Cooper v The King [2023] HCATrans 47 (21 April 2023)

Last Updated: 21 April 2023

[2023] HCATrans 47

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D8 of 2022

B e t w e e n -

BENJAMIN COOPER

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 APRIL 2023, AT 9.30 AM

Copyright in the High Court of Australia
MR S.A. McDONALD, SC: May it please the Court, I appear with MS H.L. CANHAM for the applicant. (instructed by North Australian Aboriginal Justice Agency)

MR L.A. BABB, SC: May it please the Court, I appear with MS T.L. GREALY for the respondent. (instructed by Director of Public Prosecutions (NT))

GAGELER J: Thank you, Mr Babb. Mr McDonald.

MR McDONALD: Thank you, your Honours. The first matter I need to raise is that we require an extension of time of only two days. An attempt was made to file within time, but ‑ ‑ ‑

GAGELER J: You present your argument, and we will deal with the extension of time as part of the application.

MR McDONALD: Thank you, your Honour.

GAGELER J: Mr McDonald, can I just ask, has your client’s term of imprisonment now been fully served?

MR McDONALD: Yes, it has.

GAGELER J: And do you put the case as one of principle, or is it some kind of interests of justice in the individual case?

MR McDONALD: It is put as both. In essence, the central complaint is the application and determination of the question relating to section 137 of the Uniform Evidence Act.

GAGELER J: Well, application and determination does not sound like a question of principle, when you put it that way.

MR McDONALD: No, your Honour, I accept that, but there are two errors that are introduced at the Court of Appeal level. The first is essentially one that goes to the justice of the case, which is the factual error that a tendency warning was given when in fact none was – and the balancing has been done on that basis – fundamentally wrong. That is obviously not a question of general importance but a question specific to this case.

The question of general importance concerns the use of evidence said to be evidence of sexual attraction, or labelled motive, and whether or not that is distinct from a tendency use. That is the question that we say is a question of general importance.

The approach of the Northern Territory Court of Criminal Appeal in this case is contrary to statements in a number of cases in Victoria and New South Wales, commencing with Justice Hodgson’s judgment in Leonard, and that has been picked up in a line of authority in both those other jurisdictions.

So, the court explicitly reasoned in this case – paragraphs [10] and [11] – that the evidence was admissible, that is, the evidence of the shower incident was admissible to show a motive, in the sense of sexual attraction, on the part of the applicant.

GLEESON J: That is not a tendency use.

MR McDONALD: Well, your Honour, that is the question that we would say is of general importance because the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal have held that that is so close to a tendency use, where the suggested motive arises from evidence of conduct of the accused, that it cannot be separated from tendency and that it should be treated as a tendency use. So, if that is wrong, in our submission, that would be the basis for an appropriate grant of special leave because that is the basis on which Victoria and New South Wales have been proceeding since around 2006.

GAGELER J: And that point was taken about this at the trial – is that correct? This evidence was admitted in some kind of pre-trial hearing, was it?

MR McDONALD: So, there was a – in a sense, that is correct. The question of whether it was admissible was raised and dealt with pre-trial. It is not a question of no point having been taken at trial. It is a question of the point having been raised at the appropriate time and dealt with pre-trial, that ruling having been abided at the trial.

GAGELER J: There was discussion – extensive discussion – during the trial about whether there should be a tendency direction.

MR McDONALD: There was. And, obviously, the trial councillor was faced with a situation where he continued to assert that the evidence should not be before the court at all and was then left trying to deal with what directions ought to be given in the light of evidence having been admitted that he maintained should not have been admitted. And your Honours will have seen that, in the course of that exchange with the trial judge, he actually says, “well therein lies” the problem. And the trial judge did not seem to be able to articulate quite what the relevance of it was. The prosecution ‑ ‑ ‑

STEWARD J: Did the trial judge offer an anti-tendency direction?

MR McDONALD: Offered, in the sense of said, should I give one?

STEWARD J: Yes.

MR McDONALD: Yes, and there was a discussion about that.

STEWARD J: And the answer was, no, was it not?

MR McDONALD: Yes.

STEWARD J: And then there was an agreement that the direction should be, one, whether the shower incident actually happened, and, two, whether something inappropriate about the applicant’s conduct occurred. And that was the agreed direction to be given.

MR McDONALD: Agreed on the basis that evidence which the defence maintained should not be admitted was admitted. So, I mean, from the defence point of view that was obviously a forensic decision made in the difficult situation at trial, but it had the benefit of inviting the jury to disregard that evidence altogether. So, in effect, asking the jury to do the job that we would respectfully say ‑ ‑ ‑

STEWARD J: If a tendency direction had been given and the evidence admitted, would that have been a course of action you would have been content with?

MR McDONALD: No, your Honour. No. In our submission, the evidence was more prejudicial than probative – or its prejudicial effect outweighed its probative value ‑ ‑ ‑

STEWARD J: So, a tendency direction would not have cured that, in your view?

MR McDONALD: It would not have.

STEWARD J: Okay.

MR McDONALD: But our point about what happened at the Court of Appeal is that their Honours have never even assessed this on the basis of what really happened. Their Honours weigh in the balance on the side of curing prejudice the fact that a tendency direction was given when in fact no direction was given.

