Roach v The Queen [2010] HCATrans 166 (24 June 2010)

Last Updated: 25 June 2010

[2010] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B13 of 2010

B e t w e e n -

KERRY RAYMOND ROACH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 2010, AT 12.46 PM

Copyright in the High Court of Australia

MR P.J. DAVIS, SC: If it pleases the Court I appear with my learned friend, MR C.W. HEATON, for the applicant. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC: If it please the Court, I appear with my learned friend, MR A.D. ANDERSON, for the respondent. (instructed by Office of the Director of Public Prosecutions)

KIEFEL J: Yes, Mr Davis.

MR DAVIS: Your Honours, there is a preliminary point. The application was actually made out of time. Page 84 is the application for special leave. There is no actual application there to extend time. Peculiarly though, the application is hidden on page 86 in the draft notice of appeal at paragraph 5. An affidavit was filed with the application. It does not appear to have made its way into the application book unfortunately and no party has taken any point in the actual outlines of submission.

KIEFEL J: No issue is taken with dispensation with the provisions of time?

MR MOYNIHAN: No.

KIEFEL J: You may proceed on that basis.

MR DAVIS: Thank you, your Honour. Your Honours, since the Court’s decisions in Hoch and Pfennig there has been legislative response in Queensland by amendment to the Evidence Act and there are three sections, two of them which are post-Pfennig which are relevant to the argument in any event, and two of them are relevant to the Court of Appeal’s decision and relevant, we submit, to this argument; sections 132A, 132B and 130. Section 132A is headed “Admissibility of similar fact evidence” but in fact only really deals with one aspect of this Court’s decision in Hoch, so that, for present purposes, can be ignored. Section 132B, in particular, subsection (2) says:

Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.

Then section 130 maintains a “power”, it is described as:

of the court in a criminal proceeding to exclude evidence –

and we submit this is the important aspect –

if the court is satisfied that it would be unfair to the person charged to admit that evidence.

When it comes to questions of propensity evidence, there are three concepts, in our submission. The first is relevance; so obviously if the evidence does not meet that initial hurdle, then the evidence is inadmissible. Secondly, there is then the special exclusory rule which applies to similar fact evidence and, thirdly, there is the Christie discretion which, of course, is all tied up with the general notion of a fair trial and the obligation of a trial judge to ensure a fair trial. The Christie discretion applies where the probative value of the evidence is outweighed by its prejudicial effect. That is not, though, on all fours with the exclusory rule which applies to similar fact evidence or propensity evidence. The special rule is that the propensity evidence is admissible only when, viewed in the context of the prosecution case, there is no reasonable view of the evidence consistent with the innocence of the accused.

KIEFEL J: The Pfennig test was not raised a ground of appeal in the Court of Appeal, was it, that is, the relationship or application of the Pfennig test in light of the amendments to the Evidence Act?

MR DAVIS: The way it was dealt with in the Court of Appeal was that the applicant there said the Pfennig test applied. It was then held in the Court of Appeal that it did not apply because the only test of admissibility was relevance, and that was because of section 132B. Then the court turned to the Christie discretion. What was not argued below, and we accept of course that this is a discretionary aspect against us on an application for special leave, but what was not argued below was that the Pfennig test is actually picked up by section 130. The reason we submit that to this Court is because the special exclusory rule is based on a completely different proposition than the Christie rule and the specialist exclusory rule is based on notions of fairness because of a danger that propensity evidence would be misused. What we say about all this is that when one looks at section 130, section 130 acknowledges:

the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person -

What we submit is that that picks up both the Pfennig principle and, undoubtedly, the Christie discretion. If we are wrong about that, then there is a rather extraordinary result. When one goes to section 132B(2), that subsection does not deal just with relationship evidence, it deals with all relevant evidence of the history of the domestic relationship. So, of course, not only would it pick up what had been traditionally called “relationship evidence”, but it would also pick up propensity evidence which comes from the history of the domestic relationship. That is in fact how the Court of Appeal here assessed - - -

BELL J: Indeed. It is a rather question begging provision, is it not, that relevant evidence of the history of the domestic relationship is admissible brings us back to a consideration of what is relevant evidence? In any event, we have here a situation where at first instance the evidence was admitted as contextual or relationship, whichever term you like, and the jury was so directed. The Court of Appeal, for what appeared to be sound reason, said that the trial judge erred in the basis for the admission of the evidence for those reasons but found that the evidence was admissible as evidence of a propensity to engaging acts of violence when affected by drink. That was effectively the process of reasoning, was it not?

