the question of the basis for the admissibility of the evidence of the witness W was an important one in the context of this trial, and clearly one which was the subject of a stark disagreement between senior counsel for the appellant and the learned Crown Prosecutor. It is our submission that if the learned Crown Prosecutor wished to use the evidence of the witness W in the way in which he had flagged, as it were, at those exchanges with the judge that I have referred to at pages 110 and 120, that it was necessary for the learned Crown Prosecutor to, in effect, obtain a ruling from the trial judge that the evidence of the witness W was admissible for the purpose for which he contended.

The fact that that was necessary was apparently - and I say apparently because it is not precisely clear from the manner in which the learned Crown Prosecutor expressed himself - but if I can take your Honours back to page 220 of the appeal book.

BRENNAN CJ: Is there anything which indicates the way in which the Crown, in the presence of the jury, sought to use this evidence?

MR BYRNE: Yes, your Honours. I will take your Honours to that immediately. If I might just refer to this single aspect of the Crown Prosecutor's approach at page 220, and this was following, of course, the earlier submission that he had made, of course in the absence of the jury - that section that has been referred to page 110 - that he wanted to use it as corroboration. The learned Crown Prosecutor, at page 220, line 35, said this:

I do not want to argue it now, but merely flag it as a matter I will argue later.

That, in our submission, was a recognition by the learned Crown Prosecutor that it was, in fact, necessary for a ruling to be obtained from the trial judge that the evidence was admissible for the purpose which he contended.

Going back to your Honour the Chief Justice's question about the use which the Crown Prosecutor suggested that the evidence of the witness W could be put, can I take your Honours, in answer to the Chief Justice's question, to page 355 of the appeal book, where, at line 49 in the address of the learned Crown Prosecutor, it is said by him:

Well H -

the complaianant -

gets further confirmation in areas of evidence in my submission from -

amongst other things, the evidence of the witness W. He then described the relationship between the complainant and the witness W, and he made certain observations about that. But the important thing that the Crown Prosecutor said appears on page 356 of the appeal book and, in particular, at line 12, where he says this:

You've seen him you can make your own assessment -

and this is referring to the witness W -

but if you accept his evidence then it has some significance because in my respectful submission it does tend to support and confirm that what the complainant said was the initial practices of the appellant towards him with relation to masturbation is borne out -

The learned Crown Prosecutor said a little further on, line 22:

I mean if you accept, let me say this immediately, if you found the witness W to be truthful, reliable and accurate and that these events occurred between the witness W and the appellant, that doesn't prove on its own that the appellant did these acts with the complainant, you don't sort of do it in reverse, you don't say, Well I'm satisfied that the witness W's telling the truth therefore he's guilty of the offences with which he's charged concerning the complainant.

A little bit further down that page 356 there is what is, in our submission, a passage of significance in determining the use to which the jury was invited to make of the evidence of the witness W and that is contained in this passage. It is at line 43 referring to the witness W:

if you accept what he says as true then in my respectful submission that that to some very large extent challenges some of the evidence relating to his evidence of good character. Because if you accept that then obviously the appellant had a predilection and a liking for the company of young boys and for masturbation in their company.

KIRBY J: You passed over the passage at line 31 which is rather similar to that which appeared before "The evidence is of significance" because "it does tend to confirm and link" and so the words are "support and confirm" and "confirm and link" and the Crown says, "Well, we didn't ever use the word `corroboration'."

MR BYRNE: Yes, your Honour.

KIRBY J: But I understand your submission to be that that is effectively what the Crown was inviting the jury to accept.

MR BYRNE: Yes, your Honour. Those words "confirming", "supporting", "linking" are words used by this Court in Doney's Case to which reference has been made in the submissions of my learned friend. What the Crown Prosecutor was effectively saying, in our submission, was that the evidence of the witness W was capable of being corroboration of the version given by the complainant H but, more seriously, in our submission, what the learned Crown Prosecutor was saying was that that evidence could be used to reason effectively on a propensity basis that because the appellant had been shown to be a person of a particular disposition then he was more likely to have committed the offences charged against him.

McHUGH J: Is that right, Mr Byrne? Does not the passage at 45 go directly to the question of bad character and at the moment it seems to me that that submission is perfectly justified? What counsel for the Crown is saying is, "Well, if you accept what W says, then he is not a person of good character. He has got a predilection for the company of young boys and for masturbating in their company," and that goes to the heart of the claim of good character, does it not?

MR BYRNE: It does go to good character in part but it does not go entirely to good character, it does not go exclusively, in our respectful submission, to good character. That kind of submission might be accepted by a jury as an invitation to reason precisely the way that they are not permitted to reason, namely that because he is a person with these characteristics, then he is the kind of person who would be likely to commit offences of the kind - - -

TOOHEY J: I appreciate that. That raises another point. It raises a point about the direction. The submission as it stands seems to me to be justifiable having regard to the character issue. I am not talking about what appears up above, I am just talking - - -

MR BYRNE: Yes, your Honour. I was going to say that the material above, and in particular that material at line 25, that is, when read together with what is contained in that material in the general area of line 45, that, in our submission, is capable of being interpreted as an invitation to the jury to reason in an impermissible way. The evidence of W does not prove on its own that the appellant did these acts, but the suggestion is that the evidence of the witness W does go some way towards proving that. In our submission, the evidence of the witness W was not available for that purpose and should not have been left to the jury in a manner which permitted them to use it for - - -

TOOHEY J: That seems to be introducing another aspect, Mr Byrne, that I am not sure was aired at the special leave hearing. You appear to be saying that the Crown initially said it wanted to use the evidence both as to confirmation of the complainant's evidence and to rebut any evidence of good character. What is said on page 356, in certain passages, is consistent with that approach. But now you appear to be taking it a step further and saying that the Crown was really inviting the jury not merely to use the evidence of W as confirmation or as rebuttal of character but as some sense in its own right pointing to a person with a propensity to do the things which it was alleged he had done.

MR BYRNE: Yes. That submission was, with respect, put at the special leave hearing - I should say in reply at the special leave hearing, but it is part of, as I understand it, the argument for the Crown as respondent to this appeal.

TOOHEY J: Where do you fit that argument into the grounds of appeal in your notice of appeal? That is the argument relating to possible propensity.

MR BYRNE: Your Honour, in our submission, if I can take your Honours to page 438 of the appeal book, the ground of appeal set out at the top of that page, one of the grounds on which the judgment of the Court of Criminal Appeal is challenged in this appeal, point (iii) at the top of page 438:

That the Court of Criminal Appeal erred in holding that the failure of the Learned trial judge to direct the jury on the use which they could legitimately make of the evidence of the witness W did not deprive the Appellant of his right to a fair trial according to law.

TOOHEY J: Did the Court of Criminal Appeal treat that question principally as an independent question?

MR BYRNE: No, they did not, really, although, your Honour, the proposition was put - it was one of the grounds of appeal in the Court of Criminal Appeal and those grounds are set out at page 409 of the appeal book. The ground of appeal numbered 2 there is that:

The directions given by his Honour the Learned Trial Judge on the use which the jury might make of the evidence given by the witness W were inadequate.

Your Honours, it should be said - I have just referred your Honours to a document that was filed in the Court of Criminal Appeal - that the substance of the appeal before the Court of Criminal Appeal was based on two grounds only. Those two grounds are set out in the judgment of the learned Chief Justice at page 421 of the appeal book and one of those is that ground that I have just referred to. That was one of the grounds that was, in effect, the substance of the appeal to the Court of Criminal Appeal.

McHUGH J: Mr Byrne, why do you say the Crown was seeking to use this as a form of propensity reasoning, because does not the passage at 356, line 34, show that this argument about the predilection was introduced simply to meet the character evidence point, because the argument was about supporting and confirming what H had said and then at 31, the Crown Prosecutor says:

The evidence is of significance for those reasons, I submit, it does tend to confirm and link BRS to the towel, to the "KY" jelly, but perhaps more importantly it meets some argument if you like and provides you with a bit of a picture on the other side of the coin as to the type of person he was.

And then it goes to deal with the character evidence.

MR BYRNE: Yes.

KIRBY J: Your short point, as I understand, it is either good or bad, is that it does so in the context where it talks of predilection, and predilection is propensity.

MR BYRNE: It leaves it open.

KIRBY J: Propensity is the thing which, if it is to be suggested, has to be explained. It cannot just be left in the air.

GAUDRON J: And from your point of view it is sufficient that there is a risk that the jury may have treated it that way in the absence of a direction as to how it was to be used.

