Roach v The Queen [2010] HCATrans 288 (5 November 2010)

Last Updated: 5 November 2010

[2010] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B41 of 2010

B e t w e e n -

KERRY RAYMOND ROACH

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 NOVEMBER 2010, AT 10.00 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: May the Court please, I appear with my learned colleagues, MR H.C. FONG and MR C.W. HEATON, for the appellant. (instructed by Legal Aid Queensland)

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

FRENCH CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, the case concerns what is said to be similar fact evidence. That has two limbs. The protective limb, regarding the evidence of uncharged acts was described in 1935 by Viscount Sankey, Lord Chancellor, as:

“ . . . one of the most deeply rooted and jealously guarded principles of our criminal law . . . ”

That quotation was cited in approval in Boardman’s Case at page 439. In the instant matter, the Court of Appeal ultimately, in our submission, found the earlier uncharged acts led, in this case, to be admissible as propensity evidence. That is apparent from paragraphs [20] and [21] of the judgment of the Court of Appeal which is on page 285 of the appeal book.

I will return to that shortly but that finding, at least structurally, in the judgment of the Court of Appeal came subsequently to the Court of Appeal having determined that the Pfennig test was inapplicable to these circumstances given the Queensland legislation. That finding is in paragraphs [13] and [14] of the judgment which appears at pages 282 and 283 of the appeal book.

The first challenge put forward by the appellant is that if that latter finding is correct then the test for admissibility of any history of a domestic relationship is to be determined without regard to the safeguards of the principles in Pfennig. Here, our submission is, firstly, that the unsupported and uncorroborated accounts of the complainant as to the earlier uncharged acts wrongly were allowed to be used as propensity in circumstances where, on virtually every objective test as to the complainant’s credibility as to the specific charged assault, her account was found to be wanting. Looked at in that - - -

HEYDON J: The problem is, though, that in assessing admissibility, which is an event that usually takes place before the evidence is actually given - - -

MR BYRNE: That is so, your Honour.

HEYDON J: - - - flaws in the credibility of a witness, to put it shortly and crudely, are not really taken into account, are they? What you just submitted might be an unsafe and unsatisfactory type of contention, but I am not sure it is relevant to an admissibility dispute.

MR BYRNE: It comes in, we would submit, in this way, your Honour. The Pfennig test, at least so far as the admissibility threshold for similar facts, depends upon the similar fact or uncharged evidence being added to the other evidence in the Crown case. It is apparent, and would have been apparent at the time of the threshold point of admissibility, that there were those difficulties and conflicts with the evidence of the complainant on the specific act. So, in our submission, it does raise that specific point, as well as, of course, playing out in the unreasonable test, if that were the complaint here.

HEYDON J: The Pfennig test, of course, is perhaps not – well, it is in one way relevant and in another way not relevant, but does it not operate by the trial judge assuming that what the complainant says and what the witnesses to the similar facts say is correct, that the jury will accept that, but also assuming that the primary evidence will not be sufficient to secure a conviction.

MR BYRNE: Correct, with respect.

HEYDON J: Then you take the two bodies of evidence together and apply what is usually called the high Pfennig standard. So you operate with a pair of, in some ways, conflicting assumptions. Your points about the credibility difficulties are taken into account by not making a favourable assumption towards the prosecution in relation, in this case, to the complainant’s evidence, but those difficulties are put aside because you have to assume that the other evidence will be accepted. Now, the reasoning in Pfennig may or may not be incorrect, but is that not the reasoning in Pfennig?

MR BYRNE: With respect, that is the reasoning in Pfennig.

HEYDON J: In this case, you do not challenge the Court of Appeal’s conclusion that the Pfennig test is irrelevant at the initial stage, or not to be applied at the initial stage. You contend it should have been brought into account in relation to a discretionary question of – perhaps not a discretionary question, but a question of unfairness, 130.

MR BYRNE: That is certainly part of the argument, your Honour, but in our submission, it cannot be that clinically divided. If Pfennig has application at all then realistically it should apply at both points, that is, at the beginning and at the exclusory end.

HAYNE J: How? That is a submission that depends on some construction of the relevant provision of the Evidence Act. What is that construction?

MR BYRNE: The construction is that section 132B, in its terms, does not exclude Pfennig, and perhaps to state that in the clearest way, to take up what his Honour Justice Heydon put to us, the reasons for that, if we can cut to the chase, are these. The importance of the Pfennig principle – call it the Pfennig principle, or the principles underlying the admission of similar fact propensity evidence are so – as we have sought to establish by that brief quote – fundamental to the criminal justice system that if they are to be completely removed from the criminal law, in this case in Queensland, then they should be done so in positive terms.

The second aspect of that is, of course, the section itself, 132B, has been inserted in the Evidence Act 1977 (Qld), but it is inserted in that Act in the context of section 130 in its current terms, being in the Act prior to, and subsequent to the insertion of, section 132B.

FRENCH CJ: But we have to start with the words of 132B, do we not? The question is, is the evidence relevant? Do you say that Pfennig goes to relevance?

MR BYRNE: No, Pfennig goes to – the three tests in respect to the Act, similar fact evidence are it has to be relevant. It then has to, we would say, pass the Pfennig test and it then has to comply with, or get over, the exclusory aspect.

FRENCH CJ: Do you contest the proposition that the evidence in issue in this case was relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed?

MR BYRNE: We do to the extent that our submission would be that the evidence given by the complainant was, in effect, credit-bolstering evidence given in-chief, which is per se inadmissible and not relevant on - - -

HAYNE J: But relevance comes first. We never get to questions of admissibility unless we are dealing with something that is relevant. Is the evidence of the prior discreditable acts relevant evidence?

MR BYRNE: We would answer that question here in respect to the specific evidence given, that is, the evidence given by the complainant, solely in respect to the earlier incidents in the negative, your Honour.

CRENNAN J: Does not the defendant raise as an issue in this case that the injuries to the complainant were the result of some sort of mental illness or something of that sort? So I am putting to you that the defence raises an issue in relation to which the relationship evidence may be relevant.

MR BYRNE: We take your Honour’s point. The essential defence was that the assault did not occur. That is put – and I will not trouble your Honours with the factual background, but your Honour is quite right in the sense that it was put to the medical witnesses that the injuries, at least, were consistent with causes other than the assault spoken of by the complainant.

KIEFEL J: And that she imagined the whole thing.

MR BYRNE: Yes, that is so.

KIEFEL J: So the evidence given in a way by her could have been used as a rebuttal?

MR BYRNE: That is so too. It was not.

KIEFEL J: Could I ask you this? In relation to the Court of Appeal’s reasons, particularly at paragraph [21], do you say that the Court of Appeal recognised the relevance of the evidence as propensity evidence only, or is the Court of Appeal talking about it having really two characteristics and running the two concepts together, that is, that it is useful as both propensity evidence and what might separately be called relationship evidence? Are they running the two together in paragraph [21]?

MR BYRNE: They certainly touch on both aspects, your Honour, in paragraph [21].

KIEFEL J: I am just having a little trouble separating the two, particularly given the last sentence “By providing that particular context”.

MR BYRNE: The two last sentences are the ones which we would rely upon because they, in our submission, represent the conclusion by the Court of Appeal and, in particular, the words “and it made it more probably that he assaulted the complainant as she said.” It was thus relevant.

KIEFEL J: That is the conclusion, but the relevance put in that sentence is that it makes the “conduct on that occasion intelligible”, that is the “out of the blue” basis for relationship evidence. That might have nothing to do with Pfennig.

