The Queen v FJB M65/1999 [2000] HCATrans 39 (11 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M65 of 1999

B e t w e e n -

THE QUEEN

Applicant

and

FJB

Respondent

Office of the Registry

Melbourne No M69 of 1999

B e t w e e n -

KRM

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 11.51 AM

Copyright in the High Court of Australia

__________________

MR G.R. FLATMAN, QC: May it please the Court, I appear with my learned friend, MR M. BAGARIC, in the matter of The Queen v FJB on behalf of the applicant. (instructed by the Solicitor for Public Prosecutions (Victoria))

MR O.P. HOLDENSON, QC: May it please the Court, I appear in that matter on behalf of the respondent. (instructed by David Tonkin & Associates)

McHUGH J: There is no appearance on behalf of the applicant in the KRM matter but you appear, Mr McArdle.

MR J.D. McARDLE, QC: I appear with my learned friend, MS C.M. QUIN, for the respondent in KRM, if the Court pleases. (instructed by the Solicitor for Public Prosecutions)(Victoria))

McHUGH J: Yes. There is, of course, some difficulty by the fact that the applicant in KRM is unrepresented. Mr Holdenson, I think, in the first instance at least, much may depend upon your arguments. Justice Callinan and I have discussed these two matters and we tend to think that there ought to be a grant in both or a grant in neither really but, having regard to the various issues, you could not really - - -

MR HOLDENSON: Might I take your Honours then to the circumstances surrounding the trial of FJB. On analysis, it is my submission that the case of FJB is very much confined to its own circumstances at trial and I will indicate why. At the trial, for some reason not disclosed on the transcript, and for that reason not disclosed in the application book, a distinction was drawn between, on the one hand, charged acts and on the other hand, uncharged acts, and then that distinction was given an

undue and extraordinary emphasis by reason of the continual and repeated references to that distinction throughout the charge to the jury.

Indeed, the distinction was actually identified in the Crown Prosecutor's opening address to the jury when he explained to the jury that some of the offences were not actually charged because the limitation period in respect of those offences had long expired and that matter was then referred to by his Honour three times in his Honour's charge to the jury.

Could I just demonstrate that unreal and extraordinary emphasis in that distinction by taking your Honours very briefly to page 49 of the application book. Your Honours see, for example, at page 49 at line 22, and I will read the passage:

and on a number of those days the complainant described a number of events of a sexual kind that he said happened to him on these days, some of which form the basis of the charges before you, and some of which do not.

And then again in the next paragraph at the foot of the page the distinction is drawn and then emphasised at the head of the next page by reference to the standard of proof and then, on that next page, at page 50, for example, line 10:

You will notice that event is not the subject of any charge, nor are the two or three acts -

and so on. Now, one gets that continual distinction thrown up from one end of the charge to the jury to the other and that is what makes this case different from all the other cases of, what might be said, a like nature, that is sexual offence prosecutions in this State because never does a trial judge draw and maintain that distinction as this trial judge did.

CALLINAN J: Do you say he should not have maintained any distinction?

MR HOLDENSON: There ought be a distinction between the two but not to have it continually the subject of emphasis as this judge did.

CALLINAN J: Did not some of us say something about that in Gipp?

MR HOLDENSON: I am sorry, your Honour. It is very difficult to hear at the Bar table. There is no amplification.

CALLINAN J: Did not some members of this Court in Gipp emphasise the importance of distinguishing between charged and uncharged acts?

MR HOLDENSON: Yes. There was a question in that case, first, as to the admissibility of evidence of this nature but once that hurdle was overcome there was consideration in a number of the judgments as to the nature of the directions to be given.

CALLINAN J: Why should not a judge emphatically distinguish between charged and uncharged acts?

MR HOLDENSON: There should be a distinction drawn but not the continual emphasis in respect of it such that, in this case, one of the bases upon which the respondent in this Court was successful in the court below was when there was then a distinction drawn as to the standards of proof between such material and the problem with that - and I will come to that in due course - was that in circumstances where there was inseparably wound up, inextricably intertwined, whatever it be, to have two standards of proof and to have the Crown being permitted to rely upon the evidence in order to prove that which was said to be paramount or crucial in the case, namely, the honesty, reliability and accuracy of the complainant turned it into a "links in the chain" case or potentially, "links in the chain" case and so the drawing of the distinction coupled with the erroneous directions as to standard of proof left this respondent very much at risk at trial.

