HML v The Queen; SB v The Queen; OAE v The Queen [2007] HCATrans 548 (26 September 2007)

Last Updated: 26 September 2007

[2007] HCATrans 548

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 WEDNESDAY, 26 SEPTEMBER 2007, AT 10.20 AM

(Continued from 25/9/07)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Tokley.

MR TOKLEY: Thank you, your Honour. Your Honours, could I pick up on some of the matters that were mentioned yesterday and could I first deal with the question that was raised of the possibility of bringing argument regarding the admissibility of some of the evidence. Overnight we have given consideration to the matter and we have drawn a proposed new ground of appeal similar in substance to that which was handed to the Court yesterday in the matter of HML but taking on board the suggestion by your Honour Justice Kirby to amend it to include all or some of the evidence.

KIRBY J: Do not blame me for this. This is your case.

MR TOKLEY: Thank you, your Honour. Your Honours, we are not in the position to address the substance.

GLEESON CJ: Are you going to present argument to us on taking a new point in the High Court that was not taken at trial and was not taken in the Court of Criminal Appeal in circumstances where if an objection to the evidence had been made at trial it might have affected the course of the trial?

MR TOKLEY: Your Honours, I am conscious of the difficulty of overcoming those hurdles. In my respectful submission, what I was proposing to do was to deal with the matters that your Honour has raised by way of written submissions rather than trouble the Court with the matter now. I am conscious of the obstacles that there are in our path and one cannot, I say, pin too much hope on succeeding in such a new ground for the reasons your Honour has just outlined.

GLEESON CJ: Has there ever been a case, to your knowledge, where this Court has dealt for the first time with a question of the admissibility of evidence that was not objected to at trial?

MR TOKLEY: I am not aware of an authority, your Honour, in which the Court has dealt with such a situation unless the situation prevailing in the case Gipp was one where there was no objection taken to the admissibility of evidence at trial.

GLEESON CJ: Was it a case about admissibility of evidence?

MR TOKLEY: Yes, your Honour, it was, but in relation in particular to the – sorry, your Honour. In Gipp a new ground was raised.

KIRBY J: It is Gipp, it is normally called Gipp.

MR TOKLEY: Thank you, your Honour.

KIRBY J: I think he was a governor.

MR TOKLEY: In Gipp a new ground was raised - - -

KIRBY J: Not the accused, but a predecessor Gipp.

MR TOKLEY: Thank you, your Honour.

KIRBY J: Maybe that was Gipps.

MR TOKLEY: In Gipp a new ground was raised. My understanding, it was raised for the first time in the High Court and notwithstanding the fact that it was only raised for the first time - - -

GLEESON CJ: When you say new ground, do you mean objection to the admissibility of evidence? The point I am offering for your comment is this. If an objection is taken to evidence at trial and the objection is upheld, the parties will then conduct themselves at trial in the light of that particular event.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: But where no objection is taken to evidence at trial and evidence is admitted, they lose the opportunity to do that.

MR TOKLEY: Yes, your Honour. I accept that, your Honour, and that is a point against us because we – as I said yesterday, no objection was taken to this evidence at trial. Your Honour, I cannot press the matter any further save and except - - -

KIRBY J: On the other hand, you do argue this issue in your written submissions. You argue the question of admissibility as I read your written submissions.

MR TOKLEY: Yes, your Honour, and for the reasons - - -

KIRBY J: And you do have, in considering the question of the directions to be given by the judge, to consider what the evidence is relevant for.

MR TOKLEY: Yes, your Honour, for the reasons that we canvassed in argument yesterday, that one looks at the question of the directions through the prism of admissibility.

KIRBY J: It is pretty clear you may have some problems, but anyway you want to have the opportunity of putting written argument, is that what you say?

MR TOKLEY: If I may, your Honour, and also to assist the Court dealing with these questions. I understand there is no opposition to the ground that we are proposing but I also understand your Honour Chief Justice’s point that there may be no case or authority in this Court which would permit such a course of action and it would be incumbent upon the appellant to find an authority in favour of doing so. At the moment I cannot point to such an authority unless Gipp was one.

GUMMOW J: Another question. Gipp says this jurisdiction is very wide, but how and when it is exercised from time to time is another question. That is what you have to face up to, I think.

MR TOKLEY: Yes, your Honour.

HAYNE J: It was considered I think in Crampton, was it not? Crampton is where it was next considered in the court?

MR TOKLEY: Yes, your Honour, it was, yes. I am sorry, I am not familiar enough to bring to the Court’s attention passages in Crampton, but I am familiar – I do understand that it is one of the authorities which may help to support the argument that we would wish to put for the Court to hear such a new ground.

GLEESON CJ: Yes.

MR TOKLEY: Thank you, your Honour. Your Honours, the second point I wish to raise was in relation to the authority your Honour very kindly provided yesterday, which is the decision of R v Chamilos, an unreported decision of the Court of Criminal Appeal of New South Wales dated 24 October 1985. In my respectful submission, the relevant principle that can be found and perhaps is applicable in this particular case can be found at the bottom of page 15 of the judgment over to the top of page 16 of the judgment. It is the second sentence in the last paragraph on page 15, beginning:

There is a line of authority which establishes that in narrating the circumstances of the alleged offence evidence is admissible from the child of the general sexual relationship between the adult and the child out of which the charge arises. The decisions mostly relate 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.

His Honour, the Chief Justice of the Criminal Division, Chief Justice O’Brien, then proceeds to go through the various decisions which support that principle. In my respectful submission, the most important of those decisions is mentioned on page 17, and it is the well-known House of Lords case of R v Ball [1911] AC 47.

Your Honours, the argument I am putting to this Court is, in my respectful submissions, consistent with the principle that is stated at the bottom of page 15, top of page 16 and it is consistent with the way in which these matters have been handled, but since the R v Ball it is that provided the evidence is introduced for the purpose of establishing, to use the words of Ball, a “sexual passion” or “guilty passion” and later words of “sexual attraction” and provided it is used only for that limited purpose, then the evidence is admissible. Once it is admissible, it may be that with other evidence it assists the jury to reach a view about subsidiary questions or subsidiary facts relevant to the charges that have been laid, but it is ordinarily not directly probative of the charges.

GLEESON CJ: What do you say about what the Chief Judge of the criminal division said on the second half of page 14 over to the top of page 15?

MR TOKLEY: In the first sentence, your Honour?

GLEESON CJ: Beginning, “At the same time it is by no means easy”.

MR TOKLEY: Yes, your Honour, and that is the practical difficulty that his Honour Justice Hayne referred to yesterday, that in terms of the conduct of a criminal trial it is almost, one would say, inevitable that there will be occasions where a complainant is giving evidence of other criminal conduct that will come out either in the course of the evidence-in-chief, possibly during cross-examination or re-examination and that in practical terms is very difficult to contain or confine the way in which a complainant gives evidence in a matter. In fact, your Honours, in this particular case there is a very eloquent description by his Honour Chief Justice O’Brien of the attempt by the counsel in the case to do just that, confine the evidence from the complainant. I am indebted to your Honour the Chief Justice for bringing that matter to my attention.

Your Honours, if I can say this. The question of principle is of course separate from the question of practicality. I understand that the question of principle must work within the practical confines of a criminal case and in making the point that I am making, I am not seeking to make, if I may it put this way, a practical point but I understand that the principle that I am espousing or seeking to have the Court accept must be one that works within the practical confines of a criminal case.

It was for that reason yesterday that I spoke of the tension between, on the one hand, the practicality of the case and, on the other hand, the question of principle which is when an accused person is facing such charges, how does one deal with the practicalities and the question of principle, that is, that the accused is put on notice by the information of the charges he must face? It is the reconciliation of those two matters that is at the heart of what I call the tension in the case.

Yesterday your Honour Justice Kirby very kindly pointed to the fact that the respondent – the Director of Public Prosecutions – seeks to argue that the principle found in Vonarx and mentioned in Pearce and a number of other Victorian decisions has in fact either been diluted or has in fact not been applied in the way in which the Court of Criminal Appeal in Vonarx suggested that the principle should be applied.

In my respectful submission, when one reads the cases that are referred to by the DPP they do not in fact support such a broad proposition and in fact the subsequent decisions of the Victorian Court of Criminal Appeal are very careful in the way in which they use the principle which has been identified in Vonarx. They are very careful not to say that the limited purpose for which this evidence can be used in Vonarx is incorrect, and the subsequent decisions have to be read in light of the particular facts those decisions are dealing with.

If I could perhaps just illustrate one of the cases by referring your Honours to R v BJC 13 VR 407 at page 415. Beginning at page 415, paragraph 21, under the heading “The affirmative direction” his Honour Acting Justice of Appeal Byrne refers to the well-known authorities of Pearce and Vonarx and his Honour in fact quotes the relevant passages from Vonarx. Over the pages his Honour then deals in greater detail with the cases of Pearce and if we then move on to the case of PLK in paragraph 24 - but importantly, your Honours, in paragraph 24 when he is dealing with the case of PLK he quotes extensively from the judgment of his Honour Justice Buchanan, and about the fact that when such evidence is admitted for the purpose of establishing a sexual relationship, it may also have the consequence of making the complainant’s evidence more credible.

But his Honour is careful, both when he is referring to PLK and in the subsequent paragraphs of his judgment to, I think, draw the distinction between the purpose for which the evidence is admitted and the use to which it may be put once it has been admitted.

HAYNE J: But does not this chain of cases commencing in Vonarx, going through Pearce and subsequently, reveal at least this. In Vonarx the court was concerned to articulate the bridge that was seen as existing between uncharged acts and the events the subject of charges.

MR TOKLEY: Yes, your Honour.

HAYNE J: What is said in BJC by reference to PLK about making evidence more probable, credible, believable or the like, steps back from the articulation of the bridge to language which does not tell the jury much. Instead of telling the jury here is what the complainant said happened in the past, here are the offences that you are to consider – and her evidence, or his evidence, about them, the bridge that is formed between them is to be identified in terms which seem to me not very different from motive.

MR TOKLEY: Yes, your Honour.

HAYNE J: Instead of getting the jury to articulate that intermediate step, you are left with simply, “Well, it makes it more credible, more believable.” It tells them nothing and, in particular, does not tell them of the danger that lies in saying, “He did it before, therefore he did it now”. The danger lies in what that magic word “therefore” encompasses.

MR TOKLEY: I agree, your Honour. It is easy, to use your Honour’s expression, to elide from one situation to another situation.

GLEESON CJ: But on that earlier aspect of what it can be used for, on the top of page 417 in this case there is a quotation from what Justice Buchanan said with the concurrence of Justices Tadgell and Charles in an earlier case. Can I direct your attention to the first complete sentence in the quote on page 417 beginning with the words “The evidence” and concluding with the word “complainant”.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: What is being said there is, is it not, that the evidence of the sexual nature of the relationship between the applicant and the complainant was evidence of a fact relevant to a fact in issue.

MR TOKLEY: Correct, your Honour.

GLEESON CJ: The sexual nature of the relationship between the applicant and the complainant was not a fact in issue.

MR TOKLEY: That is correct, your Honour.

GLEESON CJ: But it was a fact relevant to a fact in issue, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: That is, it was of probative value as to a fact in issue.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: So can the jury in an appropriate case be told that a fact relevant to a fact in issue in this trial is the sexual nature of the relationship between the applicant and the complainant, and the prosecution is entitled to rely on that fact, if the fact exists, to increase the probability of the fact in issue, which is whether the events charged took place?

MR TOKLEY: Can I answer your Honour the Chief Justice’s question in this way. In my respectful submission, the evidence can be used as relevant to a fact which is relevant to a fact in issue, that is, a charge count. The consequence of that evidence coming in may be that it bolsters the credibility of the complainant or it enables the jury to have regard to the complainant’s evidence in a particular way.

GLEESON CJ: But any fact relevant to a fact in issue bolsters the credibility of a complainant of any kind. Suppose the fact relevant to the fact in issue was an admission made by the accused person, suppose the prosecution called evidence that the accused had said to the mother of the complainant “I’ve been doing terrible things to the complainant”, the admission is a fact relevant to a fact in issue, is it not?

MR TOKLEY: Yes, your Honour, it is.

GLEESON CJ: In a sense, if you believe that the admission was made, it bolsters the credibility of the complainant.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: But it does more than that, does it not?

MR TOKLEY: It can do, your Honour, yes, and the question for the Court is whether it should be allowed to do more than that, and that is the question your Honour raised and Justice Hayne raised yesterday.

GLEESON CJ: Nobody suggests, as I understand it, that the jury ought to be told that the admission had to be proved beyond reasonable doubt.

MR TOKLEY: No, your Honour, but, with respect, your Honour, that raises a different problem.

GLEESON CJ: It does raise a different problem, but the point I am seeking to identify or to clarify is that what we are talking about is facts relevant to the fact in issue.

MR TOKLEY: Yes, your Honour. That is the area of discourse, yes. In my respectful submission, the probative value of the, to use the expression, evidence of uncharged acts, if it is not being used for a propensity purpose, it can only be used to facts relevant to facts in issue, what are sometimes called subsidiary facts. I think it is one of the matters adverted to by her Honour Justice Gaudron in Gipp’s Case.

KIRBY J: It is true that there are difficulties in conceptualising and drawing the line of where you end the entitlement of the prosecution to prove matters relevant to the charges being the matters that define the facts in issue but, at least in my present thinking, it cannot be a completely open-ended entitlement to prove a large number of other offences which the prosecution has not charged the accused with because, in respect of such charges, the accused acquires certain entitlements during the trial.

MR TOKLEY: Yes, your Honour.

KIRBY J: Otherwise you are saying that anything that is in issue to a charge of one count of a sexual character will allow an open slather to every sexual offence and you are back in the Lord Holt territory instead of in the accusatorial trial territory which is the one that courts in this country have traditionally safeguarded. Therefore, the problem is one of finding a rule which permits the proof of the confession or admission by the accused but preventing the trial descending into a complete open slather by the prosecution without the irksome necessity to charge the offences that should properly be put before the jury. That is the area of discourse but it is also the area in which we must try to find a rule.

MR TOKLEY: It is, your Honour. It is for that reason that I have been, if I can put it this way, urging upon the Court to follow the Victorian line of decisions and particularly with the decision of Vonarx because there their Honours in saying that the evidence is introduced for a limited purpose has the effect of confining the purpose for which that evidence is introduced and provided the notion or definition of a sexual relationship is limited, if it can be, to the idea of a sexual attraction, then the evidence only proves that which it can prove.

KIRBY J: The problem I have with Vonarx is that the sexual attraction criterion is not the only one that courts have put up. They have put up the whole range of criteria that I mentioned yesterday, proving the context, proving that the thing did not come out of the blue, suggesting grooming – well, that could perhaps be sexual attraction – suggesting that it is no surprise, explaining why there was no earlier complaint and therefore sexual relationship or sexual attraction does not seem to cover the whole field.

MR TOKLEY: No, your Honour. I accept that, your Honour.

KIRBY J: I am not saying that I would agree that the other matters that are referred to are necessarily such as would permit the open slather, because it is terribly dangerous for the accused. The accused can answer charges, but to answer a whole inquisition on his or her life is a very difficult thing to do in a trial context. It has not been traditional of the English criminal trial which is accusatorial and particular and specific.

MR TOKLEY: Your Honour, I do not disagree with what your Honour is putting. All I am seeking to do, I suppose, is to identify a principle or proposition for the Court which accepts the realities of the trial situation, follows an existing line of authority in which these matters have been considered and to lead to the relevant use of the particular evidence in particular cases. I really cannot say anything more than that, your Honour.

Your Honour, the final case I was wishing to bring to the Court’s attention was the case of Nieterink (1999) 76 SASR 56 itself. Could I begin by saying that I accept what his Honour Justice Heydon said yesterday about this case, that I do not think that Chief Justice Doyle was purporting to propound a general principle applicable in all cases. I think that he was seeking to understand the way in which the law was developing at this particular point in time in relation to the potential relevancy of evidence of uncharged acts.

KIRBY J: That may be so, but as the trial judge – I think it is in your case but it may have been in HML – said this is a very difficult area in which to charge a jury and it is therefore a natural and understandable thing with judges of trial who have very big responsibilities, a lot of money turning on having cases go off and have to be tried again, as well as pain to the accused and the complainant, naturally go into a case like this to get a formula as they will ultimately enter the decision of this Court in these three matters.

MR TOKLEY: Yes. In fact, I think it is most evident in the previous case of HML where the trial judge – my recollection is he listed the various bases that are identified in Nieterink as a potential basis for relevancy. Your Honours, could I simply take the Court to various paragraphs, the first is the last sentence in paragraph 41 which is actually on page 65 of the report. That sentence begins:

The evidence is, as the judgments state, evidence which places the charged acts in their context –

and so on and so forth. The point in that paragraph is picked up again by his Honour at paragraph 76 of his Honour’s judgment which is on page 72 where his Honour then says:

Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases.

His Honour then says at paragraph 77:

This is the basis upon which its admissibility was supported at trial, although in rather more general terms.

GLEESON CJ: What does her Honour mean by the expression quoted in that passage about two-thirds of the way down page 69 where she said:

there was no feature of the kind present in R v Ball that made it directly relevant to the question –

What is the difference between direct and indirect relevance?

MR TOKLEY: Your Honour, I understood what her Honour Justice Gaudron was saying in Gipp’s Case was that in Ball’s Case it was said by the Lord Chancellor, Lord Loreburn, that the evidence was directly relevant to prove the elements - - -

GLEESON CJ: I understand the difference between relevance and irrelevance. I am trying to understand the difference between direct and indirect relevance.

KIRBY J: Is it the difference between a fact in issue and a fact relevant to a fact in issue?

MR TOKLEY: Yes it is, your Honour. In the case of R v Ball it was, yes.

GLEESON CJ: Just a minute. Relevance means that something is logically probative of a fact in issue, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: So to say that a fact is relevant to a fact in issue is to say that if the fact is established that has the tendency to prove that the fact in issue exists, right?

MR TOKLEY: Yes, your Honour.

GLEESON CJ: Well, if you say of a fact relevant to a fact in issue that it is directly relevant or that it is indirectly relevant, what is the distinction you are making?

MR TOKLEY: In this particular context, your Honour, and in the case of R v Ball it is being used – I understood her Honour to use the words “directly relevant” - - -

GLEESON CJ: What is the difference between something that is directly probative and something that is indirectly probative?

MR TOKLEY: If I could put it this way, your Honour. It is the distinction which his Honour Justice Kirby alluded to in the context of that case, which is that in Ball’s Case the evidence of sexual attraction was considered to be directly relevant to – I use the words for the moment - - -

GLEESON CJ: The evidence of a fact in issue is “I saw him do it”. Evidence relevant to a fact in issue is “He admitted to me that he did it”. Is that right?

MR TOKLEY: Yes, your Honour.

KIRBY J: But evidence that he did things years before or years after is not necessarily directly relevant to the fact in issue, and the danger is it may tend simply to show that this is a nasty person, and then the reasoning becomes “This is a nasty person, therefore he must have done the fact in issue” which is the very danger that the common law of England has stood for a long while against, and in Australia.

GUMMOW J: What is said by her Honour in Gipp at paragraph 11, which is set out in Nieterink, has to be read with what she said in paragraph 10 on page 112 of 194 CLR.

MR TOKLEY: Yes that is correct, your Honour. Perhaps I could ask the Court to go to Gipp’s Case (1998) 194 CLR 106 at 112.

GUMMOW J: Well, perhaps starting at paragraph 9 actually on 111. Reading all of this, we have to bear in mind that Pfennig was not a relationship case.

MR TOKLEY: No, that is correct, your Honour.

GLEESON CJ: And that many so-called similar act or similar fact cases have nothing to do with sex.

MR TOKLEY: That is correct, your Honour. One of the points I was perhaps not making very well, but when in answer to one of his Honour Justice Heydon’s questions yesterday, it seems that the idea of relationship evidence arose out of the earlier case of O’Leary. It is not a term that appears in the House of Lords decision, R v Ball, but it seems somehow that the notion of the relationship evidence has been absorbed into the area, or into the context of the sexual cases.

Your Honour, it may not be in answer to your Honour the Chief Justice’s question, but the way I understood her Honour Justice Gaudron was referring to R v Ball was that in that particular case the fact that the two accused, a brother and sister, had earlier had a child indicated something of the nature of the relevant mental state of the male accused. That was something that could only be, for the purposes of the prosecution, inferred from the previous conduct. Because one of the elements of the offence was the relevant mental state of the accused, it was in that way that it was said that his earlier conduct directly proved that mental element, and it is in that way that I understand her Honour to be using the expression “directly relevant” – that is, it assists in proving one of the elements of the charged offence as opposed to a subsidiary fact or a fact relevant to a fact in issue.

GLEESON CJ: But in the second sentence in paragraph 12, leave aside the rest of paragraph 12, and the third sentence it is said:

evidence of prior sexual abuse may explain lack of surprise or failure to complain. If they are issues in the trial, evidence of general sexual abuse is relevant and admissible.

