BBH v The Queen [2011] HCATrans 254 (7 September 2011)

Last Updated: 7 September 2011

[2011] HCATrans 254

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

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 SEPTEMBER 2011, AT 2.15 PM

Copyright in the High Court of Australia

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

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

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, at the outset we have stated what we propose was the proper test for admissibility, this being a case about admissibility as a rule, and we put it on the basis of the expressions with which your Honours are only too familiar in Pfennig [1995] HCA 7; 182 CLR 461 in the passages, first, that I would identify at pages 464 to 465 by way of introductory comments. Their Honours in the plurality there refer to there being:

no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences . . . It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence.

Then the well-known passage that we have suggested could be picked up commencing at 481 at the top of that page:

accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition.

Then at the foot of that page, quoting from the reasons of three of their Honours in Hoch, an inch from the bottom:

the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it –

that is the similar fact evidence –

bears no reasonable explanation other than the inculpation –

That, of course, is a phrase that needs to be read in light of its explanation or elaboration in Phillips and in HML. Then a further explanation of that –

to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty –

Again, that needs to be understood as meaning in the context of the prosecution case and on an assumption about the adequacy, if not inevitability, of the other material to support guilt. At the top of page 483, in the same set of reasons, an analogy and assimilation with circumstantial evidence which is supported in later authorities of this Court the test is to:

ask whether there is a rational view of the evidence –

that is the evidence in question –

that is consistent with the innocence of the accused.

Then there is an important passage in which it is said:

the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.

It might be thought, your Honours, by interpolation that it is a kind of clinching step that is proposed as the test at this point. That is an assumption that it adds something to evidence which does not rationally already make out guilt. Then –

Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.

et cetera. Now, that has to be understood, as my interpolations have already indicated, as subject to qualifications to which I will come fairly soon but in order to render concrete those abstract propositions, may I take your Honours first to the evidence and then to the setting in which it came to be presented at trial. Can I take your Honours in the application book, please, to page 54 to start with. At about line 20 you see the brother, I will call him W, he is referring to a relation’s farm at Maleny:

We used to go camping up there quite often, -

et cetera. Then at page 55, about line 8 or so, father, brother, sister – that is the complainant – and other relations up there for a school break, either end of year or mid year, camping in a van some distance from the houses. At about line 25, a pocket knife missed, gone back for, and then at the campsite, about line 35 on page 55:

There was the caravan up on the landing with my sister standing behind it, bent over and my father sitting on the back grate to the van looking at my sister, and my sister only had a shirt on. She didn’t have anything on from the waist down.

Where was your father’s hand?---It was on her side, on her waist.

And how far away was her – if you could just tell us again, your sister’s bending down. Is it, as it were, touching her toes? Or how was she bending?---Yeah, it was almost as if she was touching her toes, and she was about six inches away from my father.

HER HONOUR: And he was sitting on something, you said?---Yeah, a grate. At the back of the van there is a steel grate.

MR VASTA: And you say he was six inches away. What part of his body was closest to her bottom area?---Beside his hand? His face.

Did you, as it were, keep going back to get your pocket knife or---?---No, I turned around and went back to the group. I went back to the house.

In cross-examination, starting at page 58 just after line 10:

Was your father, when you saw him, fully clothed?--He didn’t have a hat on.

No, but he had---?--Yes.

I think that means he was fully clothed –

When you saw him with your sister bending forward, he had every other item of clothing that one would normally wear?—Yes.

. . .

In fact what you saw was consistent with him perhaps looking for some sort of a bee sting or an ant bite or something of that sort?--That’s correct.

And you said that to [LF], I would suggest, who is his current partner?--Yes.

In fact to get the picture correct, you rang her after the West Australian police spoke to you, but before you signed the statement.

. . . the effect of what I’m putting is true. You indicated to her they’d been around and you were concerned because what you saw was quite consistent with innocent – an innocent act on his part, namely looking for a bee sting or an ant bite or so on. Do you recall ever saying that?--Yes.

And I take it what you said to her was true?--Yes.

And you said to her that you were worried about signing it because of that reason. Do you remember saying that to her?--Yes, I do, due to a – how do I say – difference of perspective.

Then over the page following some reference to interviews during Family Court proceedings, on page 59 at about line 20 or so:

you never told her –

that is a social worker of the Family Court –

anything of this incident that you’ve just related to the Crown?--Well, no.

Because you saw nothing untoward about it, correct?--That’s correct.

In the re-examination on page 60, about line 8 or so:

this conversation about a bee sting or an ant bite, how did that, as it were – who was the one who suggested bee stings and ant bites?--I was.

Did you speak to your father in that conversation?--I don’t believe so.

That is the entirety of the evidence which is the subject of the directions to which I will come shortly. It came to be in evidence by reason of the following events pre and in the early stage of the trial. Can I take your Honours in the application book first, please, back to page 8. When I say “pre-trial”, I am not quite sure whether the jury had been empanelled at this stage but they had been selected. In any event, before evidence proper commenced, at page 8, counsel were presenting some issues for rulings and counsel for my client, at about line 40, says:

Look, it’s a question – it comes down to this: the brother of the complainant maintains that he saw certain indecent acts occurring between the accused and his sister. The sister, the complainant, in no part of her evidence or statements provided attests to those acts. She attests to different ones.

Then the learned trial judge suggests they could be uncharged acts. The response to that does not necessarily follow, of course, but nonetheless there it is:

Well, not even uncharged acts because the complainant doesn’t testify to them happening.

Then there is a passage I do not need dwell on but I do not suggest is irrelevant. At page 9, about line 18 or so, the Crown says:

It’s being led for this reason: count 1 is a maintaining. The Crown says that what the brother saw is an act – an indecent act. It is possible that it can be used as one of the three –

That is, of course, a reference to the three occasions or events that can make up a maintaining and supply proof if the jury is unanimous in at least three. I draw that to attention because the course of the trial shows in the final summing-up that was not adhered to. We do not make complaint about that, but it is relevant because of what fell from Justice Keane in the Court of Appeal, to which I will come. The most important part is what follows in the Crown’s explanation, line 20 on page 9:

Secondly it is led for – as evidence of guilty passion. It is something that the brother saw notwithstanding the fact that the complainant doesn’t attest to it.

There is then debate, which I will not read, about it. The ruling comes after the complainant’s evidence has been given, and one finds that starting at the foot of page 21 of the application book, line 42:

HER HONOUR: I thought I would give a ruling on the evidence from the brother now that I have heard her evidence.

that is the complainant’s –

The application is for me to rule inadmissible potential evidence from [W], who is the brother of the complainant. According to the written outline of submissions that I have seen because I have not seen his statement, he has provided a statement in which he says he observed an incident when he was much younger at a time when the family was camping on the uncle’s property, and he says that he on an occasion . . .

The basis for the application that I rule the evidence inadmissible is that the complainant doesn’t mention an incident with those details.

I interpolate, your Honours will of course notice that that is not part of our argument. Continuing the ruling –

She has now said that there were incidents that occurred at her uncle’s farm involving offences of a sexual nature.

I will come to that in a moment –

The prosecution say that the evidence is admissible on the basis, one, that it could come in as an uncharged act, and, two, that it is relevant to count 1 to show a guilty passion existing towards the complainant by the accused.

I don’t think the fact that the complainant hasn’t mentioned an incident similar in detail is decisive one way or the other. The jury, of course, are told that they may accept all of what a witness says, part of it. They may come to the view if they accept the brother that the event happened but she has forgotten it. She has already given evidence that she remembers some specific incidents, but that events of a sexual nature happened on very many occasions from the time she was a very young child. The probative value of the evidence is that if the jury accept it it goes to show a guilty passion between the accused and the complainant. Such evidence is regularly allowed in matters of this nature. I rule that the evidence is admissible.

There is reference there to the complainant’s own evidence. Could I take your Honours, please, to page 39 of the application book, about line 8 or so:

Did any of these incidents you’ve talked about being sodomised, being sort of touched in the vagina, did they happen on your uncle’s farm?---Yes.

How many?---At least one that I remember.

You’ve never mentioned that in any statement you wrote, have you?---I mentioned it to the guy that first took the statement, but he didn’t get me back in to write it all down.

Was the one that happened on the farm the same type of thing that happened elsewhere?---Yes.

That is where you were what, lying down and he would---?---Yes.

---play with your vagina?---Yes.

It wasn’t the case that he had you standing up, bending over?---No.

Nothing like that ever happened on the farm?---No, not that I remember –

For completeness, I should draw to attention, as we have noted in paragraph 4 of our outline for address, that at page 102 of the application book going over to page 103, so it starts at page 102 about line 34 or so and goes over to page 103 about line 31. There is a passage of evidence in the cross-examination of my client, the accused, which certainly does not embrace a searching for an insect sting episode.

I think a fair reading of the “Noes” that one sees at 103 at about line 5 or 6, that might be ambiguous, that one, but then the “no” at about line 12 on the same page, I think I have to accept that together with the “No” at line 31 on the same page, there seems to be a refusal to adopt that narrative. That was where the evidence lay on the matter. Could I, in relation to the use of it made at trial, add one further reference beyond those we have set out in our written outline for address? Could I take you first, so as to put it in context, to page 147 of the application book - about line 29 it starts. Her Honour told the jury:

In addition you have the evidence of the complainant –

and I stress “of the complainant” there –

concerning these other uncharged acts of sexual activity involving the accused.