MR DAVIS: Yes, your Honour. Except the only qualification we would place, with respect, on your Honour’s articulation of how the matter proceeded below was that the Court of Appeal, of course, only dealt with the question of relevance. So the Court of Appeal said it is propensity evidence and the safeguard, in effect, of Pfennig is removed, so the question then becomes whether or not it is strictly relevant.

So if one reads 132B disjunctively from 130 in the sense that the Pfennig rule is not picked up in 130, then 115-odd years of judicial consideration is wound back because as far back as Makin it was recognised that when one is dealing with propensity evidence, there are certain considerations beyond the Christie discretion. Of course that has metamorphosised over the years to this Court’s strict formulation of the test in Pfennig. So, yes, this was not argued below. We concede that and we do understand that that is a consideration against us, but it is an important point and it is purely a question of construction.

KIEFEL J: Was the matter of the application of the Pfennig test to the discretion in section 130 raised before the trial judge?

MR DAVIS: No, not on my reading of the summing-up. Again, we appreciate that is a discretionary aspect against us, but we would submit that ultimately it is an important question because section 132B, if it applies as the Court of Appeal has held, it does very, very fundamentally change the law and does very fundamentally change or obliterate, really, a safeguard that has been in the law in relation to propensity evidence for literally over a century.

BELL J: Was the evidence of the earlier acts of violence the evidence of the complainant?

MR DAVIS: Yes.

BELL J: Was there any evidence that supported that?

MR DAVIS: I do not think there is any corroborative evidence. None was referred to in the appeal record.

BELL J: It is common enough when leading evidence sometimes characterised as “relationship” or “context” evidence that it comes from the complainant.

MR DAVIS: Yes.

BELL J: The relevance of evidence, if it is in issue, from a complainant about other uncharged acts is perhaps less apparent if the earlier acts are in issue. Where they in this instance?

MR DAVIS: Yes, they were. All that tends to come back to the questions that were raised in HML where the Court split on a fairly fundamental matter in that some of the Justices of this Court were of the view that the Pfennig test did or did not apply depending upon the purpose for which the evidence was lead, whereas other Justices of the Court held that the Pfennig test did or did not apply because of the nature of the evidence. That was determinative. Now, here it is a propensity evidence case; Pfennig has not been applied. We submit that on a proper construction of the statute it clearly survived and it is a very fundamental change of the law in Queensland.

KIEFEL J: Why should not we infer that the purpose of the statute is to deal with Pfennig?

MR DAVIS: Because it is not clear enough, in our submission.

KIEFEL J: The timing is against you, I suppose. It is two years after Pfennig, is it not?

MR DAVIS: Yes, your Honour. There is clearly a response, I would have to accept that. There is clearly a response.

KIEFEL J: The question is how far it goes.

MR DAVIS: That is so, your Honour. That can be seen from section 132A because section 132A was clearly a limited response to Hoch. The question then is, it could not possibly be regarded as a codification, for instance, of the law in relation to similar fact evidence, so it is a limited response to Hoch. We submit that section 132B is a limited response, leaving section 130.

BELL J: Coming back to your submission a few moments ago, Mr Davis, that this raises some unresolved issues that were considered in HML, and I think that is a topic that you address in your submissions, it seems to me this may not be a great vehicle to look at those matters taking into account the particular provisions of section 132B. Ordinarily the issues that were in play in HML classically arise in sexual cases where there are particular arguments, so it is said, in favour of a view that evidence should be received as evidence of relationship or context. This is a case involving a particular provision that is, I think, unique to Queensland involving domestic violence offences.