MR BYRNE: Precisely, your Honour, with respect, and to answer your Honour's question, we accept, with respect, that it may be capable of being explained in the manner which your Honour has explained it, but it also may be left open to the jury that they - - -

TOOHEY J: It seems to me there are two separate points. The first point is - what I was putting to you was directed to your submission that the Crown was seeking to run a propensity type argument, but in the context, it seems to me that the Crown was really, on this aspect, rebutting your claim of good character, but then there is the second question, that even if the Crown's submission was perfectly legitimate, there was a risk that the jury would misuse the evidence for the sort of reasons I gave or put during the special leave application.

MR BYRNE: Yes, certainly, your Honour.

BRENNAN CJ: Mr Byrne, the difficulty I am having with this at the moment is that I do not understand good character to be other than absence of propensity and proof of bad character to be other than proof of propensity.

MR BYRNE: Yes, your Honour.

BRENNAN CJ: And if that be so, what is the solution to the problem?

MR BYRNE: Your Honour, in our submission, if the evidence was admissible on the question of character, then it was limited to that aspect alone. It could not have been legitimately used, in our submission, for any other purpose apart from evidence of character. It could not be used as evidence of corroboration and it could not be used as evidence which entitled the jury to reason from improbability reasoning in the manner which this Court dealt with it in Hoch's Case.

BRENNAN CJ: I do not think I have quite made the point. The intellectual constructs that you are dealing with are familiar to the Court; but, in the circumstances of this case, was good character any more than absence of propensity? Was that not the very nature of the character that was asserted?

MR BYRNE: No, your Honour, not in my submission. The good character that was asserted on behalf of the appellant at his trial had a number of features. As character evidence - - -

BRENNAN CJ: I do not wish to interrupt you, but the relevance of good character is that it can assist the jury in coming to the conclusion as to whether it was likely that a person of this character would commit this offence. Is that not right?

MR BYRNE: That is it in part.

McHUGH J: It is always in part. It may take many forms, but ultimately good character evidence is led to say, "This is not the sort of man or woman who would commit a robbery, would commit a sexual offence, commit a rape, commit a murder." So, it always goes to propensity. But is the law still this; that although the Crown can lead evidence of bad character to rebut, it cannot use it for any other purpose, unless it comes within the standard directions?

MR BYRNE: That is the case, in our submission. The evidence is only available to the jury to determine whether or not it accepts that the person who is the subject of the evidence is, in fact, a person of good character.

BRENNAN CJ: Is your argument this; that the evidence of the Crown could be used to deny the assertion that the accused had no propensity to commit this offence, but could not be used in any positive way to assert that he had the propensity to commit the offence?

MR BYRNE: Yes, your Honour.

McHUGH J: The Crown can use it as a shield, but not as a sword.

BRENNAN CJ: A shield, but not a sword.

MR BYRNE: Yes, certainly.

BRENNAN CJ: And so, if it is used in order to add to the body of proof of the offence, then that is taking it too far?

MR BYRNE: Yes, unless - - -

BRENNAN CJ: Unless it is otherwise admissible.

MR BYRNE: Yes, certainly.

BRENNAN CJ: So, then you come back to the question of whether or not it answers the tests of Hoch or the other cases.

MR BYRNE: Yes, your Honour.

McHUGH J: In this case, if you accept, as I am inclined at the moment, that the Crown was not really relying on a propensity-type reasoning, the question is, having regard to the risks that the jury might nevertheless use it that way, there should have been a direction given.

MR BYRNE: Yes, your Honour, certainly.

McHUGH J: Does your argument go beyond that, or is that the critical point of your argument - the risk factor? In other words, it was a risk, as opposed to - I think you put it higher, do you? Do you put it higher in the sense you say the Crown was relying on propensity reasoning?

MR BYRNE: Yes, your Honour. And that, as I understand the submissions put by my learned friend on this appeal, is a position which is still maintained by the Crown. The Crown contends, on this appeal, that the evidence of the witness W was admissible as propensity evidence, or as evidence which justified propensity reasoning.

KIRBY J: I understand that you have a fall-back position that even if it was not, that the risk of the confusion between the use of it for character and the use of it for confirmation, support, linking, or corroboration, was such that the judge should have given a direction, that Mr Porter ultimately sought a direction and, as I understand it, the Crown Prosecutor also agreed, and it is conceded, in the Crown's submission, that it would have been better had one been given.

MR BYRNE: Yes, your Honour.

KIRBY J: Does that then bring it down to whether there is a risk of a miscarriage of justice in this particular case, given that it was not given?

MR BYRNE: Yes, that is the ultimate issue that falls to be determined.

KIRBY J: I suppose relevant to that is that the trial judge, who is a very experienced trial judge, said that he would have had a reasonable doubt. I know that cannot usurp the function of the appellate court, but he indicated that that was his view.

MR BYRNE: Yes, an unusual opinion to offer in the course of remarks on sentence but one which was - - -

KIRBY J: Especially Judge Court.

McHUGH J: If this case went back for a new trial, this evidence would be admissible as propensity reasoning now, would it not, under the Evidence Act?

MR BYRNE: We would submit, with respect, not, your Honour. I am reminded, your Honours, that the complaint that is made about the absence of any directions is that not only were the jury not warned about using the evidence as propensity evidence so called, there was also no direction given to the jury that the evidence of the witness W was not evidence which in any sense could be used by the jury as proof of the appellant's guilt. That is a matter that perhaps goes to the Hoch point rather than the Pfennig point raised by the propensity evidence question.

The point is made in the submissions that have been filed on behalf of the appellant that, in the circumstances as the Crown contended them to be, it was necessary for the Crown to establish that the evidence was admissible for the purpose of proving the guilt of the appellant and in order to do that it was first and foremost necessary for the prosecution to establish that there was no possibility of joint concoction between the witness W and the complainant H in order to overcome the principle established by this Court in Hoch's Case. That was apparently recognised by the learned Crown Prosecutor in that passage where he said, "I don't want to argue it now but it's something that I flag for later", but it is a matter that he should have sought a ruling in relation to before inviting the jury to use the evidence as evidence of proof of guilt.

The question is there raised whether there was on all of the evidence a reasonable possibility of concoction. That was determined against the appellant by the learned Chief Justice in his judgment in the Court of Criminal Appeal but it is contended on this appeal that that conclusion was in error and that on the material that was available to the court there was at least the possibility of concoction. This was a case where the circumstances required, in accordance with the procedure which was advocated in Hoch, a voir dire hearing to be held and for that hearing to canvass the issue of the admissibility of the evidence and for the judge to make a ruling in relation to it.

Your Honours, on that question of whether or not there was a possibility of concoction, there are a number of references in the transcript of the trial that I would wish to take the Court to to establish that question of possibility of concoction. The material has been referred to in the written submissions, but if I might just refer to it briefly. The background to this submission is that the complainant H and the witness W were friends who had spent a great deal of time together at school and had apparently been very close friends, and it was arising out of the school environment that these allegations were made, the allegations of sexual misconduct by the appellant. If I can just take the Court briefly to those - - -

BRENNAN CJ: Is it right to say that there had been no conversation between the complainant and the witness since 1991 and the first time that the witness made the statement was to a police officer?

MR BYRNE: Your Honour, there was evidence that the complainant and the witness W had not seen each other since 1991. That was evidence that was given, as it were, unchallenged in the presence of the jury; it was not explored in any depth. So far as statements made by the complainant are concerned - - -

BRENNAN CJ: No, statements by the witness was what I was asking.

MR BYRNE: I am sorry, your Honour?

BRENNAN CJ: Statements by the witness. The witness made the statement to a police officer some - - -

MR BYRNE: In September 1993. That was following upon a complaint made to police by the complainant in late January, early February 1993.

BRENNAN CJ: So the sequence of events is the absence of contact between them in 1991, the complaint in the beginning of 1993, and then a request for information from W later in 1993, and a statement then made to a police officer without contact with the complainant?

MR BYRNE: As it was said in evidence, yes.

BRENNAN CJ: What is the justification for seeking a voir dire in those circumstances?

MR BYRNE: Your Honour, the circumstances in which the complainant and the witness knew each other and the nature of the relationship between them and the nature of the relationship between them and the appellant was such that there was, in our submission, a possibility of joint concoction between the witness W and the complainant H. It was a circumstance which called for an examination before a determination could be made, that there was no possibility of reasonable concoction between them. It was not as though they were strangers to each other and there was a large body of evidence which established that they had, for example, spent a long time - or that they were in the appellant's room, in each other's company but in the absence of the appellant, on many, many occasions.

BRENNAN CJ: When they were at school.

MR BYRNE: When they were at school, certainly.

TOOHEY J: Was it put to either of those witnesses in cross- examination that there had been some collusion as to their evidence?

MR BYRNE: It was not directly put, your Honour, no.

TOOHEY J: Even obliquely was it put?

MR BYRNE: Yes, in our submission, it was obliquely put. If I could take your Honours to, as an example, page 237 of the appeal book. At line 12 the complainant W was cross-examined about his opportunities of being in the appellant's room and the question put:

There were many times I take it when you were in the appellant's room and no-one else was there?

