KRM v The Queen M11/2000 [2000] HCATrans 582 (3 October 2000)

Office of the Registry

Melbourne No M11 of 2000

B e t w e e n -

KRM

Appellant

and

THE QUEEN

Respondent

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 OCTOBER 2000, AT 10.19 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the appellant. (instructed by Allan McMonnies)

MR G.R. FLATMAN, QC: May it please the Court, I appear with my learned friend, MS C.M. QUIN, for the respondent. (instructed by P. Wood, Solicitor for Public Prosecutions)

McHUGH J: Yes Mr Tehan.

MR TEHAN: Your Honours, we adopt our written submissions and in relation to them, could I point out a couple of mistakes. At page 2, paragraph 5 - - -

GUMMOW J: This is not always the most scintillating way to start the day.

MR TEHAN: It was a holiday yesterday, your Honour.

Line 2, cross out the words "the complainant and", it just should read the appellant, rather than "the complainant's vagina". Cross out the words "The complainant and" at lines 2 and 3 in paragraph 5.

At annexure A, which is the last three pages of the document, on the first of those three pages, the first line should read, "The next count on the presentment is that at Traralgon", and three lines from the bottom, it should read, "it is the same act of penile penetration which has been". That is three lines from the bottom.

CALLINAN J: What was the first one on that page?

MR TEHAN: The first one on that page is in line 1, the first line, your Honour, "The next count on the presentment is that at Traralgon between 5 August".

McHUGH J: Now, after that dashing opening you will commence with your submissions.

MR TEHAN: I was going to go to the dashing opening now, your Honour. The issue in this appeal is whether the Victorian Court of Appeal was correct in deciding that a propensity warning was not necessary, firstly in all cases where the offence of maintaining a sexual relationship is charged with other sexual offences and secondly - - -

KIRBY J: Do you say that it is always necessary, always?

MR TEHAN: When a section 47A offence is charged with other sexual offences, yes.

KIRBY J: Is that authority of this Court?

MR TEHAN: It is because of the nature of the offence provided for by section 47A.

CALLINAN J: Could I raise this possibility with you? Section 47A itself distinguishes between the offence and the act constituting the offence. Is that not so?

MR TEHAN: Yes.

CALLINAN J: And what has to be proved is the occurrence of three acts, which must be acts of exactly the same kind. Now, in a propensity case, the propensity need not be with respect to particular acts.

MR TEHAN: No.

CALLINAN J: It might be propensity with respect to all sorts of matters surrounding or relating to the acts.

MR TEHAN: Yes.

CALLINAN J: So that if you were to give a propensity direction in all cases under section 47A, might you not be really inviting attention to matters in such a way as to be quite prejudicial to an accused person?

MR TEHAN: It certainly does invite attention to matters which, on one view of it, could be prejudicial.

CALLINAN J: And I suggest possibly so here.

MR TEHAN: Well, not so, your Honour. The reason why we say it should be given in every case is because of the nature of section 47A. It allows acts of a non-specific nature, as to date and circumstances, to be given. It also allows - - -

CALLINAN J: No, a very specific nature. It is actually evidence of the act, on three occasions. The non-specific nature of it is as to the time and place and circumstances.

MR TEHAN: As to the time, place and circumstances. The legislation is a little bit different now, in fact. It is not insignificant that the legislation now provides for - there is no need for any detail in relation to the occasion whereas the legislation under which the appellant was convicted related only to the date, place and circumstances, "the dates or the exact circumstances of the alleged occasions", to use the words of the section itself, as it then stood.

KIRBY J: Is your theory of the submission that, in a sense, the section carries with itself real risks of prejudice and that the only way to balance the scales, putting the section into the context of a trial which is fair, which is the presupposition of the legal system, that you have to give the direction order to ensure the fairness of the trial?

MR TEHAN: The section is totally at odds with everything that was said by this Court as long ago as in Johnson v Miller and in 1989 in S v The Queen. Indeed the section was created so that parliamentary debates, at least in Victoria, indicate in answer to this Court's decision in S v The Queen.

GUMMOW J: Well, why then, do we read it down?

MR TEHAN: I am not asking the Court to read it down.

HAYNE J: What, then is the - - -

MR TEHAN: I am simply - - -

HAYNE J: Go on.

MR TEHAN: Our submission is that where this count is on a presentment with other charges a propensity direction should be given. The prejudice is, at the very highest, to a person charged with sexual offences where he is charged with this offence and other offences before the same jury. Because of the very nature of this offence it is almost like a propensity type offence.

GUMMOW J: That is the problem.

MR TEHAN: I know it is a problem.

GUMMOW J: That is what the Parliament was addressing itself to.

MR TEHAN: It is a problem and the only way the Court can deal with the problem - I mean, there are various ways the Court can deal with problem.

KIRBY J: It is not really a propensity, it is a relationship offence.

MR TEHAN: Well, a relationship offence. I am happy to live with it being called a relationship offence. Indeed, that is the way it is described as maintaining a sexual relationship.

KIRBY J: Propensity can arise, and often does in these cases, from conduct with third parties having nothing to do with the particular complainant and the essence of this offence is the relationship with the particular complainant.

MR TEHAN: That is right, and the mere fact that - - -

HAYNE J: Therefore, what is the content of the propensity direction that you say has to be given? The shorthand may be convenient but at least for my part I want to know what you want the judge to say.

MR TEHAN: Two things. Firstly, the evidence should not be substituted for the evidence on the specific counts in order to convict him of those counts. That is, the evidence in relation to count 18 should not be substituted for the evidence on counts 1 to 17 in order to convict him of those counts, and, secondly, the jury should not reason that because the accused engaged in sexual conduct, the subject of count 18, that he was the kind of person who was likely to have done so on the other occasions charged.

HAYNE J: Why is that any different from a separate trial direction?

MR TEHAN: A separate trial direction concentrates upon the technicalities of the presentment and the counts on the presentment and the notion that, firstly, the jury are to decide the case in accordance with the evidence relevant to each count and, secondly, as the judge did say in this case, that they are not to reason that because an accused is guilty on one count, he is guilty on another.

HAYNE J: What I am not understanding, Mr Tehan, is what more than the last piece you said the judge told the jury is it that you say the judge should have told the jury?

MR TEHAN: That they were not to reason that if they find the sexual conduct the subject of count 18 proven, that the applicant is the type of person to have committed the other counts. The concentration with a propensity direction is upon the issue of tendency, inclination, disposition, character - call it what you like - it is the concentration upon that. The reason for the direction is because of the natural tendency of the human condition to place undue weight upon evidence of inclination or disposition or tendency or propensity.

HAYNE J: Can I pursue this because it is a matter that lies at the heart of your appeal, as I understand it. Can I take you to pages 211E to 211F of volume 2 of the appeal book where we have the judge's charge on separate trials at lines 26 and following over to page 211F at about line 10. What is missing from there according to you?

MR TEHAN: What is missing is the propensity direction.

HAYNE J: Yes, I understand that, Mr Tehan. What content is missing?

MR TEHAN: What content is missing is the reference to the applicant being the type of person who may have committed the other offences.

KIRBY J: That is to say reasoning backwards from a guilt of the relationship offence, 18, but, therefore, you can throw in all the others.

MR TEHAN: Yes. It is the impermissible line of reasoning, as it has been referred to in some of the cases, from the mere fact of propensity. We would concede this, that a separate trial direction, as given by his Honour here - it now seems to be called a separate consideration direction - but, in any event, it goes some of the way but it does not go the whole way, and the real sting in what we put is that the direction should concentrate upon the issue of propensity rather than this concept of, "If you find him guilty on one count, you cannot find him guilty on others". So that is the additional matter that we call for.

CALLINAN J: Counsel who represented the appellant at the trial obviously did not think that there are any deficiencies in the summing up. There was no request for any redirection at all, was there?

MR TEHAN: No, that is true.

KIRBY J: I think that was the same in KBT, the earlier K case.

MR TEHAN: Yes, that is unfortunate that that was the case but that should not stand in the way of - - -

CALLINAN J: It may be an indication of the impression that the trial judge's direction conveyed, that it had dealt with these matters quite adequately.

MR TEHAN: There are not too many - at least at the time of this trial, there had not been too many trials in Victoria for this offence. In fact, I think this was one of the early trials. There have been some since but even now - there has been about four a year since 1992 in Victoria. I thought it was a little less than that but, in any event, there was some discussion during the trial about whether an uncharged acts direction was necessary, and what is interesting is that an uncharged acts direction was, in fact, given in this case in relation to an act of the complainant parading lingerie in front of the appellant. But, of course, no direction, in the nature of an uncharged acts direction, or propensity direction, was given generally and, in particular, in relation to count 18.

HAYNE J: It must also be understood, against the background of what the judge told the jury about count 18 itself, which appears at 271 and following, and perhaps particularly against what the judge said at 276, lines 16 to 28, warning the jury about what he described as bootstrap reasoning, does he not?

MR TEHAN: Yes. This charge followed a charge that was given by other judges at this time in the County Court in Victoria. What is interesting about it, we would say, is that it is deficient in some respects, not only in the sense that there is no reference to a propensity direction, but also the judge seems to have concentrated, at various points in his directions, upon the jury being satisfied beyond reasonable doubt of a course of conduct. For example, at page 274, line 11, the judge said:

Therefore, what has to be proved by the Crown is a course of conduct over the relevant period.

At line 23, he said:

The Crown must therefore prove an offence of an ongoing nature, and it is a course of conduct.

At line 16 on page 434, his Honour said:

The Crown must also go on and prove that throughout the time span alleged, Mr M had a particular state of mind, namely that he intended that the unlawful sexual behaviour, which gives the relationship its sexual character, would be ongoing, that it would continue as a course of conduct.

Now those statements - - -

KIRBY J: Could you keep in mind that the transcript of argument goes on the internet and if we are to be serious about the anonymity order, his name should not be used.

MR TEHAN: I am sorry, your Honour.

KIRBY J: That is done to protect the complainant.

MR TEHAN: Yes.

KIRBY J: I am sorry to interrupt you.