MR DAVIS: Yes, your Honour, except that, firstly, there does seem to be some confusion at the intermediate appellate court level as to whether the Pfennig principles apply only to sexual cases or weather they apply broader and we submit that it is a broad principle. So to that extent, the fact that this is not a case involving sexual misconduct might make it a good vehicle. The second aspect is that, yes, we accept, of course, with respect, that this appeal, if it was allowed to proceed, would be had on a context of the particular provisions of Evidence Act, but, in our submission, that would not really mater much because our primary submission is that section 130 preserves the Pfennig principles, so then there is naturally enough a discussion about the Pfennig principles that would arise. In our respectful submission, the other matter unresolved in HML was in relation to the standard of proof, and, of course, sections 132B and 130 say nothing about that.

BELL J: I suppose what I am raising with you is this. In sexual cases one finds classically that a complainant, particularly a youthful complainant’s evidence may simply be extraordinary unless there is some evidence led to put the allegation in context. Classically, an illustration that Chief Justice Gleeson gave in a case of Wickham of the girl who neutrally simply describes how dad came into her room one night and had sex with her, if you do not know the background, it is a very difficult piece of evidence for a jury to deal with.

Those particular considerations bearing on the question of the admissibility of uncharged acts do not seem so acutely raised in a case such as this. It is perhaps rather difficult to see why it is necessary to put in context an allegation that in an adult relationship one partner affected by drink might assault another. That may be a sad comment, but none of us really would necessarily think it acutely raises an issue of the need to lead evidence to put that sort of conduct in context.

MR DAVIS: In our submission, that rather focuses the point, because the way the Court of Appeal dealt with the matter here was to say, well, yes, it is propensity, it is relevant, so no matter no how distantly relevant, it is relevant and therefore we go straight to the Christie discretion.

BELL J: Yes.

MR DAVIS: So to a point it would, in our submission, be better if the court took a case which was not a sexual assault case or sexual misconduct case because the Pfennig principles are much wider, we say, that just those cases and for that reason we say it is an appropriate vehicle. They are our submissions.

KIEFEL J: Before we hear from you, Mr Moynihan, we might adjourn and we will resume at 2.00 pm.

AT 1.05 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

KIEFEL J: Before we hear from you, Mr Moynihan, I just have a few questions for Mr Davis. Mr Davis, putting your HML point to one side, the application of that to the discretion which was not raised below, your essential point is what was the relevance of the domestic history in this case, is that right?

MR DAVIS: There are really two issues. We submit that section 130 picks up the Pfennig test, so the question then is, the Court of Appeal ought to have conducted an examination of whether the evidence, which was objected to, fulfilled the Pfennig requirements, and we say it does not. If I could take the Court, please, to page 71 of the application book in paragraph [4] of the judgment, paragraph [4] sets out the circumstances of the offence the subject of the indictment. Then paragraph [5] sets out the so-called relationship evidence.

BELL J: At least one incident of which seems to have been of a more aggravated nature.

MR DAVIS: Yes, your Honour, but what we submit about that is that all that the prior conduct is, putting it bluntly, is another beating, another assault.

KIEFEL J: So you say, how does that go to establish the fact of assault on this occasion?

MR DAVIS: Yes. All that it does is – what we submit is that it shows a general propensity to assault her and that is the very thing which the Court has said must attract the test before - - -

KIEFEL J: You mean if propensity is the matter of relevance, then the Pfennig test is attached to that? That is how your argument operates?

MR DAVIS: Yes. The way I expressed it before lunch was that to actually have propensity evidence admitted is a three-step process; it must be relevant, it must comply with the Pfennig principles in that it must pass the exclusory rule, and then it must pass the Christie discretion.

KIEFEL J: Do you say that the Court of Appeal here applied propensity as the matter of relevance or did it assume relevance given the statutory provisions?

