Saoud v The Queen [2015] HCATrans 178 (7 August 2015)

Last Updated: 19 August 2015

[2015] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S51 of 2015

B e t w e e n -

DANY ANIS SAOUD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 2015, AT 11.33 AM

Copyright in the High Court of Australia

MR M. THANGARAJ, SC: Your Honours, I appear with MR S. PARARAJASINGHAM for the appellant. (instructed by Nyman Gibson Miralis)

MR J.H. PICKERING, SC: I appear for the respondent, your Honours. (instructed by Solicitor for Public Prosecutions (NSW))

MR THANGARAJ: We formally need leave, your Honour.

BELL J: Yes. Is that opposed?

MR PICKERING: No, your Honour.

BELL J: Yes, you may take it you have that leave.

MR THANGARAJ: Thank you, your Honour. Could I start with application book 110, please?

BELL J: Yes.

MR THANGARAJ: At the bottom of page 110, line 50, the Court of Criminal Appeal said:

With respect to KS in particular, being the focus of the applicant’s principal arguments, the evidence of AC would have provided significant support for the allegation that, despite rejection, he proceeded to attempt sexual intercourse; it would also have provided support for the occurrence of the indecent assaults on KS in the face of her resistance. That element would have been significant, even if the applicant accepted that the activities underlying the indecent assaults occurred, but submitted that they were with consent.

So, the difficulty with that means is that if that was a legitimate form of reasoning, the evidence in Stubley would have been admitted because what his Honour is saying there is that tendency goes to demonstrate that even despite a lack of consent, he was prepared to continue.

BELL J: Mr Thangaraj, as far as Stubley is concerned, in Stubley the facts were that in relation to the two complainants – each of whom were patients of the psychiatrist - they allege that they did not consent to sexual intercourse.

MR THANGARAJ: Yes.

BELL J: Each gave an account of being either threatened or intimidated by the doctor.

MR THANGARAJ: Yes.

BELL J: The Crown sought to lead evidence from three patients of the doctor with whom he admitted he had had sexual relations, it being part of his therapeutic process. Those patients would give evidence of sexual intercourse. None would say that it was accompanied by intimidation or threats. Rather, the Crown sought to lead it as tendency evidence showing, as it were, his psychological domination of his female patients. It was in that context – if one reads paragraphs round about 73 and 74 of the decision in Stubley – that one understands why there was not the requisite degree of probative value.

MR THANGARAJ: Your Honour, the force of Stubley – it seems on my reading, with respect – is that when the issue in that case with respect to the complainants in Stubley was did they consent, the question of the accused’s conduct and tendencies of state of mind to actually want to engage in the conduct was no longer the issue. The issue was did they consent? So the relevance of other witnesses, or other complainants – be they witnesses or complainants – did not have the force that it otherwise would have because the issue had come down to whether or not they had consented. So, his state of mind with respect to - - -

BELL J: We may be reading the case differently, Mr Thangaraj, but had the evidence been of – sought to be tendered by the Crown of tendency from the three other patients that they had been intimidated or threatened in the way the complainants asserted that they had been intimidated or threatened it would have been a different case. I say no more than that. The point I am raising with you, Mr Thangaraj, is whether you are trying to squeeze a little more out of Stubley than it will reasonably bear.

MR THANGARAJ: Could I take your Honours just quickly to Stubley at paragraph 65 – a couple of lines down:

The circumstance that the trial was conducted from the outset on the basis that [the complainants’] account that the appellant had sexual relations with them in the course of consultations was not disputed was material to the consideration of the admissibility of the –

tendency witnesses under the provision.

The probative value of the evidence to prove that the sexual acts charged in the indictment occurred (by demonstrating the appellant’s tendency to have sexual relations with his patients) ceased to be significant once it was known that [the complainants’] evidence that the appellant had sexual relations with them during consultations was not challenged.

BELL J: Yes.

MR THANGARAJ: So what the case stands for – and Justice Basten did not say that it stood for anything other than what we were submitting with respect to the – I think at one point he said if that was the submission, that is fair enough and the Crown relies on that, which is that in the case of a consent, someone’s sexual attraction – whether that sexual attraction existed does not matter because that is accepted, that is an accepted fact.

BELL J: But what Justice Basten is saying – and as I understood you were suggesting was in some way defective in terms of reasoning in light of Stubley – was that the evidence of AC might have provided support for the occurrence of the indecent assaults on KS in the face of resistance and in relation to the attempted sexual intercourse.