Now, could I just indicate to the Court how it is that the respondent approaches this application. The respondent was successful on three bases in the court below. First, in respect of the directions given to the jury about the separate consideration of each count; secondly, the directions to the jury in respect of the use of the evidence as to uncharged acts and thirdly, the erroneous directions to the jury concerning standard of proof and so it is my submission that if this Court were to grant special leave in respect of any one of those bases that would be, with respect, inappropriate because, at the end of the day, it leads to an order of no consequence in this Court because the respondent would remain successful on whatever basis or bases was not the subject of a grant of special leave.

In respect of the first basis, that is the so-called separate count or separate consideration direction, the standard direction invariably given in every trial in this State is that set out - and if I might take the Court to the judgment of Reg v J (No 2) (1998) 3 VR 602. I understand the Court has copies of this case. Might I take your Honours to page 639 where, in the middle of the page, your Honours will see there set out the direction given to the jury in that trial and that passage there in the form of two paragraphs in the middle of the page is the standard direction invariably given. I take the Court to that passage:

13 different charges, or counts -

reference to a presentment, done for convenience, separate trials on each count otherwise. Next paragraph:

must not allow convenience to usurp justice. The accused is entitled, as is the prosecution, to a separate consideration by you of each crime charged. It may be that the same logic applies to two or more of them, and as a matter of reason that logic will dictate the verdict in each such count. But it would be quite wrong to say that simply because you find the accused guilty or not guilty of one count, that he must be guilty or not guilty, as the case may be, of another count. Each count must be -

Now, just pausing there, your Honours, that is the direction that is invariably given. That is the direction which was not given in this case. In fact, the judge did not use the standard charge book and adopted, with respect, a rather novel approach. Could I take your Honours in that regard, first to page 28 of the application book at lines 17 to 19 in the middle of the page. Your Honours will see those three lines which read, and I quote:

You see, the importance of this to you is that in relation to each crime charged, and which you are required to consider separately, the Crown cannot succeed -

and, just pausing there, that is hardly the direction invariably given. Can I take your Honours then, if I might, to page 40 of the application book at line 4 and I quote:

And the important thing from your point of view is to understand that the essence of each charge is the facts that are relied upon to support it, not other sexual events.

Pausing there, no assistance given to the jury as to what constitutes the facts, nor was any assistance given to what constitutes sexual events.

McHUGH J: Now, what did the Court of Criminal Appeal say about that?

MR HOLDENSON: They said the directions were manifestly inadequate coupled with - - -

McHUGH J: Where is that?

MR HOLDENSON: I will take your Honours to the judgment below. That is to be found - I am just looking at the - - -

McHUGH J: Is it at 110, is it?

MR HOLDENSON: No, it is prior to 110. It is to be found at pages 103 to 105 and, in particular, at the foot of 105 and I quote:

In my view the directions given by the judge were quite insufficient in that they failed to warn the jury that (a) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to extraneous conduct and (b) they must not reason that because the applicant engaged.....he was the kind of person -

Now, that conclusion there is admittedly by reference to the two complaints that I have made mention of, one in respect of the directions as to the separate consideration of each count and secondly, that reference there is also referable to the erroneous directions in respect of uncharged acts but might I take your Honours, if I might go back. I understand your Honour Justice McHugh asked me to take you to the resolution of this matter by the court but could I take your Honours to the next passage in the charge to the jury. At the head of page 49 of the application book where his Honour said:

You are to consider that these crimes - these allegations of crimes separately. They are separate allegations and they are to be considered with reference to the evidence applicable to them each and separately.

And then, that direction is undermined by the next sentence:

Some of the evidence, like the background evidence in the case, has come into all the charges.

