SB v The Queen; HML v The Queen [2007] HCATrans 253 (25 May 2007)

Last Updated: 7 June 2007

[2007] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A26 of 2006

B e t w e e n -

SB

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A28 of 2006

B e t w e e n -

HML

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 25 MAY 2007, AT 12.01 PM

Copyright in the High Court of Australia

__________________

MR A.L. TOKLEY: May it please the Court, I appear for the applicant in matter No 5. (instructed by Gallagher & Co)

MR A.P. KIMBER: If the Court pleases, I appear for the respondent in matter No 5. (instructed by Director of Public Prosecutions (SA))

MR J.D. EDWARDSON, QC: May it please the Court, I appear on behalf of the applicant in matter No 6, together with MR C.A.L. ABBOTT. (instructed by Herman Bersee)

MR S.P. PALLARAS, QC: If the Court pleases, I appear for the respondent with my learned friend, MS L.J. DUNLOP. (instructed by Director of Public Prosecutions (SA))

GUMMOW J: We will hear argument consecutively in these applications and then we will give our determination after we have heard the argument in No 6. Yes, Mr Tokley.

MR TOKLEY: Your Honours, can I come straight to the heart of this matter. It seems to me that this question here, which is the question of directions given in respect of evidence of what is commonly called uncharged acts - - -

GUMMOW J: You will have to speak up a little bit. The video link is not all that good this morning. You will have to get near the microphone and speak up.

MR TOKLEY: Your Honours, the question of general public importance in this matter is one that has been visited quite recently in the case of Tully, but Tully was regarded as not being an appropriate vehicle for deciding the question.

KIRBY J: Was Tully the case where some members of the Court said this was quite an important issue but that for some reason it was not suitable to deal with in that case?

MR TOKLEY: Yes, that is correct, your Honour.

KIRBY J: Justice Callinan said something like that, I think, and I think I might have said that too.

MR TOKLEY: Your Honour did, yes.

GUMMOW J: Tully is 81 ALJR 391.

MR TOKLEY: Yes, your Honour. Your Honour Justice Kirby I think said that it was an important matter at paragraph [65] of Tully. Your Honours will have before you a book of authorities prepared by the respondent in the matter.

GUMMOW J: What I am interested in, and I think we are all interested in at the moment, is, do you accept that there is correct statement of principle by the Victorian Court of Appeal in Vonarx [1999] 3 VR 618?

MR TOKLEY: Your Honour, in my respectful submission, there is - - -

GUMMOW J: If so, how would the facts in this case measure up to the directions as indicated they should be given in the Victorian case?

MR TOKLEY: Thank you, your Honour. If the principle which comes out of Vonarx had been applied in this case, then I think the answer given by the Court of Criminal Appeal would be that there had been a misdirection and consequently a miscarriage of justice in the matter. The Court of Criminal Appeal in this matter followed the rulings, so to speak, if I may put it that way, of the Court of Criminal Appeal of South Australia in Nieterink’s Case and there is in fact a difference not only of emphasis but of principle between the two decisions.

GUMMOW J: My impression is that the Victorian case is stronger as to what it requires than the South Australian authority.

MR TOKLEY: Yes, your Honour, that would certainly be my submission because in Vonarx at page 625 the Full Court there said that such evidence could only be introduced:

for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting.

GUMMOW J: Where are you reading from on 625?

MR TOKLEY: It is page 625, the paragraph beginning “Nevertheless”, the first paragraph on that page.

HAYNE J: Paragraph 22.

GUMMOW J: Paragraph 22 of the report.

MR TOKLEY: Thank you, your Honour, yes, paragraph 22, about halfway through that paragraph:

the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed –

et cetera. It is my understanding that subsequent Courts of Criminal Appeal in Victoria have approved of and endorsed that statement and so that the law as it stands in Victoria is that such evidence can only be used for that limited purpose. By contrast, in South Australia, if I could ask your Honours to turn to the case of Nieterink, which is in the authorities – it is about the third authority from the end of the book of authorities – if I could ask your Honours to turn to page 65 of that case - - -

GUMMOW J: That is 76 SASR 56 at what page?

MR TOKLEY: At page 65, your Honour and at paragraph 42. I do not propose to read from that paragraph, but paragraphs 42, 43 and 44 make it clear in the judgment of his Honour the Chief Justice, Justice Doyle, that there are several purposes for which such evidence might be used. In this State this authority is regarded as being the appropriate authority and in fact was the authority applied by the Court of Criminal Appeal in this particular case.

Your Honours, in my respectful submission, there is no doubt the question is an important one. There is no doubt that there is a difference in principle between intermediate courts in Australia unless - - -

GUMMOW J: What is the particular passage at 65 of Nieterink?

MR TOKLEY: It is beginning in paragraph 43, your Honour. As your Honour will see:

First of all, the evidence may be relevant because without it the jury could hardly understand the context –

Then your Honours will see that as his Honour the Chief Justice goes through in that paragraph, he identifies various uses to which the evidence might be put. It:

may disclose a course of events leading up to the first charged incident . . . The evidence will also sometimes explain how the victim might have come to submit to the acts . . . The evidence of uncharged acts may also disclose a series of incidents that make it believable or understandable . . . They may show a pattern of behaviour under which the accused has achieved the submission of the victim. The evidence may establish a pattern of guilt on the part of the child . . . The evidence in the present case was relevant on these bases.

GUMMOW J: We see that, but is there a passage in the Chief Justice’s judgment which corresponds to that in the Victorian case at 625 as to what the jury should be told? What you have taken us to, and I understand why you have done it, is an equivalent perhaps or at least an explanation of the same nature that is given at 622 in the Victorian case. The question then is, given the theoretical underpinning of all this as a peculiar subspecies of similar facts, what do you actually do about it? What is the jury told? Do we find that in the South Australian case?

MR TOKLEY: Yes, we do, your Honour.

GUMMOW J: Whereabouts?

MR TOKLEY: It begins on page 72 of the authority, your Honour, beginning at page 81 under the heading “The uncharged incidents – the directions”. His Honour in paragraph 82 goes on to say:

The judge’s direction to the jury relating to the uncharged acts had to deal with the following matters.