A. Yes.

Q. And you had a good chance to look around his room?

A. Yes.

Q. Were there times when you and the complainant H were there alone?

A. Yes.

Q. Many times?

A. I don't know whether there were many times - how many - ten, fifteen, I don't know. There were certainly occasions.

Your Honours, it is, in our respectful submission, difficult to wonder what that line of examination was directed to other than that there was a possibility that these two young people had put their heads together, as it were.

TOOHEY J: But the concoction that would have taken place must have come much later in time, must it not, because there was no complaint against the appellant until some considerable time after these events?

MR BYRNE: The concoction may have surfaced at some later time, but whether it was hatched at an earlier time was not examined, but that line of questioning there would seem to be directed to no other issue other than the possibility of collusion between the witness H and the complainant W.

TOOHEY J: Not necessarily. It may have been simply to show that there was an opportunity for them to look around the room.

KIRBY J: One issue that it might have gone to was how the witness W knew of the presence of a tube of "KY" in the room.

MR BYRNE: Yes, and of the general dimensions and appearance of the room itself, but the question of him being with the complainant alone in the room in the absence of the appellant was one which, in our submission, could only have been directed towards - it was not explicitly done, but it could only have had relevance to the question of possible concoction between them. It is not a matter that was explored explicitly by counsel, but that is understandable because there was no voir dire hearing conducted and counsel would be naturally reluctant to ask questions about a matter of that kind in the presence of the jury.

BRENNAN CJ: Well, that cross-examination could not possibly justify a submission by counsel of any notion of concoction to the jury.

MR BYRNE: And, indeed, no such submission - - -

BRENNAN CJ: None was made.

MR BYRNE: No such submission was made. The real issue, in our respectful submission, is whether on the material that was available to the learned judge there was a circumstance which gave rise to the possibility of concoction between these two young people and, as has been said, they were not strangers in any sense. They were very close friends at school. They had been in the same rugby team together and, indeed, they both played in the forwards in the same rugby team and they had been in the same rowing team together, a team of four. They had spent time in each other's company during the holidays. The witness W had gone up to the complainant's country property for more than a week during the school holidays and they had continued to see each other and communicate with each other after the complainant had left school for a period of some three years until 1991.

The other question that was something that, in our submission, needed to be resolved to put to rest the possibility of joint concoction - and that is the test that, in our respectful submission, needs to be applied if there is a possibility of concoction and, if the circumstances suggest that, then it needs to be examined - the very circumstances in which the witness W came to be questioned by the police were, of themselves, in our submission, a matter which gave rise to the possibility that W's name had been somehow put forward by the complainant and that, in itself, was something that might have required closer examination than it was given before it could be determined that the evidence was admissible for the purpose contended by the Crown.

Even though the question of concoction was not addressed explicitly by Mr Porter for the appellant, it was not something, in our respectful submission, which he was required to address in the circumstances. It was a matter which the learned Crown Prosecutor, as he apparently recognised, had to raise with the judge and obtain a ruling as to the permissible use of the evidence of the witness W, and that was never done, and it cannot, in our submission, be said that it would inevitably have been concluded by the learned judge that the evidence of the witness W was admissible.

TOOHEY J: Does this submission, Mr Byrne, go to the admissibility of the evidence, or to the failure of the trial judge to say anything in the course of his charge to the jury, or both?

MR BYRNE: It goes to the admissibility of the evidence as evidence in proof of the appellant's guilt. It was contended by the Crown Prosecutor that this was evidence that, because of the striking similarity between the - and that was the contention put - because of the striking similarity in the versions given by the complainant H and the witness W as to acts of masturbation that they each claimed to have been involved in in company with the appellant, that the evidence was admissible, as it were, as similar fact evidence in proof of guilt. But its admissibility for that purpose was never properly examined in accordance with the way in which this Court has held in Hoch that it should be examined.

KIRBY J: But does that not go back to the question Justice Toohey asked at the beginning? Is not the time to take the objection to the admissibility of the evidence when the evidence is first tendered? And that was not availed of and, therefore, unless there is some application for leave to raise this matter, are not you then forced back to the position that your real objection can only be, given how the trial was conducted, that it having got in, it was incumbent on the judge to make clear to the jury the limited basis on which it could be used? You cannot really complain about the admissibility if you did not object to its admission.

MR BYRNE: In our submission, with respect, your Honour, Mr Porter did object to the admission of the evidence for this purpose. He did not object to the admissibility of the evidence as evidence to rebut good character, but he said - and, in our submission, he made it sufficiently clear, both in the exchange that took place at appeal book page 220, where he said it is admissible for the purpose of rebutting good character. We accept that. There was no concession made by Mr Porter that it went any further than that, or that it had any other legitimate use. And then Mr Porter addressed the jury in terms that it only had a single use; totally contrary to the way in which the learned Crown Prosecutor had addressed the jury. And then, ultimately, Mr Porter asked the judge, at page 399 of the appeal book - and that is, in our submission, an important part of the transcript for this purpose - he asked the judge for a direction, effectively, to the jury that that was the only basis on which that evidence could be used.

TOOHEY J: That leaves out one step though, does it not, mainly that it was the judge who raised the concern?

MR BYRNE: Yes.

TOOHEY J: He raised it towards the end of the cross- examination of the witness, but when you say that counsel made clear the basis upon which the evidence could be admitted, it is a slightly unreal proposition in the light of the way in which it emerged when it was the trial judge who said, "Well, I'm a bit concerned about this evidence coming in", and then counsel said, "Well, it's only admissible for a particular purpose", not having objected to it earlier on. It does seem to shift the focus of any attack that is made to how the trial judge dealt with it in his direction rather than to questions of admissibility.

MR BYRNE: With respect, your Honour, I appreciate the difficulties in the way in which the matter unfolded, but it was a matter where the trial judge having raised his concerns about it - and this is the material at page 220 of the appeal book where the judge, as it were, interrupted the flow of the proceedings and sent the jury out to discuss this matter with counsel - it was there said by Mr Porter that there was only a single basis in his submission upon which the evidence was admitted. The judge was then told by the Crown:

I do not want to argue it now, but merely flag it as a matter I will argue later.

Ideally, that should have been done. There should have been a determination made by the learned judge at the invitation of the Crown Prosecutor to establish the true basis and the legitimate uses to which this evidence could be put, and it was a situation where the learned Crown Prosecutor addressed the jury that it was admissible on a number of bases, in our submission. Mr Porter addressed the jury on the basis that it was only admissible for one purpose, "nothing else", as were the words he used, and the learned judge said nothing at all about it in order to resolve what must have been a dilemma facing the jury as to how they could use this evidence.

The learned judge when he had that exchange with counsel at the conclusion of the summing up said that in his view the evidence of the witness W could not be corroboration. So that at least implied - and I do appreciate that there is no express finding by the learned judge as to the use to which the evidence could be put - a finding by him which was in favour, as it were, of the appellant and contrary to the Crown's position, but the jury never at any stage had the benefit of any directions as to the use which they could make of that evidence.

TOOHEY J: That is really what I was putting to you, that the emphasis perhaps necessarily shifts then to the position of the trial judge, unless you are suggesting that perhaps there should have been some ruling by the trial judge prior to counsels' addresses, which could not be really a ruling as to admissibility in one sense because the evidence was in; it was the purpose for which the evidence could be used that became critical.

MR BYRNE: Yes, certainly, exactly. That ideally, in our submission, should have been done.

TOOHEY J: But he was not asked by anyone to do that, was he?

MR BYRNE: No, we accept that position but, in our submission, the party who was leading the evidence carried the onus of establishing that it was admissible for the purpose for which they contended and that was, in the circumstances of this case, the Crown.

Your Honours, I am reminded that if the matter had been dealt with, as I said earlier, ideally, then there should have been a voir dire to determine whether or not this what in our submission is a possibility arising on the papers themselves of concoction between them, that should have been determined - - -

KIRBY J: Mr Byrne, the Crown puts in its submissions that you had here one of the most experienced counsel in Australia.

MR BYRNE: Yes, certainly. We accept that.

KIRBY J: He did not seek that, he did not ask for that, and I think the Court of Criminal Appeal suggests that he conducted it in a particular way because of the dangers which either course adopted would bring. So that it really comes back, it seems to me, to the Court's protective role, that even though this was not sorted out as it could have been, perhaps, at the time the evidence was tendered, nonetheless did the duty fall upon the judge, given the risks of the misuse of the evidence to bring the weight of his office to bear to give the instruction to the jury which both sides were asking, difficult though it might be, but was that the judge's duty and did the absence of it present the risk of a miscarriage?

MR BYRNE: Yes, your Honour. Your Honour, those are our submissions, may it please the Court.