Now what is said in this Court, as was said in the court below is set out, if I might take your Honours to page 137 of the application book where your Honours will see at paragraph 3.2 of the respondent's argument in this Court the directions should cover that which is set out in the middle of the page, (i), (ii) and (iii). Now directions (i) and (ii) were not expressly given, nor even by necessary implication were they given and as to the third direction, that is (iii) on the page, there are some cases and it is trite law, with respect, that it is said that that direction must be given in order to ensure that a jury does not use propensity reasoning and this was a case where it was not appropriate for the jury to use propensity reasoning and that is common ground.

Now, that coupled with the direction in respect of the uncharged acts led to that paragraph, in particular at the foot of 105 of the application book. As to the directions to the jury in respect of the use the jury might make of the evidence of the uncharged acts, what occurred at the trial was this: on a number of occasions in his Honour's charge to the jury, the learned trial judge directed the jury that the Crown had to prove that the complainant was an accurate and honest and reliable witness. The credit or credibility - and both words were used in the charge to the jury - of the complainant was crucial to the Crown case. What the judge then did, for example, at page 52 of the application book, directed the jury as to the manner in which it might treat the evidence of the uncharged acts by using it on the question of credit or credibility. For example, might I take your Honours to page 52 line 12 and I quote:

You may look at the uncharged acts and what the accused said about them in forming your views about the credibility one way or the other of the complainant but that is all.

Down a little further, lines 20 to 21 on that same page, page 52, he says:

And the only use that you can make of that, apart from the contextual use.....your view of the credibility of the witness who was cross-examined, the complainant.

Again, at lines 26 to 28 on that page. Now, that is not a way in which any trial judge in this State directs a jury. Judges in this State in accordance with all the authorities - - -

McHUGH J: Your point is that this is not a suitable vehicle for raising the question of principle which the Crown seeks.

MR HOLDENSON: Two points. This is a case extraordinary, not akin to any of the other cases that go to the Court of Appeal from the trials in the County Court in this State. That is the first thing, but secondly, the respondent was successful on three bases as he should have been and correctly decided on each of the three bases.

The real sting in the tail in so far as the respondent was concerned - and it is all referable to this distinction that was the subject of continual emphasis through the charge to the jury - is that it then enabled the jury to resolve credibility in favour of the complainant adverse to the respondent who gave sworn evidence by reference to a standard of proof somewhat lesser - I do not know how much lesser - the judge did not tell the jury, but lesser than beyond reasonable doubt and this Court, it time and time again, whether it is Shepherd, Edwards in respect of lies, Penney more recently in respect of motive, this Court has consistently - - -

McHUGH J: Well, there may be some argument about Penney.

MR HOLDENSON: Well, not in this Court today, be that as it may. But the courts have consistently said where a jury might use something as a line of reasoning in order to infer guilt there has to be a "beyond reasonable doubt" direction. Here, it was not even an "on the balance of probabilities" direction and credibility was what this case was about said the judge.

Now, it cannot be right that an accused person is entitled to have the issue of credibility resolved by reference to something lesser than perhaps even on the balance of probabilities. Now, no judges make that, with respect. That direction is never given. It is always given about guilty passion or context but it is never given as to, "And you can use it for credit". That makes this case, with respect, not a vehicle.

Now, this Court, in any event, has said this but might I first just take your Honours to the application book at page 139 to the head of 140. At the foot of 139 your Honours will see paragraph 3.8 and I quote:

Where the Crown seek to rely upon such uncharged acts in the proof of its case, the trial judge must clearly warn the jury that:

(a) the evidence of the uncharged acts has been admitted into evidence solely to establish the context.

Might I pause there. It is only a word but it is not in this judge's charge. The word "solely" is nowhere in the charge. "Context" is. But, secondly, at the head of page 7:

even if the jury accepted that evidence of the uncharged acts or part of it -

(i) the commission of the offences charged could be proved only by the evidence directly relating t them, not by evidence relating to uncharged acts.

One only need read the head of page 49 of the application book in the passage to which I took your Honours earlier to see that that direction was not correctly given but, more importantly, the direction given in (b)(ii) on page 140 of the application book, namely:

the jury must not reason that, because the accused engaged in sexual conduct with the Complainant on occasions other than those charged, he was the kind of person who was likely to have done so on the occasions charge.