Now, they will never be facts in issue. They will only ever be facts relevant to facts in issue. Surprise or lack of surprise is never an element of a criminal offence.

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

GLEESON CJ: There is no offence of surprisingly sexually assaulting someone.

MR TOKLEY: No, your Honour.

GLEESON CJ: So when Justice Gaudron says that “lack of surprise” or “failure to complain” may be issues in the trial, she must mean may be matters relevant to issues in the trial. They will never be elements of the offence. The question will be whether surprise or lack of surprise or complaint or failure to complain is probative of the commission of the offence charged.

MR TOKLEY: And it cannot be directly, your Honour, no. It can only be, in one sense, a subsidiary issue or at least a subsidiary fact relevant to the ultimate facts in issue in the case.

GLEESON CJ: Yes, but leaving aside any questions of chronology or how and when things develop in the trial, what is said in paragraph 12 by Justice Gaudron is a clear and explicit recognition of the fact that what she calls “evidence of general sexual abuse” may be relevant and admissible because it may explain “lack of surprise” or “failure to complain”. Do you suggest that that is wrong?

MR TOKLEY: No, your Honour, I am not, but, your Honour, with the qualification that her Honour says “only if they are made issues by the way in which the defence case is conducted.”

GLEESON CJ: That is what I meant by chronology.

MR TOKLEY: Yes. So if one does not accept her Honour’s qualification, then there must exist a principle which would support the admissibility of that evidence being - - -

KIRBY J: As I understood your earlier submission, though the answer you give is generally that that is not what her Honour says is not to be challenged, there may become cases where you open up a whole range of actual offences with which the accused is not charged, where it simply is unfair to the accused to have him suddenly put on trial for other offences of which you is not charged and which he does not have the protections which the law gives to him in respect of matters on which he is charged. That was what I understood you to be saying earlier is the line you have got to draw somewhere.

MR TOKLEY: Yes, your Honour. In my respectful submission, there is a line that has to be drawn because of the dangers of this sort of evidence which your Honour has pointed out.

GLEESON CJ: And where do you draw the line? Where do you draw the line in your submissions?

MR TOKLEY: Your Honours, in my submissions I sought to draw the line consistently with the way in which the Victorian Court of Criminal Appeal have sought to draw the line, that is, provided the evidence is used only for a limited purpose, that is, to prove a sexual relationship or sexual attraction or sexual passion on the part of the accused, it is used then in a way in which it is relevant. That evidence establishes such an attraction or passion. If confined in that way, then to a certain extent it ameliorates the dangers that an accused person faces and if confined in that way together with the other warnings that are normally given, it would hopefully be properly used by a jury in a particular case.

KIRBY J: Even that I have difficulty with, because there will be ways in which you can prove the so-called sexual passion by saying, “Well, on 15 March 1995, he raped me and on 17 April 1996 he raped me”, and then you have got a whole series of actual criminal offences.

MR TOKLEY: You do, your Honour; yes.

KIRBY J: Then the prosecution says. “We are only putting this up to show that there is this sexual passion”. But the accused stands there suddenly having to answer accusations of actual criminal offences in respect of which he does not have the protections of the specific charge and the opportunity to challenge evidence that goes outside the charges.

MR TOKLEY: I understand your Honour’s point. It may not be a complete answer to your Honour’s point, but there will come a point in time when the evidence of other criminal offences, or other criminal conduct, amounts to, in effect, the introduction of propensity evidence that has been used in a propensity way. The trial judge could then say that such evidence, unless it is being led for propensity purposes, is not to be admissible.

KIRBY J: It is not only introducing propensity evidence with all the dangers that has, it is introducing, in effect, as in Hamlet, the play within the play, you have the trial within the trial and without the protections of a trial.

MR TOKLEY: Yes, your Honour.

KIRBY J: By the way, it also leads to sloppy prosecution practice, which is not to be encouraged, in my view.

MR TOKLEY: Indeed, your Honour. Your Honours, that effectively concludes my submissions. There are some minor matters just in relation to the respondent’s submissions. May I simply refer to the matters without taking your Honours to any further cases. I am conscious of the time that I have already taken up.

GLEESON CJ: Yes.

MR TOKLEY: Your Honours, at paragraphs - I will just mention them. At paragraphs 84 through to 93 of the respondent’s submissions they deal with the question as to whether the case of Vonarx has been, if I can put it this way, diluted by subsequent decisions in my respectful submission.
When one reads the cases that are referred to it can be seen that they are in fact consistent.

KIRBY J: You have said that to us before.

GUMMOW J: Why does it matter? We are not bound by any of this. We take it for its cogency.

MR TOKLEY: Yes, your Honour. I have simply one final point. At page 108 it is said that the appellant conceded that the use of the evidence in this particular case to show a pattern or grooming was a permissible form of reasoning. Your Honours, it was not so much a concession as an acknowledgement that there is in one of the cases referred to – R v IK [2004] SASC 280; (2004) 89 SASR 406 that it is simply mentioned by his Honour Chief Justice Doyle as one possible use of such evidence. Thank you, your Honour.

GLEESON CJ: Thank you, Mr Tokley. Yes, Mr Vadasz.

MR VADASZ: May it please the Court, the miscarriage of justice that occurred in this matter is, firstly, the admission of the evidence of the acts of criminal conduct of a sexual kind that were not charged and, secondly, if those acts were properly admitted the question of – or the failure of the trial judge to direct the jury that they should only accept those acts if they were satisfied beyond reasonable doubt.

KIRBY J: You objected to the admission of the evidence at the trial?

MR VADASZ: I did.

KIRBY J: Indeed, I think you had – your fingerprints are on the earlier objection, are they not, in the other case?

MR VADASZ: On HML yes, your Honour, that is correct.

KIRBY J: That had not slipped my notice.

GLEESON CJ: Where can we conveniently see the evidence that was objected to?

MR VADASZ: The first point is page 5 of the application book. There was reference yesterday to an application pursuant to rule 9, and that can be seen at page 5. There is a requirement under the District Court and Supreme Court Rules to file a pre-trial notice. At page 6 of the appeal book an objection is taken firstly to allegations of violence by the accused upon the complainant, that is application No 1 and, secondly, (ii) the uncharged acts. That is at page 6.

GLEESON CJ: Just so that we can understand the procedure in South Australia, am I right in thinking that this is a pre-trial application for the court to exclude some evidence which it is known from the statements tendered at the committal proceedings will be given at the trial.

MR VADASZ: That is correct.

GLEESON CJ: Is that the way it works in practice?

MR VADASZ: That is correct.

GLEESON CJ: So because of the committal – it is a paper committal system, I presume?

MR VADASZ: It is.

GLEESON CJ: Because of the paper committal system, both parties have a written statement which is in effect the evidence-in-chief of the complainant, and then before the trial commences and before a jury is arranged they turn up before a judge and say “I’m going to object to what’s in paragraph 4 and I’m going to object to what’s in paragraph 9”.

MR VADASZ: That is correct. To add to that, the trial judge has an identical brief, hopefully, and the trial judge has the statements and in this case the pre-trial application was argued on the basis of the statements of the complainants.

GLEESON CJ: One of the objectives served by this is that the jury does not have to keep bobbing in and out of court while the complainant is giving her evidence - - -

MR VADASZ: Precisely.

GLEESON CJ: - - - every time somebody objects to a particular question.

MR VADASZ: The rule requires that notice is given with adequate time so that on the day of the trial these matters can be argued and then a jury empanelled thereafter, depending - - -

KIRBY J: What was the case in this Court where we considered this procedure? There was a case about five years ago or four years ago. Anyway, if you think of it I would like to know.

MR VADASZ: Yes, very well.

KIRBY J: It is a reported decision.

MR VADASZ: The line of authorities in South Australia started with R v Williams 1 SR in about - - -

KIRBY J: Much as I would like to read the South Australian authority - - -

MR VADASZ: Sorry, but I cannot - - -

KIRBY J: I would rather read our own.

MR VADASZ: TKWJ.

GUMMOW J: We referred to it yesterday in argument.

MR VADASZ: Yes.

KIRBY J: I thought there was another case. Was TKWJ the case about professional incompetence, or not? Anyway, I will look it up. Do not worry. Press on.

GLEESON CJ: It is a little difficult for us, Mr Vadasz, to understand the document on page 6 unless we have the statement to which it makes reference.

MR VADASZ: That is correct, and I was going to raise that.

GLEESON CJ: Do we have that statement?

MR VADASZ: No, your Honours do not have the statement. I would seek leave to provide to the Court the three, I think there were three, statements of the complainant upon which this argument proceeded. I think that is essential, if I may say, because one part of the argument as can be seen in the grounds at line 20 was that:

The material is vague and lacks particularity in time, place and factual detail.

GLEESON CJ: But what you are ultimately complaining about is the evidence that was admitted at the trial, are you not?

MR VADASZ: Yes.

GLEESON CJ: I mean, it does not matter to us what pre-trial argument went on if it was not ultimately reflected in evidence at the trial, so your – I mean, you are not appealing to us against the ruling of the trial judge on the pre-trial proceedings, you are presumably wanting to appeal against the fact that inadmissible evidence was admitted at the trial.

MR VADASZ: That is correct.

GLEESON CJ: So what we have to be concerned with is the evidence that was admitted at trial that you say was inadmissible, do we not?

MR VADASZ: That is correct, and that - - -

GLEESON CJ: Well, that can be done presumably by reference to the material we have.

MR VADASZ: I can do that, but in order to fully understand the basis upon which the trial judge admitted the evidence it would be helpful if the Court had before it the statements of the complainant.

KIRBY J: But there is a technical difficulty? What was it in evidence? Were the statements actually in evidence? They would not have been because the jury would not get them, would it?

MR VADASZ: Not in evidence before the jury, but - - -

KIRBY J: Well, if it is not part of the record we cannot receive it - - -

MR VADASZ: Well, very well - - -

KIRBY J: - - - unless it is incorporated by reference in some way and particular parts of it.

MR VADASZ: Well, I note I think it was in HML that leave was sought and granted to provide the statements in order to assist this Court, and my submission is that in order to understand any argument about a lack of particularity it would assist, but I can - - -

GLEESON CJ: We are not interested in what is in the statements, are we? Your complaint has to be about the evidence that was admitted at the trial.

MR VADASZ: Well, the evidence admitted at trial did not become any more specific than the statements. I am quite happy to proceed.

GLEESON CJ: Well, you may be right about that.

MR VADASZ: I raise it because your Honour raised it. There were two legs to the argument against admission and they are set out in the grounds, and I will come to - - -

GLEESON CJ: I think I will begin by asking you, could you identify the evidence that you say was wrongly admitted? Where do we see it in the appeal book, or the application book?

MR VADASZ: Pages in-chief starting at page 81, the last line:

Q. Are you able to tell us - - -

KIRBY J: You might be careful in using names here seeing as we have anonymised things.

MR VADASZ: Certainly. Sorry, I apologise, I have misled the Court. It starts at page 91, at the top of the page 91, and this is in-chief. The complainant was asked if there were other occasions subsequent to count 1. At point 10:

A. There were quite a few occasions. It happened quite often and, yes, it all just kind of blurred into one.

That is close to the high-water mark of her evidence. At line 30 his Honour asked a question:

Q. How often did it happen after it started up again?

A. Every couple of days.

Of course, we are talking about a four-year period between the two charged acts.

Further references occur at page 94 at line 10:

Q. You said that it was fairly often that he would touch your body . . .

A. It basically continued, continued right up until I left when I was between 13 and 15.

Then over at page 95, the question:

Q. And you said there were times in the stable area when he touched you and also times at his place, is that correct?

Her answer further down the page at line 10 was that at his place he would grab her and drag her inside and touch her.

KIRBY J: Now, I do not see in those passages you jumping up and down and objecting, but that is because you had already made your objection earlier and it had been overruled.

MR VADASZ: That is correct.

KIRBY J: Is that how it works?

MR VADASZ: That is exactly how it works. This evidence was admitted over objection.

GLEESON CJ: One of the advantages of this pre-trial procedure is that it spares counsel for the accused the tactical embarrassment of being seen by the jury to be leaping up and down and appearing to be trying to choke off evidence of the complainant.

MR VADASZ: I do not know if that is the aim of it, but yes, it is one of the practical aspects.

KIRBY J: And you do not have, under the rules, to repeat your reservation of the objections?

MR VADASZ: No, there is no practice of that nature. His Honour – and I will go back to it in a moment – at page 46 “direct order that the evidence be admitted” and for the purposes that he sets out at page 46.

KIRBY J: Is it always the judge of trial who does the preliminary rulings, or do you ever get a situation where a trial judge takes a different view from the ruling made before trial?

MR VADASZ: The pre-trial application is made invariably before the trial judge and the practice is that if there is a subsequent trial for any reason, the next trial judge is not bound by the earlier judge’s pre-trial rulings. So these applications are made on the day of the trial unless there are multiple accused. There may be an application for separate trials by one or more of them which will affect timelines and that might be made at an earlier stage.

KIRBY J: Was not something said in this Court, maybe in TKWJ, that there is a problem with this, the preliminary rulings, that the relevancy of evidence may not fully appear until you actually get into the body of the evidence at trial. I thought there was something that was said by the Court showing hesitation about this.

MR VADASZ: That is correct, but if the nature of the evidence changes then obviously the rules do not preclude - - -

KIRBY J: Anyway, we do not have to explore that here.

GLEESON CJ: These are interlocutory rulings. The judge could change the ruling because he changed his mind.

MR VADASZ: Exactly, and it might happen. One obvious example is an application for separate trials might be refused but might be granted because evidence comes out further down the track. The evidence-in-chief continues over to page 97 and it ends at page 97 and then at page 98 her evidence-in-chief is led into counts 2 and 3. There was cross-examination on the uncharged acts, not a huge amount, and that occurs at pages 113 over to 114. I thought it occurred elsewhere but I might have – I apologise. Pages 124 to 125 was the cross-examination, starting at point 15 on page 124:

You gave evidence to the effect that the sexual assaults started on a regular basis almost a week afterwards –

and this is in reference to count 1 and she agreed that it happened on an almost daily basis thereafter. Page 125 at the top of the page:

from the age of 12 or just after you turned 12, happened on a virtually daily basis . . .

A. Until you were 16 -

So the nature of the uncharged acts and the argument in part was that they were vague and lacked particularity. The nature of the uncharged acts was that there were virtually daily sexual attacks by the accused upon the complainant.

GLEESON CJ: About 1,500 of them.

MR VADASZ: Yes.

KIRBY J: That raises the question Justice Hayne asked yesterday. You have to propound a theory of the case that does not involve the consequence that in cases of this kind the prosecution has to present an indictment or information presentment which has 1,500 counts.

MR VADASZ: The prosecution has section 74 of the Criminal Law Consolidation Act.

KIRBY J: Section 74 of what Act?

MR VADASZ: Criminal Law Consolidation Act 1935.

KIRBY J: Is that so?

MR VADASZ: Which is headed “Persistent sexual abuse” and allows the prosecution to charge a course of conduct information where they can identify three distinct sexual acts over a period of time.

KIRBY J: So it is like the legislation considered in Gipp?

MR VADASZ: Yes, the relationship type of legislation. In fact, that was argued in the pre-trial application here by myself at page 45 at line 20. If I go back to the top of that page, the argument was put forward that the application or the wish of the prosecution to introduce uncharged acts is merely a forensic tool to enable them to have before the jury a notion of a sexual attraction without the need to prove any particular acts. At page 45, line 20 there is discussion as to the fact that they could have used section 74 in this matter.

I do not believe it came out this way in the evidence as quite as well but there was, in between the two lots of alleged offending, an act which was identifiable by its nature and as occurring just before she turned 16. So it is identifiable in time and it allegedly occurred at his home. So it was adequately particularised in her statement and the prosecution would have been able to lead the evidence of the course of conduct had they elected to proceed under section 74.

HEYDON J: Was your objection relevance or probative value exceeded by prejudicial effect?

MR VADASZ: It was the latter.

HEYDON J: What was the prejudice? Surely, whether it be 40 incidents or 1,400 or 1,500 incidents, does not each incident increase the probative weight of the relevant evidence? I take it it was relevant because it tended to establish an almost uncontrollable sexual attraction which your client experienced towards the complainant.

MR VADASZ: Can I correct myself. My argument was that the prejudicial nature of the evidence outweighed its probative value.

HEYDON J: What was prejudicial about which was distinct from its probative value? Was not the prejudice in the probativeness?

MR VADASZ: The prejudice was in the inability of the accused to counter a series of unparticularised allegations covering a four-year period.

GLEESON CJ: It was pretty well particularised. She said it happened every day.

KIRBY J: There was one matter which you particularised which was that it occurred in the presence of the accused’s sister and that was a matter where your client was able to seek to rebut it and, indeed, he did call the sister and at 261 she denied the accusations.

MR VADASZ: Counts 2 and 3 were alleged to have occurred in circumstances where the sister walked into the feed room at the stables where the rape was said to have occurred.

GUMMOW J: What is your client’s current custodial situation. I notice in the remarks on sentence at page 382 there was a non-parole period of 18 months starting in March this year, is that right?

MR VADASZ: That is correct.

GUMMOW J: There was waiting in the wings a trial for other offences. Has that happened?

MR VADASZ: No, he was acquitted on Monday, in fact, on the other trial.

GUMMOW J: So you want to achieve the situation where he has a new trial, do you?

MR VADASZ: That is the application and his custodial situation is that he is serving a sentence in relation to this matter only. He is in custody in relation to the matter at Bar only. The prosecution sought to lead the evidence for three purposes, one of which was to show a sexual attraction between the complainant and the accused or by the accused to the complainant. The learned trial judge admitted the evidence for the purpose of showing the nature of the relationship and to show that count 2 did not happen out of the blue. That can be seen at page 46 of the appeal book, lines 10 to 20.

GLEESON CJ: What were their respective ages?

MR VADASZ: There was possibly 40 years difference between the two. She was about 16 at the time of counts 2 and 3. The accused, I think, turned 60 recently.

GLEESON CJ: Their familial relationship?

MR VADASZ: She was his sister’s foster daughter. They lived outside of a small country town called Millicent on two 10-acre blocks in separate houses.

GLEESON CJ: He was her uncle?

MR VADASZ: He was her uncle, yes.

KIRBY J: But not natural uncle?

MR VADASZ: No, not natural uncle, no. The learned trial judge reserved his position on whether or not the prosecution could lead the evidence to show sexual attraction. During the course of the trial – I cannot quite find the passage – he directed that the prosecution could not lead it for sexual attraction, for the purposes of showing sexual attraction.

HEYDON J: What is the difference between evidence to prove sexual attraction and evidence to prove the nature of a relationship between a man and a woman which involves sexual overtures constantly from the man to the woman? I do not understand that.

MR VADASZ: That is what I was going to say next. There is none. It is a matter of terminology.

HEYDON J: Your submission is the trial judge was fundamentally confused in some way? I am not saying that is an outlandish submission, but is that your submission?

MR VADASZ: The trial judge was following to a large extent the ruling in Nieterink but, in my submission, there is a considerable amount of obscurity in the distinction between the two matters.

HEYDON J: That is to say, they are really the same thing and for the judge to think they were fundamentally different things gives the strong smell of a miscarriage of justice.

MR VADASZ: Yes, your Honour, that is my submission. The Court of Criminal Appeal would have allowed the evidence for a larger range of - - -

HEYDON J: In that case.

MR VADASZ: In this case.

HEYDON J: In Nieterink’s Case - the Court of Appeal in this case in South Australia, yes.

MR VADASZ: In this case.

HEYDON J: Yes.

MR VADASZ: If I might take your Honours at this stage to the directions as to the uncharged acts and the reasons with which he told the jury they could be allowed or used. They are to be found at page 334 onwards and at page 336, line 40 he says that it cannot be used for propensity and at page 337 he said it “does not mean that the evidence of the uncharged acts is irrelevant”. It shows “the nature of the relationship” and, secondly, that counts 2 and 3 did not come out of the blue. In terms of coming out of the blue he said to the jury that the second incident “might appear quite artificial or unrealistic” if you did not hear the interim evidence.

One of the problems in terms of relevance is that it appears might be artificial, unrealistic if you are not aware of the declarations but juries are often asked to find that there were acts committed over a large period of time. The fact that four years passed between these illegal acts is not unrealistic at all. A jury would not have had any problems - - -

HEYDON J: Are you attacking the proposition that the evidence was relevant now?

MR VADASZ: Yes, I am.

HEYDON J: Which you did not do at the trial.

MR VADASZ: I did. I attacked its relevance.

HEYDON J: I thought you said before you attacked it on the basis that its probative value was exceeded by its prejudicial effect.

MR VADASZ: That was the main point of attack, but - - -

HEYDON J: You have to hand – if you do not it does not matter – the precise passage where you said that the evidence was irrelevant?

MR VADASZ: I referred, in answer to your Honour’s question earlier on the basis of my rule 9 notice, but I am fairly – I can find it during the course of this morning and I will come back to it.