MR TEHAN: No, I am grateful to your Honour. But those statements, in our submission, are completely at odds with what this Court said in KBT v The Queen. It is not a course of conduct offence, it is an offence the actus reus of which is one act which must be identifiable in some way, as this Court said in KBT. True enough it does not have to be identifiable by way of exact detail as to date and circumstances, but it has to have some identification about it, and then two further acts of the same character. The jury have to be satisfied as to the same three acts.

KIRBY J: Now, all of that was accurately told to the jury, was it not, that it had to be the two additional acts and that they all had to be satisfied on those particular acts.

MR TEHAN: And what was not told was they had to be satisfied that it was the same three, that was not told to the jury. His Honour commenced his directions at page 271 of the appeal book, line 26. He made some comment about the charge. He then set out the elements that were not in contention and then at line 17 on page 272, returned to the element that we are concerned with, saying at line 20:

in that he introduced, in the sense of put his penis, in the girl's vagina, on at least three occasions during the time span alleged.

Then he referred to the evidence. He set that out at 272 and 273, and at line 19 on that page said:

It is the penile penetration that the Crown alleges here, not any digital penetration over that period of time.

KIRBY J: Is that not clear enough, that he is making it clear that it is three acts of penile penetration that have occurred in the time period and that you are all satisfied as to those three acts?

MR TEHAN: No, your Honour. In KBT it has got to be the same three acts.

KIRBY J: Yes, penile penetration, not one penile, one digital, one oral.

MR TEHAN: If that is what KBT stands for - - -

KIRBY J: Yes, and that is what the judge is saying, penile.

MR TEHAN: If, for example, there were seven acts, our submission would be that the jury have to be satisfied of three of the acts and it should be the same acts for jurors.

KIRBY J: Yes, but here it was three acts of penile penetration and he went on to say they are not alleging digital.

MR TEHAN: Yes.

KIRBY J: So it is three acts of penile. It does not seem to me that this falls into the KBT error.

MR TEHAN: Yes, it is different from KBT but we would submit that from KBT the jury should be instructed that they should be - for each juror they should be satisfied as to the same three acts out of a multiplicity of acts.

KIRBY J: I see what you say.

MR TEHAN: Otherwise there is some uncertainty about the verdict.

KIRBY J: Yes, that the three jurors might agree on acts in December - - -

MR TEHAN: Three jurors might agree about - I mean, you might have the complainant giving evidence of a dozen acts of penile penetration.

HAYNE J: You might have, Mr Tehan, but did you here? Is there any real scope for this argument on the evidence as it happened at this trial?

MR TEHAN: That is the difficulty. The evidence at this trial - I mean, we ran this argument in the Court of Appeal and lost, but the evidence in this trial was so unsatisfactory that our submission in the Court of Appeal, which I say it lost, was that it should not have been left to the jury.

HAYNE J: And the respondent says that you have not got grounds of appeal sufficient to raise it here. Do you seek to raise it here?

MR TEHAN: Because of what we want to say about propensity evidence there is a link between that and this Court making an examination of the evidence in this case.

KIRBY J: I speak only for myself, but I think you have to exercise judgment here. You are muddying the waters with a pseudo KBT type issue when I understood you were coming here to argue propensity, the lack of a propensity direction.

MR TEHAN: We are coming here to argue propensity.

KIRBY J: This what you got leave on.

MR TEHAN: Yes.

KIRBY J: I think you would do well to just stick to it because I am with Justice Hayne. It does not look to me as though the three specific instances, and that they all agreed on the three, was a real live issue in this case.

MR TEHAN: No. With respect, I was only answering your Honour's question.

KIRBY J: Muddying the waters.

MR TEHAN: All right. If your Honour pleases.

KIRBY J: We are always alert to counsel doing that. They are trying to do it all the time.

MR TEHAN: So I will return to where I was then. The offence of maintaining a sexual relationship was first introduced into Queensland and then into Victoria and more recently into Tasmania, as I said earlier, in response to this Court's decision in S v The Queen and, as we understand it, the offence now also exists in Western Australia and Australian Capital Territory.

That case concerned the difficulties occasioned by evidence of multiple unidentified sexual acts over a period of time. The Court in S found that the evidence should be related to a specific offence upon an identified occasion, otherwise the evidence was little more than propensity evidence. As his Honour Justice Dawson said in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 - - -

KIRBY J: Was that before or after Pfennig?

MR TEHAN: That was before.

HAYNE J: It was well before.

MR TEHAN: Before. At page 273 at point 7 on that page:

Thus, notwithstanding that each count in the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count.

Now, in a sense there is an analogy between that and count 18, given what the evidence was in count 18. She simply said it was very repetitious but consisted of him "putting his finger in me, putting his penis in me" and then, the following day, by leading questions from the Crown Prosecutor - - -

CALLINAN J: Not objected to?

MR TEHAN: No, and it should have been. It should have been.

CALLINAN J: Well, perhaps the decision was taken not to object to them because it might have been thought that the evidence would clearly emerge with a non-exceptionable question and that the way in which it did emerge on the basis of the leading question was likely to be much less damaging to the appellant. That is the way it struck me, that it might have afforded a platform for criticism in an address to the jury of the evidence. There may have been a very deliberate decision taken not to object to the form of the question.

MR TEHAN: It is just that her evidence the afternoon before seemed to be so genuine that - - -

KIRBY J: I suppose you are entitled to say that may well be so, but that does not relieve the judge of the duty to properly instruct the jury as to what they are to make of it.

MR TEHAN: There is that aspect to it, yes.

CALLINAN J: There is that aspect, but that is entirely different from the question whether we should regard counsel for the appellant as having in some way been remiss for not objecting to what is a leading question. He may have had a good tactical reason not to do so.

KIRBY J: You did say it should have been objected to.

MR TEHAN: I did say it should have been. On reflection, your Honour, I withdraw that. There may have been a tactical reason.

CALLINAN J: I can see why there might have been.

MR TEHAN: I would concede that, your Honour. At page 275 of S v The Queen, Justice Dawson said at point 5:

True it is that evidence of acts of intercourse other than those charged may have been admissible as similar facts of sufficient probative force to warrant their admission in evidence. I attempted to explain in Harriman v The Queen that when such evidence is admitted in a case of this kind its relevance is said to lie in establishing the relationship between the two persons involved in the commission of the offence, or the guilty passion existing between them, but it is in truth nothing more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission. Obviously that high degree of relevance can only occur where the evidence of propensity is related to a specific offence upon an identified occasion. If no occasion is identified, the necessary relationship cannot exist. In this case, where there was a failure to identify the occasions upon which the offences charged took place, the whole of the evidence was, in effect, evidence of propensity which could not be related to the offences charged because of the lack of identification of those offences.

All of that is exactly the case in our case. The difference is that here we do have an offence. We have an offence of maintaining a sexual relationship, the actus reus of which is one plus two. Our submission in short compass is that where you do have that offence, keeping in mind the statements that I have just read to the Court, the price that one pays for an offence such as this when it is on a presentment with other charges is that a propensity direction must be given. That is in short our submission.

HAYNE J: If that submission is right, Mr Tehan, is it a submission that necessarily applies in any presentment alleging multiple counts of specific sexual offending - that is, any presentment even without a section 47A count?

MR TEHAN: There are statements from appellate courts around Australia which differ on that issue. Most of them tend to suggest that propensity warnings are not necessary in every case.

HAYNE J: Because it seems to me to follow from the content of your submission that it is one which applies inevitably to every multi-count presentment, that a jury must inevitably be charged, "You may not reason from conclusion of guilt on count 1 that it is the more likely that the accused committed count 2."

MR TEHAN: It is the type of person, "If you are satisfied of that sexual conduct the subject of count 1, that he is the type of person who committed count 2."

KIRBY J: I wonder if you have to go as far as that given that different sexual offences may be of a significantly different kind, but as I understood your submission, the relationship aspect of this particular offence which sounds the alarm bells of propensity reasoning, and whatever may be the case in identifiable, specific and different sexual offences, requires, ordinarily, a propensity direction.

MR TEHAN: That is exactly what we say, your Honour, but in answer to your Honour Justice Hayne, we would say that the time has come, or will come, when this Court should say that in a multiple count presentment alleging sexual offences over a lengthy period of time, whether there be one complainant or many complainants, generally speaking, a propensity direction should be given. I mean, propensity evidence is admissible for limited purposes in relation to relationship or proof of guilty passion or to rebut a defence of accident. All those matters have been well recognised in cases such as Harriman and BRS, and all those sorts of cases. But we would say that where the evidence gets in under one of those limited heads, then the judge should tell the jury its limited use and alert the jury to not misusing it. The direction is not a particularly - - -

McHUGH J: This seems to come to an argument that in any case of multiple counts concerning the same class of offence, there should be a propensity direction. Supposing somebody who is charged with three counts of armed hold-up, does the judge have to give a propensity direction?

MR TEHAN: No.

KIRBY J: This is really inherent in Justice Hayne's question.

MR TEHAN: Well, it is, yes.

KIRBY J: It takes on a special colour with sexual offences.

HAYNE J: But why?

MR TEHAN: Because of the nature of the evidence which is presented in these types of cases.

HAYNE J: Yes, what is it about the evidence that - - -

MR TEHAN: It is often generalised evidence. It often concerns many acts over a lengthy period of time. It is quite different from the sort of evidence that you get in an armed robbery trial or a theft trial where you have identifiable instances and identifiable circumstances.

KIRBY J: Not necessarily.

McHUGH J: What about embezzlement cases? They are cases where evidence can be very prejudicial.

MR TEHAN: Yes.

KIRBY J: Some armed robbers have a technique, they just go down to the local petrol stations and hold them up, a balaclava, late at night, so, it may be in those cases a propensity direction may be required.

MR TEHAN: That is right. I mean, what is wrong with giving a propensity direction in multiple count cases.

HAYNE J: But, you have got 12 people in a jury box whose attention you are trying to keep and whom you are trying to instruct about so much of the law as they need to know to try the issues fairly. That is what is wrong with it.

MR TEHAN: To bring the matter back to this case, there would have been nothing wrong and everything correct, in our submission, with the judge giving a propensity direction in this case because of the existence of count 18 and because of the - and this is why I referred and I wanted to take the Court to the evidence in relation to the count because it is important, in our submission, to appreciate the need for the direction in the light of the evidence.