MR BYRNE: That is so, and we accept, with respect, that that passage is somewhat cryptic in the sense that the Court of Appeal in its judgment had rejected context, for example, as a basis for admissibility, which was in effect what it was left to by the trial judge. In paragraph [20], which is where the Court of Appeal begins to reach its conclusion, it is stated this way:

The question, then, is as to the relevance of the propensity disclosed by the evidence of the earlier assaults.

KIEFEL J: And the propensity evidence in paragraph [21] is identified as the “animosity towards the complainant”.

MR BYRNE: Yes.

KIEFEL J: But then they go on to say “context” and rendering it “intelligible”, so we really have two concepts in the Court of Appeal.

MR BYRNE: We have.

KIEFEL J: But the trial judge, I think you have said, let in on the voir dire – ruled on the voir dire on the basis that it was relationship evidence.

MR BYRNE: Yes, relationship and motive, I think he put it on those terms.

KIEFEL J: Did he direct the jury in that way, that is, not in relation to propensity?

MR BYRNE: Yes, he did. He told the jury – I will find the specific passage if your Honour wishes, but he directed the jury not to use the evidence as propensity.

KIEFEL J: So the propensity evidence issue is really only raised by the Court of Appeal?

MR BYRNE: That is so.

KIEFEL J: So are you going to deal with its admission as relationship evidence as well?

MR BYRNE: Well, we can, but - - -

KIEFEL J: I suppose, the preceding question to that is whether section 132B is really concerned with that and not really addressing Pfennig at all.

MR BYRNE: We ultimately must come to the proposition that the ultimate conclusion of the Court of Appeal was that the jury could use this, by whatever route, to conclude that it was more probable that he assaulted the complainant on the specific occasion. If it is to be that is the basis of relevance, then, in our submission, that must on any test bring in the Pfennig principles. There is tendency reasoning, as it is called, in some places, propensity reasoning or it is a straight, similar fact case in that it increases the likelihood. It is then to go back to - - -

CRENNAN J: Could I just ask you – I do not want to take you away from the text of the 132B – but are there any relevant extrinsic materials of which we should be aware?

MR BYRNE: Not that we are aware of, not been able to find, your Honour, no. Whilst we are there and in case I forget to return to it, could we take your Honours to section 130.

KIEFEL J: Just on the extrinsic material points, just before coming in to Court, I had regard to, I think, a Hansard of 25 March and 26 March 1997 relating to the Criminal Law Amendment Bill at pages 824 and 870 and Mr Foley, the then Attorney-General, is referring to the section 132B as an amendment to the Evidence Act in the context of the South Australian case R v R [1981] 28 SASR 321, which appears to be a case involving provocation – I have not looked at the case myself – in which Chief Justice King said:

The deceased’s words and actions in the presence of the appellant on the fatal night –

and this is the passage read out by the Attorney-General –

might appear innocuous enough on the face of them. They must, however, be viewed against the background of brutality, sexual assault, intimidation and manipulation.

The Attorney went on to say –

The judge goes on later to say –

“In this context, it was, in my opinion, open to the jury to treat the words themselves and the caressing actions which accompanied them as highly provocative and quite capable of producing –

an effect in the mother to ground the provocation. But its intention appears to be, or at least the Attorney is discussing it, in the context of background and history of the relationship.

MR BYRNE: It is no doubt framed in those terms.

KIEFEL J: There is quite a discussion, I think, with the former Attorney, Mr Beanland, who seemed to think that that evidence was automatically admissible and that the courts knew it.

MR BYRNE: I do recall seeing that, yes.

HEYDON J: That does not sound a bad proposition by Mr Beanland. After all, Chief Justice King was not relying on any equivalent to 132B(2).

MR BYRNE: May we say we accept that there are circumstances, and our learned friend’s outline illustrates them, such as Wilson’s Case, where evidence of that type is clearly admissible. We do not shrink from that. That is accepted law. But what we do say here is that 132B does not put a line through safeguards such as Pfennig because if it had intended to do so, then, to go back to the question your Honour Justice Hayne put to us earlier, section 130 survived in its existing form, and the opening words are:

Nothing in this Act derogates from 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 charged to admit that evidence.

Now, one could not expect clearer words than “Nothing in this Act derogates from”, and it is - - -

HAYNE J: Now, section 132B is introduced by the same amending legislation as introduced 132A. Is that right?

MR BYRNE: Yes.

FRENCH CJ: I think it was actually moved as an Opposition amendment on – I think Mr Foley might have been the Shadow then and Mr Beanland was the Attorney, just from my copy of the Hansard.

KIEFEL J: That might well be right.

FRENCH CJ: Then it was, although opposed, actually passed by 42 votes to 41 and got up on that basis, Mr Foley quoting the South Australian case and Mr Beanland quoting from Wilson.

HAYNE J: Is not 132A dealing with similar fact evidence and 132B dealing with a subject which may perhaps be seen as separate from, divorced from, questions of the kind addressed specifically in Pfennig?

MR BYRNE: In our submission, 132A can be seen as a limited statutory response to the decision of this court in Hoch v The Queen. It does not, in its terms, seek to go wider than that.

HAYNE J: But if one looks at Part 8 of the Evidence Act, Part 8 would appear to present question one, that presented by 132B(2), “Is the disputed evidence relevant?” Three forms of relevance seem to be on the table, perhaps they are distinct, perhaps they are not: propensity, that is propensity to violence against the domestic partner; animus; and the third relevance I would call “out of the blue”, that is the denial of this event falling outside previous experience in the relationship. Those are three different, perhaps overlapping answers to the question of relevance.

If the question of relevance is answered affirmatively – the Court of Appeal did – the next question is that presented by section 130, “Why was it unfair to allow this evidence?” Then the third and distinct question emerges of, “What, if anything, is the jury to be told about the degree of satisfaction they must have in order to use a conclusion about earlier events as an aid or as a step along a path reasoning towards guilt on the charged act?” Those are questions that emerge primarily from the Act. Where do we feed in Pfennig as a piece of statutory construction?

MR BYRNE: Pfennig, we would submit, feeds in in respect to the first of the propositions your Honour puts in respect to what is raised by 132B, namely, the propensity aspect.

HAYNE J: No. I put it as relevance. The other point I should then make so that you may deal with it is that there is no Pfennig problem if a court concludes that the evidence which it is sought to tender is not relevant. You never get to consider Pfennig tests if the evidence is irrelevant.

MR BYRNE: We accept that, your Honour.

HAYNE J: So how are we feeding it into 132B?

MR BYRNE: Can we answer in this way? Assume that the evidence is relevant for the purposes of discussion. That feeds into 132B. It does not, we would say, exclude the operation of section 130 of the Act which we would say picks up principles of the common law, and the example referred to in the Court of Appeal is the so-called Christie discretion. So that is accepted, it would seem, as being picked up by 130. Pfennig, we would argue, is a similar important principle, essentially an exclusory principle, which is picked up and remains within the jurisprudence of the criminal law in Queensland by virtue of section 130 of the same Act.

FRENCH CJ: If Pfennig’s “no other rational explanation” criterion is a measure of the level of probative value that such evidence has to have before it is seen as capable of outweighing its prejudicial effect, and if that is the correct characterisation of it, then one can perhaps see that feeding into, or an informing principle in deciding whether it is unfair to admit the evidence.

MR BYRNE: That is so.

FRENCH CJ: That is a section 130 question.

MR BYRNE: It is.

FRENCH CJ: It is just a particular approach, I suppose, that one could take to assessing unfairness.

MR BYRNE: It is an approach and we would say, further, it is an important approach because of the impact of this type of evidence upon the fairness of a trial.

FRENCH CJ: But you have passed 132B at that point.

MR BYRNE: We are.

