Wollaston v The Queen [2018] HCATrans 187 (14 September 2018)

Last Updated: 18 September 2018

[2018] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2018

B e t w e e n -

RONALD LESLIE WOLLASTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 14 SEPTEMBER 2018, AT 10.41 AM

Copyright in the High Court of Australia

MR B.J. POWER: May it please the Court, I appear with MS S.B. ROBB for the applicant. (instructed by Anderson Fredericks Turner)

MR M.R. BYRNE, QC: May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Yes, Mr Power.

MR POWER: As this Court very recently observed in Bauer at paragraph [47]:

The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.

GAGELER J: The result in this case was consistent with the outcome in Bauer.

MR POWER: That is so. At common law, of which Queensland is now the only State that applies the common law Pfennig test, we had not had the shift away from HML that had been observed in the Uniform Evidence Act States.

KEANE J: No, we just had the problem of trying to work out what it meant.

MR POWER: That is so. So what I take from Bauer is that this is an important subject in that the common law is far from clear and this is a vehicle for the Court to provide straightforward as possible answers to the application of the common law test.

GAGELER J: The difficulty with this being a vehicle is that the Pfennig test is a test of admissibility. There was no objection to the admissibility of this evidence. It is an inauspicious start for the Court to examine the wider question.

MR POWER: There was no objection to its admissibility but there was objection to the way in which it was put to the jury.

KEANE J: But that is the point that the presiding Judge was making to you. The Pfennig test is a test of admissibility. It is not a test of the reasonableness of the jury’s verdict or how it reasons.

MR POWER: No. The starting point, of course, is that the use of tendency or propensity evidence is not permitted unless it satisfies the Pfennig test and has a very high probative weight. In this case the evidence was before the jury for other purposes and it is critical that this evidence was not even mentioned in the prosecution opening.

The issue of this evidence being used in this way was first raised by the learned trial judge who inquired of counsel how this evidence was to be used. At that point the Crown Prosecutor asserted that it formed something akin to grooming and his Honour gave directions about its use to show sexual interest in the child.

KEANE J: That is a use that Bauer says is perfectly legitimate.

MR POWER: Only where it is able to carry that weight. If it were the case that – as the cases have observed over time there is evidence that is truly context evidence. There is evidence that is put before a jury to explain the nature of the relationship between the parties but is not itself able to be used as propensity evidence and this was such a case.

KEANE J: This is evidence that went to show that the accused had a sexual interest in the complainant.

MR POWER: The difficulty is that that was put before the jury without the judge ever having determined that it could carry that weight, that it fitted the Pfennig test and the Court of Appeal made no attempt to do so either. This is not a rare situation. It is quite usual that there is true context evidence in a criminal trial. If this case stands it will mean that any time the prosecution says that a particular set of facts is capable, on the prosecution’s assertion, of showing sexual interest, the jury will then be directed that it is open to them – and in this case they were directed that either one of the acts – they could, if they found the facts to be proved beyond reasonable doubt that would not have been difficult because the facts were essentially not challenged.

KEANE J: Quite. So this is not a case where there was any need for the jury to be told they had to be satisfied of those events beyond reasonable doubt.

MR POWER: That is so. The next step, however, is the critical one. The jury were told that if they found beyond reasonable doubt - - -

KEANE J: Once you accept that - why are we talking about the Pfennig test? That is all the Pfennig test is concerned with, that if you are relying on acts by way of propensity then they have to be proved to the criminal standard - the acts.

MR POWER: The acts have to be proved to the criminal standard, that is so, but the use to which they can be put in - cases of this Court like Roach and KRM have made it clear that there is a distinction between evidence that is present and admissible for one purpose and whether it can then be used for a propensity purpose.

Now, here, the labelling issue is critical. The judge told the jury that they were entitled to find that on either act – one or other of the acts in question – that it demonstrated sexual interest in a child and preparedness to act on it, yet there had never been an inquiry by the judge as to whether that fitted the Pfennig test.