This was not a case, for example, like the Tasmanian case of Emery v The Queen [1999] TASSC 141; (1999) 110 A Crim R 221 where Emery was charged with the same offence that our client was charged with, and there was evidence given of seven identifiable acts. Emery involved this issue, where a charge of maintaining a sexual relationship is upon a presentment and it is the only charge upon a presentment, should a propensity direction be given? But one can pick up from page 223 of the report that the indictment in that case charged the appellant that over the period of one year there were:

six acts alleged were said to have occurred on five separate occasions -

at particular places and in particular circumstances. Now, the offence of maintaining a sexual relationship was obviously charged because of the uncertainty as to date and exact circumstances, although it is clear enough that some detail was given as to the circumstances. As I said, the case turned upon the question of whether or not a propensity direction was necessary in that case and his Honour Mr Justice Slicer who I think - no, he did not deliver the judgment for the court but he found that given the way the case was conducted that the defence, in effect, was none of this activity happened and that it was the only count on the presentment. There was no need for a propensity direction. Now, one might argue about the correctness of that, I suppose, in view of what your Honour Justice Kirby said, in particular in KBT.

KIRBY J: But I think you are trying to push the envelope, are you not? I do not think KBT said that a propensity direction had to be given in every case. Correct me if I am wrong.

MR TEHAN: No, it did not.

KIRBY J: So you are endeavouring to add to the lexicon of obligatory directions?

MR TEHAN: Yes. Yes, we are, but we rely very much upon what your Honour said in KBT (1997) 191 CLR 417 because we gain a deal of support, in particular from what your Honour said at page 432 of the report.

KIRBY J: Is not the starting point what Justice McHugh said in Pfennig? Is not the starting point to understand why the law is sensitive to the risks of propensity reasoning, and that was long before KBT. Well, it was before KBT.

MR TEHAN: Yes. The reason why KBT is helpful to us, though, is that it talks about the special dangers inherent in a case which is our case, that is where you have a section 47A offence coupled with other offences.

GUMMOW J: Where does the joint judgment talk about that?

MR TEHAN: At paragraph 2 on line 432.

GUMMOW J: I said the joint judgment.

MR TEHAN: There is a special danger - - -

GUMMOW J: In KBT.

MR TEHAN: In KBT.

GUMMOW J: Where does the joint judgment deal with this point you are making?

MR TEHAN: The Victoria judgment, the joint judgment. I am sorry, your Honour. I did not hear your Honour correctly. The joint judgment - - -

GUMMOW J: You say you get benefit out of KBT. I want to know what passage in the joint judgment you get it out of. That is what the case decides.

MR TEHAN: Yes. It did not deal with it, your Honour.

GUMMOW J: Exactly.

MR TEHAN: But, as I said earlier, we still gain comfort from the judgment of Justice Kirby.

KIRBY J: I do not think I was dissenting in that case.

MR TEHAN: What your Honour said is consistent with what has been said by this Court and your Honour pointed out to me in cases since Pfennig about the particular dangers associated with propensity type of reasoning. Now, I have been dealing with S and KBT and Emery in drawing a distinction between Emery and the evidence in this case. If I could take the Court to what the evidence was in this case at page 29:

Now, that occurred prior to your fifteenth birthday; is that correct?---Yes; before, yes.

That was a question in relation to count 17. This is at line 24.

McHUGH J: What page, 29?

MR TEHAN: Page 29:

Other than that occasion, in the six months prior to your turning 15, did anything else occur other than what you've told us about in relation to sexual activities with Mr M?---Did anything extra that I haven't---

Yes?---Yes.

What was that?---There's no specifics that I can remember. Everything - a lot of them were - I cannot remember anything that separates a lot of them from the rest because it was very repetitious.

What was repetitious?---Just the manner of him always inserting his penis inside me and having - continually having sex with me; inserting his fingers. It was very routine and very frequent.

So you're talking about sexual intercourse?---Yes.

And digital penetration?

GUMMOW J: Justice Buchanan referred to this passage, did he not?

MR TEHAN: Yes, he did, your Honour.

GUMMOW J: Perhaps you had better see what he said about it, seeing you are appealing against it.

MR TEHAN: He set it out and dealt with the submissions that we made to the court.

KIRBY J: Just a little factual matter that is probably irrelevant: how long after the appellant left the mother and complainant's home did the complaint get made to the police?

CALLINAN J: It was three years, was it not? I think the last allegation is in respect of 1992, is it not?

MR TEHAN: Yes, your Honour.

CALLINAN J: I think the complainant's mother arranged for a statement to be given to the police in 1995.

MR TEHAN: Yes, thank you, your Honour.

CALLINAN J: I am not sure when in 1995, but more than two years afterwards anyway.

KIRBY J: Well, that is enough. That is all I wanted to know.

MR TEHAN: Yes, thank you. I should say that KRM, this case, is actually reported now in [1999] VSCA 91; (1999) 105 A Crim R 437. Justice Buchanan set out at page 439 of that report the evidence that I was taking the Court to. The following day the witness was recalled and asked these questions by the prosecutor:

"[Complainant], towards the end of your evidence yesterday you were telling the jury that in the last six months before all sexual activity ceased there were occasions where sexual penetration and digital penetration took place and I think your words were `on numerous occasions' or `it was repetitious'?---Yes.

Do we take it from that, that it occurred on more than three occasions ...?---Yes.

... during that period?---Yes.

And does that relate to the sexual penetration?---Yes.

The penile penetration?---Yes."

So it just skipped over the line, accepting the correctness of the Court of Appeal judgment on the unsafe ground, in showing the three occasions. In the Court of Appeal there was argument as to whether or not they were the same acts and whether or not it was penile and digital and whether or not one act was sufficiently identifiable and then two further acts. Be that as it may, it was very, very non-specific. There was nothing about the three occasions which identified them at all other than the evidence that they occurred in the six month period after her 15th birthday. That was all there was.

CALLINAN J: There was no leave sought to cross-examine on the basis that the re-examination in any way went beyond the cross-examination or introduced new matter, is that not right?

MR TEHAN: No, this was in-chief, your Honour.

CALLINAN J: I am sorry, this was in-chief.

MR TEHAN: Yes, this was evidence-in-chief, and that is why I was trying to point out earlier that, really, on the afternoon when this matter arose, when the evidence was being led in relation to count A and B - - -

KIRBY J: But consistent with what Justice Callinan said earlier, leaving it alone could well be a very prudent course for counsel: first. because it avoids getting into specificities which may be damaging before a jury; but, secondly, because it may lay a trail for a KBT-type defence that there lacks the specificity which the law has interpreted in KBT requires.

MR TEHAN: That is why I withdrew my comment earlier, your Honour. I agree with that now.

KIRBY J: Cases like this are not always won on factual merits.

MR TEHAN: No, but the point that I am making is that there was nothing specific about the evidence and you had coupled with it the evidence of the complainant that the activity was routine, very frequent, repetitious, "him always", to use her words "him always inserting his penis inside me and having continually having sex with me inserting his fingers". Now, that is evidence of a highly prejudicial nature, in our submission. It was probably admissible in proof of the section 47A count in the sense that it went to establish one plus two as a minimum, but given its nature, the fact that it was so generalised and so prejudicial, we would say, it called for propensity direction.

KIRBY J: Do you have in your submissions footnoted where these provisions have been copied in the other jurisdictions that you told us of, or can you give us some reference to it?

MR TEHAN: We will, your Honour. I do not have them to hand at the moment.

KIRBY J: I have seen a list of them somewhere.

MR TEHAN: It is section 229B of the Queensland Criminal Code which seems to be the starting point and, anyway we will find the references to the others.

In our submission, as your Honour Justice Kirby said in KBT, there are novel features about this offence and they are immediately apparent.

KIRBY J: Is it an Australian unique offence or was it copied from something in the United States or England, or somewhere else?

MR TEHAN: I am not sure of that, your Honour. Would your Honour excuse me a moment?

KIRBY J: Mr Flatman may know this because he wrote that very good article in the recent Law Review.

MR TEHAN: Yes. Well, my learned junior did search through America and was unable to find a like provision in any of the American States but we have not searched Canada or England, I must say. I do not think my learned friend is able to assist on that score either. So that our submission is that the novel features of the offence itself, firstly, in that it allows - - -

KIRBY J: May I just interrupt to pick up a point raised earlier? In a sense, the remarks about the propensity direction in KBT which I added, were unnecessary to the decision because the fundamental principle of the decision was you have to identify the three; they have to be the same; they have to be in the period; and the jury must be unanimous within itself as to those three, and that was the holding, that is the ratio of the case. The remarks which I added were obiter in the sense that they were not necessary to the holding. The majority, the joint judgment, did not have to reach a view on the matter.

MR TEHAN: I agree with that, your Honour, but they are remarks which are totally empathetic with what this Court said in Pfennig, what it said in BRS, and what the majority said in Gipp. There is nothing controversial about the remarks. They are consistent with a line of authority over about the last 20 years and, indeed, even back into England if one goes back to what Boardman's Case in England and also Ball's Case, which I think was followed by Simm's Case, that line of authority that starts, I think, with Reg v Ball in England, all of what your Honour said in that paragraph is sympathetic with the statements of principle in those cases in other jurisdictions and in this Court.

Of course there is a special danger that the jury are going to go down an impermissible line of reasoning when you have an offence such as this which, as your Honour says, is, in effect, a relationship offence on a presentment with other charges. It is difficult to imagine a situation where the prejudice to an accused is any higher than a case like this and, in our submission, it does not matter that - one of the points raised against us and put against us, at least in the judgment of the Court of Appeal, is that it happened at the end. But as Chief Justice Hunt pointed out in Beserick, it does not matter that it is subsequent conduct.

McHUGH J: No, but ordinarily, the fact that a person is charged with a number of counts alleging similar offences is not, by itself, sufficient to require a propensity warning. The jury must be told that they are to convict the accused only on the evidence relied on in support of that count, but unless there is some special factor present, ordinarily, a propensity warning is not required. Now, accepting that, why should a propensity warning be required when, in respect of one count and one charge, there are three acts of a same or similar nature involved?

MR TEHAN: Because of the multiplicity of acts involved and because of the other evidence given in relation to that count which I have read to the Court.