Now, your Honours will see that I have cited on the document there Grech and TJB. This Court has already decided this point in favour of the respondent in Gipp and again in BRS because in both Gipp and BRS this Court made reference to quite a number of the State decisions and made reference to two things. The jury must be told how to use the evidence and it must be told how not to use that sort of evidence including a direction in respect of non-propensity reasoning.

Simply by reference to convenience might I just take your Honours to BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275. If I could take your Honours to the last page of the judgment, the very last page in the judgment of his Honour Justice Kirby. Your Honours will see that his Honour Justice Kirby adopts wholly the judgment of Chief Justice King in Dolan. Could I take your Honours to the passage in the very middle of the page.

CALLINAN J: What page, I am sorry, Mr Holdenson?

MR HOLDENSON: Page 332, I am sorry.

CALLINAN J: Thank you.

MR HOLDENSON: Last page of the judgment and I quote from about point 4:

In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.

Your Honour Justice McHugh, in your judgment, your Honour, said the same. Could I take your Honour to page 309 where your Honour set out what your Honour called the proper direction. At 309 at point 4 on the page, three lines into that indented paragraph and I quote:

But you must not use that finding to conclude that he is guilty of these offences because he is a person of bad character. In particular, you must not conclude that W's evidence indicates that the accused has a disposition to engage in -

et cetera. Your Honour said that at 309. Your Honour said the same thing at 305 with similar emphasis. Might I take your Honour to page 305 at about point 4 on the page, again four lines into the paragraph. It reads, and I quote:

If the evidence is admitted for a reason other than reliance on propensity -

if I might pause there, that is this case -

the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific.

Her Honour Justice Gaudron said the same thing at page 301 and again, if I might just, without taking your Honours to it, the same thing was said in your Honour Justice McHugh's joint judgment with Justice Hayne in Gipp and, again, Justice Kirby said it in Gipp. Your Honour Justice Callinan, as I understand your Honour's judgment, did not have to deal with this point by reason of your analysis as to the admissibility or whether or not it should have been let in in the circumstances of that case.

McHUGH J: I think your time is up, Mr Holdenson.

MR HOLDENSON: I am sorry. My light is covered. If your Honour pleases.

McHUGH J: Thank you. Yes, Mr Flatman. Given these directions, how do you say this is a suitable vehicle to raise the important point of principle that you seek to raise?

MR FLATMAN: Your Honour, it is our submission that this particular area of law is in a state of flux, that the directions given in this particular case were, in fact, tailored very much to the issues in this case. What my friend seeks to do is to look to a whole lot of directions given in other cases and say that they, therefore, ought to apply without looking at the facts of this case and the ratio of this case is set out in the judgment at page 105 and the reasons why the directions were said to be inadequate were set out at page 105 of the application book:

The passages from the charge quoted above, and the charge as a whole, were in my view, with all respect, objectionable in at least the following ways. The prejudicial nature of all such evidence (both as to uncharged acts and the counts themselves) was likely to cause the jury to mistreat it as tending to prove an inclination towards the relevant criminal conduct, and the judge was obliged to warn the jury against this tendency. The jury should have been told how to use such evidence of uncharged acts, which would in a case such as the present mean that they should have been clearly told that evidence of such conduct could only be used by them if they were satisfied that it occurred and (if the evidence was not regarded as part of the res gestae) only for the purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated in a realistic contextual setting -

and it quotes Vonarx.

Such evidence is sometimes tendered to establish guilty passion but the judge (I think correctly) did not charge the jury on this basis. In the present case however the jury were told, inadequately in my view, that they could use these events in forming their "views about the credibility, one way or the other, of the complainant but that is all", and that it was not necessary for them to be satisfied beyond reasonable doubt that the uncharged acts had taken place. I shall return to the question of the complainant's credibility shortly.

And then, his Honour said:

In my view the directions given by the judge were quite insufficient in that they failed to warn the jury -

of the two legs, effectively in Grech, that:

the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to extraneous conduct and (b) they must not reason that because the applicant engaged in sexual conduct with the complainant on other occasions or in other ways, he was the kind of person who was likely to have done so on the occasions charged. The second of these warnings was not given at all; the first was given, but then obscured by the jury being told that "some of the evidence has come into all the charges".

