D v The Queen M107/1999 [2000] HCATrans 528 (8 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M107 of 1999

B e t w e e n -

D

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 2.17 PM

Copyright in the High Court of Australia

MR J.P. DICKINSON: If the Court pleases, I appear on behalf of the applicant. (instructed by Victoria Legal Aid)

MR C. HILLMAN: May it please the Court, I appear with my learned friend, MS R. CARLIN, for the respondent. (instructed by the Director of Public Prosecutions (Victoria)

GUMMOW J: Yes, Mr Dickinson.

MR DICKINSON: Your Honours, the point for consideration really can be crystallised as this: is it necessary that trial judges give sufficient and clear directions as to the use not to be made of evidence capable of being misused to categorise the accused as one who is guilty of one or more counts, is a type of person likely to have committed other charges?

GUMMOW J: It is not so much the existence of the principle, is it, as to its application?

MR DICKINSON: That is exactly right. It is submitted that the Court of Appeal, in the two leading judgments of Justices Tadgell and Chernov, correctly stated the law. His Honour Justice Tadgell, at page 80, at line 42, said this:

There was also a necessity to instruct the jury that none of the evidence in the case should be used in order to reason that, because the applicant had engaged in sexual conduct with one or more of his daughters on an occasion that was not the subject of a charge, he was the kind of person who was likely to have done so on an occasion in respect of which he was charged. There was no legal or logical need however, for the purpose of giving that instruction, to draw any distinction between evidence of acts in respect of which the applicant stood charged and evidence of other acts of his which, if accepted, tended to indicate a relevant abnormal relationship or guilty passion. The instruction ought to have applied indiscriminately to all the evidence without qualification.

It is submitted to this Court that that correctly states the law. His Honour Justice Chernov, at page 86 - - -

GUMMOW J: Well, can we just look at Justice Tadgell, at page 81, lines 10 to 15. You have to join issue with that, do you not?

MR DICKINSON: Yes, an issue is joined. The submission is that both justices who gave judgments were wrong in saying that the direction was given, or if I am wrong in saying that, that they were wrong in saying that the direction was sufficient and/or clear.

GUMMOW J: So, in a way, here, the question becomes one of sufficient prospects of success, does it not? At this level, now, today.

MR DICKINSON: Yes, it does. Again, at page 86, at line 30, or perhaps I will start at line 28, his Honour said:

It seems clear enough that in a case such as the present, which involves multiple sexual offences allegedly committed by one offender against a number of victims, as a general rule a propensity warning should be given to the jury in conventional terms in respect of the complainants' evidence of the applicant's conduct towards them including sexual acts, charged and uncharged -

and authority is given for that proposition. Again, it is submitted that that proposition, as a statement of law, is correct. Was, in fact, that warning given? His Honour Justice Tadgell, at page 80, at line 36, had this to say:

Reading the learned judge's charge as a whole, I am unable to satisfy myself that the expressed propensity direction was confined to uncharged acts.

Justice Chernov, at page 87, line 41, said this:

In my view, a fair reading of the relevant parts of the charge taken in the context of the whole of the charge, shows that no distinction was drawn by his Honour between charged and uncharged acts for the purpose of the operation of the propensity warning. Although given in the context of uncharged acts, its terms draw no distinction between the uncharged and charged acts of the applicant.

It is apparent that each of the learned justices were constrained to have to read the charge as a whole and to seek, in the context of the charge itself, the required direction. Each had reservations about their finding. At page 80, Justice Tadgell, speaking about his view that instruction had been given or that the instruction on this point, at line 50, had this to say:

With respect, the learned judge's charge is not altogether free from ambiguity. His explanation might have been more fully expressed, both as to identification of the evidence capable of showing abnormal relationship or guilty passion and as to the purpose for which that evidence might be used.

Likewise, his Honour Justice Chernov, at page 88 at line 2, had this to say:

It is true that his Honour could have been more specific about the matter now in issue, but for reasons I have given, I am not satisfied that the jury would have interpreted his Honour's propensity warning as was contended for by Mr Salek.

If one goes to the actual direction at pages 13 and 14, one can see why one would have to have resort to trying to find in context that the direction which ought to have been given was given. The direction starts on page 13 at line 20, and if the Court would indulge me, I might just read it because it is relatively short:

The next matter of evidence to which I want to turn is what are called uncharged acts, that is, things that happened or are said to have happened that do not form the foundation of any of the charges before you. Each of the complainants has spoken of other acts of a sexual nature perpetrated upon her by her father that are not the subject of any count on the presentment you have. Each has also spoken of the behaviour of her father towards his family. If you accept that evidence and that is a matter for you, how can you use it? Firstly, you may not use it and I cannot emphasise this enough, to reason from it that the accused is the sort of man who would do the acts alleged in the presentment you have before you. But you can use evidence of uncharged sexual acts, if you accept it, as establishing a sexual relationship that makes a complainant's allegation more likely to be true. Thus if the evidence of the uncharged acts was accepted by you as showing that the accused was inclined to sexual acts with a particular daughter or one or more daughters, then you might well think that the evidence of a particular daughter concerning a particular sexual activity which is charged against the accused on the presentment is the more credible or believable. In other words, it bears upon the likelihood that the offence charged was, in fact, committed.

