BBH v The Queen [2011] HCATrans 121 (13 May 2011)

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BBH v The Queen [2011] HCATrans 121 (13 May 2011)

Last Updated: 16 May 2011

[2011] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B76 of 2010

B e t w e e n -

BBH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 10.08 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR A. BOE and MS P. MORREAU, for the applicant. (instructed by Boe Williams)

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

GUMMOW J: Thank you. You need an extension of time, a substantial one, do you not?

MR WALKER: I do.

GUMMOW J: Is that opposed?

MR MOYNIHAN: No, your Honours.

GUMMOW J: Thank you. Yes, Mr Walker, you have that extension.

MR WALKER: May it please the Court. Your Honours, this Court in HML did not - - -

GUMMOW J: Is paragraph 172 in HML the pivot, in Justice Hayne’s reasons? Two Justices agreed with, I think three probably would not, and one did not venture an opinion.

MR WALKER: Yes, is the answer, completely. Your Honour has captured what I was about to say following the expression in HML, not by reference to 172 but, yes, that is the point. That captures it entirely. In our submission, there is a range of possibility presented in the jurisprudence of this Court from what might be called in utility, Justice Kiefel, through to quite different, indeed perhaps opposite views. For those reasons, in our submission, the point is of surpassing and transcended importance in a kind of trial where this kind of evidence may be regarded as, if not de rigueur, extremely common.

BELL J: It only raises one aspect of this area of controversy of practical significance in the conduct of cases of this kind in that it does not deal with that class of evidence with which the Court was concerned in each of the appeals in HML, which is evidence from a complainant of uncharged acts.

MR WALKER: Quite so.

BELL J: It does focus attention on the discrete consideration to which Justice Hayne’s remarks commence at 172 concerning evidence of - - -

MR WALKER: Sexual interest.

BELL J: - - - of sexual conduct, including from a source apart from the complainant.

MR WALKER: Yes. Now, whether one calls that motive, sexual interest, guilty passion or whether one calls it propensity probably does not so much matter as attending to the substance of the matter.

GUMMOW J: What about Justice Keane’s point at paragraph [41] that the innocent explanation, as it were, just strains credulity too much?

MR WALKER: The difficulty with that as what might be called a dismissal of that argument is that the so-called innocent explanation – and that for once is an appropriate way of putting it – emerges from the evidence of the very witness himself. So that one of the suppositions, artificial as it may be, in relation to admissibility, using Pfennig, namely, assuming the evidence to be true, simply has never been considered by this Court in terms of, well, does that mean you take all the evidence including qualifications and retractions, to which the answer must be surely yes.

CRENNAN J: Did he volunteer the alternative explanation at some point?

MR WALKER: Yes, he did. He, in answer to questioning, accepted that what he saw could well have been the utterly innocent explanation of examining for insect bite.

BELL J: Was that in answer to a question in cross-examination?

MR WALKER: Yes, your Honour.

BELL J: So he accepted that amongst the range of possibilities for the observation that he made, the inspection of the child’s naked bottom for an insect bite was one - - -

MR WALKER: Quite so and so by - - -

CRENNAN J: That was put to him, was it?

MR WALKER: Yes.

CRENNAN J: That is why I asked you whether he volunteered it, Mr Walker, or whether it was put to him in cross-examination which is a slightly different context from volunteering the information, that is to say, he is accepting something put to him in cross-examination.

GUMMOW J: You are causing some agitation amongst your juniors, Mr Walker.

MR WALKER: It depends what you mean by volunteered. It was originally volunteered out of court pre-hearing in a statement that was put to him.

CRENNAN J: Yes, I see.

MR WALKER: So, yes, he volunteered it and the jury was told of his - - -

CRENNAN J: What he volunteered out of court was then put to him in cross-examination?

MR WALKER: Yes.

BELL J: When you say he volunteered it, did you say in response to a statement put to him?

MR WALKER: No. In a pre-trial out of court statement by him he - - -

BELL J: He volunteered to the police in a statement that it may have been an observation of an examination for an insect bite?

