HML v The Queen; SB v The Queen; OAE v The Queen [2007] HCATrans 547 (25 September 2007)

Last Updated: 25 September 2007

[2007] HCATrans 547

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A23 of 2007

B e t w e e n -

HML

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A19 of 2007

B e t w e e n -

SB

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A28 of 2007

B e t w e e n -

OAE

Applicant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 25 SEPTEMBER 2007, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC: If the Court pleases, I appear with my learned friend, MR C.S.L. ABBOTT, for the appellant HML. (instructed by Herman Bersee)

MR A.L. TOKLEY: If the Court pleases, I appear with my learned friend, MR C.S. GALLAGHER, for the appellant SB. (instructed by Gallagher & Co)

MR N.M. VADASZ: If the Court pleases, I appear for the applicant OAE. (instructed by Kyrimis Lawyers)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, for the respondent in HML. (instructed by Director of Public Prosecutions (SA))

MR A.P. KIMBER: If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the respondent in SB. (instructed by Director of Public Prosecutions (SA))

MR M.G. HINTON, QC: If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the respondent in OAE. (instructed by Director of Public Prosecutions (SA))

GLEESON CJ: Mr Game, is it proposed that we will hear arguments from the two appellants and the applicant and then the respondents?

MR GAME: Yes, your Honour, and to the extent that it may assist the Court, I have spoken with Mr Tokley and we will endeavour not to repeat each other.

GLEESON CJ: Thank you. Yes, Mr Game.

MR GAME: Just one other thing, we have discussed time and we think that the two appellants and the applicant might finish their cases before lunch.

GLEESON CJ: You are not under pressure to finish today.

MR GAME: I understand, your Honour.

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. The appeal of HML is all directed - apart from an issue about the Victorian Acts and the directions about whether or not there had been charges – to the directions that were given to the jury in respect of what have been called the “uncharged acts.”

KIRBY J: So there is no question, is there, in HML about the admission of the evidence?

MR GAME: No, your Honour, but to the extent that admissibility might be a prism through which one has regard to what possible uses might be made of evidence or what directions might be given, it has that significance for the case, but we are not arguing - - -

HAYNE J: Well, it must do, must it not, Mr Game, because a premise for debate is that the probative value of the evidence is greater than its prejudicial effect.

MR GAME: Yes, your Honour.

KIRBY J: Assuming that to be a comparison that is possible. According to Justice McHugh in Pfennig, it is not.

MR GAME: Yes, your Honour. I hesitate to say what various judges have said about the subject and this can be a very confusing area - - -

GLEESON CJ: Yes, fortunately a number of decisions of this Court have clarified that in recent years but in the olden days it was regarded as reasonably straightforward.

MR GAME: I will attempt to articulate things that make some form of sense.

KIRBY J: There does not seem to be much attention in the submissions to what has been happening overseas on this issue because it must be a common problem in all common law jurisdictions.

MR GAME: We have looked at the United Kingdom, Canada, and New Zealand and the cases are leading cases to admissibility, not to directions, as far as we can make out and we have referred to those cases.

GLEESON CJ: Mr Game, one of the problems concerns labelling but by “uncharged acts” do you mean evidence of conduct which would constitute a crime but not a crime with which the accused is charged at the trial at which such evidence is admitted?

MR GAME: Yes. The pejorative in it is that it is evidence of, shall we say, bad character.

GLEESON CJ: Evidence might show bad character but, for example - - -

MR GAME: Sorry, I am not trying to argue that. Yes, I accept that.

GLEESON CJ: Where a person is accused of being a dealer in drugs, evidence that that person has in his possession a firearm is within what you would call evidence of an uncharged act, is it?

MR GAME: Not in this context, your Honour, and I hate to use the two words “res gestae”, but the question in that case would be a direct question about admissibility of the firearm, that is to say, relevance of the firearm, but you would not apply, shall I say, a Pfennig-like test as to admissibility although you would ask yourself in Evidence Act terms whether the prejudice was outweighed by the probative value of that evidence. I am not sure but that is so closely connected with the offence - - -

GLEESON CJ: There are many commonplace examples of relevant evidence which, if accepted, reveals the commission of an offence in addition to the offence with which the accused is charged.

MR GAME: Yes, but I am not aware that the line of authority that we are dealing with here which involves what might be described in some senses as improbability reasoning has been applied at all in relation to acts that are intimately a part of the offence charged which reveal other criminality.

GLEESON CJ: But there could be any number of reasons why it is relevant to show that a person has committed an act which happens to be a crime but is not the crime with which the person is charged.

MR GAME: Yes, your Honour, quite.

GLEESON CJ: And it really is impossible to corral those possibilities, is it not?

MR GAME: Yes, your Honour, but one of the problems is that – and I say one of the problems – in respect of Pfennig there is, as it were, an unresolved – I hope we do not have to go into all of the questions about Pfennig, but one unresolved question about Pfennig is whether or not it applies in any case in which there is evidence of this kind which discloses, shall we say, a disposition to commit a particular kind of crime, even although its admissibility is not sought for that purpose or even although it is not disavowed for that purpose.

That is the point Justice McHugh makes, both in Pfennig and in KRM, which it seems anomalous that that should be the case but we are not here to argue that issue today. As Justice Hayne pointed out, the question in this case is what significance – the admissibility question may have an influence on the directions ultimately given, but the admissibility question, we would submit, does not necessarily determine what form the directions take or what uses the evidence is ultimately put to. I will come to that in a moment.

I wanted to say first that – as your Honours are aware the uniform Evidence Act has not hopped the border to South Australia yet – it has been assumed that this whole discourse is conducted in a statutory vacuum and that it is a common law exercise. I am not sure that that is correct and I had sent up to your Honours yesterday two statutory provisions which I would like to draw your Honours’ attention to because they may have some relevance to the question of the basis of admissibility. Could I take your Honours first to section 34I?

GUMMOW J: This is of the Evidence Act 1929?

MR GAME: Of the Evidence Act, yes, and that provision is reproduced as at the date of the trial. Section 34I is a strangely worded provision. It is intended, it would appear, as what in old-fashioned language might be described as a rape shield provision, but if you read down through subsections (1) and (2) it applies to any evidence which is not what is described as “recent sexual activities” and it applies to examination-in-chief as well as cross-examination, and the prosecution would clearly not be trying to get it into the evidence under subsection (2)(b), the purpose of which is to discredit the complainant, so that the minimum standard of admissibility of other sexual activities which do not fall within the exception in subsection (1)(b), then the Crown would have to establish substantial probative value and that the admission of the evidence is required in the interests of justice.

GLEESON CJ: Before you get there, there is a question of leave, is there not?

MR GAME: And you would need leave, yes. Now, this provision has never been considered in this context but it would seem to at least provide the minimum standard upon which sexual activities that are not excluded by subsection (b) would come to be assessed when the question of admissibility arises.

KIRBY J: You say this has not been considered by the Court of Criminal Appeal in these cases?

MR GAME: Not at all. In this context it has not been considered at all. While I am on section 34I, you will see subsection (5) abolishes the rule of practice requiring there to be a warning to:

the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.

That is a provision which is now uniform in Australia as far as I am aware. There may be one, I suppose, unintended but deleterious effect of a provision such as that; it distracts attention from something that the common law regarded as fairly crucial in cases like this which was working out what evidence was independent and what evidence was independent that, as it were, positively drove the prosecution case forwards. I make that point in no sense as an implied criticism of the provision. All I am saying is that the necessity for that discourse went with the introduction of this provision.

KIRBY J: When was 34I inserted into the Evidence Act?

MR GAME: It was first inserted in 1976. Then it was substantially amended in 1984. I am sorry, your Honours, we made an ineffective hunt for the second reading speeches yesterday but I will have them pulled out and sent up to the Court.

GLEESON CJ: There is, I suppose, one thing that is important to remember about statutes that talk about evidence being admitted or not admitted. If no objection is taken to evidence, then questions of admissibility do not arise.

MR GAME: True, your Honour.

GLEESON CJ: In other words, the statute might say that hearsay evidence is inadmissible, but you do not break the law by admitting hearsay evidence if there is no objection to it.

MR GAME: Not at all, your Honour, and I am not sure whether your Honours are referring to this case, but trial counsel objected to all of this evidence as far as we can see.

GLEESON CJ: But nobody dealt with it on the basis that there was need for leave.

MR GAME: No, your Honour.

KIRBY J: But this is a section which is addressed to protecting the reputation of the alleged victim of the offence.

MR GAME: Quite, your Honour.

KIRBY J: It is not directed at protecting the reputation of the accused.

MR GAME: Quite, your Honour.

KIRBY J: So what is the relevance of it in this case?

MR GAME: The relevance of it in this case is that it requires that whoever wants to lead the evidence has to show that the evidence has substantial probative value and that it is required in the interest of justice and my point is - - -

KIRBY J: I do not understand that. Do you derive that as an inference from the statute that the common law in some way moulds itself to the statute or - - -

MR GAME: No, my point is that section 34I(2) actually commands it.

KIRBY J: Yes, but that is permission to ask a question relevant to the reputation of the alleged victim. What is the relevance of that to questions that are asked that touch upon other acts alleged against the accused?

MR GAME: The trouble is, your Honour, (1)(b) extends it beyond reputation to sexual activities. As I say, it may be quite an unintended effect but it seems, at least on the face of it - - -

KIEFEL J: Is that meant to be sexual activities with persons other than the accused though?

MR GAME: It does not say that either, your Honour.

KIEFEL J: The part in parenthesis gives some indication perhaps.

MR GAME: Yes, again, I accept that, your Honour, but it uses the word “recent”. So you would have to interpret “recent” very widely to get yourself out of the section.

KIRBY J: Except that we surely would know that this is the South Australian version of legislation enacted in all the States designed to cut down on questioning of alleged victims.

MR GAME: Quite, your Honour, and I do not wish to distract the Court too long with this but it does appear to hit me at least that there does not seem to be an immediate answer to the proposition that that applies to non-recent sexual activities whether it is with the accused or with some other person.

KIRBY J: I would have thought your better point about the statute-free zone is that in Gipp this Court had to face the fact that in Queensland, and perhaps in other States, there are now specific and very detailed offences providing that you can charge a person and secure a conviction for maintaining a relationship and those offences are spelt out in terms as to what has to be proved. In the Queensland case in Gipp I think it was three acts in a time.

MR GAME: It is two or more I think usually.

KIRBY J: Therefore, that is Parliament’s response to the problem of relationship-type evidence. It has created a special relationship offence and we are dealing, as I understand it, with a common law case of common law crimes or perhaps crimes that were common law crimes recognised by State legislation which are specific crimes. They are not relationship crimes and, at least as I presently think, if Parliament wants to have relationship evidence in, it may be arguable that there has to be a relationship-type offence otherwise you are in the realm of the general rule of the specificity of particular crimes.

MR GAME: Yes, well, I suppose that the issue that the appellant, who I am representing, is confronted with is that the evidence was admitted and there were directions and it is to those directions that I really have to focus.

GLEESON CJ: Yes, but we are still concerned with section 34I.

MR GAME: Yes, of course.

GLEESON CJ: The opening words of section 34I(2) indicate that the rest of that subsection is concerned with a case of an application for leave under subsection (1).

MR GAME: Yes.

GLEESON CJ: Here there was no application for leave under subsection (1) and the judge was not making any decision about whether leave should be granted. So the question of granting leave under section 34I simply never arose in any of the cases with which we are concerned.

MR GAME: Your Honour, if it applied, then the failure to address the section would be an error of the kind in - - -

GLEESON CJ: No, that is the point I made earlier about admissibility of evidence. Most law cases proceed mostly on inadmissible evidence. The moment somebody says to a witness “How old are you?” he is inviting hearsay evidence and in 999 cases out of 1,000 if you object to the evidence, people would think that the man in the white coat should take you away.

MR GAME: Yes, I understand that, your Honour, but objection was taken in this case - - -

GLEESON CJ: But it was not argued that there was a need for leave and the trial judge made no decision about whether leave should be granted.

MR GAME: That is true, your Honour, but I would submit that if you have a statutory provision that is a statutory command in respect of whenever such evidence shall or shall not be led, if you object to that evidence, then you have an appealable error in the failure of the judge to apply the statutory provision, whether or not the word “leave” is articulated.

GLEESON CJ: Is this one of your grounds of appeal, that the judge failed to consider whether leave should be granted?

MR GAME: Not at all, your Honour. This is an introduction to explain to you what appears to be the statutory framework against which admissibility in South Australian cases involving non-recent sexual activities applies. That is the point of referring your Honour to it. So I am not concerned to argue that the judge made any error of that kind in this case. I am just saying that these are the admissibility spectacles through which one would look if one is asking questions about what directions might ultimately be given. May I also refer your Honours to section 18 which is the only other statutory provision which appears to have relevance. Section 18(1)(d):

a person charged and called as a witness in pursuance of this Act shall not be asked . . . any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –

(i) the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty . . .

(ii) he has personally or by his advocate asked questions . . . with a view to establish his own good character –

So that is the statutory framework through which the accused’s evidence moves in this case and I have a point about that later to make in respect of what have been described as the uncharged acts in Victoria. That is all I wanted to say about the statutory framework. Your Honours, in a case like this, we would submit, it may be important if one starts with relevance, one moves to admissibility into what might be described as what Chief Justice Doyle described as possible uses and then to directions.

HAYNE J: Does one go to possible uses then directions or does one go to the uses sought to be made in final address, that is, do you frame the directions according to the issues as joined at trial?

MR GAME: Exactly. That is how we would put it, your Honour. When one speaks of possible uses one may be talking about things that were not, as it were, the basis for which evidence was admitted. Some of the things identified in this case we would describe as pure credibility matters and that is not a basis for admission in itself. Likewise, you might identify a particular use and yet by the time you come to ultimate directions the so-called use has fallen away and it is not appropriate in some cases where one has an identified hypothetical use to direct the jury about it in the specific way in which it was done in this case.

GLEESON CJ: But at the time the evidence is admitted it is usually the evidence-in-chief of the complainant who is commonly the first witness in the case and at that stage the trial judge does not know what the defence is going to be. Sometimes at that stage defence counsel does not know what the defence is going to be.

MR GAME: No, that is true, your Honour. I will come in due course to how that might unfold in a case like this.

KIRBY J: Just going back to a question I asked you earlier, do you know if there is a relationship offence in South Australia?

MR GAME: No, there is not, your Honour.

KIRBY J: There is not?

MR GAME: No, your Honour.

KIRBY J: If you can get the details of that in due course, and when it came into force.

MR GAME: I said at the beginning that identified bases for admissibility may translate into ultimate directions, but it may not. One obvious example is what might be described as limited purpose admission which one sees every day in section 136 of the uniform Evidence Act or there might be limited purpose admission which became contentious in a case such as BRS or evidence might be admitted for a particular identified relevant purpose but ultimately, and we say in this case, when it comes to final directions it would be nothing more than something that weighs in the balance of the general credibility of the complainant; some for the good and some for the bad in terms of credibility.

For example, if the only significance was that an item was in a room was to show that it was not outside, once you have proved that the item was in the room, it may be of no further significance to say you may use this evidence in a particular way because you have driven away the necessity to address the fact that it is not outside the room. That is what, in a sense, happens in this context because the evidence all comes in for a variety of possible reasons but at heart to show a context which would make you wonder about the account if it had, shall I say, come out of the blue, but it does not come out of the blue. The jury hear that and once they hear that, that just becomes, in a case such as this where we only have the complainant’s evidence with one possible other piece of evidence, that is all it is and it is not appropriate to elevate it in our argument beyond that.

KIRBY J: I have seen this reference in the cases to “out of the blue” but it is of the nature of the specificity which is normal to our accusatorial system that crimes are isolated. They are little fragments of life. They are not giving the whole background and detail and everything that led to them and so on, motivation, psychology, all of that and I just do not see why the fact that it comes out of the blue is an excuse to introduce a whole background of material which is highly prejudicial and very difficult to answer.

MR GAME: Can I say this, your Honour. If that is all you are doing – and I think this is a point made by Justice McHugh and Justice Hayne in Gipp – then you do not need any level of specificity about the events. You merely need to identify the fact that such events or similar events have happened in the past. Nor do you reason from the evidence about those events to say again other than in a general credibility sense that this necessarily – it may have an effect to do so, but you would not direct the jury about making a finding about that as if it drives the Crown case forwards in an independent way.

I will come back to this issue about background and relationship shortly, but what I have said just now about the fact that bases of admissibility may or may not translate into directions is no more, in our submission, than an application of Alford v Magee which your Honour Justice Hayne referred to in Tully at paragraphs 75 and 78 and we are seeking to make a point at this moment which is no more than that, but it is important in the ultimate result when one looks at what the directions are and what the jury would make of those direction and in a case such as this, we say, an invitation to the jury to reason in an inappropriate way. I will come to why I say that shortly.

KIRBY J: Can I just interrupt to say this, that in a sense this case or these cases are a bit like Swaffield and Pavic. There had been a degree of imprecision and uncertainty and so on and then two cases came up to this Court where the Court strove to express the conceptual framework that was thereafter to be applied and I think that did bring a degree of conceptual clarity into the law. I am just finding it hard to look at the issue of directions divorced from the issue admissibility and you do not seem to really – it may be the way your case was run at trial, I do not know. Maybe others are going to argue the admissibility question, but the logical first step is to look at admissibility and then, depending on what can be admitted, to look at what directions are apt to what is admitted. But you are not taking us through that so we are not going to do a Swaffield and Pavic. We are simply going to add ratio and dicta that add to the confusion of this area of the law. The whole point of the three cases is to try and - - -

MR GAME: I hope not, your Honour, but I am trying to state what appear to be some appropriate basic propositions about - - -

KIRBY J: The only one I have noted so far is your first proposition you have got to get clear the statutory context which this Court has repeatedly said and that takes us to the Evidence Act and there is not a lot there.

MR GAME: No, then I said that admissibility may or may not translate into possible uses and then I said admissibility may translate into directions, but it may not, depending on the conduct of the case and that was the point I was making then. The next point I wanted to make is this. What use you make of evidence – and I am now talking about use leading into directions – might depend on how you prove a fact. So that if a complainant gives a history – say a complainant says – and this complainant did say in this case – it went in more previously, sexually and then you say, well, what is the previously, and that becomes part of the relevant evidence. It is evidence relevant to explain a fact in issue, the previously.

So that evidence comes in, but that evidence does not, if it stands alone, drive the complainant’s evidence forwards other than in an internal credibility consistency sense. But, if you add one more fact and you have a surveillance camera that actually filmed that previous incident, then you now have a situation in which you have an independent evidence relating to that incident.