Our submission is that had the Court of Appeal applied the Pfennig test to these acts, the decision would have been that it was admissible as proper context evidence, but the jury should not have been directed that they were entitled to use these two surrounding events, one or other of them, and that it was open to them to determine that it showed a sexual interest in the child and a preparedness to act upon it.

If I could take the Court to page 11 of the application book, which is the critical page in the directions of the learned trial judge. At the first new paragraph on that page beginning just below line 5 his Honour summarises the discreditable conduct that is relied upon. That conduct is set out in much greater detail in our application. However, for present purposes, the paragraph there sets out that the second incident was that:

after the touching of the complainant’s chest, the defendant was invited to go for a swim. The defendant told them that he did not have swimmers and said, or gestured, to indicate that if he went swimming without swimmers, the complainant and [M] might see the defendant’s private parts or willy.

The issue with that is the relevance of that evidence essentially was to the credit of the two witnesses, and that is why it was - - -

KEANE J: No, it was not. There is no issue in the case that the relevant touching for which he was charged occurred. The question was whether it was intentional or not.

MR POWER: That is so.

KEANE J: This evidence does not go to their credibility. The evidence about the fact – that things had happened - those things happened. The question was did they happen with the relevant intent? This evidence goes to previous intent.

MR POWER: The submission is made that the evidence in question was admissible, either as part of the res gestae because it was so close in time to the touching – the single dragging motion across the chest – or it was relevant as a circumstantial fact to show the actual appreciation of the complainant and the other witness at the time they occurred.

Your Honours may remember that the complainant said in her evidence that she initially felt that it had been an accident. The other witness, who was a similar-aged girl present in the room, said that she thought that the applicant was attempting to make it look like an accident. Both descriptions have in them a real equivocation about whether it was a deliberate touching or not. The fact that each of them contemporaneously invited him to go for a swim is a circumstantial fact that goes to what their true appreciation of the event was at the time.

So one can see why defence counsel thought this is a relevant piece of evidence. If the complainant and her friend actually believed this to be inappropriate touching as it occurred, they would scarcely have invited him to go for a swim with them. Then of course we have the other part of the evidence: what does he do? Upon that invitation he declines to go for a swim with the child that the jury were directed was in fact the subject of his sexual interest.

Although it is described in the appeal court as being a lewd gesture towards his groin, essentially it said, “I cannot go swimming; I have not got swimming togs,” and then there is a gesture towards the groin area. None of those things could reasonably carry the weight that the prosecution – or rather, that very late in the day the prosecution said they could carry. The other incident at the lengthy church service in [T] nor could that be able to carry it and that is summarised at paragraph 15 of page 11 where it said:

The complainant gave evidence at a church meeting at [T], not long before the events of the subject of the charge, the defendant sat beside her, put his hand on her knee and squeezed it, tried to hold her hand, paid her compliments such as pretty girl and sweetheart, put his arm around her, hugged her and stamped her on her hand with a JP stamp.

GAGELER J: What do you say about the President’s comment on that evidence at paragraph [18], page 35 - the first two sentences?

MR POWER: That is why I say that the true relevance of this evidence was as context. There is still a category of evidence that is not propensity evidence but is relationship in the broader use of the term, but probably better expressed as context evidence. The charged events related to - - -

KEANE J: Well, what do you say about what is said at paragraph [19]?

MR POWER: The first thing about it is that all of these things occurred in the context of a church service and in the most - - -

KEANE J: But it is the Crown’s invitation to the jury to find what that behaviour betokens. There is a submission made to the jury about what you find about the facts. The jury obviously came to a particular view about the facts.

MR POWER: There are two answers to that. The first is that the directions given to the jury were that either one of the acts were open to them to find upon and so the church service at [T], even it were a sufficient – and our submission is it is not – the difficulty is we are also confronted with the fact the jury were left with the declining to go swimming.

The prosecution’s categorisation of facts are subject to the permit of the court, so it was at the judge’s invitation, or the judge’s indication of what do we make of these facts that the prosecutor first said, after the evidence had closed - asserted that it could be used as grooming, which is obviously simply another species of sexual interest. What then happened is that, over objection from the defendant’s counsel who asserted it could not be characterised in that way, directions were given to the jury.