McHUGH J: Leaving aside count 18 in this particular case, you were not entitled to a propensity warning in respect of the other 17, were you?

MR TEHAN: Not as a matter of law, no. As the law stands, no.

McHUGH J: Then why should you get a propensity warning in respect of the elements or the indicia of the 47A count?

MR TEHAN: Because of the nature of the evidence led in relation to that count.

McHUGH J: No, I am talking about generally. In fact, it seems to me, that it is very difficult to make out a case for a propensity warning in this case, even if, generally, it might be required.

MR TEHAN: With respect, your Honour, not so where the evidence of the complainant was that the conduct was very repetitious, very frequent.

McHUGH J: But you either believed her or you did not. If you did not believe her, that is the end of it.

MR TEHAN: That does not mean - with respect, your Honour, that - - -

McHUGH J: I could not imagine a juror saying to him or herself, "Well, I will take that into account and I will find him guilty of one act but I will not - and, so, because he is guilty of one act I will accept her evidence that this is repetitious".

MR TEHAN: Well, one is not to know the way a jury thinks.

KIRBY J: Our whole system works on the assumption, probably completely wrong, that jurors can work out these subtleties that they are directed and that they conform to the directions of law that the judge has given them.

MR TEHAN: Evidence of tendency or disposition or character, it carries with it - as I said earlier, the human condition understands that it is evidence which can be grossly prejudicial.

McHUGH J: No, but you have got to face up to what hitherto has been regarded as a fairly fundamental principle, namely, that if a person is charged with two or three similar crimes a propensity direction is not required. In a murder trial a person can be charged with two or three counts of murder, but you do not give a propensity direction ordinarily.

MR TEHAN: Well, maybe the time has come where you should.

McHUGH J: That is what it seems your argument is coming to.

MR TEHAN: There are plenty of judges who would.

KIRBY J: But, as I understand it, your argument says, well, that may be as it be, but you are not required in this case to push it.

MR TEHAN: We do not have to take the argument that far.

KIRBY J: You say that there are two elements here that required it: one, the relationship nature of the offence and, two, the high degree of non-specificity of the complaints of the complainant.

MR TEHAN: Yes, that is right. That is right, your Honour.

CALLINAN J: The summing up that the trial judge gave at page 324, I must say it seemed to me to be a very fair summing up to your client indeed and perhaps no less favourable to your client than a propensity direction would have been.

KIRBY J: This was the separate consideration direction. What is the case where Justice Callaway has said that that is to be distinguished from the propensity directions?

MR TEHAN: I am sorry, your Honour, I am just lost a bit.

CALLINAN J: I am sorry, it is quoted in the Court of Appeal at page - - -

KIRBY J: Yes, Reg v J.

MR TEHAN: Reg v J.

CALLINAN J: The passage from the summing up is quoted at page 324 in the reasons for judgment of the Court of Appeal. It is a convenient place to find it, I think.

MR TEHAN: Yes.

CALLINAN J: It seemed to me that on the facts of this particular case, it might have been more favourable to your client than any propensity direction would have been.

MR TEHAN: Not so, your Honour. A propensity direction would have gone further. It would have alerted the jury to the dangers inherent in this evidence that a finding of guilt in relation to count 18 was effectively a finding of an unlawful sexual relationship over a period of time and that they should not reason from that that the accused man was the type of man to have committed the other offences. It is the concentration upon the tendency aspect, the dispositional aspect, which is at the heart of a propensity warning and which makes it different from a separate consideration direction, and that is what Justice Callaway said in the case of Reg v J.

McHUGH J: Yes, I know, but if the theory of the common law is that the jury are to be trusted to decide the case without a propensity warning in respect of counts 1 to 17, it seems illogical to say that they cannot be trusted in respect of the three indicia or integers of count 18 in this particular case.

MR TEHAN: It was not just the three indicia though. The evidence concerning count 18 was not just the - I mean, that is what the actus reus they had to be satisfied of was. We know that. But it was the other generalised evidence that also, we say, calls for a propensity warning.

McHUGH J: But that was because that was the way the case was put. Supposing she said, "It happened on one occasion. I remember it was in the morning. Another occasion it was on a Sunday and another occasion it was on Saturday night after I came home from the theatre". Would a propensity warning be required in those circumstances?

MR TEHAN: That is our alternative argument, that if we lose on the first point, we say that in the circumstances of this case a propensity warning should have been given.

HAYNE J: Let us understand the chain of reasoning that is entailed in this, Mr Tehan. Propensity warnings have grown up, have they not, in relation to uncharged conduct? Is that right?

MR TEHAN: Yes.

HAYNE J: That is, evidence is before the jury. By hypothesis it has been admitted as being relevant to charged acts, though the evidence concerned is evidence of conduct in respect of which there is no charge; is that right? The jury are warned about taking evidence that by hypothesis is relevant to the charge they are considering and they are warned about the process of reasoning that they may lawfully employ. Here we, it seems to me, are in an altogether different field of discourse. We are not concerned with uncharged acts at all. We are concerned with evidence allegedly demonstrating proof of charged events. What more is the jury to be told than that there is a separate trial of each charge to be tried on the evidence relating to that charge and no more?

MR TEHAN: They are to be told.

McHUGH J: Yes, go on.

MR TEHAN: They are to be told of the two additional matters which I gave to your Honour an hour or so ago. Those are the two additional matters. We accept everything your Honour says, but we say the nature of this charge is so unusual and has been recognised as being so novel and must be seen as being so novel, given what this Court said in S v The Queen, that the price you pay, as I say, for having it on a presentment is you get a propensity warning because the nature of the charge is akin to - whilst it is, of course, a charge, the nature of the evidence given in relation to it is exactly the same type of evidence that might be given by way of uncharged acts or by way of relationship evidence. It is exactly the same; exactly the same. I mean, where it is tendered as relationship evidence, it does not lose its quality as being propensity evidence, as Mr Justice Charles recognised in the Reg v FJB and as the Queensland case that our learned friends referred us to of Knuth, as Mr Justice Lee recognised in that case where at page 14, he said:

Evidence which shows the existence of a sexual relationship must surely tend to show that the accused used to do the sort of things the subject of the charge. That is obviously the nature of sexual relationships; they are characterised by sexual acts driven by sexual desire. A desire to do something would seem to found a strong inference that the person who desires is likely to have a propensity. It is not far fetched to suggest that a jury might reason along these lines. If evidence tends to show that an accused used to behave in this fashion then it must surely be encroaching the borders of propensity evidence which is not admissible according to current authority.

This is a relationship-type offence. If it is correct, as your Honour Justice Hayne says, that propensity warnings are given in relation to cases where there is uncharged act evidence given admissible for a limited purpose, then, ipso facto, we would say that where you have a charged act such as this which is, in effect, a relationship offence, and the evidence is of the same nature and quality as might be led in relation to relationship evidence, then you ought to get a propensity warning.

KIRBY J: I think that is the third time you have said it.

McHUGH J: Is there anything further that you have to put?

MR TEHAN: I was just asking my junior, your Honour.

KIRBY J: No more corrections of those written submissions?

MR TEHAN: No more corrections, no more corrections. I did want to take the Court, if I might, to the case of R v J [1998] 3 VR at page 602, just finally. I want to take the Court in particular to the judgment of Mr Justice Callaway at page 641, and the issue that I am dealing with is what was argued by our learned friend in that case and his argument in that case was that in the case of charged acts, there is no need for a propensity warning because the evidence was led with a view only to conviction on the counts to which these acts related and his Honour dealt with that submission in these terms, at line 34:

The difficulty with that submission is that in both cases the evidence is admitted for a particular purpose, whether to show relationship or a guilty passion or to secure a conviction on some other count. In both cases there is a risk that the jury will use the evidence for an impermissible purpose. What was said by King C.J. in R. v Dolan, concerning evidence of criminal conduct other than that which is the subject of the charges before the court, could be applied to evidence of criminal conduct that is the subject of other counts, namely that "it is incumbent 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".

That, with respect, at least goes part of the way to answering what your Honour Justice Hayne put to me just a moment ago. In our submission, dealing in the context of the case with which we are dealing, it is really artificial to speak in terms of "Well, count 18 happened to be a charged act" The proper approach should be to examine the nature and the quality of the evidence lead in relation to count 18 and we would say that invariably the evidence in relation to such a count, a section 47A count, will be of such a nature that it demands a propensity warning. They are our submissions, if the Court pleases.

McHUGH J: Yes, thank you, Mr Tehan. Yes, Mr Flatman.

MR FLATMAN: May it please the Court. This appeal narrows down to one issue involving two concepts, whether or not a separate propensity warning need be given by a trial judge in the circumstances of a multi-count presentment where a separate trial or separate count consideration has been given by the trial judge. The starting point, in our submission, is a consideration.

KIRBY J: What is the second concept? The first one is whether there is a difference between the multi - - -

MR FLATMAN: Yes, and the second concept relates to whether it is different with a section 47A count on the presentment.

KIRBY J: That is the only one we have to concentrate on, is it not, because that is the only one before the Court?

MR FLATMAN: It is, but they overlap in the sense that my friend developed his argument and it is my submission that the considerations apply to both but I am happy to narrow it simply to the question before the Court.

KIRBY J: The way of the common law is to deal only with that which it has to deal with.

MR FLATMAN: Yes, your Honour. The starting point, we would say, is a consideration of the dangers involved in propensity reasoning.

KIRBY J: I think it is fair to say that one way of testing the appellant's proposition is to see where it leads. Does it lead to, in logic, an obligation to give such a propensity warning in every multi-count - - -

MR FLATMAN: We would say that is the logical consequence of his argument, for the reasons set out by his Honour Justice McHugh, that there is little difference between 17 acts contained in 17 counts and the one count involving repetitious acts.

KIRBY J: The argument, on the other hand, is that a jury could say, "Well, let us start with the relationship because that is a broad empire and, yes, we think there was a relationship and we have the three counts, therefore, you did all the others". That is the risk, and that is the risk to which a propensity direction - - -

MR FLATMAN: Yes. That is the risk that they would disregard the separate count direction and that somehow - - -

KIRBY J: No, that they would start in a different way.