MR THANGARAJ: Yes. So, there are a couple of points we say but I just wanted to start with this one because what this says is that it is a legitimate of form of reasoning under tendency to say that a person who has an interest will conduct themselves in a particular way in the face of resistance. So what that means is you really need nothing more than a multiple number of complainants because they would all get in because the Crown would say, well, we have to prove a lack of consent in each one, of course. That would never be admitted. So there is more than one complainant. Once you, the jury, find him guilty on one count - with respect to one complainant, you can use the fact that he is prepared to rape with a second complainant. That is, with respect, a novel concept. That, with respect, is impermissible.

BELL J: Perhaps, Mr Thangaraj, if we were to concentrate on the facts of this case and the basis upon which the evidence was tendered and the basis of the Court of Criminal Appeal’s review of the correctness or otherwise of that.

MR THANGARAJ: Yes. That is why I wanted to start, your Honour, with that passage of the Court of Criminal Appeal’s judgment in 110. But our submission with respect to that is it is looking at the asserted conduct rather than looking at what Stubley considered, which was the question of whether the complainants had consented and it is going too – his Honour has gone too far to say that it is a permissible form of reasoning to say that you can use that to say that he would have ignored consent, not worried about consent and acted anyway in the face of resistance. The effect of that is, though - - -

BELL J: As I understood it, the matters relied upon by the Crown as tendency and/or coincidence - and in that regard the Court of Criminal Appeal noted in a case such as this where the identity of the alleged offender is not an issue there is often a measure of overlap between the two.

MR THANGARAJ: Yes, yes.

BELL J: Now, the matters that were relied upon were the ages of the complainants, the fact that both had been in employment, the fact that it is suggested a pretext was used to get them into the office and then the sexual activity that was denied by them started with the offer of a massage and progressed.

MR THANGARAJ: Yes.

BELL J: One can debate whether or not those matters are sufficient to get over the hurdle. I am just not quite sure that the more theoretical argument that you are raising really focuses attention on the Court of Criminal Appeal’s reasons.

MR THANGARAJ: So, in this case there were two adult complainants – one of whom the defence was it did not happen at all and the other defence was, apart from the two counts on which he was acquitted, that there was consensual activity. So we relied in the Court of Criminal Appeal and failed to say that in accordance with Stubley – well, once it became an issue of consent as it was in Stubley, that the issue of his - - -

BELL J: Mr Thangaraj, Stubley is concerned with its facts – and I do invite your attention at some stage to the reasoning at 72, 73, and 74 – that is paragraphs 73 to 74.

MR THANGARAJ: Yes. There are a number of different bases on which the Western Australian Court of Appeal – and that was, as your Honour will appreciate, of course, a split decision where different reasons were given as to the potential basis of the admissibility of the tendency evidence in that case. The High Court, as your Honour obviously knows, went through the detail of what it might have been relevant to and what it might not have been relevant to. Those are in 72 and 74. But, at 72, the respondent conceded - the Crown conceded that:

the evidence of these witnesses could not rationally affect the assessment of the likelihood that –

they consented –

had been obtained by threats or intimidation.

Then at 74, the proof of that –

could not rationally affect the likelihood that [they] did not consent to sexual contact on any occasion charged in the indictment.

So, that was one of the ways in which there might have been an attempt – or one of the judges or, perhaps, two of the judges in the Western Australian Court of Appeal felt that that was permissible. But, ultimately, that was not determinative in Stubley and, in this case, it does not arise at all. There is no suggestion in this case that there is a threat or intimidation with respect to one that would be used with respect to the other.

BELL J: That issue was an issue that was particular to Stubley, having regard to the definition of “consent” under the WA Code as it existed at the time. Mr Thangaraj, the Court of Criminal Appeal in this case, as I understand it, looked at the matters that were said to engage both the tendency and coincidence rules and they are the matters to which briefly, and probably non-comprehensively, I referred to a few moments ago.

MR THANGARAJ: That is right, your Honour. Perhaps I will move on to the second point for the moment. But, perhaps, when I come back to what the Crown’s response is to this, I will deal with it then. The second issue that we wanted to raise is this is a case where there are only two complainants. Can tendency ever arise when there are only two complainants?

Now, the tendency that was sought to be proven was a tendency to sexually assault young women, that is, in the plural. That could only, of course, be established on the facts if you had been found guilty of both counts by which case there would be no need to resort to tendency because it would not be possible to. Our position is that it is not possible that one complainant or one incident could ever prove a tendency beyond a reasonable doubt.