HEYDON J: Yes, that is fine. If you proceed.

GLEESON CJ: I think, Mr Vadasz, that the relevant jury directions begin on page 334 where the judge says that he is moving on to another topic.

MR VADASZ: Yes.

GLEESON CJ: What appears from page 334, line 38 through to page 337, line 43, that constitute what he said to the jury about these uncharged acts.

MR VADASZ: Yes, that is nature of relationship, artificial, unrealistic, out of the blue and proper context, I think, are the basic headings that he put to the jury.

HEYDON J: To get somewhere, have you not got to say that it should not have been admitted to show the nature of the relationship and it should not have been admitted for the out of the blue reasons (a) because it was irrelevant or (b) because the prejudicial effect exceeded the probative value, because a competing point of view is that it was highly irrelevant to show sexual attraction and the judge did the appellant a favour by not remarking on that point to the jury?

MR VADASZ: Well, again, it is very hard to - - -

HEYDON J: I just want to the structure of the argument. What exactly was wrong with what was said in the top half of page 337 and why was it wrong?

MR VADASZ: The ongoing nature of the sexual attacks did not assist the jury in reaching the conclusion that the second lot of events occurred unless they were going to take the view that he had a propensity to commit this kind of behaviour upon the complainant or, to put it alternatively, there was a sexual attraction and that he found this kind of behaviour irresistible.

HEYDON J: If you would like to say that if that argument is correct it would apply to all cases of this kind? In other words, it would be a rule of law?

MR VADASZ: Yes, and I understand that that is one of the issues concerning this Court.

HEYDON J: I do not think any counsel so far has put that. If you wish to put it, by all means do so. It has a certain refreshing precision to it, but do you put that argument?

MR VADASZ: Yes, I understand that one issue before this Court – well, there are two issues that I would argue. One is the circumstances in which evidence of this kind is to be admitted and I would argue that it should not have been admitted here but if there is to be a policy of allowing in sexual matters the history of the relationship, then that is a matter upon which this Court needs to reach a decision. It is a little bit uncertain from the decisions of the South Australian Court of Criminal Appeal.

HEYDON J: So this is not a rule of relevance, it is a rule like the similar fact evidence rule that excludes admittedly relevant evidence, is that so? Is that your argument?

MR VADASZ: That is my argument. In my submission, the evidence here was not relevant with respect to count 2.

KIRBY J: That is how you would have to frame it, you would have to say it may in a theoretical view be relevant in the general but it is not relevant to the particular charge and because of the dangers, one reads that with a degree of strictness.

MR VADASZ: That is correct, your Honour.

HEYDON J: This is a rule of relevance, is it? Yesterday I observed a well-known statement by Thayer that the law issues no mandamus to the logical faculty. Questions of relevance are not governed by rules of law. So you have to propound a rule of law which would interrupt the operation of the normal processes of reasoning you associate with relevance.

MR VADASZ: That rule, I submit, has been propounded in Gipp where it was stated that evidence of a sexual attraction or relationship only was not to be admitted unless it had some further probative aspect.

GLEESON CJ: But a proposition that something is or is not relevant is not a proposition of law. It is a proposition of logic. It is either right as a matter of logic or it is wrong as a matter of logic. The law says that irrelevant evidence is admissible subject to certain principles of exclusion and there are principles of exclusion such as, that if the prejudicial effect outweighs the probative value, it will be excluded. There is a principle that says if it is evidence of mere propensity, it will be excluded. But I have a lot of difficulty with the proposition that you can say as a matter of law that something is or is not relevant.

You can say as a matter of law that if something is not relevant it is inadmissible. That is a proposition of law. You can say as a proposition of law that if something is relevant, it is prima facie admissible subject to certain principles of exclusion. That is a proposition of law and, indeed, it is a proposition of law now enshrined in the Evidence Act in various jurisdictions. But I have never heard of a proposition of law to the effect that something is or is not relevant.

CRENNAN J: What you are asking for, is it not, is a rule in relation to an exception to the rule of exclusion in relation to propensity evidence because the subject matter here is an exception to the exclusion of propensity evidence? That explains the meaning of “mere propensity” which has been spoken of yesterday.

MR VADASZ: The distinction is a fine one. If I could just go back to the question of relevance. This evidence could only have assisted the jury in deciding whether the rape occurred if they were prepared to take the view that he had done something to her on 1,500 occasions between 1999 and 2003 in which case it is more likely that he would have committed the act of rape in 2003. That is a very tenuous proposition.

GLEESON CJ: It is a proposition of fact, is it not? Whether or not fact A makes it more likely that fact B exists is a question of fact.

MR VADASZ: It is a question of fact but one then falls back to the question of whether or not the prejudicial value outweighs its probative value.

GLEESON CJ: Yes, I understand that.

MR VADASZ: My submission is it could only be probative on the relationship or propensity view. Other cases might be different, but in the case of BAR the jury were equally well-equipped to reach a decision about the first act and the second act without the vague intervening “he did it on a daily basis”.

KIEFEL J: Are you saying that the evidence of the 1,500 acts does not show propensity? Are you saying there is not a connection?

MR VADASZ: It does show propensity.

KIEFEL J: I misunderstood what you were saying.

MR VADASZ: It does show propensity and that is all it can possibly show.

GLEESON CJ: When you say that is all, there are a series of decisions of this Court that say propensity evidence is not excluded because it is irrelevant. It is very relevant.

MR VADASZ: It is excluded because of its prejudicial nature.

GLEESON CJ: Yes.

MR VADASZ: The trial judge admitted the evidence because he said it was relevant and it showed the nature of the relationship. If I am wrong on the question of the admission of the evidence, then the next question is the issue as to the directions to be given to the jury in the matter at Bar.

GLEESON CJ: How long do you think it is going to take you to complete your submissions?

MR VADASZ: Possibly half an hour. I will do my best to move on. Before I do, the Court of Criminal Appeal took a broader view of the reasons for which it should be admitted but, fundamentally, at page 414 the Chief Justice settled on a number of matters, one of which was that the jury would have thought that count 2 occurred out of the blue. My submission briefly is that it did not occur out of the blue. The jury already had before them count 1 and they did not require the intervening acts to decide on count 2. At page 414 the Court of Criminal Appeal also stated that they would admit the evidence to show that her conduct involved a kind of submission to the appellant. At line 38, “She did not kick and scream, nor did she immediately complain.” There was a fundamental misapprehension of fact there. The evidence was that she did kick, she did yell out. The learned trial judge directed the jury on that basis. I will refer to the passage in the evidence.

KIRBY J: These parts of your submission seem to lack your customary fire. I am not hearing them very clearly.

MR VADASZ: I am sorry. It is a matter of my height and the length of the microphone that is causing problems. I apologise for that. The evidence was clearly that she kicked and resisted and the evidence was that she did not complain, not because of a history of submission but a belief that she would not be believed. One problem with the omission of this evidence is that it then becomes – there is a whole variety of reasons for which terms can be given to admit the evidence. At the end of the day, whatever the - - -

KIRBY J: Apart from the sister, the one matter where your client could, as it were, rebut with another person’s oath, was there any suggestion that the complainant had said to her brother or that the brother had seen anything that would allow an objective scrutiny of what the complainant was saying or not?

MR VADASZ: The sister was the accused’s sister.

KIRBY J: I realise that, but there was a complainant’s brother, was there?

MR VADASZ: No, the complainant had a sister.

KIRBY J: No, I am confusing it with another case.

MR VADASZ: The complainant had a sister. The complainant’s evidence was that she did not ever tell her sister about the offending. She did not tell her. But there is another matter as to this particularity that I should stress. The accused was a trainer of racehorses. He had three or four successful country horses running at the time. He also agisted horses and he ran a small commercial stable. The offending was primarily alleged to have occurred in and around that commercial stable where there were a large number of visitors on a daily basis. If there had been particulars provided, then the accused may have been in a position to refute her evidence by reference to other stable hands or vets or horse owners or whatever independent evidence might have come to his hand, but because of the vagueness, that was not possible.

KIRBY J: But once the judge allowed the uncharged acts to be adducted in evidence, would you not have been able to get particulars of the uncharged but allegedly relevant acts, or were they not in the complainant’s statement so that you - - -

MR VADASZ: They were not in the complainant’s statements and they were not in her evidence. The evidence that I have referred the Court to is the evidence she gave on the uncharged acts. Apart from one incident where he got her to touch his penis just before her 16th birthday, that is the only time she particularised any one of these uncharged acts.

KIRBY J: And none of them were in the three statements that you have referred to?

MR VADASZ: They were simply on the basis of frequent touching at different places.

KIRBY J: So the first time you had the elaborated statements was in the course of the running of the trial.

MR VADASZ: In terms of her evidence, yes. I had the statements prior to the trial or on the day of the trial in one case, but they were never particularised in any greater detail, apart from the penile touching, than they were in those passages in her evidence that I have referred the Court to. Those passages are mainly in the examination-in-chief; there was little cross-examination on the topic.

HAYNE J: Which perhaps brings us to the point of the application for leave and the point of the dissent below. Justice Debelle dissented on the basis that a direction should have been given about standard of proof.

MR VADASZ: That is correct.

HAYNE J: Do I understand you to seek to support that view of the law, or do you seek to propound some other view?

MR VADASZ: No, as I understand the authorities and, indeed, including Chief Justice Doyle in Nieterink and Kostaras and other judgments of the South Australian Court of Criminal Appeal, that if there is evidence of a sexual attraction then it is necessary to give a direction as to the burden of proof being beyond reasonable doubt.

HAYNE J: Now, burden of proof about what? What are the jury to be told they must be satisfied of to that standard?

MR VADASZ: Either the uncharged acts or the nature of the relationship being of a sexual passion.

HAYNE J: Well, you put it as either A or B. Is that what the judge tells the jury or do you put forward a rather more precise proposition of law?

MR VADASZ: I put it as A or B because it may depend on the facts of the case, but in this case - - -

HAYNE J: Well, take this case in which your complaint is that there was no more than generalised statements of “He’d been doing this to me for years”. In the circumstances of this case, what direction should the judge have given if, contrary to your submission, that evidence was permitted to be led to the jury?

MR VADASZ: That they needed to be satisfied beyond reasonable doubt that the accused was prepared and in fact sexually attacked the complainant on a regular if not daily basis.

HAYNE J: The very fuzziness of the proposition presents to my mind great difficulty in the contention of law you put, and it is not what I understand Justice Debelle to be putting. I have in mind paragraph 38 at page 419 of the application book.

MR VADASZ: Justice Debelle in fact took the view that there had been no direction given in this matter.

GLEESON CJ: I have different but related difficulty that you might need to address, Mr Vadasz, that they needed to be satisfied, et cetera, beyond reasonable doubt before they did what? Normally, when you are dealing with the elements of offence you say “They need to be satisfied beyond reasonable doubts of the elements of the offence before they bring in a verdict of guilty”. Now, when you say “They need to be satisfied about the uncharged acts”, they need to be satisfied beyond reasonable doubt about the uncharged acts before they do what?

MR VADASZ: Before they can use the uncharged acts.

HAYNE J: That brings you slap bang up against Shepherd and the issues that are presented by Shepherd. I want to know what the proposition is and how you say it relates to Shepherd. Step one is I have got to know what your proposition is.

MR VADASZ: My proposition is that the nature of the ongoing sexual relationship was an indispensable link in the chain of reasoning.

HAYNE J: Let me tease that out with you because this brings me to the nub of the Shepherd issue in my mind. Let it be assumed that the uncharged acts established beyond reasonable doubt that the appellant had a sexual attraction for the complainant. Let it be assumed the jury concludes this man had sexual desires for her and had given practical effect to those desires on earlier occasions. What is the next step, that is, a necessary step in concluding guilt of the offences charged?

MR VADASZ: Presumably, if they accept those propositions, then they can use them to assess whether or not the charge counts have been proven.

HAYNE J: The passage in Shepherd I have in mind is 170 CLR 581 where the discussion is cast in terms of intermediate facts that are essential before ultimate inference of guilt can be drawn. The example given is the presence of the accused at the scene of the crime because the accused was not there, by hypothesis the accused did not commit the crime and that is given as the example of an essential step in reasoning. I am not saying that you are wrong in the proposition you are advancing but I need to know the steps that you are taking. It seems to be, one, give a direction. Two, content of direction perhaps, satisfy beyond reasonable doubt appellant had a sexual attraction for a complainant. Step three, what? You can use that conclusion to reason towards guilt? But is step four, without taking step two, you cannot get to guilt? That is the area for debate.

MR VADASZ: I think that falls back to the fact that this evidence so often becomes, at least in the minds of the jury, propensity.

KIRBY J: Shepherd was, of course, a drug importation case in which there can be possibilities of propensity type evidence but they are nothing like the risk that we see in many cases in this Court in sexual cases. That takes us back to the Chief Justice’s question yesterday, is there something special about sexual cases?

MR VADASZ: I think there is, for this reason. A court can give a jury directions on all manner of topics and matters fairly confident in the notion that an erudite and learned judge will know more about that topic or matter than 90 per cent of the jury. Every now and again jurors have some specialist knowledge and they might know more than the judge. That is not the case in sexual matters. There is no reason to assume that in a sexual matter 11 out of the 12 jurors will not know more about the topic than the learned judge.

It is a universal issue upon which almost all adults must or do have a view and it becomes very artificial to try to sculpt directions to a jury about how they can use a sexual background when their own experience, and they are told to use their experience and common sense, their experience and common sense leads inevitably to one conclusion, if he has done it 1,500 times over that four-year period, there is every likelihood he did that time in the stables. That is the problem with the admission of this evidence. That is the danger in the admission of this evidence.

It is attempting to subsume the jury’s knowledge or replace the jury’s knowledge with that of a trial judge when it ought to be accepted that there is every likelihood that the majority of the jury know as much, if not more, about matters sexual than the trial judge. Then it becomes quite artificial to have a shopping list of topics or purposes for which you can admit this evidence when at the end of the day the jury, because of their common experience, are going to use it for one purpose and that is to see whether or not the accused was sexually attracted to the complainant.

GLEESON CJ: I am not suggesting that what you have just said was wrong, but you seem to stop short. Do you say that the points that you have just made demonstrate that the one thing on which everybody seems to agree - that is, all judges seem to agree – which is that the jury have to be told they cannot use this evidence for mere propensity is itself futile.

MR VADASZ: Yes.

GLEESON CJ: Is that because there is some special quality of the concept of propensity as related to sexual offences, as distinct, for example, from drug dealing or terrorism, or physical brutality?

MR VADASZ: Most jurors only know about those three topics from what they read in the papers or see in fiction. Very few jurors would have firsthand experience of those matters. There are very few juries comprised of adults where they do not have firsthand experience of matters sexual.

HAYNE J: But the point is also more refined, is it not? The propensity in issue in sexual cases is propensity to offend against the particular complainant. The propensity of a thief is to steal from anyone, but here we are talking about offending against the particular complainant.

MR VADASZ: Well, it is a matter of psychology and outlook. I would suggest that jurors take a view about a person’s sexuality and do not confine it to a desire limited to one person only. That is somewhat esoteric. I think that it is highly likely that jurors would take a broad view.

HAYNE J: And the breadth of that view is what the law is trying to warn against, because the breadth of that view is “Well he would, wouldn’t he”.

MR VADASZ: Exactly.

GLEESON CJ: That might be right if you relate it to a specific person, but wrong if you say “He’s a bad man”.

MR VADASZ: Well, when you are talking about children - - -

GLEESON CJ: What is the difference between propensity to engage in sexual conduct with a particular individual and sexual attraction towards a particular individual?

MR VADASZ: The difference there is execution of the desire, if I understood your Honour’s question correctly.

HAYNE J: Well, there are two parts. Giving effect to the desire and also the unstated premise for its use is that it persists, and it is the unstated persistence which may perhaps ultimately form the basis for the proposition that you can act on that if, but only if, it is proved beyond reasonable doubt that it has been demonstrated and given effect to in the past. Now, it may be a broad axe to take to the problem to solve it through standard of proof, but the axe that he has taken to the problem of persistence, which is the necessary premise for the use of what happened in the past, “You did it then, therefore it’s more likely you did it now” depends on a bridge, which is not articulated by applying labels and the strength of that bridge may have to be found in the standard of proof of one of the pillars on one side of the river.

MR VADASZ: With the greatest respect, that would be my submission. At the end of the day, as your Honour said I think in Tully, the real question is the number of the sexual attraction.

HAYNE J: To which all the jurors will say, regardless of the fact or truth of it, “We know about those things”.

MR VADASZ: That is correct. If he did it every day between 1999 and 2003, why would we think he stopped in May 2003. We just think – even though the evidence showed that the sister was there and walked around the corner, and it was improbable that it happened in that manner, nevertheless we think that, if he did it every day he somehow got away with it before the sister turned the corner.

GLEESON CJ: There may be some cases, may there not, where the story of the complainant, if I can use that expression, about the uncharged acts is so intertwined with the story about the charged acts that the jury could not reasonably accept one and not accept the other. Take the not uncommon case where the complainant says, “This happened over a period of time. I’m going to tell you about the first time it happened, I’m going to tell you about the last time it happened, but I don’t suggest there was anything special or unusual about either of those two occasions and it happened a lot in between”.

That would be a kind of case, would it not, or may be a kind of case in which the evidence about the uncharged acts and the evidence about the charged acts are so intertwined that, unless you accepted the lot beyond reasonable doubt, you could not accept part of it beyond reasonable doubt – not as a matter of law but as a matter of logic related to the facts and circumstances of a particular case.

MR VADASZ: Yes, I agree. That is my submission – that as a matter of logic the jury need to accept the overall probity of the complainant’s evidence and they cannot simply look at the first and the second act.

GLEESON CJ: I have seen cases where the matter has been put to the jury and put to a Court of Criminal Appeal on the basis that the charged acts are “representative” charges.

MR VADASZ: That could not be done in South Australia unless section 74 was utilised. One sees that regularly in terms of sentencing matters. I have not seen that in terms of - - -

GLEESON CJ: I just wondered if that was the sort of thing that Justice De belle had in mind, that is, there is no general proposition of law that uncharged acts or uncharged acts in sex cases have to be proved beyond reasonable doubt, but there are circumstances in which the evidence of uncharged acts and the evidence of the charged acts is so interconnected that there is no reasonable basis upon which you could accept some and not accept the other.

MR VADASZ: This Court said so in part in Gipp at paragraph 75, where:

acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances.

On other occasions the - - -

GLEESON CJ: That may be a circumstance in which you are just applying the Shepherd principle.

MR VADASZ: My submission is that, consistent with matters that fell from this Court in Gipp and Tully, the appropriate standard is proof beyond reasonable doubt. His Honour Justice Debelle did not go quite as far as that, but he took the view that there was no direction given in this matter at all – in the matter of BAR.

KIRBY J: Do we have a copy of R v M, RB which his Honour refers to, where apparently he said a similar thing earlier.

MR VADASZ: I believe so.

KIRBY J: Yes, apparently we do have that. I think his Honour was not alone. As I understand it, Justice Bleby, Justice Sulan and somebody else has said similar things.

MR VADASZ: Justice Vanstone.

KIRBY J: Your submission was that Chief Justice Doyle says the same thing. It may be that it comes to much the same but Chief Justice Doyle is a bit more subtle. He says, well, you say they have got to be very satisfied about it and in the context of general directions requiring proof beyond reasonable doubt they will probably infer that that is what they have got to do and he does not seem to really resolve the matter.

MR VADASZ: Yes, it is very dangerous to assume that a jury will infer.

KIRBY J: The word “satisfied” would normally, I would think, conjure up a civil type standard of proof rather than a criminal.

MR VADASZ: That is correct.

KIRBY J: It does not have those magic and unexplainable words.

MR VADASZ: It is hard to understand why a jury would be confused by a simple direction that they have to be satisfied of the uncharged acts beyond reasonable doubt, but not - - -

KIRBY J: But what is your answer to the Chief Justice’s question earlier this morning and yesterday, we do not require proof beyond reasonable doubt of an admission to a reliable witness, or any witness, so why do we require proof beyond reasonable doubt of uncharged acts?

MR VADASZ: Because of the various risks involved in evidence of this kind as have been articulated throughout these proceedings and because so very often these uncharged acts are inseparable by their nature from the charged acts.

KIRBY J: But there have been one or two risks over the years in confessional evidence.

MR VADASZ: Certainly. I think different issues might arise though with respect to confessional evidence.

KIRBY J: Do you know the case where this Court – it might have been Chief Justice Brennan – said there were special dangers in sexual cases because of the strong emotions that are raised? It may have been in the context of sexual offences against minors. One hesitates in a Court like this to have yet another carve out of a category. One seeks conceptualisation of basic legal principles that are of general application. That is the hesitancy that I at least feel to carving out a particular category for sexual offences.

GLEESON CJ: Or for treating all sexual offences as the same.