BRENNAN CJ: Do you wish to say anything as to whether or not the evidence was admissible as similar fact evidence?

MR BYRNE: Yes. Your Honour, it is our submission - and the submission is expanded in the written submissions that have been filed in this Court - that the evidence was not admissible as similar fact evidence, for two reasons, essentially. The first is that it was not admissible as similar fact evidence because the possibility of joint concoction had not been excluded. That is the primary basis on which we say it was not admissible for that purpose.

The second basis on which that evidence is contended not to be admissible as similar fact evidence on the charges of homosexual intercourse that were brought against the appellant is that the conduct of the appellant, as alleged by the witness W, was not sufficiently similar and there was not anything striking about the conduct of the appellant as alleged by the witness W, when compared with what was alleged against him by the complainant H. There were essentially, in our submission, two bases on which the evidence should have been excluded if it was being put forward. It was never properly put forward in this way, but if it was being put forward as similar fact evidence, then there were two bases on which it should have been excluded.

KIRBY J: Did the Court of Criminal Appeal deal with it on the similar fact basis? I thought the issue that was debated there was whether it was corroborative.

MR BYRNE: Yes, but there was a question, your Honour, about whether or not the evidence was admissible as - I withdraw that. In order for the evidence to be evidence of corroboration it had to be admissible as proof of guilt and that question was dealt with by the Court of Criminal Appeal and dealt with, of course, adversely to the appellant.

KIRBY J: You have drawn to our notice a decision of the Court of Appeal of Victoria in Reg v Johnson and without elaborating what you say, what, in a couple of sentences, is what you ask us to take out of the judgment of Justice Callaway in that?

MR BYRNE: Your Honour, there is some material in his Honour's judgment which deals with the kinds of directions which should be given in cases where there is evidence and particularly in a sexual case or case involving allegations of sexual misconduct where there is evidence of misconduct other than the offences charged.

KIRBY J: I notice his Honour refers to Dolan and the observations of Chief Justice King which are relevant to the suggestion that a judge should bring the weight of judicial office to elaborating and explaining the use that could be made because of the risks - this is at page 15 of Justice Callaway. Do you have Dolan there by any chance or not?

MR BYRNE: I apologise, your Honour, we do not have that.

KIRBY J: Anyway the passage there may be the essence of it.

MR BYRNE: Yes. To answer further your Honour the Chief Justice's question about the admissibility of the evidence of W as evidence of similar facts. Even if the possibility of joint concoction had been excluded - and this is the point made in the submissions in reply that have been filed on behalf of the appellant - the evidence should still not have been admitted as evidence of similar facts because its probative value, bearing in mind that all that it established was a degree of sexual misconduct by the appellant in the form of allegedly engaging in acts of mutual masturbation, that that could not be evidence which was probative of his guilt on the charges that were contained in the indictment which, of course, were sexual assaults of a much different and much more serious nature. Those are our submission, may it please the Court.

BRENNAN CJ: Thank you, Mr Byrne. Mr Keleman.

MR KELEMAN: Your Honours, may I first deal with this question of the possibility of concoction. It is our submission that there was no evidentiary basis to even suggest a possibility of concoction. Not only do we rely on the references in our written submissions in respect of W's evidence to that effect, but it is significant to look at also the questions asked in this aspect of the complaint. Now, at page 51 of the appeal book at lines 10 to 15 the complainant was asked a question - this is of the complainant:

Q. Did you keep in contact with.....W after you left school?

A. No, called them a couple of times, seen them maybe once or twice.

Similarly at page 58 of the appeal book. This is in the context of whether or not and when the complainant made complaint. To put it into context it commences at line 1 of that page:

Q. You never told her anything -

that is the complainant's mother -

whatever about this until August 1991?

A. Mmmm, if that was the date I told her, I don't know the date.

Q. You had school mate friends, W -

and another person:

A. Yes.

Q. They were good enough school mates for you to ask them to come and visit you at your property?

And it is clear from the next answer that there was no question of the complainant making any reference to W in respect of these matters at any stage. Similarly at page 93 of the appeal book in re- examination, again at line 5:

Q. You were asked questions about the fact that you had not told either -

another tutor -

or the matrons or your mother or the boy A or the boy W about any of the things you say -

the appellant -

had been doing to you. Remember those series of questions?

A. Just before? Yes.

Q. Was there any reason why you did not tell any of those people?

A. Ashamed about it, embarrassment. I don't know. It wasn't the sort of thing you could talk about.

So, not only was there no evidentiary basis in the evidence of W to suggest any possibility of concoction, there was absolutely no basis in the evidence of the complainant to suggest a possibility of concoction. So, the issue just, in our submission, did not arise. As your Honours have already pointed out, at no stage was it suggested to either the complainant or W that W and the complainant had concocted their evidence, nor was there any suggestion put to that effect to the jury.

Now, in our respectful submission, the respondent contends that the use to which the appellant put the two items - the lubricant and the towel - was a crucial and relevant issue in the trial. For this reason, W's evidence, we submit, was highly probative, as it supported the evidence of the complainant regarding the purpose to which the complainant asserted these items were used. In this sense, the evidence was clearly, we say, corroborative of the complainant's evidence, and it possessed, on this basis alone, the probative value required for its admission under the principles enunciated in Hoch.

Now, the evidence of W was significant. According to the evidence of W, the appellant had invited him to use the particular lubricant in the context of masturbation. In addition to that, the appellant had admitted that he used the particular towel in his room in relation to masturbation. When one looks at that evidence in the context of what the complainant asserted in relation to sexual conduct that occurred in respect of his initial seduction by the appellant, the evidence of W became highly probative because it confirmed the truth, we say, of the claims made by the appellant - - -

KIRBY J: Does not the towel fall into the same category as the bed, as Judge Court said? Beds can be used in masturbation. Towels can be used in masturbation.

MR KELEMAN: It would if, in fact, there had been no reference made to the use of the towel. It is the purpose for which the towel was put to use that changes the character of the item, and converts if from would otherwise be a neutral item to one of some cogency and probative value. And the lubricant is, we would respectfully submit, no different. It is the purpose for which the complainant and W claimed that the appellant used the items that gave it its corroborative significance, its probative value, its cogency.

So we say on that basis alone, because of its cogency, its high probative value, that the principles of Hoch and Pfennig are satisfied in that it gives rise to the probability, if W is accepted, that the events as alleged by the complainant occurred in the way that they did. In addition to that, we say that the evidence of the complainant was also admissible on a somewhat broader basis. This was not put by the Crown Prosecutor in these specific terms, but we would submit that it is admissible under the Hoch and Pfennig principles, quite apart from its mere corroborative quality, because it demonstrates not a striking similarity in features, as is contended by the appellant, but an underlying unity or pattern with the complainant's evidence in relation to the initial sexual practices of the appellant towards the complainant giving rise to the objective improbability, if W's evidence is accepted, that the events occurred other than as alleged by the complainant.

KIRBY J: Is this the similar facts argument or is it something different?

MR KELEMAN: No, this is still part of the question of admissibility under the similar fact principles. We would say that Pfennig has debunked any suggestion that for evidence of this type to be admissible there needs to be striking similarity in the features of the offence. It is not only Pfennig but Hohk makes a similar point. Justice Gaudron, if I recall, made a similar observation along these lines in a case of Thompson, if I recall. We say that the underlying unity and pattern here is the key to its admissibility on the broader basis of the principles enunciated by the this Court in Hoch and Pfennig. We say, therefore, it was not only corroborative but admissible to prove the happening of the events in issue in the way in which this Court has stated such evidence can so do.

BRENNAN CJ: Can I just understand this correctly. Are you saying in the context of this case that the modus operandi of seducing a student is what makes it similar and makes it admissible? In addition to that, there is the specific evidence in relation to the towel and the jelly.

MR KELEMAN: Yes. The modus operandi is what is significant. It is the introduction of masturbation and the associated use of these two items which comprises, if like, an MO.

BRENNAN CJ: I see. Yes.

MR KELEMAN: We say it is admissible on that basis in addition to its corroborative basis.

KIRBY J: But would you, if you get it in - I assume you are going to come to this - not then have to explain to the jury the dangers and risks of using material derived from an event of which the appellant is not charged to prove the truth of the event of which he is charged? It is one thing getting it in - and it got in, it is another thing of telling the jury how they can use it. You are now propounding another basis which was not argued at trial but which it would seem to me may invite further obligations and directions.

MR KELEMAN: These arguments really go to the question of miscarriage, in addition to the admissibility point. We say that the risk of the impermissible use in the circumstances of this case did not exist, and the impermissible use we are talking about in our submissions is the use relating to the evidence of W alone to conclude that the appellant was likely to commit the offences and therefore must have committed the offences alleged against him. So it is that sort of impermissible use that we say this Court perhaps ought to be concerned about on the question of miscarriage, because if the evidence was in fact admissible on the bases for which we contend, it was in fact available to be used, in conjunction with other evidence, on the question of the accused's guilt. We say that is in fact precisely how the Crown Prosecutor put the evidence of W and the complainant to the jury.