Then in paragraph 83 his Honour sets out what the directions had to deal with.

KIRBY J: This is after a walk in the garden through BRS, Gipp, Markby and a number of other cases. What was said in this Court, may I ask, in Tully? Justice Hayne and I took the view in Tully that it was a Robinson Case and that is how we decided it, but amongst the majority Judges, was there anything said by any of them about the need to visit this issue in this Court because of uncertainty in the intermediate courts? I had a recollection that Justice Callinan might have said something like that.

MR TOKLEY: Yes, he did, your Honour. If I could ask your Honours to turn to Tully’s Case in the book of authorities, in particular to page 746.

KIRBY J: Did any of the Justices in the majority, not just Justice Callinan, say anything about this?

MR TOKLEY: My reading of the authority, your Honour, is that her Honour Justice Crennan agreed with Justice Callinan’s approach to the matter, although her Honour did not elaborate. My understanding of his Honour Justice Heydon’s decision is that he did not address the issue, save that he did at page 749, paragraph [151] say:

I agree with the reasons of Callinan J for concluding that the trial judge committed no error in relation to uncharged acts which could have led to a miscarriage of justice.

At footnote 146 he refers to paragraphs [134] to [149] of his Honour Justice Callinan’s reasons. It is in those paragraphs that one will find comments about uncharged acts and the difficulties arising from them and the way in which directions might be given and to avoid the use of terms such as “relationship evidence” or “background evidence” or “contextual evidence”. In so doing, if I could ask your Honours to go to page 746, your Honours will see at paragraph [141] his Honour Justice Callinan in footnote 132 refers to the Victorian decisions of Vonarx and Pearce which approved Vonarx.

KIRBY J: Is there a paragraph there where his Honour said that this was causing difficulties in the intermediate courts or that it would be desirable for this Court to visit the matter? I thought there was something like that. Anyway, it is not necessary and it is a question for us to decide here and now.

MR TOKLEY: In answer to your Honour’s question, at page 744, paragraph [135] - - -

KIRBY J: You will have to lift your voice, I am afraid. The machinery is not very good and I am a bit deaf. That is the long and short of it.

MR TOKLEY: I am sorry, your Honour, I will try to speak louder. It is page 744, paragraph [135].

KIRBY J: Yes, “not as clear as they might”. That is a typical gentle understatement by Justice Callinan.

MR TOKLEY: Indeed, your Honour. Could I just summarise my submission.

GUMMOW J: Wait a minute. You were taking us to the discussion by Chief Justice Doyle of the form of directions. Where do you say that this is a softer formulation than the Victorian formulation? Is there any specific passage which you say demonstrates that or is just a matter of overall impression from Chief Justice Doyle’s judgment?

MR TOKLEY: No, your Honour, there is a paragraph in his Honour’s judgment, and unfortunately, I cannot bring it straight to mind, in which his Honour averts back to his earlier discussion in which he says how the evidence may be used and says that directions would have to be given as to how evidence of such matters should be dealt with.

GUMMOW J: Where is that paragraph?

KIRBY J: I know you did not come here knowing that we would ask you the question on Vonarx but if these matters are lifted up into this Court, we would certainly have to have some tabular comparison not only for South Australia but other States. In Vonarx it is very clear and very strong. they have to be told, they must be told the use to which it can be put, it is to be limited to a contextual setting. They have to be told that they must not reason that the person is the kind of person, that the proof of uncharged acts does not itself prove the matter charged, that the person is only guilty on the matter charged if satisfied beyond reasonable doubt of the offence charged. These are very strong statements given for the reason of the risks and dangers. What we really need from you and from Mr Edwardson is help to see whether the South Australian criteria have reached that standard, which seems to me the proper and minimum standard that is required.

GUMMOW J: Is it paragraph 86 on page 73 of 76 SASR?

MR TOKLEY: Yes, your Honour.

GUMMOW J: Why do you say that is weaker than the Victorian formulation?

MR TOKLEY: Because, your Honours, in the Victorian formulation the evidence can there be admitted only for a particular purpose, whereas the sort of evidence that his Honour the Chief Justice was talking about is not led for a particular purpose but could be led for multiple purposes. It is clear not only from, in my respectful submission, the way in which his Honour has dealt with it but subsequent Courts of Criminal Appeal in this State that in fact evidence can be led for multiple purposes. In fact, the case before your Honours at the moment is one in which the evidence was introduced for at least two purposes.

GUMMOW J: What were those two purposes? They are said to be two purposes.

MR TOKLEY: Your Honour will find that at page 23 of the application book.

GUMMOW J: Yes, that is right. The first one was “a context”. That appears at line 10, does it not?

MR TOKLEY: Correct, your Honour.

GUMMOW J: The second one was at about line 22:

may assist you in understanding how the evidence regarding the incident behind the tree, contained in Count 1, could have arisen - - -

MR TOKLEY: Yes, and your Honour will see at line 30 the trial judge says - - -

GUMMOW J: They are said to be discrete elements.

MR TOKLEY: Yes, that is right:

those two discrete matters which I have mentioned are the only ways in which you are permitted to use the evidence of the uncharged acts - - -

GUMMOW J: Is not two an example of one? I may be wrong.

MR TOKLEY: No, with respect, your Honour, because one concerns only the evaluation of the evidence of the complainant. Two, if one takes that in conjunction with the closing submissions of the prosecution, went basically to the actions of the accused. Two different actors were involved in the matter and for two different purposes. In particular, if I could ask your Honours to go to page 61 of the application book, your Honours will see the two passages that have been quoted both from the opening submissions of the Crown Prosecutor and their closing submissions.

KIRBY J: This is the case, is it not, where your client was alleged to have given his daughter a dildo?

MR TOKLEY: Yes, that is correct, your Honour.

KIRBY J: And also a couple of G-strings?

MR TOKLEY: I am not sure if that is correct, your Honour.

KIRBY J: Certainly the dildo. It is referred to on page 72.