There are quite a few references to that in the evidence. Simply by way of example could I suggest to your Honours that the passages - I will not take you to them - the passages at 27, lines 18 to 25 and 29, lines 3 to 6 would be examples of such uncharged acts expressed in general terms. As to those at about line 39, her Honour said:

If you accept the evidence it shows, so the Prosecution says, the true nature of the relationship –

I stress these are uncharged acts given in evidence by the complainant -

and therefore puts these charges on the indictment in their proper context. That is, that it’s put before you to say the true context of the relationship wasn’t that these individual isolated things occurred, the true nature of the relationship was that there were lots of these acts –

and, in fact, the word “lots” with respect to her Honour is a verbatim quote from the complainant -

but either because of the lapse of time or her age at the time, there’s no specific. But that’s the only purpose placing the alleged events on the indictment, these charges, in the proper context.

Then there is further direction that I will not read, but which is obviously germane in the next printed paragraph about lines 11 to 30 on page 148 and a reference to the use of the material including the burden and standard of proof on the same page about which, of course, no complaint is made.

But, could I then take your Honours – sorry, before I pass to 152, I should draw to your attention the foot of page 150, top of page 151, there is further reference to the uncharged acts with respect to the care required in scrutinising it. Then we come to the material in question referred to specifically at page 152 about line 21.

Your Honours, that starts off with a reference that I accept may appear to be an elephant in the room and perhaps I should mention it. At about line 22 you will see there is a reference to the evidence from the mother and your Honours may have seen reference to that in general terms in the Court of Appeal reasons. I do not want to take you to it, but the evidence in particular, or the evidence that her Honour is there referring to, can be found in particular at 63, lines 26 to 32, or really through to page 64, line 10, and in cross-examination at page 73, line 26. It has three kinds of episodes of the mother’s evidence. That is what is then referred to - - -

HEYDON J: But the mother’s evidence has nothing to do with your application. You are just concerned with W’s evidence.

MR WALKER: Your Honour is correct. I should explain and elaborate to this extent. The mother’s evidence was not objected to. It was, in fact, as recorded, the subject of one of those frank exchanges that in retrospect counsel wish were never had, where counsel says he would like to object but thinks he cannot. That is settled then between Bench and Bar table about the matter, so it was not objected to at trial. It was not the subject of any appeal in the intermediate court. It is not the subject of special leave to appeal and I cannot think of a way to allege that it is error for the trial to have proceeded, or the Court of Appeal to have proceeded, as it did given counsel’s position. That is not to say we accept it was admissible. It is to say that that train has left the station without us.

GUMMOW J: Do we have to understand section 229B to work out what the relevant actus reus is?

MR WALKER: Yes, of course, but there is nothing either peculiar or critical about the quality of the physical element in the context of this case. In particular, it has no effect – either I assert or I concede; I am not sure which – on the nub of our argument which concerns the, as we put it, overtly equivocal nature of W’s evidence. Continuing on page 152, the direction then, as I say, is a direction that refers indifferently to the mother’s and the brother’s evidence. At about line 33 her Honour says:

That evidence has been called by the prosecution because they say it is evidence of the relationship between the complainant and the accused and part of the background against which evidence - - -

KIEFEL J: I am sorry, Mr Walker, what page are you on?

MR WALKER: Page 152. I am sorry, your Honour. This is the direction about the evidence in question:

That evidence has been called by the prosecution because they say it is evidence of the relationship . . . it gives you a true and realistic context which will assist you in deciding whether the complainant’s evidence against the accused in respect of the charges is true. Put another way, they say it’s evidence capable of establishing the guilty passion or the sexual interest by the accused in the complainant, or by proving an unnatural or unexpected relationship of sexual intimacy between the father and the daughter.

GUMMOW J: It is not just maintaining a relationship, is it?

MR WALKER: No, your Honour.

GUMMOW J: Because 229B(1A) has been introduced as a complex set of norms by the word “unless”.

MR WALKER: Yes:

unless . . . during the period . . . done an act defined to constitute an offence . . . on 3 or more occasions - - -

FRENCH CJ: Now, that has been described, I think, in KBT as the actus reus.

MR WALKER: Yes.

FRENCH CJ: What role does the relationship play in the definition of the offence?

MR WALKER: The relationship itself plays no role at all, any more than any circumstantial or similar evidence plays a role in the element of an offence. In other words, without any pre-existing sexual interest, and a sexual offence may be committed, but, of course, pre-existing sexual interest may be relevant and admissible in a case concerning a sexual offence.

CRENNAN J: But do the three instances raise a notion as part of the offence the question of disposition?

MR WALKER: Unquestionably an offence, the core of which is conveyed by the verb “maintains” and has a reference to relationship, unquestionably the setting in which you would expect the following words of subsection (1A) which are prescriptive, that is limiting, as to the manner in which it may be proved, made out, you would expect that those words will be construed in a setting in which it would be impossible to say that evidence of disposition is by dint of subsection (1A) irrelevant. Of course it is not.

Subsection (1A) is saying what must be proved in order to make out the offence described in subsection (1) of maintaining an unlawful relationship. It is difficult, I accept, to suppose any statutory offence of a sexual nature which more obviously opens the door to what has been called in the cases relationship or context, sometimes background, sometimes guilty passion, evidence. However, it is not - - -

GUMMOW J: The reference to actus reus in KBT which is pretty important thinking is at 191 CLR 407 at 422.

MR WALKER: Yes.

GUMMOW J: Is that adverted to in the Court of Appeal?

MR WALKER: KBT was not adverted to. I am sorry, I am saying that on the basis of the reasons for judgment.

GUMMOW J: Yes.

MR WALKER: On my reading of the record, no difficulty or difference emerged at any point of the trial or appeal between the parties in relation to what KBT required. As an aside which, with respect, we think has nothing to do with any of the issues in this case, there are some passages in her Honour’s summing-up that may have been unfair to the prosecution about KBT, that is about the requirement of unanimity for three, it says three or more.

But in any event, that is of no moment. That is the only trace I could find in the record of what I will call a KBT issue. There appears to have been no issue. There is, I think, still between us at the Bar table no issue concerning the capacity of the material before the Court – I will use a neutral expression – particulars as being available to supply the at least three upon which a unanimous jury decision would make out the offence defined by the combination of subsections (1), (1A) of 229B.

FRENCH CJ: Is the establishment of a minimum of three offences of the kind referred to in subsection (1A) a necessary condition for establishing the maintenance of an unlawful relationship or is it a sufficient condition? It reads like it is a necessary condition, but there is a reference - - -

MR WALKER: It certainly is necessary.

FRENCH CJ: I am just trying to reconcile that with what is said in KBT.

MR WALKER: Well, I do not think, with respect, KBT was concerned with the difference between necessary and sufficient.

FRENCH CJ: No, it did not address that.

MR WALKER: I am trying to address your Honour the Chief Justice’s question about how this sits with KBT. I think my best answer is it sits perfectly well. The holding in KBT was not something which divided the parties or led to any difficulty in the trial or intermediate appeal in this case; as to a KBT point of unanimity on the same three, no difficulty. Perhaps if I go on to the summing-up, there is another passage that might be relevant to that point. Before I go to it, I need to complete what I was saying about the direction concerning the evidence in question in this application. Page 153, the very next printed paragraph, about line 8 and following, there were warnings or directions given about how the jury must proceed. First of all, I quote:

you must be able to satisfy that it’s honest evidence, so that the mother is telling the truth about it, what she saw, or that [W] is telling the truth, is being honest about it. That it’s reliable. That they haven’t been mistaken about it, that they are accurate about what they saw.

And this is the most important passage, I accept –

Then you must be satisfied –

Now, this is a direction to the jury about their fact finding. We say this is a case, however, about admissibility –

that what it was that they saw does show a sexual interest, you know, an unnatural or unexpected natural –

I do not think that could be natural, but anyhow –

interest by father and daughter and that it doesn’t have an innocent explanation. If you were satisfied of those things, then the prosecution say the existence of the relationship demonstrated by those incidents helps you evaluate and decide that the complainant’s evidence is true.

It is a kind of corroboration purpose –

They are not charges in themselves, that’s the way in which the evidence is sought to be used.

Could I then take your Honours over to page 163, at line 15 or thereabouts, in the summary of the cases, Mr Nolan being counsel for my client. Her Honour says this:

He spoke about the brother incident.

That is the matter with which we are concerned here –

He wondered whether there was any value in the brother whatsoever. I told you what the prosecution say, if you accept it, that if [W] was honest, reliable, that that happened, that there wasn’t an innocent explanation, that it did show a sexual interest between the father and the daughter, then it puts the relationship in true context.

Mr Nolan made the point she didn’t describe an incident like this, only he did. Mr Vasta –

that is the Crown –

said, “Look at his reaction when he saw it. He didn’t go in and say, ‘What, has she been bitten?’ He got on his bike and left.” “But,” he said, “it’s understandable that he, [W], would now try to find an innocent explanation for it, he loves his father, but he has come here and he’s told the truth and he’s been accurate and there’s only one” – Mr Vasta says – “there’s only one interpretation for it.” Mr Nolan says, “Look, she didn’t even describe it, the boy didn’t intervene, the evidence doesn’t really take you very far at all.”