FRENCH CJ: Indeed, that seemed to me to be the thrust of your written submissions.

MR BYRNE: Indeed it is, but we needed to explain 130 and how it links to 132B to complete the argument. I can go on to deal briefly, if your Honour Justice Hayne wishes me, with the second aspect of your question.

HAYNE J: I have interrupted you too much, Mr Byrne. You should go the path that seems best to you.

MR BYRNE: Thank you, your Honour. If we get to the point that this evidence was admitted as, general terms, propensity evidence then the Court of Appeal had by that stage found that Pfennig had no application. It is true, and we accept this, that, if you like, the back-end argument in respect to it being picked up by 130 was not specifically put in the Court of Appeal. It was more the front-end argument that Pfennig was a pre-emptory test that should have been passed.

But if we get to the point that it does or it remains valid in terms of section 130 then that was not a test performed either by the trial judge or by the Court of Appeal. The test that should have been applied, if that was the way to go, we would say, is to be found in Pfennig. The passage I was looking for refers back to Pfennig, but it is a passage in Phillips v The Queen [2006] HCA 4; 225 CLR 303 at page 320.

KIEFEL J: I do not think it is on your list, Mr Byrne.

MR BYRNE: I apologise for that.

KIEFEL J: You might need to read the passage then.

MR BYRNE: It is in paragraph 54 of the judgment of the Court and it is, in effect, a summary of decisions of this Court and decisions of other courts leading up to the ultimate formulation of the test in Pfennig. It reads this way: despite references made to Pfennig and the case of O’Keefe, which was overruled by Phillips, and it goes on to say:

neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence . . . is exceptional and requires a strong degree of probative force”. It must have “a really material bearing on the issues to be decided”. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”. “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind”. The criterion of admissibility for similar fact evidence is “the strength of its probative force”. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence.

In summary, and I would not seek to impose my own words, they are quite powerful words used by this Court and other courts as to the appropriate test. That, in our submission, demonstrates the level that this evidence must achieve before one cannot, in terms of insuring a fair trial, not act pursuant to section 130 to exclude the evidence for not being sufficiently probative, albeit we accept it is relevant. We can take your Honours with leave to one other brief passage in Phillips, and that is paragraph 79. I can read that. It is a very familiar passage to your Honours:

Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused’s character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several difference offences, the common law requires a high threshold to be passed.

There is nothing novel in those statements; they have been statements made reflecting the common law over many, many years. There are passages in the other cases referred to. I will not take your Honours to it, but in Boardman’s Case, Lord Morris, at page 439 stated that:

to be admissible, [similar fact] evidence must be related to something more than isolated instances of the same kind of evidence.

So essentially what we would say is, upon proper analysis here the evidence of the complainant as to earlier assaults on her by the appellant does not satisfy that strong probative test. Can we say this. The admissibility – and we go back to the proposition that your Honour Justice Kiefel puts to us, those passages at paragraphs [20] and [21] of the Court of Appeal’s reasons are fairly central to the determination of this matter. It seems in our submission that the words, the admissibility was made on the basis that “it made it more probable”, that is a direct adoption, if you like, of the Pfennig principle. It is straight, propensity reasoning. It is tendency reasoning by which the jury can use that to elevate the likelihood of the specific offence having taken place.

HEYDON J: Is it inconvenient if I ask you a question?

MR BYRNE: No, thank you, your Honour.

HEYDON J: This “out of the blue” approach, I know here it is as it were blurred or seems to be intermingled with the particular disposition approach, but in the New South Wales cases which have tended to stress this “out of the blue” approach, usually in the context of an adult interfering with young children, it really tends to operate as something distinct from a disposition. But here it is said, and I think you have put this in a submission earlier, to make more probable the actual assault. That tends to perhaps indicate the inutility of the “out of the blue” concept. It is really masking the employment of the evidence to establish disposition. Is that a submission?

MR BYRNE: Yes it is, your Honour.

HEYDON J: So really if you go in behind the “out of the blue” concept into this particular disposition reasoning, you say if it were not for the enactment of this legislation we would be concentrating on Pfennig. We have this legislation and 132B, in terms, seems to draw a distinction between similar fact evidence dealt in 132A and then this so-called “relevant evidence” in 132B(2).

Your point is that at common law relationship-type evidence can be admissible. It is in truth really only validly admissible if it goes to disposition. At common law it would have to satisfy Pfennig, and this statutory language is not enough to overturn the common law. Perhaps Mr Foley’s intentions do not matter, but whatever the function of subsection (2), it merely seems to be to quiet a doubt; to clear up something that people do not seem very clear about. It was not functioning as a dramatic exception to the common law rule. Is that your submission?

MR BYRNE: We could not have put it better, with respect. Boiled down to that point, it is a - - -

HEYDON J: Now there will be half an hour in which it is torn apart by four critical minds.

MR BYRNE: It may well be torn apart, but that is our position.

KIEFEL J: Can I ask you this though, Mr Byrne. Do you say that the way the Court of Appeal dealt with it at paragraphs [20] and [21] accurately reflects the way in which the trial judge admitted it and directed the jury?

MR BYRNE: It would seem not, with respect, your Honour.

KIEFEL J: So should we not deal with how the trial judge dealt with it?

MR BYRNE: That is a difficult point in that the Court of Appeal, in effect, found that the reasons put forward by the Crown for the admissibility of the evidence, and relied upon and adopted by the trial judge, were, in effect, not sufficient to make the evidence admissible. We took the view, at least, that once we reach this stage we must concentrate on the ultimate ruling of the Court of Appeal rather than hark back to what has now been - - -

KIEFEL J: Regardless of how the Court of Appeal viewed it, whether they are right or wrong, we still have to deal with how it was admitted and the basis upon which it was put to the jury. It is more important to know how the trial was conducted than how the Court of Appeal saw it.

MR BYRNE: We, of course, accept your Honour’s point but may we say this, that the problem with redressing or revisiting what was done before the trial court is that his Honour then did not have the benefit of argument in respect to section 130 of the Evidence Act and so any decision made by his Honour was, we would say, in effect - - -

KIEFEL J: That does not preclude you arguing section 130, but if we are talking about the basis upon which it was put to the jury, if it was not put forward as propensity evidence, I am really finding it a little difficult to understand why we are focusing only upon how the Court of Appeal viewed its admissibility.

MR BYRNE: We are focusing – and just so that I am answering your Honour’s question as best as we can, the point of principle raised before this Court is whether, assuming it be propensity evidence, section 130 applies to it. That is the simple point that we reach at this stage of the judicial hierarchy rather than re-agitate issues at trial. We are happy to take your Honour to the passages at trial as to what occurred there.

FRENCH CJ: Mr Byrne, just before you do that, before we leave 132B, 132B does not apply, I think, to Chapter 32 of the Code dealing with rape and sexual assaults.

MR BYRNE: That is so.

FRENCH CJ: What it covers is a chapter dealing with homicide, offences endangering life or health and assaults. So, is there a premise about the potential relevance, the kind of domestic relationship that is contemplated in subsection (2), in other words, that a history of a relationship of violence is assumed as possibly relevant – capable of being relevant?

MR BYRNE: Yes. Section 132B is specific to offences of violence against a person as distinct from - - -

FRENCH CJ: So we are not worried about – Pfennig still reigns supreme, as it were, in relation to sexual assaults and so forth?

MR BYRNE: Correct.

FRENCH CJ: Indeed, when Mr Foley moved the amendment, he seems to have been focusing on the battered wife syndrome, as one might call it, the woman who commits a homicide against the background of a history of violence and wanted that to be brought in, but this is coming at it from another direction, I suppose.