MR DAVIS: No. The Court of Appeal found that the relevance was propensity. So the Court of Appeal got to that point and then what the Court of Appeal did was to say because it is propensity, it is relevant; because it is relevant, it falls within section 132B. Relevance is the only test except for the discretionary exclusion of Christie, and that does not apply and it is never going to, or very rarely going to apply because once one has determined that it is relevant, it is normally going to have quite an impact on the trial and therefore its probative value will normally outweigh its prejudicial effect.

KIEFEL J: Outweigh, yes.

BELL J: Is there an anterior question when the evidence of uncharged acts is in issue and is the unsupported evidence of the complainant about its ability to logically bear on the determination of the fact in issue, in other words, basal questions of relevance?

MR DAVIS: Yes, your Honour. I must confess I had not quite thought of it that way but we would accept, with great respect, that as a proposition.

KIEFEL J: Thank you, Mr Davis. Yes, Mr Moynihan.

MR MOYNIHAN: Your Honours, the issue really resolves to this. In a trial in Queensland for assault, which is one of the offences in Chapter 28 to 30 of the Code, which leaves out, of course, all of the sexual offending, so it is a very narrow class of cases to which this section applies – is the test for the admissibility of evidence of the domestic relationship, which may include discreditable or uncharged criminal conduct, that in section 132B of the Evidence Act or the common law test in Pfennig?

If there is some change in position by my learned friend to now engage a relevance test, one has to look at the case below a little more closely because it was that the complainant alleged that the applicant invited himself to her house, unit, in the early hours of the morning, she invited him in and, as intoxicated as he was, he almost immediately and for no apparent reason assaulted her. It is to be remembered that his case below, although he did not give evidence, was that because of a mental illness or because of some combination of the ingestion of prohibited drugs or lawful prescribed drugs and alcohol she imagined the whole event and that the injuries to her were as the consequence of a fall.

So it is in that context that one must look at how this evidence may be used in a context relationship sense for the jury to be able to judge what would otherwise seem to be a very odd occurrence as opposed - - -

BELL J: Put that way, one can appreciate a relevant basis for the reception of the evidence.

MR MOYNIHAN: Quite.

BELL J: That does not seem to be the approach that was adopted in the Court of Appeal.

MR MOYNIHAN: Well, one must remember that the learned trial judge determined that the evidence was admissible pursuant to section 132B of the Act because it did provide context and made what would have seemed inexplicable and fanciful - - -

BELL J: But that did not involve any proposition that the defence was being run on a particular basis.

MR MOYNIHAN: Well, it helped the jury understand the reasonable hypothesis consistent with innocence, if you like, that was proposed, and that is why - - -

BELL J: Is that the basis that it was received on?

MR MOYNIHAN: No. The learned trial judge admitted it because – and your Honours will find this at paragraph [7], page 72 of the record book at line 30.

KIEFEL J: I am sorry, which page?

MR MOYNIHAN: Page 72, the last paragraph.

BELL J: For my own part, Mr Moynihan, I have some difficulty understanding why a jury of ordinary representatives of the community would find the proposition that a couple in a domestic relationship – that in that background, that when one partner turns up and is affected by alcohol, they behave aggressively. It is unfortunately a somewhat common occurrence according to the experience of people in our community, one would think. So it is just not clear to me beyond the suggestion that in the concluding paragraph on application book 72 that you have directed us to at about point 30 – that is a general assertion – when you are telling us that, in fact, the contention advanced by the defence was that there was some inherent improbability based on the complainant’s affectation by drugs on this occasion.

MR MOYNIHAN: There was a great deal of cross-examination below as to her diagnosed mental illness, whether there was a mental illness or not – because the defence was that he was not there. So the allegation that he was, and assaulted her, particularly when there were injuries to her, needed – not that he gave evidence, but that was what was suggested as an explanation for that.

BELL J: Was it in issue that he had assaulted her on earlier occasions?

MR MOYNIHAN: I think it would have to have been. But there was evidence in the trial, led by the applicant, that they had each taken out an application for some sort of order against each other, but each of the specific elements was probably in issue.