Now, we agree that the second was not given at all but we say that there was no need for it and that this is not a case about relationship evidence in the strict sense. My friend keeps on saying this has never been done before in the charges by judges to juries in Victoria. This is a case about allegations of uncharged acts which were said to occur contemporaneously with the charged acts.

It is our submission there were good reasons why they were not the subject of the charges because some of them were simply preliminary lead-ups which involved a lesser kind of criminal conduct, touching through clothes and so on and more serious ones were, in fact, statute barred but the Court of Appeal itself acknowledged that they were probably part of the res gestae and referred to the judgment of your Honour Justice McHugh in Harriman and that is exactly what it was. In each of these - there were four separate occasions involving a series of sexual allegations on the four separate occasions and on each of those there were uncharged acts that were part of the res gestae. They were inextricably bound up with the narrative.

Now, my friend says it has nothing to do with credit. The fact is the complainant made a statement of events to the police in a narrative form. He then gave evidence to the committal in a narrative form. He was cross-examined about all of these events as they occurred in the narrative form and the cross-examination went to credibility and it went to credibility on questions about discrepancies between the statements and that encompassed both the charged acts and the uncharged acts.

It would have been most unfair to the accused if it was not led and, indeed, it would have been most unfair if the accused could not have cross-examined on those matters from the point of view of effecting credibility but that was the only basis upon which the judge in this court said it was relevant to the jury. He specifically - and my friend complains that he did it too much - time and time again, he said, "You don't take any notice of the uncharged acts. The question for you to decide is the charged acts." He identified precisely which were which and he said how they could not be used. He said at one stage, "Even if you think that the uncharged events occurred, you are not to conclude from them that any of the charged acts occurred" and, indeed, when he got to probably what was the strongest form of his direction at page 52 of the application book - - -

McHUGH J: But the Crown did rely on the uncharged acts as proof of the respondent's guilt?

MR FLATMAN: No.

McHUGH J: They did not.

MR FLATMAN: They definitely did not and what is more, the prosecutor, at the commencement of the trial said that he wanted to and the judge said, "You can't do that. It does not take it any further.", and he specifically disavowed that. I can take the Court through each part of the charge but he constantly says that - - -

McHUGH J: He said at 52 line 10:

Even if those uncharged events occurred, you are not to conclude from them that any of the charged acts occurred.

Is that the passage that you - - -

MR FLATMAN: That is the passage but, I mean, it is the theme of the whole of his charge. If you go right back through them, I think back at - he went through them one by one and, for example, when he was talking about the counts on - the first occasion involved some preliminary events on a tractor leading up to taking him back to the house. Now, there was an issue about that in the trial because it was suggested that the tractor had been sold and had not been in the possession of the accused at the time those events occurred and therefore he must be wrong about that.

Now, when he went through that, indeed, at page 40 of the application book, at page 178 of the charge, he said:

You will recall that on the same day and preceding those events -

which were the events which were the subject matter of the charge -

he was sitting on the tractor when the accused is said to have touched him between the legs, which might constitute an indecent assault but it has got nothing to do with the precise events the subject of Count 1 or Count 2.

That was the tenor of each individual direction and when he got to page 52 of the application book he concluded:

So we distinguish between the acts relied upon by the Crown as forming the basis of the counts charged and the uncharged acts. As to uncharged acts, I tell you their only relevance, and this is a matter of law, is as background to the events charged, to put those events, if they occurred, in context so that you may understand the evidence. Even if those uncharged events occurred, you are not to conclude from them that any of the charged acts occurred. That is not the exercise. You may look at the uncharged acts and what the accused said about them in forming your views about the credibility one way or the other of the complainant but that is all.

You will recall that there has been -

and this is important, this passage that explains the credibility -

cross-examination about some of the uncharged acts. Remember all the cross-examination bout the tractor, for example and what happened on it. All uncharged acts. And the only use that you can make of that, apart from the contextual use, is whether the cross-examination about those matters by counsel for the accused affects your view of the credibility of the witness who was cross-examined, the complainant.