MR BYRNE: Yes, and that legislation has subsequently come in in the Code.

FRENCH CJ: Yes, but there are some assumptions about what kind of relationship evidence can be relevant for the purposes of 132B(2).

MR BYRNE: There is no doubt that 132B focuses upon violence, not sex, to put it in those terms, your Honour.

FRENCH CJ: Yes.

MR BYRNE: So it comes back to whether, in terms of what, with respect, the then Attorney, Mr Beanland, said was correct, that those things – and we go back to Wilson’s Case – and in the proper case, applied in the proper test, they may well be admissible, be they sex or be they violence, but here we say that the proper test was not applied either at first instance or at the Court of Appeal level and no proper consideration was given to the exclusory ruling in Pfennig.

HEYDON J: Are we going to go to see what happened in front of the trial judge?

MR BYRNE: Yes.

HEYDON J: It actually seems to have been argued by Mr Foley that – he quoted section 130 and he dealt with the Christie discretion, which is really like 130, so it does seem to have been argued. I thought earlier you said it had not been. I am looking at page - - -

MR BYRNE: The Christie discretion was argued, yes.

HEYDON J: But what is the substantive difference between the Christie discretion and section 130. Is 130 not merely something that preserves the Christie discretion?

MR BYRNE: Section 130 is something which preserves common law principles, including the Christie discretion, yes.

HEYDON J: Just clearing up this. I thought earlier you said that it had not been argued before the judge that 130 applied. I am simply pointing out that it does seem to have been drawn to his attention.

MR BYRNE: I apologise if I gave that impression. It was argued certainly that it applied in respect to the Christie discretion. It was not, on my understanding, argued that it applied so far as the Pfennig principles are concerned.

HEYDON J: Yes, that is true. He argued them through at 181. Whereabouts is the ruling?

MR BYRNE: The ruling - - -

HAYNE J: At 40 and following?

MR BYRNE: Line 40 and following, yes. I will try and take your Honours to the directions. Page 232, I am assisted, going over to 233. Your Honours will see that there was, at about lines 1 to 10, a warning. Then at about line 28, his Honour referred to the history of the relationship being “led for a specific purpose”. At line 40, his Honour makes the point that:

Such evidence is led not to establish that the accused has a propensity to violently assault her –

And at the bottom of that page –

The evidence is led so as the incident is not considered in isolation or in a vacuum to give you a true and proper context –

That is possibly what your Honour Justice Hayne referred to as the “out of the blue” proposition.

HAYNE J: See line 9 or 12, according to your numbering, on 233. The “out of the blue” context is, I suspect, more apposite, if it is ever apposite, to the circumstance where there is a sexual assault on someone and there is no instant protest by the young victim, no instant protest because this is simply part of the ordinary course of events that has occurred previously.

MR BYRNE: Correct. This is quite a different - - -

HAYNE J: That is not this sort of circumstance.

MR BYRNE: No, that is not this case. Yes. This is quite different. They are both adults. There was, indeed, on the facts a protest. There was a calling of the police. It is not one of those cases where, with respect, the jury needed this sort of detailed background context evidence so that they could focus on the specific event which was the subject of the charge. That is referring back to what this Court has said in Phillips. What occurred here was that the complainant was, on the basis, at least at first instance, on the “out of the blue” concept, allowed to relate a series of assaults, some of which were arguably more serious than that which was the subject of the specific charge.

There was a broken arm. There were regular black and blue beatings, if I can use that terminology, all of which go to putting in context a specific assault on a specific night. We repeat ourselves by saying that that is not something which would satisfy or be caught by the “out of the blue” principle and neither is it sufficiently probative or of strong probative value to pick up the tests enunciated and explained in Pfennig. That is where, again, to go the circle, we come back to the fact that at first instance and in the Court of Appeal consideration should have been given to the operation of section 30 as an exclusionary tool using the Pfennig principles, not just the Christie principles.

FRENCH CJ: Is the basis upon which the Court of Appeal found the evidence to be relevant, as appears at paragraph [21] of the judgment, page 285 of the appeal book, completely consistent – it seems to me on first glance that it is – with the basis upon which the trial judge directed the jury?

MR BYRNE: We would respectfully say no. What the trial judge did on those passages we took your Honour to is to – I have lost them, I apologise.

HEYDON J: Page 232.

MR BYRNE: Thank you.

HEYDON J: At line 40 he says it was not admitted to show a propensity, but it was admitted to show that it did not happen in a vacuum and did not come out of the blue.

MR BYRNE: That is so, yes. I am reminded that his Honour also left it, at page 233 at about line 45, as going to “motive for the accused to unlawfully assault her on the evening in question”. To answer your Honour the Chief Justice’s question, the Court of Appeal ultimately, we would say, found that it was admissible as propensity contrary to the directions given by the learned trial judge and that is, again to repeat ourselves, in paragraph [21], that the evidence:

made it more probable that he assaulted the complainant as she said. It was thus relevant to whether the charged act took place.

So that is well over and above any “out of the blue” submission or motive submission. It is direct evidence of tendency reasoning and we say that is, with respect, an error without application of the Pfennig principles.

HAYNE J: Now, you say Pfennig principles should be applied. Can you be more specific and say what in particular should be their specific application in this case? Is it a point about want of striking similarity, is it a point about the use the jury are to make of it, or the degree of satisfaction? What aspect of these rules is engaged?

MR BYRNE: The aspect is to apply the test as formulated in the passages we took your Honours to earlier, namely whether it satisfied the threshold test under Pfennig for admissibility, that is, the strong probative value of the evidence.

HAYNE J: Strong probative value here was wanting because?

MR BYRNE: Because logically the fact that an adult complainant says that “On a number of other occasions I was assaulted by X”, cannot logically, or as a matter of principle assist the jury in its consideration of whether a specific assault occurred between those two persons on the date specified in the indictment.

CRENNAN J: What about assisting the jury in relation to competing explanations for injuries, à la Wilson’s Case?

MR BYRNE: The difficulty with that, your Honour, is that – can we approach it this way, and we do not wish to descend into the facts particularly, but we have done so in the written outline to the extent that it was not just competing accounts in respect to the injuries which were open for the jury’s consideration. They had, if we may summarise briefly, the fact that the complainant gave evidence that the police had tried to coerce her to get the appellant to come back to the unit by a phone call. That was not borne out by the objective evidence. We had the complainant saying that she had never had any psychiatric, psychotic problems. That was directly countered by the evidence of the psychiatrist called in the Crown case.

So there were a number of factors in addition to the one your Honour raises, that is, the injuries. However, in respect to the injuries themselves, the doctor, at one stage, and I can give your Honour the reference, said that the injuries noted were consistent with a fall. That having been said, the logical, strong, probative nature of the earlier assaults does not, we would submit, get over, even on that basis, the Pfennig test as to be admissible on that basis.

HAYNE J: It seems to me though, Mr Byrne, that the proposition you advance has as its real content that evidence that the relationship has previously been violent could never be admitted. What are the circumstances in which evidence of prior violence in a relationship be admitted?

MR BYRNE: Your Honour, we have accepted that there are cases where, such as Wilson, evidence of threatened violence, et cetera, are properly admissible in evidence. I hesitate to make this submission in this forum, but inevitably some cases turn on their facts and we do not dispute - - -

HAYNE J: Good heavens.

MR BYRNE: Yes, on the evidence and we do not dispute that there of course cases where violence, properly proved and properly of a strong probative nature, could pass the Pfennig test. It would be silly to argue otherwise. But the point we seek to make here is that this evidence, from the complainant alone, does not reach that standard and could not logically or properly have assisted the jury in their conclusion as to the specific offence. Does that answer your Honour’s question, or have I avoided it?