That your Honours could and should treat as a reliable summation of the course of the trial so far as the advocate’s stances were concerned about this evidence and it has this character, that the innocent explanation component of the use of this material was squarely given to the jury as their task rather than as playing a role, as Pfennig would require it to play a role, in the anterior question, nothing to do with a jury, of admissibility. Could I take your Honours then, I think, to 165, the very foot of that page – sorry no, starting about line 12 there is a reference to the “maintaining charge”. I will not read it. At the top of page 166 you will see there is a reference to –

you’ve got nine of them on the indictment to consider.

That is what I will call, if you like, the particulars:

But before you can be satisfied that the accused did an act of an offence defined as an offence of sexual nature on three [occasions], you must all agree to the same three acts or offences.

That is what I will call the KBT direction. There is an example of what they cannot do and her Honour continues:

So you must all agree as to the same three offences and there must be at least three offences or acts of a sexual nature. If you cannot be satisfied of the same three or more occasions, then the charge hasn’t been made out.

That is one of the references that may have been unfair to the prosecution. It may have been a bit confusing. We do not say it is of any moment and obviously we make no complaint about it. At page 167, in relation still to this maintaining offence, 229B, at line 20 her Honour makes it clear how the case had then been presented:

In this case, as well as the specific counts on the indictment –

that is the ones you have nine of –

the prosecution relies on the evidence -

of the complainant, and I stress of the complainant because it had already been made clear, of course, the complainant did not give evidence of what W gave evidence of, or at least that is what we say the record reveals and that appears to have been accepted from the passages I have read:

of other uncharged acts of a sexual nature to establish that the accused maintained a sexual relationship with the child . . . She has not been able to be specific about when and where . . . If you have a doubt –

et cetera. The same KBT direction which is not critical to this case is found at 168 about line 15. I do not need to pursue that any further. In the Court of Appeal, if I could take your Honours please to page 212 of the application book, under the heading “The evidence of W”, Justice Keane, with whom Justices Holmes and Lyons agreed, noted that at the appeal it had been argued that this evidence was:

at best, so equivocal that it should have been excluded altogether.

Then there is a reference about an inadequate warning.

CRENNAN J: Was the Pfennig test raised before the Court of Appeal?

MR WALKER: Judging by the content of the reasons and with an assumption that I would urge your Honours ought to make, namely that nothing material is left out from the reasons of argument raised, no, a matter that I cannot explain further than in saying that the reference to the evidence being equivocal is, as your Honours will hear, in our submission, an argument that necessarily required Pfennig to be considered, equivocal character being, in our submission, a very signal indication of the safeguard test aspect of Pfennig not having been observed.

HEYDON J: It really suggests rather an argument that it should have been excluded as a matter of discretion. Its probative value is - - -

MR WALKER: Your Honour, with great respect, I do not think I can argue against that, particularly the way the - it should have been excluded altogether. I do accept that that is language that is rather redolent of an argument for (a) the existence of a discretion as opposed to an exclusionary rule and (b) a clear case for its exercise. I do accept that that is language that suggests – that is how the matter was put in the Court of Appeal. However, as I say, the fact that it was an argument based upon the equivocal nature of the evidence is an argument that, as it happens, picks up that which should have triggered a notoriously important aspect of the Pfennig exclusionary rule.

HAYNE J: Do I understand the argument to be this? The evidence was relevant because it was evidence that might – in the sense of may – bear a discreditable interpretation, but it was not admissible, you say, unless the evidence could only bear a discreditable construction and, if the evidence were accepted and placed in the context of the prosecution case, the evidence admitted of no explanation, except guilt.

MR WALKER: Of course I do not say the last. My response to Justice Hayne proceeds in several steps. The first is that, of course, as you have seen from the argument attributed to the Crown in her Honour’s summing-up, this was advanced as discreditable conduct. It was advanced as being evidence that bore only a discreditable interpretation and discreditable in a respect sufficiently specific to make it by way of relationship or cognate concepts relevant for the charges in the indictment.

Our position is that if that is the way in which it was urged as relevant, its admissibility, given that character given it or attributed to it by the prosecution as the means for it being relevant, attracted the rule in Pfennig’s Case. That rule has a safeguard aspect to the exclusionary possibility. That safeguard element has to do with if the evidence is accepted – and I stress the evidence is accepted – rather than conclusions based on it and other things - if the evidence is accepted, it left in the very words of the witness whose testimony supplies the evidence, an innocent explanation. Thus it could not be, so to speak, the clincher. It could not, combined with the rest of the prosecution case on the assumptions that this Court has sought to explicate in Phillips and HML, leave the position as being no possibility other than guilt of the charged offences.

HAYNE J: So instead of the double-barrel test for admissibility that I have put to you, you would say that it was not admissible unless, if accepted and placed in the context of the prosecution case, there was no explanation consistent with innocence and, by its very nature, the evidence was equivocal?

MR WALKER: That is exactly it, yes. I do stress, the evidence is what the boy saw and that evidence was conveyed by the eyewitness describing it in terms of its consistency with innocence, that is, an innocent occasion. Obviously evidence of an innocent occasion cannot contribute by way of contextual background relationship or guilty passion material to a consideration of the whole of the prosecution case including that evidence, excluding an innocent explanation.

BELL J: I am sorry, I may not have taken in that last submission, so I will ask the question in any event. In determining the character of the evidence in terms of whether it bears the discreditable aspect, does one have regard to the other evidence in the prosecution case?

MR WALKER: We would submit not, that that would lead to undesirable circularity.

BELL J: In terms of authority, what do you rely on for the proposition that one looks at the evidence in isolation - - -

MR WALKER: No, I cannot say that, and I do not say that. It is the relevance of the objected evidence, the evidence objected to, it is the relevance of that to facts themselves relevant to the issues for the charged offences which is the test for admissibility, subject of course to exclusionary rules. Like all evidence, it comes in a context. The circularity to which I referred is that one could scarcely say there is complainant’s evidence of an unnatural sexual relationship, indeed of criminal offences, and that makes more credible the sexual flavour of this visually equivocal occasion narrated by the brother. Given a sexual flavour, that incident in turn lends support to the credibility which is critical to the Crown’s case on the complainant’s evidence about the actual offences charged. That is the circularity to which I refer.

Now, avoiding that circularity is not, with respect, to see the evidence objected to in isolation but, rather, to evaluate it in relation to the contribution which it may bring without straying into the nefarious imbalance of probative and prejudicial value that is the subject matter of Pfenning’s Case. In our submission, the way in which the test that we have advanced by way of the argument noted in paragraph 1 of our outline for address, the way in which that test is expressed, does not obviously require the evidence to be seen in isolation but it does require its own merits or relevance to be assessed without drawing upon the relevance of other evidence incontestably admitted.

FRENCH CJ: Do you say that the equivocal character of the evidence denies it the quality of relevance to the existence of a relationship of a sexual nature?

MR WALKER: Yes, but in saying so, I need to confront this. We are here talking about an exclusionary rule, preventing this evidence from getting to the jury at all, but when an eyewitness narrates what he or she remembers seeing, it is of course an everyday occurrence that there are competing arguments, if one likes, about inferences as to what the import of the narrated scene was. Thus, for example, was something an altercation or a joke; was something a fight, or a dance, et cetera?

If there was no question about admissibility and no exclusionary rules in question, then evidence that on one view was no help to the prosecution case at all and of no assistance to the defence case and thus irrelevant, will nonetheless go into evidence if there is another view that would make it cogent evidence, and that depends upon a jury view of it, seeing no doubt in the context of the whole evidence and taking into account their common sense and experience of the world, et cetera. But where there is an exclusionary rule, then, in our submission, that approach which can be seen to be the approach which was taken in this case after the objection was overruled, that approach becomes unavailable and, in our submission, the evidence was either irrelevant in what I will call a plain vanilla sense, no special exclusionary rule, it was either irrelevant because it was equivocal, and for the reasons I have just put, that is in general terms a hard proposition to make good in the abstract - - -

KIEFEL J: Could I say, the question about whether it is relevance in the Pfennig sense of it being equivocal would be to the test to be applied by the judge as to whether there is an innocent explanation.

MR WALKER: Quite so, but when you come to this - - -

KIEFEL J: But that would be after the judge has concluded that the use to be made of the evidence is, people do not like necessarily the word “propensity” evidence, but we know that is similar fact evidence, and a distinction between this case perhaps and Pfennig is that here the evidence was not critical to the line of reasoning towards guilt and that is why the innocent explanation test had to be applied to it, because the judge would have to be satisfied that the course of reasoning to a conclusion of guilt was made out. The evidence here was not being used for that purpose, really.

MR WALKER: No, quite. I said earlier - - -

KIEFEL J: That is why we are in a sort of a nether area.

MR WALKER: Quite, but, in our submission, on any view of it, it falls under the rubrics – and I do not suggest these are categories that are either mutually exclusive or are necessary, perhaps even useful analytical tools, but they are words that have been used in authorities in different circumstances, “relationship propensity”, “similar fact”, “guilty passion”, “context”, “background”, “explanatory” are some of the epithets that are found - - -

KIEFEL J: It is certainly supportive evidence of the complainant’s evidence.