Now, you have a situation in which you are not driven into what might be described as circularity because you can reason forwards in the case, maybe in a propensity sense and maybe not, but you can reason forwards in the case from the evidence which is coming from the other source. Our opponents make a point about whether it needs to be truly independent. There are some circumstances in which it might not need to be truly independent. For example, if a child describes something that is very idiosyncratic which to the child is not an account of a sexual thing but understood by a jury they would appreciate its significance, then that idiosyncratic thing might have that effect.

To give you an example, if you said, “Did anything happen in the past?” “No, but when I was four my stepfather used to do push-ups on me,” so you might – in that case an adult might think that is very suspicious, it may drive the account forwards even though it is not truly independent. But that is not the way the common law dealt with that kind of evidence. The common law said, let us see what the evidence is which is independent and which independently tends to incriminate, and that was the test for corroboration.

In that case it is appropriate to isolate the evidence, and it is appropriate to give directions that that evidence can, in a positive manner, not a defensive manner, can positively drive the prosecution case forwards, not just to an inference about that incident, in fact, not to an inference about that incident solely but towards an inference to guilt, and that is the way in which the common law has, as it were, dealt with this problem in terms of appropriate directions. It has looked very closely to see what is independent and what is not independent and what drives the case forwards.

HAYNE J: But did that, by reference to issues - the relevant issue you have just identified was the legal issue concerning corroboration and the direction that was given to the jury concerned the resolution of the issue that thus was tendered.

MR GAME: Yes.

HAYNE J: I understand that necessarily your argument must grapple with some abstract concepts. Do not for a moment take what I am about to say as criticism of that attempt on the contrary, but at the end of the process you are concerned with what directions the judge is to give the jury. That turns on what is in issue in the case.

MR GAME: Yes.

HAYNE J: Relevantly, an area for debate, perhaps a large area for debate in this case, is can the judge, should the judge, tell the jury what they can use the evidence for; can the judge, should the judge, tell the jury what they cannot use the evidence for. Now, the two are radically different and distinct, I think. Telling a jury how they may reason seems to me to stand arguably in a very separate character from warning a jury, “You may not reason X, Y, Z”.

MR GAME: Yes. We would adopt that as integral to our argument because what we are saying in this case is that these directions – there is an important need for some directions about ways not to use this evidence. Much of these directions about using the evidence are really misleading because they are inviting the jury to reason in a particular way, which is very unlikely to be the way that a person thinking rationally about this would reason.

HAYNE J: Misleading or not, what is the judge doing? Is the judge giving them directions of law, commenting on the evidence? What exactly is the judge doing when he or she says “You may use this evidence to follow this path of reasoning or another path of reasoning”?

MR GAME: Absolutely, your Honour, but in fact the very words “You may use” invite a question about what it is that you are doing with it.

GLEESON CJ: Is there a statute relevant to this? There are some jurisdictions in Australia where there is a statute that says a judge may make such comments on facts as the judge thinks fit, for example. Is there any relevant statute here?

MR GAME: I am not aware. There is a section – sorry to say this – there is a section in New South Wales that says that the judge – it does not say that, it says the judge may or may – he is not obliged to sum up on the facts, but I do not know that provision specifically - - -

GLEESON CJ: Anyway, I just wanted to check whether there was any statutory provision relevant to the question that Justice Hayne asked you.

MR GAME: No I am not sure that there is, but I will come to – yes, but what your Honour, Justice Hayne has put - whether or not it means that I should succeed is another matter entirely, but we would adopt that as the appropriate way to approach this question. Now, again, before proceeding further I wanted to just pause and identify some kinds of reasoning.

KIRBY J: All of this appears to assume that the evidence is admissible because relevant in some way.

MR GAME: Yes, your Honour.

KIRBY J: Now, is that an assumption you are asking the Court to make, because it is not necessarily one I feel comfortable making.

MR GAME: Well, it is an assumption that I regret to say I am stuck with in this case.

KIRBY J: Is that because of the way the case was run at trial? Is that what you say?

MR GAME: No, your Honour. In fact, the objection was taken to the admissibility of all of this evidence. Then other counsel on the appeal argued a limited question relating to the directions, and then on the special leave the ground was extended by the court – sorry, in relation to the direction specifically and the admission of the evidence relating to the fact that the accused was not charged in Victoria – then on the special leave application at the court’s invitation, the ground relating to the – insofar as it picked up these directions, was expanded into a new ground that became a ground about these directions.

GLEESON CJ: Yes, it appears on page 551 of the appeal book, and there is not a word in the grounds of appeal to suggest that the evidence was inadmissible. In fact, the main point that was argued before the Court of Criminal Appeal and that constitutes the basis of three of your four grounds of appeal is a point concerning what should and should not have been said to the jury about what legal proceedings did or did not occur in Victoria.

MR GAME: Yes quite, your Honour, and I am sorry that I cannot answer your Honour Justice Kirby’s question.

HEYDON J: But whether or not you are stuck with any rulings of that admissibility, if the evidence was ruled admissible, as it was, we have to know on what basis.

MR GAME: It was ruled admissible but no reasons were given and - - -

HEYDON J: The possibility must have been left open that there was only a limited range of uses, only a limited category of forms of relevance. Here, admissibility and use become the same issue, do they not, because the evidence was inadmissible for some purposes but admissible for others because it was irrelevant for some purposes and relevant for others? Now, do we know was there any common ground on what was relevant and if there was not common ground what was the field of controversy?

MR GAME: I am not sure that I am answering your Honour’s question properly, but all that happened was the prosecutor went through all of the evidence that she wanted to lead, defence counsel objected and then the judge said he would admit it. It is page 34, line - - -

KIRBY J: I notice that in the submissions in SB there are arguments about admissibility, but when I look at the notice of appeal there on page 371 of that appeal book it too is confined to directions being inadequate. In any case, as Justice Heydon points out and as Justice Hayne pointed out earlier, you cannot frame the objections without knowing the matters for which the evidence is admissible, if anything.

MR GAME: No, your Honour, but what was done – this is not intended to be disrespectful – but it was a shopping list in effect of the uses identified by the Chief Justice in Nieterink. Those uses were not the guide to admissibility. Some of them include purely defensive credibility things like why she did not complain earlier and so forth.

KIEFEL J: To what issue do you say that the evidence was tendered by the prosecution from what you have explained before? It arose only during the complainant’s own evidence, it is supportive of her evidence and the defence has inquired about nothing which would give rise to some question relating to her evidence so it is a defensive strategy. Is that right?

MR GAME: Yes, your Honour.

KIEFEL J: So how do you frame the issue when you are having regard to a defensive strategy?

MR GAME: If the defensive strategy is, shall I say purely credibility based, then you would have to create an exception like the exception created for complaint evidence to show internal consistency and the jury would always direct it in complaint evidence that it is only for internal consistency, it is not capable of corroborating the complainant. But I am not aware of an admissibility exception except to refer your Honours to Justice McHugh’s judgment in Palmer where his Honour made the point that the distinction between credibility in fact in issue is often a very difficult one to draw.

KIEFEL J: Are you accepting that it is credibility to which the evidence was tendered because it is to support a potential adverse inference that might be drawn by the jury, left unexplained.

MR GAME: Yes, essentially your Honour, but can I say this. It may be that the evidence is admitted hypothetically on a slightly wider basis, but then is only used and only appropriate to be directed on in the context of credibility. Let me give some examples. This complainant said that it was the first time that he “did this”, which was a reference to fellatio. That immediately invites a question about what other things he did do if that was the first time he did this thing so it may be a relevant fact to admit some evidence about that. But, ultimately, that piece of evidence and the other what I would describe as subsidiary relevance only becomes an aspect of her general credibility and the reason is this. If you take the fellatio example, there were prior inconsistent statements where she said that it had happened when she was a little girl, when she was five, and there were prior inconsistent statements that she said it happened every time that she went to Drik Drik.

That evidence is evidence in effect of prior inconsistent statements and it purely goes to her credibility, but so too in this context does her evidence about the fact that there were other acts. That is like with like. All you are doing is measuring her account internally. So we have identified what might be described as an issue of subsidiary relevance, but by the time we get to directions to the jury, to use my metaphor before, the elephant is in the room. There is no need – there is no point in directing the jury in relation to what could be described as the subsidiary relevance which brought it in.

May I give two other examples. The one I gave before, which was in respect of the other count, it was harder for the accused to do it this time than previously, invites evidence as to what happened previously. A third example – I am not sure how strongly this is founded in the evidence, but the complainant did say something like this, “I cannot remember all the details because it happened so many times”, or something like that. So if you say “I can’t remember the details because it happened so many times”, you will not find out all the details, but a fact comes into the evidence that it happened lots of times.

But there is no need, unless it goes further, for any specificity in respect of this evidence. The Crown pushed for it all to go in and it all to go in with both generality and specificity. So just coming back to some types of reasoning about - - -

HAYNE J: Just before you part from that issue, do you accept that the evidence of the complainant could not be confined to the events of the day charged?

MR GAME: Yes, I do accept that. But can I say that - - -

HAYNE J: It follows that something more is permitted. How much more is permitted than her saying, “I was in the hotel room at place X, date Y, when event Z happened”? How much more can be given than those bare facts?

MR GAME: My submission would be that unless you are going to have what I might call an extension of the complaint rule coming in as credibility, then at the moment when the objection is taken it may be that all that comes in is the general evidence that explains those things that I have just given your Honours some examples of. That much will come in.

HAYNE J: Well, it would come in that there was the relationship between the parties, that the occasion for her being in Adelaide was some surgical procedure, was it not, or some medical procedure?

MR GAME: Yes.

HAYNE J: Is the line you say to be drawn at any conduct that is discreditable to the accused man?

MR GAME: The line in the evidence-in-chief is well before that, but I hesitate in answering your Honour because – well, I am trying to answer it, but I hesitate in being too definite about this because, realistically, if you allow that body of evidence in then the whole thing is going to unravel because - - -

KIRBY J: What body of evidence?

MR GAME: The body of evidence which establishes in general terms the existence of a relationship and (a) and (b) those pieces of evidence which explained the things in relation to the incident itself, those examples I gave your Honour like this had not happened before, that happened differently before and so forth. The reason I hesitate is this, because once that evidence comes in, there is a very real chance that the whole thing is going to unravel because the defence will be forced to cross-examine on prior inconsistent statements that I gave you examples of, like saying that fellatio happened every time at Drik Drik, or it happened when she was five, and so forth.

I think that, in a sense, is why I am very hesitant about going down the road of complaining about admissibility because you can see that it is going to unravel once a part of it gets in because the defence will have to make a tactical decision to cross-examine on that because now there is a real prospect that the general account of sexual abuse is going to lead to an inference - - -

HAYNE J: But what causes it to unravel is you cannot get a complainant, even if the complainant is adult by the time he or she gives evidence, to give the evidence in a way that focuses wholly and solely on the events on the day charged. That is the difficulty.

MR GAME: I accept that. I would make it very plain that if one is only using this evidence in what was described in the joint judgment of his Honour Justice McHugh and your Honour Justice Hayne in Gipp, if it only comes in to explain that part of evidence and to establish what is called background in a general sense, there is (a) no need in the prosecution case to, shall we say, resort to all of the specific incidents but (b) this is not something that is driving the prosecution case forward in the same way as evidence of what is called sexual passion or sexual interest which was treated very differently and has been treated very differently in the judgments.

KIRBY J: I thought there was a suggestion in this case that the G-string present was evidence that fell within the so-called exception about sexual attraction or sexual passion.

MR GAME: Yes, I accept that, your Honour, but can I deal with the G-string shortly because I am going to come to it shortly and I appreciate that it has to be dealt with. Just at this moment I wanted to pause and refer to some types of reasoning and the types of reasoning have some relevance to the directions ultimately given. Now we are moving away from what might be described as purely background but a suggested non-propensity reasoning is said to show that the appellant is sexually attracted to the complainant. It is said to show that he has a particular state of mind. That is said to be non-propensity reasoning.

The second kind of reasoning would be something like this. The appellant did something in a particular manner on a number of occasions, therefore he is more likely to do this. That is part of Pfennig. Pfennig in fact involves propensity and coincidence reasoning. That is what I would call the second type of reasoning and that is a form of propensity reasoning.

In this case that propensity reasoning would be, what chance did the appellant having this propensity, that is to say, an abusive one, of not abusing his daughter when he was alone with her in Adelaide and that is that form of reasoning. We would say that in this case that form of reasoning was eschewed and was not appropriate.

Then the next category is clear propensity reasoning and it may be very similar to the last, but because the appellant did something X times, therefore he did this. Those two, the second and third, are very close. The last is what I would describe as overt propensity reasoning which is what was warned against in this case, which is because he is the type of person therefore he would do such and such. That is the direction that was given and that has got little to do with this case, although that direction was given. When we talk about propensity reasoning it is the third, or the second and third, that one is attempting to avoid in a case like this.

GLEESON CJ: There was an expression that was used in the older cases in an attempt to cover that, the expression being “mere propensity”.

MR GAME: Yes, your Honour, exactly.

KIRBY J: They are not the only modes of reasoning that I see in the cases. My little list was there was propensity and then there was because it is part of the context, in order to show that it did not happen out of the blue, because it was an indication of a relationship or grooming, because it explained sexual attraction or guilty passion and because it explained why the complainant did not complain promptly as one might otherwise expect.

MR GAME: I will deal with those shortly, your Honour, but a number, if not all of those, that you have referred to have no relevance to these categorisations of modes of reasoning because they, in my submission, are essentially what I would describe as matters, a number of them, that went to the general credibility of the complainant.

KIRBY J: Yes, but we have to solve these appeals but we have to do it in the context that is a conceptual context of approaching the problem that is presented by the two appeals and the application. I speak only for myself, but I would have thought where the Court has collected three cases together that it is a clear indication that we are looking to the Bar table for assistance in dealing with the concepts and hopefully in a consistent way that helps trial judges throughout this nation.

MR GAME: I am sorry, your Honour, I am actually trying to do that but whether I am doing it effectively is another matter. But maybe what I say will become a little clearer when I come to what was actually said and can I say also, your Honour, as unsatisfactory as it may sound, I am actually trying to give a conceptual framework that does go beyond this particular case to give some context as to how one would deal with this kind of evidence. Maybe it will become a little bit clearer when I go to the summing up itself, but now I want to make a general comment about the structure of the directions that we see in this case. If your Honours go to page 505 of the appeal book. Now, you see at page 505 line 49:

The Crown case depends entirely upon the evidence of [the complainant]. There was no other evidence to support her evidence, consequently you must examine her evidence with careful scrutiny in light of what counsel have said to you –

Then you can see the rest of the words. Now, you see at page 506 a direction about delay, line 20. That is taken from the South Australian statutory provision 34I, I forget the subsection that I showed your Honours before, and this Court has given a decision in a case called Crofts that says in a case like this you have to give the counter side of that if there is evidence that touches on that. Again, that is purely directed to credibility.

Now, there is other relevant material between this, but then we come to these directions at 510 and 511 which are at the heart of this appeal. Before I go to those if your Honours would turn to page 518, lines 40 to 52 and 55? Now, this is in the context of something like a Longman warning:

Because of these matters I warn you that it would be dangerous to convict the accused on either count on the evidence of [the complainant] unless, after scrutinising her evidence with great care, and considering the relevant circumstances and this warning, you are satisfied as to the truth and accuracy of the evidence of [the complainant] as to each count.

Now, if you take that and then you move back to page 511 at lines 20 to 35 you see that his Honour says at the end of those directions about uses:

I direct that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it. Only then, if so satisfied of the truth of it, or of any part of it, may you use that evidence of which you are so satisfied when you consider the credibility of [the complainant] in relation to each count on the information and whether you are satisfied beyond reasonable doubt that either or both of them occurred.

Now, just pausing there, corroboration in the old sense does elevate the credibility in what I might describe as the “capital C” sense in leading towards an inference towards guilt, but many of these things that are identified as uses do not. Now, if we go to the bottom of that page you see his Honour said:

If you accept any of 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.

Now, that is totally circular and it invites a process of reasoning which is most improbable which is that the jury would make a reasoning on our evidence towards a conclusion about the uncharged acts and then would proceed to consider that in relation to whether or not, as it were, in some larger sense her account is accepted.

So the circularity which is at the heart of this is that you will only conclude these matters, particularly – I will come back to the sexual attraction one shortly – at the point at which you are satisfied the complainant is telling the truth. But the jury here are being asked to believe the complainant in respect of the uncharged acts and then he advanced the case.

This is not a harmless error, because what is happening here, when you combine what I took your Honours to at 505 with 518, that little passage in the middle of 511, in effect it is driving the prosecution case forwards in the sense of corroboration, because the jury have been told they can use that evidence in a sense that drives the prosecution case forwards. Most of this is credibility material. Most of it is defensive - - -

GLEESON CJ: It was on the previous page, was it not, that he told them how they may use it?

MR GAME: Yes.

GLEESON CJ: On page 510 he said:

this evidence is led by the Crown so that you may have an understanding of what is said to have been the relationship -

In other words, it provides a background. Then he says:

The further use of the evidence of the uncharged acts may show why it was that the accused was confident enough to ask for oral sex –

et cetera. So the directions on page 511 have to be read in the light of the directions on page 510.

MR GAME: Absolutely, your Honour, but that is my point. Whether it is good or bad, that is my point. I will take some apparently clear ones. Take the “was confident enough”. Now, that is all about the complainant’s credibility, because what you are asking yourself, it is just another way of saying if it had happened, as your Honour said, “out of the blue”, how could he possibly have summonsed the confidence to do that? That is exactly what it is. It is an assessment.

It is all about her account and it goes to assessing the credibility of that account. Even though it is concerned with an act of him, it is an act of him which you are talking about when you are measuring whether or not you accept the complainant’s evidence. You do not use that evidence in the way that the judge gave at all. It does not have that forward thrust. The same for “why she acquiesced in Adelaide”. Again, that is a comment about her account. It is a comment about the internal consistency of her account.

HAYNE J: It is comment or direction?

MR GAME: It is a direction, sorry. Sorry, it becomes a direction because of what is said at 511.

HAYNE J: What is the content of the direction?

MR GAME: The direction is - - -

HAYNE J: Not the words, but what sort of direction is a judge giving the jury in this context?

MR GAME: The direction the judge is giving is that these identified uses are uses that may assist you in, as it were, advancing the Crown’s case towards guilt and - - -

HAYNE J: What is the role of the judge to direct the jury about permissible chains of reasoning, whether towards guilt or otherwise?

MR GAME: Not at all.

GLEESON CJ: Is a judge entitled to say, “You may think that the fact that there was a longstanding sexual relationship between these people helps to explain why he was confident enough to do so-and-so?”

MR GAME: You may take that into account when you consider - - -

GLEESON CJ: Can the judge say, “You may think?”

MR GAME: Yes, but, your Honour, it is not - - -

HAYNE J: That is comment.