Now, naturally enough in those circumstances the prosecutor was open to categorise it in a sinister way. The question is not were the facts admissible. The question was whether, subject to the Pfennig test, those facts were admissible to prove a sexual interest which, of course, then was a step to finding that the defendant deliberately did the charged act.

So the applicant submits that this is actually a particularly useful case for this to occur in because the evidence was brought into the trial, not opened at all, not even mentioned in the Crown opening, brought into the trial and it was then, after the fact, characterised in a particular way. It is the case that in many cases there is evidence about unusual circumstances that connect the complainant and the appellant, whether that is through a religious organisation, through scouting, or in this case through a close religious group.

If it is the case that the prosecution can say evidence has been led about the defendant in some case being a keen scout master and who had a particular closeness with this boy, you can use that to show, well, we all know what scout masters are like. I mean, this is the difficulty. There is a threshold test for the use of the evidence. It is admitted in the trial for a proper purpose but it cannot then be simply applied for a propensity purpose regardless of its weight. That seems to be the effect of the judgment of the Court of Appeal which we submit is contrary to Roach and other cases which do limit the use of evidence that is otherwise in the trial.

The other special leave question of course is the one that was raised by his Honour Justice of Appeal McMurdo in the case of Douglas and that is extracted in our application at 51 of the application book. The effect of it is that it was noted that in BBH there was division as to how to use certain pieces of evidence that were said to be probative of sexual interest. Now, this case is a particularly useful one to illustrate that point.

Sorry, your Honours, if I may just take a step back. With regard to the first question about the use to which evidence can be put if it is otherwise admitted, it is important to note that the Uniform Evidence Act itself deals with this issue by legislation. So section 95 of the Uniform Evidence Act provides that evidence that, under this part, is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. The South Australian legislation has a similar provision.

It is probably not correct to argue from legislation back to the common law, but my submission is that the Evidence Act provisions are attempting to codify or provide a coherent whole and a necessary part of that is to recognise that there will be evidence that might be relevant for one purpose but once admitted does not then become open slather for a jury to determine whether it shows sexual interest because the equivalent in the Uniform Evidence Act of the Pfennig gatekeeper role is still required.

To turn back to the second special leave question, it is submitted that there is a degree of uncertainty about how one approaches evidence of discreditable conduct. Now, it might be said that if the conduct in question is so anodyne, so innocent, then the fact that the prosecution labels it in a certain way might be irrelevant.

But there are two aspects to it. One is that the difficulty with that labelling is that by labelling it that way it draws attention to the potential for it and then if there are judicial directions laid on top of that it is a judicial imprimatur to use it in that way.

Now, in BBH there is not a clear majority as to whether, in order for evidence to be permitted to be used by the jury in that way, subject to their findings of fact of course, but to be used in that way, whether the evidence

must be able to be characterised as having a sexual orientation in and of itself or whether the conduct can lean in to the charge conduct.

The more marginal the conduct, the greater relevance that issue will have and in this case it is submitted that particularly the second incident is so marginal that that process of characterisation in naming it, it is changed, and the second special leave question can be framed in terms of at least borderline cases in the following way. In cases that do not turn on strikingly similar facts, must the conduct relied upon to show propensity do so by itself or can other evidence in the prosecution case be relied upon to demonstrate that character in the otherwise equivocal evidence.

In this particular case it is submitted that this is a simple – relatively simple factual scenario and that the issues call for a resolution of that question that was left unanswered in BBH. Ultimately the applicant submits that the questions do call to be answered and without answer a miscarriage of justice would occur in this individual case. Thank you, your Honours.

GAGELER J: Thank you.

Having regard to the course of the trial and in particular to the absence of any objection being taken to the evidence in question, we are not satisfied that this case presents as a suitable vehicle for examining either the scope or the application of the common law rule of admissibility referred to in Pfennig v The Queen. Nor are we satisfied that the case presents as one in which there has been a miscarriage of justice, or arguably so. In those circumstances special leave to appeal is refused.

AT 11.04 AM THE MATTER WAS CONCLUDED