McHUGH J: But that overlooks the way the jury use it, does it not? It is one thing to say it was open to the jury to use it because it demonstrated a pattern or an underlying unity. Or if you go back to the old Thompson in (1918) AC, that it shows what in effect were this man's tools of trade for these practices, like the powder puffs in Thompson's Case. But accepting that, was there not a real risk that this jury might simply say, "This is a man who has a propensity for doing these things and therefore it is more likely than not that he is guilty."

MR KELEMAN: In our submission, that would not be the case. The Crown Prosecutor specifically warned the jury about reasoning in that way. That appears in his address at page 356 of the appeal book at line 21, and the context is important because he has just told the jury in lines 12 to 20 how it is that the Crown asserted that the evidence of the two items in conjunction with masturbation could be used, and that is that it tended to confirm what the complainant had said in relation to the masturbation practices and the use of the lubricant and towel. In that context, at line 21 he says this:

And I mean if you accept, let me say this immediately, if you found W to be truthful, reliable and accurate and that these events occurred between W and the appellant, that doesn't prove on its own that the appellant did these acts with the complainant, you don't sort of do it in reverse, you don't say, Well I'm satisfied that W's telling the truth therefore he's guilty of the offences with which he's charged concerning the complainant.

So the Crown Prosecutor made it quite clear when he indicated the way in which the Crown was seeking to rely on the complainant's evidence that they were not to use it impermissibly. That was at no stage contradicted by the trial judge, at no stage. Not only that - and it seems to us that it is most significant - the appellant's trial counsel at no stage sought a direction in relation to impermissible use. The experienced trial judge, as Justice Kirby has acknowledged is a most experienced trial judge, himself did not see any risk of such impermissible use because no such direction was given.

We say in the context of this trial one looks at the atmosphere of the trial and the way the issues were raised. It is quite clear that the central and only issue at the end of the day was whether the complainant's evidence was established beyond reasonable doubt in respect of the offences alleged.

KIRBY J: It is not quite true to say that there was no application in relation to impermissible use if you look on corroboration as a basis for impermissible use because, as I understand it, Mr Porter had in his mind, "I can't object to this because it's relevant to the limited use for character and, therefore, I won't raise an objection, but I do object to it if it's going in on corroboration", and he maintained that objection at pages 120 and at 220 and at the end asked the judge to redirect, or to direct the jury on that question.

MR KELEMAN: We would submit that that is in fact not the case. If one looks at what occurred in the exchange immediately after the summing up between counsel and the bench, it is quite clear at page 399 of the appeal book at line 5 that the appellant's trial counsel sought a direction in the form that has already been read to the Court and that was, essentially, that W's evidence did not corroborate nor did anyone else's evidence corroborate the complainant's evidence. The trial judge then asked the Crown what directions the Crown sought and refused or declined to give the directions sought by the Crown, but the trial judge did not rule at all on the appropriateness of the directions sought by the appellant's trial counsel and at no - - -

KIRBY J: But here is a clash. You are saying, "We can use it for corroboration", and the accused is saying, "You can't use it for corroboration", and the judge does not tell the jury how they can use it.

MR KELEMAN: We would submit, and I will get to this in a moment, that in a practical sense that conflict did not arise in the way this case was, in a practical sense, left to the jury. Can I just deal with that first issue. The interesting aspect, quite apart from the fact that the direction was requested by appellant's trial counsel, was that after the trial judge declined to give the direction sought by the Crown Prosecutor, at no stage did senior counsel for the appellant ask his Honour to deal with his direction request. There was no attempt to remind his Honour that his Honour had not ruled on that, and one would have thought that it would have been appropriate for appellant's trial counsel to renew his request for that direction, but no such request was made. When one looks at that in conjunction with the failure to request a direction against impermissible use by appellant's trial counsel, one is left with the inevitable response or conclusion that in the circumstances in the way in which this trial was run, there was no real risk of that impermissible use occurring.

Can I deal with that aspect that your Honour raised about this conflict between what the Crown was putting and what was being put by the appellant's counsel in relation to W's evidence. That has been essentially dealt with in the written submissions.

KIRBY J: You say the Crown held back from ever using the magic word "corroboration" and therefore it was not inviting corroboration as such, notwithstanding what the prosecutor said, but it got very close to it in "confirmation", "assurance" and all the other verbs that were used?

MR KELEMAN: That is essentially right. If one looks at the way in which the Crown Prosecutor used W's evidence, there were only references to "confirmation", "tends to confirm", "does tend to support" and "confirm and link". That is quite clear throughout the address of the Crown Prosecutor. The appellant's trial counsel in his address to the jury stated that the complainant's evidence was entirely uncorroborated. Those passages appear at pages 370 line 9 through to 370 line 10. He said at that portion of the transcript:

The fact is that the complainant H is entirely uncorroborated, entirely uncorroborated.

Similarly at page 386 line 9:

that's all it does, it doesn't corroborate the charge of course -

and he is talking there of the evidence of W. At page 388 line 40 he says:

You might also think that if he had done this sort of thing which is contrary to commonsense then there'd be people to give evidence about the door being constantly locked, about him being seen arm in arm with the complainant H around the playground, etcetera, etcetera. But there's none of that corroboration. There's no corroboration whatever for the complainant H's story, none.

When one looks at the passages and particularly that passage and really what is said at page 370, it is quite clear that he is talking about or referring to what would appear to be eyewitness accounts of acts involving the offences alleged or acts associated with the conduct that those acts allege. That comes across too - if I can take your Honours back to page 370, at line 12 he puts this to the jury:

But the importance of it is that he describes events which would have to be corroborated, which people would have to observe and as I take you through the various offences alleged, but to give you one example, he claims -

and it goes on.

We say in a practical sense the appellant's trial counsel is referring to corroboration in the sense of eyewitness accounts. In addition to that, trial counsel warns the jury that it may be dangerous to convict the appellant on the uncorroborated evidence of the complainant H. That appears in the passage that I read to your Honours just a moment ago at page 370. That appears at lines 10 to 11.

Now, the appellant's trial counsel did not refer to evidence that tended to confirm, or tended to link, or supported the evidence of the complainant, so, in a practical sense, the jury were left with two different concepts. We submit that the Crown Prosecutor, because he did not say to the jury that W's evidence was corroborative, in fact, was simply putting to the jury that there was evidence of W that tended to confirm the evidence of the complainant, as the Crown Prosecutor submitted, but, at the same time, did not amount to corroboration in the sense for which the appellant's trial counsel contended. So, in a practical sense, there was no conflict between the two concepts raised.

Now, the trial judge did not contradict any of these submissions, so, in that sense, because he did not explain to the jury what "corroboration" was in a technical sense, there was no practical - if I can use that word - inconsistency. In a legal sense, there certainly was; but, in a practical sense, without the explanation of corroboration, we say there was no such inconsistency.

BRENNAN CJ: If your argument is right, the direction which the trial judge would have had to give to the jury was that they could look to the evidence of W in order to consider whether the allegations made by the complainant were correct as to the events which led to his activity with the accused.

MR KELEMAN: Yes. And the trial judge did not, in fact, do that, which was, in effect, something that favoured, we would say, the appellant. Now, both counsel's addresses focused on the need to be satisfied beyond reasonable doubt of the evidence of the complainant, and if I can perhaps just take your Honours briefly to some passages. At 337, line 38, the Crown Prosecutor, in his opening remarks to the jury, made it clear that the complainant's evidence was fundamental. He said:

I don't propose to go through and read to you the evidence of H, as I earlier said to you, you had the opportunity of seeing him and listening to him and ultimately it's going to boil down very much to your assessment of him and of the other evidence and whether you accept him as honest, reliable, truthful and accurate in so far as these allegations are concerned.

And I will just take your Honours to one further passage in the Crown Prosecutor's address, at 353, line 48:

Well then members of the jury submission to you earlier, you looked very carefully at H's evidence any confirmation, any areas where there's consistency and there are number of areas in my respectful submission.

He goes on to deal with some of them. But the appellant's trial counsel treats the evidence of the complainant in the same way. At 379, line 4, he says to the jury:

You see each time and on each charge you are asked to accept H beyond reasonable doubt. If you ever come to the conclusion that he's committed one substantial lie then on every other count there has to be a reasonable doubt.

And similarly at 389, line 4 - and it really goes down to the end of that page, he says:

The final submission I make to you is this ladies and gentlemen and I said to you, you do really have to study -

the complainant, and then the rest of the passage is, to some extent, relevant, and then, at line 29, he says:

This is a case where you find all or nothing. If you can't accept the complainant H on one count how can you accept him on any of the rest.