MR GAME: - - - a direction. This becomes a direction because what happens on line 20 on page 511. What we have here - - -

GLEESON CJ: What he says on page 510 is:

the uncharged acts may show why it was that the accused was confident enough - - -

MR GAME: Yes, but, your Honour, you do not use that in the sense that is being put forwards. The only use of it is an aspect of her credibility, which you would not put that in these directions at all. You would simply when saying arguments have been put about why you should or should not accept what the complainant says. The prosecutor has put to you that this is a consistent account and the credibility of the count is shown by the fact that she said it occurred over a number of years and that has an internal consistency. You would never identify these things as possible uses and allow them to drive the prosecution case forwards.

GLEESON CJ: Because there were no complaints about these directions and because there is no reasoning on the subject in the Court of Criminal Appeal because there was no ground of appeal about it, we are, as it were, looking at this with fresh eyes but what he said on page 510, as I read it at the moment, consists of three things. The first thing he says in the paragraph beginning “Secondly” is why the evidence was “led by the Crown”, in other words, he is repeating an argument of the Crown. Then the next thing he says, and there is a grammatical error in the transcript, is “the uncharged acts may show why it was that the accused was confident enough” to do certain things and then the next thing he says is “It may also show why she acquiesced in Adelaide” and then he says, “it may also indicate”. On the next page he says “inappropriate behaviour . . . may go some way to explain” and they are, as I understand them, what the judge said to the jury about the relevance or potential relevance of the evidence, is that right?

MR GAME: That is not all but, yes, that is correct. Each of those things on analysis in terms of ultimate directions and use and the reason do no more than form a general part of the credibility of the complainant. There is no sense in which you would direct the jury that you could use those things. They cannot elevate them. If you take the last one, “why there was no earlier complaint”, “no earlier complaint” is the flip side of early complaint.

GLEESON CJ: To say conduct “may go some way to explain why there was no earlier complaint”, is that, in your taxonomy, direction or comment?

MR GAME: Before his Honour gets to line 20 it is a comment but it becomes a direction at line 20 in just the same way as if his Honour had directed the jury that speedy complaint could be used to advance the prosecution case. That is reference, as I have said, when his Honour is talking at 511, lines 10 to 20 about “earlier complaint” that is what I have called general credibility. That is not the same as the credibility you are talking about in line 30 because in line 30 you are talking about the credibility that drives the case forwards to an inference of guilt in the same way as corroboration achieves that end.

GLEESON CJ: The ground of appeal that touches your criticism of what appears on pages 510 and 511 is, is it not, ground 2.4 on page 551?

MR GAME: Yes, your Honour, but I would like to delete or I would like you to ignore some words. I would like the ground to end after the word “inadequate”.

GLEESON CJ: All right, so you want to amend the ground of appeal by deleting what appears in 2.4 after the word “inadequate”?

MR GAME: Yes, your Honour.

GLEESON CJ: Is that objected to?

MR KOURAKIS: No, your Honour, I am happy with that.

GLEESON CJ: You are happy with that? Thank you. Yes, you have that leave.

MR GAME: Thank you.

KIRBY J: I like the use by the Chief Justice of the word “taxonomy” because it is nice to think that that is what we are actually involved in here but I must confess to you I really have not seen your taxonomy yet but at least one taxonomological point must surely be whether you have to give directions that uncharged acts have to be proved beyond reasonable doubt. That, after all, is what Justice Debelle said in dissent in the application that is before us and it is what Justices Bleby, Sulan and one other judge in South Australia have said and it is what Chief Justice Doyle left the jury to infer in Nieterink.

MR GAME: Our answer to that question is that if you are talking about what is called sexual attraction or sexual passion, as a general proposition we would agree that it has to be established to a particular standard and, we would submit, that standard is beyond reasonable doubt. I am coming to sexual attraction now and how it is dealt with. But all of these other things no standard applies to any of them because you are not asking for any finding to be made about any of them. All of them should fall out of the directions in this present context.

KIRBY J: Just looking at the passage on 511 that you took us to at line 20:

I direct you that you may not act upon the evidence of the uncharged acts unless and until you are satisfied as to it.

That does not indicate “satisfied” according to what standard. Normally one would think that simply means that you are satisfied that it has been proved, ie, the civil standard, and you do not have a specific ground of appeal, do you, on this point.

MR GAME: We do make submissions about it, your Honour. There is an argument that is put against us. We say that the structure of page 511, line 22 would suggest something less than satisfaction beyond reasonable doubt. What is put against us is what appears at page 499, lines 10 to 20. We do submit that it is hardly likely that the jury would, as it were, pick up what was said at 499, lines 10 to 20.

GLEESON CJ: That is interesting, because what the judge did was follow precisely what was recommended by Chief Justice Doyle in the case to which you referred earlier.

MR GAME: Exactly, your Honour.

GLEESON CJ: What Chief Justice Doyle said in that case was that the jury will probably understand this as meaning beyond reasonable doubt.

MR GAME: Exactly, your Honour.

KIRBY J: But it is a slide-over. We should be clear one way or the other instead of leaving it to inference, one would think, comforting ourselves that the jury will misunderstand us as meaning the criminal onus, though we do not say so. It is better that this Court clear up one way or the other what it should be. That is a sort of taxonomy question as to where we need your help. What do you say it should be? What have the cases said on this? Why have they not said it has to be beyond reasonable doubt given how prejudicial and damning it is and how it tempts the prosecution not to charge crimes but to simply charge one or two and then leave the others to be slipped in as irrelevant to the particular crimes but highly prejudicial to the accused as general background material?

MR GAME: Yes. Our argument is, if it is appropriate to leave what are described as uncharged acts as evidence of guilt in the sense of being positive evidence of sexual passion or something of that kind, then it is appropriate to direct the jury that that has to be satisfied beyond reasonable doubt, and I will - - -

HAYNE J: That carries within it an assumption about the degree of specificity of that which is given in evidence.

MR GAME: Yes.

HAYNE J: If the bottom line of the submission is that the jury should be told to ignore anything except that which is specific, let us grapple with that. If it is not, do not hide it beneath the standard of proof question.

MR GAME: I accept that too, your Honour, but I was going to explain it later but I will explain it now. First of all, in respect of 510, our point about “you are satisfied” is we say that the jury would not think that that meant beyond reasonable doubt because of the ending words in the paragraph “and whether you are satisfied beyond reasonable doubt”. I do not think the Chief Justice contemplated that the next words would come in. But I may say this in respect of the standard of proof about this question of sexual attraction.

If you have an independent line of evidence that might lead to an inference of sexual attraction, which we do not have in this case and I will come to shortly why the whole exercise involved some secularity, but say that one does, now, the “beyond a reasonable doubt” aspect would come in in this way. Say this is a form of reasoning, we generally accept what the complainant says, but at the moment we are entertaining a doubt. We require something further.

If that something further is the independent evidence of sexual attraction, if you were going to give this direction you would be leading the jury into error if you invited them to reason about that to less than the standard of beyond a reasonable doubt. There is a case which is on our list which I will not take your Honours to called WRC, which is a judgment of Justice Hodgson, where he examined this very question in the light of the Evidence Act before this Court’s decision in Ellis and the Court of Criminal Appeal’s decision in Ellis which affirmed, in effect, that Pfennig does not apply to the Evidence Act.

KIRBY J: Could you help me on this. I may have once known, but I am not sure that I know now. First of all, is there any statutory provision in the nation that we should be aware of? Is the uniform Evidence Act specific to what onus applies, and, secondly, has this Court said anything? I know that there have been dicta about links in the chain and matters of that kind, but what is the position of the common law in relation to proving the uncharged Acts?

MR GAME: Your Honour, I think that in Gipp a majority said that if it is used as evidence of sexual interest or passion, it has to be established beyond a reasonable doubt.

KIRBY J: In which case?

MR GAME: I think that was the effect of the majority in Gipp. There is a case that is in a different line of territory - - -

KIRBY J: But Gipp was the relationship statute.

MR GAME: Yes, your Honour, that is true.

KIRBY J: So it is a horse of a different colour.

MR GAME: That is true. It was not Gipp. KRM is the relationship offence; Gipp is not a relationship offence.

KIRBY J: I see.

MR GAME: I have the references to the various judgments in Gipp on that. I will give that to your Honour shortly.

HAYNE J: Is it a set of principles that differs in some respect from Shepherd?

MR GAME: I was just about to say, your Honour, that there is a decision in Velevski of the Chief Justice and your Honour Justice Hayne. I cannot remember the balance of the Bench in that case, but an argument was rejected in that case about the idea that the jury would have to be directed that if they thought that there was some other line that was indispensable to them, then they should have a Shepherd direction.

HAYNE J: But do we begin examination of this field of discourse in Shepherd or do we begin it, do you say, in Gipp - Shepherd [1990] HCA 56; 170 CLR 573 particularly at 585, in the judgment of Justice Dawson, which was agreed in by Chief Justice Mason and Justices Toohey and Gaudron. Is that the start point or do we start in a peculiar rule applicable to sexual offending?

MR GAME: Your Honour, as a matter of principle it would appear that you would start with Shepherd, but the proviso is this, that if the evidence that you are talking about is actually a form of propensity reasoning and it has had to come through a test of admissibility of no other rational inference, then it would appear that, on that account alone, the courts – this Court in particular – have required that that inference be established beyond a reasonable doubt.

GLEESON CJ: Did we not say fairly recently that, except in the Shepherd-type case – that is except in a circumstantial evidence case where the particular circumstance is crucial to the reasoning, the Pfennig “no other rational explanation” has to be applied to the totality of the evidence?

MR GAME: Yes, quite, your Honour.

HAYNE J: Hillier, I think. Hillier may be the case.

MR GAME: The problem is this, that the cases that say that are, for example, Pfennig, where you had to engage in both propensity and coincidence reasoning, as one sees in the Evidence Act; and it was indispensable. In Ball it was indispensable. In Hoch it was indispensable because one was talking about separate trials and the possibility of concoction. So the qualification that I have put on the answer to Justice Hayne’s question may on truth be an answer that is exposed by an examination of the very particularity of those cases.

GLEESON CJ: But, Mr Game, suppose that there was evidence in this case that the accused had confessed to the complainant’s mother that he did these things and that was part of the evidence on which the prosecution relied, would the judge have told the jury that they could not rely on the evidence of that confession unless they accepted it beyond reasonable doubt?

MR GAME: That would seem very odd.

GLEESON CJ: Indeed, and the reason it seems odd is that all that the prosecution has to prove beyond reasonable doubt is the elements of the offence charged.

MR GAME: Yes, quite.

GLEESON CJ: But there may be some cases in which, as a matter of logic, you could not accept beyond reasonable doubt the elements of the offence charged unless you accepted beyond reasonable doubt some particular piece of evidence.

MR GAME: Yes, quite, your Honour. My reticence about this issue about beyond reasonable doubt is borne entirely of the fact that examples can be presented which make it difficult to maintain as a general proposition. The example your Honour the Chief Justice gave then is an example which points to a circumstance in which you are not engaging in any form of circularity to drive the prosecution case forwards towards guilt and the inference that you are drawing from that is an inference that feeds into what I have called “capital C” credibility, ie, the credibility that leads to a conclusion of guilt. That is what in old terms was described as corroboration. It was independent and it tended to implicate. That is a critical distinction, we submit, from this case.

I will have to, as I appreciate, say something about the G-string in due course. My time estimate is becoming a little wobbly, your Honours, but may I come back to these directions at the bottom of page 510.

KIRBY J: Speaking for myself, I do not think you should feel under great constraints of time.

MR GAME: Thank you, your Honour.

KIRBY J: We are sat here and we have set aside, if necessary, two days to try and work this out and at least at the end of Mr Solicitor’s submissions, if he tries to bring it all together - I know he has a vast array, a huge army of people who can help him, but, I mean, we really do need that help.

MR GAME: Your Honour, I am sorry - - -

KIRBY J: Tripping off your tongue are all these cases. Now, I am not familiar with all those cases and I am striving to try and think of this conceptually.

MR GAME: I am failing in putting it conceptually, but that is actually what I am trying to do, so I apologise, your Honour. Now, if one looks at the bottom of page 510, this is what in the cases has been referred to as, shall we say, the limited or Vonarx direction, but actually this is obviously a direction that requires very careful attention. Now, sexual attraction there as a mode of reasoning might be a mode of reasoning about a state of mind and it might be a circumstantial fact, but if it is - - -

HEYDON J: What is the difference?

MR GAME: There is no difference.

HEYDON J: I see. You are saying they are the same.

MR GAME: Yes. There is no difference. But if the sexual attraction, the way it is framed there does not seem to actually get to that idea because it is “sexual attraction” and “sought gratification” leaves the very mode of propensity reasoning open that one is trying to avoid, namely, because he did it on a number of previous occasions, therefore it is likely that he did it - - -

KIRBY J: Or because he has a sexual attraction and therefore he did it.

MR GAME: Yes, your Honour. Now, some of the cases – again, cases do not speak with one voice, but that is – within that one can see both non-propensity reasoning and propensity reasoning. Now, again on a conceptual level one has – I am not saying it is not available but one has to be careful about shall I say digging beneath inferences or evidence to find something that does not involve propensity reasoning if what you are really engaged in is propensity reasoning. In a parallel sense – because if you dig deep enough you will always be likely to find something that does not involve propensity reasoning because you say something about the state of mind of the person, in the same way as in hearsay representations if you dig deep enough you will always find an unintended representation.

I met my mother at the shop this morning. There is an unintended representation that you have a mother, there is a shop. That does not take away its character as hearsay. You have dug deep, you have found an unintended representation. That kind of reasoning you have to be careful about in this case, that is, that you are just digging for – but it depends on the very character of the evidence in the case whether or not you can or cannot engage in this process of reasoning.

So what we say about that is that it actually does not guard adequately against what everybody eschewed in this case which was propensity reasoning, and when you come to 511, line 45, you get what I referred to as the fourth form of reasoning, which is pure propensity reasoning, “Is he the type of person to do such and such?”

Now, may I now in the context of this argument say something about the problem with leaving sexual attraction as what might be described as a use in this case. I am not submitting that that cannot happen but I am submitting in this case that there is a very weak foundation for it, and the reason is this. You are asking the jury to infer, based on the complainant’s own evidence about uncharged acts, that they believe her and then proceed to reasoning in relation to guilt, yet at the moment that you are satisfied, the very moment you are satisfied she is telling the truth, that is the moment at which you have concluded that the accused is guilty.

So that because it is all coming in – the only hiccup – I hope the only hiccup in this is the G-string, but that reasoning then in this case we submit is not available. This – by the time you get to directions in this case, in terms of the logical approach to the jury, is to simply direct them against what I have described as the second, third and fourth forms of propensity reasoning, or at least the third and fourth, and we have only got the fourth, and then not give any directions of this kind, but just put these things in the balance with respect to the credibility of the complainant, what I have called for and against.

The other thing about this is this. When one talks about propensity reasoning, usually one is talking about propensity reasoning from a position in which there are independently established facts. Again, it depends on the case but, for example, Pfennig is all built about independent facts concerning what Mr Pfennig did. Ball is all built around the fact that the accuseds had had a baby, an independently established fact, and so forth. But when one digs deeper and then looks at state of mind - - -

HEYDON J: How was it independently established that the father of that baby was the brother of the mother, as distinct from the fact that the baby was born to the sister?

MR GAME: I am sorry, your Honour, I just cannot remember. I thought that it was not in dispute that they were brother and sister.

HEYDON J: That is so, but was it in dispute that the father was the brother?

MR GAME: I do not think so, your Honour. I am pretty sure - - -

HEYDON J: So it was not really independently established, it was admitted.

MR GAME: No – yes, that is true.

GLEESON CJ: So if in the present case the Victorian events had been the subject of charges and convictions, when it came to the trial at Adelaide the convictions could have been proved?

MR GAME: Yes, subject to – sorry, B v The Queen is a case where the accused actually tendered them and it was held that that could be evidence because it was - - -

GLEESON CJ: Well, if in this case the Victorian acts had been the subject of charges and convictions in Victoria, then when the trial was held in South Australia about the South Australian acts, what would the jury have been told about the Victorian convictions?

MR GAME: I am not sure whether your Honour has got me on the hop because I cannot remember whether or not there is some special rule about this, but assuming that that is a permissible approach, first of all you would have to clarify in one’s mind whether or not that involved propensity reasoning. If it does not involve propensity reasoning, then you would say you can use that evidence to assist in drawing an inference about whether or not the accused was sexually attracted and was prepared to act on his sexual attraction with respect to the complainant, but on no account infer that because he had the convictions and that sexual attraction that because of that fact alone, the fact that he was alone with her in a room in Adelaide meant that it was more likely that he would commit such an offence.

GLEESON CJ: I only use that example because you kept referring to independently established facts.

MR GAME: Yes. Sorry I accept - - -

GLEESON CJ: And things could have fallen out here whereby the Victorian events were the subject of independently established facts.

MR GAME: Yes, that is true.

KIRBY J: It does not sound right to me that you could prove in a trial in South Australia the fact of conviction in Victoria.

MR GAME: Sorry, that is the - - -

KIRBY J: I do not know why it does not seem right, but it seems to be fundamentally wrong, unless you attack the police witnesses who were involved in both or it gets in in some particular way, but it is completely irrelevant to the offence with which the accused is charged in South Australia.

MR GAME: Yes, I had not thought of that question and I would - maybe if we are still here tomorrow and I reply tomorrow, maybe I can have some further consideration of that question because – but if I could accept your Honour the Chief Justice’s example to the extent of accepting that if there is that independent – if that is an acceptable form of independent evidence, then yes.

GLEESON CJ: What if he had pleaded guilty to the charges in Victoria?

KIRBY J: But he still has to be tried - - -

GLEESON CJ: If he had pleaded guilty to the charges in Victoria, it amounted to a formal admission by him.

MR GAME: Yes.

GLEESON CJ: In court of the events that occurred in Victoria.

MR GAME: Yes.

GLEESON CJ: Could not a formal admission by him of the events that occurred in Victoria be proved in South Australia?

MR GAME: Yes.

GLEESON CJ: Of course it could.

HEYDON J: But is your point that it would not be admissible under Pfennig? Is that so? That is one point.

MR GAME: Yes.

HEYDON J: Therefore it could only be admissible under some relationship evidence doctrine, and we are trying to establish the content of that doctrine. That is your admission?

MR GAME: That is exactly right, your Honour, yes.

HAYNE J: Which brings me back then, while you are interrupted, to this point. The complainant gives an account of events charged that, so the prosecution would have it, in order to be complete is amplified by reference to other events which are events that are at least discreditable to the accused and in many cases describe or suggest other criminal conducts.

MR GAME: Yes.

HAYNE J: That is step one, that it goes in as a form of completeness of her account. Step two, why is step two not to inquire what do the parties seek to use that evidence for in final address, because step three, so that you can see where it goes. If by the end of the trial the completeness aspect has, as you put it earlier, fallen away and the prosecution is left going to the jury saying, “Well, he would, would he not? He is the sort of man who would”, then the direction is plain. You may not. If, however, the prosecution go the jury with a positive use in mind, then you may frame the direction according to whatever that articulated and identified use is.