You might have a particular attraction in a particular individual that could never prove a tendency which was how it was relied on in this case. It was said, you could find it proven with respect to one complainant, you could then find a tendency and then use that against the other complainant and it could go both ways.

In Velkoski, the Victorian Court of Appeal said that it is not possible to have a tendency with only one complainant. The New South Wales Court of Criminal Appeal’s position is that it is permissible. Could I just – before I go any further – take your Honours to the application book at 35 to see how it was put to the jury in the summing-up. At page 35 of the application book, line 39 – this is a part of his Honour’s summing-up to the jury on the tendency and his Honour said the second finding for the jury was:

You ask yourself whether from the act or acts that you found proved, in this case, my example, [AC’s] act for the sake of the example, you can conclude beyond a reasonable doubt that the accused had a sexual interest in the complainant, [KS] and that he is willing to act upon it.

With respect, how could you prove that an adult male has a sexual interest in a particular adult female on the basis of having a sexual interest in another adult female?

BELL J: Was this the subject of complaint at the trial?

MR THANGARAJ: At the trial, trial counsel said that there were not sufficient similarities, that there was a pre-existing or an earlier relationship with - - -

BELL J: In the judge’s directions to the jury, that is the - - -

MR THANGARAJ: I cannot assist your Honour with that. The application was unsuccessful at the trial. I am not sure what trial counsel engaged with the judge with respect to the summing-up and I do not know that there was any complaint.

GORDON J: To be fair to the trial judge, he does continue on about the use and the way you address tendency evidence. It is not limited to that example.

MR THANGARAJ: No, no, not at all, your Honour. I am not suggesting for one moment that that was the entirety of the direction. That is why I was saying it was part of the way through it. But the problem is that this goes to our point of how is it that you can establish a tendency on the basis of one particular complainant to then use it and it is something so generic as one adult’s attraction to another adult. It is not something bizarre or highly unusual. The issue now, in this case, is – and the special leave question on this point, with respect, we say, is can allegations in relation to a single person establish a tendency?

What gives us force with respect to our submission on that is we now have a position where intermediate courts of appeal in this country have a different view. The Victorian Court of Appeal has its position in Velkoski and has stated – sorry, has stated the position in Velkoski – well, we lost. The New South Wales Court of Criminal Appeal has made it clear. As your Honour would well appreciate, there are many cases in the District Court where two complainants can lead to tendency evidence without other complainants, or other witnesses, giving that sort of evidence. So this is an important issue which, if resolved in favour of us, would mean a retrial – an important issue where the Victorian Court of Appeal has a different approach to the New South Wales Court of Criminal Appeal.

BELL J: In this case, as I rather take it from the Court of Criminal Appeal’s reasons, it is more the engagement of the coincidence rule. It is the fact of both these young women having been employed for short periods, being asked by the accused to come back to do some work for a day or so, being brought into his office, the massage preceding the sexual advance. It is those matters that seem to be at the heart of the basis for the reception of the evidence. That is as I would read the evidence.

MR THANGARAJ: I do not disagree with the facts behind what your Honour is saying but, in this case, one, the jury was given a tendency direction – exactly as I have said and which, we say, is inconsistent with the Victorian approach. But, more importantly, the Court of Criminal Appeal has said that this is permissible tendency.

So, yes, there was a coincidence notice as well but your Honours would appreciate we have not worried about the coincidence notice – neither party has. This is an issue of, is it permissible from tendency reasoning. The Court of Criminal Appeal has, with respect, erred. It is inconsistent with the Victorian Court of Appeal which, we say, with respect, eminently makes more sense – that you just cannot establish a tendency from one complainant. You can have a coincidence, of course.

There is another question then. That moves into our next point of whether this is a case where the factual circumstances warrant it. I do not propose to suggest this Court would take it because of a lack of similarity. The issue as to why this Court would look at this matter is because the approach between New South Wales and Velkoski – or the Victorian Court of Appeal – is so different.

I do not know if time will permit me to take your Honours through Velkoski but I am sure your Honours appreciate that that is a thorough – Justice Basten described it as a thorough and troubling analysis because what the Victorian Court of Appeal said was – just explained that to use the word “divergent” paths between the New South Wales Court of Criminal Appeal - - -

BELL J: Mr Thangaraj, accepting that there was a basis, having regard to coincidence reasoning in this case, the question that you identify whether one can have a relevant tendency based on the evidence of one person may – it may be an interesting question but, just in terms of how this matter might fall out, it is there that it seems to me you face the difficulty in terms of the analysis that you have an overlap between tendency and coincidence.