In addition, evidence of uncharged conduct, if accepted by you, may also be used by you to place the offences alleged in a true and realistic context and so assist you to evaluate them. For that context can itself bear upon the probability or otherwise of the Crown's charge having been committed.

In that context you may consider not only evidence of uncharged sexual conduct but evidence of uncharged non-sexual acts or behaviour by the accused towards his family, and in this case the Crown relies upon the conduct of the accused in allegedly dominating his family so far as appears from the evidence of the complainants as it has appeared before you.

That passage is the totality of the learned trial judge's directions with respect to the propensity evidence. It is clear, on a fair reading of it, that every word he says is intended to cover the use to be made of the uncharged acts, sexual or non-sexual, which were admitted into evidence. Nowhere in the charge will one find any reference to the use that can be made of a finding of guilt in respect of a charged act with respect to the use to be made of another charged act on the presentment, whether it be with the same complainant or with another complainant.

It is submitted it is torturing logic, to extract from the passage that I have read to the Court, that his Honour was, in fact, also talking about charged acts when the passage makes it abundantly plain, it is submitted, that the only acts he was talking about were uncharged. The trial judge's directions are utterly silent on what the jury should make of any findings of guilt in respect of acts charged on their presentment, be they used to be made or not to be made, against other counts charged in respect of that same complainant or, indeed, a different complainant.

HAYNE J: This against the background of a charge in fairly orthodox terms about considering counts separately, is it not?

MR DICKINSON: Yes, it is, your Honour.

HAYNE J: And about the need to be satisfied of each element of each count.

MR DICKINSON: Yes. The trial judge certainly gave those directions, that they should look at each count separately. So there is certainly the separate consideration direction given, however, what is not given - that is certainly conceded - but because of the nature of propensity evidence and its potential for misuse, that separate consideration direction is thought not to be adequate and has been held not to be adequate, particularly where one has more than one complainant. In any event, the best view that one can take of the learned judge's charge is that, perhaps as his Honour Justice Tadgell put it, it was not free from ambiguity.

The law requires, in my submission, on the strength of the case of BRS, and, indeed, other cases, Gipp's Case, and all of the cases from this Court that have dealt with propensity evidence, that directions on the use to be made of that evidence and, particularly, the use not to be made of that evidence, need to be clear. If I can refer, perhaps, to what Justice Toohey said in BRS at page 295, what Justice McHugh said in BRS at 308, and in Gipp's Case what Justice Callinan said at page 169. The direction has to be clear because of the great danger that the jury might misuse this evidence of propensity.

There is a further danger associated with the direction as it was given. One can mount three criticisms of it. Firstly, the direction simply was not given and should have been. Secondly, if that is not right and it was given, then it was not sufficiently given and it was not clear. Or, thirdly, as was recognised by the Court of Appeal, the way the direction was couched, it was likely or could have lead the jury to the exact opposite conclusion, namely this, that, "The judge has told us we cannot use propensity evidence to argue that he is inclined, or might have an inclination to do those acts, in respect of the uncharged acts. He has not told us that, in respect of the charged acts, therefore, there is an invitation to use those acts or findings of guilt, if they were made, to reason towards guilt in respect of the other charge counts." So, there is a danger, not only that they were not told not to use it, there was an invitation inherent in the way the charge was framed that they might indeed be invited to use it in that impermissible way.

HAYNE J: How then should this Court or the Court of Appeal have considered the paragraph commencing at page 14, line 27, going over to page 15, line 5? What did that convey to the jury?

MR DICKINSON: What I believe it was meant to convey to the jury is that they can use the multiplicity of the complaint to bolster the credibility of each or all of the complainants. That was a matter that Justice Tadgell adverted to at page 79, line 20, where he said:

Evidence of conduct of that kind was available to the Crown as tending circumstantially to confirm the complainant's testimony and to impugn the applicant's.

He goes on to give another possible use. So, in short, your Honours, the complaint is direction was not given. If it was, it was not clear. It had to be clear on a long line of authority from this Court and, thirdly, it may well have encouraged the impermissible use of propensity evidence. They are the matters I seek to put before the Court.

GUMMOW J: Yes, thank you, Mr Dickinson. Yes, we do not need to call on you, Mr Hillman.

We are of the view that an appeal in this matter would have insufficient prospect of success to warrant a grant of special leave and, accordingly, special leave is refused.

AT 2.36 PM THE MATTER WAS CONCLUDED