MR FLATMAN: Well, they still are faced with the separate count direction and I come back, perhaps, to the crucial issue about the dangers of that kind of propensity reasoning. It is necessary to have a look at the history of this line of reasoning. It is true that courts have been vigilant to ensure that juries do not embark on propensity reasoning and inferred guilt from the character and tendencies of the accused. But, traditionally, the dangers that the courts were concerned with was this danger of arguing or reasoning from predilections of the kind envisaged in Pfennig.

The authorities quoted are consistently the authorities of De Jesus, Sutton, which involve complaints by third parties. The other case is BRS, which involved evidence by another witness. The case that is quoted in the line of argument in the case of J is a case of T in Victoria, again, involving a presentment where allegations were made by different complainants. The danger of propensity reasoning in those circumstances is much greater because there is the danger that the jury would reason that the particular accused had a tendency or predilection towards that kind of behaviour because it comes from separate sources.

It is different, again, from the case of B that was in the High Court in relation to an accused who had a prior conviction for indecent assault with his daughter and that was introduced into the evidence by the defence on the basis that it was relevant to the defence, but the fact is it was an established fact in that case that the prior conviction existed so that it was not an allegation coming from the one source that was contested. The other line of reasoning, of course, or the most important line of reasoning, is that in Pfennig itself which was about evidence that the accused man was a child molester.

McHUGH J: But is there not a more relevant line of cases and that is the Boardman-type case where the accused is charged with offences against a number of persons but the jury may be directed that they can take the evidence in respect of one count into account in respect of other counts provided certain conditions are met. Now, is it usual, however, in that class of case for the judge to say, "But if you are not satisfied that there was a striking similarity" and so on, "then you must not use that evidence"?

MR FLATMAN: If the argument is based on a similar fact line of reasoning then clearly the judge has to direct that if you are not satisfied in that respect then you cannot follow that line of reasoning.

McHUGH J: Yes. Well, is that not the more relevant line to 47A - - -

MR FLATMAN: Well, the line of reasoning - - -

McHUGH J: - - -because it is a charge-type act in the Boardman-type situation as well as in 47A?

MR FLATMAN: But the danger of the propensity reasoning is far greater in the Boardman-type situation.

McHUGH J: Yes.

MR FLATMAN: It is our submission that, in fact, courts have perhaps overreacted to the danger of propensity in these kinds of cases because they usually do - historically, they involve a history of a relationship between two people, and whilst there might be technical reasons why juries are not satisfied on one or other of the counts in almost all of these cases it comes down to a question of credit.

McHUGH J: Yes.

MR FLATMAN: And it comes down to whether or not you believe one side or the other. I think what is remarkable is that in Longman's Case itself, which is the very first case, there was evidence of uncharged acts over two years. Nobody bothered about it. It had not become an issue in the courts at that time and what was concentrated in Longman's Case, or focussed by the argument, of course, was the question of the delay in complaint. But it has almost grown since then to be on the same footing as evidence from independent sources and it is nowhere near as dangerous, in our submission, especially the way that cases are conducted because the cases are invariably conducted in circumstances of whether you believe the complainant, generally, or you disbelieve her.

There may be cases where the verdicts are inconsistent and that might give rise to a different kind of appeal but, by and large, one can see why juries come to their verdicts with their multi-count presentment. Because of the need to be specific, very often they will not convict on all offences and give the accused the benefit of the doubt on the other.

But the cases that are constantly quoted as authority for this dangerous line of reasoning are Boardman and Sutton and De Jesus and BRS. The difficulty with that line of reasoning, in our submission, is that it is much more prejudicial because it is hard for the jury to shut out of their minds that there are other people complaining or that he did have a prior conviction for indecent assault, as was the case in B, or that he had engaged in inappropriate behaviour with another boy, as he did in BRS, so that it came from a different direction. But these cases consistently involve allegations by a complainant over a period of time and it does not make the complaint any more acceptable to a jury because she alleges five counts as opposed to three. The real issues as the advocates argue them before the courts are not about that kind of reasoning. It was very significant in this case that the matter was raised by the trial judge with counsel for the appellant at the trial and he said, "Does this come into uncharged acts?", and he said, "No, it's covered by count 18".

McHUGH J: I accept the force of what you say about these cases turning to a large extent on credit, but nevertheless we cannot close our eyes to the fact that juries will convict on some counts and acquit on others - Jones in this Court where we set aside the verdicts on the ground of inconsistency being a recent illustration in this Court. So, important as credit is - and no doubt it is decisive in most of these cases - the fact remains nevertheless that there are cases where it is possible that by propensity reasoning the conviction will be just pushed across the line, in effect.

MR FLATMAN: I do not shirk from that, your Honour. Mr Justice Buchanan, in the very judgment in this case, indicates that there may be occasions where such a propensity warning is desirable. It is always the situation that an accused is entitled to a direction that might avoid a perceptible risk of a miscarriage of justice, but that has to be gauged very much on the circumstances of a given case. There could easily be one count that involves a particularly repulsive set of circumstances which just by the allegation has the danger of developing some kind of bias. If that were a case - - -

KIRBY J: All of these cases, of their very nature one would think, are going to be repulsive to many jurors, if not all. They are relationship. They are misuse of power and trust. They are generally within a family context and they are between a mature person and a very young person and therefore, the whole nature of the offence is one which has dangers of repulsion in it.

MR FLATMAN: But that can be easily the subject of the general direction given by the trial judge about not to be affected by the nature of repulsion. There is a famous situation of a trial in Ballarat before Judge Kelly and they were calling for jury exceptions in a rape case and a juror wanted to be excused because his reason was, "I'm against rape". The judge said, "Well, we all feel a bit that way but the question is not whether we're against rape, but whether he did it". Really, that is the answer.

The courts have to deal with repulsive allegations, certainly, in terms of all kinds of crimes. It was suggested that this is a little bit like - I mean, multi-counts on a presentment, for example, can be armed robbery or it could be embezzlement and one of the other ones that really does arise is drugs. The number of times you have a multi-count presentment involving trafficking in amphetamine or cocaine or heroin or marihuana all on the same presentment. That is an area of criminality that would excite repulsion.

McHUGH J: What about in a case say similar to Knuth, the Queensland case in 1998 to which we referred, where there is some corroboration of one of the acts where the sister saw one of the acts going on? Would you require a propensity direction in that sort of case, whereas there are three acts that have to be proved but there is corroboration in respect of one of those acts?

MR FLATMAN: That gets into a very difficult area for a trial judge because, of course, we argue here that the degree of probative value and the degree of prejudice in count 18 is slight. The more prejudicial the evidence, the closer it gets to having a higher probative value. It will depend on the individual case but the difficulty about having some independent evidence supporting the sexual activity between an accused and a complainant, the more likely that is to be admissible and to be admissible from the point of view of showing an unnatural sexual attraction.

Your Honour might remember the case of Arundel which was a case on special leave where the accused man had given a record of interview, a man of 45, who indicated in an extraordinary way that he actually had a sexual attraction to this ten-year old girl and that he "loved her". It was argued, I think, by Mr Tehan in that case that that was propensity evidence and needed a warning. Well, you could hardly give a warning about it as being propensity evidence because it was extraordinarily damaging evidence from the point of view of showing the probabilities are that this man did have a relationship with the girl.

The cases also talked about the artificiality in some situations of giving a propensity warning where the evidence is admissible to show guilty passion because it overlaps a little bit with this whole conceptual approach that if a person can be shown to have a guilty passion for a complainant, that, in itself, really is a propensity with that complainant. To tell the jury, on the one hand, that they can use it for guilty passion, but then to warn them that they should not reason that because he had that guilty passion that he had a tendency to engage in activities with children, becomes a terribly difficult thing to put to a jury.

It is the sort of thing philosophers could argue about and that is the difficulty, we would say, with this approach. It should not be forgotten that this trial judge took over a day to charge the jury. He started it on a Thursday night, he charged it all day Friday and he charged it until 11 o'clock on the Monday, and he - - -

KIRBY J: That cuts both ways though, in a sense. I mean, I do take the point that one of the reasons for these very, very long charges endeavours to dot the i's and cross all the t's that are established by this Court but, on the other hand, the marginal cost of a propensity warning in a day and a half's charge is four minutes, three minutes.

MR FLATMAN: I do not disagree with that line of reasoning, your Honour, but I am saying that here is a judge, a very experienced criminal judge in Victoria, judge of criminal trials in Victoria, who charged the jury for over a day, addressed the concerns of the appellant in this case very strongly - he gave a Longman warning. He also gave a warning that you have to be careful about deciding it on oath. It is not a question of who you believe but rather, at the end of the day, whether the Crown has proved its case beyond reasonable doubt, which is a very fair warning to be given.

He went further and gave a specific warning in relation to section 47A, count 18, saying that the appellant was put in a much more difficult position to defend that particular case. He gave a specific warning on propensity in relation to some evidence about the girl parading in lingerie, which was a true situation of an uncharged, not crime, but unsavoury aspect of the evidence that might have been used against him.

KIRBY J: Can you give me a reference to that?

MR FLATMAN: I can give your Honour references - - -

KIRBY J: And he also gave the specific warning about separate consideration.

MR FLATMAN: Yes.

KIRBY J: The general direction in that.

MR FLATMAN: Your Honour, can I say this. He gave the Longman warning at page 228. At page 234 he gave a warning about the danger about just setting oath against oath and deciding who is lying and not. At page 277 he gave a further warning about the specific unfairness in the lack of specificity of count 18 and at page 292 he gave a propensity warning regarding lingerie.

CALLINAN J: Mr Flatman, the trial judge directed them that they had to be satisfied beyond reasonable doubt as a separate matter in respect of count 18 of the maintenance of the sexual relationship during the relevant period.

MR FLATMAN: Yes, he did.

CALLINAN J: And I think Justice Buchanan thought that that was unnecessary. But there is no issue about that in this appeal, is there?

MR FLATMAN: There is no issue, as I understand it, in this appeal.

CALLINAN J: What is the position on that?

MR FLATMAN: As a matter of law?

CALLINAN J: Yes.

MR FLATMAN: Certainly Justice Buchanan and the Queensland courts have taken the view that the case of KBT is authority for the proposition that all that is required is to prove the three acts.

CALLINAN J: Proof of the three acts during the period.