Now, the trial judge in his summing up makes it clear that the evidence of the complainant was fundamental and I will take your Honours now to 393 line 3 where at the top of the page the trial judge says:

the Crown case is fundamentally dependent upon the evidence led by the Crown from the complainant. It seems to me that you would either accept him totally or not accept him totally.

Now, at page 392 at line 3 and leading up to this question of the fundamental quality of the complainant's evidence, at line 3 the trial judge says:

the issue really has come down to a very narrow one.

Then he stresses the fundamental nature of the Crown case being that of the complainant's evidence and then at 397 line 10, and this is in the context of the appellant having raised good character, he says:

It is probably difficult to imagine a case involving a more stark conflict in the evidence that exists here between the complainant and the appellant. It is black and white, chalk and cheese. The law requires that when you come to confront that you should have regard to the evidence of the prior character of the Accused.

Now, we would submit that when you consider counsel's addresses, the structure of the summing up, there was little, if any, risk - and we would say no risk - that the jury were under some misconception as to the significance of the complainant's evidence and how it was to be used and the question of impermissibly using W's evidence because we say there was in that sense and in that context no risk of that. Now, the fact that the appellant's senior trial counsel did not seek such a direction, we say, confirms that conclusion. The fact that the learned experienced trial judge did not give such a direction confirms that conclusion. Now, can I just deal with the question of - - -

BRENNAN CJ: How do you mean the counsel did not seek - he sought a direction in relation to corroboration, did he not?

MR KELEMAN: The appellant's trial counsel?

BRENNAN CJ: Yes.

MR KELEMAN: Yes, that there was no corroboration, but he did not in fact ask his Honour again to give that direction. The request was made, then the trial judge said, "Well, I will ask the Crown what direction he wants." That was declined and then it was just left. There was no further request made by the appellant's trial counsel for his Honour in effect to deal with that request for a direction and then, in addition to that, there was no request that there be a warning given in respect of impermissible use.

KIRBY J: I may have forgotten, but I do not think you have to badger a trial judge. It was signalled in the presence of the jury. The judge said, "I won't do it," and Mr Porter, who is a very polite counsel, said, "If your Honour pleases," and the jury goes out and he repeats the request and the judge says, "Well, I have never seen a case where there is less corroboration. I don't believe there is corroboration."

MR KELEMAN: But it is unclear as to what view his Honour ultimately comes because it is after that that the Crown Prosecutor takes his Honour through the significance of that evidence and then he - - -

KIRBY J: The basic problem that I have is here is the Crown Prosecutor saying "support" "confirm", "confirm" "link", "predilection", and you are sort of putting a case - you do not use the magic word "corroboration" but it may be that that distinction would not matter much to a jury. They may not really appreciate it. Mr Porter is saying no corroboration and then the judge does not mention it at all. It is just left without any assistance on if it is corroboration or not and, if it is corroboration, how they can use it or, if it is similar facts, what are the similar facts and how they can use it and the dangers and none of that was given and I think you concede it would have been better if it had.

MR KELEMAN: There is no question about that, it would have been preferable, and I suspect this appeal would not be taking place but for that. We simply say when you look at how the trial evolved, when you look at the dynamics of the trial, when you look at who was involved in the trial, we are not dealing with inexperienced counsel. The risk of impermissible use was simply not there, because your Honour again talked about the conflict between the Crown Prosecutor talking about tending to confirm and the trial counsel for the appellant talking about corroboration. In a practical sense, that conflict did not exist before the jury; they would not have had to have resolved that conflict because of the different ways in which it was left by the counsel.

KIRBY J: You say that, but the accused's case was that the complainant H was a loud mouth, a blow hard and so on, and the jury might have had doubts about - they had doubts about one count, but they might have said - and this is the risk they might have said, "Well, we are not absolutely sure but W was impressive, and reading him he was an impressive witness." Yet, you do not get the assistance of the judge as to how they can use W. That is the troubling thing.

MR KELEMAN: Certainly. But at least the Crown Prosecutor took the position of warning the jury against impermissible use. That was not contradicted, so that warning we say loomed - - -

KIRBY J: However high Crown Prosecutor's rise they are still not the judges.

MR KELEMAN: I accept that; but at least the warning was given and a warning was given in the context of the evidence being relied upon by the Crown as corroborative. If I can just briefly deal with this question as to whether or not the Crown Prosecutor invited the jury to engage in propensity reasoning. At 356, if one looks at the submissions of the Crown Prosecutor from line 12 down to line 49 - - -

McHUGH J: This is the heart of your case, 356; I think you have got to live or die by this.

KIRBY J: Not actually die - - -

MR KELEMAN: And not now.

McHUGH J: I mean your case.

MR KELEMAN: The significance of this page, as your Honour indicated, is of some significance. The Crown Prosecutor at line 12 said:

but if you accept his evidence then it has some significance because in my respectful submission it does tend to support and confirm that what the complainant said was the initial practices of the of the appellant towards him with relation to masturbation is borne out, remember that the complainant said that he always used the "KY" jelly and an old towel under the bed and it seems that that was the practice of the appellant or at least that was something that the appellant referred to when W was with him, there was an old towel, an old yellow towel and a tube of "KY" jelly.

This is where the caution by the Crown Prosecutor gets even more significance because it is immediately after this submission about the use to which they can make of this evidence. He says:

And I mean if you accept, let me say this immediately, if you found W to be truthful, reliable and accurate and that these events occurred between W and the Accused, that doesn't prove on its own that the appellant did these acts with the complainant, you don't sort of do it in reverse, you don't say, Well I'm satisfied that W's telling the truth therefore he's guilty of the offences with which he's charged concerning the appellant.

The evidence is of significance for those reasons, I submit, it does tend to confirm and link the appellant to the towel, to the "KY" jelly, but perhaps most importantly it meets some argument if you like and provides you with a bit of a picture on the other side of the coin as to the type of person BRS was.

If I read the following passage, we say it is abundantly clear that he is referring to this type of conduct only in the context of good character, which was an observation your Honour made:

You've heard a lot of evidence from his friends and from teachers at --

the school -

the only boys that you've heard about that were there at the time with the complainant -

was one boy and W -

And if you accept what he says as true then in my respectful submission that that to some very large extent challenges some of the evidence relating to his evidence of good character. Because if you accept that then obviously the appellant had a predilection and a liking for the company of young boys and for masturbation in their company.

It is quite clear, we submit, that he is only referring to that conduct in the context of rebutting good character and, to a similar effect, at 366 of the appeal book at line 10:

So if you accept the evidence of W and the other boy and I submit that it's entirely a matter for you, but if you do then that would demonstrate in my submission that the appellant was not a person of good character because it demonstrates that he had this unusual interest and desire in young boys, and he discussed masturbation in their presence, that he masturbated in their presence. In the evidence of the other boy that he allowed them to drink strong alcohol in his room late at night and the early hours of the following morning. Now you can, you're quite entitled to just reject all of that. But so far as character is concerned at the end of the day it's entirely a matter for you whether you find he is a person of good character or not and if he is in your opinion a person of good character it would seem to follow you reject the evidence of W and the other boy, you will then of course follow His Honour's directions as to the way you use that evidence -

and his Honour gave some comparatively lengthy directions in relation to good character which effectively summed up the favourable evidence in relation to good character and did not, in any way, refer to the evidence of W which, at the very very least, was capable of rebutting good character. So we say, at the end of the day, the appellant's senior trial counsel took the considered course not to seek any further directions in respect of W in order to ensure that the impact of W's evidence was mitigated to such an extent that the jury would regard it as having little if any weight. We say that was a fundamental course adopted by senior counsel. It was considered, it was deliberate, it was tactical, and when one has a look at the atmosphere of the trial and the issues raised, at the end of the day, there was no risk of impermissible use. I do not think I can assist your Honours any further.

BRENNAN CJ: Yes, thank you, Mr Keleman. Mr Byrne.

MR BYRNE: Thank you, your Honour. Your Honours, in relation to the suggestion that there was no direction sought by Mr Porter for the appellant at his trial on the question of impermissible use, in our submission the direction requested by Mr Porter at page 399 of the appeal book and the direction to which some attention has been drawn, does amount to a request that the jury be told of the limited use that W's evidence could legitimately be put. In our submission, if your Honours - - -

BRENNAN CJ: Is it the practice in New South Wales to ask for - request for redirections while the jury is still present?

MR BYRNE: Your Honour, it is not on matters of law, but it is in relation to matters of fact. The general procedure in New South Wales is that redirections sought on matters of fact should be requested and given in the presence of the jury, but in relation to matters of law, the general procedure and, in our submission, the conventional procedure, is that those directions are sought in the absence of the jury. The way it is usually done, your Honour, is that an indication is given to the presiding judge that there are matters of law which are the subject of redirections sought and the jury is then sent out with a direction to the jury that they should not consider their verdict until they have a message from the judge that they should.