MR VADASZ: That is another problem. These matters, and as I understand there is three of them before the Court, involve persistent sexual abuse which was not a popularly accepted notion 10 years ago. It is now the subject of legislation in almost every jurisdiction, every State and the subject of a large amount of government spending, media attention and the subject of establishment of bureaucracies to deal with it.

GLEESON CJ: That is right, and the legal rules have changed in relation to matters such as requirement of corroboration and warnings to juries. The situation is radically different now from what it was 40 years ago in relation to prosecuting these offences. How long do you expect to be for the remainder of your argument?

MR VADASZ: I was hoping to finish in the next five or so minutes.

GLEESON CJ: Do not take longer than five minutes because we need to finish this case today.

MR VADASZ: No, I understand that an inordinate amount of time has been taken up by the three counsel for the - - -

KIRBY J: Well, given that we were told it would finish before lunchtime yesterday.

MR VADASZ: I did not say that - - -

KIRBY J: I will never trust Mr Game again.

MR VADASZ: - - - and I cannot accept any responsibility for time estimates of others. I just want to finish on the question of – and I had not quite finished what I was saying. It is difficult to understand why a jury would be more confused by a special direction about the uncharged acts than they would be by the failure to give a direction. In fact, the failure to give a direction can lead to greater risk of confusion. Can I take the Court, as the last part of my submissions, through the parts of the trial judge’s summing up in this matter. If I can go to page 321 firstly, line 22:

Furthermore, nothing short of proof beyond reasonable doubt will do.

But the point of this exercise is to show that the learned Chief Justice in OAE said that he did give a direction. He talked about “satisfied” and when he talked about “satisfied” he told the jury earlier on that means beyond reasonable doubt. The learned Justice Debelle dissented and said there was no direction given. My submission is no direction was given. At 321, it is clear that when he talks about “proof beyond reasonable doubt” the trial judge is talking about convicting of a crime. Page 322 at line 11:

You cannot convict the accused unless you are satisfied beyond reasonable doubt –

The bottom of page 325:

Each of those elements or ingredients must be proved beyond a reasonable doubt.

On each occasion that he refers to the standard of proof he is clearly referring to the charges. Page 334:

So in the present case, if you are satisfied beyond reasonable doubt –

in relation to count 2. Again, it is clearly in relation to count 2. At 336 he talks about the standard of proof – he is talking about the uncharged acts. At line 20 he makes the analogy:

For example, an accused person cannot be convicted of a charge of robbery because he had robbed the alleged victim on another occasion . . . He can only be found guilty if the jury are satisfied beyond reasonable doubt that he committed the robbery with which he is charged –

So all his directions as to being satisfied beyond reasonable doubt related to matters of charges. At page 337 he says at line 40:

I repeat, it would be wrong for you to reason – and you must not reason – that the accused must be guilty of the charged acts simply because you happen to be satisfied that he committed one or more of the uncharged acts.

Then again finally at 338 line 20:

Each charge must be considered separately . . . ‘Am I satisfied beyond a reasonable doubt by the evidence presented in relation to this charge -

At no stage is the jury told, or given any assistance as to the standard of proof that applies to the uncharged acts. It is my submission that the learned Chief Justice erred when he said a direction had been given and that the jury could infer from that direction that he meant they had to be satisfied beyond reasonable doubt. They are my submissions.

GLEESON CJ: Thank you, Mr Vadasz. Yes, Mr Solicitor.

MR KOURAKIS: If the Court pleases, each counsel for the respondent will deal with the particular questions relating to the matters in which they appear. As to the general submissions, I will address submissions on the admissibility and use of evidence of this nature and Mr Kimber’s submissions will address the question of the particular directions that are appropriate depending on the use identified. Mr Hinton will make submissions on the Shepherd question, the onus of proof question.

Your Honours, before I go to the question of admissibility in use I want to make some submissions about the trial context in which these questions arise. The first submission I make goes to the nature of charged counts in these matters. They have to, according to common law and statutory provisions in South Australia, be sufficiently particularised to identify a particular occasion. The reasons for that are plain and well known, and your Honour Justice Kirby referred to them, to Johnson v Miller yesterday; they were contained there, and in this Court’s more recent decision in R v S.

Now, your Honours, although there has to be that level of particularisation, that does not meant that it is necessary to identify a particular day. These cases may come to trial when a complainant is some 16 years of age and cannot remember whether the first indecent assault was in the four weeks after her 9th birthday or the four weeks after her 10th birthday, but the count will be so particularised and, therefore, encompass a period of time over a period of a year. It might well say in this period of a year, about four weeks after her birthday “In Dad’s bedroom while the rest of the family was watching Neighbours on TV this happened”.

That is the accusation on a charged count that an accused will have to face, and there will obviously be difficulties for the accused in finding independent proof or evidence as to what occurred or not. But that does not mean that the trial is in any way unfair and there is no warrant in law to stop it - certainly at least since the abolition of the time limits that used to apply. The accused tests the evidence of the complainant by cross-examination and, if he so chooses, can put his own oath against her as the trial proceeds.

KIRBY J: What are these time limits that used to apply?

MR KOURAKIS: There were statutory time limits for bringing offences of a sexual nature in the various States, and the last of those were abolished in South Australia in the last few years, but they are now - - -

HEYDON J: There are examples of them in the English case as discussed by Chief Justice O’Brien.

MR KOURAKIS: Yes, they have a long history. They may well have been motivated by a decision of policy about the sort of question and themes of a trial that I have just adverted to. But absent those statutory provisions, the common law does not provide any basis generally for not proceeding to trial of those matters. There might be extreme cases where a stay is necessary, even more extreme cases where alternatively the Christie discretion might be brought into play - - -

KIRBY J: Do you know of any cases where stays have been granted in these matters?

MR KOURAKIS: No, your Honour, because they have been dealt with by - - -

KIRBY J: Well, that is a bit of a worry, is it not?

MR KOURAKIS: Well, no, your Honour, there are other ways in which - - -

KIRBY J: I mean, 20 years or 30 years later we see cases coming to trial. How could a person possibly defend themselves then?

MR KOURAKIS: Your Honour, they do so because they receive appropriate directions and warnings like the Longman warning that - - -

KIRBY J: Well, that is part of our mythology.

MR KOURAKIS: Well, your Honour, it is also part of the legal basis upon which these charges proceed. But, your Honours, the point of making this submission is to submit that there is no obvious distinction, or enormous distinction at least, between charged acts and uncharged acts in terms of the forensic issue that the accused will join in the context of these sorts of trials.

Now, your Honour, the next point that I wish to make is also an observation about the nature of charged accounts and what is charged. The particularisation to which I have referred is necessary but the offences do not occur in a vacuum. The offence particularised occurs in the real world. Now, whether a jury will find the alleged offence proved depends on both direct and circumstantial evidence and on the inherent probabilities or otherwise and consistency of that evidence with the real physical world and matters of human affairs. It proceeds essentially on the basis of inductive reasoning.

Your Honours, what follows from that is that the evidence in relation to a particular count cannot be limited to the direct rather than circumstantial evidence of the element of the offence itself. To do so would deny a whole body of accepted evidence, circumstantial evidence, but just as importantly to do so would deny the jury any capacity to assess the plausibility of the evidence of the prosecution and the inherent probabilities of the occurrence of the offence. All that I have endeavoured to say here is what his Honour Justice Dixon explained in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 where his Honour said that:

The circumstances which may be taken into account in this process of reasoning –

that I have just described –

include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.

His Honour Justice Evatt said much the same at page 385. Your Honours, finally as to the charging of the acts, in South Australia, as I think in all the jurisdictions in Australia, multiple counts may be charged in the single information and may be joined if they are a series of offences. In these matters, sexual offence matters, commonly come before the courts in that way. Your Honours, there is, of course, a power to sever the counts in an information so joined and the principle is that the counts will remain joined if the evidence is cross-admissible. Your Honours, generally there is no severance of these counts. Generally in these sorts of matters it is an exceptional case where the counts are severed.

GLEESON CJ: The principle on which evidence of a number of charged sexual acts is cross-admissible is relevant to the problem with which we are concerned, is it not?

MR KOURAKIS: Precisely. There is no difference in principle between the cross-admissibility of evidence on charged counts and admissibility of the evidence of uncharged counts.

KIRBY J: That is the problem, is it not, that you are then introducing into the strictness of the accusatorial trial a whole batch of evidence that does not relate to any particular offence that you bothered to charge the accused with?

MR KOURAKIS: Your Honour, going back to Johnson v Miller, the reason for particularisation is essentially notice of what is to be faced as one requirement. That is met by the provision of statements. Procedural fairness is not an issue here. The other reasons for requirements for particularity are so - - -

KIRBY J: You are standing to the left of the microphone. I am getting every second word.

MR KOURAKIS: If your Honour pleases. Procedural fairness is not an issue. There is notice of what will be led in terms of uncharged acts. There are statements of witnesses which are effectively the evidence-in-chief. There is no loss of procedural fairness - - -

KIRBY J: It sounded as though there was procedural fairness in that last case we were told about. There was no real particularisation at all in the three statements that were provided to the accused. The first he heard of it was when it came out orally during the trial. How can you defend yourself in that situation?

MR KOURAKIS: Your Honour, that problem might arise with respect to a charged act as well in much the same way, particularly the sort of charged act that I mentioned in - - -

KIRBY J: I am merely responding to your statement there is no question of procedural fairness here because as far as I am concerned, there is a question of procedural fairness.

MR KOURAKIS: Your Honour, the submission I make is that there is no real difference between charged acts and uncharged acts on the question of procedural - - -

KIRBY J: There is a difference. There is a big difference. Charged acts are set out in a formal document of the State. They are set out with specificity and particularity. They nominate particular days. It is a very serious decision that is made by a prosecutor who finds the indictment and it is then available to the accused. The accused can then go round and seek “Can I show that I am innocent of this? Can I call a witness?” In the last case the one matter where that was possible related to the sister and the sister came along and said, “The statement that I stood there and looked angrily at the complainant is false.” That is the only way he could respond to that. If it is generalised, you cannot respond, except to deny. Oath against oath, oath by an old person against a young person, it is a very unfair situation in potential.

MR KOURAKIS: Your Honour, those situations do occur with charged acts where independent evidence against the commission of one on one count is shown. Sometimes juries acquit on that count and convict on the other, sometimes they acquit on both, but it is, with respect, a similar problem. The other requirements in Johnson v Miller are so that a judge can make decisions about admissibility and the autrefois convict/acquit problem. None of those issues are applicable once you have some charged acts are applicable to uncharged acts.

KIRBY J: That is a question too as to whether on the theory of relevancy that was being propounded to us in the last application, then you might have a question to decide as to admissibility.

MR KOURAKIS: Your Honour, there always will be. My only point is that as long as you have one charged act you have elements against which questions of admissibility can proceed.

KIRBY J: If you charge, say, a crime of theft and you then come along to a trial as the prosecutor and open evidence of theft on another occasion, on another day, another place, counsel will be up screaming and jumping and objecting and rightly so and the judge will rule it out of order. It will be rejected.

MR KOURAKIS: Yes, precisely, because there is one charged count against which the admissibility of the other evidence can be judged and in that sort of case - - -

KIRBY J: Quite. This is the accusatorial trial with particularity. Why is this field of criminal law so different?

MR KOURAKIS: In my submission, it is not in terms of the principles that underlie it. All these questions are fact sensitive and different decisions might be made applying the law in different cases. Your Honours, that by way of a simple opening, I want to turn to the question now of the admissibility of evidence of this nature and by evidence of this nature I mean evidence of a series of offences, sexual offences, by an accused against the same complainant and the question of admissibility is this, is the evidence with respect to, say, 10 of the counts admissible in the determination of the 11th count and so on and so forth, but I am dealing with the question of the same complainant, same accused and a series of offences. That is what identifies the relevant question.

Your Honour, the determination of the admissibility of the evidence in a series case such as this as a matter of basic principle comes down to, firstly, identifying the relevance that there is said to be between the evidence within the series and, secondly, identifying any applicable, if there is one, rule of exclusion. It is to the first question that I turn and that is just what the relevance is in those circumstances.

Now, in my submission, your Honours, there are, in answer to that question, broadly two quite distinct uses, relevant uses, and ways in which the other offending will affect the evaluation, the fact finding in any single count. There are two ways in which the plausibility of the occurrence of the count in question can be tested against the evidence in the remainder of the series. Your Honours, it is my submission that both uses are well recognised – and I will come to some cases in a moment – that were in fact recognised in Vonarx itself, a case that the respondents rely on for the proposition that there is indeed only one use. Can I just take your Honours to Vonarx.

GUMMOW J: What are we going to get out of Vonarx, Mr Solicitor?

MR KOURAKIS: Your Honour, simply one passage to which - - -

GUMMOW J: Yes, what is it going to tell us?

MR KOURAKIS: That evidence in the other offences is relevant both to show sexual attraction but also to show the context in which the offending occurred so as to give it that, a realistic context in which the plausibility of the occurrence can be judged. Your Honours, other than give your Honours the reference to paragraph 15, I do not need to bother your Honours to go any further to that.

GUMMOW J: Where do you then go from that in your argument?

MR KOURAKIS: Many other authorities, including a judgment of the Chief Justice - - -

GUMMOW J: Forgetting about the authorities for a minute. I am trying to get down to bedrock. Where do you then go in your argument?

MR KOURAKIS: Your Honours, if those two uses are accepted, as to the context use, explaining why the complainant submitted, why no complaint was made and the like, it is my submission that that is a use that does not rely in any way on propensity reasoning. It has nothing to do with it at all. Because it has nothing to do with at all, if the evidence of other offending is tendered and admitted purely to show that context – not to show attraction, purely to show context – then it is not the subject of any exclusionary rule. It is admitted simply because it is relevant. There is no risk of prejudice and it does not fall within the exclusionary rule, at least as we would ask your Honours to formulate it.

HEYDON J: If there is no risk of prejudice, presumably there is no need for a direction that it is only to be used in a certain way.

MR KOURAKIS: Your Honour, my submission was that there was no unacceptable risk of prejudice. If it is thought that although the jury will be told it is admitted for this purpose and this purpose only, if it is thought that the jury might off their own back reason from it in an impermissible way, then a warning against the use in that way might be given to avoid a miscarriage, but that is a separate question. My submission is that it should not be the subject of any exclusionary rule.

GLEESON CJ: In a number of States there is an Evidence Act which, I think, deals with admission of evidence for limited purpose which, by hypothesis, involves explaining to the jury the limited purpose for which the evidence may be used. Is there any similar statutory provision in South Australia?

MR KOURAKIS: No.

GLEESON CJ: I think the legislation to which I am referring talks about judges limiting the purposes for which evidence may be used.

MR KOURAKIS: I should say not that I am aware of, none come to mind. But, your Honours, even in other matters like hearsay this question commonly arises. Evidence is admitted where it has both a hearsay use and a permissible use.

HEYDON J: A non-hearsay use.

MR KOURAKIS: I am sorry?

HEYDON J: It has a non-hearsay use which is legitimate and a hearsay use which is not.

MR KOURAKIS: Yes, and the problem arises in that context and directions are given as to the proper use and the jury is warned against the hearsay use. There is nothing novel or difficult about that, in my submission. But the reason, we submit, that there is just no unacceptable risk of prejudice is that the reasoning process is quite distinct. To say to the jury you can, in considering this offence that occurred a year after the series commenced, when deciding on the plausibility of that offence and asking yourself why didn’t she call out to her mother in the next room, why didn’t she complain to her mother as soon as it finished, you can take into account the effect and consequences of being subjected to abuse over the preceding year - - -

KIEFEL J: You are stepping away from the use of the evidence to show a relationship or you are narrowing it down to what a relationship means or what it would be used for.

MR KOURAKIS: Means, yes. In my submission, there are two uses and I am not backing away from it. I am just now addressing only the first use which has nothing to do with propensity. I am saying that if the prosecutor tenders this evidence of other offending in the series on that basis and it is admitted only on that basis - - -

KIEFEL J: But if you admit it to explain her evidence, do you not have to say how her evidence is explained?

MR KOURAKIS: Yes.

KIEFEL J: But do you not do that by reference to the relationship or what has occurred between them? You say you do not need to go into characterisation of the relationship? You refer only to the events that she speaks of?

MR KOURAKIS: Your Honour, any convenient and helpful description of the relationship that helps explain the point that I just made, why the complainant did not complain, why she did not yell out, can be used. The only point that I am making now is that I am addressing that contextual relevance, the evaluation of the inherent probabilities relevance rather than the use of attraction and what might be inferred about a tendency to act again to repeat the conduct from that attraction.

GLEESON CJ: The statutory provision I had in mind was section 136 of the Evidence Act that says:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party –

MR KOURAKIS: Yes.

GLEESON CJ: There is another provision, section 95, dealing with what is called tendency or I think what used to be called propensity evidence.

MR KOURAKIS: Yes.

HAYNE J: Does not the argument about context and reference to inherent probabilities depend upon unstated premises, not to say assumptions, about presumed responses to sexual conduct?

MR KOURAKIS: By the complainant?

HAYNE J: By anyone, complainant or accused.

MR KOURAKIS: Yes. Your Honour, dealing with the question of the complainant, it is not presumed, it is a question of human experience. If that, which is what the jury brings into the jury with them, is presumed, well then so be it, but knowledge of human affairs, how people act and children act is something which the jury necessarily brings into the jury room with them. They are often told to use it.

HAYNE J: Is not the critical element that is assumed an element that depends upon the nature both of the accused’s conduct as giving effect to desire and the complainant’s response to it in the series, that is, are you not erecting a couple of watertight boxes that simply do not hold water?

MR KOURAKIS: Your Honour, that is another question, but there are the two uses. I have not been addressing the sexual attraction use. On the submission that I have made that where it is admitted for one purpose only, the context use, the complainant’s response use, it can be put against me but the evidence is still in. The jury might be tempted themselves to use something of the sexual attraction the evidence discloses to reason from tendency.

KIRBY J: It sounds like propensity.

MR KOURAKIS: Yes, but there is a difference between the propensity I am talking about in a sexual attraction case and mere criminal propensity or criminal bent criminality, and I will come to that later, but if it is thought that because the jury is so likely to adopt the tendency form of reasoning once it is admitted even for the limited contextual use, then that is an argument for including this sort of evidence within an exclusionary rule and just what that rule is is something also that I will come to later. But, in my submission, that risk can be adequately dealt with by a direction to the jury about its proper use as context and a negative warning, a direction as to what it cannot be used as - - -

CRENNAN J: This is completion of evidence point.

MR KOURAKIS: Yes.

CRENNAN J: In other words, the evidence the complainant gives about the charged acts will be incomplete.

MR KOURAKIS: Yes, and to some extent misleading if the other evidence is not given. If the first only of a series is charged and nothing that happened after can be given, whether or not defence counsel particularly make the submission does not matter, but if that is all that is given, the jury may well reason this is just artificial, these things do not just come and go and this sort of act is not undertaken and then not repeated, this is bizarre.

On the other hand, if only the last of the series is the count and only evidence of the occurrence of the last in the series is given and the evidence also is that the complainant did not complain, did not yell out at the time at the family members who might have been just in the next room, a jury will just say this is completely implausible, or at least they will take that into account and think about that problem. Whereas if they had known that it had been happening for a whole year and on this particular occasion though she did not complain because she had been subjected to abuse throughout the preceding year, they might come to a very different conclusion about the plausibility of her account. So it is completeness in that sense.

Your Honours, in my submission, that is simply testing the plausibility of an account against the real world and the context in which it occurs. It has nothing to do with propensity at all.

GLEESON CJ: The other aspect of what is sometimes called relationship is that in a lot of these cases there is hanging over them what is sometimes a problem of consent if that concept has any significant meaning in the context of the age of the peoples involved. We will adjourn until 2 pm.

MR KOURAKIS: If the Court please.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ: Yes, Mr Solicitor.

MR KOURAKIS: If the Court pleases, there is just one judgment that I want to take your Honours to on the question of using evidence of other offences to establish context because it sets out both distinct uses and has an example of context that is helpful. It is the judgment of your Honour the Chief Justice in the New South Wales Court of Criminal Appeal in a matter of R v Wickham and it is reported at Butterworths 9101334. Your Honours have that report of the judgment. Your Honours will see the two uses set out at page 3 of it, the first use being attraction at about - - -

KIRBY J: Your voice is dropping again. No doubt a large lunch.

MR KOURAKIS: If only your Honour knew the rule of practice I adopted for lunch. The first use about three or four paragraphs down on page 3 and the second about halfway down, I need not read them, but the example is on page 2. The example in that particular case of the unreality of not presenting the context and, in fact, the misleading nature of evidence of the offence alone without context is established about halfway down in the paragraph that commences “As it happens”. I will not stay to read it but it would be immediately recognised by most criminal lawyers as a very typical example.

Your Honours, I will just give some references to other authorities in which this use has been accepted. In Gipp her Honour Justice Gaudron in paragraph 12 accepted such a use with the qualification that her Honour thought it became a relevant use only if the defence raised the issue. In my respectful submission, that cannot be necessary to make it a relevant use, context of relevant use. Plainly, it is a sort of matter that the jury will ask themselves if it is not addressed and his Honour Chief Justice Doyle considered that very question in Nieterink and took the view for which I contend.