MR WALKER: It depends what one means by “supportive”.

KIEFEL J: I know that carries a lot of freight.

MR WALKER: It is certainly consistent and I - - -

KIEFEL J: With the relationship to which she refers.

MR WALKER: Yes, but then an ordinary paternal hug alas may also be consistent with guilty passion, in the sense that people with guilty passion may also hug their daughters.

KIEFEL J: But this perhaps comes back to the question of the weight to be attributed to the evidence and whether the area for true objection was on discretionary basis, but you have conceded that correctly.

MR WALKER: I accept entirely that - - -

KIEFEL J: I understand that.

MR WALKER: - - - issue was raised and has not been ventilated below, yes.

KIEFEL J: Do you draw any distinction between the fact that W gave the evidence and not the complainant?

MR WALKER: It is difficult in principle to say that that should affect – I do not say that that should affect the application of the exclusionary rule. It does, however, provide a ready explanation for why this evidence may stand quite apart from other evidence in the case. Let me explain. Many of the cases involve similar fact evidence given by the complainant of uncharged acts which themselves, if the evidence be accepted, shows the commission of a similar offence on another occasion, not charged.

As some of your Honours have pointed out, if I may say so on several occasions, it is rather difficult, perhaps even artificial, in such a case to labour long at the question of innocent explanation. On the assumptions in question the complainant says “and he did this awful thing to me on another occasion” and that awful thing is, say, a sexual offence. It is very difficult to say that if accepted and if the other material in the prosecution case be available to support prosecution – conviction, it is very difficult to say it is consistent with innocent explanation. So this case is distinguishable from those in a way that makes this case a useful test of the utility and continued force of the exclusionary safeguard aspects of the rule in Pfenning’s Case.

KIEFEL J: But if the complainant had given the evidence would it have been more clearly evidence of the relationship to which she referred?

MR WALKER: It is almost impossible to imagine this evidence being given by the complainant, because it is only evidence of the physical configuration of two people seen at a distance, I do not mean a long distance - - -

KIEFEL J: Well, it might have been difficult to understand why it was not charged but that quite often arises in relation to uncharged acts.

MR WALKER: Well, it is very easy to understand why there was no charge about an incident at the caravan in fact because on any view of it - - -

KIEFEL J: Of the innocent explanation possibility.

MR WALKER: On any view of it it was equivocal and the complainant gave no corroborative evidence. Your Honour asked me to consider the hypothesis of the complainant having given this evidence - - -

KIEFEL J: Yes, I understand the distinction because it could not have that - the missing element of certainty about what had occurred.

MR WALKER: It could not have had its essential equivocation if given by the complainant.

KIEFEL J: Yes, I understand.

BELL J: A feature that distinguishes it from many of the sexual cases where there is evidence of uncharged acts given by the complainant is that in those cases it is common to speak of the evidence being given because it puts the relationship in a context and makes intelligible the complainant’s account. That seems to me to have little role, if any, to play here.

MR WALKER: Quite so. And yet, the very next passage I want to go to at page 213, paragraphs [40] and following of the reasons, that is the very reasoning, we submit with great respect, fallacious, upon which the Court of Appeal dismissed the appeal on this point, that it rendered “intelligible”, et cetera. You will see that very expression at the end of the first sentence of Justice Keane’s paragraph [40].

BELL J: Yes.

MR WALKER: In our submission, this kind of evidence from another person given in a way that a complainant cannot readily be imagined to have given it volunteered, as it were, coming inseparably with the eyewitnesses volunteering of its consistency with utter innocence – all of that, in our submission, puts it in stark contrast to what might be called the usual run of complainant’s uncharged act evidence.

BELL J: But I think the other aspect underlying the reasoning in the Court of Appeal was that it was evidence of sexual interest.

MR WALKER: That is precisely where, in our submission, there was a need to apply the safeguard exclusionary aspect of Pfennig and because of the way in which the evidence came, with part and parcel of it being the availability of innocent explanation, it should not have passed the test of admissibility and the objection should have been upheld, though I am bound to point out the objection did not put these points. In any event, there was an objection to its admission and it was, in our submission, inadmissible.

In paragraph [41] a further ground of relevance, and thus admissibility, is held by Justice Keane – namely, that it was relevant because it tended to establish the maintaining offence in that it revealed a sexual relationship between the appellant and the complainant. We do not think, with respect, that his Honour was there suggesting it was available as one of the three acts upon which at least there needed to be unanimity by the jury. I have taken you to the summing-up that surely put paid to that notion.

I am not able to explain why it would be relevant only to the maintaining offence insofar as it revealed a sexual relationship, because insofar as it revealed a sexual relationship it would be, surely, if relevant at all, relevant to all the charges, all of which were sexual in nature. Be that as it may, for the reasons I have already given in answering Justice Bell and generally otherwise, no, this was not material which could be regarded as revealing a sexual relationship in such a way – that is, bereft of innocent explanation – as to pass muster under Pfennig.

The very next sentence in paragraph [41] really underlines the point. The essential inquiry about the character of this evidence and how it might contribute to the trial was shifted illegitimately from the judge, ruling on admissibility, to the jury deciding what, if anything, to make of this equivocal event narrated to them by someone who simultaneously advanced the innocent explanation. That is why, with respect, the suggestion of the possibility of straining credulity too far is inapposite because it continues the placing of the material before the jury rather than attending to the matter as an admissibility concern.

I should draw to attention, at the top of page 214 in paragraph [44], that his Honour also called in aid the direction to which I have drawn attention where her Honour, with respect, very clearly warned them not to use it if they were not satisfied he did not have an innocent explanation. Once again, that, in our submission, was placing that aspect of the evidence, namely, its obvious possession of an innocent explanation, was placing it at the wrong part of the trial and thereby, in our submission, allowing prejudicial effect of a kind that the whole point in Pfennig’s Case is designed to control, limit or exclude.

I should draw to attention also on page 216 on another appeal ground his Honour’s reasoning includes in paragraph [57], first sentence, a statement concerning another possible use that appears to be a kind of corroborative use. I do not think it takes the matter any further. It does, however, rather confirm the significance of this evidence as the evidence, of course, of someone apart from the complainant being tendered in support of conviction.

Your Honours, I have already referred to what I want to in Pfennig. I do not need to dwell over long, if at all, in Phillips [2006] HCA 4; 225 CLR 303. We have drawn to attention the, with great respect, important passage in paragraphs 59 to 63, pages 322 to 324, which places in context and explains the all important innocent explanation notion. It is not appropriate for me to read you any particular passage, but we do, of course, rely on that. We do not think there is any controversy between the parties about it.

Can I jump over HML for the moment and briefly mention Roach, which, of course, is a statutory question. However, in the paragraphs [15] and [16] there is reference to Pfennig, as your Honours undoubtedly recall, that is, where the common law is being referred to. At the end of paragraph [15]:

The decision in Pfennig added further requirements concerning proof, which make the rule more stringent.

Then there is a reference to the case and the explanation of why and how the rule based upon the principle there identified is intended to operate and, importantly, bearing in mind the matter that Justice Heydon has raised with me, the emphasis that I have tried to lay in this Court on this being a rule of admissibility, not a discretion. That brings me to HML in conclusion. We have set out in paragraph 13 – I fear looking at it now perhaps too voluminously – relevant references in your Honours’ respective reasons.

HEYDON J: Paragraph 13 of?

MR WALKER: Of our written outline for address. On reflection, we will not take you to all of those. We hope those references are useful as identifying, for the purposes of this argument, the passages that show the, with great respect, not entirely consistent approach taken to the basal question for this case. We respectfully submit that this is a case that very much fits a possibility considered, in particular, first by the Chief Justice in [2008] HCA 16; 235 CLR 334 at 359, paragraph 27, the middle of the page:

There may be cases in which the nature of the dispute about the complainant’s testimony –

I just note that we are talking about complainant’s testimony –

considered as a whole, is such that acceptance of the evidence of the uncharged acts is inconclusive.

We interpolate, that would surely be so if one is talking about someone other than the complainant with the effect I have earlier described with its inbuilt and overt equivocal character where acceptance required by the assumption in question would, nonetheless, produce that which can be described as inconclusive in Chief Justice Gleeson’s words. Then his Honour distinguished that case from such a category of case, not least because they would have satisfied the Pfennig standard. In our submission, if things are left inconclusive by acceptance, as we submit it must be, with evidence accompanied by the volunteered equivocal character as it was in this case, that ought to be understood, as in his Honour’s opinion, of a kind which will fail the Pfennig test.

May I then turn directly in Justice Hayne’s reasons. We have drawn to attention two passages, the long one from all of paragraphs 102 to 118 plus later comment at page 171, but it is 111 that I would wish to lean on, with great respect, and we otherwise submit that the whole of that passage supports the position that we have put on the basis of Pfennig. In paragraph 111, your Honour was turning to evidence of conduct which did not have the, what might be called, conclusive character of the nature that if accepted it showed an offence. Much evidence, of course, that suggests a sexual relationship or a guilty passion may not in itself constitute any offence. However, in that context Justice Hayne says:

It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence.