HAYNE J: I will have to go back and reread it, I fear, Mr Byrne.

KIEFEL J: But your essential submission is that relationship evidence can only be admissible as propensity evidence?

MR BYRNE: In cases of violence, yes, because we do not have the other justifications that, for example, exist in child sex matters.

KIEFEL J: Why not? If the relationship is one of violence, why is it not – why is it admissible if admissible on the basis discussed by a number of the members of the Court in HML, that is to say, the “out of the blue” and contextual basis, and to rebut what would be predicted to be said if evidence of only the one occasion was given?

MR BYRNE: Can we add to that in this way. The comments by various members of this Court in HML seem to have been interpreted by intermediate Courts of Appeal as being limited to their particular facts. We have given the Court the references, but courts in various States have held, subject to further guidance from this Court, that those principles are not to be extended, for example, to violence.

HEYDON J: You are hostile to the “out of the blue” exception. That is your - - -

MR BYRNE: In these circumstances, yes.

HEYDON J: It might go to self-defence or provocation if the woman had been charged with seriously injuring the man, in this instance, the woman could have said, “Well, I thought I was about to be attacked because I had been attacked more times than I can remember over the last four years.” That would be an example of violence being used for a reason, not just as position - - -

MR BYRNE: In respect to a - - -

HEYDON J: Well, I suppose there is an element of disposition in that.

FRENCH CJ: Mr Foley seemed to have had that in mind as the rationale for 132B.

MR BYRNE: As the basis, yes.

HAYNE J: I suspect you get to the answer of relevance only by reasoning, it has happened before. It is more likely that it happened again, that is, because he did it once, he had a propensity to do it again and that that is the only footing on which you get over the relevance hurdle.

MR BYRNE: That is what we would say was the approach adopted by the Court of Appeal.

FRENCH CJ: Not a propensity at large. It has to be a propensity in the context of the relationship.

MR BYRNE: Yes, that is so, in terms of the statutory provision as well as this case. Yes, that is so, your Honour. Your Honours, that is most of what we wish to say in respect to that aspect. We have addressed, we hope early, the proposition put forward by our learned friends that somehow 132B excludes the principles of Pfennig, and we have made oral submissions in respect to the fundamental nature of the principle and also to the wording of section 130 as the answer to that proposition. Can we deal then with the other aspect and that is the matter raised by your Honour Justice Hayne, namely, the standard of proof and before doing so, could we seek the leave of the Court to amend what is ground 4 at page 297 of the appeal book. That should read:

The Court of Appeal erred in failing to conclude that the jury ought o have been directed of the need to be satisfied beyond reasonable doubt of the truth and correctness of the evidence –

Insert “of the prior”, delete “to the violence”. So the last line would read “correctness of the evidence of the prior violence.” We apologise for that.

FRENCH CJ: I take it you have no difficulty with that.

MR MOYNIHAN: No, your Honour.

FRENCH CJ: Yes, you have leave.

HEYDON J: I think you can also have leave to amend the heading to Part I of your submissions which presently says “COERCIVE STATEMENT OF THE ISSUES”.

MR BYRNE: It is rather powerful language. It was not intended, your Honour.

FRENCH CJ: Yes. We felt coerced before we came in here.

MR BYRNE: Your Honours, at this point we can be reasonably succinct in respect to. This evidence - we seek to establish the proposition – was admissible solely as propensity evidence, propensity as to it being more likely by proof of this evidence that the specific offence was committed. The question is what test should be applied to that and we do not seek to, subject to your Honours’ views, to revisit all that was said in HML v The Queen but could we argue this way - and again we apologise, this was on our written list of authorities but it was not one of the matters which made it to the final list.

It is a decision of the Court of Criminal Appeal of New South Wales. The citation is FDP v The Queen [2008] NSWCCA 317. We use a passage there – it is a judgment of the court, the court consisting of McClellan, Chief Justice at Common Law, Justices Grove and Howie. At paragraph 38 of that decision and may I read that - it is not long – to the Court:

The kind of evidence considered in HML, that is evidence of allegations of uncharged sexual activity between the complainant and the accused, is derived from this type of evidence but has its own peculiarities such that it has been treated with considerable circumspection by the courts. This is because its potential to prejudice the accused is extremely high and because of the difficulty in circumscribing the use to be made of the evidence to avoid it being used improperly as propensity evidence when it is not tendered for that purpose. It is the grave potential for prejudice arising from that kind of evidence that has resulted in special rules being adopted by some members of the High Court for the introduction and use of that evidence. For example it appears now to be the law that, if that type of evidence is to be used by the jury for tendency reasoning, it must be proved beyond reasonable doubt –

I omit the citation:

There has been no suggestion that any other type of propensity evidence has to be proved –

beyond reasonable doubt. That, with respect, seems to be a summary of the approach adopted by intermediate courts of appeal. Our argument is a simple one. The words there being used, that is, “the grave potential for prejudice arising from that kind of evidence” apply equally to evidence of violence such as illustrated by this case.

If it is to be used, as it was, we say by the Court of Appeal here, to make it more probable that the appellant assaulted the complainant as she said, then in our submission it is simply too fine a distinction between similar fact evidence disclosing illicit passion for the purpose of tendency reasoning, that is, making it more probable that the particular offence happened and similar fact evidence disclosing partner beating, or in this case woman beating, for an identical purpose, that is, making it more probable that the specific offence occurred.

Clearly, in our submission, both of those matters carry with them a grave prejudice for prejudice and should require proof to the criminal standard if the evidence is to be relied upon for the jury for tendency reasoning. That is our succinct submission in respect to that point.

KIEFEL J: Can I ask you, you have referred to other intermediate courts of appeals such as in Sadler’s Case, the Victorian Court of Appeal, in distinguishing HML application of relationship evidence as between cases involving sexual offences and assault. On what basis do the courts variously say that the “out of the blue” evidence is not to be viewed in the same way in relation to assaults?

MR BYRNE: I am subject to correction, but I am not sure that the courts have addressed it in the context of “out of the blue” incidents. They seem to have addressed it on the basis that it was, my words, a novel concept for this Court to adopt by majority beyond reasonable doubt test in respect to sexual matters. Absent further guidance from this Court - - -

KIEFEL J: I see. I misunderstood you. You are saying that, and I have not read Sadler in close detail, but you are saying that it is only in relation to the proof beyond reasonable doubt of propensity that they had limited it to cases involving sexual activity?

MR BYRNE: Yes, your Honour, and that is a point of principle.

HEYDON J: If you lost on grounds 2 and 3, which are Pfennig related, but won on this fourth ground, you would not say there should be a new trial? Your client has served his sentence.

MR BYRNE: There are reasons, and we have discussed this briefly with my friend, but his parole finishes today.

HEYDON J: I see; it is only his parole.

MR BYRNE: His sentence finishes today.

HEYDON J: Completely?

MR BYRNE: Yes, fulltime.

HEYDON J: You would ask for an acquittal then, on the basis that - - -

MR BYRNE: That would seem the sensible course if there has been substantive error.

HEYDON J: Is there any suggestion of the proviso applying?

MR BYRNE: In our submission, not. It is a point of principle and we do not understand our friends to have raised that as a proposition.

HAYNE J: Is it a case in which there should be acquittal, or is it a case in which direction for new trial followed by no bill?

MR BYRNE: The conviction should be quashed.

HAYNE J: Yes, I understood that. If ground 4 succeeded the conviction would be quashed. But should this Court’s order be that a new trial be had, followed by the prosecution, no billing?