MR FLATMAN: Judges in Queensland have raised some queries in relation to that for the contradiction that might arise if the Crown were to put it on a presentment, for example, and the three acts were in one day or on two days or in isolated occurrences, and one of the judges in one of the judgments suggests that it might well be a matter that ought to have further legislative attention.

CALLINAN J: Anyway, I do not want to take up time on it.

MR FLATMAN: I think it is a very real point of concern. It is not really raised by these grounds of appeal. Just for clarification, can I add this, that in Victoria we have a rider in our legislation that it cannot be put in a presentment without the approval of the Director of Public Prosecutions, which is why we have had so, I think, relatively fewer cases. We have statistically around about four a year. So that at least we would not have that problem in relation to that kind of fact situation if the discretion was exercised appropriately.

KIRBY J: I accept that there is a protection at the gateway. I accept that the trial judge is experienced. I accept that he gave all of these admirable and necessary and proper warnings. But that does not meet head on the appellant's contention before this Court. The appellant says, "I'm entitled to a trial according to law." This is a very peculiar offence. I can only really think of consorting as something similar to it and that, because of its peculiarities, there is a risk of it becoming the focus of lay consideration and then reasoning backwards. "All I ask is in a one and a half day charge, a four minute direction on propensity". The judge can add this to his wonderful collection and then it will all be perfect and we can all go home.

MR FLATMAN: Your Honour, I have a horrible feeling that there would be another ground of appeal because there could yet be another direction that might be more favourable to an accused in a given situation that might be more desirable to be given, and we would discuss then whether or not it would hurt the judge to do one more time. Can I say in answer to your Honour's point that the only cases your Honour can immediately think of are cases like consorting, certainly, as was pointed to in KBT, the continuing offence of drug trafficking is one of the kinds of cases where the behaviour is put over a broader span.

Giretti is one of those cases. It is referred to in the list of authorities that I have given the Court and it is significant that that was a case involving dealing with drugs from a massage parlour involving a series of girls who were witnesses. Many of those, of course, could not give specific times but simply said, "We were paid in drugs and we were paid regularly," and it was part of the factual situation. It does not provide a problem in relation to those kinds of counts.

The other cases where it might arise is in questions of conspiracy. Certainly, there can be cases where there can be different conspiracies arising out of one transaction. There can be a conspiracy, for example, to import drugs into Australia over a long period of time but they may involve different people, so they might form subgroups of conspiracy. I can think of one case in which there were 12 different counts of conspiracies. There can be overt acts that are alleged as part of those conspiracies, not all of which have to be proved to prove the conspiracy. S v The Queen - - -

KIRBY J: There was some discussion in cases where - you know in the Customs Act where it talks of "the added component of the offence" where the person has a prior conviction and how that can fairly be tried and there is at least some suggestion, I think, in the cases that the jury's verdict on the first part should be taken first and then to introduce the prior conviction if it is not admitted, that that can come in at a second stage of the trial.

MR FLATMAN: Yes.

KIRBY J: It just occurs to me that may it not be a rule of fairness that this relationship question be tried as a separate matter in order to make sure that the ordinary rule of particularity is observed, the 17 counts, and that the relationship matter is then dealt with consequentially.

MR FLATMAN: It would be my submission that that would be entirely counterproductive to both parties.

KIRBY J: Well, you point out in your article that the whole point of the section, I think, was to cure and allow the offence to be laid frankly before the jury so that the jury can determine not on the basis of uncharged acts but on the basis of a charge and that was the purpose of Parliament.

MR FLATMAN: Yes. And, funnily enough in this case, we are able to put all the complaints in the form of legitimate counts so that all the criminality is covered by the counts. It is the history of all of these cases that it does involve a course of conduct, and there are difficulties in accused dealing with specific charges when they are historically some time in the past, but that, in our submission, does not stop the parties joining issue with what the trials are really about. You do not have to prove an alibi on a given occasion.

We see a lot of cases, and the courts have seen them coming on appeal where complainants have been well cross-examined about the probabilities of their behaviour, having regard to the surrounding circumstances. They are, really, continuing offences and they can be well dealt in circumstances - in fact the wider the span, in many cases, the more the opportunity there is to provide some kind of an alibi because if the witness puts it in an extremely wide ambit an accused is in a position to say, "Well, at least for that period of time I was away. I was working somewhere else", and there can be independent evidence brought.

Our system of law depends upon an adversarial system and a witness coming forward and being cross-examined and tested. In these jurisdictions the witness have to give evidence, or usually give evidence, before a committal proceeding and then give evidence in a trial. They have usually made statements to the police - always they have made statements to the police - and the way in which their evidence has come to light is thoroughly explored for discrepancies.

The case of J which has been referred to in the course of this argument, the victim in that case was in the witness box overall, including two trials, for a total of 28 days. That is the high-water mark of this kind of cross-examination.

Now, courts are about being fair to all parties and it is our submission that the introduction of sections like section 47A, whilst immediately we might see it as being out of kilter with the traditional approaches to the law, it makes a lot of sense. Anybody cross-examining a person with these kinds of allegations is going to inevitably bring the whole story out. It is very hard to talk about any of these things in a vacuum. Indeed, that was the very point made in Wilson's Case in terms of the history of relationships between a party in a murder situation.

In this case, these events in count 18 were relevant. It led up to a part of the cross-examination concerning the appellant's desire to renew his relationship with the girl in October 1992.

McHUGH J: Well now, I think this is a very long answer to Justice Kirby's question. Where are you in terms of your argument?

MR FLATMAN: I apologise, your Honour. Perhaps it is something I have been wanting to say.

KIRBY J: Please do not make it 28 days.

MR FLATMAN: I think it has changed in terms of it would not hurt the judge to give that extra propensity direction.

KIRBY J: It was marginal cost in time that I was - - -

MR FLATMAN: It was marginal cost in time and I probably answered it in the first few sentences rather than the next hundred.

McHUGH J: Now, where are we in your argument?

MR FLATMAN: - - - in terms of there will always be a further warning. The trial has to be fair to both sides. The appellate system ought not to be used as a system and I think I have quoted the cases of your Honour in BRS and Demarco in Victoria of simply trawling through the material and trying to find something that could have been done in a better way. The answer to that, in our submission, is it is perfectly catered for in the separate trial and the separate consideration direction.

McHUGH J: Could I ask you for your assistance on this point? The argument in this case has been directed to propensity reasoning, but in some cases, rather than it being propensity reasoning in the proper sense, it may be what some people, including myself, have called improbability reasoning. There may be a series of coincidences pointing to the guilt of the accused which do not establish propensity but the combination of them in respect of the three or more facts would indicate a high probability of guilt in respect of those. Now, have you anything to say about whether a special warning is required in that sort of situation?

MR FLATMAN: If it is probability reasoning, in the genuine sense envisaged by Hoch and that line of cases, it would be our submission that that is admissible and probative in its own right.

McHUGH J: Yes, that seems to me to be - that you would not require - - -

MR FLATMAN: You would not want to go any further, in our submission, because you are really then moving towards such a fine philosophical point that it would confuse the jury.

McHUGH J: Yes.

MR FLATMAN: Indeed, it is our submission that part of the problem with all this is there is a danger of confusing the jury and there is a danger of distracting the jury. This case was about the admission by the accused to the complainant's mother. That is the most dramatic piece of evidence in this case and the defence - - -

McHUGH J: Plus the overdose.

MR FLATMAN: Plus the overdose which followed, and then the snib on the door, but they are all related to that particular area, and the focus of counsel for the appellant at the trial was clearly on that. For the jury to sort of go off then in some other avenue of reasoning would be almost insulting the Crown case.

KIRBY J: But the logic of these submissions is that you do not require any of those careful directions except, perhaps, the beyond reasonable doubt direction of the judge. I mean, you cannot take these generalities too far. Our system works on the assumption that jurors obey the instructions of the judge and that judges have to give certain instructions.

MR FLATMAN: Well, of course, we say that if the jury obeys - - -

KIRBY J: You say keep them to a minimum. Leave it to the wisdom of the judge in the particular case.

MR FLATMAN: Very much to the judge in the particular case, and the significance - I appreciate the point made that very often exceptions are not taken at trial, but if there is a direction that has to be given, that is not fatal.

McHUGH J: It has to be faced up to that no matter how the criminal case may be conducted, experience of trials, particularly in country towns, one gets feedback that the juries approach the matter on another basis, legitimately, but which was not really the basis upon which the case was conducted either by the Crown or by the accused.

MR FLATMAN: But then there is a recent New Zealand study, I think, on juries, which indicates great fidelity to the charge and it was a very encouraging survey, I would have thought, from the perspective of courts having confidence that juries will follow their directions.

McHUGH J: Yes.

MR FLATMAN: I agree that we have to accept that juries follow the directions. The directions were given here. The directions were that you consider each count separately; the evidence appropriate to it; and that you do not reason, because he is guilty on one count, he must be guilty on another, and that is the end of it, we say, and there is no need to go any further.

CALLINAN J: Mr Flatman, the direction that the appellant says should be given, I think, is in the fifth paragraph of the annexure to his submissions. That is, I think, the propensity direction that he says should be given. Is that correct? I think the other matters in his proposed form of direction really relate to count 18 itself. It think that is so.

MR FLATMAN: Yes.

CALLINAN J: It is the fifth paragraph. Now, if one goes to the extract from the trial judge's directions which appear at page 324 in the Court of Appeal's reasons, it is a convenient place to find it, and I am having a little difficulty myself in seeing any significant difference between the second paragraph of the quotation on page 324 and the fifth paragraph of the proposed form of direction, except that the latter refers in terms to counts 17 and 18. But at the moment, I am not satisfied that the substance of everything that is said in the fifth paragraph of the proposed form of directions is not captured by what his Honour said in that second paragraph that is quoted there.

McHUGH J: It may be the distinction is in the words he was "the kind of person" who had done so on other occasions charged, as opposed to what appears at 324 in the sense that you do not automatically find guilt from one conviction - you do infer guilt from the fact that he has been guilty of one count. Perhaps that is the distinction that is drawn.

MR FLATMAN: Yes. There is a subtle distinction between the two because that also - - -

CALLINAN J: Are there any other differences, do you say, apart from the one that the presiding Judge has identified?