MR THANGARAJ: Your Honour, the difficulty is that in a case like this there will always be that tendency and coincidence notice. As your Honour would appreciate, it is very rare that you only get one or the other in multiple complainant sexual assault cases. But, the prejudice to us is not – you cannot hide the prejudice by saying there may have been a permissible coincidence notice. The prejudice is that the form of direction – the nature of the submission the Crown can make about tendency which, effectively, is not – well, the unlikelihood of two relevantly similar events occurring in the coincidence way which is far more neutral to the highly prejudicial character-smearing nature of a tendency submission which is, look at what this person is and what this - - -

BELL J: Mr Thangaraj, can I raise another aspect? This matter seems to have been conducted on the basis of the correctness or otherwise of the trial judge’s voir dire ruling.

MR THANGARAJ: Yes.

BELL J: Your appeal was an appeal against conviction. I appreciate there may be an issue as to whether, upon a review on, say, a 5F application, whether there is a range of matters that might answer the description of significant probative value, but either the admission of evidence constitutes an error of law or, perhaps, on the analysis, for example, made in the context of a 5F application by the Court of Criminal Appeal in DAO is right but, in that case at a trial, once the evidence is admitted – if complaint is to be made in relation to the conviction, it is a complaint that the admission of the evidence, right at the time it was made, has nonetheless been productive of a miscarriage. You are now raising matters about the effect on the trial that was had of the tendency directions, but no complaint about those directions was made before the Court of Criminal Appeal. Nothing is raised in your ground of appeal in that respect.

MR THANGARAJ: No. Well, the reason we could not do that, your Honour, is because if we succeeded on the primary argument, the directions must have been wrong. If we failed on the primary argument, the directions would be impermissible. If we ran the directions to the second ground and we had lost the first ground, it would not have mattered. We had to go the trial evidence as well in the way that Stubley did because it needed confirmation that the trial ran as trial counsel said. So trial counsel made it clear that consent was the issue. His Honour summed up – I can take your Honour if need be – on the basis that - - -

BELL J: The matter I am raising - - -

MR THANGARAJ: I understand that.

BELL J: - - - is your appeal is an appeal against conviction.

MR THANGARAJ: Yes.

BELL J: As it turns out, in the way it has been conducted, this matter that you now seek to ventilate for the first time in this Court has not been the subject of consideration by the Court of Criminal Appeal.

MR THANGARAJ: The Court of Criminal Appeal was asked to consider that the ruling led to a miscarriage on the basis that the evidence should not have been admitted because once it became an issue of consent then, in accordance with Stubley and Phillips that it should not have been admitted and that the trial ran – because part of the suggestion was it was not a proper admission by counsel at the trial.

But the Stubley admission was also informal and the right – and so we had to show that the trial ran as envisaged and then ran it on the basis, well, the evidence at trial – as your Honour quite rightly says – because it was not a 5F, it was a miscarriage case, but with respect to the special leave questions as to what this Court might consider, it does go directly to what the trial judge did and in what we say are errors in the Court of Criminal Appeal with respect to – or can tendency be one complainant, et cetera, and all the things that we say had happened with respect to the problems in this case.

The Crown’s position, essentially, is the admission made was not good enough. That is part of the Crown’s response to this case, notwithstanding the fact that the jury was told in the summing-up precisely what it was that the defence case was which was that, with respect to those accounts of KS, it was an issue of consent. That is what the jury was told. The Crown maintains that concession was not formal enough.

No one in the District Court said that was not a sufficient concession for the purposes of the trial. Trial counsel, obviously, should be accepted. That is the way the trial ran. If there was a problem, the Crown could have aborted the trial on the basis that this is not what we were told was going to happen, of course. Then the trial ran in that way and the evidence, which we say was highly prejudicial, then was admitted. So the Crown’s response really does not respond to what the issues are and the Crown has not addressed at all the issue of whether a single complainant can produce tendency beyond a reasonable doubt.

BELL J: Yes, thank you, Mr Thangaraj.

This application is not a suitable vehicle in which to consider the suggested differing approaches of the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal in relation to the admission of tendency evidence. If special leave to appeal were granted, the appeal would have insufficient prospects of success. Special leave is refused.

The Court will adjourn to reconstitute.

AT 11.59 AM THE MATTER WAS CONCLUDED