MR BYRNE: That is the more conservative approach that is usually taken, your Honour, yes.

HAYNE J: Rather than directing entry of verdict?

MR BYRNE: The only thing that we say raises it beyond that normal is that the sentence has been fully served. Those are our submissions, if the Court pleases.

FRENCH CJ: Thank you very much, Mr Byrne. Yes, Mr Moynihan.

MR MOYNIHAN: Your Honours, the issue concerns construing sections 130 and 132B, so I will start directly with the statute. Section 132B was inserted into the Evidence Act on 1 July 1997 after Pfennig was decided. That section deals specifically with evidence of domestic violence in offences of violence against the person in Chapters 28 to 30 of the Criminal Code.

KIEFEL J: I see in your submissions, Mr Moynihan – forgive me for interrupting you so early, but you have related it chronologically to Pfennig. In submissions on the voir dire reference is also made to Osland Case.

MR MOYNIHAN: It is difficult to see - - -

KIEFEL J: The connection, yes.

MR MOYNIHAN: The complainant gave direct evidence of one count of assault occasioning bodily harm pursuant to section 339 of the Criminal Code. That directly engages section 132B of the Evidence Act because the Crown wanted to lead evidence of domestic violence as part of the history of the relationship between the appellant and the complainant. Section 132B provides:

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.

In Papakosmas this Court made clear that one does not construe the Act in light of the pre-existing common law, but look to the statute. In this case, the words, particularly in subsection (2), are plain and unambiguous. The timing and the terms of the section make it clear, in my submission, that the legislature was not picking up the prior common law test in Pfennig of the no rational explanation test. If that was their intent, they would have left it as it is for offences in the other chapters concerning sexual offending in the State of Queensland where Pfennig still applies. The legislature intended a different test and they specifically provided for it as being one of relevance.

So the section makes it clear that evidence of the history of the domestic relationship is admissible if it is relevant. Relevance, as Chief Justice Gleeson made clear in HML, is the logical starting point and the Court of Appeal was correct to find – and this is the first critical finding – at page 283 of the record, at paragraph [14], that in construing section 132B:

relevance is the sole test for admissibility of the evidence of the history of a domestic relationship.

That the Pfennig test did not apply. That is also consistent, I might add, with what Justice Keane, as he then was, found in the earlier decision of Kingston [2008] QCA 193 at paragraphs [32] to [35].

HAYNE J: What is the media neutral citation of Kingston?

MR MOYNIHAN: It is [2008] QCA 193 at paragraphs [32] to [35]. I have copies to hand up if your Honours would find that helpful. If that finding is correct and that the relevant test is solely one of relevance, then attention is directed to, in the circumstances of this case, how is the evidence relevant, and evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the fact in issue. The fact in issue in this case was whether the appellant had assaulted the complainant as she alleged.

The evidence of the history of the domestic relationship was relevant in this case because it affected the jury’s assessment of the probability of the appellant assaulting the complainant as she alleged or whether she imagined the assault and suffered the injuries in a fall. It affects the jury’s assessment of that probability – I beg your pardon – it affected the jury’s assessment of the fact in issue because it allowed the jury to properly evaluate the direct evidence of the complainant in the charge and it did that in a number of ways, and these ways are all consistent with previous decisions of this Court or the Court of Appeal in New South Wales.

The first one, was it explained that the complainant was not giving evidence of an extraordinary isolated event happening out of the blue by her former carer but allowed the Crown to present the case in a real and intelligible way so as the jury did not have to view it in a vacuum? That type of relevance is drawn, of course, from what Justice Dixon said in O’Leary and some passages in HML by the Chief Justice at paragraph [24].

It is also relevant on the basis that the domestic relationship is an integral part of the history of the alleged crime. That of course is drawn from Bond, adopted by this Court in Wilson at pages 338 and 344, and by Justice Deane in Brown’s Case at page 610. It also answered a question that would have naturally arisen in the mind of the jury. That of course is a matter that is relevant per your Honour Justice Kiefel’s reasons in HML at page 502 paragraphs 512 to 513, but it is helpfully explained by Justice Menzies in Wilson’s Case in a very similar type of context.

HEYDON J: What is the question which is troubling the jury?

MR MOYNIHAN: If I could just take your Honours to Wilson’s Case where at page 344 - - -

FRENCH CJ: This is (1971) 23 CLR 334.

MR MOYNIHAN: I am sorry, your Honour.

FRENCH CJ: It helps if you give the citation.

MR MOYNIHAN: In the fourth paragraph, about halfway through:

Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust . . . To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

HEYDON J: .....cloaks disposition reasoning? Maybe it does not cloak it even.

MR MOYNIHAN: I was going to deal with this in a moment, but the Court of Appeal were correct to say in paragraphs [19], [20] and [25], as this Court has said in Pfennig and HML, it is always propensity evidence, there can be no doubt about that, but the distinction is between whether the jury is using it for propensity reasoning or probability reasoning. As your Honour Justice Kiefel said in HML, in this case, the way the judge left it was for the jury to use it in the conventional probability reasoning way as relevant to that fact in issue because it allowed the jury to properly assess the probability of that fact in issue.

HAYNE J: The issue in Wilson’s Case was did the dog shoot her or did he shoot her?

MR MOYNIHAN: The gun accidentally discharged, yes.

HAYNE J: Yes. Did the dog jumping on the hay bale trigger the shotgun that shot her? So the question was accident or foul play. The issue in this case is did it happen?

MR MOYNIHAN: True.

HAYNE J: How does the fact that it has happened before lead to any conclusion about whether it happened on this day?

MR MOYNIHAN: I will answer that but, true it is, the issue was whether it happened but, as Justice Crennan raised earlier, the issue really for the jury was whether the accused did it or whether it was imagined and the obvious injuries which the police observed when they arrived were caused by an accident. As Justice Crennan said, it might well have been also admissible to rebut the suggestion of accident. Now, the judge specifically told the jury not to reason that way because his Honour said they should deal with that using their common sense because of the positioning of the injuries and the evidence of the doctor that it would be unlikely to get injuries in that place from a fall and the mechanics involved in the fall to cause that. So, in my submission, it was relevant in this case, very similar to the way it was relevant in Wilson’s Case and properly admissible on that basis as well.

The Court of Appeal were, as I said a moment ago, correct to observe only in paragraphs [19], [20] and [25], that it is a type of propensity evidence but it is a specific propensity evidence and they were correct, though, to make the critical finding that applied the relevance test in section 132B in finding, in paragraph [21] on page 285, that the challenged evidence in this case was relevant to whether the charged act took place, that is the fact in issue, by providing that particular context for the charged assault which otherwise might indeed have been out of the blue. The evidence made the appellant’s conduct on the occasion intelligible and made it more probable that he assaulted the complainant as she said.

FRENCH CJ: What is the propensity in this case? Is it a propensity to assault the complainant when under the influence of alcohol?

MR MOYNIHAN: Her Honour Justice Holmes said that, but if we look at the finding and we use the words “that particular context”, what her Honour is referring to there is down further up in the paragraph and is referred to:

an animosity towards the complainant, particularly when he was intoxicated.

So that is probably the direct answer to your Honour the Chief Justice’s question.

KIEFEL J: Do you accept that relationship evidence is necessarily propensity evidence? I know that you are supporting the Court of Appeal, but I have to ask you that question because it may assume some importance.