MR TOKLEY: Correct, your Honour.

KIRBY J: The question is presented, I suppose, whether there has been a miscarriage of justice in this case.

MR TOKLEY: Yes, your Honour, very much so. If in fact the - - -

KIRBY J: No, but I am asking whether in the light of that type of evidence this is a case where we need to intervene for the risk of miscarriage of justice. It is not usual for fathers to give daughters dildos or G-strings, I would not think.

MR TOKLEY: No, that is correct, your Honour, not to my knowledge. That is certainly one of the matters that is raised. It is raised in our third special leave question as well in relation to the protection provided by section 18 of the Evidence Act. Questions were asked both of the complainant and subsequently of the accused in relation to the giving of the dildo which my understanding is that that could not of itself constitute a criminal offence, but nevertheless questions were asked of it, a significant number of questions. There was no objection made at trial to the asking of those questions but nor did the court stop the asking of those questions. That is the third of the grounds raised in the application.

GUMMOW J: Page 64. Yes, very well. Yes, Mr Kimber.

MR KIMBER: If the Court pleases, the respondent submits that special leave should be refused with respect to the first question asked relating to the directions given to uncharged acts. It is submitted and conceded that while questions have been raised as to the sort of directions that should be given about evidence of this type, it is submitted that this is not a suitable case on its facts and given the directions to resolve those questions. In my respectful submission, as the Court of Criminal Appeal below correctly identified, the evidence in this case was left for a very limited purpose. The learned trial judge described it as being relevant in two discrete ways but, in my respectful submission, properly read there was really just the single way in which it was available to be used for the jury. In my respectful submission, in a case in which it is left for such a limited purpose, this is not an appropriate case to be visiting - - -

GUMMOW J: What is that limited purpose?

MR KIMBER: Can I take the Court to the application book at page 59 which is within the judgment of the court below but which extracts the entirety of the direction on the uncharged acts. About halfway down page 59 in the application book his Honour described that there were two discrete matters that this evidence went to. If one goes to the two paragraphs above that, the first was that it was potentially helpful in evaluating the victim’s evidence, that it provided the context in which the charged acts occurred, which is not inconsistent with the direction that was suggested in Vonarx at all, but then goes on really to describe what his Honour described as the second discrete way but was really - - -

HAYNE J: You say that is not inconsistent with Vonarx but in Vonarx at paragraph 22, page 625, the use was described as:

the limited purpose of determining whether a sexual relationship existed between the complainant and the accused –

That may be compared with Chief Justice Doyle in Nieterink where his Honour also referred to the existence of a sexual relationship between the parties and that it was not useful and not sufficient “to speak generally of the evidence as establishing background matters.” I have in mind particularly paragraph 85, the middle sentence and the last sentence. Are we not seeing in this case a loosening of what the Full Court said and what, as it happens, the Court of Appeal said in Victoria, namely, sexual relationship is established, not this amorphous concept of background.

MR KIMBER: In my respectful submission, the directions given in this case refined the evidence and the purpose for which it could be used in a way that Nieterink said needed to be properly guarded against.

HAYNE J: Take, for example, this second discrete way. It may assist you in understanding how the evidence regarding the incident behind the tree contained in count 1 could have arisen. How? The jury is left unknowing how they are to use this, whereas what Vonarx and Nieterink, at least on one view of them, seem to be saying was this is similar fact evidence. What this can demonstrate is the existence of a sexual relationship between these two persons; nothing else.

MR KIMBER: I concede that his Honour could have been clearer in the case at trial about precisely how that evidence could be used but, in my respectful submission, reading his Honour’s directions and considering what the Court of Criminal Appeal said, the only purpose for which the evidence could be used was to explain, for example, how count 1 could have come about. The issues of how she would come to submit to such an act so close to the house, how it is - - -

GUMMOW J: Assuming the members of the jury understood what the word “discrete” means when used by a judge, which I doubt, nevertheless they were told at the bottom of page 23 “two discrete matters”, whole course of alleged events, context, et cetera. That is your problem, I think.

MR KIMBER: The respondent makes this submission. Certainly the law in Nieterink as expressed by the Chief Justice is not inconsistent with what is said in Vonarx. Indeed, both Vonarx and the Chief Justice in Nieterink say that it is evidence of sexual relationship, but his Honour the Chief Justice in Nieterink goes further by saying in effect that you need to give the jury greater assistance than just describing it as evidence of a sexual relationship. In my submission, that must be so because the jury are entitled to ask themselves, what is it about that sexual relationship which is relevant to the facts in the case? What is the existence of that sexual relationship, if I find it to exist, going to assist me with with the particular issues? That is why Nieterink goes on, in my respectful submission, to say, for example, at page 72 in paragraph 76 of the judgment, the different particular purposes for which evidence of this type might be used.

HAYNE J: If that is an available understanding of Nieterink, that rather suggests that Nieterink and Vonarx are not marching in step in the same direction.

MR KIMBER: They are marching in step in the same direction at least in this sense, your Honour, in the sense that both cases say it is relevant and admissible evidence going to the relationship between the accused and the complainant. What Nieterink suggests is that you should tell the jury what it is about that relationship which will assist them with the facts in the case as set out by his Honour the Chief Justice in paragraph 76.

HAYNE J: That requires more than the ritual incantation of words like “context” and “relationship”.

MR KIMBER: I agree with that.

HAYNE J: You have to tell the jury, “What you can draw from this evidence is this. What you do with it may include that.”

MR KIMBER: Indeed, your Honour, I agree.

KIRBY J: “What you can’t do is this” as well.

HAYNE J: Just so.

MR KIMBER: And cannot use it for a propensity-type purpose.

KIRBY J: That is where Vonarx is very strong because there are very strong statements alerting the jury as to the modes of reasoning that they must not engage in.