MR GAME: Yes.

HAYNE J: But absent that identification and articulation by counsel for the prosecution in final address, are we not erecting a huge over-intellectualised superstructure that is at danger of breaking under its own weight?

MR GAME: I am actually trying to demolish the intellectual structure so that you do not, except in quite special circumstances, apart from directing against propensity reasoning in what I said is the second, third and fourth senses - apart from that, these do not form the part of any special directions to a jury. The problem with this case is this. There are a couple of problems. One is the heart of the prosecutor’s address appears to have been – and we set this out in the submissions - a particular passage where - I think it is in reply - she said, “If you had not heard about this, you would have thought it had happened out of the blue”. Well, that is our point. They have heard that so there is no reason to – that is the point she is making, which is a credibility point.

Now, beyond that, the only problem with this is that the prosecutor then at some point gave the shopping list from Chief Justice Doyle’s judgment in Nieterink so that is the problem, which is that the thing became confused because they are totally different – there are different concepts at play, as I have attempted to expose.

GLEESON CJ: Mr Game, I wondered if there is a further problem about sex cases, although I do not suggest exclusively about sex cases. I wonder if there is a problem that in this context, perhaps in some other context also, there is no clear distinction between what the old cases called mere propensity and this kind of concept of relationship, or guilty passion, as it is sometimes called. In other words, in these cases, you are in an area where propensity has a particular sting, if I can use that expression.

MR GAME: Yes, your Honour. Again there is no need to go it, but in his dissenting judgment in Pfennig, Justice McHugh in attempting to strike out a line of argument that showed that what the joint judgment said was wrong, made the argument that propensity reasoning had always been involved in sexual assault cases with respect to relationship. So he was, in effect, arguing that the fact that you engage in propensity reasoning here is a reason why the majority in Pfennig was wrong.

HAYNE J: But that is eliding two classes of propensity, propensity to offend against a class of victim or propensity to offend against this victim.

MR GAME: Yes, your Honour, quite, but what I am saying is that you can draw a distinction in this situation and you need to draw a distinction that draws you away from saying, “What chance is there that the accused with this propensity would have of not abusing the complainant if they were in a room alone?” which is what I call the second or the most minimal form. But when you say what appears at the bottom of page 510, “sexual attraction . . . and sought gratification” and then you feed that into use you are actually encouraging propensity reasoning of what we would describe as a prohibited kind. You have not spelt out what the underlying idea is and, if you are going to do it this way, the underlying idea is that there is a circumstantial fact in this case which is his state of mind in Adelaide in the Grosvenor Hotel and shall I say a desiring or wanting state of mind. You could strike out a way of doing it and what I am arguing is that you can.

KIEFEL J: Shorn of terms, such as relationship, which have their own problems the evidence that was put forward over objection was evidence really describing sexual attraction if it was connected with the accused. That is really what it is about, is it not?

MR GAME: Yes.

KIEFEL J: Part of the problem really arose right at the beginning when the prosecutor did not identify the purposes for which the evidence was to be tendered and no ruling was made upon the basis upon which it went in.

MR GAME: Exactly, your Honour.

KIEFEL J: The prosecutor said it was a course of conduct but that really leaves open, it is too broad. Narrowed down, if you consider the incidents in Drik Drik, it is all about his attraction and his pursuit so the question then is whether or not evidence of ongoing sexual attraction and pursuit is inadmissible. I am sorry I have taken you back to the admissibility rather like Justice Kirby because I cannot make sense of directions unless I can understand on what basis it went in in the first place and whether that was correct.

KIRBY J: Why do you not try us on an application to enlarge the grounds of appeal? It is just very difficult logically and certainly impossible to solve the overall problem without dealing with the admissibility question and it is after all a case where your predecessor objected to the admission of the evidence. Anyway, you might care to think about that over lunchtime.

MR GAME: Your Honour, I have three outstanding questions, one from your Honour Justice Kiefel and the question - - -

KIEFEL J: I think it depends upon your position in relation to the grounds of appeal. I realise my question has taken you beyond.

MR GAME: If your Honour pleases. As I said, the prosecutor gave what might be described as the Nieterink list. The judge admitted the evidence but he did not say what evidence would be admitted, nor on what basis, both of which really were fairly essential.

GLEESON CJ: Nor at the time the evidence was admitted had the defence announced what its defence was. You cannot make accused people at criminal trials define the issues before the evidence is admitted.

MR GAME: No, but he did say, well, I am not going to say it happened out of the blue.

KIRBY J: You cannot make the defence define the issues, but you can require the prosecution to define the issues by the charges that they bring. That is the whole point of the accusatorial system of criminal justice.

MR GAME: Exactly, unless you create a further exception in respect of evidence other than complaint evidence the basis of admitting evidence is never going to explain why no earlier complaint was made. A basis for admission is never going to be why he acquiesced.

GLEESON CJ: What the older cases used to say, and I think Makin said this, in relation to admissibility of evidence that amongst other things shows propensity was that you cannot go crediting the accused with fancy defences in order to get it in. Now, that was a recognition of the problem of identifying the issues at the time the evidence is in.

MR GAME: Yes.

KIRBY J: But there is a very good quote in a footnote from the solicitor’s submissions from Lord Chief Justice Holt back in 1792 which says you cannot turn a trial into a general inquisition of the life of the accused and that is why we normally have a system of criminal justice that has a very high measure of particularity.

MR GAME: Yes, your Honour. I have referred to the inapplicability of this intermediate line of reasoning which is inappropriate, illogical and impermissibly elevates the prosecution case, but the factual context for that is this, that it runs the real risk of the jury reasoning from the general to the particular, ie, he ends up being on trial for everything.

GLEESON CJ: Being a nasty person.

MR GAME: He ends up being on trial for everything in circumstances where it does not make a jot of difference, except in the credibility sense, whether or not it was the first time or the tenth time or the fiftieth time that oral sex took place.

KIRBY J: Well, if I can say so, your acknowledgment of this makes it seem all the more plain that the issue of admissibility is not only important for the way you give directions and what you give directions on, but it is very, very important to outcomes of trials because judges can give directions until they are blue in the face but if the poison is in the well and the evidence is before the jury, what they make of it is largely a matter for them and we have a fiction in the law that they will make of it what the judge says in law they can but that is a very large assumption.

MR GAME: Yes, your Honour. I think that I could foreshadow that I will make that application but I would like to just think about the terms of it at lunch. Could I just come back to a question – but, sorry, we do say – and it is an important forensic point in this case – is that these directions are really leaving the jury in the situation where they can, as it were, focus on this so-called intermediate circumstance, which is uncharged acts, make a finding about that which is all totally general and then reason towards guilt.

GLEESON CJ: But by “uncharged act” do you mean evidence of conduct which, if accepted, reveals the commission of an offence not the subject of the charge?

MR GAME: Yes, I would rather never use those words but I have found myself using them, but that is because that is what - - -

KIRBY J: The Chief Justice’s question is relevant to the facts of the case because, for example, perhaps some of the acts like walking naked or maybe even filming a daughter doing cartwheels may not be criminal offences, and perhaps even giving a G-string is not a criminal offence, but when you get into actual particular conduct of a sexual kind then they may well be criminal offences. For example, what he did when he walked naked might well be a criminal offence of indecent exposure or something of that kind.

MR GAME: Yes, your Honour. Some of the things that were identified as being relevant against him ended up having absolutely nothing to do with the case, like walking naked to the bathroom.

KIRBY J: But he did not just walk naked. He also was alleged to have done things which at least arguably were indecent and obscene and certainly very odd in front of a daughter. By the way, was she his natural daughter?

MR GAME: Yes, your Honour.

GLEESON CJ: The most elementary principle of evidence is that evidence which is irrelevant is inadmissible. Full stop. So other rules of admissibility concern evidence which is by hypothesis relevant. If it were not relevant you would not bother discussing the other rules. Now, the problem is that there are many circumstances, day by day in criminal trials, in which relevant - and therefore potentially admissible evidence – reveals, if accepted, conduct which is criminal but which is not the subject of a charge before this Court. Where do you go from there, and is there anything special about sexual cases?

MR GAME: Well, the answer is no in principle, there is nothing special about sexual cases, but the world of discourse from which this comes is a discourse about what you do – whatever use you wish to make of evidence, if evidence discloses or is described as a bad character or a bad disposition, then it has been subject to a special exclusionary rule.

GLEESON CJ: Because, as Justice Dawson pointed out, I think in Pfennig, evidence of propensity is relevant, sometimes dangerously relevant.

MR GAME: Yes.

GLEESON CJ: And that is why the courts originally developed a particular exclusionary rule about evidence of what they described as mere propensity. But one of the awkwardness of sexual cases and perhaps of some other cases is, as it appears to me, that the concept of propensity has a certain ambiguity in this context.

MR GAME: Yes, I cannot but agree with your Honour. But what I am trying to argue is that it is not appropriate to reason in a case like this that because he has the propensity, as it were, therefore he is likely to have, when alone in a room with the complainant, have committed this offence. But there is an antecedent problem which I do not have the intellectual equipment to answer, which is this, that the first category I gave your Honours which is state of mind or sexual attraction, there is more than a suggestion in the discussion in the cases, particularly I have in mind again Justice McHugh in Pfennig, that this in fact involves improbability reasoning itself.

KIEFEL J: Could you explain that for my benefit, please?

MR GAME: Can I explain it? I can try. I have been trying to identify in the first category a way in which you would not be engaging in propensity reasoning because it would simply be some evidence that the person possessed a particular state of mind but the proposition is, the danger is that even that involves probability reasoning, is that it is probable that he would have that state of mind and act on it in those circumstances. So I think that the logic behind it is to get to that state of mind inferred, there is a level at which you are engaging in propensity reasoning.

GUMMOW J: Underlying this attitude to propensity evidence in sex cases, there is some appreciation or some assumption that that sort of crime is particularly expressive of character traits and weaknesses, that is not so in larceny, say? Why that is so is a matter for speculation but underneath it all that does seem to be some response.

GLEESON CJ: You might have a similar line of reasoning in relation to terrorism, for example.

MR GAME: Yes, your Honour. I was thinking that to a degree motive in other crimes might be a parallel concept. It does not depend on sexual attraction, but motive. I do not necessarily want to go into that jurisprudence, but there is plenty of jurisprudence - - -

GUMMOW J: There is a notion of abnormality.

MR GAME: Yes.

GLEESON CJ: Involved in a man making his daughter an object of sexual gratification.

MR GAME: Yes, your Honour, and fixed and repeatedly carried out ideas, yes.

GUMMOW J: That makes it highly prejudicial because the risk is of adjudication by reference to perceived character traits rather than commission of particular actus reus.

MR GAME: Yes, and the assumption is that, shall I say, the abnormality – I use the word “fixed”, that is to say, it does not come and go, that it is present all the time in the same way as a presence of, shall we say, motive of hatred, that motive of hatred does not die down. It may get stronger or it may continue, it may become more urgent. Yes. The underlying assumption is that a sexual interest does not come and go, that a person has it consistently, that it is directed to a particular person and they will succumb to that desire to do so.

HAYNE J: But like motive, for example, in murder, expressed and indicated sexual desire as between brother and sister in the case of Ball had a temporal connection, did it not, in the sense that they were living together at the time of the alleged event?

MR GAME: Yes, your Honour. They occupied the same bed.

HAYNE J: What is absent here is, so it is said, that closeness of temporal connection. It may be that there is a distinction to be drawn between expression of sexual interest in at date one and the necessary assumption that is entailed in assuming that a year later the interest is gratified.

MR GAME: Yes.

KIEFEL J: I suppose the other aspect of sexual crimes such as this in the nature particularly of offences over a long period – we have been discussing the state of mind of the accused but, of course, the conduct is directed to the state of mind of the intended victim and the evidence at least on one of the propositions of the basis upon which it is put forward is to explain why the complainant behaved in a particular way at a particular point in time. That is a totally different approach, I think, to the propensity questions although you might still have the propensity problem left to deal with in terms of its prejudicial value.

MR GAME: Yes, I accept that. I have made this point before. You are at one level dealing with the state of mind of the victim as recounted by her in all of its fullness, shall we say, and then at the next level you are asking yourself about it. You are trying to work out whether it is truthful.

KIEFEL J: On what basis would it be admissible as to her state of mind?

MR GAME: Her description of her own state of mind in a limited – I say “limited”, I am not sure how limited – but shall I say, “I let that happen because there was no point in protesting” – I am not saying that is a piece of evidence from this case, is a comment about her state of mind.

KIEFEL J: We are probably back to the position we discussed earlier where it is evidence to explain her actions on an assumption that that is going to be an obvious issue and we get to the question of whether or not that can be assumed without the defence raising it and whether or not that inheres in the prosecution case.

MR GAME: Yes. If one goes back to the point at which the judge said, “I will admit the evidence”, he should have clearly identified what evidence he was admitting and that evidence that he was admitting for what reason or purpose he was admitting it.

KIEFEL J: He was probably having the same trouble we are.

GLEESON CJ: Mr Game, your client was charged with two offences. How come they were tried together?

MR GAME: How come they were tried together?

GLEESON CJ: Yes. Why were there not separate trials?

MR GAME: Because the evidence was intra-admissible.

GLEESON CJ: Exactly. Now, what was it that made the evidence about the first offence admissible in relation to the second offence?

MR GAME: Well, it is what has been called in the case part of the res gestae. You cannot describe one without the other and the two together impact upon the likelihood or the unlikelihood of those events having occurred.

GLEESON CJ: Just put uncharged acts and the problem of uncharged acts to one side for the moment. In cases of sex offences it is very common for a number of acts to be charged, typically the first and the last because the theory is that they will be the most easily remembered. What is the test, according to which the court decides, whether they are to be the subject of one trial or separate trials?

MR GAME: The short answer is the test is the test stated by Justice Brennan in De Jesus.

GLEESON CJ: It cannot be res gestae, can it, because typically the first event and the last event might be years apart in these cases.

MR GAME: Yes, your Honour, that is why I say it has to be closely contemporaneous for it to be intra-admissible.

GLEESON CJ: The test is, is it not, whether the evidence of one act is admissible in relation to the charge of the second act or the 20th act, as the case may be?

MR GAME: Yes.

GLEESON CJ: So the theory of having trials at which there are a number of charged acts is that evidence of one act is potentially relevant to the question whether the other act occurred.

MR GAME: Yes most times but not always, your Honour.

GLEESON CJ: Yes, but if it were otherwise you would always have separate trials of each charged act.

MR GAME: Exactly. I should say it is not unusual for tactical reasons for no point to be taken about counts in which the evidence is not intra-admissible but then special directions have to be given to the jury.

KIRBY J: What I cannot understand is if you look at that helpful schedule on page 3 of your submissions and leave aside some of the earlier events like walking around naked or buying G-strings, the particular matters deposed to as so-called uncharged acts were clear, definite crimes. Would there have been any objection to those being tried together with the crimes with which your client was charged?

GLEESON CJ: It could not have happened, could it? Were they not offences that occurred in another jurisdiction?

MR GAME: They happened in Victoria.

KIRBY J: I see.

MR GAME: But one of my points is if you look, for example, at the fingering vagina, which is six down, we have a series of inconsistent statements about that; most mornings, more than once, about five times. So the prosecution is in a position where they do not have to descend to particularity about that because it does not matter and yet all of that evidence becomes evidence so-called of sexual attraction which so-called advances the prosecution case. My point about it is this, is assuming it comes in, if there is no what I have called independent evidence, that evidence is simply part of to and fro the complainant’s credibility. If the complainant says it happened every day, that may in fact undercut her credibility. If the complainant says it happened five times it may assist it, and that is like with like. It does not involve directions of the kind that we are looking at in this case.

I want to turn to what we say about the G-string and the direction about the G-string appears in - - -

KIRBY J: Is it singular or plural?

MR GAME: G-strings, sorry. At the top of page 511 that is identified the accused’s purchase of the G-string underwear. The circumstances about the purchase of the G-string were disputed and there were accounts in respect of it given by the complainant, the accused, the complainant’s mother and the accused’s wife. His Honour referred to it briefly at page 508. It is worth noting that the prosecutor in her address at page 420, up to line 30, tried to, as it were, make a point that somehow the father was responsible, that there was some guilt that attached to him even on his version which is if she requested them, why did he not refuse to buy her these items, “Why didn’t he put his foot down”. So the prosecution is in effect trying to say, well, if you accept the accused’s account, still that somehow carries the prosecution case forwards.

I might say that the Crown prosecutor opened on the basis that the mother will say she found the underpants or the G-strings. There is no need to go to it, it is at page 69. When the complainant gives evidence she described an incident in which she saw some in the wash and she described the accused and his wife being present and the accused saying, “We will get some”. That is 94 and 95 of the appeal book. She said that after she had bought them her mother knew about them. That is at page 95. This was for her birthday. When her mother gave evidence, and again there is no need to go to it now, she agreed in cross-examination that her daughter had shown them to her. That is at 165. At 183 to 185 she said that she was disgusted by them and took one of the pairs to the school. The accused gave evidence that the request in fact came from the complainant. That is at 320 to 321. He was cross-examined between 362 and 365 and part of the cross-examination was to put to him that did he not think this was something he should have put his foot down about.

Again, to just give your Honours a couple of other references for the transcript. The accused wife at 372 to 373 and 381 to 382 gave evidence that supported his account and not the complainant’s. In terms of dating this incident, if the accused’s account is correct, then the complainant was probably 10 years old at the time. One can see that from 362 of the transcript.

KIRBY J: The photographs were in evidence, were they? They are P1?

MR GAME: Yes, your Honour.

KIRBY J: That is very damning evidence against your client, is it not?

MR GAME: It depends, your Honour, what it is damning evidence of. At the moment I am just trying to lay before your Honours that there is an active factual dispute about the circumstances in which the G-strings were purchased. I also wanted to make a point about time. If the accused’s evidence about this is correct, and again I am not sure that there was even any serious dispute about this, then the complainant would have been 10 years old so that this incident would have occurred one year after the incidents which are the subject matter of the two counts. It is said she was nine or 10. If she was nine, then it would have occurred within a few months before the incidents that we are talking about. We would submit that the probabilities suggest that she was probably 10 years old.

KIRBY J: I may be wrong and I do not know, but I would have thought it would be very unusual in today’s society for a father to buy a G-string for a daughter of 10. Correct me if I am wrong in that assumption.

MR GAME: Well yes, your Honour, except - - -

KIRBY J: Correct me if I am wrong in that assumption.