And, in the context of this case, we would submit that the judge's charge was impeccable because these were surrounding circumstances that had to be included in the material before the court because they were part of the res gestae. They, having come before the court, he went to pains to explain to the jury that the Crown were not relying on it in proof of their case and he said, "The only way you could use it is how it might affect the credibility of the complainant" and the fact is the complainant had been cross-examined, not just about the charged acts but about the uncharged acts and, obviously, if there are questions raising credibility about the happening of the uncharged acts that may well influence a jury about the credibility of the complainant in relation to the charged acts.

McHUGH J: The Court of Criminal Appeal seems to have taken the view that the Crown relied on the charged acts as proof or, at least, to assist in proof of its case.

MR FLATMAN: I mean, the great difficulty there is, your Honour, it simply did not and not only did not the Crown rely on it the judge told the jury that they were not relying on it and then the very exception taken by counsel for the accused at the end of the case about the onus of proof at page 85 of the application book. He says:

they ought to have been given the direction that before they can make any use of -

the uncharged acts -

at all, that they ought to find them proved beyond reasonable doubt, even thought they don't form part of the Crown case as such.

CALLINAN J: Mr Flatman, was any objection taken to evidence of any of the uncharged acts?

MR FLATMAN: No, and there would have been no purpose because it was in everybody's interests, the accused, the Crown and the jury's that everything be before the court because this is different to the other cases that my friend has mentioned which are about uncharged acts that occur at a different place and time. I mean, Gipp is about a long series of events that takes place between ages of four and 10 before the charges even start. Beserick, for example, there is a whole lot of conduct that occurs after what are only one or two charged acts. In Grech the uncharged act became the whole focus of the attention of the jury and that was one of the reasons why the complaint was made by Mr Priest who appeared in that case. In Vonarx, in fact, the court was specifically told that the Crown did rely on the uncharged acts as going to propensity.

This case, the Crown does not rely on it for propensity. It did not. It did not rely on it for relationship other than to say contextual and that was contextual in the res gestae sense and it certainly did not try to rely on it in terms of guilty passion. It had to be led in the sense that your Honour Justice McHugh explained res gestae evidence in the passage in Harriman where it is inseparably part of the facts that embrace the crime.

I mean, it can happen in a murder case where someone gets apprehended and falsely imprisoned, technically, and then a murder takes place. The Crown never charges false imprisonment, they charge murder. But one ever bothers to give anybody a direction about it because it is just part of the preliminary material. Here, the judge was terribly sensitive as judges are, I think, throughout Australia, about the problem about uncharged acts.

McHUGH J: Where is the precise passage in the Court of Criminal Appeal which gives rise to your special leave question?

MR FLATMAN: The special leave question, I think, is twofold.

McHUGH J: I know it is twofold but where is the passage?

MR FLATMAN: It is the conclusion at the bottom of page 105 of the application book, your Honour:

In my view the directions given by the judge were quite insufficient in that they failed to warn the jury that (a) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to extraneous conduct and (b) they must not reason that because the applicant engaged in sexual conduct with the complainant on other occasions or in other ways, he was the kind of person who was likely to have done so on the occasions charged (Grech, at 614). The second of these warnings was not given at all; the first was given, but then obscured by the jury being told that "some of the evidence has come into all the charges".

That warning is an example of simply an application of a direction that was appropriate in another case. That was involving uncharged acts that were in a different time and place some years earlier.

CALLINAN J: Mr Flatman, does not the Court of Appeal answer that at page 110 line 14 where, I think, it was Mr Justice Charles:

Viewed in this way, the evidence of the oral penetrations was, in truth, not contextual but an inseverable part of the course of conduct.....As such it was entirely artificial and confusing for the jury to be told that they could apply differing standards of proof -

that, in other words, if it is part of the offence, as you say it is, or inextricably wound up - - -

MR FLATMAN: It is res gestae, yes.

CALLINAN J: Well, if it is, why should a different standard of proof apply to it?

MR FLATMAN: I am not saying that a different standard of proof - - -

CALLINAN J: Did not the learned trial judge say that there was a different standard of proof?

MR FLATMAN: Not exactly, your Honour.

CALLINAN J: Well, is the Court of Appeal wrong to say that then?