MR KIMBER: Yes, and there is no difference between Vonarx and the judgment of the Chief Justice in Nieterink in that respect, as the Court has picked up the reference at paragraph 86 of that judgment, the direction that needs to be given about not misusing that evidence. But there can be no suggestion in this case that that strong direction not to use it for a propensity purpose was not given. It is set out, if the Court goes to application book 59, as following on immediately from the direction that the learned trial judge gave about the permissible use. At application book 59 within the Court of Criminal Appeal judgment, his Honour then said about halfway down the page, “I now turn to direct you on how you cannot use the evidence.” He then gave the direction in the following three paragraphs.

Nothing is raised in the first question or on this application with respect to some failing in the directions with respect to how the evidence could not be used. That direction set out by the learned trial judge is really the same direction that the Full Court in Vonarx said had to be given in very strong terms and it was. The issue here, in my respectful submission, is not whether there is meaningfully some difference between Vonarx. The issue here is, given the fact that the evidence was only left to the jury to be used for the single purpose of evaluating whether evidence of the complainant as to the charged counts might have appeared unreal or not fully comprehensible, is this case, given it was left for such a limited purpose, an appropriate case to be considering these questions of what sort of directions should be given about uncharged acts.

If the directions were left in the general sense of going to relationship only or left at context or left at background with no further explanation, then the applicant, in my submission, might be on very strong grounds to suggest that the jury were left with no assistance whatsoever about what it was about the context that would assist them in using the evidence in a relevant but non-propensity way. But that is not the situation in this case. His Honour restricted the use to “unreal” or “not fully comprehensible”, that is, that it could be used to evaluate whether or not the complainant’s evidence as to any charge might be unreal or incomprehensible. The use of those terms by the learned trial judge is not inconsistent with a proper use, as has been suggested, by different judges of this Court.

Can I take the Court to the judgment of his Honour Justice Callinan in Tully and in particular can I take the Court to paragraph [145] which is at page 747 of that judgment. In that paragraph his Honour expressed concerns about the reception of evidence over objection – this evidence came in without any objection – about non-specific relationship, background, contextual evidence. His Honour went on in quoting from the Victorian case of GAE to say that such evidence can be left to the jury and a proper direction where a jury might gain the impression that the complainant is saying that a count came out of the blue.

That was an obvious use for the use of the uncharged acts in this case. For example, count 1 was alleged to be an act of attempted penetrative sexual intercourse behind a tree very adjacent to the house in which the applicant, the complainant and other members of the same family lived. The jury might have found it remarkable that the accused would have suddenly jumped in to such behaviour unless they knew there had been indecent touching leading up to it, the giving of the sexual aid at around this time. Against that background the jury were able to assess, is it more likely she is telling the truth not because the applicant has a propensity but because she has been prepared for this sort of behaviour, the accused is confident that she will submit? Her behaviour in response to the uncharged acts has been one of submission and the like.

At paragraph [147] on the next page of Tully, page 748, at about line 15 his Honour Justice Callinan referred with approval to what his Honour had said in Nieterink, Nieterink being the judgment of course that the court below followed. His Honour referred there to the fact that Nieterink had talked about:

the evidence of a particular relationship might be admissible to explain a criminal act –

and so it went on, particularly at line 20 on that page, to explain an account that might otherwise appear implausible, really the same use as in this case.

KIRBY J: But in Tully at 728 it was not necessary for me or for Justice Hayne to deal with this issue because of the view we took about Robinson. On that page at footnote 68 or 69 I listed what I then felt were cases throughout Australia in New South Wales, South Australia and I think elsewhere which indicated that there was a disparity between the different State Courts of Criminal Appeal on this issue. Have you done an analysis of those decisions or not?

MR KIMBER: I have, your Honour, at least in respect of the leading case in New South Wales, which is Beserick, and of course the case of Vonarx. What those cases - - -

KIRBY J: And Nieterink, which is also referred to there.

MR KIMBER: Indeed, and Nieterink. Those cases are consistent in this sense. All of those cases say that it is relevant as going to the relationship between the parties. Where Nieterink goes further and, in my respectful submission, provides greater assistance is it actually breaks down what it is about that relationship which is relevant and admissible to the likely issues in the trial, things like whether the first count or any other count came out of the blue, things like it might seem incredible or unlikely to a jury that a young girl would submit to sexual intercourse with her father unless they knew that it was part of a pattern of behaviour towards her. They might find it unlikely that the applicant would expect that he could get away with this behaviour, the behaviour, for example, in count 1 unless the jury and the applicant already knew that the applicant had gotten away with similar behaviour, there had been no complaint and so he could be confident that if he progressed the behaviour he would also be able to get away with it.

So that is why I do not submit that there has been considerable discussion about what appropriate directions need to be given both in intermediate courts and of course in Nieterink and other cases in South Australia. What I submit is that this particular case, given it was really left for only the single purpose, is not the appropriate case to be sorting out what directions have to be given in a case such as this, because it was left for such a limited purpose. The position might be different if it was just left simply as “relationship evidence”, but that term was not even used in the learned trial judge’s summing up. “Background” and “context” were used, terms that Justice Callinan specifically disapproves of, but it was not left as just “background” or “context”. His Honour then went on to explain particularly how the jury could use that evidence. It was not left just for that purpose.

The idea that evidence can be left so that the evidence of a complainant is not unreal or unintelligible is also a proper use according to the judgment of your Honour Justice Hayne in the joint judgment with Justice McHugh in Gipp at paragraphs 72 and 75. The very words that the learned trial judge used in this case are used in that case. In KRM your Honour Justice Hayne at paragraph 134 said that such evidence avoids the complainant’s evidence being “unreal and not very intelligible”, the very words that the learned trial judge used in this particular case.

It is for those reasons because it was restricted to a particular purpose that the respondent submits that there is no inconsistency with Vonarx but, more than that, the jury were given the particular assistance that they required consistent with various judgments of this Court. It was in paragraph [149] of Tully in the judgment of his Honour Justice Callinan in which his Honour, having analysed a number of the cases and in particular the judgment of Chief Justice Doyle, set out the reasons why Tully was not an appropriate case for the resolution of these questions.