In Gipp still though at paragraph 72 your Honour Justice Hayne and Justice McHugh recognised the separate use of evidence of other offending as context. In Nieterink (1999) 76 SASR 56 at page 65 paragraph 43 his Honour Chief Justice Doyle sets out the various ways in which context allows a proper evaluation of the evidence of the offence itself. That discussion by his Honour Chief Justice Doyle was referred to approvingly with approval by his Honour Justice Callinan in Tully (2006) 231 ALR 712 at 748.

MR KOURAKIS: Your Honours, the second use referred to in Wickham is the use as evidence of sexual attraction. In my submission the way in which its use in that way works is this. From the evidence of the commission of other offences an inference can be drawn about his state of mind and then from that state of mind an inference in support of repetition of the conduct can be drawn.

KIRBY J: Why bother having charges? Why not just prove charge one and then proceed to have all this other contextual matter and say, well, this is to show there was a sexual relationship or a guilty passion or to give the context or to explain why there was not an immediate complaint? Why bother having the specificity and particularity of our system? Let us just throw it out the window.

MR KOURAKIS: The number of charges is a function of a variety of considerations. The first I referred to before lunch, identification, capacity to identify sufficiently to allow rules of relevance to be applied. The second factor is choosing the appropriate number of charges to reflect the criminality of the conduct, not so few that an inappropriate sentence cannot be passed, not so many that it is prejudicial to the accused in terms of meeting a trial and facing sentence, not so many such that trials become inordinately long. It is not a matter of arbitrary decision by prosecutors. It is a function of those factors and a determination by prosecutors doing the best they can to do justice in exercising their duties in that respect.

KIRBY J: I do accept that there is a problem here. I am trying to puzzle out how one can reach a principled approach to not so many and not so few because I accept the point made in Justice Hayne’s question of the dangers if you have 150 or 200, but, on the other hand, I can see dangers where there are distinct acts of rape that are not charged and, indeed, according to the third case, not even known until the evidence falls out at the trial. That surely is a very unfair criminal procedure. Even the French would not have a general procedure like that.

MR KOURAKIS: Your Honour, in my submission, the unfairness and the injustices that might arise out of the circumstances your Honour has described is not an unfairness or injustice related to the admission of other offending. It is really an injustice that might arise out of the way in which the trial is conducted. There are mechanisms for courts to deal with those, adjournments, stays, the Christie discretion. The sorts of problems your Honour has adverted to in my submission are not peculiar to, do not arise out of the fact that this evidence is evidence of other offending.

KIRBY J: We can forget about stays.

MR KOURAKIS: Your Honour, we found a case in which it occurred.

KIRBY J: A case.

MR KOURAKIS: In the District Court of South Australia there was a sexual case where the accused’s diaries had been destroyed and the trial was stayed. So in the cases where an assessment is made that the case cannot justly proceed because of the time delay and the loss of evidence, as a last resort that avenue is available.

GLEESON CJ: Mr Solicitor, what about questions of form which are often important in the way evidence is led? Evidence might be potentially admissible but the form in which it is led might be either relevant to its admissibility or relevant to warnings that have to be given. Take the following question. Is this the first time anything like that happened? Now, at that stage counsel would have to object or not object, as the case may be.

MR KOURAKIS: Yes.

GLEESON CJ: The witness might say, yes, it happened many times before, then does counsel for the prosecution leave it there and let the cross-examiner make a tactical decision?

MR KOURAKIS: Your Honour, these are difficult questions. His Honour Chief Judge O’Brien in Chamilos showed the difficulty in artificially constraining evidence in these sorts of cases to the counts charged but similar difficulties will arise if there is an attempt to confine artificially the uncharged acts as well. Initially, plainly, it is a judgment for prosecution counsel and counsel for the accused as to how they think the case can best be managed. If there is a disagreement between them, the trial judge has the mechanism by which to deal with any injustice arising from the form of questions.

GLEESON CJ: I have got to say that I am not conscious of having seen any discussion of this in judgments, which has prompted my question to you. I think I have been down the other tracks many times before, but what if that is all the prosecutor does? What if the Crown prosecutor simply says to the complainant “Has this sort of thing happened before?” or “Was this the only time this happened?” and the complainant says “No, it had happened many times before”, counsel then leaves it and passes on to the next subject?

MR KOURAKIS: Your Honour, if that is the result of an agreement between both counsel, then plainly it will be left there and for tactical reasons the defence has decided to do it in that way. Mr Game adverted yesterday to the fact that as soon as you let some in as a practical reality counsel for the accused must challenge it and more will eventually come in. If counsel for the accused has decided that it should not be left with that bare assertion, that it will need to be tested, no doubt counsel for the accused will say asking it in that limited form is unfair because I will walk into a minefield. You lead the evidence so that a proper understanding of just what the scope, the ambit, of the other charges, other criminal offences you are relying on is, so that I can then frame my cross-examination in accordance with that rather than as counsel for the accused opening - - -

GLEESON CJ: How does that work in practice? The counsel for the accused, what, asks the trial judge to require the prosecutor to ask further questions in-chief?

MR KOURAKIS: I do not know that it has happened in practice but, in my submission, there is no reason in principle why this should not happen. Counsel for the accused will say allowing the prosecutor to ask only that and to leave it there would work an unfairness that should be disallowed, that is, that evidence causes a prejudice, it has some probative value but it is prejudicial, it should not be allowed. If they want to lead these uncharged acts, they should do so in a way that allows me then to put my client’s case on what is properly explained and in some greater detail. In my submission, there would be no reason why a trial judge could not take that course. Your Honour, I suspect there is very little discussion because often in practice there is that sort of discussion between counsel and that sort of decision undertaken tactically.

HAYNE J: I think it may also stem from an earlier source, that is, the prosecutor’s obligations as to evidence. I am just pulling up Apostilides and see whether it spoke to it. I do not think it does, but Richardson may. After all, if the relevance of the evidence lies in completeness, the hypothesised question is not complete.

MR KOURAKIS: Yes.

HAYNE J: If left there, the evidence then I think is objectionable and you are off into the questions of discharge of the jury which heaven forfend, but that is where you end up, I think.

MR KOURAKIS: Yes. In my submission, your Honour is, with respect, quite right and there are quite practical decisions that are made at trial - - -

GLEESON CJ: It may be that, as you say, when questions of admissibility are argued out at these pre-trial hearings, that sort of question would be dealt with.

MR KOURAKIS: Your Honour, I can say and I know as a matter of practice, not just in this area but in all sorts of areas where there is objections to the admissions of evidence, practical forms are often agreed. That is very common.

HAYNE J: There is much to be said for what seems to be the American practice under Rule 404 of the Federal Rules, which is a practice where the intention to adduce such evidence is raised in the absence of the jury. Most importantly, a trial judge in effect then pins counsel to the use they propose to make of it.

MR KOURAKIS: Yes.

HAYNE J: So that you go into the trial knowing what is to happen and that is starting then to lay the groundwork for what happens at the end.

MR KOURAKIS: Yes. Your Honour, that is certainly not peculiar to the United States as far as South Australian experience goes. There is not a statutory overlay but - - -

HAYNE J: Rule 404 does not require it, but that is the practice that has emerged in the US about uncharged conducts.

MR KOURAKIS: Yes. On the provision of statements, at the case management conference in the District Court after a notice pursuant to rule 9, questions of that can be raised and rulings made. I should say in the case of H the use was identified by the prosecutor in her argument, again in the opening, again in the closing and it was the same all the way through and it is the use that the trial judge was directed on. So there was clarity from the outset.

HAYNE J: Yes, and what that did not take to account was that some of the issues had fallen away.

MR KOURAKIS: I will come back to that, if your Honour pleases. Now, your Honours, turning to the use as evidence of sexual attraction, I have described the process of reasoning from acts to state of mind to repetition of those acts. Your Honours, the inference where the offending is sexual offending by the accused on the same complainant, the process is to identify a state of mind of sexual attraction. That is not the same as a criminal bent or just a bare criminal disposition. If it is a series of thefts that is being considered, as a matter of human experience or even advanced psychology, there is very little that can be known about the strength and persistence of thefts or perhaps many other sorts of offences.

KIEFEL J: Is the use of the term “a little unreal” in this sense that we are not really talking about something which is the subject of a movie or a book and which sounds rather nice when you say it? In these cases the point is it is being played out, it has been played out. So is it somewhat misleading then to talk about a sexual attraction in order really to get around the fact that there is propensity underlying this and there is propensity because you actually have to look at the evidence about the uncharged acts?

MR KOURAKIS: Yes. It is not a state of mind expressed in a diary or an admission to someone else. It is inferred, as I said, from the other offending. Your Honours, can I just say that there are a collection of cases and judgments where it is said that it is evidence merely of sexual attraction and not propensity and they are collected in paragraph 39 of our submissions, footnote 74, without going to it, and there are another set of judgments that accept that although called “sexual attraction”, in truth the reasoning beneath it is a propensity or tendency type of reasoning and they are collected in paragraph 42, footnote 85.

Now, your Honours, if the process of reasoning is, as I have said, inference to “sexual attraction” and then to repetition, then it is the latter part of that process that can be described as a tendency form of reasoning. Your Honours, the submission that I make about that though is that it is a valid inference to draw because as a matter of human experience sexual attraction and the urge for sexual gratification that accompanies it is an extremely powerful persisting force and it is recognised as that. In the end, in my submission, ultimately - - -

KIRBY J: This is a bit unrealistic, is it not? I mean human beings have sexual attractions, but they do not necessarily follow them out into criminal acts. Thousands and thousands of criminal acts would otherwise be occurring.

MR KOURAKIS: Yes. Your Honour, if the evidence of attraction was simply the diary entry the jury would assess precisely that and there would be no difficulty about it. If someone recorded their sexual attraction it would be admissible - - -

KIRBY J: But if it is the daughter or a niece or something like that then that is very prejudicial to prove the sexual attraction as distinct from proving the actual offence with which the person is charged. Once you wander into that territory it is also irresistible that the jury will think, “Now, that is odd and it is nasty and we do not like that”, and therefore reason from that to the guilt of the accused of the offence charged instead of concentrating on whether you have proved that.

MR KOURAKIS: Your Honour, there is no question but that if the attraction was recorded in writings in the diary it would be admitted and would be probative, in fact extremely probative, notwithstanding what the attitude of the jury might be to the fact that it had been recorded. Appropriate direction would have to be given about still considering whether the elements of the charge were proved, but it would be admissible.

In my submission, the evidence of sexual attraction inferred from other offences is equally probative. It is something about sexual attraction, an urge for sexual gratification, that it subsists, that it does not generally come one day and disappear the next. There may be some occasions on which it does but it does not generally and it is a matter which as a matter of human experience juries are well equipped to determine for themselves guided by some appropriate directions.

Your Honours, that very process and a recognition of the force of the reasoning process indeed appears in the line of authority collected by Chief Judge O’Brien in Chamilos at pages 19 to 20 in particular - - -

KIRBY J: What is the name of the case?

MR KOURAKIS: It is set out in Chamilos, the judgment that his Honour the Chief Justice circulated yesterday. But in the discussion commencing at page 18 of R v Hartley, going over to pages 19 in the middle of the page one sees the way in which the attraction was left to the jury by the trial judge. Then over the page the basis upon which the direction was approved by Justice Humphreys as being not only evidence in support of the complainant’s case but in the context of that case corroboration because of independent observation of one of the incidents forming the series. Your Honours, the cases collected by Chief Judge O’Brien show an acceptance of the relevance of the subsisting sexual attraction over a period of quite some years.

HEYDON J: Hartley is often thought of as a similar fact evidence case, but you say it is not, do you? Because if it is a similar fact case, then do we not now have to apply the Pfennig test?

MR KOURAKIS: No, in my submission, it is not. It is a relationship case. It is my submission – I will come to it in a moment – that the Pfennig test certainly does not apply to relationship cases. I rely largely – and I will come to it in a moment – on the statements and reasons of his Honour Justice McHugh on that question.

HEYDON J: It could, but if you satisfied the Pfennig test, you would not have to give a curative direction which is characteristic of relationship cases because it would be in to prove disposition.

MR KOURAKIS: Your Honour, the only difficulty with that is the difficulty in, with respect, applying the Pfennig test to relationship evidence.

HEYDON J: The third appeal, if it was 1,500 times, why does that not satisfy Pfennig?

MR KOURAKIS: Your Honour, because on one view of the Pfennig test the question is whether the trial judge thinks there is any reasonable possibility of innocence. Now, 1,500, perhaps no one will but the question still arises, really, whether the complainant’s case is accepted. The similar fact evidence case has to be but whether the complainant’s evidence as to the actual offence charged is accepted is still a question.

HEYDON J: Pfennig goes to admissibility before there has been any finding about reliability.

MR KOURAKIS: Yes.

HEYDON J: You assume that the evidence promised, foreshadowed, will be given and you assume it is credible.

MR KOURAKIS: You assume that the similar fact evidence will be accepted and credible. With respect, I have some difficulty in understanding the application of the Pfennig test. I acknowledge that at the outset.

HEYDON J: What we are doing is demonstrating that it is almost impossible to satisfy.

MR KOURAKIS: Yes, but, your Honours, the most unsettling consequence of the Pfennig test is that if evidence is rejected, it in a sense is a statement by the trial judge before trial that the accused should be acquitted.

HEYDON J: I will have to think about that, I am not so sure.

MR KOURAKIS: If the trial judge does not admit it because the trial judge is of the view that there is a rational view of the evidence that is consistent with innocence, it would tend to suggest that the result of the trial should be an acquittal.

HEYDON J: Except things can happen during a trial between the time when the evidence is rejected - - -

MR KOURAKIS: Yes, but if they do not and the accused is convicted - - -

HEYDON J: But what the trial judge thinks does not matter, it is what the jury thinks.

MR KOURAKIS: No, the verdict will count but it will have the rather unsettling effect that there will be a pre-trial ruling on the same evidence that the judge thinks is a rational view consistent with innocence and the jury did not. In my submission, with respect, one way of understanding the Pfennig test, and especially if one traces it back to the earlier statements of Justice Dawson in Sutton, Harriman and Hoch, is that no rational view really means strong and clear inference towards guilt, but if it actually means no rational view consistent with innocence, it is an extraordinarily high test. One would have to wonder why it is not sufficient simply that there is a strong case on which the jury could act.

HEYDON J: But you do not want us to overrule Pfennig, do you?

MR KOURAKIS: Your Honours, we have made some submissions to this effect. I have made them now and they are in the written submissions but only to bolster our case that it should not be applied to relationship evidence. I do not ask that your Honours overrule Pfennig. My submission is that it is confined to similar fact evidence cases and it does not extend to relationship cases, but I point out the difficulties in its application in support of the submission that it does not apply to sexual relationship cases.

HEYDON J: What does it mean to say it does not apply to sexual relationship cases? If the relationship evidence does not satisfy Pfennig, the problem is, of course, in theory, cured by the direction which we find in each of these three appeals and we normally find, namely, that you can use it for the sexual attraction purpose or the context purpose or some other purpose but not to reason that he has a disposition to do these things, therefore he did this thing.

MR KOURAKIS: Well, your Honour, if the exclusionary rule is a rule against the admission of other offending only for that particular purpose, the propensity purpose, then that is another way of getting around it. It is a rule against its use for an improbability or tendency purpose, but then one would have to hold that sexual relationship cases are not tendency cases, presumably. There is that body of authority that says that the sexual attraction mode of reasoning is not tendency or propensity reasoning that is excluded and we could rely on that. The difficulty with that, with respect, is that the observation made by her Honour Justice Kiefel a moment ago about the fact that the sexual attraction is inferred from other conduct.

In my submission, although sexual attraction involves some tendency reasoning, it is reasoning from a state of mind that is sexual attraction, not any state of mind that makes some assumption about criminality in the abstract or bare criminality. Sexual attraction is something that can be safely evaluated by the jury, it has been for over a century. There is no suggestion that great injustices have been worked over the now very many years over which this evidence has been admitted.

Your Honours, that has brought me really ahead a little and has brought me to the question of the scope of the exclusionary rule. It is my submission, and I have made it, that it does not apply to the use of other offences to establish context. Similarly, for example, it is not at all applicable to those cases where, for example, stolen goods are found at the scene of another crime such as a murder and evidence can be led that the accused stole the items that are found at the scene and the jury is invited to infer form that that the accused thief is also the murderer. Those cases do not involve any propensity reasoning. It would plainly be admissible and, in my submission, the exclusionary rule does not apply at all. It is by analogy to a case such as that that, in my submission, admission of evidence of other sexual offences to establish context similarly does not fall within any exclusionary rule.

GLEESON CJ: If a person was charged with conspiracy to commit a terrorist act in Australia, would evidence that he trained at an Al-Qa’ida camp in Afghanistan be admissible?

MR KOURAKIS: Your Honour, on probably a number of bases the evidence might show a capacity to engage in terrorist acts, certain skills and - - -

GLEESON CJ: It would show a number of things including tendency, would it not?

MR KOURAKIS: Your Honour, it would show tendency in a similar way if he had recorded his desire to fight a jihad in a diary, again, and show some steps taken before that. In that case the state of mind is a political - - -

GLEESON CJ: This again gets back to this expression “mere propensity”.

MR KOURAKIS: Yes.

GLEESON CJ: Evidence commonly shows propensity among other things.

MR KOURAKIS: Yes. The state of mind that would at first glance appear to give that evidence some greater probative value is something more than, again, bare criminality. It is something about a person’s adherence to a cause and taking steps in advance of something that human experience might tell us something about. Your Honour, that is, with respect, a much more difficult case, not one on which there is obviously much authority but that might be recognised as having some analogy with the sexual attraction cases to which I have referred.

Your Honours, on the other hand, there are those cases which very obviously involve either tendency or improbability reasoning. I refer to cases like Hoch where the question is an improbability of lies, Sutton, improbability of a different offender committing an offence with very much the same modus operandi and Perry, improbability of catastrophic events. The Pfennig test appears to apply to all of those cases, including the Pfennig sort of case as well.

His Honour Justice McHugh in KRM, and your Honour Justice Hayne joined in this position, took the view that until this Court otherwise holds, the evidence of sexual relationship, evidence of other sexual offending, should continue to be admitted without the application of the Pfennig test and that is very much the question before your Honours now. In my submission, essentially for the reasons explained and put by his Honour Justice McHugh in Pfennig at page 532, the test should not be extended, that is, the no rational view test should not be extended to evidence of other sexual offences by the accused by the same complainant.

Your Honours, if it is accepted that there can be sufficient confidence in the persistence of sexual attraction to support an inference so that it can be used quite independently and differently from context, then the question arises whether it is subject to an exclusionary rule. It has been treated as subject to the exclusionary rule in Makin since the turn of the century. Again the cases collected by Chief Justice O’Brien show that there was always a reference back to Ball in justifying the admission of this evidence. In more recent times from R v B through to Gipp it has been accepted that evidence is subject to an exclusionary rule. The question that remains undecided is the one that I identified a moment ago, that is, whether it is the no rational view test that applies to it or simply, as we contend, test of whether the evidence is more probative than prejudicial.

If that test is applied, then the submissions I have made about the highly probative value of the evidence obviously call for its admission. In weighing the other side of the ledger, the prejudice, matters such as the danger of a jury substituting a conviction on a count charged simply because they were satisfied of the other course of conduct or a jury not paying close enough attention to the individual count – these dangers, these prejudicial dangers should be considered. Mr Kimber will make submissions about how they can be dealt with by directions.

But my submission to your Honours is that in making that evaluative judgment as to whether the probative value that has been identified exceeds the prejudicial effect, this Court ought to give the credit for commonsense, logic and intelligence that modern Australian juries deserve. With respect, it is somewhat unrealistic in this day and age to think that a jury will not be faithful to its oath, will simply find the particularised count proved, although they have no idea whether it was proved or not or whether it happened or not, simply because they have heard evidence about another course of conduct. Similarly, it is a big step to say that a modern Australian jury will not follow the directions that will be given to it to have regard to the particular elements on each charge proved.

Now, the risk of some remaining prejudice can be considered in making this evaluative judgment but, with respect, it ought not be assumed that all juries or most juries will immediately enter a conviction just because of the past conduct and the like, that they are to be given, with respect, the credit that they deserve.

Now, can I just step back again. When I spoke about the inference of repetition of conduct arising from sexual attraction, it should of course go without saying that no one is suggesting that it proves logically and probatively that the offence in question was necessarily committed. That would be silly. Of course the only submission I make about sexual attraction is that it supports an inference towards guilt, not that it proves guilt, and the strength of the inference will depend on what the jury assesses the strength of the sexual attraction to be, given how it is proved and given the lapse of time between relevant events, but that is essentially a matter for the jury.

KIRBY J: None of these things are based on evidence of human sexuality. They are based on judges’ impressions. There is a vast body of research now on this subject throughout the world – certainly the United States and in the United Kingdom.