MR FLATMAN: I do not believe my friend argues that there is any other difference. I think he comes down to the issue that you have to go further than the separate - - -

CALLINAN J: So on the second ground of appeal, it really comes down to a contention that language of the kind to which the presiding Judge here has referred should have been used.

MR FLATMAN: The language of the kind in the draft charge.

CALLINAN J: Yes, the only factor seems to be that you should have said something to the effect that "do not reason because of the other matters that he is the kind of person who would have committed one or more of the other 17 offences".

MR FLATMAN: Yes. Of course, we are well aware of the fact that that is two-edged. Indeed, Mr Justice Southwell specifically referred to that in the case of T when he said, "We don't want to use the word `propensity', for example, because that might draw the jury down that line of reasoning". It is a very two-edged thing, especially in a case like this where it was such a small part of what the case was really all about.

KIRBY J: What was that case of Justice Southwell?

MR FLATMAN: T, (1996) A Crim R 293. He referred to the fact that we should be careful about using the word "propensity" because it might encourage them down that path.

KIRBY J: Do you have any other comment on the draft, assuming that one is inclined to think that a direction should be given? Do you have any objection to any of the words in the direction except to say that it is not obligatory; it is something which must be judged in a particular case? Is there an error in that direction, as distinct from in your submission in this case and lack of necessity?

MR FLATMAN: I do not think I can say that there is an error in the terms of what it is seeking to do except that I might say that if it is dangerous to infer from a series of repetitious acts in count 18 that he must be guilty of counts 1 to 17, it also ought to be equally dangerous to go from counts 1 to 17 to infer the relationship in count 18. My learned friend's charge does not say that that is necessary, which might have occasioned another ground of appeal should my learned friend's charge have been given in the form that he suggests to the jury.

KIRBY J: We are back to that he is meeting a particular charge his client faced which had its peculiarities and he is trying to deal with that particularity.

MR FLATMAN: Yes.

KIRBY J: But you raise a logical flaw.

MR FLATMAN: I think that defines the area.

HAYNE J: Was the trial conducted in a way in which particular attack was made upon the adequacy of proof of particular counts?

MR FLATMAN: No. The cross-examination was directed very much to the way in which the matter came to light and the way in which the girl complained, the way in which the matter was brought to the attention of the police, and there was an issue about a particular tape recorder. The cross-examination was directed across all of the counts to the improbability of them occurring without other people having seen. There were a number of counts in the house in which it was suggested that the other brothers might have been there, and there were a number of counts in bushland and out in remote areas around Traralgon South and Tyers and that people might have come across them.

HAYNE J: But it follows, does it not, given that form of conduct of the trial, that it would have been open to the jury to conclude that some counts had been proved but not other counts had been proved? That would not be a perverse verdict.

MR FLATMAN: It would be difficult to follow, your Honour, in the light of the fact that this is a case that depended so much, from the Crown's point of view, on the evidence of admissions made to the mother and then the mother taxing the girl about it and the girl then becoming quite distressed about the fact that it had come to light.

The cross-examination focused very much on the area of dispute about whether he had admitted that he had been molesting her because there was a complaint back in 1986. Back in 1986 the mother let it go. He is said to walk in and say, "I think she might be going to make allegations against me". The mother says, "You've been doing it all along". He said, "I confess. I am sorry." She then went and told the daughter and the daughter immediately became distressed and again she apologised. That was a very critical part of this trial.

HAYNE J: No doubt that loomed very large at trial and I can imagine, I think, a case in which you could say that the trial was conducted as all or nothing.

MR FLATMAN: Yes.

HAYNE J: But it seemed to me, at least at the moment, that this was not a case where you could say it was all or nothing, that there could be differential verdicts.

MR FLATMAN: I think there could have been an argument, certainly put by counsel for the appellant, actually in relation to count 18. You could put the argument in relation to count 18, "Well, look, you have to be satisfied beyond reasonable doubt about these matters." It might be a good reason why you would leave it alone forensically because you could go to the jury and say, "You've got to be satisfied beyond reasonable doubt about count 18, this is all she said and you saw how hard it was to get out of her. Maybe you've got a doubt about that." They are always possible. I mean, the fact that the jury acquits on a count does not mean to say they disbelieve a complainant.

HAYNE J: No, no.

MR FLATMAN: But rather they are not satisfied beyond reasonable doubt about all the features, yes.

McHUGH J: Now, where are you?

MR FLATMAN: I have not actually faithfully followed my outline of argument but I believe that I have covered the areas in it. I really think, given the scope of the grounds of appeal, that the arguments I have addressed to the Court, both in oral argument and in the outline of argument, cover the areas that I want to put. My junior might have other ideas, your Honours.

The matter that I was asking for some clarification on was whether or not these offences existed overseas. We are not able to find any in the inquiry that was made this morning. In Tasmania, Queensland and Victoria I understood that there was law of a similar kind but not in the common law countries, but relating to cases where the civil law system applied, but I do not have the details of that. They are the matters.

McHUGH J: Thank you, Mr Flatman. Yes, Mr Tehan.

MR TEHAN: Your Honours, our researches this morning indicate that this section was first introduced into Queensland by section 229B of the Queensland Criminal Code in 1989. In Victoria section 47A was introduced into the Crimes Act in 1991. The relevant section of the Crimes Act in the Northern Territory was section 131A, it being introduced there in 1994. It was also introduced in 1994 into section 125A of the Tasmanian Code and in the same year into the Crimes Act in South Australia, section 74. Then, in New South Wales - it must also be the Crimes Act, I think, in that State, it was introduced in 1998 and the section is section 66EA.

Your Honour Justice Callinan raised the issue of the course of conduct, and I appreciate that is not a ground of appeal. There was some argument about that in the Court of Appeal. What was said about that issue in the Court of Appeal was this, that the direction the judge gave was unnecessary in view of what the High Court had said in KBT.

CALLINAN J: No, that it was unduly favourable to your client.

MR TEHAN: But he said it was unduly favourable to our client. We would submit that absent a propensity direction that position cannot be maintained. The jury having found our client guilty of count 18 it means that they found him guilty of an unlawful sexual relationship with the complainant over a period of six months and it is relevant in that context to point out that the time period of that count, count 18, and I should correct the second-last line of paragraph 5 on page 3 of the annexure. It says count - - -

McHUGH J: It should be count 18.

MR TEHAN: Yes, it is count 18 not count 10. But, that count traversed a period of time which was the same time period covered in relation to counts 9 to 17 upon the presentment. So, in relation to at least half the specific act counts you have the same period of time, you have the same allegations, digital and vaginal penetration, and you have a finding that there has been this unlawful sexual relationship over a period of six months. Now, we are not to know, the jury might have decided count 18 first off.

What is confusing - my friend says it would have been confusing to have given a propensity warning. There is nothing confusing about it at all. It is a simple matter of the directions that we have set out in the annexure and that I gave to your Honour Justice Hayne at the outset of this appeal. There is nothing confusing about it.

CALLINAN J: Do you say that there is anything other than the matter identified by the presiding judge that is different in your proposed propensity direction from what, in fact, the trial judge said? You remember, his Honour the presiding judge here, identified the words "he is the kind of person to have done so".

MR TEHAN: Yes.

CALLINAN J: Do you say that there is anything, other than that, which should have been said and which was not said by the trial judge?

MR TEHAN: Well, I must say this, that this morning I did raise - when putting it, I put it that the evidence should not be substituted for the evidence on the specific counts in order to convict him of those counts, but I would accept - - -

CALLINAN J: That is just another form - - -

MR TEHAN: That is another way of saying - - -

CALLINAN J: That is a formula that sounds closer to what the trial judge said than what you have in your fifth paragraph.

MR TEHAN: Well, that may be so, your Honour, but that is the first thing. That is the first thing, and that is generally what a separate trial direction is about. In other words, you deal with each count in relation to the evidence relevant to it. The second thing, that they may not reason that because the accused engaged in the sexual conduct the subject of count 18 that he was the kind of person who was likely to have done so on the other occasions charged, we submit, adds an additional element to what the judge said.

CALLINAN J: But that is the only difference to the one.....to identify the - - -

MR TEHAN: It is, yes. Yes, at the end of the day, that is the only additional element. Now, my learned friend spoke about fairness to both sides and particularly in the light of giving the history of this legislation. Could I take the Court to Reg v Kemp (1997) 1 Qd R 383 and, in particular, at page 397 in the judgment of the President, Mr Justice Fitzgerald, the judgment concurred in by the other members of the court, where his Honour said at line 14:

In an attempt to facilitate the prosecution and conviction of child molesters, the legislature has, by s. 229B, increased the risk of unfair trial and miscarriage of justice; in consequence, trial judges must be astute to ensure that their rulings and directions are scrupulously correct and that accused persons are tried fairly.

Then at line 35 his Honour - - -

GUMMOW J: What does "fairly" mean in that context? It seems a word lacking content.

MR TEHAN: It means that warnings which should be - well, in the context of our argument, we would submit, it should be interpreted as meaning that warnings, the warnings that his Honour later refers to, should be given where section 229B or, in this case, 47A count, is on a presentment. Our case is very similar to Kemp. It is almost on all fours with Kemp.

KIRBY J: Perhaps his Honour should have said, "in accordance with law".

MR TEHAN: Yes.

GUMMOW J: But everyone is entitled to that, hopefully, so I just cannot see what the point is being made.

MR TEHAN: Perhaps I will make the point by going on, your Honour.

GUMMOW J: No matter what the offence.

MR TEHAN: Yes.

GUMMOW J: Not just some offences, all offences.

MR TEHAN: Yes, and that carries with it that appropriate directions be given when they are called for.

His Honour continued to indicate at that page the difficulties that were inherent in that particular case, and then at page 398, line 50, having pointed to the sorts of problems that exist in a case where you have a maintaining sexual relationship offence with other charges - the same sorts of problems that your Honour Justice Kirby pointed to in KBT - said:

In my opinion, it was incumbent on the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong.

Further, the trial judge was required to direct the jury in clear, unequivocal terms that the complainant's generalised evidence could not be used by them in their evaluation of her specific allegations against the appellant except that, if they did not believe, or had a doubt about the credibility or reliability of, her generalised evidence, that was a matter to be brought to account in favour of the appellant in their consideration of the complainant's specific allegations.