The reasons that his Honour set out, all but one of them, are the same reasons which can apply to this case. There was no objection to the evidence, no redirections were sought and the learned trial judge certainly directed the jury in strong terms that it was proof beyond a reasonable doubt of the acts charged which would be the determinative factor and the only factor in finding guilt on any particular count.

KIRBY J: It is, however, a departure from one of the most foundational principles of our criminal law that accused do not have to meet anything except the matters in the indictment. They have to meet the charges made. It may be too late to try and push the water back under the bridge, but it is a very big departure and it is difficult from the accused’s point of view to meet matters that are not the specific counts of the indictment.

MR KIMBER: The respondent does not dispute that there is a risk of the evidence being used for a propensity purpose. Most of the cases talk about that. That use of a propensity purpose is not the issue that the applicant seeks to raise in the question asked in this appeal. Equally, as I took the Court to a moment ago, the learned trial judge did give a very strong direction about that, very similar to the direction that the Chief Justice in Nieterink said needed to be given and really in the very same - - -

KIRBY J: I am just putting you on notice that if this matter is brought up, speaking for myself, I would want to go back to first principles and look at it as a final court should look at it as a matter of basic criminal law practice and principle.

MR KIMBER: If the Court pleases.

GUMMOW J: Mr Kimber, there is nothing more you wanted to add?

MR KIMBER: No, your Honours. With respect to the second two questions, I am content to rely upon what I have set out in the respondent’s summary of argument.

GUMMOW J: Mr Tokley, do you want to say anything about the second and third grounds on page 84?

MR TOKLEY: No, your Honour, I am content to rely upon the written submissions in relation to those grounds.

GUMMOW J: Is there anything else you want to say in reply?

MR TOKLEY: No, your Honour, I am content to rely upon my principal submissions.

GUMMOW J: Thank you. Yes, Mr Edwardson.

MR EDWARDSON: The starting position which we contend for is that the correct position is as set out by the Court of Criminal Appeal in Victoria in Vonarx at page 625, paragraphs 22 and 23. In the context of what fell from the Chief Justice - - -

GUMMOW J: Just stopping there for a minute, is there any conflict between that and that judgment of Chief Justice Doyle?

MR EDWARDSON: Yes, in my submission, there is in this respect. As has already been identified in paragraph 22 of the judgment, the court there limits specifically the purpose for which evidence of sexual relationship can be admitted into evidence. The Court says:

and only for the limited purpose of determining whether a sexual relationship existed –

et cetera. Since that time, reference has been made to a subsequent Court of Appeal decision in Victoria, that being the case of Pearce, one of the cases that was cited by your Honour, Justice Kirby in, I think, paragraph 65 in that long list of cases setting out the different approaches by different courts in different jurisdictions at an intermediate level. If I can just briefly direct the Court’s attention to that decision which is not on the list of authorities but has arisen as a consequence of the Court wanting to hear from us in Vonarx. Pearce approved Vonarx and his Honour, Justice Tadgell, with whom the other two judges agreed including Chief Justice Phillips, said at page 591 in the last paragraph:

So too, in this State it should be accepted, unless and until the High Court decides otherwise, that the only purpose (there being no more than one) for which evidence of uncharged criminal sexual acts by an accused may be used by a jury is that expressed in the passage in Vonarx that I have quoted above. In the present climate it may be desirable that, ordinarily, as a matter of practice, no evidence of uncharged acts should be led before it is established at the trial that it should not be excluded as a matter of the judge’s discretion and, if it is to be admitted, its exact bearing on the charged acts, and on the evidence of them, is agreed or decided.

What fell from Chief Justice Doyle in the paragraph to which the Court has had its attention directed, that is paragraph 43, are multiple ways in which the evidence might be admitted including, for example, an explanation for why there was no recent complaint in the context of an allegation of sexual abuse or sexual offending. In that context that was an important matter that was raised expressly by the learned trial judge.

Can I say briefly that his Honour Chief Justice Doyle was of the view, and if I can direct the Court’s attention to paragraph 86 – there the Chief Justice is dealing with the directions that must be given and your Honours will see at paragraph 85, his Honour said:

The jury had to be told the particular manner in which the evidence could be used. That could be done briefly, and along the lines indicated by me above.

In other words, referring back to paragraph 43 being the general descriptions of the different ways in which the evidence might be used permissibly, albeit uncharged acts. Against that background, can I take the Court to application book starting at page 15 through to page 17, that being the relevant portions of the summing up in this case.

The primary complaint, bearing in mind that Nieterink is the law in South Australia, was the refusal by the learned trial judge to permit defence counsel at first instance to adduce from the police officer that what was described as the “Victorian offences” at line 30 on page 15 had never been the subject of a charge and he had not been prosecuted. It was argued that that was relevant because otherwise the jury might speculate that he had been convicted of those offences or, at the very least, been charged. Importantly, all of the uncharged acts or the uncharged criminal conduct occurred in Victoria. There were two counts which he faced in South Australia which were - - -

GUMMOW J: This is your first ground, is it not, at page 49, of your grounds of appeal?

MR EDWARDSON: Yes, that is so, your Honour. I do not want to go through that because it is set out, in my respectful submission, adequately in the summary of argument and it goes to the question of the extent to which a judge in those circumstances would be bound to give directions to the jury to avoid and ensure that there would not be any speculation. The unusual factor of this case was that there was a significant delay of some two years between the accused being interviewed, ultimately charged, and then three years by the time he got to trial. The directions that were given, so it is contended by us, had the effect of, in effect, creating the very prejudice that was sought to be avoided in line 30 on page 14.