BRENNAN CJ: So, counsel are able to complain about the way in which a judge sums up on the facts in the presence of the jury?

MR BYRNE: That is the normal procedure in New South Wales.

BRENNAN CJ: Extraordinary procedure.

McHUGH J: It has been going on a long while.

BRENNAN CJ: Well, these arcane practices do happen in back blocks, I suppose.

MR BYRNE: Your Honours, if I can, at the risk of repetition, just take your Honours through the material at page 399 in answer to my learned friend's suggestion - indeed, submission - to the Court that Mr Porter did not seek a direction on the impermissible use of the evidence of the witness W. Your Honours, the material contained there at line 11 on that - - -

McHUGH J: What page is this?

MR BYRNE: This is page 399, your Honour. What Mr Porter sought were directions effectively in these terms - this is at line 7:

that there was no corroboration and there is no corroboration whether by W or anyone else -

which included, in the manner in which it was put, a contention that the evidence of the witness W was not corroboration. The next important feature of the directions sought by Mr Porter is contained at line 12, that the reason that a direction of that kind is required is as he said:

I think your Honour particularly in the light of some of the submissions made by the Crown should direct the Jury that in fact there is no corroboration as such of H's story.

BRENNAN CJ: Now, Mr Byrne, if that submission had found favour with his Honour that some appropriate direction should be given, the question then arises for this Court to say what is the appropriate direction that ought to have been given. If the conclusion is that the evidence was admissible in order to demonstrate the modus operandi of the accused, would you say that there is a miscarriage of justice in the failure to give the direction?

MR BYRNE: Yes, your Honour, we would.

BRENNAN CJ: Why?

MR BYRNE: Because the jury still needed to be directed that they could not use that evidence of the witness W in the manner which is impermissible, namely, they could not say that, "Because we are satisfied that the appellant conducted himself towards the witness W in the manner that W said that we can lead from there to a conclusion that the allegations constituted in the charges against the appellant by the complainant H are made out."

McHUGH J: But it is a bit unreal, is it not? I mean, the hypothesis is that this evidence could have been used to implicate the accused and yet favourably for the accused the trial judge did not give such a direction and yet you say, well, he should have given a direction generally which would have included a warning not to use it in the forbidden manner. It all seems a bit unreal when counsel has not specifically asked for such directions and, indeed, said it does not go even to corroboration.

MR BYRNE: I take your Honour's point with respect about perhaps the unreality. The primary submission advanced on behalf of the appellant, of course, is that the evidence was not admissible for the purpose contended.

McHUGH J: Yes, I understand that.

MR BYRNE: But it is, in my submission, clear on an analysis of what senior counsel, Mr Porter, said at page 399 that he was, in fact, seeking a direction because of the way in which the learned Crown Prosecutor had addressed the jury on the use that could be made of W's evidence.

McHUGH J: I think there is a stronger passage in your favour on 399 at line 25.

MR BYRNE: That is the one I am just about to come to. He said there that - and there is another passage as well, with respect, your Honour - he said there after introducing it in the terms that he did:

See, I mean W's evidence was purely and simply relevant to refuting good character, nothing else.

That is the proposition that he put. Then a little bit further down the page at line 32:

That's precisely my submission your Honour, but I think your Honour should tell the Jury this.

It goes back to the question of the way in which the Crown Prosecutor had addressed the jury. That was the matter that gave rise to the need to give these directions. He was saying, "Your Honour should tell the jury that the evidence of W was only relevant to refuting good character", that that direction should be given to them. So that he was not, as it were, avoiding canvassing the evidence of the witness W; he wanted the jury told that it had a limited use because the Crown Prosecutor had misdirected the jury in effect by addressing them to the contrary.

BRENNAN CJ: I can see the force of your argument and particularly once Mr Porter had his Honour's intimation of his view of the evidence at page 399 line 27. You would have thought he would have been hot on the trail from that point onwards to get a direction from his Honour in terms such as his Honour had indicated, but if the view is taken otherwise, then what answer do you have to Justice McHugh's question that it is a bit unreal to think that there might be a miscarriage of justice when the direction must have been on that hypothesis that they could take it into account?

MR BYRNE: The position is still, in our submission, your Honours, that it is - and I say this with respect - as well somewhat unreal to enable a jury to reason from the fact that a person has misconducted himself in a specific way but a significantly different way from the allegations which are the subject of the charges against him, that because he has misconducted himself in that different way, then a jury would be entitled to reason from that fact alone that that evidence assists in the proof of his guilt.

McHUGH J: That is the point, is it not? Your only complaint can be against what Lord Hailsham called "the forbidden chain of reasoning", and yet the judge could only give that direction on the hypothesis that the Chief Justice has put to you, on the basis that the evidence generally was admissible against the accused. It is a difficult question.

MR BYRNE: Yes, your Honour. Your Honours, might I in answer to the question raised take your Honours back to what this Court said in Hoch about the question of admissibility because, as it is put, our fundamental submission in relation to this matter is that this evidence was not admissible for the purpose for which the learned Crown Prosecutor contended. It is our submission that if the Crown - - -

McHUGH J: Hoch goes to similar facts. The Crown never put it on similar facts, did they?

MR BYRNE: Yes, they did.

McHUGH J: Sorry, you argue they do.

MR BYRNE: Yes. They said it was the same modus operandi. That is the way - - -

McHUGH J: Are you talking about here or at the trial?

MR BYRNE: It was the way it was put at the trial as well, in our submission, that you can use that evidence, the similarities in the way in which the appellant allegedly conducted himself towards the witness W, and the way in which he was said to have conducted himself towards the complainant was such that that was material which could be used in proof of guilt.

Your Honours, the submissions that we put in the written submissions and upon which we seek to place some emphasis is that if the Crown seeks to rely on evidence in the manner contemplated by this Court in Hoch, then it is for the Crown to raise it so that it can be properly ventilated. There was, as has been observed, some reference to the need for a determination to be made about the basis on which this evidence of W was admissible but it is our submission that if the Crown wants to rely on it as evidence in proof of guilt it has to be raised so that it can be properly ventilated. The position in which Mr Porter was in is, in my submission, one where he was entitled, as it were, to wait so that the Crown raised the matter properly and that it could be dealt with properly.

If I can take your Honours to what was said by this Court in Hoch [1988] HCA 50; 165 CLR 292 at 297 in the joint judgment of Chief Justice Mason, Justice Wilson and Justice Gaudron. At about point 2 it is said there:

If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had

opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.

The emphasis is made that the task is placed squarely upon the Crown to remove any possibility that the similarity between the two versions is reasonably explained on the basis of concoction.

If I can then take your Honours to the joint judgment of your Honour the Chief Justice and Justice Dawson and, in particular, at page 303 of that judgment where, in the final paragraph on that page, it was said:

In this case, the trial judge did not examine on a voir dire whether the similar fact evidence might be accounted for by a cause common to the witnesses and it is therefore a matter of speculation whether he would have excluded the evidence if a voir dire had been conducted. Was it incumbent on the trial judge to examine the evidence on a voir dire? It is not always necessary for a trial judge to do so. Whether a voir dire is necessary depends upon the state of the evidence disclosed on the depositions -

and just going further down page 304:

Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question.

And then a little further down, in the middle of that page:

But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations.

Now, the point we make in relation to this is that these two young people were very close friends. They did not just happen to be in the same school together. They were very close friends, and the circumstance in which the witness W even came to be speaking to the police about the investigation of the appellant's alleged activities was not explained.

GAUDRON J: It may be relevant at two levels. There might be a question of whether there was a joint concoction, but there might also be a question whether, in this case, for example, W had told his account to H, rather than the other way around.

MR BYRNE: Certainly. That is right. The submission we make is that the question simply was not examined in the way this Court has said it should be in the two judgments in Hoch and the conclusion could not be reached in the absence of that proper examination that it was inevitable that this evidence would have been admitted because still on the material that is available in these appeal books, in our submission, the possibility of joint concoction has not been excluded.

BRENNAN CJ: If there had been any thought of concoction and if the evidence had been admissible only on the question of rebuttal of character, ought the evidence to have been admitted?

MR BYRNE: Your Honours, in our submission there was a real question as to whether the evidence should have been admitted as a matter of discretion. The position - - -

BRENNAN CJ: What I am putting to you is in considering whether or not to agree to the admission of this evidence on the question of character surely the question of concoction must have been a relevant consideration.

MR BYRNE: It is not apparent that that was considered because counsel took the approach that it was relevant and the contention is made by the Crown in its submissions in this Court that the provisions of section 413B of the Crimes Act which applied at the time this trial was conducted made that evidence admissible.