We interpolate, with respect, quite so if we are talking by hypothesis about conduct not itself constituting an offence but urged to be relevant because of what it may add to a nefarious appearance generally - - -

HEYDON J: Can I just interrupt? Are you saying that this incident observed by the brother was not capable of being regarded as a criminal offence; section 212? It is capable of being regarded as an indecent assault, is it not?

MR WALKER: Yes, I am trying to be careful about - the short answer is no, I was not in that last submission putting that about the boy’s evidence, but may I directly answer your Honour’s question. If what the boy saw and narrated was in fact what I will call an indecent dealing, then yes, of course it would be capable. A different question - - -

HEYDON J: If it was in fact, it was not just capable, it was.

MR WALKER: It was, I am so sorry. A different question, but closely related to it, would what the boy said amount to evidence capable of proving that fact? Answer, no, not beyond reasonable doubt. What the boy said would irretrievably leave reasonable doubt concerning what it was he saw.

HEYDON J: But for admissibility, does it have to prove it beyond reasonable doubt?

MR WALKER: I knew I would get into that trouble sooner or later, your Honour. The answer is no, it does not. Your Honour asked me could it amount to an offence, and in relation to whether it could amount to an offence, then one answer about it is no, its very nature, given the way in which it was couched and presented means that it would not have made out an offence. If what he saw was in fact an offence, then so be it, but the way he narrated it would not be sufficient evidence to prove beyond reasonable doubt the commission of an offence.

HEYDON J: Even concentrating just on the evidence-in-chief, rather than the cross-examination? The admissibility of evidence-in-chief does not depend on its being damaged in cross-examination or explained in cross-examination.

MR WALKER: Yes, and that with great respect must be the case. One cannot approach these cases by anticipating what might happen in cross-examination and the rulings should be in advance.

KIEFEL J: If the evidence that he gave was not sufficient to disclose an offence, but may have conveyed to the jury something approaching sexual interest in a child, or behaviour consistent with it, what do you say about that as an intermediate fact towards proof of the offence?

MR WALKER: I am not saying in the Shepherd’s Case thinking – I am not talking about it as being something so important to the commission of - - -

KIEFEL J: No, the reason I raised that then, Mr Walker, is that her Honour summed up, indeed, directed the jury that they could not use it unless there was no innocent explanation for it, so she has given a direction.

MR WALKER: I know, I have drawn that to attention, and what I have said about it is – maybe I will put it slightly differently now. That is well and good, but it is happening at the wrong phase in the trial. It should not have gone at all. But of course, I recognise the force of what your Honour observes. That was said. I have not answered Justice Heydon fully yet - - -

KIEFEL J: I am sorry, I did not mean to interrupt.

MR WALKER: No, I am sorry, your Honour. Yes, we do say that the evidence understood according to what the court had at the time of the ruling, which does not seem to include depositions, we do say that that would not make out an offence, and that is because of its equivocal nature.

HEYDON J: But to have sexual interest in a young child and to place a hand on her while she is half naked – it may be a minor version of a crime, but it is surely an indecent assault.

MR WALKER: It is. Of course, I do not want to be heard against that. It is the first component of that that we submit is that about which the equivocal character is critical.

HEYDON J: What do you mean by “equivocal”? Do you mean the possibilities are evenly balanced?

MR WALKER: Yes, it not being from that evidence possible to say that this was, as the boy suggested, a possibility or whether it was criminal. It is not the case, obviously and mercifully, that every dealing between a parent and a wholly or partially naked child is indecent.

HEYDON J: That is true.

MR WALKER: That is really all I am saying about the equivocal character of what he saw. To see a father with a child partially unclothed is not a lay down misère demonstration of sexual interest. That really is all I am saying. That is my point.

BELL J: That may bring us back to the question of, in determining admissibility, whether one has regard to the other evidence that has been led or is anticipated to be led in the prosecution case.

MR WALKER: Yes, and then brings back again the difficulty of what we submit is this circularity or backwash effect whereby evidence which is being evaluated for its possible contribution to the prosecution case is itself being supported or given a character by the other evidence in the prosecution case. It is as a component, to use the kind of reasoning that some of your Honours have quoted from Justice Hodgson in this regard – my word, not his Honour’s – it is the possibility of it being a clincher that illustrates that in principle one is concentrating on whether this piece of evidence should be added to the record against the accused.

The test that this Court has laid down in Pfennig and has not departed from since, is that, among other things, if accepted and seen in the context of the rest of the prosecution case about which a further assumption is made, it will not be admitted. It will not be admitted, it is not a matter of warnings to the jury, but it will not be admitted if a view exists of it consistent with an innocent explanation. The striking quality of this evidence was that it did not require any departure from the boy’s evidence in-chief for his own – he is the eyewitness, he is the one narrating it, it is not a commentary by anyone else – his own mixture of recollection and interpretation; he volunteers an obviously innocent explanation. That is why the case presents, in our submission, as an example of equivocal conduct within the meaning, we would respectfully submit, of the way Justice Hayne was using that expression in paragraph 111 of HML.

HEYDON J: Which I interrupted your analysis of, for which I apologise.

MR WALKER: Not at all, your Honour. If I can go back to paragraph 111, it is the next sentence, that is, the last sentence of paragraph 111 that I would add to my answer to Justice Bell just now. One can mix one’s metaphors. There is a bootstrap exercise that is to be avoided. It is the contribution of the evidence objected to to the prosecution case that has to be the focus, with respect, bearing in mind the underlying principle being the acceptance of the prejudice of uncharged acts.

HAYNE J: Regardless of what I said in HML, the starting point, I think, for the analysis is to recognise that the evidence in question is evidence that is advanced by the prosecution as showing other discreditable conduct.

MR WALKER: That is right.

HAYNE J: That is, discreditable conduct other than that which is charged and is the subject of trial which is said to support a conclusion of guilt of the offence or offences charged and unless one begins from a clear recognition of that distinction.

MR WALKER: Yes. We are in this position. We say there is no discreditable conduct shown by this evidence. That is that submission put on behalf of my client to the jury. That obviously means it should never have been admitted. But taking the prosecution proffer of the evidence as it was, that it showed discreditable conduct, guilty passion, et cetera, then, in our submission, it is a part of the Crown case, which happened in this case, no doubt because it came from someone other than the complainant, to have an inseparable inherent quality in it overtly pronounced by the witness, not needing to be spelled out, of being equivocal.

The contrast then is with the position that Justice Hayne referred to at the foot of paragraph 118 in HML, page 386, the last sentence of that paragraph where reference is being made to evidence of other uncharged

conduct being evidence given by the complainant, a matter to which I have earlier referred. Could I, in your Honour Justice Heydon’s reasons in HML, please go to page 430, paragraph 287.

BELL J: Could I just invite you, before we go to 287, to turn to paragraph 279 on 426.

MR WALKER: Yes, your Honour.

BELL J: Where there is some discussion of the G-string incident. If one goes to the concluding part of the paragraph as it appears on 426 and over to the top of 427, it was the significance of the evidence taken in the context of the other evidence.

MR WALKER: Then your Honour no doubt wishes to direct my attention to the foot of page 426, the sentence starting “By itself” and by contrast, the three sentences further on, “Taken with all the other”?

BELL J: Yes.

MR WALKER: Now, that is taken with all of the other uncharged acts evidence rather than, of course, taken with the evidence of the charged acts. There is, of course, a difference in terms of the matter which, in fact, I wanted to draw to attention in paragraph 287 which is this notion of the evidence objected to being tested for admissibility under Pfennig by reference to the contribution it could or should be permitted to make to the overall prosecution case.

BELL J: All right.

MR WALKER: In our submission, there is no support in paragraph 279 for the charged acts evidence being used to bolster an argument for the use of the uncharged acts. I think that is what I need to say about 279. I have said what I wanted to say about paragraph 287, the conclusion being, as we have set it out in paragraph 15 of our written outlines and for those reasons, in our submission, there should be a grant of special leave and the appeal should be upheld.

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

MR MOYNIHAN: Your Honours, could I take you straight to section 229B of the statute to demonstrate why the finding by Justice Keane at page 213 of the book at paragraph [41] that the evidence was admissible as an act in proof of that charge is correct because that is a short and complete answer to the application. I will go on to demonstrate why the findings in paragraphs [39] and [40] were also correct by developing how the evidence was otherwise relevant and admissible and why no exclusionary rule was engaged to otherwise exclude it.

If your Honours go to tab 5 of volume 1 of the book of materials, in the decision of this Court in KBT (1997) 191 CLR 417 at pages 422 to 423, it was settled that this “maintaining a sexual relationship” offence in section 229B involved a course of conduct, the elements of which included, pursuant to subsection (1A), the actus reus of doing an act which constitutes an offence of a sexual nature on three or more occasions. But, importantly, subsection (1A) expresses this:

and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

The applicant gave evidence denying any sexual relationship or of doing any act which could constitute an offence of a sexual nature. The issue in the trial was whether there was a sexual relationship or any of the charges which were offences which could constitute an offence of a sexual nature had occurred. The Crown relied on the direct evidence of the complainant to prove the relationship and the specific counts which constituted the offences of a sexual nature for the purposes of section (1A), but the Crown also led evidence from the complainant’s brother, W, of that act defined to constitute an offence of a sexual act of a sexual nature.