MR KOURAKIS: Your Honour is talking about research about repetition of conduct?

KIRBY J: About human sexual desires and expression of them.

MR KOURAKIS: Your Honour referred – and sorry, I think the case has escaped me now, but your Honour made reference to certain studies, and indeed the Australian Law Reform Commission Report on the confidence with which repetition of criminal conduct can be predicted from past conduct or from some sort of state of mind. But the general findings were that there was a higher degree of correlation in predicting behaviour when there was a situational similarity between the events and the offences. Of course, your Honours, these cases are just that. It happens in the same home in the same room between the same people within short spaces of time. So, again, it naturally just has this high probative value as a matter of common experience but also supported by some of those very studies.

KIRBY J: You also get cases where, as in the case of Chief Judge O’Brien, the complainant admits that she hates her parent and therefore there can be complex motivations in this.

MR KOURAKIS: Yes, your Honour, and the jury would not have any difficulty in understanding that that could be an expression of what had occurred or it could be the motive for fabricating her evidence. That is very much a jury question. There is no reason not to have faith in juries to determine these matters of human affairs. It is perhaps one of the strongest arguments in support of juries hearing these matters.

Your Honours, can I say this. Having made the submissions about evidence of sexual attraction, can I say that in many cases it will not arise as a practical matter. Where the only evidence is the evidence of the complainant, it is completely artificial to speak about the jury considering whether or not they are satisfied that there is evidence of sexual attraction or whether there is evidence of sexual attraction and then using that in deciding whether to accept the complainant’s evidence on a particular account.

If it is just the complainant’s evidence, uncharged acts and charged counts, the most natural thing to do is for the jury to look at them all together and decide whether they can accept the complainant beyond reasonable doubt. That is most likely to be the reasoning process. Because of the artificiality when all the evidence comes from the same source in inviting the jury to ask themselves whether they accept the uncharged acts first so that they can then reason from attraction, is a reason why in many cases it will not matter and why the direction need not be given. Where it is extremely important is where there is corroboration of the uncharged act by an independent person. A family member sees the father coming out of the room dishevelled.

There it is important because there it may be very important to tell the jury, well, you may first consider, given that we have this independent evidence, whether or not the other offending was occurring, what inference you might make about sexual attraction and how you might use it. Your Honours, where that independent evidence is open, not only is it a practical reasoning process, that independent evidence is corroboration, corroboration, the cases collected in Chamilos tell us, not just of the course of conduct but of the actual offence itself. The reasoning process which makes it corroboration is this.

A series of other offences is alleged. It is confirmed by independent evidence. The attraction that can be drawn from that series of other offences is in itself an item of proof independently arrived at which supports the complainant’s account on the charged act. Why does it support it? Because evidence of sexual attraction, independently confirmed, is relevant to the act in question, and that is the effect of the authorities there collected. But absent that independent evidence as a practical matter, the direction about attraction is unlikely to arise and for that reason, evidence can be admitted, we say, as context without any need to address them on sexual attraction.

GLEESON CJ: I am puzzled by your suggestion that there might be a case in which there is no corroboration of a charged act and corroboration of an uncharged act. Why would they in that situation not charge in relation to the corroborated act? Do you have laws in South Australia concerning directions to juries about presence or absence of corroboration in sexual matters, or is that “verboten”?

MR KOURAKIS: No. Your Honours, Mr Hinton or Mr Kimber may be able to help you with that. I do not think there are any special requirements now with respect to that and I think they have been forbidden, but that would not be the reason. It might arise at the time when time limits were around, it might have arisen for there, and that is indeed the source of the line in Chamilos. It might arise because the occurrence on which this was seen cannot be particularised sufficiently, some doubt about the date. It might arise for all sorts of practical reasons.

Leaving that aside, your Honours, it will arise more commonly where there are a number of counts, and your Honours will remember I made the point that this issue, this same issue of principle, arises when one talks about cross-admissibility between counts. So it may well arise where there is independent corroboration with respect to one count and the question is, can the sexual attraction inferred from that corroborated account then be used on the other counts, and it is then a very real question.

HAYNE J: The question of corroboration is dealt with by section 34I(5). We looked at it yesterday.

MR KOURAKIS: If your Honour pleases.

HAYNE J: It abolished the general rule.

KIRBY J: Are there any prosecutorial guidelines that we should be aware of?

MR KOURAKIS: In which respect? In charging?

KIRBY J: In South Australia in respect of charging.

MR KOURAKIS: Your Honour, there certainly are and there are a number of tests, reasonable prospects tests, but a number of other rules - - -

KIRBY J: Are they public documents?

MR KOURAKIS: Your Honour, they are.

KIRBY J: As in New South Wales?

MR KOURAKIS: Your Honour, they are published. To what extent they are published and whether they are on the Net, as the New South Wales ones are, I do not know. I am told that they are available on the Web.

GLEESON CJ: They have to be public because people would use them to make no bill applications I presume.

MR KOURAKIS: Well, yes, I do not know. Your Honours, they are my submissions on admissibility and use. I turn to make some submissions about the particular matters raised in H by Mr Game. Can I do that by taking your Honours to pages 510 and 511 of the appeal book in H.

KIEFEL J: I am sorry, what was the page number?

MR KOURAKIS: Page 510, 511. The first matter that I wish to address is the question of the purchase of the G-strings. That is dealt with at the bottom of page 510 and over to page 511. Your Honours, in my submission, this evidence was strongly corroborative of the complainant’s account and those few lines on those two pages do not give it any undue weight. Your Honours, let it be accepted that there is a dispute about the precise circumstances in which the G-strings were bought. The appellant nonetheless admitted that he has bought his daughter aged then 9 or 10 three G-strings. On that admitted evidence alone an inference can be drawn in support of the complainant’s evidence. The strength of it is purely a matter for the jury, but on that evidence alone an inference supportive of the complainant arises. If the jury went further and rejected the accused’s account and accepted the complainant’s, the strength of the inference was simply all the stronger.

The account of the appellant was that his daughter asked him to go shopping for underwear. He walked with her all through Target and the children’s underwear section and nothing was there. He then followed her without asking why none of that children’s underwear was suitable, to Kmart and they walked through children’s underwear section of Kmart and nothing was suitable and without any apparent explanation she went to the adult underwear section and asked him to purchase the G-strings. Although he himself appreciated that they were a risqué, to use his word, thing to purchase for his daughter, on that account, his admitted account, an inference arises and the passages there do not overstate it. In fact, I think Mr Game said that it did not take the case forward. A good argument could be made to a jury that it inexorably drove the case towards guilt.

HEYDON J: If you are wrong about that but nothing else, can the proviso be applied? Do you rely on the proviso?

MR KOURAKIS: Most certainly, your Honours, and I would. Now, the next question, your Honours, is on the onus of proof and that passage appears at page 511. From line 20 it is complained that the word “satisfied” does not convey to the jury satisfaction beyond reasonable doubt. Alone the word “satisfied” might suggest the civil onus only. Your Honours were taken yesterday to page 499 of the appeal book by Mr Game where the direction was given that wherever his Honour used the word:

‘proved’ or ‘satisfied’ or ‘established’ or ‘accepted’ or any other sort of word, what I always mean is proved beyond reasonable doubt.

Now, your Honour, that direction is commonly if not universally given in South Australia. The words “beyond reasonable doubt” are not repeated every time after the word “satisfied” is used. The Court of Criminal Appeal in South Australia has never held that this device alone is unsatisfactory or leads to a miscarriage and it is often given. Experienced counsel do not ask for the words “beyond reasonable doubt” to be inserted throughout the judgment and, in my respectful submission, there is absolutely no reason why juries cannot be credited with understanding what that paragraph says.

KIRBY J: Only the reason that Justice Debelle twice stated and that Justice Bleby and Justice Sulan and the Chief Justice in an indirect way state that you need to say these things clearly, not leave it to a logical process that may not be the way ordinary lay jurors work.

MR KOURAKIS: Your Honour, those comments did not in any way cast doubt on the jury. In fact, they assumed that the jury would understand “satisfied” when it was used in reference to other offending to mean “satisfied beyond reasonable doubt” precisely because of the procedure that has been adopted in South Australia of giving that explanatory passage at the commencement - - -

KIRBY J: That is very much a lawyer’s way of thinking, I am afraid. We define it this way. That is the dictionary. Therefore, thereafter lay jurors are expected to think in that way. The word “satisfied” normally conjures up to the ordinary mind, I would think, and I will look it up in five dictionaries, being persuaded, civil standard.

MR KOURAKIS: I do not know that it would mean – in fact, your Honour, I doubt very much that it would invoke any thought of what lawyers call “civil standards” to juries. Juries will have only heard about the criminal standard unless there is a reverse onus case, and they have that introductory paragraph.

HAYNE J: You confine your attention to South Australia. You might want to open your eyes a bit and look beyond it, because I rather suspect that the practice you describe may be used elsewhere. I would be assisted to know whether that is so.

MR KOURAKIS: If your Honour pleases, I will provide a note if I can have leave on that very question. Now, your Honours, in that very passage, leaving aside the fact that the word “satisfied” has, for reasons I have just advanced, the reference back to the earlier passage, in that very paragraph the judge then refers to “satisfied beyond reasonable doubt”.

Mr Game’s complaint about that is that the jury would have adopted the approach of expressio unius est exclusio alterius and would have immediately realised, listening to this but not reading it, that a distinction was being drawn. In my respectful submission, the way in which this would have been understood is this, that as soon as they heard “beyond reasonable doubt” their minds would have gone back to the earlier passage and they would have understood that the word “satisfied” in that passage wherever it was used was being used in the way in which the trial judge had foreshadowed.

KIRBY J: Why not make that clearer by saying to the jury, hereafter referred to as beyond reasonable doubt? I mean, it just does not seem to me, I do not know, of course, but it does not seem to me to be the way lay people think. It is very much a lawyer’s way of thinking by reference to a dictionary.

MR KOURAKIS: Yes. Well, your Honour, in my respectful submission, there is no reason to suspect a miscarriage here. Juries can be credited with having properly understood that.

KIRBY J: It is a bit like the use of the word “discrete”.

GLEESON CJ: Mr Solicitor, I am afraid I still do not understand your argument on this point in relation to the question of principle. I understand what you put about this particular summing up, but as a matter of principle I think you said in many cases the question of standard of proof of the uncharged acts does not matter because realistically the jury will look at both of them together.

MR KOURAKIS: Yes.

GLEESON CJ: That is a pragmatic observation.

MR KOURAKIS: Yes.

GLEESON CJ: Then you said where it matters is where one of the uncharged acts is corroborated.

MR KOURAKIS: Yes.

GLEESON CJ: But as a matter of principle, and this if I may say so is I think an issue that Chief Justice Doyle left unresolved in the case beginning with N, did the trial judge in this case have to tell the jury – and I know you say he did tell them – but did he have to tell the jury that they may not act upon the evidence of the uncharged acts unless they accepted beyond reasonable doubt that those acts occurred?

MR KOURAKIS: Plainly not. Your Honour, my earlier submission was simply that the question of sexual attraction use would not arise practically. I did not mean to make a submission about onus of proof. In my submission, it is not necessary to tell the jury in either of the uses, context or sexual attraction, that they must be satisfied beyond reasonable doubt about that evidence before they can use it in evaluating the evidence on the charged counts.

GLEESON CJ: Your submission is that if this summing up means what you say it means, it was unduly favourable to the accused?

MR KOURAKIS: Precisely, and Mr Hinton will make our submissions on why that direction did not need to be given.

GLEESON CJ: I just wanted to be clear about that.

MR KOURAKIS: Yes.

KIRBY J: A great inducement for the Crown to charge as few charges as possible and toss all the others in as uncharged acts because you have to prove the charges beyond reasonable doubt, the judge has to instruct that and the uncharged acts, well, they just slip in under the radar.

MR KOURAKIS: Your Honour, I just do not accept that any prosecutor would frame the charges in an information on that basis and I do not accept that it would even act as an inducement, with respect.

KIRBY J: Well, you do not accept it but we have got to make sure it does not happen.

MR KOURAKIS: Your Honour, if in any particular case it does, it can be dealt with and by other means, but the factors which affect which matters are charged are those that I adverted to before lunch.

KIRBY J: Can you see any particular harm that would be done in sexual cases where this problem arises so many times, and we have seen it in this Court many times, in the Court saying that all the allegations have to be proved beyond reasonable doubt?

MR KOURAKIS: Yes, there is a great harm in that in that it denies the jury the natural and logical common sense way of properly evaluating evidence for no good reason. I have made reference to the inductive reasoning process which has been well recognised dating well before Martin v Osborne but well articulated there, well explained with respect by his Honour Justice Wells in Sutton, and the way in which circumstantial evidence is used. Reasoning inductively is there explained, the requirement that one strand of a circumstantial rope be proved beyond reasonable doubt before it can be further taken to account. That requirement is simply inconsistent with that logical reasoning process and quite unnecessary for any purpose.

KIRBY J: As against that, many of these cases come down, as Robinson and Tully and these cases, mostly, to oath against oath, complainant against accused and very long sentences are imposed upon conviction.

MR KOURAKIS: Yes, your Honour, that is a consequence, and if it is a consequence of a proper and logical evaluation of the evidence, so be it. In my submission, there is no - - -

KIRBY J: It is in the context of a criminal trial.

MR KOURAKIS: Yes.

KIRBY J: Where the normal rule, at least as far as the charged offences, is beyond reasonable doubt. Why not have it as a general rule in this class of case? That is at least what Chief Justice Doyle seems to think should happen, but he does not ultimately come to the barrier.

MR KOURAKIS: Your Honour, the reasoning process whereby the jury consider the evidence of the uncharged acts, consider the evidence on the charged acts, is one where the jury in looking at both will assess the degree to which all of that evidence is internally consistent, inherently plausible, fits in with other evidence. There is just nothing about the nature of the evidence that would appear to compromise that ordinary process that a jury would undertake.

Your Honour, the other question that arises is this. It would be probably quite unexceptionable if the only requirement was that before convicting the jury – well, it would not be as exceptionable at least – if before convicting, the jury had reached the state of mind where it was satisfied beyond reasonable doubt of both the charged offences and the other offending, and that might very well be the natural process of inductive reasoning that leads to that – and his Honour Justice Wells explained that better than I can in Sutton – but it would be, in my submission, inconsistent with that process to require the jury to be satisfied beyond reasonable doubt of the other offending before they could even use it at all in the process, before they could put it into the scales, as it were. But if the jury were to be told “Look, at the end of the day you should have reached a satisfaction of beyond reasonable doubt on the evidence as a whole” that might not be objectionable, although it would have - - -

HAYNE J: How would it sit with the direction given at 499, line 40 and following which is given in every criminal trial, namely, you hear the evidence of the witness, you can accept bits of it, you can reject other bits of it, you can be left unsure about other bits of it?

MR KOURAKIS: Yes. Your Honour beat me to that. Your Honour is quite right, that is the further caveat that would have to be put on that reasoning - - -

HAYNE J: It is not a caveat. It is where you start. It is the premise, that you do not treat a witness’ evidence as necessarily a single piece of information. The jury’s task is much more discriminating than that.

MR KOURAKIS: Your Honour, that is absolutely right, and that will be particularly important where there is other evidence and - - -

HAYNE J: No, it is not. Let it be assumed that the complainant is the sole witness. The jury at the end of the trial may well be persuaded beyond reasonable doubt that some of the offences are proved, others are not. They may be left in a state of uncertainty about the complainant’s description of other events. They may be left with a very firm view that the complainant, for whatever reason, has exaggerated those other events beyond measure.

MR KOURAKIS: Yes. If your Honour pleases, that is quite right, and they might be satisfied of the complainant’s evidence on the charged counts, as your Honour has - - -

HAYNE J: Or some of them.

MR KOURAKIS: Yes, as your Honour has observed, not being satisfied on the other counts or even rejecting them. That is possible. That is why the submission I made a moment ago that the direction might be given and that if they were to convict they would have to have been satisfied that all the other evidence was wrong.

Mr Solicitor, the bottom line of this is until you sit down and write out the direction that you are going to give the jury, the argument is left at a level of abstraction which invites error. It invites error because of the adoption in your submissions of a series of boxes which are proffered as though they are watertight boxes. Would that life were so simple.

MR KOURAKIS: Your Honour, that is plainly right, and directions will have to be modified to meet particular cases from time to time, but approaching a problem by attempting as best one can to identify a system, a taxonomy if you like, is at least an organised start to a difficult problem. But nothing in our submissions, especially those submissions that Mr Kimber will attend to in a moment, should be taken as suggesting that directions are written in stone. Much has been said about the undesirability of straitjacketing trial judges in that respect. Nothing that I have said or that our submissions cover should be understood in that way.

Your Honours, returning to the question of the directions, conveniently now that your Honour has raised that, in my submission the directions as to the use of the evidence set out at pages 510 and 511 of the learned trial judge adequately explain, in what was a relatively short case based mostly on the evidence of the complainant with some other evidence such as the G-string evidence to which I have referred – explain the use of the evidence. Your Honours will see at about line 48 the paragraph that refers to the further use of the evidence of uncharged acts and what is referred to as the confidence of the accused to ask for oral sex.

That is a contextual use that has been referred to in the cases and can be understood simply in this way. If an account was given in a vacuum of the accused simply coming into the child’s room committing an indecent assault it might be thought unlikely that a father would risk that conduct within the family home. But that improbability is much reduced if it is known that he has been able to do it without any effective complaint in the past. That is the reference to confidence in that paragraph – a completely proper, appropriate, contextual use.

Line 60 - I have already said much about the use of other evidence to show why there has been submission. The paragraph at the bottom of the pages – sexual attraction – I have dealt with. Finally, on page 511 the absence of any complaint is also left to the jury. Then a negative warning against improper use is given in a completely orthodox way from line 40 at page 511.

GLEESON CJ: Mr Solicitor, reference has been made earlier to the Evidence Act provisions – I think it is section 136 – about limiting the use of evidence.

MR KOURAKIS: Yes.

GLEESON CJ: In South Australia, where the common law of evidence applies, subject to some statutory provisions, is there any problem about limiting the use of evidence?

MR KOURAKIS: No. In my submission, no. The common law principle is that evidence, once admitted – the position is this. Evidence, once admitted, is available for use in any of the permissible ways, given what was proved.

GLEESON CJ: But you might have to explain to the jury what the permissible ways are.

MR KOURAKIS: Yes.

GLEESON CJ: Hearsay evidence, I would have thought, or evidence that is potentially available for a hearsay use, would be an example of that.

MR KOURAKIS: A very good example, with respect. Then there is other Evidence Act provisions like business records or other matters which might be subject to similar directions. Complaint evidence is another good example of the way in which it can be used confirmatory of the credibility of the evidence, but not as to the elements themselves. It is commonplace and it can be done.

Your Honours, finally there is the question of the evidence - of the failure to allow evidence to be led concerning the fact that the Victorian Police had not charged the appellant with the other conduct in Victoria. That seems to be supported on the basis that to say, “I have not been charged with these offences in Victoria” is evidence of good character or to ask a police officer, “Has he been charged?” is evidence of good character. In my submission, it is not. It is simply evidence of the opinion of someone, probably a police adjudicator other than the policeman being asked, that there was either no reason to or no basis to charge at that time in Victoria, but that is not evidence of good character.

KIRBY J: Again, I wonder if that is not a way a lawyer thinks as distinct from a lay person. Mr Game says the jury is told “Do not speculate about that. That sounds ominous. Must not speculate. He has been charged in respect of the South Australian offences. Maybe the judge has told us not to speculate because he has been charged and convicted and we know that we are not supposed to know of convictions outside this case”.

MR KOURAKIS: Your Honour, it is the way the lawyer thinks because at this stage I am just addressing the question of whether it was admissible as good character evidence. On the question of the speculation, the first submission I make is that there is no rule of evidence that says that evidence otherwise inadmissible becomes admissible to avoid jury speculation. There is just no such rule. The second answer I make to that is that the danger from such speculation is, with respect, remote. The jury are told not to speculate. Your Honour I think in KRM observed that it is a fundamental principle of our law that it must - - -

KIRBY J: I know it is the fundamental principle, but I am just raising the question of whether it is a safe principle.

MR KOURAKIS: In my submission, it is the principle and it is to be applied and for that reason there is no reason to think - - -

KIRBY J: But in the facts of each direction in each case.

MR KOURAKIS: Yes, and that is the question here, that the direction is clear enough. The jury are told what they have to decide and what the evidence is available to make that decision. They ought to be credited with attending to their task and, in the face of a warning against speculation, it is difficult to see why they would spend any time thinking about it at all.

Now, if the Court pleases, finally her Honour Justice Vanstone dealt with these questions from pages 541 of the appeal book and 542 and for those reasons too we say there was no miscarriage in this case on that ground. If the Court pleases.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Kimber.