BELL J: What then, as a matter of logic, Mr Moynihan – how does it assist the Crown to establish that the complainant asserts that on other occasions there has been similar conduct if she is a person who was given to flights of fantasy as the result of a mental condition and/or drug affectation?

MR MOYNIHAN: I can only take refuge in the actual finding of the Court of Appeal that it made intelligible that which the jury would have otherwise found odd.

KIEFEL J: It just supports her credit, does it not?

MR MOYNIHAN: The Court of Appeal found it went beyond her credit, of course, because her Honour Justice Holmes imported issues of propensity reasoning when her Honour – it is important that her Honour, at paragraph [16], says when the Crown relied on it as context or relationship evidence – I beg your pardon, at page 75 of the record at paragraph [19] at about line 40, there her Honour said those references to context or relationship were not incorrect, but then her Honour goes on to say that it really has some propensity reasoning involved in it.

That really goes back to, it is not very helpful to pigeonhole the evidence into one of those areas, but it is important that, when her Honour ultimately makes the finding or the conclusion at paragraph [21], that what the evidence truly did was provide the particular context for the charged assault which otherwise might indeed have been out of the blue. The evidence made the appellant’s conduct on that occasion intelligible and it made it more probable that he assaulted the complainant, as she said, on that occasion. It is probably that last bit that has propensity, not impermissible propensity of reasoning but quite proper reasoning involved in it and that is why her Honour went beyond the relationship and context issue.

KIEFEL J: If the relevance is, then, propensity in that sense, what do you say about the application of the Pfennig test?

MR MOYNIHAN: In my submission, the legislature has made a specific section dealing with the admission of this particular type of evidence in cases of assault, in section 132B, and that was the issue below. The challenge below was that section 132B picked up Pfennig considerations. The Court of Appeal held that that was not correct, consistently with what the Court had held in Kingston’s Case previously, that the sole test was one of relevance, and, in my submission, it is not necessary to read into those clear words the narrower common law test.

Then the focus changes in this application to one, well, we also engaged section 130 in the appeal below on the basis that the evidence should then have been excluded on the Christie test, that its probative value was exceeded by its prejudicial effect. But now it is said that section 130, the general residual discretion, picks up a narrower common law test and in doing so would defeat the broader test in section 130B of the Act.

So, in effect, it would be used as a device to, in effect, have two tests; either the test is relevance or it is the test enunciated in Pfennig, and it would be strange to have a threshold test superimposed upon it another test. This is not the type of case, either, that would ordinarily attract the refinement of the prejudicial probative test that was done in Pfennig to the narrower test because the propensity evidence was not used as a circumstance in proof of the offence, which also has significant importance in - - -

BELL J: I am not sure that that helps you, does it, Mr Crown? You have in front of the jury an account of an incident of greater severity than that which is the subject of the charge that the Crown brings for reasons that are put at trial as context and in the Court of Appeal subsequently identified as relevant for propensity reasons. But again there is that query that I have raised with you about the basis for that, given that it is the unsupported account of the complainant that itself is in issue.

MR MOYNIHAN: Yes. If the jury accept it as reliable, then, in my submission, it does go to demonstrating that it is more likely that the offending occurred. That is not an unusual basis for the admission of that type of evidence, in my respectful submission, in cases of violence, your Honour.

BELL J: What I am taking up with you, Mr Moynihan, is the absence of any support outside the account of the complainant, the whole subject matter being the subject of controversy. Section 132B(2) is perhaps curiously framed. It is not entirely clear what its purpose is, but one thing is clear; there must be an inquiry about the relevance of the evidence of the history of the domestic relationship and coming back to first principles, the evidence needs to be capable of bearing on the determination of a fact in issue and that needs to be isolated.

MR MOYNIHAN: Quite, yes.

BELL J: How many offences does this provision relate to? You explained that it does not touch on sexual offences at all.