MR FLATMAN: What he did tell the jury, he said they had to be satisfied beyond reasonable doubt. What they had to be satisfied beyond reasonable doubt about was the charged acts, not the uncharged acts that did not form - - -

CALLINAN J: But is not that in fact artificial, as the Court of Appeal has said? I mean, is not the argument really against you? If it is part of the res gestae, why should it not be the subject of proof beyond reasonable doubt if it is unlike the circumstance that is only a link in the chain? You say this is well and truly more than that.

MR FLATMAN: Well, it is clearly not link in the chain and I think if we go to the passage and I have found it; it is the bottom of page 49 and it is over to the top of page 50 and it identifies really the mistake in the way this has been approached by the Court of Appeal. At line 27:

You should look at the matters with some care so as to identify those acts which the Crown relies upon to support each charge because it is those acts on each count, the charged acts that the Crown has to prove beyond reasonable doubt in order to obtain convictions. Not the other acts, the uncharged acts mentioned by the witness, that do not form the basis of the charge.

CALLINAN J: You say the uncharged acts are inseparable from the charged acts?

MR FLATMAN: I say that they are bound up in the narrative but I say that the judge correctly directed - that what the judge is doing there, if you read that in its proper sense, it is saying you should look at the matters that the Crown relies on to support each charge because they are the matters that must be proved beyond reasonable doubt, not the uncharged acts, not the matters that the Crown do not rely on to prove its charge.

It would be confusing and inappropriate to put the same standard of proof in relation to the uncharged acts that are contemporaneous because the focus of the jury ought not to be on the uncharged acts. They are not to use them in any way.

CALLINAN J: Contemporaneous or leading up to the charged acts?

MR FLATMAN: Yes.

CALLINAN J: Part of the same sexual transaction, if you like.

MR FLATMAN: Part of the same - but it could easily happen. For example, take a different example altogether in a murder case that a jury might not be satisfied beyond reasonable doubt about the false imprisonment of the victim but would be satisfied beyond reasonable doubt that a murder took place. The essence of the focus of the jury's attention has to be the charge, the charge that is faced and, in our submission, it is almost a completely circular argument because all of the authorities indicate that the jury should be told not to misuse uncharged acts and use them towards proof of the charged acts. That is the whole thrust of all the authorities in this topic.

Then to suggest that it should be proved beyond reasonable doubt is to suggest that it should be used or could be used to decide the ultimate question, the question of guilt on the offence actually charged and that, in our submission, is entirely circular. It is a bootstraps argument. The position is the jury should be told to concentrate on the charged acts.

If there are uncharged acts that are bound up as part of the res gestae then certainly they can take that into account when assessing the credibility of the witnesses as to how the facts fall in the context of all the circumstances and, indeed, cross-examination about those particular issues may affect the credibility of the witness overall but, ultimately, they should focus on the charged acts and the standard of proof for the charged acts is proof beyond reasonable doubt and this particular passage is not saying you should look at the uncharged acts and consider them on a lesser standard of proof. It is saying, "Look at what has to be proved". What has to be proved is that which has to be proved beyond reasonable doubt.

McHUGH J: Your time is up. Yes, Mr Holdenson.

MR HOLDENSON: Our learned friend said that this was not a case where the uncharged acts were inseparably bound up with the charged acts. This judge at trial so directed the jury. Could I take your Honours to page 40 of the application book? Page 40 line 26 his Honour to the jury said:

the accused is not charged with is because they are inseparably wound up with the story that does concern you relating to the acts that are the basis of the charge.

So his Honour did direct to the jury that they were inseparably bound up. The problem, therefore, with the direction as to standard of proof or, more properly, the manner in which that direction might have been understood by the tribunal of fact has been identified at page 141 of the application book in paragraph 3.15, that is the jury might well have understood that there was some "lesser standard of proof in respect of the uncharged acts".

The vice in that is that notwithstanding what my friend has said, whether or not the Crown opened the case this way or closed the case this way, and we do not have a transcript of either the opening address or the final address, the judge at the end of the day, in his Honour's charge to the jury directed the jury in such a way that the Crown were relying upon the uncharged acts in order to prove credit or credibility of the complainant whose credit or credibility was crucial and the prosecutor did not take any exception whatsoever to that direction in circumstances where my friend now says it was not the prosecutor's case that he went to the jury relying upon the uncharged acts. The point is the judge went to the jury on that basis.