MR MOYNIHAN: It does assume importance in relation to the construction of section 130 which I am about to deal with now, but it has been led in cases previously like O’Leary where perhaps adopting the res gestae argument, there was never any suggestion that it had any propensity element to it, but since then this Court has said consistently labels are often unhelpful. Whether you label it as evidence going to relationship, label it as evidence going to context or intelligibility or something like that is unhelpful. One has to look at the evidence, what is the issue it goes to, but, more importantly, what is the use to be made of it because at the end of the day that is what the prejudice attaches to, that is, is there a risk of any improper use attaching to that evidence? That is why once it is accepted that the two findings to this point, that is that relevance was the test and it was relevant in one of the ways to which I have already alluded - - -

FRENCH CJ: But it must be, to get it under 132B, evidence of a history of the domestic relationship.

MR MOYNIHAN: Correct. Yes, and that is why I have consistently used that phrase rather than “uncharged acts” or “uncharged conduct” because the Act is talking about a very specific piece of evidence. In terms of talking about domestic violence, the section makes that clear in the heading.

If it is relevant then one has to then transition to section 130 which was in the Act since its beginning and then the issue becomes, is whether the general discretion in section 130 of the Act, which is there to ensure that relevant admissible evidence is used fairly, picks up the common law “no rational explanation” test, and in my submission the ordinary test, or general principle in section 130 is to determine whether it is fair to admit that relevant admissible evidence in a balancing exercise between comparing the probative value outweighing the prejudicial effect. So whether the admission of the relevant history of the domestic relationship is unfair requires a focus on the purpose for which the evidence is used to determine its probative value because - - -

FRENCH CJ: And the potential for its misuse.

MR MOYNIHAN: That is right, and that is because this is really the foundation for the really interesting debate about how Pfennig can be engaged in this section because it really is a section that, even at the present, applying the Christie discretion, is a common law discretion. If one looks at the purpose in this case, it was so that the jury could properly evaluate the direct evidence of the complainant as, in assessing the probability of the matter having occurred or rebutting accident, that is weighed against the prejudicial effect which is the risk of its misuse, which directs attention to the directions the judge gave the jury, which I will take your Honours to in a moment.

But the appellant submits that in this type of case, that is, where evidence is used only to assess the direct evidence of the complainant, unless it satisfies the stringent “no rational explanation” test it is unfair to admit it. In my submission, the ordinary meaning of the term “unfair” in the general discretion in section 130 of the Act should not be construed to pick up that stringent “no rational explanation” test in this type of case, because it is not necessary when the reason for the refinement of the general principle to the more specific test in Pfennig is not engaged, that is, the evidence is not circumstantial evidence used in proof in a circumstantial case, that is, it does not involve direct propensity reasoning as Pfennig did.

In other words, without the evidence there would be no case. In this case there was direct evidence of the assault, and the evidence was used for the purposes I have already outlined. So it is very different to Pfennig and the use to which the evidence was put in Pfennig.

HEYDON J: There was evidence in Pfennig apart from the similar fact evidence it was circumstantial. The movements of the boy, the fact that the accused was in the neighbourhood; there was evidence. It was made stronger by the similar fact evidence.

MR MOYNIHAN: But, in my submission, Pfennig was a case where the evidence of the similar fact was used as a circumstance towards reasoning to guilt.

HEYDON J: It always is.

MR MOYNIHAN: Perhaps in a case where there was no other direct evidence of the offence having occurred.

HEYDON J: That is true.

MR MOYNIHAN: So in this case - - -

HEYDON J: In that sense, the cases are different.

MR MOYNIHAN: Yes.

HEYDON J: But is it a difference of principle, or just - - -

MR MOYNIHAN: In my submission, it does raise a difference in principle, and that is the difference. It is not a circumstantial case where propensity reasoning is needed to prove the case as distinct from a case confined to a purpose – to a case where the evidence is used to assess or explain or make intelligible the direct evidence of the complainant. A second reason is, as Justice McHugh said in Pfennig at page 516 and which was adopted by Chief Justice Spigelman in Ellis’ Case, that it is inconsistent with the discretion that requires a balancing process because that would mean the focus is solely on the probative value of the evidence and there is nothing left to weigh, and it would also mean that there would be cases where evidence could have strong probative value which outweighs its prejudicial effect, but the Crown could not lead it.

So, in my respectful submission, that point is, as Chief Justice Spigelman said in Ellis, a compelling one when one is determining whether to pick up that “no rational explanation” test in section 130 – or construing section 130 of the Evidence Act to adopt that. Thirdly, it is, in my submission, inconsistent with authority in this Court that it is held it is fair to admit this type of evidence confined to this purpose, that is, not to reason by propensity reasoning, but to make the complainant’s evidence intelligible or explain it, admissible only when the probative value exceeded or outweighed, more properly, outweighed the prejudicial effect.

HEYDON J: We have to remember that Justice McHugh was dissenting and Chief Justice Spigelman was dealing with a rather different statute.

MR MOYNIHAN: He was.

HEYDON J: We have to remember those things, at least.

MR MOYNIHAN: I accept both of those points, your Honour, but still, when one is – because really what my learned friend is submitting to you is construing section 130 in a way where it is not a discretion but it becomes a principle of law and, I might add, relating to admissibility which really should be determined under section 132. This is an exclusionary rule, so admissibility has already been determined. So to try and pick up an admissibility test in the general discretion – and that is really, I think, the point that Justice McHugh was making there – admissibility has already been determined in the primary sense, it is relevant and admissible, but you cannot elevate it to a principle of law into this general exclusion provision.

The Court of Appeal was correct to find, in my submission, at paragraph [25] that the evidence had strong probative value, therefore, one has to then immediately turn to whether it outweighed its prejudicial effect and that is the risk of the jury misusing the evidence. Your Honours have already been given the references to his Honour’s directions, but they continued on a little bit after that. His Honour was very specific, told them to be very careful how they reasoned with this evidence.

His Honour gave them the directions to which you have already been taken to. His Honour, though, then set out the evidence for the jury and came back to it at page 237 of the record starting at lines 35. Then over the page on page 238 at line 30 is another occasion where his Honour again warned the jury not to engage in the forbidden or impermissible propensity reasoning, but to use it only to assess the probability of the complainant’s evidence. So the risk, in my respectful submission, was alleviated by those very careful directions and to put the complainant’s evidence forward, I might add, as an isolated incident would have been misleading, it would have been unfair and it would have attracted the obvious questions from the jury, which I have already taken the Court to earlier.

FRENCH CJ: It was implicit, I suppose, in what you have said, but how would you state precisely the line of logic that the jury would apply in the appropriate use of this evidence of prior violent acts, just having regard to the exclusion, which his Honour has made in the direction at 301?

MR MOYNIHAN: The way they should reason is directly related to the way it is admissible, that is the way it is relevant. They can use it to assess the probability of the offence having occurred, as she said, and they are able to use it to evaluate her evidence. In that sense, they are evaluating it in a proper context because without it, it would have appeared extraordinary that this – late at night the complainant invited, or he invited himself - - -

FRENCH CJ: But, what does this reduced to? Does it reduced to saying it is not unexpected or unusual or bizarre that he should assault her like this on that occasion because he had assaulted her on previous occasions? Is that what it reduces to?

MR MOYNIHAN: Yes, in - - -

FRENCH CJ: I am worried about the use of words like “assess” and - - -

MR MOYNIHAN: Yes, and that is why it is important to distinguish between propensity and probability reasoning and that is why I have been very careful, and I hesitate to answer your Honours question, because - - -

HEYDON J: Probably because of the propensity?

MR MOYNIHAN: Only if they reason that because he has done it before he was likely to have done it again on this occasion as distinct from in assessing the complainant’s evidence, is it more likely that it happened as she said.

HEYDON J: Accreditation in-chief. Self-accreditation in-chief. No one agrees with me about these things. I will not vex you further.