MR GAME: Well, your Honour, I do not know. I could say 10 year-olds know all sorts of things that people as old as yourself or myself did not know about, but that would just be anecdotal. But can I say this, your Honour. There was no attempt to conceal this from the mother. She went home and – the Crown opening suggested that the mother found them. None of the evidence supported that. The idea that she would get – that G-strings would be purchased and then taken home openly, really undercuts some of the – much of the sting because both – the women on both sides of the family, that is to say the former wife and the current wife, both knew about this incident at the time. So it is a very strange - - -

GLEESON CJ: Is this a point about the admissibility of a particular piece of evidence?

MR GAME: No, no. This is a point about the direction – what the Crown is saying is that, as it were - the Crown appears to agree with our submissions on almost everything but then says that the G-string carried the Crown case forwards and I am testing that proposition, but the first proposition I am putting - - -

HEYDON J: That is a relevance question.

MR GAME: I accept that, but my point – yes it is, but it is also a question about how, if at all, you direct on it. The prosecution - - -

HEYDON J: Let me just express a personal view. I do not see much point in this argument at the moment until the notice of appeal is amended. If you are operating on the basis that the evidence was admitted and correctly admitted, that is one thing, but the main force of your argument is that it should never have been admitted. It could not prove anything. If it was a year later it was not capable of being used as the prosecutor said it could be used. If it was earlier it has defects, you say.

MR GAME: Your Honour, but my point is this, that when it comes to use of the evidence, the use of the evidence – sorry, the adverse inference drawn from the evidence depends on the credibility of the complainant in respect of the account of the circumstances of its purchase, so it has its sting - - -

HEYDON J: That is true of every other piece of uncharged act material and charged act material.

MR GAME: Yes, I accept that, your Honour, but – that is true, all of that is true, but that is an important consideration when one considers how one will direct the jury in respect of it.

GLEESON CJ: But one of the most elementary things that juries are told is that they consider particular items of evidence in the context of the whole of the evidence.

MR GAME: Yes, your Honour.

GLEESON CJ: They were not considering this separately. The question was, what they could make of this in the light of the other evidence.

MR GAME: Quite, your Honour, and I am not stepping away from that at all. In fact, that is my point, which is that the G-string evidence does not, as it were, drive forwards this separate intermediate inference in any independent sense from which it, if accepted, drives forwards the inference as to guilt, so that the whole of this – if you are going to put - - -

GUMMOW J: It should not have been admitted then.

MR GAME: No, no, it does not mean that it should not have been admitted. The question is – well, it may be that it should not have been admitted, but the question if once admitted is does the G-string, shall one say, carry the Crown case forwards to an intermediate inference of sexual interest because that is the way it was left. Does it carry it forward independently of the inference that it carries the case forwards to guilt, and we submit that that is hair splitting and that it is quite inappropriate to direct the jury in that way in this case.

GLEESON CJ: Mr Game, I wonder if you would mind coming back to this question after lunch. We would like to adjourn now? We will adjourn until 2.15.

AT 12.39 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. Before I return to the topic that I was addressing before lunch, which was the evidence about the G-string, I do make an application to amend and I do have a proposed ground and, subject to the Court granting leave, I understand the application is not opposed by Mr Kourakis.

GLEESON CJ: Could you hand a copy up for each of us?

MR GAME: Yes, I have copies.

GLEESON CJ: Is there any reason why we cannot just proceed with the argument and deal with the question of amendment in our reasons in due course?

MR GAME: Not at all, but, your Honour, can I say this. I can say a number of the things I wanted to say about it orally - - -

KIRBY J: Could we have the ground of appeal first?

MR GAME: Yes, I am sorry. Again, I know I am asking for another indulgence, but I was going to ask if we could have leave to put on some brief written submissions relating to this issue and I will just explain why. The debate about admissibility was based on a ground in a document called a rule 9 notice in the District Court, which I have just obtained and I have not got copies of it yet. It would appear from the debate that the statements of those three witnesses were put before the judge to determine the issue, which I do not have. There are two other aspects that I would seek the opportunity to address in writing.

One is this issue about whether section 34I has any application to this and the next is to deal with a line of cases for and against the idea that you wait for defence conduct before you, as it were, allow evidence in that, shall I say, merely goes to credibility. That is an open issue in the cases about that subject. So I can say a good deal about it orally before I resume my seat but if the Court is willing to grant leave, we would seek leave to put on some written submissions and Mr Kourakis would seek leave to reply in writing.

GLEESON CJ: Why do we not proceed on the basis that you will put on written submissions within seven days and he will reply within seven days.

MR GAME: Thank you, your Honour.

GLEESON CJ: We will deal with the whole question of leave in our judgment but can I ask you this, and it is a matter of form, but it could have an important consequence. You have referred in this proposed new ground to “the uncharged acts” globally.

MR GAME: Yes.

GLEESON CJ: This problem probably would not arise if we dealt with the uncharged acts globally but if we dealt, for example, separately with the matter that you seem to be dwelling on at the moment, there would be a lively question about the proviso, would there not? In other words, if evidence of some of the uncharged acts was admissible but evidence of others was inadmissible, we may need to address the question of the proviso, a question that was never looked at in the Court of Criminal Appeal because it was never raised in the Court of Criminal Appeal.

MR GAME: Your Honour, if that leave could extend to the miserable subject of addressing the proviso, then - - -

KIRBY J: The logic of the Chief Justice’s question may lead to your requiring to amend the proposed ground a little further to add after “evidence of the uncharged acts” “or any of them”.

MR GAME: Yes, your Honour, but can I say this. We actually chose those words because, from reading the transcript, we cannot work out precisely what was objected to and we can find no reference to the G-strings in the exchange so at the moment that is why I am uncertain about that last item. I am uncertain whether or not that item or those items were caught in the objection.

GLEESON CJ: Yes. A possible point of view is that if the evidence about the G-string, for example, was inadmissible but all the other evidence was admissible, it would not have amounted to a row of beans.

MR GAME: That is quite possible but, your Honour, I am attempting to diffuse the G-strings at the moment but the Crown puts a lot of weight on them in their case. I know there are different questions arising in relation to – so may we have that leave to – yes. I am sorry to ask another indulgence, but may we have leave to file that amended - - -

KIRBY J: What is the South Australian provision for the proviso?

MR GAME: The South Australian provision for the proviso is in the Criminal Law Consolidation Act.

GLEESON CJ: We are happy to give you indulgences, Mr Game, but not plenary ones.

MR GAME: When we file the written submissions, could we file the final amended form of that proposed amended ground?

GLEESON CJ: Yes.

MR GAME: If the parties are agreed, may the parties attach to the submissions the form 9 document and such evidence as was put before the judge to determine that issue. The section is in exactly the same form as section 6 of the Criminal Appeal Act (NSW) and it is in section 353. Section 353(1) may, “dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred”.

GUMMOW J: What is this form 9, Mr Game?

MR GAME: Under the District Court Rules you are obliged to file a notice of your objections to evidence and the form 9, it is a rule, it is a notice, in effect, in advance.

GLEESON CJ: These are all dealt with, or often dealt with, by pre-trial proceedings, are they not?

MR GAME: Yes, your Honour, but there is a decision of this Court called TKWJ which in effect disapproved that process in a way but, subject to statutory provisions, enabling it, but this is provided for under the District Court - - -

GUMMOW J: What are we going to be provided with, a form that was actually put in in this case?

MR GAME: Yes, your Honour.

GUMMOW J: I see.

MR GAME: I have it in my hand. Before I return to the G-strings, could I just pick up a couple of other points from this morning. We provided the Court with section 278 of the Criminal Law Consolidation Act which deals with joinder as at the appropriate time or to provide the Court with section 74 which deals with a relationship crime which was in existence at the relevant time.

KIRBY J: Section 271, is it?

MR GAME: Section 278 for admissibility, 74 for relationship crime.

KIRBY J: Your voice is dropping.

MR GAME: Sorry, your Honour.

KIRBY J: Either that or they have turned the microphones down over lunch.

MR GAME: I am losing wind. Now, your Honour the Chief Justice asked me a question this morning about whether there was anything special about sex cases and I said no. I think the answer is yes because the sexual assault cases have a deep assumption that a person will act on their desires and their specific desires in respect of, shall I say, another person. There is another aspect to this which is almost too obvious to state but the issues become very complicated because you are dealing with very complicated factual situations which, shall I say, if you change one fact or you change a nuance, then the perspective of it legally might change completely. In an evidentiary factual context it is by far the most complicated situation that courts come to deal with in an evidentiary sense and that is something that does underlie the real difficulties that courts have in dealing with these issues. So I will make those two points about that.

In answer to your Honour Justice Heydon this morning, Ball’s Case does not say how they proved they were brother and sister. It just says that they were brother and sister so I do not know what the answer is.

HEYDON J: This is very marginal perhaps, how do they prove that the baby was fathered by the brother?

MR GAME: Assertions made in written statements of the accused.

HEYDON J: Admissions by the accused.

MR GAME: Yes. There is no need to read it but it is [1911] AC 47 at 53.

GUMMOW J: TKWJ [2002] HCA 46; 212 CLR 124 was authority for the proposition that there was no provision in statute law governing the operations of the New South Wales District Court which permitted the trial judge to rule in advance.

MR GAME: Yes, your Honour. I think that in South Australia there appears to be a different statutory - - -

GUMMOW J: There is, yes.

MR GAME: I will now return to what I was going to say about some further things about the G-strings. All I am attempting to do in respect of the G-strings is put them in their proper context and, as it were, ensure that they are not given more weight than they were entitled to because it would appear that this is the point of departure between the Crown’s position and ours. Our submission is that the G-string evidence cannot bring forward the whole of the complainant’s evidence independently about sexual attraction and then enable this separate fact finding process to take place about sexual attraction as a mode to proof of guilt.

I made the point before lunch that in specifics it depended on the complainant’s evidence but more generally it depends on the complainant’s evidence because – and I am not saying that you cannot take things graduatingly into account together – but more generally it is dependent on her account of other sexual conduct in order to carry the necessary inference of prurience. So you cannot use this G-string evidence to do more than it is capable of.

The further point which I sought to make is this, the safe course – and it does not require the jury to reason in any particular way – is to identify it and to direct on it in a similar way – and I do not mean use the language of corroboration necessarily – if you say anything about it, the jury may consider it in whether they are of the view that it strengthens the inference of guilt, that is to say, you do not invite an intermediate process because there is no independent existence of that intermediate process in this case.

KIRBY J: I do not know. You are getting me a bit mixed up with all your intermediate processes and so on. The fact is that if one took the view that here is something objective, it is an objective photograph and it is an objective photograph taken at the time and it is an item that one infers is not normally given by a father to a 10-year-old or 8-year-old child, a G-string, then that does bespeak arguably what used to be called a guilty passion and, if it does, then you are in trouble so far as the proviso is concerned because even if mistakes have been made in the directions or in the admission of evidence, if the bottom line is that it reveals objectively material that tends to indicate that the crimes alleged occurred, then there is no actual miscarriage of justice in your client’s conviction.

MR GAME: What I am saying is that that process of reasoning has the potentiality to give far too much weight to that item, but it impermissibly and circularly relies on the very evidence which it is attempting to bolster to show sexual attraction. There is a short way around that problem. The short way around that problem is not to make it the subject of a special direction directed solely to sexual interest and then use, but to direct on it separately and contextually but make it clear that it can only carry the Crown case forwards if it supports an inference of guilt, that is to say, credibility in the larger sense.

That is not a direction that is at all peculiar to the criminal law. In fact, corroboration has always been dealt with in this way. The steps of reasoning would be, again, whether or not directions take this form or not may be another matter, but the form of reasoning to get to that point is you would have to accept her evidence about the purchase. You would have to infer that the purchase was, on her version, for some prurient interest or disclosed some prurient interest, that you draw an inference from that about the state of mind and then you infer that he acted on it.

KIRBY J: That is why I asked you those questions earlier on and I expose it to you so that you can say anything you can say about the matter. One has to be careful here that one has not had too prudish an experience and an inadequate experience so that one is being unfair to your client. But I put it to you that I would not expect a father to give a daughter, a natural daughter, aged 10 G-strings. I may be wrong in that but that is just what I infer, so I put it to you so you can correct me if I am just being too priggish or prudish about these things.

MR GAME: Your Honour, I understand, but may I say first that the notion that he gave her the G-strings, as it were, unprompted by her, the evidence of that came entirely from her. He said that she saw them being washed and asked for them for her birthday. They were given to her. He explained his reservations and so forth. Again, I am not saying you cannot use it necessarily, but my point about this is that this is not what your Honour had put to me as independent, in the true sense of the word, evidence.

KIRBY J: It is objective. It is something hard, it is evidentiary, it is not dependent on people’s oaths, it is actually proved. It is hard evidence.

MR GAME: If the accused’s account is a possibility in respect of it, then it has no connotations of the kind that your Honour has put. So you actually - - -

KIRBY J: Just remind me, as we say in the law, what his testimony was.

MR GAME: Yes.

KIRBY J: Or where we can find it so I can check it later myself.

MR GAME: He said that she asked for underwear and then she picked out a G-string in a shop, and I will give your Honours the references. Pages 320 to 321, 362 to 365 and his partner’s evidence on it was 372 to 373 and 381 to 382. That is what I wanted to say about the G-strings, subject to one last matter about them which is this. Coming back to a question that your Honour Justice Hayne asked me about this subject this morning, there is a possibility on the jury’s reasoning if they were to rely on the evidence about the purchase of the G-strings, there is a circumstance in which they would have to be satisfied about the matters I have just outlined beyond reasonable doubt for this reason, that if they were inclined to accept her evidence and this was the item that swung the balance, then in those circumstances they would have to be satisfied about that beyond a reasonable doubt.

GLEESON CJ: Mr Game, in relation to your proposed new ground of appeal, your argument amounts to this, does it not, that the evidence-in-chief of the complainant should have begun with what appears on page 85 at line 20.

MR GAME: Yes.

GLEESON CJ: And that the jury should have evaluated the evidence of what appears on page 85 at line 20 and what appears on page 86 from lines 20 to 40.

MR GAME: Yes.

GLEESON CJ: Without knowing the facts deposed to on pages 80 and 81.

MR GAME: Not necessarily. Some of them, it depends.

GLEESON CJ: A possible point of view is that to require an assessment of the complainant’s evidence at pages 85 and 86 without knowing the facts deposed to at pages 80 and 81, would be, among other things, very unfair to the complainant.

MR GAME: Your Honour, can I answer that this way? If all you are seeking to do is to give that context to make what is said at page 85 meaningful, you do not require all the specifics of the evidence that the Crown Prosecutor sought to lead.

GLEESON CJ: In fairness to the complainant, what are you entitled to have in addition to that? I think this is a repetition of a question Justice Hayne asked you a little earlier today.

MR GAME: Yes. It is a very hard question, your Honour, but the fact that – sorry, I gave some examples this morning of descriptive aspects that might need to be explained like whether such and such had happened before or such and such had happened in that way before. Clearly the witness would be entitled to explain that. So too would the witness be entitled to put it to the level of generality required that there had been a history of various acts, but does it require the level of specificity until the defence cross-examine on it? That is not at all clear. May I take your Honours back to page 30? The point can be seen – I think I also conceded or explained to Justice - - -

HAYNE J: Can I just go back to that point about whether the defence cross-examine on it?

MR GAME: Yes.

HAYNE J: Are you not then leaving a position where the prosecution leave a time bomb ticking for the accused? Has not the Crown got to, in effect, put before the jury what this witness can say that is relied on as the explaining or completing material, not just leave it to the accused to walk on eggshells and see how far he or she can get?

MR GAME: Well, it has its attractions, your Honour, but I do not think it can be that that evidence is coming in for credibility reasons when it is first admitted.

HAYNE J: But Scylla and Charybdis are these, are they not? Scylla is the complainant who says this was not the first form of sexual abuse that I had been subjected to. There were other forms. The evidence stops there. What do you make of that? Charybdis as the complainant then gives evidence of chapter and verse as if giving evidence in support of specific counts which are, in fact, not charged. Now, I think we have to recognise, do we not, that we are charting a course where a further consideration that has to be taken into account is that at least I for my part do not want indictments to go before juries charging 50, 60, 70 counts. That is not going to be of any utility to anyone.

MR GAME: I agree entirely.

HAYNE J: So how do you balance it?

MR GAME: I started this morning thinking the best way to approach it was by taking the directions, but anyway. Could I answer that question by perhaps showing you something that is said at page 30 and then see if that provides any sort of enlightenment? If you look at page 30 at line 9 the prosecutor says – and I will just pick up the words – “out of the blue”, line 21 “confidence”, 27 “sexual attraction” but not tendency and then 31, why she did not make a complaint. Now, all of those things, apart from sexual attraction, in advance none of those things seem to be normal bases for admission.

HAYNE J: Unless they are seen as subsets of a general rule of the complainant giving her evidence completely, that is that you cannot take the events in the hotel room, compartmentalise them, and say that is all you need to know to explain that event.

MR GAME: No, your Honour, I agree but I am talking myself out of this and talking you out of this ground, too. I tried to introduce an idea this morning called subsidiary relevance. The idea of that is that there is a form of subsidiary relevance which is – and I gave you three contextual examples. There may be a category of what is described as subsidiary relevance which enables – it is not purely credibility – these aspects to be exposed because they are facts relevant to other facts in issue in Evidence Act terms.

If that is the case, once they are in then it has to be faced up to in a case like this that they are only in, that they are only being used for credibility purposes because you now have the real danger - which sometimes is talked about as propensity - of reasoning from the case alleging in effect general abuse to two counts. That is a course that has completely different dangers than an indictment with 70 counts. Each of them has terrible disadvantages, but if you are going to allow this evidence in – the indictment only contains two counts in this case presumably because of the jurisdictional issue, but that does create problems of its own. The only guard against this that one has is the guard of directions and warnings not to use it in any of those propensity reason methods I gave and not to give it anything more than what I called the plus and minus of general credibility.

HAYNE J: But the completeness analysis will often, not invariably, lead on to the consequence that much of that which is put forward as completing the picture falls away as an issue in the case and all you are left with then is the danger of propensity evidence and the need to warn against it. That I understand.

MR GAME: Yes. So if one accepts that analysis then when one goes to these directions one is still left knowing what to do about the so-called “sexual attraction” use and I have put my arguments about how that will vary depending on the nature of the evidence in the case.

GLEESON CJ: There is behind this, as Justice Gummow pointed out, a societal assumption and the societal assumption we make is that what is described on pages 85 and 86 is a very unusual way of persuading your father to let you go shopping. We then seek an explanation of how that might have happened in, what is sometimes called, the context, or it is sometimes called the relationship.

MR GAME: Yes, that seems irresistible, your Honour, but can I say this. The error is that if you allow the witness – I am not saying you should not allow the witness to explain as to why this was a prerequisite to shopping, why that shall I say meant something to her, then the meaning of “something to her” should not be elevated into anything more than it is in the case. You allow it in as what I would describe as a category of subsidiary relevance. When you come to directions, it is just a part of her account which both parties are free to criticise or support, having regard to all of the evidence that has been received.