BRENNAN CJ: What does 413B say?

MR BYRNE: Your Honours have that annexed to the Crown's submissions.

KIRBY J: It was annexed to the list of authorities, not the submissions.

MR BYRNE: I am sorry, your Honour.

BRENNAN CJ: Does that section have anything to say about the admissibility of the evidence of W if a question of concoction had been canvassed?

MR BYRNE: It does not, your Honour, but the submission that - - -

BRENNAN CJ: Let me put the question directly to you. If the evidence that had appeared before the court, either by cross- examination or otherwise, had given rise to a reasonable possibility that there had been concoction, would W's evidence have been admitted in order to rebut good character?

MR BYRNE: The answer to that question, your Honour, is that it is not clear but, in our submission, the approach would have been open to object to the admissibility of the evidence in rebuttal of evidence of good character as a matter of discretion. Whilst it may have been admissible prima facie by virtue of the provisions of section 413B, there was in those circumstances a real issue arising as to whether as an exercise of discretion it should have been excluded, but that point was not taken in the trial proceedings and it - - -

GAUDRON J: And his Honour the Chief Justice's question proceeds I think on the basis of joint concoction. One possibility which might have been explored if the matter had been the subject of a voir dire is whether W had ever given his account to H and thereafter H had used that as the basis for himself to concoct a story. The issues would be quite different, I think, depending on what was the allegation or what was the possibility.

MR BYRNE: Yes.

KIRBY J: Because the modus operandi of the W incident was that W was out of sight of the appellant and it was not alleged that the appellant had in any way been involved immediately I think.

MR BYRNE: No. Indeed, on the material that is contained in the evidence of the witness W it is a question of an issue whether indeed the appellant's conduct vis-a-vis the witness W amounted to a criminal offence of any kind. It was certainly conduct of - - -

KIRBY J: Highly inappropriate conduct for a teacher to be engaged in.

MR BYRNE: Certainly, but whether it was a criminal offence as such was -- it was different and distinctly different.

BRENNAN CJ: But that does not matter, does it?

MR BYRNE: It does not. It is evidence of bad character certainly.

BRENNAN CJ: I mean, the question of whether it was a criminal offence does not arise on any view of this argument.

MR BYRNE: No, it does not. I was seeking to contrast the alleged behaviour of the appellant towards the witness W with his alleged behaviour towards the complainant which did constitute, of course, serious - - -

KIRBY J: The only way it might be relevant is, as I remember some of the cases, they say because this is an event that is not charged before the court and because it is an event that may or may not be charged at all and, in the event, I think, is not the subject of charges, that judges have to explain the care with which juries can use those events which could themselves give rise, if criminal, to a separate prosecution and that you should not wrap them all up and punish the accused in case B for what was alleged to have happened in a crime in case A.

MR BYRNE: Your Honours, there are just two other brief matters, if I might refer to them in reply. My learned friend made a submission that on a closer analysis of the manner in which the respective counsel had addressed the jury that there was no practical conflict in the way the matter was left to the jury, the question of corroboration. The manner in which Mr Porter addressed the jury by the use of the term "corroboration" does not necessarily indicate that he was addressing the learned judge the same way. He may have been using the term "corroboration" in a looser sense, in a less technical sense when addressing the jury. The important point in relation to the manner in which Mr Porter addressed the jury, in our submission, is that he clearly said to the jury that the evidence of the witness W was admissible in relation to character and nothing else.

Your Honours, just finally, a submission was put by my learned friend that in this trial, and he referred to the summing up of the learned trial judge, the focus of the jury was clearly on the evidence of the complainant. In our submission, that is not an accurate assessment of the way in which the trial was run. The way in which this trial was run, the evidence of the witness W was of crucial significance. When the accused as he then was, the appellant in this Court, came to give his evidence, and on the very first page of his evidence at page 240 of the appeal book, he was asked by Mr Porter appearing for him at line 37:

Q. You put yourself before this court as a man of good character?

A. That's correct.

And then it was put to him:

Q. With regard to the allegations made against you by the witness W, did you ever on any occasion have any sexual masturbatory relationship with him?

The very first question put to the accused was about the allegations made by the witness W. When the Crown Prosecutor was cross-examining the appellant at his trial, he was cross-examined significantly about the evidence of the witness W, and that is contained at page 288 of the appeal book, line 53, the question put by the learned Crown Prosecutor to the appellant:

Q. So the evidence of the witness W is quite untrue as well?

A. As far as the masturbation is concerned, most certainly it is untrue.

And on page 289 at line 11:

Q. So he has, for some malicious intent on his own part, fabricated this incident?

A. That's true.

And then towards the end of the cross-examination of the appellant at page 316 of the appeal book, this theme is returned to in the cross- examination of the appellant, the very last question on the page:

You deny any sexual contact with W?

I deny that.

W and the evidence that he gave as a witness was crucial in these proceedings, and the learned Chief Justice in the Court of Criminal Appeal recognised the importance of his evidence and the fact, as his Honour said at page 416, that the jury may well have regarded the witness W as an impressive witness. It cannot be said - - -

McHUGH J: But it was the result of a tactical decision. That is one of the problems of this case: counsel for the accused had the agony of deciding whether or not to forego evidence of good character on the part of the accused and then probably eliminate the evidence of W or call evidence of good character and live with it. It is a terrible dilemma for counsel but it happens reasonably frequently.

MR BYRNE: But it was a decision that was made that he, with respect, was not seeking to escape from this squarely, in our submission, asked the judge to give the jury directions about the limited use that W's evidence could legitimately be put - or to which it could be put.

KIRBY J: Perhaps Justice McHugh's question highlights the importance in resolving the dilemma that the judge should clarify what the jury can do with it, because they might just say, "This other witness says that it happened to him, therefore it happened to the other man."

MR BYRNE: Yes, certainly.

KIRBY J: That is the very sort of thing that I understand the cases say you have to be careful not to do.

MR BYRNE: That is where the danger lies. It was, in our submission, the evidence of W very significant evidence and it was not, in the ultimate, properly dealt with in this trial. The manner in which it has been dealt with has left open the possibility of miscarriage. Those are our submissions.

KIRBY J: Could I just ask two very short questions? You said at the beginning, I think, something about the statutory provisions relating to corroboration. Do I understand that it is common ground that in respect of the counts of the indictment on which your client was convicted that corroboration was required or was relevant?

MR BYRNE: No, it was not required, your Honour, not as a matter of law.

KIRBY J: I see.

MR BYRNE: In relation to two counts on the indictment - that is the counts under section 78K of the Crimes Act - a warning - - -

KIRBY J: Corroboration was required in respect of those?

MR BYRNE: There was no requirement for corroboration. The only relevance of corroboration was as to whether a warning was required or could have been given. There was no warning required in relation to four of them but it could have been - - -

KIRBY J: Four of the - - -?

MR BYRNE: Four of the counts on the indictment, the first four counts.

KIRBY J: I do not remember if this is clarified in the written submissions. I saw the exchange. I think it could - - -

MR BYRNE: It is not a matter - - -

KIRBY J: I just cannot get into my head what is the position. If the statute relieves the Crown from the obligation to prove corroboration, what is the way in which the direction can be demanded?

MR BYRNE: There is no requirement for a direction to be given, your Honour, under the provisions of section 405C. Section 405C of the Crimes Act applied to - - -

KIRBY J: I see. I will just have to look at that.

MR BYRNE: It is dealt with, your Honour, in the judgment of the Chief Justice - my learned friend assists me - at page 422 of the appeal book.

KIRBY J: Thank you.

TOOHEY J: But the view was taken, was it not, Mr Byrne, that it was better for the judge not to direct the jury on this because he would be directing them in one respect on certain counts and in another respect on other counts and that was likely to have led to confusion, so it was best left well alone?

MR BYRNE: Exactly, with respect. That was precisely what was done. With respect, our submission is that that issue does not arise for consideration. It was not taken at trial and it has not been relied on ever since.

KIRBY J: Finally, your client was given bail before the Court of Criminal Appeal dealt with the matter but he commenced serving his sentence on the day of the decision of that court?

MR BYRNE: Yes.

KIRBY J: And he is still serving his sentence?

MR BYRNE: Yes, that was 5 March 1996 that the judgment of the Court of Criminal Appeal was delivered. He resumed serving his sentence on that day. He served a total period of four weeks following upon the jury's verdict and prior to his release on bail pending the decision of the Court of Criminal Appeal. He has now been in custody for a total period of one year, three months and some days. If it please the Court.

BRENNAN CJ: Thank you, Mr Byrne. The Court will consider its decision in this matter and will adjourn until 10.15 tomorrow morning.

AT 12.57 PM THE MATTER WAS ADJOURNED