That has been conceded by my learned friend, that that act observed by W could constitute an offence of a sexual nature. If that is so, then, under section 229B, that evidence was admissible without reference to any of the Pfennig principles or tests because it was not evidence of an offence other than those charged. It was evidence of the offence. It could be led in direct proof of the offence and, therefore, Pfennig or HML or any of the other cases, Hoch, Sutton, do not apply. The Crown sought to lead it on that basis, but the learned judge below did not allow the Crown to lead it on that basis and restricted the use that the evidence could be put to as supporting the evidence of the complaint.

HEYDON J: Mr Moynihan, is there a particulars problem with that argument of yours? Count 1 is the maintaining an unlawful relationship count, and then it refers to various acts, sodomy, unlawful and indecent dealing. Am I right in thinking those particular references are all references to counts 2 and following?

MR MOYNIHAN: They would include those, but the offence can include conduct other than that which is clear and has a circumstance of aggravation.

HEYDON J: But if counsel for the defence at the trial had objected to the tender or to the argument which was advanced which is the argument you are now putting, could it have been met by a contention that they simply were not on notice as to that case?

MR MOYNIHAN: Not in my submission, your Honour. The Crown can lead any evidence it likes in proof of that count and, as her Honour quite rightly directed the jury, the evidence of uncharged acts from the complainant herself could have constituted an act defined to constitute an offence of a sexual nature for purposes of finding guilt in relation to count 1. Her Honour did direct the jury in those terms, but she quite correctly reminded them that they might feel safest using the ones that had been specified and particularised on the indictment, but there is no need for any particulars. That is why this offence was created, so that evidence of this type could be admitted into evidence and used in that way. So much is clear, in my submission - - -

GUMMOW J: Where does Justice Keane deal with this?

MR MOYNIHAN: Your Honour, his Honour found at paragraph [41] at page 230 of the record book that:

W’s evidence was also relevant because it tended to establish the maintaining offence, in that it revealed a sexual relationship between the appellant and the complainant.

GUMMOW J: That is not the terms of section 229B(1A).

MR MOYNIHAN: No, 229B(1) requires that there be a maintenance of an unlawful sexual relationship, and his Honour was - - -

GUMMOW J: But you are relying on the evidentiary provision in subsection (1A).

MR MOYNIHAN: I am, and as in forming his Honour’s finding that that evidence would have been capable of establishing as one of the actus reus required to prove the offence created by section 229B(1).

HAYNE J: Is that what Justice Keane was saying in paragraph [41]? Why the use of the expression “because it tended to establish”? Is that not saying this is in the nature of guilty passion evidence pointing towards rather than this is an event which of itself was one of the three or could have been one of the three?

MR MOYNIHAN: Well, your Honour, that is my submission, he uses the word “tended” because by itself it could not prove it. It could only be one of a number that were required to prove the offence. So it is one that tended to prove the offence, but it needed others in combination to satisfy the evidentiary provision in section 229B.

FRENCH CJ: Can I just understand your approach to 229B based on KBT. Do you say that the actus reus is the course of conduct, because it seems KBT does not say that?

MR MOYNIHAN: No. At page 422 of the reasons, your Honour will see that the offence creates one of a course of conduct, but the elements or the actus reus, page 423 - - -

FRENCH CJ: It is the doing of the offences.

MR MOYNIHAN: - - - in about the second paragraph and my submission is that the evidence of what W observed could have constituted the offence of indecent dealing.

GUMMOW J: Or could have been, what, one of the three or more occasions?

MR MOYNIHAN: Quite.

FRENCH CJ: So we are really in Pfennig territory, are we?

MR MOYNIHAN: No, we are not, we are outside of Pfennig territory because then the offence is not tendered as evidence of an act other than those charged. It is an act proving the charge. We are in fact outside of Pfennig; Pfennig is left behind.

HAYNE J: Is that how you went to the jury?

MR MOYNIHAN: No.

HAYNE J: Is that how the prosecution went to the jury? It is not, is it?

MR MOYNIHAN: Well, her Honour - - -

HAYNE J: Because of the course at trial, that is not how it went to the jury, is it?

MR MOYNIHAN: No, the Crown sought to lead it as one of those matters, the judge did not allow it on that basis, but in terms of this argument of whether there should be a retrial, if the evidence would be admissible on this basis in any retrial, then, in my respectful submission, there should be no grant of special leave and the appeal should not be allowed because it could be used by the Crown in that way.

KIEFEL J: Well, her Honour gave a stronger direction than would have been necessary if your argument is correct.

MR MOYNIHAN: Quite. There would have been no limiting this evidence to supporting the evidence of the complainant. It would have been evidence in proof of the Crown case on count 1.

GUMMOW J: Notwithstanding any particulars problem.

MR MOYNIHAN: Notwithstanding any particulars problem, yes, your Honour, quite.

HAYNE J: Despite the fact that at the end of the Crown case the trial judge might have been entitled to take away from the jury the consideration of this incident.

MR MOYNIHAN: Yes.

HAYNE J: May they not? As the evidence came out, why would you leave to the jury the possibility that this incident was one of the three incidents sufficient to maintain the charge, or to establish the charge of maintaining, when so far as the evidence went, there was a reasonable hypothesis consistent with innocence?

MR MOYNIHAN: Well, your Honour, if I could just deal with that issue. Firstly, it was not necessary, of course, for the complainant to have given evidence of it because it is not unusual - - -

HAYNE J: I am not fussed about the fact that it came out of the mouth of W rather than the complainant.

MR MOYNIHAN: Well, then we would end up in a situation, if this is the correct position, any event viewed in isolation by a witness giving evidence of it other than the complainant could speculate, particularly if it is put to them, that there is an innocent explanation for it. For example, if it was put to the complainant that her bending over in that position with her father no doubt she would have said, no, it was a sexual encounter, but for an observer who knows nothing of their relationship or what they were observing, if it is put to the witness you saw that, that could have been someone looking for a mole, checking for a bee sting, all of the things that were put, no doubt a reasonable witness will say, “Well, knowing nothing of it, it could have been that. I am just telling you what I saw.”

The same if someone is giving evidence of observing someone shoot another with a rifle, if they were asked the rifle could have accidentally discharged, it could have been in self-defence, it could have been an unwilled act, there could have been a defect with the rifle. Any witness giving evidence of that would concede – so we will have now a situation where, if evidence of this type is to be admitted, counsel putting to these witnesses, other than the complainant: well, it could have just been natural love and affection; it could have been a massage. The witness might say well it may have been. That does not make it evidence of an equivocal character. That is just the witness accepting, viewing it in isolation, independent of all the other evidence in the case, that there is another explanation for it.

FRENCH CJ: I may have misunderstood how you were putting this, as it were, preliminary proposition. Were you saying that this evidence is evidence that is relevant to the proof of one or more of the three necessary offences, not itself constituting one of those offences, or are you saying it is evidence of one of the three, or do you put it some other way?

MR MOYNIHAN: No, it is evidence of one of the three.

FRENCH CJ: It being one of the three.

MR MOYNIHAN: It could have been relied on by the jury as one of the three under the evidentiary provision and, if it was, and the Act so provides, then there is no application of the Pfennig principles to that evidence because it is direct evidence; it is not evidence other than factual.

FRENCH CJ: That is why I misunderstood you and said we might be in Pfennig territory because if it was somehow relevant to three other offences it would be a kind of propensity evidence, would it not?

MR MOYNIHAN: Quite, and my point is - - -

FRENCH CJ: Not going via relationship in the statute but establishing a propensity.

MR MOYNIHAN: That is right. That is why I said at the beginning it is a short point because it takes us well out of the whole issue that my learned friend wants to argue about – propensity evidence and the proper test and everything like that. If the evidence was admissible as an actus reus in proof of the offence under section 229B then Pfennig has no operation.

HAYNE J: What aspect of 229B(1A) is it that you especially rely on in this connection - the last three and a half lines, I think.

MR MOYNIHAN: That is correct, your Honour, from - - -

HAYNE J: How does that work? How are you using those words? I had read them, maybe wrongly, as evidence admissible and probative, notwithstanding that the evidence does not disclose dates or exact circumstances, that is, that the real weight of the closing clause was on the abolition of a requirement to particularise by date or circumstance.

MR MOYNIHAN: That is why the Crown can rely on acts other than those particularised and specified and charged in the indictment. It is those words there that allow this course of conduct evidence, whether it be from the complainant or otherwise, to be admitted in these types of cases.

KIEFEL J: Perhaps you should not focus entirely on the last three lines but perhaps read that again with the words “has, during the period in which it is alleged”, which focuses attention upon the course of conduct to which you are referring.

MR MOYNIHAN: That is right, your Honour.

KIEFEL J: Perhaps it is more than just a question of particulars, but it is really defining what evidence is necessary.

MR MOYNIHAN: I rely on the whole of the evidentiary provision, of course, but it is that bit at the end there where it makes it clear that the evidence shall be admissible and probative. There is no qualification in terms of it - - -

GUMMOW J: You have to read it as “notwithstanding that the evidence does not disclose the dates or exact circumstances and notwithstanding what would otherwise be the application of any exclusionary rule”, do you not?