MR MOYNIHAN: Your Honour, it applies to the offences in Chapters 28 to 30 of the Code. There is quite a number of them.

BELL J: Right.

MR MOYNIHAN: It would include the homicides, grievous bodily harm, wounding, assaults, all of those types of cases. So the homicides, offences endangering life or health and assaults, so that type of offending.

BELL J: I see, yes.

MR MOYNIHAN: In relation to your Honour’s question, I am not trying to avoid it, but in relation to evidence other than from the complainant, often in a domestic relationship, particularly involving domestic violence, there may be no other source of that.

BELL J: I appreciate that, Mr Crown, but how does it assist the Crown to lead evidence in what I would describe as a relatively unremarkable instance of domestic violence to have the complainant say, if the evidence is the subject of challenge, this has happened on previous occasions as well? Do you not need to identify some basis in the evidence of the uncharged acts of prior violence, apart from the assertion?

MR MOYNIHAN: I think it is fair to say that the particularised incidents were, in a sense, similar in that she was punched on a number of occasions. I do not think it would ever need a similar fact test in any way, and that is why the relevance is different to showing the similarity between the previous assaults on her and the present assault could found the relevance. The relevance is in viewing the event and putting it in context in determining whether it is more probable or not.

BELL J: So the underlying assumption is it is more probable than not that an assault occurred on a given occasion because it is asserted but denied there is a history of violence. That is the point you make?

MR MOYNIHAN: That is how it was below and that is what the Court of Appeal found in paragraph [21]. It is probably important also to note that the learned trial judge did specifically warn the jury against impermissible propensity reasoning. No one asked for a redirection in relation to that. In relation to the issue about the standard of proof, my learned friend has not really made any submissions in relation to that, but there are some points I would like to raise.

Firstly, it was not really a ground of appeal below. The Court of Appeal did not finally decide the point. There were some obiter comments in relation to the Court of Appeal finding that the evidence was not an indispensable link in the chain to conviction and therefore did not require such a direction. There was no application for a redirection below on that point either. But importantly, the learned trial judge spoke only of one standard of proof. The jury only knew of one. At page 41 of the record or the application book at about line 20 your Honours will see there where his Honour was talking about where the jury may have doubts about the uncharged acts, to use that term, and his Honour is talking about a doubt there; if you have a doubt about that, then you keep that in mind when evaluating the functional incident, the charge in the indictment has been proved beyond reasonable doubt.

So it certainly is used in terms very near to and close to his Honour talking about reasonable doubt as well. In my submission, in the absence of an application for a redirection, there was no danger in that case that there had been a miscarriage of justice on that ground, in any event.

Your Honours, those are really the matters I propose to make submissions on, if it please the Court.

KIEFEL J: Thank you, Mr Moynihan. Do you have anything in reply, Mr Davis?

MR DAVIS: A couple of very short matters, your Honours. Firstly, our learned friend submits that it would be odd to have two tests, namely, the Pfennig test superimposed over the general relevance test. That is exactly how Pfennig works. One comes firstly to the question of relevance and then deals with the exclusory rule. So we submit, with the greatest respect, that there is nothing wrong with that. The trial judge did warn against using the evidence as propensity evidence. That is at page 40 of the application book. Of course, our complaint is the evidence should never have been in in the first place.

Our learned friend, when pressed, essentially says this is the relevance. He says, in the context of a dispute as to whether the charged acts occurred or whether she imagined them, it is relevant to have that same witness give evidence about earlier acts of violence, and obviously the same question arises. They are our submissions in reply.

KIEFEL J: We will adjourn briefly.

AT 2.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.26 PM:

KIEFEL J: There will be a grant of special leave in this matter. Is it a half-day matter?

MR DAVIS: We think that given that there will need to be argument about HML, it may take a day, your Honour.

KIEFEL J: All right. Do you agree with that, Mr Moynihan?

MR MOYNIHAN: Yes, I do, your Honour.

KIEFEL J: Yes, thank you.

AT 2.26 PM THE MATTER WAS CONCLUDED