MR KIMBER: If the Court pleases. Can I deal with a question that arose not long ago with respect to the direction required in South Australia as to corroboration. Under section 12A of the Evidence Act there is no rule of law or practice requiring a direction as to corroboration. Can I deal with a question that your Honour Justice Hayne raised not long ago. The respondent does not suggest that there should be a precise formula for the directions that are given when uncharged acts are admitted but what the respondent does suggest is that proper directions as to permissible use or uses will identify the uses given the particular facts and issues in the case, because that will help the jury in order to resolve the issues in the case, but also it acts as a further guard against misuse of the evidence.

In directing a jury as to the permissible use or uses of the evidence of uncharged acts, labels should not be used because labels will tend to obscure what it is in the facts in issue in the case that the uncharged acts go to. Labels can be helpful and are often spoken about in terms of, well, how is the evidence admissible? Background, context or relationship? But, in the respondent’s submission, to use those terms to a jury and to say no more to a jury than this is part of the context and off you go and now decide whether the elements of the charges are proven, will only obscure from them what is it about the context, what is it about the relationship that is going to help me with the facts in issue in the case.

It is for that reason that the respondent submits in the course of its outline that while Vonarx, for example, is not inconsistent with the approach taken by Chief Justice Doyle in Nieterink, it is, with respect, not nearly as helpful as the approach that his Honour Chief Justice Doyle identifies because Vonarx talks, speaking generally, about it is evidence of the relationship and it is evidence of the context, but what is it, the respondent asks rhetorically, about that relationship, about that context, that is going to help the jury resolve the issues in the case?

KIRBY J: This is the third time you have used the word “help”. I am beginning to think this is an example of the old joke, “I am from the government. I am here to help you”. I mean, there is some help that the jury also needs to be reminded that this is a very solemn and serious business and that they are concerned only with the charges and that these other matters that are brought in are only there to assist in deciding the charges that you have brought against the accused.

MR KIMBER: Indeed, and nothing that I have submitted is meant to suggest otherwise. The authorities both in this Court and intermediate appellate courts recognise clearly that there is a risk with this evidence and the risk with this evidence is its use for mere propensity. But the authorities also recognise that that can be guarded against and, as the respondent has set out in the outline, it is guarded against potentially in three ways; first, by giving directions as to the permissible uses of the evidence and, in my submission, they should be more than just labels. They should be an examination of the issues in the trial and then an identification of what it is that the uncharged acts will assist the jury with.

The other two aspects of appropriate directions that have been identified, but have not been identified as mandatory, are directions as to non-propensity use and also non-substitution. It is important to recognise that those two directions, non-propensity use and non-substitution, are not the same thing because there is a risk in cases like this that there might be three charges on the information and a long series of uncharged acts, that the jury will substitute the uncharged acts for a charged act. That is why a direction against non-substitution can be important, but it is only ever an addition to the direction given in the case, in any event, that you must be satisfied beyond a reasonable doubt as to the elements of the offence.

It must be, in my respectful submission, that it is the directions as to the permissible use or uses of the evidence that are the most important. That is so because, strictly, if those directions are given and they are accurately given and a jury are told “This is the only purpose or purposes for which you can use this evidence”, then there will not be a risk of a miscarriage because a jury are assumed to follow the directions that they are given as to how evidence can be used. We have heard already one example of that; hearsay evidence that comes in for a permissible use but also has an impermissible use.

Directions as to lies are another example. Lies are sometimes told by an accused and are proven to be so, but they are not always left to the jury in the summing up as consciousness of guilt. Indeed, in many instances they are left simply as going to credit and strong directions are given, for example, “If you find the accused has lied, you can only use that as assessing his credit or his credibility”. In my respectful submission, in that case the jury are assumed to act on that direction and to not go beyond the use for credit purposes and reason from consciousness of guilt.

GLEESON CJ: But I suppose a clear example from the other side of directions as to the use that may be made of evidence is directions in relation to the use of good character evidence because that is what Murphy’s Case was about.

MR KIMBER: Yes.

GLEESON CJ: The jury have to be told that that is to be used not only to assess the credibility of the accused, but also to assess the probabilities that he would have committed this offence.

MR KIMBER: Indeed, but in that example they are given a direction as to the two parallel, for want of a better term, ways, relevances of the evidence but, in my respectful submission, that will not alter the fact that you can give directions about evidence that has a risk of misuse that will bring the jury back to using it only for the permissible uses which have been identified and that the judge accepts should be the subject of directions. I mentioned earlier the importance - - -

KIRBY J: Do you know if there has been empirical research on jury response to uncharged acts? There has in recent times been quite a lot of research on jury reasoning in that South Australian case about lies – Zoneff, I mentioned the New Zealand research into this. But do you know of any research on this subject?

MR KIMBER: No I do not, your Honour.

KIRBY J: We go on talking about it, but there may be some empirical - - -

GUMMOW J: Those behind you do. First ask of a barrister is to have eyes in the back of your head.

MR KIMBER: Yes. It seems I might get a note or an article, but not to my knowledge – at least for the moment until I am handed something, your Honour, is the simple answer. I mentioned earlier the importance of - - -

HAYNE J: I think you will find in the American material there is reference to jury research.

MR KIMBER: Thank you, your Honour.

HAYNE J: You may start with Imwinkelried’s book.

MR KIMBER: Thank you, your Honour.

HAYNE J: Which is not easy to find in Australia, but it is about - - -

KIRBY J: And do not please forget the request earlier to Mr Game. It goes to everybody if there is any academic writing on the problem we have. I at least would like to read it.

MR KIMBER: Thank you, your Honour.

KIRBY J: And will look for it.

MR KIMBER: Thank you, your Honour. In my respectful submission, it is these issues – that is, that there are a number of different reasoning processes for uncharged acts under the umbrella of context, and also that it is of assistance to the jury and protects against misuse that other precise points that are made by Chief Justice Doyle in Nieterink.

In my respectful submission, if it is, given the particular facts in the case, that the uncharged acts go particularly to issues such as the failure to complain, the brazenness of the accused’s conduct, why the complainant might have submitted to what seems an unlikely act to submit to, then the jury should be told those things. It is not a list of things that is to be disparagingly referred to as a shopping list. What it is is identification of the issues in the trial that the evidence relevantly goes to and therefore provides the jury with assistance about what everyone seems to accept is controversial evidence.

KIRBY J: Well, I hate to be unpleasant about this, to introduce something that is across the bows of your help, but it introduces potentially very prejudicial material against the accused outside the matters of which he or she is charged. Very prejudicial and very vague, very difficult to answer, and as we learned today in the third case, the application, coming in the midst of the oral evidence on the run, of which there was no real proper notice.

MR KIMBER: I do not submit that there is not a risk of misuse.

KIRBY J: It does not sound like help to me.

MR KIMBER: I do not submit that there is not a risk of misuse for mere propensity, a number of cases recognise that, but equally it has to be recognised, as the Solicitor-General has said, that it is highly probative evidence. The present question is, is it possible once a decision has been made that it should be admitted to give directions about it that keep the jury on the proper path as to how the evidence can be used in a permissible way. I used the word “help” because directions have to be given as a matter of law, but they are designed towards helping the jury arrive at a proper verdict in the case.

GLEESON CJ: Is there any statutory provision in South Australia about directions to juries?

MR KIMBER: No.

HAYNE J: Just on the question of academic writing, Edward J. Imwinkelried is a professor of law, University of California at Davis.

MR KIMBER: Thank you, your Honour.

HAYNE J: It seems that Professor Imwinkelried’s life work is uncharged misconduct evidence, both in the form of a text and many articles. There is a raft of material in the United States on the subject, but most of it has to be approached with the care that it depends upon Rule 404 of the Federal Rules of Evidence or equivalent state provisions and is essentially statutorily based. Now, I gave thought to whether the parties should be referred to any of the material I looked out and in the end decided, no, because it is one step removed, but they are the sources you are going to have to look at.

MR KIMBER: The other point that I seek to make about Nieterink in the context of directions is that extracted in the respondent’s outline, and indeed referred to in the submissions of Mr Tokley, are the number of uses that Chief Justice Doyle identifies in the judgment for which this evidence can be admissible. It is important to recognise, in my submission, that there is absolutely nothing new about those uses that he identifies, failure to complain, submission, sexual attraction and others. In footnote 146 of the respondent’s outline are extracted references from judgments, both of this Court and other intermediate appellate courts, setting out that uses such as those have been used over a long, long period of time.

For example, in the Stevens directions, part of the directions was background to prevent the evidence of the complainant being unreal or unintelligible. That is something that has been referred to with approval on a number of occasions in more than one judgment of your Honour Justice Hayne, but that use of the evidence goes back at least as far as I can ascertain to a case of Gellin in the New South Wales Court of Appeal in 1913 and in the State Reports for that year.

GLEESON CJ: Well, that is a kind of completeness concept, is it not?

MR KIMBER: It is, it is, quite different from sexual attraction in the way the Solicitor-General set out in the course of his submissions. It is what might be called - - -

GUMMOW J: Where is the citation of the 1913 case?

HEYDON J: Footnote 146 does not - - -

CRENNAN J: Footnote 146.

MR KIMBER: [1913] NSWStRp 22; (1913) 13 SR (NSW) 271, I think.

GUMMOW J: Whereabouts in your submission?

MR KIMBER: In my submissions?

CRENNAN J: Footnote 146.

MR KIMBER: Judgments of this Court have not had to consider as a central issue in the appeal the dispositive directions to be given as to the uses of uncharged acts. But what a number of cases have referred to, and as I have referred to in paragraph 77 of the respondent’s outline, is that there are a number of judgments in this Court which have recognised the need for careful directions to which the evidence can be put. In my respectful submission, that is all, in essence, that Chief Justice Doyle and other judgments of intermediate appellate courts say.

Can I turn to the warnings against misuse. As I hopefully identified at the outset, these do not assume the same importance as the directions as to permissible uses of the evidence and I say that for two reasons; these are the directions against propensity reasoning and directions against non-substitution. On one view of it, the direction against non-substitution is simply another way of saying it is the elements of the offences that have to be established beyond a reasonable doubt. The propensity warning is obviously commonly an important warning to be given but, in my respectful submission, to date there is no universal rule that a propensity warning has to be given in cases such as this. Indeed, that question was covered in great detail in this Court in KRM v The Queen.

Each of the judgments in KRM v the Queen set out that there could be or was no universal rule for the giving of a propensity warning. I do not make that submission to suggest that such a warning should not commonly be given but, in my respectful submission, if it is the case that clear directions are given as to permissible use and there is a further direction that what I have just told you are the only uses to which you can put that evidence, then the necessity for the non-substitution and the non-propensity warning will not assume the same significance.

GLEESON CJ: In a case where the uncharged acts all relate to conduct towards the complainant and conduct of the same kind as is the subject of the charged acts, there may be an air of unreality about the propensity warning in this sense. What the jury are likely to take from the uncharged acts is something far more probative than that this is a bad person who has fallen into bad habits. What they are likely to take and what they are going to be invited by the prosecution to take from the uncharged acts is that this accused has this particular attitude towards this complainant.

MR KIMBER: Indeed, and that brings me to two submissions. The first is that it illustrates in a sense, with respect to your Honour, why the non-substitution warning might almost be of more importance than a non-propensity warning because there is a risk that, if you have say three charges on the information and there are 1,500 other acts, as there apparently were in the case of O, the risk really is that the jury will not pay heed to prior inconsistent statements, for example, with respect to a particular count or will not pay heed to a particular issue directly relating to that count and it will just say, well, I will substitute my finding that he plainly committed a number of other offences.

So there is a sense in which it is the non-substitution warning which is perhaps even of more importance than the non-propensity warning. But certainly that was not something that happened in O, that is, substitution across from the 1,500 counts, because the jury acquitted of count 1 and so one assumes in that case, although it is really for Mr Hinton to make the point, that they followed the directions as to how the evidence could not be used.

The point that your Honour the Chief Justice raises brings me to the point of what direction do you give as to use and impermissible use when you use the evidence for sexual attraction if you accept the argument of the Solicitor-General that that is a propensity use of the evidence although not reasoning directly to guilt? In my respectful submission, it might be appropriate to give a two stage warning, if you like, to identify context uses for them to use if they see fit and to warn against propensity and substitution arising out of the context uses of the evidence, but to warn separately with respect to sexual attraction and direct them as well that they should not assume simply because a state of mind and attraction existed on an uncharged occasion or occasions, that it necessarily existed on the occasion of a charged act and do not assume that if the relevant accused had that sexual attraction at some other time that he necessarily acted upon it on the other occasion.

GLEESON CJ: There is a lot of evidence admitted in ordinary criminal trials that reveals propensity but that does not attract a propensity warning. For example, in drug cases the presence of paraphernalia is commonly the subject of evidence and it is relied upon to support an inference that this person was manufacturing drugs or dealing in drugs, so he had the gun and the scales and the white powder and so forth, but I do not think that that usually attracts a warning to the jury not to regard that as evidence of general propensity.

MR KIMBER: In my experience it does not. It is seen as a piece of circumstantial evidence that can inform the jury as to the facts or facts in issue in the case and does not attract such a warning. In my respectful submission, and I have really touched upon this already, there is no inconsistency between the approach of Chief Justice Doyle in Nieterink and the approach of the Victorian Court of Appeal in Vonarx or Pearce or any other cases in that State, and I have analysed that in the course of the written submissions of the respondent. Can I just make these points. Both the Victorian cases an Chief Justice Doyle, as is recognised in other jurisdictions, recognised that it is evidence of the relationship as a sort of label or umbrella term. All that Chief Justice Doyle does is identify what it is about that relationship that can inform the jury in a permissible way as to the facts or facts in issue or that are commonly issue in the case.

In my respectful submission, were the Vonarx direction given, if I can call it that, sexual attraction and context, but the jury would have come back and ask a question, “We have heard the prosecutor say that the uncharged acts can be used to explain why she might have submitted, but you have not directed us on that. Can we use it for that purpose?”, it would not be suggested, in my respectful submission, that the trial judge would say, “No, you cannot. I remind you it is just context and sexual attraction or sexual relationship.” So, in my respectful submission, if you use general terms you obscure from the jury the purpose for which it can be used and you leave them to roam around and arguably get closer to using it for an impermissible propensity purpose.

Can I also make these points, without taking the Court to the authorities, as to why it is inappropriate to conclude that the approach in Vonarx or Pearce is relevantly any different. As the Solicitor-General pointed out, his Honour Justice Tadgell in Pearce purported to rely upon Vonarx in saying that there was only a single use for the evidence, but as can be seen from paragraph 15 of the Vonarx judgment, the court in that case had identified two uses; what might be broadly called sexual attraction and context.

Justice Tadgell’s comments in Pearce that there was such a single use has subsequently been held in another judgment, R v Loguancio, not to be of universal application. I direct the Court’s attention particularly to the judgment of Justice Callaway with whom Justice Tadgell agreed. Justice Callaway in Loguancio identified a number of other cases where other uses other than a single use and a direction to that effect had been identified. One of the cases that Justice Callaway identified was a case of the R v J or Josifoski [1997] 2 VR 68. Without taking the Court to that case, Justice Southwell at page 77 identified the number of permissible uses of uncharged acts in really precisely the same terms as Chief Justice Doyle had identified; unnatural passion, lack of complaint, confidence of the accused and to prevent the evidence being unreal or unintelligible.

Justice Smith, at page 80 of that same judgment, also identified about from memory five uses of a similar nature. So, in my respectful submission, it is not accurate to say that the Victorian approach is that there is just one use of this evidence. It would be illogical to draw that conclusion but, more importantly than logic perhaps for the moment, it is completely inconsistent with judgments of other courts in that State.

The final point that I make about the submission that Vonarx suggests just a single permissible use that can be identified for the jury is that it that were so, that would put the Victorian Court of Appeal completely out of step with the balance of the country because, as the Solicitor-General illustrated in Wickham, your Honour the Chief Justice identified two uses, what can be called the context use and the sexual attraction use. Indeed, your Honour said you were not identifying a complete list of the uses in that case. In Beserick, the judgment of Chief Justice Hunt at Common Law, at page 515, exactly the same, context and sexual attraction. In Western Australia in the case of Kailis, which is on the respondent’s list of authorities, Chief Justice Malcolm quoted at length from a judgment of Hardingham in which another member of that court had identified similar uses that Chief Justice Doyle identifies in Nieterink for the use of the evidence.

Can I go then to the particular directions and the particular ground of appeal in the case of Stevens and the respondent’s submissions with respect to the appeal commence at page 40 of the outline and paragraph 96. As the Court knows, the directions as to the uncharged acts commenced at the very top of the appeal book page 325 and went over on to the following page. There cannot be any doubt that these were directions of law because the learned trial judge told the jury, on the second line on page 325, that it was necessary for him to direct them as to that evidence and later at 331 at line 2 he gave a further direction with respect to the uncharged acts, a delay warning with respect to that aspect of the evidence and he reminded them of the direction that had been given.

That direction came against the background of what the learned trial judge had said at the very commencement of the summing up at page 305. At about line 20 on that page he told them that the jury were required to accept his directions as to questions of law. There was of course no objection to the admissibility of the evidence and no complaint about the directions that were given at any point during the summing up or at the end of the summing up.

As the Court was taken to yesterday, the directions of the learned trial judge identified two permissible uses of the evidence and he referred to them as discrete matters, but he went on in that same sentence to say that they were the only way that the evidence could be used. That is at the bottom of the appeal book at page 325. He told the jury that it was potentially helpful in evaluating her evidence in going to context and that it was background that prevented her evidence from being unreal or unintelligible and there is a sense in which really the second use was just a repeat or the same sort of use as the first. But with respect to the context and evaluation of evidence use, the first use put by the learned trial judge, that is a use that has been referred to with approval in a number of judgments.

It is really the use that the Court of Appeal were talking about in Vonarx at paragraph 22. It the sort of use that Chief Justice Hunt at Common Law was talking about in Beserick and it is really precisely the same direction as was given in the case of R v AH (1997) 42 NSWLR 702, which is a case on one of the appellant’s list of authorities. Justice Ireland identified at page 708 at about E on that page that that was an appropriate use of evidence of this type.

The second point that needs to be made about the direction there is that the risk of misuse that is commonly talked about is the misuse of a propensity purpose but there is nothing in the direction as to how the evidence that could be used that could possibly suggest use for propensity reasoning. Indeed, Justice Callaway in Loguancio at paragraph 14 said that context was not a term that was likely to be prejudicial to the accused at trial.

The second paragraph of the direction mentions background and background is of itself a term that has been criticised. For example, Chief Justice Doyle in Nieterink said it was not an error to use that term but that it was arguably unhelpful and Justice Callinan expressed concerned about the use of that term both in Gipp and in Tully. But what needs to be recognised is that it was not left just as background. The learned trial judge explained what he meant by background by saying it prevented evidence becoming unreal and not fully comprehensible and, as I have already identified, that was a use referred to in the case of Gellin and it is also a use that has been referred to with approval in judgments in this Court in Gipp by Justices McHugh and Hayne at paragraph 73, Justice McHugh in KRM at paragraph 24 and your Honour Justice Hayne in paragraph 134 of the same judgment.

Quite apart from what other courts have said about the appropriateness of such a direction, factually in this case it was very much available to be used, the uncharged acts, to prevent the evidence of the complainant being unreal or unintelligible because count 1 on the information, for example, was an allegation that the appellant had sought to have vaginal sexual intercourse with her behind a tree one evening, that tree being adjacent to the house while the balance of the family were inside. She had given evidence of wiggling of the penis, kissing and then sexual touching in an escalating fashion, in my submission.

Had the jury simply heard that she had been subjected to an attempted vaginal sexual intercourse outside, they would have been likely, for that reason alone, to have doubted her account. How likely is it that a father would suddenly do that in such circumstances? But the uncharged acts properly put a completely different complexion upon her evidence, her submission, her failure to complain and so on. The uncharged acts were further relevant to the balance of the counts because they informed the jury properly as to the nature of the relationship that these two people had, that sexual activity was a feature of their relationship. That is why it could be used on count 5 - - -

KIRBY J: But this theory leaves it entirely in your camp to decide which charges will be contained in the indictment and which charges, therefore, you will be required to prove beyond reasonable doubt. That just cannot be right that you have an uncontrolled power to decide that.

MR KIMBER: It leaves the director to lay the information, but if the Court feels that the evidence that is being led in support of the charges on the information is more prejudicial than probative or acts unfairly to the accused in some way, then there is the remedy. If the laying of the information - - -

KIRBY J: The more the help that you say you want to give the jury the more they feel the need for the help, the more you should charge the individual crimes and accept the burden of proving them, not escape that irksome duty by saying, well, we will just toss them in as uncharged acts which we can prove on some undefined burden of proof.

MR KIMBER: The respondent asks rhetorically, what does one do in the case of H when the uncharged acts are committed in another jurisdiction? It cannot judge them in those circumstances. What does one do in the case of S where the allegations of uncharged acts, if I can use that global term, are imprecise and cannot be particularised?

KIRBY J: They could be particularised once the complainant got into the witness box, apparently.