MR MOYHNIHAN: Well, of course the evidence would not be admissible, even on that provision if it was not relevant. So it has to be relevant evidence. That is the admissibility test. The exclusionary rule would not apply because the statute permits it to be excluded. Then we would be in the territory like in Roach whether section 130 of the Evidence Act is engaged on the discretionary basis to exclude the evidence because it is prejudicial, a fact exceeds its prohibitive relevancy.

FRENCH CJ: Accepting the admission of this evidence, what evidence was there from which the jury could have concluded that this was the commission of an offence of the kind referred to in (1A)?

MR MOYHNIHAN: Well, the jury would have had the evidence of the brother, of his observation of that event having occurred. Then, of course, that has to be taken in the context of the whole of the Crown case which included the evidence of the complainant. But importantly, the jury also had the evidence which my learned friend took you to of the - - -

FRENCH CJ: Being seen through the prism of other conduct.

MR MOYHNIHAN: Yes, but in this case the applicant denied the offence ever occurred and moreover denied that he would never even put himself in such a position, knowing that, of course, there probably is very little innocent explanation for putting oneself in such a position with a 12-year-old.

BELL J: We are presently considering admissibility, so how does the question of the evidence that the appellant gave or applicant gave assist in that?

MR MOYHNIHAN: Well, the evidence of W on its own was sufficient to constitute the offence and it did not have to prove anything beyond a reasonable doubt, is the short answer to that.

CRENNAN J: Do you not mean sufficient to establish one of three or more occasions?

MR MOYHNIHAN: That is right.

CRENNAN J: You said “sufficient to establish the offence” - - -

MR MOYHNIHAN: Sorry, establish no more than one of the three or more occasions – quite.

BELL J: In the way the trial was run the evidence of W was admitted as evidence going to the relationship in a context sense and to establish sexual interest on the part of the applicant in his daughter, I think.

MR MOYHNIHAN: Yes.

BELL J: Just for a moment, putting to one side your killer point with respect to the operation of section 229B(1), looking at it in the way the trial was run, what is your submission concerning the test of admissibility for evidence of this character if you look at it as evidence of sexual interest?

MR MOYHNIHAN: Well, the evidence was relevant if it could rationally - or if it could directly or indirectly rationally affect the assessment of the probability of the existence of a fact in issue, and it did that in this case by assisting the jury to evaluate the evidence of the complainant. That evidence, of course, went directly to the facts in issue and it did that by, as Justice Keane made clear in paragraphs [39] and [40], it explained and made intelligible the complainant’s evidence which would appear unlikely in the context of the ordinary relationship between father and daughter, but secondly, it did show the applicant had a sexual desire for the complainant and that bears upon the probability of the testimony of the complainant being true.

Now, at common law, relevant evidence of that discreditable conduct is excluded if the probative value is outweighed by the prejudicial effect, but prejudicial effect there means if the jury were to impermissibly use, or improperly use that evidence in terms of impermissible propensity reasoning and it was refined in Pfennig and made more stringent in circumstances where it was a purely circumstantial case and the Crown was trying to use the piece of evidence as evidence of propensity in arguing towards a conclusion of guilt. But that is not - - -

HAYNE J: But the principle that underpins it all is that the accused is to be tried for the offences charged, not for anything else but only the offences charged.

MR MOYNIHAN: But this case is different to the type in Pfennig because here the Crown relied on the evidence of the complainant to prove the offences, leaving aside the other argument for one moment. Although it is propensity evidence, it was not used, as in Pfennig, to prove a propensity. It was used by the Crown to support or for the jury to evaluate the evidence of the complainant.

HEYDON J: Evidence called in-chief by the prosecution about another witness is – there is a rule against bolstering Justice McHugh used to call it. There is a big division in HML on this.

MR MOYNIHAN: There is, particularly, though, bolstering when the complainant is giving evidence of the charged offences and the uncharged acts. Here the evidence comes from a witness independent of the complainant.

HEYDON J: If it is admitted only on credibility, it is bolstering. If it is admitted to increase the likelihood of the charged acts being committed, then it is disposition reasoning and on one view stated in HML it would involve satisfying the Pfennig test. Chief Justice Gleeson has a different position, I think, and perhaps others do too, where there is background theory – but even there is it not being used as disposition evidence?

MR MOYNIHAN: It is certainly propensity evidence. I acknowledge that much but there is no propensity reasoning involved if it is just used to assess the evidence of the complainant because that is directly relevant to a fact in issue. That is why, if one limits it to that to showing the sexual desire or to use another way of putting it, the true nature of the relationship, that allowed the jury, as Justice Keane said, to evaluate the complainant’s evidence in its proper context so that the jury did not unfairly view it in the context of the ordinary relationship between father and daughter.

Your Honours, I have set out a number of authorities and references in my outline of oral submissions at paragraph 9 which are examples of where this Court has admitted evidence which was used to assist in the evaluation of other evidence and to put the relationship into its proper context.

Now, Justice Keane did not mention Pfennig and one reason may be that because below the issue was one about the discretionary exclusion under section 130 of the Evidence Act. But the other reason is, his Honour did rely on this Court’s reasons in O’Leary and they are in the footnote to his findings in paragraph [40].

His Honour relies on what was said at pages 577 to 578, so that if Pfennig is a case that should be confined to the context of cases where the Crown is relying on evidence of propensity in a circumstantial case without which there is no case, then this is not such a case and his Honour was quite right to look to cases that are authority for the proposition that evidence of propensity, but going only to support the evidence of the complainant, is admissible if that purpose is made clear to the jury and the use to which it is put is confined to that. That is why his Honour did perhaps rely on O’Leary in those circumstances.

HAYNE J: These events are all to be seen as a single transaction, are they? That is at least a basis on which O’Leary was decided.

MR MOYNIHAN: This is not a res gestae case. If your Honour is asking me that, I acknowledge immediately that it is not a res gestae case. But there is also, not just in O’Leary but in Wilson’s Case, certainly authority for the proposition that this type of evidence can be admitted for this purpose. If one goes to HML and your Honours’ reasons in HML, your Honour in the paragraph to which my learned friend took you to at 111, and your Honour picks this up again in paragraph 172, there your Honour is talking about the difficulties that will be encountered applying the Pfennig test to evidence that does not involve a sexual act and, again, that is not this case. Even if it is equivocal, the act here was a sexual one.

What your Honour was referring to in that paragraph and at 172 was evidence of the purchase of an innocent act, the purchase of lingerie and gifting it to the child. That is not an unlawful act and could not in any terms constitute an unlawful act, and then there is a real difficulty in that way. As your Honour made clear in a number of other paragraphs, such as 107, 109, 118 and 171, when one does have a sexual act and even if it may have some aspects of equivocality about it, it would be unusual for that not to satisfy even the Pfennig test. In this case, it is not the type of case that might excite that exception or the difficult question in HML, because this act, no matter how it is viewed, was still a sexual act, and if it is viewed in the context of the whole of the Crown case, then, in my submission, there is no reasonable view of it consistent with innocence, and Justice Keane was quite right to say so.

It was also evidence that could have confirmed the complainant’s evidence in a material particular. The complainant said incidents of sexual acts occurred at the farm on family trips. The brother gave evidence independently of her to say that, “On one of those camping trips, I observed what could have constituted a sexual act”. In my submission, that could have confirmed the complainant’s evidence and would be admissible as corroboration and, in my submission, there is nothing in this Court’s reasons in BRS that would import the Pfennig test into whether evidence capable of corroborating the evidence of the complainant would have to satisfy such a stringent test before it is admissible.

Secondly, the evidence also was admissible or relevant and admissible to answer a question that would no doubt have naturally arisen in the minds of the jury where a complainant child in a family situation alleges a long course of conduct. Jurors might reasonably wonder whether anybody else in the family saw anything that would indicate such a relationship and here there was evidence of that and it was relevant and it should be admissible to answer such a question, and so much was recognised by the joint judgment in Roach at paragraph [42].

So if one returns to the critical findings at page 213 of the application book, in my submission, the evidence was relevant and admissible at common law for the reasons that Justice Keane articulates at paragraphs [39] and [40], as his Honour does relying on O’Leary. There was no exclusionary rule to apply in the way that the judge confined and directed the jury they could use that evidence. That is only for the purpose of supporting the evidence of the complainant. It was not led for an propensity purpose and it certainly was not left to the jury to use in any propensity way.

I come back to paragraph [41], which is the finding, in my submission, in any event, that the evidence was also relevant and able to be tendered in proof of the maintaining offence by virtue of the evidentiary provision and if in those circumstances it was being tendered for that, then Pfennig and all of the exclusionary rules do not apply. What would be engaged then is section 130 of the Evidence Act, but that has not been raised.

Your Honours, can I give you some references just before I finish in relation to the issue about the evidentiary provision in section 229B. Your Honours might be assisted by what Chief Justice Macrossan said in the decision of Kemp. You will find that at tab 32. The citation is Kemp (No 2) [1998] 2 Qd R 510. What Chief Justice Macrossan says at page 511, Justice Pincus at 512 to 513 and Justice Mackenzie at 522 to 523.

KIEFEL J: What did their Honours say?