Could I just mention one other thing that historically may be of some significance in this area which is that the common law – I am not so much talking about sexual assaults – but the common law in respect of bad character or propensity kind of evidence set the bar so high as a principle of admissibility and its focus was not on directions, its focus was on admissibility, whereas what is happening now is that the issue is unfolding in the way that the focus, in a sense, switches to how you use it more than perhaps the constraining rules about its admission. That is a development in the cases which you can see but this case, in a sense, marks an in point of that focus of attention.

KIRBY J: Yes, but, as I said earlier, it is a development that has occurred in the hands of lawyers who have a rather ethereal and fictitious view about what happens to evidence once it gets in before the jury. That is no doubt why the common law placed its emphasis on admissibility because it was much more realistic and practical and understood that judges can talk until they are blue in the face and tell jurors not to do this or to do that but jurors will just reason in a commonsense way, and a G-string in front of a jury is, I would suspect, going to be very powerful testimony.

MR GAME: I think I have said all I can say in respect of that subject, your Honour.

KIRBY J: Do you know if any academic writing has tackled these issues? When we tackled Swaffield and Pavic we had the benefit that quite a lot of scholars had tried to impose some order on all this. What is the best academic writing that you have been able to find that - - -

MR GAME: There is an English academic called Dr or Professor Birch who has written something about this, and I will take – we will see if we can find that and I will see if we can find anything else. Can I mention one other fact that is perhaps anecdotal but I am fairly confident it is correct. It was very unusual to have trials like this before the 1980s probably and since the mid-1980s they have become very common trials. I do not think you will find many cases in the law books - - -

KIRBY J: Is that because of the requirement of corroboration in the law or - - -

MR GAME: No, I think it is because of the requirements of reporting in – the reporting requirements have changed. There have been social changes which has required such incidents to be reported and has made it an offence or it is a disciplinary offence for teachers and the like not to report, and social workers and so forth, so that there has been a very large rise in the incidence. As for corroboration, it is possible that the corroboration – the abolition of the requirement for corroboration, I doubt whether that has been a thing that has had an influence on the actual number of prosecutions.

GLEESON CJ: And because school children these days get instruction about the difference between what their teachers call appropriate touching and inappropriate touching.

MR GAME: Yes, your Honour. Your Honours, the last thing I wanted to address concerned what occurred - - -

KIRBY J: This has, of course, been beneficial in the sense that it has brought to justice cases where people would previously have been brought to justice but it has also presented new dangers because you can sometimes have very long delays between the alleged events and the prosecution and there are great disadvantages on the accused to defend themselves and it comes down to oath against oath, the Robinson problem.

MR GAME: Yes, quite, your Honour. The actual requirement for corroboration was a quite unfair one in the sense that, in effect, it stopped you convicting in the absence of corroboration but, as I said this morning, it has actually taken away a discipline which was highly useful which was identifying independent sources that took the case forwards. I am moving from all of that to raise the last matter which is dealt with in our submissions and it concerns the progress of the investigation in Victoria. This was dealt with at page 4 of our submissions, bottom of the page. We set out the course, the events that unfolded, and if you look at page 21 of the appeal book there is a ruling. Sorry, actually, the ruling comes at page 23, I think.

The effect of it is that his Honour excluded evidence that the Victorian investigation did not result in any charges. This application was renewed at page 239. It was renewed at page 239 because of the lengthy delay which had occurred.

GLEESON CJ: You have realised that these have a reserved decision in a case that raises a very similar issue?

MR GAME: No, I did not.

GLEESON CJ: A case called Washer v the State of Western Australia.

KIRBY J: Washer was categorised as a Storey or Garrett case, that is to say there had been an actual acquittal, whereas in this case you do not have an actual acquittal, you simply have a non-charge.

MR GAME: Yes, your Honour.

KIRBY J: So it does not fit within the Storey and Garrett. You are trying to stretch the Storey and Garrett line of territory into a new principle.

MR GAME: Not exactly, your Honour. What we have now is a ruling that the defence cannot cross-examine Detective Beanland to show that there were no charges laid in Victoria.

KIRBY J: No charges laid yet.

MR GAME: Quite, your Honour, but this is just to defeat a possible inference that the jury might reason because they have heard nothing about what occurred in Victoria and because of the delay – that, in effect, they were told not to speculate about Victoria, but that leaves open – all they have to be told is that he has not been charged. Then that will sweep away the unfavourable inference that would come if their speculation led them to think that he had been charged, or that he had been charged and convicted. That is a very real prospect in this case because we have two South Australian acts charged against a whole history of many other alleged acts in Victoria.

May I make this point by taking your Honours back to section 18 of the Evidence Act. In South Australia they do not have a provision such as they used to have in New South Wales where you could lead evidence as to character, disposition and other things, or as in the Evidence Act which speaks about character evidence – that the tendency rule, propensity rule and hearsay rule do not apply to character. If you look at section 18 - - -

KIRBY J: What section of the uniform Evidence Act is that?

MR GAME: It has slipped my mind, your Honour, but there is a case about it called Stanoevski.

KIRBY J: That is in this Court.

MR GAME: Yes, your Honour. What I was going to say is this. If you look at section 18(1)(d), it would be a perfectly normal thing that is contemplated by section 18(1)(d) that you may lead evidence to prove that you have not committed, have not been convicted or have not been charged with any offence as an aspect of good character. What we are talking about here is defeating an inference of bad character. All that one is seeking to lead is the evidence that he has not been charged.

If one puts that another way, if defence counsel, when the application was made to introduce that evidence, had said, “I want to raise that as part of good character”, the fact that he had not been charged would be an aspect that could be led of good character. So in my submission the analogous applies in relation to negativing or neutralising an inference of bad character.

HEYDON J: What is good character? I mean, to say, “I have never been charged with any sexual offence that is alleged to have taken place in Victoria” - that is the good character, is it?

MR GAME: It would be, yes. The whole point of it is that character is all about various forms of hearsay, unless it is done in – I forget the name of the 19th century case which was consistently applied which said that all you could ask the witness was, “Do you know X; do you know members of the community who know X; what is X’s reputation?”

HEYDON J: Rowley, was it?

MR GAME: Rowley, yes. But what I am saying here is, although there is no special statutory provision, this appears to contemplate that character goes way past what is described in Rowley’s general reputation.

KIRBY J: Is the anchor for this submission that it does not stand alone, it stands in the context that charges have been brought in South Australia, therefore the danger without a revelation that there have been no charges is that the jury may infer from the bringing of the charges in South Australia that there would also have been brought charges in Victoria and they do not know whether they have been found proved or not?

MR GAME: Yes, all it is doing is neutralising one aspect or perhaps the worst of aspects of the imputations of bad character that flowed from the leading of the Victorian charges.

KIRBY J: Did the judge give reasons?

MR GAME: The effect of it was that it was not relevant. The effect of the passages that I have taken you to is that it was not relevant. We have set it out twice that he would direct the jury that there were no charges in Victoria, but when it came to the – it is a little bit ambiguous, but we have set that out. But then the jury are told, page 509 “you do not know the outcome of that investigation” and then over the page they are told not to speculate. As I say, all that one needs to do is to defeat the worst of it - - -

KIRBY J: What does that actually mean, “don’t speculate”? It rather plants in the jury the idea that this is something terribly interesting and they are told they must not speculate but they have had it drawn to their attention and there is a bit of a risk, it seems to me, that they might speculate.

MR GAME: Well, particularly when they are told that they do not know the outcome, that is to say, they are not going to be told the outcome. So if you are not going to be told the outcome, presumably you are not going to be told of the outcome because it is bad. I suppose my underlying point about this is that the price one pays – sorry, first of all, when talks about relevance in this context the contextual framework of relevance has shifted here. It is not to the point to say that it is hearsay in the mouth of Detective Beanland, which is what the prosecutor said. It is not being tendered for that purpose. It is being tendered to neutralise an adverse inference. That is all I wanted to say. It could also be led through the accused. That is all I wanted to say.

GLEESON CJ: Thank you, Mr Game.

HEYDON J: I might just correct that. That was not Rowley, it was Rowton.

GLEESON CJ: Yes, Mr Tokley.

MR TOKLEY: Thank you, your Honour. Your Honours, I will be taking quite a different approach to my learned friend.

KIRBY J: But are you making an application to expand your grounds of appeal because though you argue it, you do not have a ground of appeal raising questions of admissibility?

MR TOKLEY: No, we do not have a ground of appeal relating to admissibility, your Honour, and I will not be seeking to ask the Court for leave to add such a ground. No objection was taken to the relevancy or admissibility of the evidence of uncharged acts in this case. I think it is too late to ask the Court to reconsider the question of admissibility.

HEYDON J: Not necessarily.

MR TOKLEY: Can I take that on board, your Honour, and think about it? Your Honours, could I - - -

KIRBY J: Because, in a sense, we have to consider the issue of admissibility in order to consider what the directions are properly to be. That is how we led into Mr Game’s submissions which ultimately produced his application. Anyway, if you would give it some thought, because the case is not going to finish today.?

MR TOKLEY: I will, thank you, your Honour. It may be that at the end of my submissions I will be asking the Court for leave to add the same ground or similar ground to that raised by Mr Game.

GLEESON CJ: Then you will have to tell us what different course might have been taken at trial if objection to the evidence had been taken.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: Because the basis of Mr Game’s application is that the evidence in question was objected to at trial.

MR TOKLEY: Yes, your Honour, but there was no objection in this particular case. Your Honours, could I ask your Honours to turn to the appeal book, because I will be taking your Honours to the appeal book. My approach will be to first of all give your Honours an overview of the factual context in which the question arises. Your Honours will know that we are confined to only one ground of appeal, and that is the adequacy of the trial judge’s directions in this matter. It is in that factual context that I wish to address the Court both as to the factual matters that arise, but also to deal with the conceptual matters that your Honour Justice Kirby has spoken about and the matters that your Honour Justice Hayne has raised as well.

Can I ask your Honours first to go to page 7 of the appeal book. Your Honours, prior to the commencement of the trial, counsel for the prosecution informed the trial judge that the prosecution intended to lead what is called evidence of uncharged acts. Your Honours will see that on page 7 beginning about line 10 on that particular page where his Honour the trial judge asked the prosecutor:

All right, thank you. That helps me with those matters. Are you proposing to lead evidence of uncharged acts?

Your Honours will see if your Honours go down that page, beginning around about lines 19 to 20, at the first of the so-called uncharged acts was:

the accused has had a shower, is wearing a towel, the towel comes off and his penis is exposed to her, and he wiggles his penis around –

and it was said that that happened on other occasions when the accused would do that as well.

The second, if I can put it this way, the second category of uncharged acts was referred to at line 24 and here the prosecutor is referring to the statement of the complainant where the complainant specified a number of occasions on which the accused would attempt to kiss the complainant whilst they were doing some - - -

GLEESON CJ: Mr Tokley, we do not have this statement, do we?

MR TOKLEY: No, your Honour. It is - - -

GLEESON CJ: There was a hand-up brief of committal or something like that.

MR TOKLEY: Yes, your Honour. The statement never got into evidence and it never formed an exhibit in the trial and at this point in time this is pre-empanelment of the jury.

GLEESON CJ: Yes, but it was on the basis of the statement. Was there a committal proceeding?

MR TOKLEY: My understanding is there was, yes, your Honour.

GLEESON CJ: So, as is usual, it would have been on the basis of the evidence given at committal that the judge and trial counsel knew what the evidence of the witness was expected to be.

MR TOKLEY: Yes, your Honour. The point I am simply making here is that at this point in time the counsel for the prosecution is directing his Honour’s attention to the evidence of so-called “uncharged acts” which the prosecution will be relying upon. Relevantly and essentially, if I could ask your Honours to have a look at lines 35 at the bottom of that page where his Honour says:

They are the uncharged acts that you want to –

MISS DAVISON: Essentially led as the grooming process for what becomes the acts that are charged.

Over the page:

HIS HONOUR: Is that the only basis upon which you want to lead them, what you say is the grooming process?

MISS DAVISON: They put the whole of the sexual contact into context.

HIS HONOUR: Anything else?

MISS DAVISON: No.

So at that particular point in time, the only two purposes for which the uncharged acts were sought to be used was to establish what was called a “grooming process”, if I may use that shorthand, and secondly, to put the whole of the sexual contact into context, if I may use that shorthand. Your Honours, when the prosecutor opened to the jury, if I could ask your Honours to turn, please, to page - - -

KIRBY J: I am not hearing you, Mr Tokley, you will have to raise your voice.

MR TOKLEY: I am sorry, your Honour. If I could ask your Honours to turn to page 23 of the appeal book, this is the prosecution’s opening to the jury, particularly around line 21. This is the way the evidence of the uncharged acts was put to the jury:

The Crown alleges that he was, in fact, grooming her for what was to come later; that he was getting her ready for the sexual advances that he was to make to her at a later time.

Your Honours, I stress the two purposes for which the prosecution sought to lead the evidence not only because of the conceptual matters that have been raised by your Honour Justice Kirby but also because when we come to the summing up in this particular case, it is my submission that rather than take the purpose that the prosecution relied upon and direct the jury on that purpose his Honour the trial judge said that the evidence was to be used for a different purpose and different to that led by the prosecution. One of the complaints that is made is that the jury were given inconsistent purposes for the use in relation to this evidence. Your Honours, no objection was taken by counsel for the appellant as to the relevancy or admissibility of the evidence of the uncharged acts and no rulings as to admissibility were sought from the trial judge.

Could I then ask your Honours to go please to page 238 of the appeal book beginning about line 11 on the page, there was a discussion between his Honour the trial judge and the prosecutor about the need for giving directions relating to uncharged acts and how the jury is to use such “uncharged acts if they are satisfied they are proved and how they are not to use them”. Around line 19 the prosecutor repeats in effect what she said in her opening to the jury and in the pre-trial discussion with the judge. His Honour at line 29 then summarises the position as:

They are the two points then upon which you are going to submit to the jury that they can use them. Is that the decision?

MISS DAVISON: Yes.

If I could ask your Honours to turn to page 240 and in particular to line 25, this is his Honour the trial judge saying:

what I propose, as I understood the point you were making about the quote ‘grooming’, to be saying to the jury, is that the other purpose for which the Crown leads it, is to – it can be something like this, explain the background against which the first offence charged came about, where [the complainant’s] evidence of the offences charged, or the first offence charged, may otherwise appear to have been unintelligible, or not fully comprehensible, which is what I interpret the point you are making about the grooming.

The prosecutor then says:

I would probably say, or I do say, it goes a bit further than that. An actual lead-up by the accused to what ultimately occurs behind the tree.

HIS HONOUR: That is the point you can make. As the judge directing it, I am not going to make that point. I am just simply - - -

KIRBY J: Can I ask, is the complainant in this case the natural daughter of the accused?

MR TOKLEY: Yes, your Honour.

KIRBY J: The charge here is noted by you as incest under section 72 of the South Australian Act. Is that the same charge as was brought against the first appellant, HML? Is there any explanation – I did not think it was. Unfortunately, the written submissions of the appellant did not set out all the relevant statutory provisions as is required by the rules that should at the very least include the provision of the South Australian Act that contains the offence of which the appellant has been convicted. We do not carry the South Australian statute around in our brains. I do not. Is there any explanation why they were differently charged, one with incest and one with a sexual offence, do you know?

MR TOKLEY: I am sorry, your Honour, no, I cannot assist your Honour in that regard. I am sorry, your Honour, has your Honour saying that - - -

KIRBY J: Is there any difference in the penalty that it attracts to the two offences, do you know?

MR TOKLEY: I imagine there would be, your Honour. I could check that, your Honour.

GLEESON CJ: What was the age of the complainant in your case?

MR TOKLEY: She was 13 at the time of the first offence, your Honour, and 16 or 17 at the time of the fifth offence. There was three years between the first four counts and the fifth count.

GLEESON CJ: Was the fifth count the incest count or were they all incest counts?

MR TOKLEY: No, your Honour, three of the counts were sexual assault and the fifth count was incest and I think the third count - - -

KIRBY J: No doubt the solicitor will be able to explain this apparently differential prosecution charging policy.

MR TOKLEY: Yes.

GLEESON CJ: I wondered whether the explanation for the incest charge was that she was of what is sometimes described as full age at the time of the events the subject of the fifth count.

MR TOKLEY: It is possible, your Honour. I am sorry, your Honour Justice Kirby, could I just go back to one of your earlier questions. Was your Honour concerned that in the matter of SB we had not provided - - -

KIRBY J: I cannot hear you, Mr Tokley. If you want me to have any attention to your submissions you will have to speak up. I am sorry, we have all got to speak up.

MR TOKLEY: I am sorry, your Honour. Is that better, your Honour? Your Honour, I was wondering was it in SB that your Honour was concerned about the actual charge?

KIRBY J: I want to know what is the differential between the cases. Why has one, which is the natural daughter, been charged with general sexual offences and not with incest offences and is there a difference in punishment? There must be some explanation, but no doubt the solicitor will tell us so do not worry about it now.

MR TOKLEY: Thank you, your Honour, and I will speak up.

KIRBY J: This is a very big room and I am getting deaf having to listen to counsel for 32 years in appellate courts.

MR TOKLEY: I am sorry, your Honour, I will endeavour to be louder. Your Honours, I was taking your Honours to the appeal book and in particular the point I was seeking to make by taking your Honour to these particular passages and without wishing to labour the point was simply that when the prosecution led the evidence of uncharged acts, it was said to be relevant for two purposes. First, it showed grooming on the part of the accused and, second, it was said to put the sexual contact into context. When the trial judge came to direct the jury, he did not direct the jury in those terms. In fact, quite the contrary, he directed the jury in different terms, and I will take your Honour to the critical page dealing with the directions to the jury.

HEYDON J: We see the origins of that on page 240 where the trial judge seems to be having trouble in understanding Ms Davison’s point which was consistent with the point on which she had opened and the point on which she had foreshadowed the evidence being called.

MR TOKLEY: Yes, your Honour, yes.

HEYDON J: Where is the part where the trial judge gave the wrong direction?

MR TOKLEY: It is page 324 of the appeal book, your Honour. Your Honour, it begins around line 20. This is the trial judge summing up. His Honour begins:

However, in addition to the conduct alleged in each of the charges, you have heard evidence of other alleged criminal conduct.

His Honour then refers to the criminal conduct which is the exposure, touching of the complainant, and his Honour explains at the bottom of that page that, “These alleged acts are not the subject of any charges”. His Honour then goes on to the next page to say:

However, as a result of the evidence of these alleged uncharged acts, it is necessary for me to direct you as to the use you are entitled to put that evidence if you are satisfied that it is proved, or you are satisfied any of the acts referred to in her evidence are proved.