MR KIMBER: I will let Mr Hinton speak to H. I am not sure if that is actually the case, but in the appeal where I deal with the facts of S, there was the wiggling of the penis, then kissing outside, and no precise identification of anything unique about any of those occasions which would have enabled a charge to be laid, and then sexual touching over the clothing, again, nothing unique about that that would have allowed a charge to be laid. The difficulty arises of the issue that his Honour Justice Hayne raised. Do we want informations that have 15, 20, 50, 60, 100, 1,500 counts on the information?

KIRBY J: Answer: no, we do not want that, but we also do not want to have it completely within your discretion as to what you will charge.

MR KIMBER: I think it, with respect, will remain within the Director’s discretion initially as to what charges are laid, but to say that is not to say that there is not a check and balance, there is not an application that can be made that evidence should be excluded as more prejudicial than probative, and there is not an application indeed that could be made that a particular information was an abuse of process.

I will move on as quickly as I can to address whether there could be a miscarriage if the Court identified that there was a problem with the directions in S, and I observe, of course, that over the page on 326 directions as to non-propensity reasoning and, in effect, non-substitution or the importance of the charges being established were the subject of directions. But there is a sense, in my respectful submission, properly in which these directions were favourable to the appellant in this case, because they did not identify uses such as, “It explains why she submitted, it explains why she failed to complain”, and things of that nature.

Also, it did not identify the concept of the accused’s escalation in the conduct, which, in my submission, as his Honour Justice Heydon pointed out, was a very powerful use of the evidence in this particular case, because there was an escalation in the conduct here. It began with the wiggling of the penis, it then proceeded to kissing, it then proceeded to touching over the clothing outside and then it proceeded to count 1.

So there was a very real sense in which what the appellant was doing was preparing her for more and more serious sexual activity. That was a powerful use of the evidence, in my respectful submission. The concept of grooming is referred to with approval by Chief Justice Doyle in the case of R v IK [2004] SASC 280; (2004) 89 SASR 406 and particularly at 415 at paragraph 48.

But equally, in terms of this escalation and this preparation argument or reasoning process that was open to the jury, cannot be found anywhere in the directions, albeit that was a powerful use, is the giving to the complainant by the appellant of a dildo. She was given that dildo, on her account, a couple of days or thereabouts after count 1, after the unsuccessful act of vaginal sexual intercourse. The giving of that dildo alone suggested preparation of her, of course, but particularly so when taken with the gradual escalation in the conduct about which she gave evidence.

KIRBY J: Remind me, was the dildo produced?

MR KIMBER: No, I think she drew a diagram of it. The allegations, of course, were some 20 years or so old, she did not claim to have kept it after she left the house. So, no, she simply drew a diagram of what she had been given by her father. Can I deal then finally with whether there is a difference between the prosecutor’s approach and the approach in the directions of the learned trial judge, and I will not spend long on this because I have dealt with it in the course of the outline I hope.

In my respectful submission, particularly in the closing address, what the prosecutor identified was context and that was, in effect, the same use as his Honour, in effect, that count 1 did not come out of the blue. But even if that is a different use, I say that there is no risk of a miscarriage for the reason I mentioned a moment ago, it was a powerful and proper use of the evidence and so if the jury did reason in that way, it was open for them to do so, but, secondly, the learned trial judge identified, as I set out at the beginning, that they were obliged to follow his directions as to the law, and the directions that he gave had to be followed. It was not the prosecutor’s comments in an address that had to be followed, it was his summing up.

Finally, can I mention briefly the directions on the onus of proof because complaint about the onus of proof finds its way into the appellant’s submissions at paragraph 75. In my respectful submission, the learned trial judge adopted what might be called the Doyle approach of give the direction at the commencement that satisfied or proved is to be taken as satisfied or proved beyond a reasonable doubt. He told them that at appeal book 308. When one looks at the directions as to the uncharged acts, he
used the terms “proved or satisfied” so he was consistent with the terminology that he used.

If it is the case that proof beyond reasonable doubt is required and the respondent does not say that it is, but if it is the case that it is required, then that is what the jury would have understood. If the Court pleases, they are my submissions.

GLEESON CJ: Thank you, Mr Kimber. Yes, Mr Hinton.

MR HINTON: If the Court pleases, if I could deal with the question of the standard of proof generally. It was either earlier this morning or yesterday that your Honour Justice Kirby posed the question, well, the price you might have to pay for the use of uncharged acts is that you have to prove them beyond reasonable doubt.

KIRBY J: I hope I was not quite as brutal as that, but it is a thought that has occurred to me.

MR HINTON: That question highlights the portion of the debate that has moved from relevance and permissible use to guarding against impermissible use. If you get to the point where you are considering adjusting the burden of proof for uncharged acts, then you have necessarily arrived at the point where you do not consider that directions can have the curative effect. The Crown’s case in all three applications is that directions can, coupled with, of course, the power, the discretionary power, to exclude.

KIRBY J: But these would be part of the directions. What you say is that the current directions are insufficient and that you are thinking of topping the directions up.

MR HINTON: In line with Mr Kimber’s submissions, yes.

KIRBY J: And in line with Justice Debelle’s dissent, although that was within a particular framework.

MR HINTON: Justice Debelle’s dissent can be read in a number of ways. One is the way in which your Honour the Chief Justice read and that was, if the evidence is so interrelated that it is impossible to separate it out, then if it is impossible to separate it out, you have to apply the same standard of proof.

CRENNAN J: I think the word “indispensable” has been used in some of the cases.

MR HINTON: But if his Honour Justice Debelle was somewhat more loose in his consideration of what was intertwined, namely, just charged, uncharged and so on, then it may be possible to separate them out in line with what your Honour Justice Hayne said about the common direction that you need not accept a witness in whole or in part. But when one comes to the burden of proof, one of course has to start with the proposition that almost invariably uncharged acts will not be an indispensable link in the chain of reasoning to guilt.

GLEESON CJ: Exactly. Burden of proof of what?

MR HINTON: Guilt.

GLEESON CJ: Exactly. Guilt of what?

MR HINTON: I beg your pardon?

GLEESON CJ: Guilt of what?

MR HINTON: Guilt of the offences charged.

GLEESON CJ: Yes.

MR HINTON: And if they are not an indispensable link in the chain, then Shepherd tells us they do not have to be proven beyond reasonable doubt. So if that is the principle, then we are creating potentially an exception. So we go back to policy reasons.

GLEESON CJ: There is an anterior question, that is, what would you be doing talking about the burden of proof of anything except guilt of the offences? Some examples have already been given in argument, but judges do not normally direct juries about the burden of proof in relation to whether somebody made an admission or whether somebody had a gun in his possession when he was supposed to be a drug dealer or whatever. The topic does not arise.

MR HINTON: There are only two exceptions to the basic principle of strands in a cable. One is where it is an indispensable link, then you perhaps do direct that that particular piece of evidence must be proven beyond reasonable doubt in order that the ultimate conclusion of guilt beyond reasonable doubt can be arrived at. The only other exception of course has been the application of Pfennig. Even though Pfennig deals with the question of admissibility, it has motivated judges to direct juries in terms of the evidence of the propensity that is then sought to be used in the context of the case as a whole, “must be proven to your satisfaction beyond reasonable doubt before it can in order that you can then exclude all hypotheses consistent with innocence”.

HEYDON J: Do you have an example of that in mind, just a name of a leading case?

MR HINTON: In South Australia or - - -

HEYDON J: Yes South Australia will do.

MR HINTON: I think the most recent example is Abisaab. In actual fact, I think it is subject of an application for special leave to this Court. It is a Sutton-type situation, a series of armed robberies, no identification, similarities except on one count the syringe that was used was left behind, DNA on the syringe, we have our man. So there the direction was with respect to the DNA itself and the identity, “you must be satisfied beyond reasonable doubt before you can use it on the other counts”.

KIRBY J: May I ask you – this has been very helpful – if in fact one is thinking about adding some requirement, why is this not conceptually analogous to the cable strands in the link to tell the jury, “You have heard this evidence of what has been called uncharged acts. If you come to the view that you want to use that evidence, then you must be satisfied on it beyond reasonable doubt (because it then becomes part of the strands in the link by which you are reasoning to guilt of the particular offence), which is the only issue before you”.

MR HINTON: So it does become a strand in the cable and if you direct a jury in the way in which your Honour Justice Kirby just put the question to me, then by giving them that assistance, you avoid the need.

KIRBY J: What would be wrong with saying you must not use it just to say he is a bad man, and if you use it for the purpose of reasoning to guilt of the particular offence, then you must be satisfied that every element, including those matters which are not the subject of specific charges, has been proved beyond reasonable doubt.

MR HINTON: One of the problems is what do you actually have to prove beyond reasonable doubt in a sex case before you can use the relationship or the tendency as propensity evidence as a strand in the cable? How much, how many acts do you have to be satisfied of where their nature changes, where do you start, where do you finish and at what point in your reasoning process - - -

GUMMOW J: In R v Gellin [1913] NSWStRp 22; 13 SR (NSW) 271 at 278 Sir William Cullen said:

conviction can never rest on the mere possibility of an occurrence taking place, yet the question, whether or not you can trust the word of the person who says that intercourse did take place, depends so inextricably upon the previous history of the relations between the parties –

Is that not the sort of metaphor that is used in the - - -

MR HINTON: Strands in the cable?

GUMMOW J: Yes, which comes from Wigmore, I think.

MR HINTON: Yes, which is consistent with what the learned Solicitor-General said. His submission, as I recall it, was that you first from the repetitive nature of the Act get an inference that there is a state of mind and from that you then get the inference of repetition. Then you take that tendency that the repetition reveals into account with all the other evidence and, in particular, in cases such as this, with her direct evidence of what actually occurred. The mere fact that there will always be direct evidence of the charge in itself shows that we are dealing with strands in a cable and not links in a chain.

GUMMOW J: That thought is picked up by Justice Debelle then, is it not, at paragraph 78 of R v M, RB, and elsewhere in his reasoning, I think, in that case.

KIRBY J: Who invented this “strands in the cable and links in the chain”? Who was guilty of this metaphor?

HAYNE J: Wigmore.

GUMMOW J: Wigmore, paragraph 73 of Justice Debelle.

MR HINTON: I am indebted to your brother Judges. Indeed it was Wigmore. Your Honour took my attention to paragraph 79 - - -

GUMMOW J: Paragraph 79, I referred you to. It goes back earlier in his reasons.

MR HINTON: It does indeed. Essentially Justice Debelle’s concern is guarding against impermissible reasoning and substitution.

HAYNE J: No. His Honour’s concern is much deeper than that, see paragraph 73, the last two sentences in paragraph 73, I would have thought. If we are going to maintain the “strands or links” metaphors his Honour sees it as a link which has to be proved beyond reasonable doubt, and it is a link because in his Honour’s view the finding that:

uncharged acts occurred or, say, that a sexual relationship existed is a very significant step towards finding the guilt of the accused, if not tantamount to a finding of guilt.

That is, his Honour sees the step as so small that you have to establish you first place your foot beyond reasonable doubt because inevitably you are tipping over to take the second step.

MR HINTON: That takes us back to his Honour Justice Dawson in Shepherd and the use of that word “essential” which your Honour pointed out yesterday. If you have two routes to guilt, if you accept in one way Justice Debelle’s approach and on the other hand you have the direct evidence of the complainant, then neither is necessarily an essential step. You have more than one way to reason.

HAYNE J: But you are in a middle ground, are we not, which needs to be articulated. You have evidence from the complainant consisting of evidence of the charged events and evidence of a number of other events, some of which might constitute evidence that would suggest criminal conduct, some of which cannot. The jury could reason to guilt without forming a view about the other events. Do you accept that?

MR HINTON: Yes.

HAYNE J: The jury could reason to a conclusion about guilt taking account of the complainant’s evidence of other events. Do you accept that?

MR HINTON: Agreed.

HAYNE J: I understand Justice Debelle to say, if they are going to take account of the other events and use that as a step in their reasoning towards guilt, they may not do so unless satisfied beyond reasonable doubt of – here comes the further question – the existence of a sexual relationship or perhaps the uncharged acts occurred, what, and there there is perhaps some uncertainty. But this puts you in a ground that is middle ground not identified in Shepherd and is different from Shepherd.

MR HINTON: And it is also, with the greatest respect, not too difficult to think of factual circumstances that do not have the degree of complication or complexity that his Honour Justice Debelle necessarily has in mind, perhaps one uncharged act and one charged, in a situation where she had sufficient fortitude to complain rather than, as is the norm in these sorts of cases, that they go on for years. We have to fashion, if we are, a rule that applies across the board and that is what makes it particularly difficult. That is, in my submission, what makes the approach of admissibility dependent upon probative value overcoming prejudicial effect coupled with directions of the appropriate way in which to proceed.

There is also, of course, the point to be made which the learned Solicitor-General made, that there is no reason to doubt contemporary juries. We trust them with lies, we trust them with flight, we trust them with motive, we trust them with recent complaint, we trust them with statements against interest; none of these things do we require proof beyond reasonable doubt and yet all potentially are extremely powerful pieces of evidence. We direct them, with respect, to lies that demonstrate a consciousness of guilt but before you can use it you have to take into account that there may well be other explanations. We trust motive, powerful evidence, we trust where lies the policy reason here not to trust them where we have done so - - -

HAYNE J: It is not policy, it is the nature of sexual attraction and the fact that you will have 12 citizens sitting in the jury box each of whom thinks himself or herself an expert in that subject. That is the distinction.

MR HINTON: For a hundred years we have trusted juries with this evidence.

KIRBY J: But this is something new. We have only had this spate of cases in the last 20 years that has led to the problem which is now before us. We cannot pretend it is not a new problem. In practical terms, it is a new problem. This is the biggest business in the criminal courts.

MR HINTON: It is a more common problem. It is not a problem that we never knew of before. It is not a problem that the law of evidence could not account for before. It is not a problem that we did not see fit to trust juries with before. It is, undoubtedly - - -

KIRBY J: The question is not whether we trust juries. Of course, we trust juries. The question is what evidence should go before the jury and when it gets there what direction should be given to assist them in their task, including against the dangers and the risks of misuse of propensity type reasoning?

MR HINTON: I accept that, with respect, and my submissions, those that I have made orally, are those that in our outline at paragraphs 55 through to 67.

GLEESON CJ: Mr Hinton, is it the fact that the degree of specificity with which the uncharged acts were deposed to in the evidence-in-chief of the complainant was different from the degree of specificity with which they were referred to in the statement of the complainant at committal?

MR HINTON: In OAE?

GLEESON CJ: In your case?

MR HINTON: Yes, but there was opportunities available to remedy that. There could have been an application for an adjournment, an application for a mistrial. The moment the alarm bells were ringing there could have been an application to adjourn and to proceed on the voir dire followed by an application for a further adjournment in which to take instructions. None of those actions were taken. What was in the statements was sufficient for the learned trial judge to rule on the pre-trial application.

GLEESON CJ: How long do you think you will require to complete your argument?

MR HINTON: If the Court pleases, five minutes. I do not think I can take the issue of the burden of proof any further than I have or any further than is taken in the outline of argument. Our submissions with respect to Justice Debelle’s approach are specifically answered in the outline at paragraphs 64, 65, 66 and 67. So those are my submissions with respect to the specific ground of the burden of proof.

Can I move then quickly to the first proposed ground in OAE. In my submission, it was the evidence of the uncharged acts was led in that case purely for contextual purposes using that descriptive and no other. The summing up at pages 334 to 337 of the appeal book, to which your Honours have already been, limited its use in that respect. It was coupled by a very strong non-propensity use. In my submission, the ground is unarguable.

In fact, one case that has not been mentioned or has not been given a big guernsey in this appeal is Wilson v The Queen [1970] HCA 17; 123 CLR 334 – and I will not pause to take the Court to it – where all five judges held that this sort of evidence was admissible. In my submission, therefore, the question posed by the first ground of appeal is not one to which special leave should be given. If I can turn to the second ground of appeal - - -

KIRBY J: What year was that?

MR HINTON: Wilson? 1970. And in particular at pages 339 the Chief Justice, 342 Justice McTiernan, 344 Justice - - -

GUMMOW J: The accused had murdered his wife.

MR HINTON: Yes, if your Honour please. Page 344 Justice Menzies, 346 Justice Owen and 347 Justice Walsh.

Turning to the second ground of appeal, I have dealt with my general submissions as to the standard of proof and I have referred your Honours to the relevant paragraphs in our outline. It remains for me to point out quickly that the same antidote, if I can put it that way, was applied in this case, that is, early in his Honour’s summing up he referred to the fact that wherever he used the word “satisfied” he should be taken to mean proven beyond reasonable doubt - I take your Honour Justice Kirby’s point. Then of course when it came to the directions at 334 to 337 he used that word - - -

KIRBY J: I did not mean to roll my eyes.

MR HINTON: He used that word “satisfied”. I appreciate the judgment of Justice Debelle says it was not good enough. In looking at Justice Debelle’s judgment, what is interesting is that the passage of the summing up that he quotes in making that point of course starts – it does not start at the commencement of the direction on uncharged acts. In particular, it does not take into account the reference twice in the direction not to engage in propensity reasoning to the use – not the reference, but the use of the word “satisfied”.

In my submission, for the same reasons as given by the learned Solicitor-General and indeed my friend, Mr Kimber, the jury, minded of the direction given earlier in the summing up, would have understood that word “satisfied” to mean proved beyond reasonable doubt and no other. Accordingly, the directions were favourable. There was no requirement of proof of the uncharged acts beyond reasonable doubt and, in those circumstances, the second ground of appeal does not give rise to a question meriting a grant of special leave.

GLEESON CJ: Thank you. Now, Mr Vadasz, how long do you think you will be?

MR VADASZ: Two minutes approximately.

GLEESON CJ: Thank you. Yes, Mr Vadasz.

MR VADASZ: Firstly, if I may, Wilson was a vastly different case. He murdered his wife. He said the gun went off accidentally. The relationship was that, that was approved of – the evidence was that he had threatened to kill her in the past. Both Mr Hinton and the learned Solicitor made a number of submissions about trusting juries. This is not a question of trusting juries. The comparable directions as to lies and other issues are usually external to the charge before the jury. The difference here with the
sexual matters is that the uncharged acts always go to the very heart of the charges before the jury. So it is not a question of trusting juries. I think that, with the greatest respect, is vastly misleading. It is a question of the very nature of these allegations.

His Honour Justice Heydon asked me to refer to my argument before the trial judge as to questions of relevance. If I can refer the Court to page 25 of the submissions that I made –

KIRBY J: What page of the application book?

MR VADASZ: Page 25. I did not refer to the word “relevant” but I repeatedly argued that the evidence was not necessary to explain any fact in issue, which is simply another way of putting that it is not relevant. That occurs at page 25 on a number of occasions, and occurs at the bottom of page 29. The jury do not need to know certain things to understand the context. The argument, in my submission, was that it was not relevant and if relevant the prejudicial nature outweighed the probative aspect.

Finally, your Honour Justice Kirby, and I might have misunderstood you, thought that I said that a particular as to an act of penetration only came out during the course of the complainant’s evidence. If I said that, I did not mean to. The particulars changed as from the statement in terms of frequency, for example, and other aspects, and particulars did change. What I think I might have said was that on the day of the trial a statement was provided that referred to penile manipulation, an act of gross indecency, or indecent assault, that had not been referred to in earlier statements, and that did not come out in evidence at all. So I do not want the Court to think that – I do not want to leave the Court with any misunderstanding.

There was no act of penetration that came out in her evidence. The particulars changed from her statement, and the trial started on 4 October 2006 and a statement dated 3 October 2006 referred for the first time to him exposing his penis and making her grab hold of it. They are the only matters that I seek to raise.

GLEESON CJ: Thank you, Mr Vadasz. How long do you think you will be, Mr Tokley?

MR TOKLEY: Not very long, your Honour. I was only seeking to address the Court on two points, one I forgot to ask this morning for seven days in which to file some written submissions in relation to the question of admissibility. That is the first of two points.

GLEESON CJ: Yes, you have that.

MR TOKLEY: Thank you, your Honour. The second of the two points is simply that your Honours were referred to a number of cases this afternoon by my learned friend Mr Kimber in which he sought to extract, if I may put it this way, the use by various courts of the words “context” and “background”, but, in my respectful submission, the way in which those words have been used in those cases have to be understood against the particular cases themselves, the factual background in those particular cases and also there is a distinction between the purpose for which such evidence is lead and the use that may be made of it once it has been accepted or adduced.

KIRBY J: You have to send us a note on other things. Could that be equally dealt with in your note?

MR TOKLEY: Yes, your Honour, it can be.

GLEESON CJ: Your opponents will have seven days to respond to what you have put in.

MR TOKLEY: Thank you, your Honour.

GLEESON CJ: We will hear you at 10 o’clock in the morning, Mr Game.

MR GAME: May it please the Court.

GLEESON CJ: We will adjourn until 10 o’clock tomorrow morning.

AT 4.21 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 27 SEPTEMBER 2007