MR WALKER: Yes. So in answer to Justice Crennan’s question, both are true. Yes, he volunteered it in the sense he had volunteered it and his volunteering of it before the trial was the subject of propositions put to him and accepted by him, including that he was adhering to those possibilities in court before the jury. In our submission, that makes this case not only a pointed vehicle for the non-complainant guilty passion category of case, which is a most important category of evidence, it also, with respect, raises the interests of justice in the particular case bearing in mind that the dismissal in terms of Justice Keane’s observation that this might be regarded as straining credulity, is after all a matter for the jury but only if the evidence be admissible and admissibility is not a matter which is - - -

CRENNAN J: It is also a utility point, I think, in relation to the grant of special leave.

MR WALKER: Well, yes. But we say that the whole - - -

CRENNAN J: That is to say, the evidence might be admissible even on the Pfennig test.

MR WALKER: That would be a matter for argument, but we submit that the admissibility question, which does not lend itself to any balancing or discretion, it is a rule question, does not lend itself to any curing by direction but may, of course, be subject to proviso reasoning.

GUMMOW J: What do you say about Mr Moynihan’s point on page 138 in his written submissions, paragraph 7?

MR WALKER: There is a distinct awkwardness about regarding the evidence as going to what might be called evidence of a sexual act as an element of the unlawful sexual relationship bearing in mind that the complainant herself did not embrace this striking episode as any such thing. There comes a point where grounds of admission having been argued and the ground of guilty passion having been the ground for admission, the Crown ought to be, in our submission, held to that. True it is it was tendered on both, but its admission for the proof of guilty passion, in our submission, combined with the fact that the complainant herself did not embrace this as an incident means that that first point, found at page 138, about line 40, should not be given any weight.

BELL J: Am I right in thinking that prior to amendments to the provision making it an offence to maintain a sexual relationship, it was necessary for the Crown to particularise a number of instances, two or three, and for the jury to be satisfied beyond reasonable doubt of the fact of those matters having been proved?

MR WALKER: Yes, hence the requirement for unanimity on the same.

BELL J: In which case, if it was relevant to proof of the maintaining charge by way of corroborating the complainant, that was the same basis as its relevance in relation to each of the other offences.

MR WALKER: It comes down to a guilty passion or sexual interest, so that the first point does not represent a second head of innocuous use. The admissibility still should have gone through the requirements which called for examination whether there was an innocent explanation. Here that does not present a difficulty, hence the appropriateness of this case as a vehicle because the innocent explanation was volunteered or part and parcel of the original version of this evidence, as the jury was informed upon that original version being cross-examined out of the witness, and I do not suggest unwillingly at all.

The second matter that Justice Gummow asked me about on page 138, picking it up at about line 30 – or about line 45 in the High Court, I should say, that, in our submission, is really only playing a variation on the theme of sexual interest or guilty passion. So the same point, in our

submission, emerges with clarity as a point properly and usefully raised by the facts of this case. It is for those reasons, in our submission, that this is a case which does justify a grant of special leave by this Court. May it please the Court.

GUMMOW J: Thank you. Yes, Mr Moynihan. I should indicate to you at the moment, at any rate, I think we are inclined to refer the special leave application into a Full Court without at this stage there being a grant.

MR MOYNIHAN: Very well, your Honours. There are only two points that can be made against such a course and they are, as your Honour has already indicated, the finding by Justice Keane that looking at the evidence in isolation is not a proper thing to do. Looked at in the proper sense of the whole of the Crown case, to suggest that it has an innocent explanation is to strain credulity too far. So that even if the Pfennig test does apply, which of course is the aspect of this case, even if it does, then the evidence would be admissible and, secondly, that the evidence was admissible in any event in proof of count 1. So, in my respectful submission, it is on those two bases that it is not a suitable vehicle. I say no more than that in lieu of the intimation.

GUMMOW J: Thank you. This application will be referred then for a hearing by the enlarged Bench. The parties should be ready to argue as of grant of leave. It will be listed for one day. We will adjourn to reconstitute.

AT 10.20 AM THE MATTER WAS CONCLUDED