The specific complaints are made at the next three paragraphs, your Honours. The first of the specific complaints is that when the trial judge directs the jury as to the use that they can make of the evidence of uncharged acts, it says that it is potentially helpful to them in evaluating the complainant’s evidence:

That is, hearing the whole of these allegations may better enable you to assess her evidence. The whole of the alleged course of events provides a context in which it is said that the charged acts occurred.

Then the second of the two purposes is then in the next paragraph beginning with the words:

In addition, the Prosecution also presents the evidence as explaining the background against which the first offence charged came about, and the other offences which are alleged to have followed, where the evidence of [the complainant] regarding, in particular, the first offence but also the following offences, may otherwise appear to be unreal or not fully comprehensible.

and so on down to the end of that paragraph. Unfortunately, your Honour, beginning at line 30 his Honour then says:

Now, 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 which were stated by [the complainant] in her evidence.

It is clear that his Honour is giving a direction here because he uses the word “direction” - - -

GUMMOW J: Ordinary Australians do not know what a discrete matter is.

MR TOKLEY: I am sorry, your Honour?

GUMMOW J: Ordinary Australians do not know what a discrete matter is.

MR TOKLEY: No, certainly not spelt - - -

GUMMOW J: They think it is being hushed up.

MR TOKLEY: Yes, your Honour, exactly.

KIRBY J: This is why all of this has a large air of fiction about it.

MR TOKLEY: Yes, your Honour.

KIRBY J: That makes admissibility much more critical, at least in my mind.

MR TOKLEY: It does, your Honour, and I think that - - -

KIRBY J: Because once it is in you get charges about discrete matters. It is just an elusion.

MR TOKLEY: If I could just finish that point and come back to your Honour’s point. His Honour then, it is clear, was directing the jury as to the permissible manner in which they could use the evidence and he then turned, on the next page, as to how they could not use the evidence. At the end of the second paragraph on page 326 he says:

The evidence of the uncharged acts has only been presented for the purpose of the permissible uses to which I have referred.

In fact, your Honours, that is not correct. That is not what the prosecution led it for. Your Honours, to complete this I should invite your Honours’ attention to page 335 of the appeal book and to the third paragraph on that page beginning “Miss Davison said”. Here his Honour the trial judge is dealing with the addresses of counsel and here he refers to the way in which the prosecution originally opened on the evidence.

GLEESON CJ: That is the argument he said he was going to leave to counsel but he was not going to put to the jury himself, the grooming explanation.

MR TOKLEY: No, your Honour, I took that to be a different point, your Honour, at that particular point and I can take your Honour back to it, if it is of assistance. It is page 240, your Honour, the point - - -

GLEESON CJ: Yes, the bottom of 240 and the top of 241.

MR TOKLEY: Yes, your Honour. The way I have read it, your Honour, is that - - -

GLEESON CJ: And she says “An actual lead-up by the accused to what ultimately occurs”.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: And the Judge says “Well that might be your point but I’m not going to make that point”.

MR TOKLEY: Yes, your Honour, yes. And the problem that the prosecution has in this particular case is that by the time we reach 335 in the trial judge’s summing up, he has already told the jury in his direction to them that there are only two permissible ways in which they can use the evidence and not otherwise. So that whatever he said at page 335 about the way in which the prosecution was seeking to use the evidence, he has really already directed the jury as to the permissible and non-permissible ways, unless one assumes that the jury would have taken that evidence into account in a way in which the prosecutor was referring to it, they would have, assuming they followed the trial judge’s directions on the point, only have used it in the two identified permissible ways referred to by the trial judge.

GLEESON CJ: Is your point that at page 335 you are leaving to the jury for their consideration an argument which he has already told them he cannot accept? Is that right?

MR TOKLEY: Yes, your Honour. It is implicit in the directions that he gives that they cannot accept that argument from the prosecution.

HEYDON J: Is this your position, that you would not have had a problem if he had given the jury a direction along the lines of Miss Davison’s theory about grooming?

MR TOKLEY: Yes, your Honour. Assuming for the sake of this argument that it is an acceptable basis for admissibility, it was consistent with the purpose for which the prosecution said they were leading the evidence.

HEYDON J: Miss Davison certainly never varied from that course she attended it on?

MR TOKLEY: No, she did not, your Honour. That is correct.

HEYDON J: My problem is if the judge had summed up along those lines, it would have been much more detrimental to your client’s interests because Miss Davison’s point is arguably a good point.

MR TOKLEY: It may have been, your Honour, but it may also have exposed or at least called into question the nature of the – if I can put it this way – the so-called grooming process. Grooming process is a label which to some extent eludes definition and also characterisation of particular evidence because, on the one hand, it could be said that grooming is evidence of an intention on the part of the accused to do particular or take particular steps or do particular acts. So that looked at in one way, that is what grooming is and if one stands back from that, one could say that in certain respects that might be tantamount to show propensity on the part of the accused.

GLEESON CJ: Mr Tokley, was the defence case that neither the charged acts nor the uncharged acts ever occurred?

MR TOKLEY: That is correct, your Honour, yes, neither the charged nor the uncharged acts occurred. While we are on this point, could I just pick up a point that your Honour Justice Kiefel mentioned earlier today. Your Honour said in relation to evidence of sexual attraction that it showed something of the nature of the state of mind of the accused person as opposed to, I think, if I may extrapolate, something of the nature of the mind of the complainant. But when his Honour the trial judge directed on the two permissible purposes that could be made of the use of this evidence, the principal purpose put forward was that it was evidence which enabled the jury to evaluate and assess the complainant’s evidence.

One of the points that was made in the Court of Criminal Appeal was that this evidence when used by the prosecution was directed towards showing or explaining the actions of the accused and not the actions of the complainant. By the time his Honour came to direct upon it, he was using it to explain the actions of the complainant and not the accused.

GLEESON CJ: Where is the evidence of the charged acts?

MR TOKLEY: Your Honour, I am happy to take the Court to - - -

GLEESON CJ: Just the references will do.

MR TOKLEY: Thank you, your Honour. In paragraph 15 of the written submissions of the appellant I have identified where the evidence of the charged acts begins for each of the respective counts.

KIRBY J: What paragraphs?

MR TOKLEY: It is paragraph 15, your Honour, of the written submissions. Your Honours will see I have put into bold counts 1 through to 5 and where the evidence regarding those counts begins and what the particular accounts were. If I may just go back to - - -

KIRBY J: It is open to comment that if the course taken is permissible, then it renders in a sense the charges rather immaterial that the Crown will still lead a whole sequence of events in chronological order without the irksome necessity of actually charging a person with matters of offence that are then brought out in testimony.

MR TOKLEY: Yes, your Honour. The broader question that your Honours are addressing in the context of admissibility is the use of evidence of so-called uncharged acts. May I say that in my written submissions I have said that – and this is the point that his Honour Chief Justice Gleeson began with this morning – uncharged acts is just a label that is used and, may I respectfully say, an unhelpful label because what it does is it detracts attention from the precise evidence in question and enables a number of sometimes disparate events or acts to be lumped together and treated as if they had a common probative quality, whereas in fact the events or acts themselves may go to particular charged acts or not, as the case may be.

KIRBY J: When I first started sitting in the Court of Criminal Appeal in New South Wales my recollection is that one saw uncharged acts generally in the context of matters that were blurted out, said by the complainant in the course of being asked questions about the charged acts and then there was the not unreasonable submission put to Courts, well, you cannot control people from referring to a whole range of other things, and that generally was accepted by Courts of Criminal Appeal. But now we are getting to the point that there are charged acts which are treated in a sense as nominal and the complainant is led through testimony which has a whole range of uncharged acts for which the accused may or may not be ready and which have certain disadvantages from the accused’s point of view.

MR TOKLEY: Yes, your Honour. The point your Honour makes, if I may respectfully say so, is about the prejudicial nature of this evidence and it is a point which his Honour Justice Callinan dealt with at some length in the cases of both Gipp and Tully, which I am happy to take your Honours to at some point in time but I am sure your Honours would be familiar with his Honour’s judgments in those two cases where his Honour’s concern was that - - -

KIRBY J: What was the first of those cases?

MR TOKLEY: Gipp (1998) 194 CLR 106. The second of the two cases was Tully v The Queen (2006) 81 ALJR 391.

GLEESON CJ: The admissibility of evidence of this kind was dealt with by the New South Wales Court of Criminal Appeal in Chamilos a decision of 24 October 1985 and again in Wickham, a decision of December 1991. It has been around for quite a while.

MR TOKLEY: Yes, your Honour, it has. The point I was simply seeking to make and to pick up on his Honour Justice Kirby’s point was that, it seems to me, on the one hand you have the prejudicial effect of all of the uncharged acts and the concern expressed - - -

HAYNE J: What exactly do you mean by “the prejudicial effect of all the uncharged acts”?

MR TOKLEY: Your Honour is quite right to pick me up on that. It is a bit of a loose way to state the matter. If one defines evidence of uncharged acts as evidence of reprehensible or criminal conduct - - -

HAYNE J: Towards this complainant?

MR TOKLEY: Yes, your Honour, towards this complainant, to be precise – that such evidence, in the context of this particular trial, essentially involved assertions of conduct on the part of the appellant on unspecified occasions of unspecified duration and in unspecified contexts, can I put it that way, in the sense that it was not said whether the act occurred inside or outside of the house. That evidence will, even before the accused gets into the witness box, paint the accused as a person who has engaged in other either reprehensible or criminal conduct.

HAYNE J: What does the addition of other incidents do? After all, the complainant gives evidence supporting the allegations charged. I understand the lack of specificity point you make about other uncharged acts. Other than that, what is the prejudice that is done?

MR TOKLEY: If I may use the label “uncharged acts” for the moment, that evidence portrays the accused as a person having a particular character or a particular tendency.

HAYNE J: But the relevant hypothesis for debate has to be that the evidence of what occurred on earlier occasions and constitute the uncharged acts is relevant.

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

HAYNE J: So it has relevance. Now, the point about identifying the prejudice is then more than just a captious point. The immediate answer seems to me at least to include the lack of specificity – I cannot tell you when it happened but it started years before, it started in this way, and so on. I understand that set of reasons, but what more is there in it? Is there more?

MR TOKLEY: Depending upon the nature of the evidence, your Honour, there could be more.

HAYNE J: Take the facts of this case. The accused stands charged at the end of the process with a count of incest. The first of the uncharged acts is kissing of an apparently sexual kind. What further harm is done to the accused by leading evidence of that kissing that is necessarily done by the evidence that he committed an act of incest on his daughter?

MR TOKLEY: From the accused’s point of view, your Honour, he has the first difficulty in being able to defend himself because of the general assertion that an act such as that occurred. That is the first point. The second point is that the act itself may have been a perfectly innocent act if we take the act of kissing, so that there are two possible ways in which that particular act might be prejudicial to an accused.

KIRBY J: You may, I am not sure, get some help in answer to Justice Hayne’s question by looking at Johnson v Miller and Justice Dixon’s explanation there of the reason for particularisation in criminal trials and he gives a list of reasons, one of which is so that in our accusatorial system the accused knows what he has to meet; second, that he can prepare for the particular matters that have been alleged against him; thirdly, he can object during the course of the hearing to evidence that is external to those matters; and, fourthly, that if he is convicted he can be punished with particularity by reference to those matters only which he has been called upon to answer. I think there are some other reasons Justice Dixon expresses.

MR TOKLEY: Yes, your Honour. Could I take your Honour’s point and take up the point of principle or the point which underlies your Honour’s comments that there is, in my respectful submission, a tension between, on the one hand, the practicalities of a criminal trial in which, as his Honour Justice Hayne has said, you will have complainants who will give evidence and at some point in time they may say during the course of their evidence-in-chief or in cross-examination or in re-examination, “No, it happened to me on more than one occasion”. The practicality is one cannot stop that coming out.

GLEESON CJ: It is a ground of objection to evidence in South Australia, is it not, that its prejudicial effect outweighs its probative value?

MR TOKLEY: Yes, your Honour, it is.

GLEESON CJ: And that is always part of the context in which issues, if there are issues, as to admissibility of evidence of this kind arise.

MR TOKLEY: Yes, your Honour.

KIRBY J: But I think Justice Dixon’s point in Johnson v Miller is more fundamental and arises earlier and that is, if it is not addressed to the particular matter which the accused is charged with it is not relevant to the matter before the court.

MR TOKLEY: Yes, and the point I was coming to, your Honour, was that in the tension between the practicalities of the criminal trial which Justice Hayne and your Honour the Chief Justice have referred to, and in the overall framework of the conduct of a criminal trial based upon the information which your Honour Justice Kirby has referred to, there is that tension between - - -

GLEESON CJ: Why is there a tension? If it is not relevant, it is not admissible, end of story. If you say that evidence is not relevant, there is nothing further to discuss in terms of admissibility of evidence. That is the most fundamental and elementary principle of evidence. If you have decided it is not relevant, it is out.

MR TOKLEY: Accepting your Honour’s statement, of course - - -

GLEESON CJ: The corollary of that is you only discuss these problems of admissibility upon the hypothesis that it is relevant.

MR TOKLEY: Yes, your Honour. Your Honour, can I take your Honour’s point about – your Honour, of course, has correctly and quite rightly articulated the relevant principle regarding the admissibility of relevant – sorry, allowing irrelevant and excluding irrelevant evidence, but the problem that – and if I can just take it back to the facts of this particular case. the problem that one encounters is that, as the law presently stands in South Australia, evidence of, if I may use the label, uncharged acts is relevant on a number of different bases, and your Honours will be familiar with the passage of his Honour Chief Justice Doyle in Nieterink’s Case where – it is referred to in my written submissions – that there are a number of possible bases upon which this evidence might get in or admissible and be relevant to, and it was referred to in the previous case HML and it may help to explain why the person did not complain. It may help to explain why it did not come out of the blue and so on and so forth.

So that I accept what your Honour the Chief Justice has said about the question of objecting to the relevancy of that type of evidence but, as the law presently stands in South Australia and no doubt elsewhere throughout Australia, such evidence is said to be relevant to a number of possible bases. In some cases it may be apparent that those bases have been raised by the defence. In some cases it is not apparent at all that they have been raised or any objection has been raised by the defence such as to make those matters an issue but until this Court decides that such evidence is or can be objected to as being irrelevant to the already accepted bases, such evidence will be led by the prosecution as relevant to one or more of those bases in anticipation or at the start of the case and as a way of explaining and justifying the introduction of such evidence in the criminal trial.

That is the problem that I was hoping to come to later on in my submissions and that is that, as the authorities presently stand in South Australia, there are a number of possible bases of admission. In Victoria in the case of Vonarx it seems that the Victorian Court of Criminal Appeal has sought to limit the introduction of such evidence to what they call the limited purpose of showing a sexual relationship.

GLEESON CJ: Mr Tokley, take the following simple example of a question and answer. Suppose a complainant in a sexual case says that on 1 January 2005 something happened and then counsel for the prosecution says to her “Is this the first time on which that ever happened?” and she says “No” full stop, is it possible to object to that evidence on the basis that its prejudicial effect outweighs its probative value, because, for example, it is so vague and unspecific?

MR TOKLEY: If one shares your Honour’s view that it is so vague and unspecific - - -

GLEESON CJ: Just take the example I gave you. I gave you the example of a particular question, a particular answer. Question: is this the first time this ever happened? Answer: no. How do you deal with the admissibility of that evidence?

MR TOKLEY: Your Honour, the difficulty one has in answering your Honour’s question, if I may put this way, helpfully is simply that such questions often come as part of the overall evidence of a complainant in a case. The trial judge may hear an objection as to admissibility at that stage, but then say “I will wait and rule on its admissibility until I have heard all the other evidence”. That, in my respectful submission, would be an appropriate ruling because the other evidence that comes in may demonstrate the relevancy of that question and answer or the answer - - -

GLEESON CJ: Hang on. Do you mean by that, “Counsel objects to the question that I posed” and the judge does not permit the witness to answer the question?

MR TOKLEY: No, the answer has been given.

GLEESON CJ: Hang on. You object to the question, do you not?

MR TOKLEY: Sorry, your Honour. Yes. Your Honour is quite right, of course.

GLEESON CJ: And the judge cannot say “I am going to countenance the possibility that when the rest of the evidence of the case is in I will let the prosecution reopen the evidence of the complainant” on that point, I presume.

MR TOKLEY: Your Honour, no, my point was slightly different. It is that the trial judge may consider that to stop the complainant answering the question at that point in time without knowing what the answer is is a premature point at which to deal with the question and answer because the answer may be relevant when taken with subsequent evidence of the complainant to one or more of the charge matters.

GLEESON CJ: But when are you going to deal with it - in reply? That would be dynamite from the point of view of the accused.

MR TOKLEY: It is, your Honour, it is. But, as I understand it, that is the position that presently prevails.

KIRBY J: Could you explain to me in a sentence what the difference between the Vonarx test is and the test in Nieterink, is it?

MR TOKLEY: Yes, your Honour.

KIRBY J: Chief Justice Doyle’s test. Your assertion before us is that in South Australia the net of relevancy is cast too wide. It includes context so that it explains not coming out of the blue, so that it explains grooming, sexual attraction, guilty passion, no surprise, no complaint, a whole series of things. Now, what do they say in Vonarx in the Court of Appeal of Victoria?

MR TOKLEY: I am happy to take your Honour to the case, but - - -

KIRBY J: Are you going to do that later, because if you are do it when you come to it, but I am trying to find some way of sharpening the questions this Court has to answer.

MR TOKLEY: Certainly, your Honour. Your Honour, in Vonarx the Court of Criminal Appeal said that such evidence of uncharged acts or “evidence of other criminal conduct”, to use their precise words. Perhaps if I could take your Honours to the case.

KIRBY J: Not if it is out of your sequence.

MR TOKLEY: Thank you, your Honour. Vonarx is - - -

KIRBY J: But I think this was a major factor in your getting special leave, if I am not wrong. I sat on the special leave and my recollection is that it was the point that was being made that in South Australia it is a much looser net that is cast than in Victoria - - -

MR TOKLEY: Yes, your Honour. It is much broader.

KIRBY J: - - - and in your submission an unfair one.

MR TOKLEY: Yes, your Honour. Ultimately, your Honours, could I perhaps just take your Honour’s points one at a time. It is my submission that in South Australia there are a number of bases upon which this evidence is said to be relevant and therefore admissible. That is much broader than appears to be the position prevailing in Victoria. I will take your Honours to Vonarx in a moment. Your Honour is quite right. One of the considerations in the special leave application was the difference between, or what appeared to be the difference between the South Australian and Victorian positions. The third issue, your Honour, is – this is addressed in my written submissions – whether there are not some compelling policy reasons to confine the use of evidence of other criminal conduct or other uncharged acts.

KIRBY J: You may need a fourth heading and that is to answer the respondent’s submission that since Vonarx the Court of Appeal in Victoria, or Victorian courts, have moved to loosen the Vonarx test and in the direction of Chief Justice Doyle’s test.