Can I move to the significant matter that this Court has raised with the other parties in the previous action. Can I direct the Court’s attention to page 16 firstly and you will see that there are a variety of ways in which it was put to the jury that the uncharged acts could be used. It commences at line 9:

as to these uncharged acts I want to say this; this evidence is led by the Crown so that you may have an understanding of what is said to have been the relationship between the accused and [the complaint] . . . it is said to provide a background against which, if you accept the evidence, you can consider [the complainant’s] evidence of what she said occurred in the Grosvenor Hotel

The first identification of the use that can be made of that evidence was to show the relationship and the background against which that evidence could be used. The way in which his Honour expressed himself in that passage fell foul of what fell from Chief Justice Doyle even in Nieterink and I direct the Court’s attention to page 65 of the judgment, paragraph 45 and subsequently at paragraph 46 on page 66. Your Honours will see that he said in paragraph 45:

the term “relationship” could imply a line of reasoning that the uncharged incidents disclose a mere propensity to offend –

et cetera, and his Honour deprecated the use of the term “background” as being “undesirable”. This particular judge used both in the very first passage of his description of how the evidence might be used. His Honour, Justice Callinan in Tully - - -

KIRBY J: I do have a question for you, Mr Edwardson, because, looking at your grounds of appeal, they are not as broad as in the other case, they do not, as it were, raise a general challenge to the directions. You have put all your eggs in the basket of your 2.3 and it may be that if these matters are brought up you might want to broaden the grounds of appeal to raise a more general complaint about the directions.

MR EDWARDSON: With the greatest of respect, your Honour, I think that is so. I might say that there are two aspects of this case that are important in that context and that is that, firstly, the primary objection or the complaint that we make is as to the appropriate directions that should be given in the context of uncharged acts. That of itself raises the question generally of what are the directions that should be given and - - -

KIRBY J: You do not really raise that specifically in your grounds, do you? I understand why you do this, you do not want to go into large territory if you can get special leave on a specific and, therefore, you say
that it is just basically unfair that you should not have the jury told that, though this story about the Victorian charges, you were never charged and certainly never convicted. I understand that but one would not want to get to a case where we have looked at the whole issue of the directions that are proper to uncharged acts and find that the particulars and specifics that you are relying on are not covering the field for what the directions were in your case.

MR EDWARDSON: I think, with respect, if the Court was persuaded that special leave was appropriate in respect of this matter because of the general issues that I will come to in a moment which are clearly fairly and squarely raised, as it happens, uniquely to this case, I think we would have to seek leave to add an additional ground that would broaden what is currently before the Court.

GUMMOW J: You also need an extension of time, do you not?

MR EDWARDSON: Yes, indeed.

GUMMOW J: Is that opposed? Do we know?

MR EDWARDSON: I do not, your Honour, but can I say, just on that aspect - - -

GUMMOW J: Wait a minute. Is it opposed?

MR PALLARAS: Your Honours, it is difficult to answer simply. There is no explanation given to a six-month delay in filing the documents. I am not in a position at this stage, until I hear from my friend as to the reason, to indicate to the Court what our attitude is.

KIRBY J: This is the case, is it not, where the person is in prison, the solicitor tried to raise some money from the person and it was difficult for him and he had to mortgage his home or something like that? Is that not this case?

MR PALLARAS: Your Honour, I do not know about the last point, about mortgaging the home. The situation was the man was imprisoned in Port Augusta which I think is about 300 kilometres from the solicitor’s office. However, there are telephones and there is no excuse, in our submission, unless there is a reason raised, why the length of time was taken, why that six-month period was taken. Surely a month or two months or three months, but what my learned friend is asking for, what the applicant is asking for is not only indulgence but a total absolution from the requirements that are applicable to all of us.

GUMMOW J: All right, I just raised the question so that your opponent can deal with it if he has to, and he has to.

MR PALLARAS: If your Honour pleases.

MR EDWARDSON: Perhaps I should firstly identify a ground that might cover, or at least adequately cover, enough for us to engage the Court on the issues that we wish to ventilate. I am sorry it is at such short notice but the directions as to the use to which the jury could and could not use the uncharged acts were inadequate and did not accord with what fell from the Court of Criminal Appeal in R v Vonarx [1999] 3 VR 618.

GUMMOW J: Thank you and you want to add that as 2.4 on page 50?

MR EDWARDSON: Yes, please, your Honour.

KIRBY J: What do you say about the complaint that you took too long to get into the Court? There is a greater leeway nowadays than there was when I was at the Bar but it is not open ended.

MR EDWARDSON: There are two aspects, we say. We direct the Court’s attention to pages 51 and 52 of the application book which is the affidavit of Mr Herman Bersee which sets out the difficulties that he found himself in in terms of getting instructions and funding for the purposes of this appeal. Secondly, it is clear that there are arguable reasons - - -

KIRBY J: Paragraph 4 says:

The Appellant has been required to sell real estate under a conditional contract which recently became unconditional and has now been sold –

I do not know what the Crown, which used to be a model litigant, wants you to do.

GUMMOW J: We do not need to hear you any more on the extension point, I think. You were taking us through the directions at pages 16 and 17.

MR EDWARDSON: Yes, I was. At pages 16 and 17, you will see – I will dot point them if I may – that there are identified a series of bases upon which this evidence was sought to be adduced or admitted. Can I just pause there for one moment and say that a distinguishing feature and an important distinguishing feature between this case and Tully is that counsel at first instance did object to the admissibility of this evidence. He also sought leave to cross-examine the relevant police officer to adduce evidence to establish that his client had not been charged nor prosecuted or convicted for the uncharged acts. In both cases the learned trial judge refused.

Finally, can I deal with the issue which is important in the context of directions and what is mandatory, whether it be as what fell from R v Vonarx at page 625, paragraph 23 or what fell from Chief Justice Doyle at page 73, paragraph 86. The direction as to the impermissible use of this evidence the Court will find on page 17 where his Honour said:

I must also tell you how you cannot use this evidence. You must not use this evidence, if you are satisfied about it, or any part of it, to reason that because of it the accused is the type of person likely to have committed these offences.

That is as far as his Honour went and if one looks at that as against what fell firstly from the Court of Appeal in R v Vonarx at 23, the court made it plain that it was a requirement, in fact:

It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him on the presentment only if they are satisfied beyond reasonable doubt the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred.

It could only be used for the limited purpose identified at paragraph 625. Chief Justice Doyle deals with that at paragraph 86 where he says that there must be a warning that the accused cannot be convicted on the basis of the uncharged acts or on the basis “that the accused had committed similar offences” or “that the accused was the sort of person who might commit the crimes charged, and find him guilty on that basis”, that is, on the basis that they had established that the uncharged acts were proved.