We do not go so far as that. But the third matter was:

It was also necessary for the jury to be told that disbelief or doubt concerning all or any of her specific allegations was a matter to be considered, in favour of the appellant, when evaluating the complainant's generalised evidence.

Again, we do not go as far as that, but we do say that the first part of No 2 at the top of page 399 and the first matter at the bottom of page 398 are the sorts of directions that should have been given in our case.

McHUGH J: This seems like the introduction of new matter in reply, Mr Tehan. I think your opponent ought to be asked whether he wants to comment.

GUMMOW J: There have to be fair appeals as well as fair trials, you know.

KIRBY J: Especially here.

MR TEHAN: The other reference to Kemp is at page 401. Justice Davies again sets out the same directions that we are contending for in this case.

KIRBY J: Can I ask you: assuming that one were of a view that the little sentence, almost three little words, "of a kind", would desirably have been given, here is a trial which in its forensic realities was between the complainant and your client, though in the theory of the law it is the Crown having to prove, it is accusatorial. It goes on over all of the matters it did, the judge gives a very long direction and a sentence or two is left out. Could one not reach a view that this is a matter for the proviso in the realities of this particular trial? What is the proviso provision in Victoria?

MR TEHAN: I think it is in section 567 of the Crimes Act. It was not a case for the proviso in KBT - - -

HAYNE J: It is in fact 568, Mr Tehan.

MR TEHAN: Section 568, your Honour, I am sorry. It was not a case for the proviso in KBT.

KIRBY J: But that was a very important aspect of the section. This is the need to choose the same three, the need to identify them in a particular period, the need for them to be the same sort of sexual offence, the need for unanimity on it. That is the essence of the crime. Here is a mode of reasoning to the essence of the crime. I accept that it is important, but the question is whether the lack of that little element in this direction in the whole context of this trial means that your client did not get a trial according to law, lost a real chance of acquittal.

MR TEHAN: If a propensity warning should have been given, and we do not say it is just a matter of little words. Obviously the charge has to be fashioned to the case. As was said in Kemp, it was incumbent on the trial judge to in unequivocal clear terms make it apparent to the jury that they not engage in the impermissible process of reasoning. Our annexure is a suggestion charge in relation to maintaining a sexual relationship, but if the appellant was entitled to this warning because of the fact of this charge being on the presentment, then, in our submission, he has not had a trial according to law and the proviso does not apply.

McHUGH J: You seem to make separate points, do you, that there should have been a propensity direction in respect of each of the three integers of the 47A offence and there should have been a more general direction that you could not use the evidence or convictions in respect of count 18 in respect of counts 1 to 17?

MR TEHAN: We do. In the context of this case, the need for propensity direction within the context of the charge itself was probably unnecessary, in the context of this case because she just said it happened more than three times. It may have been necessary in the context of her further evidence that it happened continuously and repetitively and he was just sticking his finger in, that sort of thing.

McHUGH J: What do you mean at the bottom of page 2 of your annexure when you say:

This generalised evidence was given in the context of the complainant being unable to remember specific incidents. But you should not reason from this evidence that the accused was the type of person to commit any of the three acts - - -

MR TEHAN: Yes. That is exactly what I mean, that that is a direction in relation to the count itself.

McHUGH J: Yes. So you say the judge should have given a special direction in respect of count 18 but he should also have given a direction of a more general nature.

MR TEHAN: Of a more general nature.

McHUGH J: Based on count 18?

MR TEHAN: Yes, based on count 18.

McHUGH J: But can I ask you this? In relation to the direction in respect of count 18, the direction should have arisen by reason of the generalised evidence only and not by reason of the other 17 counts?

MR TEHAN: By reason of the generalised evidence only, yes, your Honour. I might say, as I think I did say earlier, that that argument where you have got a count - 47A on its own, you should have a propensity direction, was rejected by the Tasmanian Court of Criminal Appeal, but there, as I attempted to point out, you had six or seven specific incidents, you did not have this generalised evidence as you did in our case.

CALLINAN J: But, Mr Tehan, in respect of that submission, you have to deal with subsection (3), have you not:

It is not necessary to prove the dates or the exact circumstances of the alleged occasions.

Which makes it clear that it can be - that generalised evidence can be sufficient to prove the charge under section 47A.

MR TEHAN: No. That subsection means this, your Honour, that you do not have to prove the dates or exact circumstances of the three acts.

CALLINAN J: Yes, which means that there may be generalised evidence of the kind which was given here and that will be sufficient, if the jury accepts it, to prove the section 47A charge.

KIRBY J: I understood your submission to be that you still have to prove the three acts.

MR TEHAN: You have still got to prove the three acts, though.

KIRBY J: You do not have to prove the dates.

MR TEHAN: Yes.

McHUGH J: But why cannot a complainant, having regard to subsection (3) simply say, "He had intercourse with me on at least three occasions during a particular 12-month period. I cannot remember what the dates were and I cannot remember any of the circumstances. I just can remember him having intercourse with me".

MR TEHAN: Because, this Court said in KBT that you cannot prove the offence by a course of conduct. You cannot prove the offence by generalised evidence, you have got to prove the offence by one act, plus two further acts.

McHUGH J: But that proves three acts, if you accept it.

MR TEHAN: Well, whether it does or whether it does not has been litigated in the court below. There is nothing identifiable other than the witness simply saying, "It happened at least three times". That is all that - - -

CALLINAN J: But that is surely what subsection (3) contemplates, that possibility.

MR TEHAN: We would say that it needed more. You do not have to be exact about the date, you do not have to be exact about the circumstances, but you do have to have some identification of the occasion and it is not insignificant that the legislation has been amended to permit of lack of specification in relation to the occasion and we have set the legislation as it now is out in our outline, but as it stood at the time of our client's trial, or as was relevant to our client's trial, the lack of specification related only to two matters, the date and the circumstances, and we said in the court below that where you have got a witness who simply comes in and says, "It happened more than three times" then that is simply not good enough.

CALLINAN J: Well, does the complainant have to prove the place, does the Crown have to place at which it occurred?

MR TEHAN: They did in Emery.

CALLINAN J: No, that is not an answer to the question. Does the Crown have to prove the place and why is not the place one of the circumstances?

MR TEHAN: Well, it might be, your Honour.

CALLINAN J: Look, I am not concerned with what was said in some other court unless it provides an answer to my question. I mean, another court may have said you do have to prove the place, but I want to know why, what the reasoning is.

MR TEHAN: Because there has to be something. When the Parliament introduced this offence it was obviously aware of the risks of miscarriage of justice. That is what Justice Fitzgerald said in Kemp and what Justice Kirby said in - - -

CALLINAN J: No, look please, could you give me an answer to this question? Why is not the place of the occurrence of an unlawful act a circumstance of the occasion of the unlawful act?

MR TEHAN: I am not saying it is not a circumstance.

CALLINAN J: Well, if it is not, why do you have to prove it, or, indeed and further, why is a place any different from any other fact or matter constituting the circumstance of the alleged occasion?

MR TEHAN: I am not saying that, your Honour. What I am saying, however, is that you have got to prove the occasion. There has to be something identifiable about the occasion and here the evidence was as minimal as it possibly could be. It could not be any more minimal than it was. It did not get over the barrier on the first day and to simply say it happened on more than three occasions, in our submission, was enough but that is, as I say, not what this appeal is about.

What I was attempting to say was that this Court in KBT and the court in Kemp recognised that Parliament had recognised the very real risks associated with this type of provision. That is why they legislated for the requirement that one offence be proved and two further offences of the same character be proved.

Now, in our submission, a finding in relation to a section 47A count adverse to an accused is necessarily a finding of an unlawful sexual relationship. That must have been the finding of the jury in this case. Where you have evidence pertaining to that count concerning similar acts of sexual misconduct as are the subject of specific counts on the presentment, and where you have the time periods and places overlapping in relation to specific counts on the presentment, the prejudice of an impermissible line of reasoning being adopted by the jury is very high.

McHUGH J: Yes, but this just seems to me a repetition of your argument in-chief. Correct me if I am wrong, but you do not seem to have specifically dealt with any of your opponent's arguments, maybe because you had already dealt with them in-chief. You seem to be having another argument.

MR TEHAN: Well, I was attempting, your Honour - - -

KIRBY J: Which we have been listening to with saintly patience.

MR TEHAN: I was attempting, your Honour, to deal with the argument put that there needs to be fairness to both sides and it would be confusing to the jury. In our submission, there would be nothing confusing about putting a propensity warning at all. If the Court pleases.

McHUGH J: Yes. Mr Flatman, do you want to say anything about Kemp?

MR FLATMAN: Very briefly. Kemp was quite a different case to this case, we say, because in the sexual relationship count, that involved evidence of two witnesses referred to in the reports as Kristy and Faylene, who gave evidence that was relevant to that count and it was uncharged material. In the case of Kemp, Justice Davies, at page 400, put a slightly different view to the question of a fair trial but I do not want to get into a huge argument about the fairness of the trial. It probably comes down, in these circumstances, to whether or not a further direction is required. But the comments by the President in Kemp was referred to by the Court of Appeal in Queensland in R v LSS, 1 Qd R - - -

McHUGH J: Now, you seem to be opening up a completely new - and I think that you were asked for your comments on Kemp, not another line of cases.

MR FLATMAN: It refers to Kemp though.

KIRBY J: Does it say it was very wrong?

MR FLATMAN: Sorry?

KIRBY J: Do their Honours disagree with what was said by the President?

MR FLATMAN: Yes.

KIRBY J: All right, well - - -

MR FLATMAN:

I do not accept that such tendentious directions, as were held appropriate to the facts of that case should necessarily be given in s 229B prosecutions.

KIRBY J: "Tendentious" - that sounds like Justice Pincus.

MR FLATMAN: Tendentious - it is. Page 547 and then again Justice of Appeal, Mr Justice Thomas at page 556 refers generally to the issue raised in Kemp and concludes by saying:

I am reluctant to interpret BRS and Gipp as requiring warnings by rote against the dangers of propensity evidence.

They are the only matters I wish to put in response.

McHUGH J: Yes, thank you. The Court will reserve its decision in this matter.

AT 12.42 PM THE MATTER WAS ADJOURNED