Now that was recognised by the court below and might I just remind your Honours of the passages in the judgment below. For example, at page 110, your Honour Justice Callinan took my friend to line 14. Might I go back to line 3 on that page and I quote:

it was plainly possible that they may have used this evidence -

that is as to the uncharged acts -

in proof of the prosecution's case in an impermissible fashion, whether in relation to the complainant's credibility, or as a link in the chain of proof.

Now it may be that that sentence would be better expressed as "the complainant's credibility and perhaps thereby as a link in the chain of proof of the Crown case." Not only was it recognised at 110, it was also recognised at 103 where, in the first paragraph on the page, not the quoted paragraph, at line 6 the reference is as to "contextual" and then you "could use them in forming a view".

This case is different from other cases for this reason. This was not just a case with an 11 count presentment. It was a case with an 11 count presentment and another 11 acts, each of which was uncharged in respect of which, that is the 11 uncharged acts, there was a lesser standard of proof and where there is no propensity direction, that is no direction to the jury not to engage in propensity reasoning, you get the problem, in my submission, which has been set out conveniently in the form of one paragraph at page 138 of the application book at paragraph 3.3.3. "Once the jury have determined" and if I might just paraphrase it, to find guilt in respect of a number of alleged acts, whether they are charged or uncharged, the jury then, in respect of the remaining counts, considering an accused whom they had already determined to be a sexual abuser and perhaps, in effect, therefore, a person bent on sexual abuse.

This was not a murder where there was, perhaps, a false imprisonment prior to the act of the causation of death. This was a case about paedophilic offences against a young boy and a number of the acts, charged and uncharged, as described by the complainant in his evidence, could only lead to feelings of revulsion in the jury. Hence, as your Honour Justice McHugh identified in BRS in a passage to which I have not taken the Court, your Honour used the word "axiomatic". It is also, with respect, trite. Where evidence reveals propensity or tends to reveal propensity then there is automatically and inevitably a real risk that the jury will reason towards guilt by using the evidence of propensity, hence the necessity for a warning against it.

Subject to any queries or concerns of your Honours in respect of, perhaps, the next matter that concludes the submissions.

McHUGH J: Thank you. Yes, we think we will give our reasons for this matter before we deal with KRM.

This is a case in which the respondent was charged with, and convicted of, offences of a sexual nature in which evidence of uncharged acts, that were inextricably bound up with the charged acts, was admitted at the trial. The issue for the Court of Appeal was to how those uncharged acts should be dealt with by the trial judge in his summing up to the jury. The questions raised in this application are important but we are far from persuaded that the Crown would succeed on an appeal. Having regard to the principles applicable to applications for special leave to appeal by the Crown, special leave to appeal is refused.

MR HOLDENSON: In respect of that order, your Honour, might I make an application for costs. Might I remind your Honours at page 132 of the application book where it would appear that my learned friend might well concede the question, special leave having been refused. I can take the Court to the cases but we do make an application for costs.

McHUGH J: Yes. Well, what do you say about that, Mr Flatman?

MR FLATMAN: We say that is a matter for the Court.

McHUGH J: Yes, special leave is refused with costs.

MR HOLDENSON: If the Court pleases. I am in the Court's hands as to whether the Court wants me to remain here in the light of what was said earlier.

McHUGH J: No.

MR HOLDENSON: If the Court pleases.

McHUGH J: Well, Mr McArdle, there is no oral argument for the applicant. Do you want to advance any oral argument beyond what is in your written submissions?

MR McARDLE: Your Honours, simply this, that if it is not already apparent from what we have written, this is not a case of uncharged acts.

McHUGH J: No, I appreciate that.

MR McARDLE: And is quite different from the other.

McHUGH J: Yes, it is.

MR McARDLE: I think otherwise, your Honours, we do not wish to advance any further - - -

McHUGH J: Yes, thank you. In the matter of KRM v The Queen there will be a grant of special leave to appeal.

MR McARDLE: If the Court pleases.

McHUGH J: The Court will now adjourn to reconstitute.

AT 12.42 PM THE MATTER WAS CONCLUDED