MR TOKLEY: Yes, your Honour.

KIRBY J: That is put in the respondent’s submissions.

MR TOKLEY: Thank you, your Honour. Could I take your Honours to the Victorian case of Vonarx [1999] 3 VR 618, please. Your Honours are probably aware that the decision, although reported in 1999, was in fact handed down in 1995. It was a decision which preceded the decision of the Court of Criminal Appeal in South Australia in Nieterink’s Case and I have checked to see if it was one of the cases referred to in Nieterink but it was not. Your Honours, the relevant pages and paragraphs are on pages 624 and 625 of the report. In particular, your Honours, we rely upon paragraph 22 which is on page 625 of the report and halfway through that paragraph where the court says:

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 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. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.

May I say, your Honours, of this passage that, in my respectful submission, their Honours were very careful to distinguish between the limited purpose for which this evidence was being adduced and the consequence of that evidence being adduced and that is why they have used the words “thereby enabling the evidence relied upon by the Crown”. So that, in my respectful submission, if evidence is advanced for a particular purpose and that demonstrates its relevancy, once that evidence is in, then a separate question arises as to the use that can be made of that evidence.

If I may use the metaphor of a jigsaw puzzle. If the evidence comes in to prove the existence of a sexual relationship, that may be regarded as one part or one piece of a jigsaw puzzle of the complainant’s evidence as a whole. It is in that sense that I think that their Honours are referring to it there and that is why they use the words “thereby enabling”. They are not saying that one of the purposes for which you can introduce this evidence is to establish context or to allow a complainant’s evidence or other evidence to be assessed and evaluated. What they are saying is that is a consequence of this evidence going in but it is not a purpose of it.

GLEESON CJ: Mr Tokley, where can we find the direction that was said on the top of page 625 to be adequate?

MR TOKLEY: It is in paragraph 19, your Honour.

GLEESON CJ: Thank you.

MR TOKLEY: Paragraph 19, page 624 and just before paragraph 20 your Honours will see the smaller print at the indented paragraph beginning “That evidence, if you accept it”.

HEYDON J: May I question whether there really is much difference between the test in R v Vonarx and Chief Justice Doyle’s test? But one thing, Chief Justice Doyle was not propounding universal rules, he was just saying in this case the evidence was admissible on a number of bases, but do not those bases all collapse at the proposition that there was a sexual relationship?

MR TOKLEY: In my respectful submission, no, your Honour, for these reasons, that if one considers the bases that Chief Justice Doyle identified - - -

HEYDON J: The last one is, could also establish a sexual attraction by the appellant towards R. That is a sexual relationship point, is it not?

MR TOKLEY: Yes, your Honour, it is, I accept that.

HEYDON J: The first one was a lead-up to the first charged incident.

MR TOKLEY: Yes, your Honour.

HEYDON J: That is part of a sexual relationship, or can be. Lack of surprise, confidence in repeating conduct, complainant not complaining, are not all these matters really linked to the existence or otherwise of a sexual relationship?

MR TOKLEY: I understand your Honour’s point. If one uses the term “sexual relationship” yes, it is arguably broad enough to encompass those particular bases. If one uses the words, for example, or perhaps a narrower word or, for example, “attraction”, or perhaps to use the word in R v Ball “passion”, then if one uses a narrower word, one can exclude some of those bases. My recollection is his Honour the Chief Justice himself said that sometimes using the word “relationship” was not appropriate and it was much better to be specific about the basis upon which the evidence was sought to be led. But your Honour’s point is correct that one can cognise or contemplate those other bases as under the umbrella of sexual relationship. But if I may take up your Honour’s point and - - -

KIRBY J: That sounds a little bit like propensity.

MR TOKLEY: Yes, it does, your Honour, it does, yes. Part of the problem in all of this area, with great respect, is the use of labels, some of which are not terms of art.

GLEESON CJ: But it has been pointed out over and over again that propensity evidence is not excluded because it is irrelevant.

MR TOKLEY: No, your Honour.

GLEESON CJ: Indeed, it has been said in this Court that it is excluded because it is too relevant.

MR TOKLEY: It proves too much, your Honour.

GLEESON CJ: Dangerously relevant.

MR TOKLEY: Yes, your Honour. So propensity is not, in my respectful submission, the - - -

KIRBY J: But is that not the point about these uncharged acts, that instead of the trial being a focus on matters which the State or the organised State alleges against the individual, it becomes what Lord Chief Justice Holt warned against 200 years ago, which is a sort of inquisition 16 – yes, 300 years ago. Thank you. Let us not quibble about a hundred years or so between friends, but it is becoming an inquisition into everything in the accused’s life which can be very dangerous, instead of an accusatorial concentration on the matters which the organised State alleges against the accused.

MR TOKLEY: Yes, yes. Well, that is why I think his Honour Justice Hayne’s suggestion earlier today is in many ways the solution to the problem that your Honour is raising and that is that – and from the case of Tully – ultimately one looks at what are the real issues in the case and ultimately what directions have to be given by the trial judge in respect of those real issues in the case because, unless we wind back the clock by a few years and undo the law which allows evidence of other criminal conduct to be admitted - - -

KIRBY J: You see, in Vonarx in paragraph 23 that the court refers to R v Dolan which was a decision of Chief Justice King who was very experienced in this area of the law.

MR TOKLEY: He was, your Honour.

KIRBY J: Do you say that the decision in Nieterink is different from the decision in Dolan? Have you compared those two? Has that changed the law of South Australia in this respect?

MR TOKLEY: No, your Honour. I have looked at the - - -

KIRBY J: Because what Chief Justice King is recorded as warning about is that the danger of convicting the accused on conduct which has not been proved to the requisite standard and which is not the subject of charges, which is the matter that is concerning me. At least when the State charges, it accepts the burden of proving the charges beyond reasonable doubt with particularity and specificity and if you enlarge the area of evidence that can be brought in as uncharged acts, then the State does not have to face that irksome responsibility.

MR TOKLEY: That is correct, your Honour.

KIRBY J: It can simply throw these things in and say context, grooming, attraction, guilty passion, explaining surprise, no surprise, explaining no complaint and it is not out of the blue and then you get it all in. It is a big inducement to the prosecution authorities just to take a couple of them and then throw everything else in without the criminal standard of proof, without the necessity of proving the matters beyond reasonable doubt.

MR TOKLEY: Yes, your Honour.

HEYDON J: You submit there would be the criminal standard of proof there though presumably do you not?

MR TOKLEY: I am sorry, your Honour?

HEYDON J: You would submit that the uncharged acts have to be proved beyond reasonable doubt?

MR TOKLEY: I think we have two submissions in relation to that. One is that where the evidence of uncharged acts forms a necessary and indispensable link to the proving of the charged acts, it would have to be proved beyond reasonable doubt. In this particular case the trial judge gave a direction that where the jury had to be satisfied of something being proved they were to understand that as being proved beyond reasonable doubt.

KIRBY J: But, as the Chief Justice pointed out earlier, the orthodox law, at least until now, universally accepted is that the thing the Crown has to prove beyond reasonable doubt are the elements of the offences charged.

MR TOKLEY: Yes, your Honour.

KIRBY J: So that to the extent that the law allows this larger penumbra to emerge around the offences charged, to the extent that that becomes bigger and bigger, then a question becomes whether the price of that has to be proved beyond reasonable doubt even if that involves expanding the present understanding of the requirement on the prosecution.

MR TOKLEY: Yes, your Honour. On the assumption that such evidence continues to be allowed to be – is said to be relevant and admitted on a number of bases, there are good reasons for seeking to confine the use of such evidence to prove, for example, a sexual attraction if it can prove such a sexual attraction, but not otherwise.

HAYNE J: Is there not a great danger in conducting two trials within one, one about uncharged acts and then another trial which is the trial of the offences charged? The solution proffered in Vonarx, at least as explained in Pearce in the same volume, is that the uncharged acts go in to demonstrate the existence of, perhaps the creation of, a sexual relationship between accused and complainant and if you focus the minds of the jury always, always, always on whether the offences charged have been established beyond reasonable doubt, you maintain, perhaps, the integrity of the accusatorial process.

MR TOKLEY: Yes, your Honour. The solution, if I may use that expression, that is proffered by the Victorian Court of Criminal Appeal seems to be that if, as your Honour said, it is - the evidence can be used only for the limited purpose of proving a sexual relationship.

HAYNE J: That was explained by Justice Tadgell in Pearce [1999] VSCA 221; [1999] 3 VR 287, particularly at 296 to 297. I have in mind especially paragraph 27, though I think it is probably necessary to read from 294 onwards in paragraph 23, but paragraph 27 is where his Honour perhaps points the matter as sharply as he does.

MR TOKLEY: Yes, your Honour, and if I could just take up your Honour’s point at page 298, if I may invite your Honours’ attention to page 298 of 3 VR, the paragraph beginning on that page at the end – the second paragraph on the page:

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.

HAYNE J: Now, you will notice that in the question I put to you I posited alternatives to demonstrate existence of a sexual relationship or to demonstrate the development of a sexual relationship. It was a deliberate choice, but there is an evident difference between them.

MR TOKLEY: Yes, your Honour.

HAYNE J: I would not want you to fail to understand the extra step that the second formulation has in it.

MR TOKLEY: Yes, I understand your Honour’s point and I understand that there can be differences in both nature and degree between those two situations as well.

HAYNE J: But what I have earlier described as completing the complainant’s evidence is completion by, “Look, these events occurred earlier. There was this sexual relationship forming, developed, established.”

MR TOKLEY: Yes, your Honour. Your Honours, if I may put it this way, the solution to the problem that seems to be arising which your Honours have alluded to during the day, and if I may use the expression his Honour the Chief Justice used of a taxonomy, one has to go right back to the nature of the evidence itself. If there are different acts, so-called uncharged acts, for example, HML, part of the evidence relied upon is the giving of the G-strings, but there is other evidence as well. There is a difference between obviously giving a G-string or giving a dildo or exposing oneself to one’s daughter by dropping a towel and wiggling one’s penis. There is a difference between those sorts of acts and acts which involve the kissing or touching of a particular person.

So one of the submissions that we are making in our written submissions is that one has to go back first of all to the evidence itself, and one then proceeds from that basis through the purpose for which it has been tendered – and this goes back to the point that his Honour Justice Hayne was making about how was it being used by the prosecutorial authorities.

GLEESON CJ: But there is also an important question, is there not, as to the form in which it is tendered? To elicit by a question an answer to the following effect, “He’s been at it for years” raises a particular problem about prejudicial effect and probative value because of the question of the way in which the accused are left to deal with this.

I do not know if counsel have explored this, but I am looking at an unreported judgment in a case I mentioned earlier of the Court of Criminal Appeal in Chamilos, 24 October 1985, where the history of a line of decisions is considered by the Chief Judge of the Criminal Division, Justice O’Brien, and he demonstrates that a line of authority going back to the beginning of the 20th century related to a situation where there is no direct corroboration of the charge which is laid within a limitation of time statutorily prescribed, but there is direct corroboration of a previous offence arising out of the relationship but which is out of time for prosecution. According to that judgment that was the context in which this problem was originally addressed. It might be worth a look at that case overnight.

MR TOKLEY: Yes, thank you, your Honour.

HEYDON J: I am just trying to get straight where you, as it were, solve the problem, for example, your support for the formulations in Pearce and Vonarx. Do you solve the problem at the level of relevance or at the level of the probative value being outweighed by the prejudicial effect, or do you solve it by some ad hoc rule which leads to the conclusion about a sexual relationship? What is your precise decisive point?

MR TOKLEY: Thank you, your Honour. Accepting that there has been no objection - - -

HEYDON J: I mean in general, let us leave your case on one side, you cannot very well have a rule about relevance because they said that the law has no mandamus physiological faculty.

MR TOKLEY: Exactly, your Honour; you cannot, quite right.

HEYDON J: Is it some special rule about probative value being outweighed by prejudicial effect? That too sounds entirely factual to be decided from case to case.

MR TOKLEY: Yes, your Honour.

HEYDON J: Therefore, is it some special positive rule of law?

MR TOKLEY: Your Honour, that is what one is left with at the end of the day, a positive rule of law and a positive rule of law which confines the use of this evidence for a particular purpose and in so confining it, if I can put it this way, one confines it to that which it can in fact prove, that is, its relevancy.

HEYDON J: Thank you. Now, what is a sexual relationship? On one view, when a father is kissing his daughter in a non-innocent way, that is a sexual relationship however little she likes it. At the other extreme you have some consensual sexual relationship, leaving questions of age out of it, that is fully agreed to on both sides. What is a sexual relationship within Justice Tadgell’s rule?

MR TOKLEY: Your Honour, can I answer that question in this way. I think if one goes through all of the cases beginning right back from R v Ball to the present day, the notion of the idea of explaining the relationship between the parties arose out of cases in the 1930s in particular. I have in mind cases like, I think, O’Leary and possibly Martin v Osborne.

HEYDON J: They are very different from the present field.

MR TOKLEY: They are, your Honour.

HEYDON J: O’Leary is a sort of drunken riot over some hours - - -

MR TOKLEY: Exactly, your Honour.

HEYDON J: Martin v Osborne is evading duties in the transportation of goods.

MR TOKLEY: That is right. I think that if one traces the development of the use of the idea of a relationship, it comes from that point in time because in R v Ball the House of Lords do not use the words “sexual relationship”, they use the words “guilty passion” or “sexual passion” and somewhere along the line - somewhere along the way, the notion of a sexual relationship comes in, and I think the idea of a relationship, as opposed to a sexual relationship, is picked up in some of the earlier decisions like O’Leary in the High Court.

It is then used to say that one can – because evidence establishing the relationship between the parties is a relevant use of that evidence - and I have in mind particularly O’Leary’s Case – that it is also relevant to establish the sexual relationship between the parties, but the precise content of what constitutes a sexual relationship has never been fully defined by the courts, and it is a term, two terms, “sexual” and “relationship”, that are used in particular contexts, and in those particular contexts they may accurately describe the nature of the relationship between the parties or the incidence of a relationship between the parties.

HEYDON J: Well, you are advocating a new positive rule of law, and that is not an unreasonable thing to do in view of the rather terrible condition that the law of relationship evidence is in. What do you submit the words mean? Do they mean fully consensual or - - -

MR TOKLEY: No, your Honour. The way I understand the words “sexual relationship” are used in the cases, in particular the sexual assault or sexual abuse cases, is that the words describe events or acts occurring between a complainant and an accused in cases where consent is not relevant. They can describe a number of different forms of sexual, if I may use the word “abuse”, whether it is intercourse, fellatio, cunnilingus or other forms of sexual acts occurring between two persons.

HEYDON J: In your case, the uncharged acts infer some sort of relatively minor sexual crimes. They point, in a sense, to a relationship. If that is the case, then this case fits within – or at least it does not fall foul of your positive rule of law.

MR TOKLEY: No, that is correct, your Honour. I have to accept that.

KIEFEL J: In Vonarx the use of the words “sexual relationship” appears to be perhaps one inference is it is to neutralise what might otherwise be an understanding relating to a consensual relationship or a state of mind. So the choice of term might be to focus attention upon the physical relationship between the parties but nothing else, to give the contextual setting to - - -

MR TOKLEY: Yes, your Honour.

KIEFEL J: But it is still to explain why the complainant does something later on. The court still refers to relationship of sexual attraction in the following paragraph, I notice, so they have still got that in mind, but one gets the impression that it is an attempt to neutralise the “guilty passion” reference or the “sexual attraction” reference.

MR TOKLEY: Yes, I think your Honour is quite right. If I may make this point that one gets the impression from reading the case at the time it was decided in 1995 that the notion of a sexual relationship was perhaps not as loaded a term as it is today so that it was an acceptable use of the words, “sexual relationship”, in this particular context. Today when it is being used and if it is used to cover the bases that your Honour Justice Heydon mentioned, then it becomes more of a term of art.

GLEESON CJ: But the idea is, is it not, and it is perhaps not an unreasonable idea, that the credibility of an account of physically intimate behaviour is often affected by the relationship between the parties to the alleged behaviour?

MR TOKLEY: Yes, your Honour. Can I take some time over your Honour’s point because it goes to the heart, in my respectful submission, of a lot of the matters we have been discussing. The evidence can prove the incidence of the relationship between the parties. Once that evidence is in the jury may consider that evidence – I am not saying this is what the Court would say – not just in relation to that particular purpose for which it has been admitted, that is incidence of the relationship, but perhaps for other purposes. It enables the jury to then look at that evidence with all the other evidence to then decide upon the guilt of the accused.

GLEESON CJ: If you said, “John Smith walked up to me and shook me by the hand”, you might not need to know much about the relationship between the witness and John Smith to form a view on whether that is probable or improbable but if, to take an example from Mr Game’s case, the evidence is, “I persuaded my father to let me go shopping by doing such and such”, then the credibility of that evidence might be very much affected by knowing what had gone on in the past between the witness and her father.

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

KIRBY J: I notice that in Pearce the Court of Appeal of Victoria entered a verdict of acquittal. In Vonarx it appears to have refused an order of acquittal and, though it is not entirely clear on a quick look, it appears to have ordered a new trial. At 371 of your appeal book you simply ask that the orders below be set aside, the appeal allowed and the appellant’s conviction be set aside, but the logic of your argument in your case at least is that you are not asking for a verdict of acquittal. You are asking for a retrial, are you not? You may not be asking for it, but that would be the proper order in your case, would it not?

MR TOKLEY: That is probably correct, yes.

KIRBY J: Because there is evidence from the complainant sustaining the actual charges.

MR TOKLEY: Yes, your Honour.

KIRBY J: Leave aside entirely the uncharged acts.

MR TOKLEY: Yes, your Honour.

KIRBY J: And, therefore, depending on how the matter falls out and what directions the judge should give, then the logic of it is that the proper order in your case is a retrial.

MR TOKLEY: Yes, your Honour, that is correct. It did not seem right for the appellant to ask to be retried.

KIRBY J: They are the orders that the Court would normally make.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: Is that is a convenient time, Mr Tokley?

MR TOKLEY: Yes, if it is convenient to the Court, your Honour, yes.

GLEESON CJ: I will have a copy of that judgment in Chamilos sent down to counsel a little later this afternoon. We will adjourn until 10.15. How are we going in terms of time? How long do you think you are going to require, Mr Tokley?

MR TOKLEY: I would have thought I would only be another 15 to 20 minutes, your Honour, that is all.

GLEESON CJ: And how long do you think you will be, Mr Hinton? I am sorry, that is Mr Vadasz really, is it not?

MR VADASZ: Yes. I could have answered that question very accurately at 10.15 this morning. I would expect somewhere between half an hour and an hour.

GLEESON CJ: All right. Will that give your side adequate time?

MR KOURAKIS: Yes, it will.

GLEESON CJ: Very well. We will adjourn until 10.15 tomorrow.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 26 SEPTEMBER 2007