Lest there be any doubt about the multiple ways in which it was left to the jury, one can see on page 16 at line 30, he identifies a “further use” and so on and so on and that is the format consistent with what fell from Chief Justice Doyle which, in our respectful submission, is at odds with what has come from the Victorian Court of Appeal as to the singular identified purpose for which this evidence can be admitted.

It is our submission that this case is a good vehicle for the High Court to finally pronounce on the admissibility of uncharged acts and, specifically, the appropriate or minimum directions that need be given.

GUMMOW J: We do not need to hear you any further, Mr Edwardson. We will hear what the Director says firstly on this question of extension, if he wants to add anything more. Yes, Mr Pallaras.

MR PALLARAS: Thank you, your Honour. Might I start, your Honour, by saying there is nothing further I wish to add on the question of extension.

GUMMOW J: We grant the extension.

MR PALLARAS: If the Court pleases. In relation to the broader issue that has been raised both in this application and the previous one, my learned friend started with the proposition that the correct position is as described in paragraph 22 of the judgment in Vonarx which has been cited and the Court has been referred to. The first point that I would seek to make about that and make this submission is this, that paragraphs 22 and 23, indeed, set out almost a menu of requirements that a trial judge is meant to tick off virtually when he is addressing and a charging a jury. It does, and I will get to this point shortly, it does indicate that there is a purpose for the admission of that particular evidence but it also sets out that certain warnings must be given to a jury. Can I say that no point has been made of this but I will make this submission, that all of the requirements set out in 22 have been met in the instant case. The issue seems now to be whether, in going further than what is required by Vonarx, there is a special leave point.

The second submission I would make in respect of that passage in Vonarx is that it may well be, your Honours, that there is a distinction here without a real difference. My point is this, in the passage in paragraph 22 at about line 24 the Court of Appeal talks of the purpose for the admission of particular evidence being the establishment or otherwise of “whether a sexual relationship existed”. To determine the question of whether or not “a sexual relationship existed” in a particular case, in reality, what a jury would need to do would clearly be to investigate and to look at and to examine the evidence going to that very issue, the evidence going to the issue of sexual relationship. That evidence must always be, at least, the evidence of the complainant. They must, in that situation, be called upon to make an examination as to the credibility of the complainant.

Once they have made that intellectual movement, they have looked at the evidence of sexual relationship, they either come to the view that the complainant is credible or not and that a sexual relationship exists or not. It must be the case that if they have found her to be a credible witness, then in relation to the other matters for which the Chief Justice in this State has said the evidence is admissible, that must impact upon their finding. It must impact, for instance, upon their finding as to the credibility of a female complainant when she says that she could not complain or she did not complain for a long time. It must be the case that it is relevant to a consideration of the issue of why she succumbed. It must be the case of why it is relevant to a consideration of the issue why she did not resist or yell out or issues of that sort. But to describe the purpose as simply being to establish whether or not “a sexual relationship existed” minimises the description of what, in fact, a jury is doing.

In a case like the present case, when the issue has been left to the jury on a number of bases which, we would submit, is more helpful to a jury than the way in which the Victorian judgment - - -

KIRBY J: It may be. It may well be, but why do you not then charge them as separate offences? That is one of the core principles of the English system of criminal justice, that accused do not have to go and answer charges that they are bad people, that they have to go and answer an allegation that they have done particular things. That is really at the very bedrock of our system.

MR PALLARAS: Of course, your Honour is correct, however, in these sorts of cases the law, as I understand it and as we have been discussing this morning in both cases, has developed to a point that permits in certain circumstances where the evidence is relevant to a fact in issue in the case, although it - - -

KIRBY J: The key to it all is in certain circumstances and the directions that must then be given against misuse of the evidence. That is what this debate is about.

MR PALLARAS: Yes, your Honour, I respectfully agree. The directions that must be given, one would submit, are those directions which give the jury the most assistance in these sorts of cases.

HAYNE J: If that is right, and I would have thought it was, what do you make of the last sentence on page 17 and, perhaps more relevantly, what would the jury make of the last sentence on 17, you may use:

the evidence concerning the uncharged acts you may use that evidence when you consider [the complainant’s] evidence as to the charges on the information and whether you are prepared to accept that evidence or any part of it.

What is the jury being told?

MR PALLARAS: Your Honour, in isolation not much in that sentence, but the whole of the two preceding pages details five separate ways in which they may use the evidence and then how they may not use the evidence. In our submission, this jury was given very clear instruction on what they may do with those findings, what they may do with the evidence if they find it to be so and what they may not do. They are specifically warned against how they may not use the evidence, line 28, the second-last paragraph on page 17.

The sentence that your Honour has just referred me to in itself perhaps is not as clear as we would like but is a summation, in our submission, of what has gone before. To be told, as my learned colleague, Mr Kimber, has already submitted, that the evidence only goes to the question of the relationship does not tell the jury in what way they are to use it, nevertheless, what aspects of the relationship are relevant.

In this judgment the learned trial judge has in fact set out the aspects of the relationship that are relevant to the jury’s consideration in their determination of credibility of the witnesses. I come back to the point that I made earlier, when they are determining the issue of whether the relationship exists they are in fact determining the question of the credibility of the witnesses and that must, as the trial proceeds, impact upon these other issues.

It is not being suggested yet, I do not think, although perhaps that last question from your Honour Justice Hayne may be suggesting, that the points that are set out and elucidated at pages 16 and 17 of the appeal book in the judgment are incorrect in law. What they are doing is they are going further than the Victorians. They are not. With great respect, I think for your Honour Justice Kirby who may have stated earlier that the Victorian view is a tougher view, in our submission, is a more restrictive view.

In our submission, the South Australian approach, or the approach adopted in the cases that we have been discussing is a more helpful approach to a jury, does not restrict their understanding of the evidence and must flow as a matter of logic from a finding of the relationship to impact upon those other issues that have been identified. We submit, with great respect, that although the terminology is different in fact what is happening is the same thing; what a jury is being asked to do is determine issues of credibility.