KIEFEL J: Mr Moynihan, perhaps another way of looking at it is to say the evidence is directed to the relationship and the jury is thereby to direct its mind to what the relationship is. The conclusion that they might be able to reach on balance is that it is not unexpected because the relationship is violent – has been violent.

MR MOYNIHAN: Quite, and that is why the section is expressly directed to that.

FRENCH CJ: If the term “relationship” is understood as encompassing, say, both attitudes and behaviours towards each other, then one might say, well, this is a relationship which is defined in part by his violence towards her and there must be some premise upon which that kind of reasoning has to be accepted for the purposes of section 132B, but it is hard to escape its reduction to the proposition because he has typically assaulted her on other occasions when he has been intoxicated, he is therefore more likely to have assaulted her on this occasion, or her evidence as to the assault on this occasion is more likely to be correct.

MR MOYNIHAN: But, your Honour, the important point is it is relevant. If it is relevant it is admissible.

FRENCH CJ: Yes. It is just how it is relevant.

MR MOYNIHAN: Then one goes to the discretion and then we are really concerned with unfairness and it is not unfair to use it that way when to leave it out of the equation would in fact cause an unfairness to the complainant because the whole - - -

HAYNE J: The question remains, what are the jury to be told they may do with it. They are told they may not use it as propensity reasoning and they are told use it for context. What does that mean?

MR MOYNIHAN: It means, view it in the context of, as Justice Kiefel just articulated, view it in the context of the relationship between these two people because to use a - - -

HAYNE J: That is, this was a violent relationship in which he had beaten her.

MR MOYNIHAN: Yes.

HAYNE J: Right. Where does the jury go from there?

MR MOYNIHAN: Then they go to assess the evidence informed by that context.

HAYNE J: They do that, do they, from the proposition, this was probably a violent relationship in which he beat her, or do they start from, this was certainly, beyond reasonable doubt, a violent relationship?

MR MOYNIHAN: They do not have to start from there because that would then cause difficulties with the direction in relation to beyond reasonable doubt.

HAYNE J: Well, this was probably a violent relationship. Where do they go from there?

MR MOYNIHAN: Then they go on to assess whether it was probable that the incident occurred as the complainant said.

HAYNE J: The incident probably occurred because it was probable that this was a violent relationship, then?

MR MOYNIHAN: Then they assess that in the context of the whole of the evidence to determine whether they are satisfied beyond reasonable doubt and that would include in this case the evidence of the injuries seen soon after the event and if those matters considered as a whole, it was open to the jury to convict or be satisfied beyond reasonable doubt then it was open to them to convict.

HAYNE J: I wonder whether the answer is not that sequential reasoning of the kind I have described is the difficulty and that it is not a case of sequential reasoning. It is a circumstantial style of reasoning where having regard to all that is on the table there is evidence that it was a violent relationship. She says there was a violent incident, here there were physical marks upon her, the doctor says it is improbable that that could have occurred, taking all of that to account rather than reasoning from step A to step B to step C.

MR MOYNIHAN: That is consistent with what – in a sense - your Honour said in HML, it is always circumstantial evidence, notwithstanding - - -

HAYNE J: Consistent also with Hillier and cases like that that you do not carve up a circumstantial case.

MR MOYNIHAN: Yes, even though there is some direct evidence it is still circumstantial in that respect. I was going to go on to deal with the standard of proof and the finding in relation to standard of – in this case. The first point is that the Court of Appeal made no finding on this issue. They found it unnecessary to do so but in any event it is only the elements of the offence that must be proved beyond reasonable doubt. The complainant gave direct evidence of the elements of the offence and it was open to the jury to convict even if one set aside the evidence of the domestic relationship admitted under section 132B. This goes back to the point I was making earlier, of course, one then looks to how we distinguish this from Pfennig where there was at least a majority in terms of the appropriate direction if - - -

HEYDON J: HML.

MR MOYNIHAN: I beg your pardon – HML - if it was reasoning to show a sexual interest in the child. In my submission, this is a different type of case where the evidence of the history of the domestic relationship was not a piece of circumstantial evidence necessary to prove guilt in the circumstantial case but rather it was evidence of the domestic relationship which was led to assess the probability of the fact in issue having occurred.

The final point I make about that is, of course, also the learned trial judge only ever spoke of one standard and the jury were only ever instructed to be satisfied of matters beyond a reasonable doubt. If I can take your Honours to the passage at 237, line 48, your Honours will see there a reference to “bearing in mind the test I’ve told you to apply”.

HEYDON J: Yes:

are you satisfied beyond reasonable doubt, bearing in mind the test I’ve told you to apply, that the accused assaulted her at the time and place in the indictment.

You say that spills over to the history?

MR MOYNIHAN: Well, his Honour makes that reference to the test “I’ve told you to apply” a couple of times. Your Honours will find it again right at the end of his Honour’s summing-up at page 250 of the appeal book at about line 22:

are you satisfied beyond a reasonable doubt that such occurred, applying the test I told you to?

Then one goes to look for the test his Honour is referring to and the direction concerning beyond reasonable doubt is found at page 213 of the record book starting at about line 20 and then on to page 216 starting about line 49 and going over the page, continuing through to 217 and over to the bottom of 218. I have to concede immediately that when his Honour is talking about beyond reasonable doubt, it is always related to the elements of the offence. He is not distinguishing between the conduct, the subject of the elements of the offence.

FRENCH CJ: He talks about a reasonable doubt about facts that would prove him guilty of the offence.

MR MOYNIHAN: Yes, he does, and a similar passage at the bottom of 218, about line 45:

If, on the other hand, you do not have any such reasonable doubt after you look at all the evidence and you’re satisfied the offence has been proved beyond reasonable doubt, then it would be your duty to convict.

So his Honour refers the jury to the test he has told them about. One goes looking for the test. One finds the test in these passages, in my submission, and that is sufficient in this case to demonstrate that there has been no miscarriage of justice and that the directions that his Honour gave were adequate in all of the circumstances. Those are my submissions, your Honours.

FRENCH CJ: Thank you, Mr Moynihan. Yes, Mr Byrne.

MR BYRNE: Your Honours, just briefly, my friend did refer your Honours to the passage, but can I emphasise, in respect to that last point, the passage which appears at page 213 of the appeal book from lines 22 to lines 33. His Honour, quite specifically there, directs that beyond reasonable doubt relates to the elements of the offence, and goes on to say that it does not apply to “every single word of a witness’ evidence” and the standard direction about being able to accept some and reject others. The directions were clear that it was beyond reasonable doubt, related to the elements only.

My friend also referred to the wording of section 132B, and it does quite clearly talk about “the history of the domestic relationship”. “Domestic relationship” can, of course, cover a series of things which do not involve prior uncharged acts, so it could include hostility, it could include animus; all those things are caught up. Our point simply is, if it goes the next step to where one gets uncharged acts, then established doctrine kicks in and one is then to apply the Pfennig test as a safeguard to the fairness of an accused person, not out of any fairness to a complainant.

The final point we seek to make in reply is, and we understood our friend, in response to a question by your Honour Justice Heydon, to draw a distinction between circumstantial case where Pfennig applies and direct evidence case where Pfennig does not apply, in our respectful submission that cannot be a valid point of distinction given that the test is the same, that is, whether there is no reasonable explanation test. That test, in respect to similar fact evidence, applies regardless of whether the case is a circumstantial one or a direct evidence one. Those are our submissions in reply. Thank you.

FRENCH CJ: Thank you, Mr Byrne. The Court will reserve its decision. The Court adjourns until 10.15 am on Tuesday next, 9 November.

AT 11.43 AM THE MATTER WAS ADJOURNED