MR MOYNIHAN: I will take your Honours to it.

KIEFEL J: Could you summarise it?

MR MOYNIHAN: Your Honours, in that case – it was a maintaining case, obviously – the complainant had given evidence of a number of incidences. There is also evidence from other co-workers of inappropriate – particularly at the bottom of page 512 in the reasons of Justice Pincus, from lines 35 to 50.

HAYNE J: You say, do you, that the proposition that at line 46:

it is simply evidence going to prove the case sought to be made – that there was a sexual relationship -

is consistent with KBT and the proposition in KBT that the actus reus is the three events?

MR MOYHNIHAN: Yes, and also it was made very clear in HML that none of the reasoning there was to be taken to include cases which had the relationship offence charge, and I can give your Honours those references as well. Chief Justice Gleeson at paragraph 24 made it clear he was talking about evidence led of offences other than those charged. Justice Kirby in agreeing with your Honour Justice Hayne’s reasons made it clear at paragraph 55. Your Honour Justice Hayne also made it clear at paragraph 106 and at paragraph 135 and your Honour Justice Heydon dealt with this issue at pages 419 to 420 at paragraph 259. But there it was made clear that what was said particularly in your Honour Justice Hayne’s judgment was not dealing with circumstances where the relationship offence had been charged.

Your Honours will see at page 516 of Kemp in Justice Mackenzie’s reasons there his Honour is dealing with the issue there, like here, where some of the evidence relied on, particularly from other people, could have had an innocent explanation. Your Honours will find that from around lines 40 to 50.

GUMMOW J: Whereabouts on 516?

MR MOYNIHAN: Page 516, starting at about line 40. So in that case like this, the evidence although capable of constituting an offence of a sexual nature could have had innocent explanation it was still led in proof of the offence. The important passages from Justice Mackenzie are at pages 521, line 20 through to 522, line 35. In that passage at 522, line 30 your Honours will see there where his Honour deals with that evidence where his Honour refers to:

each of the girls was of primary facts from which the jury was asked to find that the relationship between the appellant and the complainant alleged in the count 1 had a sexual character.

That was the evidence which I earlier took your Honours to to demonstrate that it could have had an innocent explanation. Also there his Honour makes clear it is not admitted in that Pfennig or Hoch type – or not used in that Pfennig or Hoch situation. So, in my submission, in this case in circumstances where it is acknowledged by the applicant that the evidence was capable of establishing an offence of a sexual nature it was admissible – notwithstanding it may have had some innocent explanation – it was admissible in the Crown case in proof of count 1, and if it is that is the end of any Pfennig debate, and in any event it is admissible in my submission at common law for the reasons I have articulated and as - - -

FRENCH CJ: What is its role in relation to the separate counts, the other counts of the distinct offences?

MR MOYNIHAN: The other counts of the distinct offences were relied on as also offences that could constitute an offence of a sexual nature for the purposes of count 1 – except for count 2, I should add – and the judge expressly excluded that from the jury as well because it was outside the maintaining period.

HAYNE J: Was Kemp (No 2) decided before KBT? I think it was.

MR MOYNIHAN: I think it was.

HAYNE J: December 1996 and KBT is decided December 1997.

MR MOYNIHAN: Justice Kirby refers specifically to it in his reasons in KRM, your Honours, at paragraphs 102 and 103. There your Honours will see Justice Kirby referring to what Justice Keane said in Kemp and in the written material, my learned friends, in answer to this proposition and this reference, said your Honours should go on to read paragraph 104, but 104 makes it absolutely plain that the position was different and that Pfennig would have applied prior to the enactment of the relationship offences. That is the first sentence that makes that very clear. So whilst the second-last sentence:

Commonly, such evidence had to satisfy [the Pfennig test] the test established for the admission of “similar fact” evidence (166).

One goes down there and sees Pfennig. That is qualified by the first sentence where his Honour made it clear that that was before the enactment of the offence in section 229B because once the evidence is admitted in direct proof of the offence, it is no longer evidence of an offence other than that charged.

FRENCH CJ: So once it was in on the basis of relevance to the relationship count, it was in for all purposes in relation to all the other counts, is that - - -

MR MOYNIHAN: Well, it would have - - -

FRENCH CJ: What was to prevent the jury relying upon it as propensity evidence, in other words, in relation to other - - -

MR MOYNIHAN: Her Honour would have directed them, as she did, in relation to the maintaining count that the evidence, other than the charged events which included the uncharged acts given evidence to by the complainant, were to be used only in relation to the maintaining offence. That direction will pick that up. Your Honours, those are my submissions.

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

MR WALKER: Your Honours, the argument concerning a possible ground for admission and thereafter use of the camping incident narrated by W is one which, in our submission, can have no foundation in the argument on this application. This is no mere detail as my friend accepts most recently in the last minute. The way in which the 229B maintaining case was left to the jury included a specific direction which excluded everything other than what the complainant gave evidence of as candidates to be one of the three necessary to constitute the actus reus of that offence.

In our submission, it is neither legitimate proviso reasoning nor in the interests of the administration of criminal justice an appropriate discretionary factor in considering the grant of special leave to appeal to this Court to take into account that things could have been, as to the major architecture of that count, put differently from the way it was put. In particular, for the reasons that Justice Hayne raised for my friend’s consideration, the notion that the camping incident might have constituted a candidate for being one of the three, had that been explicit or overt, it could have led to the very kind of argument or the very kind of direction that one does not find any record of here because it did not happen, and which would have been favourable to the accused.

GUMMOW J: The direction being of what nature?

MR WALKER: A direction about the – a comment on evidence in particular concerning the difference between an incident of which the complainant gave evidence from recollection and an incident about which the complainant gave no evidence from recollection, indeed gave evidence suggestive of it not being part of her case. A direction would have been and could well have led to a refusal to lead it to the jury as one of the candidates to be one of the three because the complainant did not testify as to it and there was the equivocal nature that the witness accorded to it, either that or a warning of the danger of proceeding.

We know that her Honour gave warnings about the danger of proceeding without carefully scrutinising the evidence including forms of corroboration. In our submission, one cannot reconstruct that which it is impossible to insert into what actually happened in order to count as a reason not to grant special leave to appeal against what actually happened. It is clear from the way in which the indictment relates the various alleged offences, see pages 3 to 6 of the application book – or at least we think it is clear – that the reference by her Honour to the jury of the nine comes about because of the 12 counts, one is of course count 1 itself.

Count 2 is outside the period of the maintaining so it is not available. I think that gets to 10. I am not sure whether there is a slip to 9 or whether I have missed some point. That, we think, is the explanation for the way in which I will call charged acts were left as candidates to be one of the three. There are then the uncharged acts alleged by the complainant which were directed by her Honour as also counted as one of the three. Quite plainly, this case never included that which my learned friend now puts forward as a basis for this Court to withhold its consideration of the merits of the argument.

It is also clear, as my learned friend frankly points out, that the Crown might be thought to have put forward the case for the admission of this incident more broadly than it was admitted, but we know that the ruling for admission, and I took you to it, in-chief at page 22 at about line 14 and thereafter, the ruling was in relation to count 1 – that is, the maintaining count - the ruling was that it would be relevant because of the guilty passion ground, a quite distinct and impossible ruling to reconcile with the notion of being a candidate to be one of the three. It was, as I pointed out, in-chief – pages 152, line 35, to 153, line 5, and 153, line 20 and pages 167, lines 20 to 25 – it was not so left to the jury.

My learned friend said that an explanation for the admissibility of this incident was that it was something that you could just be used to assess the evidence of the complainant, as if, with respect, that was different from the kind of use that the controls in Pfennig’s Case are directed to. In our submission, this notion of being used to assess the evidence of the complainant is of course simply another way of saying that which can be said in a number of different ways and all comes down to the question whether the jury is satisfied beyond reasonable doubt of the accused’s guilt, bearing in mind the location of the onus and the height of the standard of proof.

It is not really different to say that evidence is being used to assess the evidence of the complainant because evidence of the charged offences - it is not really different, then to turn to that with which Pfennig’s Case is concerned and to point out propensity, similar evidence relationship or explanatory uses, all of those, but particularly the last, the explaining the otherwise unintelligible or incredible, all of those obviously are means of assessing the evidence of the complainant. There is no separate general area of assessing the evidence of the complainant that falls before evidence of this kind outside the strictures of Pfennig’s Case.

GUMMOW J: Just be clear, Mr Walker. You rely upon Pfennig as a rule of exclusion?

MR WALKER: Relevantly, yes.

GUMMOW J: You are not denying admissibility for lack of relevance, lack of probative force, if anything. You are relying, are you not, on the next step, the rule of exclusion?

MR WALKER: We say – I am so sorry, your Honour.

GUMMOW J: You are relying on the next step, namely a rule of exclusion to what otherwise would be admissible.

MR WALKER: I am primarily. Alas, the distinction is not as clear as it might be, because the reason I say this falls foul of Pfennig, given the way it

was promoted as evidence by the prosecution is, and happens to be, a reason why in our submission it could never rise to the cogency necessary - - -

GUMMOW J: But you are not relying on section 130?

MR WALKER: No, it was not relied upon. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning for pronouncement of orders.

AT 4.25 PM THE MATTER WAS ADJOURNED