It is particularly relevant, I think, with the comment I think your Honour Justice Hayne also made earlier that evidence is not to be adduced in relation to an amorphous concept of background. If that were the case here, then there would be other causes for complaint from my learned friend but they have been specifically identified for the jury, the purposes for which this is relevant. It is important, I think, to note that it is not suggested that these matters are irrelevant and if they are relevant to a fact in issue then the jury need to be told about them and to do so cannot, in our submission, create a miscarriage or create an unfairness.

Indeed, in many ways, had they not been told what to do with this evidence in such a specific and a detailed way, according to the law that is applicable now in this State, then there would be a reasonable complaint by my learned friends.

KIRBY J: I think I have seen judges have written something like this, “The problem is not that the evidence is irrelevant, the problem is that it is too relevant and that therefore you have to ensure that it is not misused.”

MR PALLARAS: The importance of the cautions, then, and the warnings become paramount. I reiterate that when a trial judges uses as strong a language as this trial judge did in addressing the jury on these points, then that is, with great respect, all that the learned trial judge could do. He gave the necessary warnings with sufficient clarify and severity to guard against that very fact, the fact that this evidence is significant evidence in anyone’s language, it is important evidence, and it must be properly explained.

KIRBY J: One of the things we would have to look at if special leave were granted is whether there is not wisdom in what Chief Justice Doyle said about the desirability of the judges being brief. I just get a bit of an impression that in South Australia there is an elaboration of the uncharged acts and their detail as if they are counts of the indictment and that that gives them a weight and a detail and significance in the jury’s mind that if they are to have that weight and significance they should be the subject of separate counts.

MR PALLARAS: Your Honour, I think that the intention always is to try to clarify matters. They are difficult areas, both evidentially and from the judge’s perspective. Whether that intention is promoted or otherwise by being more, perhaps, detailed than not is a matter for judgment. In my submission, in this particular case the particular areas that are said to be relevant are very concisely put and there are five areas covered in less than two pages of discussion.

KIRBY J: This was the case about the G-string, not the earlier case of SB?

MR PALLARAS: Your Honour, yes.

KIRBY J: Yes.

MR PALLARAS: Although I hear what your Honour says about certain judgments, in relation to this judgment, it is our submission that they are clear, that they are clear warnings and clear descriptions of the relevant categories of evidence. The position that is well regarded in this State and judges are well aware of it perhaps can be indicated at paragraph 47 of the judgment of the Chief Justice in Nieterink, and it is only a brief passage where the Chief Justice, when he is talking about background, et cetera, says:

I do not suggest that it is an error to use either term, only that clarity of thought, and guidance for the jury, is promoted by being more specific.

That may be the approach that is being followed and the justification for going into more detail perhaps in other jurisdictions. In my submission, in this case it has worked, that it is clear, that the judgment is helpful. If I could move, your Honours, to the specific questions raised by my learned friend in his application.

The issue, if I could define it, seems to be that there has been an unfairness in the jury not being told that, as a result of the Victorian inquiries, in Victorian investigations, no charges were laid or no convictions were obtained, no trial was even conducted. The question then is whether or not when the judge ruled that fact to be irrelevant whether that was a correct application of the law of evidence. In many ways, we would submit that that is not a special leave point, that it is simply an application of the facts of this case to a very well-settled area of the law in terms of admissibility, but beyond that we would say that even if that evidence was said to be relevant, that is opinion evidence of someone else in a different State and could not assist the jury as it was described to them by the Court of Appeal here, could not assist the jury in properly coming to a decision in this particular case.

We say firstly, we submit, that there is no special leave point in that question and that it goes only to a question of whether or not a well-established principle in relation to the admissibility of evidence has been properly applied. The hypothesis that is offered is that the jury may have speculated against the interests of the applicant, notwithstanding the very many and, we submit, very clear warnings against doing precisely that. Often there are complaints that notwithstanding the judge’s charge to the jury there is a risk that something might happen contrary to his charge but, again, on a reading of this particular judgment we would submit that there is a very clear indication, a very clear direction and a prohibition against the jury doing what friend fears may possibly have happened.

In relation to the second question raised by my learned friend that the Court of Criminal Appeal erred in finding that the trial judge’s charge was deficient in relation to the speculation question, it is more, we would submit, not so much a complaint of what was not said but, rather, what was
said did not go far enough. It was, rather, a question of sufficiency rather than absence of a proper direction. Even if the applicant is correct in that submission, we would submit, it is clear that – and this Court has said many times that a misdirection of itself, leaving aside the issue of raising Vonarx for the moment, but a misdirection of itself will not usually and ought not in this case, we submit, attract a grant of special leave unless we can say that it also raises a matter of general significance or goes to the administration of justice. As I say, I am leaving aside for the moment Vonarx. Absent of that point there is no other point which would justify that argument being raised to the level of special leave being granted.

In respect of the particular case, whether the administration of justice specifically has been impacted upon that, it is important then to look at the manner in which the trial was conducted and it is significant, we submit, a good indicator that no redirection was sought at the end of the trial in respect of that issue. What really this Court is now being asked to do, it seems to us, with respect, is to displace the view expressed by the court below on the impression that a direction created in the minds of the jury, displaced that opinion with the opinion of this Court. It is our submission that that is not an appropriate point for the granting of special leave. Unless I can be of any further assistance, your Honours, they are my submissions.

GUMMOW J: Yes, thank you, Mr Pallaras. We do not need to call on you, Mr Edwardson.

In each of these matters, SB v The Queen and HML v The Queen, there will be a grant of special leave.

In the first of them, SB, the grant will be limited to ground (a) on page 64 of the application book. In HML the grant will be expanded to include the addition of a ground 2.4 to be added on page 50 of the application book in the terms indicated orally in the course of submissions for the applicant.

The matters will be listed consecutively but HML will be listed before SB and between them they will take a day to a day and a half.

We will now adjourn until 2 pm.

AT 1.18 PM THE MATTER WAS CONCLUDED