GAGELER J: So, this is the – you say there was an error in paragraph [22] – just a straight mistake, is that right?

MR McDONALD: Yes. Just a straight mistake, yes, but one that has meant that the appellate function has miscarried, in that the only judge who did not make this fundamental error would have said that the evidence was excluded. That is Justice Barr in dissent.

GAGELER J: Yes. It is conceded to be a slip, at least, is it not?

MR McDONALD: The prosecution ‑ ‑ ‑

GAGELER J: The first sentence in paragraph [22].

MR McDONALD: ‑ ‑ ‑ conceived that it was an error, yes. The other aspect of the directions is that there was no direction given to the jury about what “use as context” means in this case.

GAGELER J: Well, Mr McDonald, at paragraph [21], second sentence, it is said that:

Counsel for the appellant conceded that the jury were adequately directed –

Is that concession correctly recorded?

MR McDONALD: We did not concede that they were “adequately directed”. We conceded that the directions were what was sought at trial, including by defence counsel, on the basis of the wrong admission of the evidence. So, in that sense, there was no dispute at trial about what directions ought to be given, but the question on appeal was, weighing everything up, was the admission of this evidence more prejudicial than probative? That had to be weighed in the context of the directions that were in fact given.

The Court of Appeal, the majority, explicitly reasoned, if you – yes, there was a real risk of prejudice through impermissible general tendency reasoning, but that was allayed by the giving of the tendency warning. But there was no tendency warning. Now, yes, that is partly because that is the way defence counsel sought to deal with it, but, ultimately, you cannot reason that there was no prejudice because a warning was given when in fact the warning was not given.

So, yes, the other point I just wanted to make was that this was said to be admitted as evidence of context only, but no one was able to articulate in a satisfactory way exactly what that would mean. Instead, all the prosecutor was able to say to the jury was, you might find there is really nothing innocent about it and that that gives context to what happened later in the day. In my submission, without any warning as to propensity, the most obvious way the jury would reason that that might give context to what happened later in the day was by inferring something about the accused’s general propensity to act inappropriately in the context of young girls.

Can I say, just to be clear about the facts of the shower incident, the evidence itself was very unclear and emerged piecemeal over the course of, first, examination‑in‑chief, then cross‑examination, then with the great detail coming out in re‑examination because the effect of the cross‑examination was really to suggest that the complainant had only had one shower that day, that it was in the morning and that it was before the accused arrived.

So, at the end of the cross‑examination there was effectively evidence to the effect that the shower incident could not have happened, and that is why all of the detail comes in re‑examination, which we have set out in the special leave application at paragraph 16. So, the effect of it – ultimately, as things turned out – is the complainant is fully clothed, showering her sister who was two years old, who was naked. The accused looked into the bathroom, having opened a bedroom door, seemingly from the bedroom through two doorways into the bathroom, and stared or looked for, in the complainant’s words, “too long”.

GAGELER J: We have read the facts.

MR McDONALD: So, in my submission, the most obvious way that the jury would have understood the directions they were given was to just take this into account as precisely the sort of impermissible reasoning of what sort of person is the accused, and is he more likely to have committed the charged offence in the knowledge that he may have some sort of interest in young children, in a general sense, in the shower.

If I can just turn quickly to the question that we do say is a question of general principle, and I have already addressed this to some extent. In our submission, the question of whether a person has a sexual attraction to a particular child is one question. The shower incident – it is hard to see how it could suggest a particular sexual attraction to the complainant. At best it could suggest only a general attraction or a sexual interest, in some sense, to young children generally.

So, on any view, whether one treats that as motive or as tendency, it was only very weak evidence to be weighed on the probative value side – it is very close to a general tendency. But, in our submission, the clear effect
of the authorities we have referred to in both Victoria and New South Wales is that such evidence is treated – because it is so close, and it is so difficult to distinguish between motive and a propensity to act on the motive – or, put another way, propensity to have a state of mind, which is what is included in section 97 – that they should be treated as a species of tendency evidence for the purpose of section 97.

Of course, if that is the case, then what the Court of Appeal has done is to weigh that use as motive on the probative evidence side, when in fact it actually not only should not have been weighed on the probative side, but it should have been weighed positively on the prejudicial reasoning side.

GAGELER J: Is this a point which features in the dissent?

MR McDONALD: It is not explicit in the dissent. The dissent goes through the reasons why Justice Barr regarded the evidence as more prejudicial than probative. It does not specifically grapple with this particular distinction. I think what is put against us is that this is all not actually what the Court of Appeal was doing at all, but that this was O’Leary reasoning. In our submission, it is not that, and the Court of Appeal could not possibly be properly construed as saying that. It is clearly drawing this very distinction that New South Wales and Victoria have rejected.

GAGELER J: Yes.

MR McDONALD: If the Court pleases.

GAGELER J: Yes, thank you, Mr McDonald. Mr Babb.

MR BABB: Your Honours, the shower incident was relevant as a circumstance showing the accused’s motive, and his interest in the complainant at the time, temporally connected with the alleged offending. It was directed at the complainant, and your Honours can see the summary of Justice Barr of the evidence at application book 104, paragraph [86].

GAGELER J: The basic point of principle being made against you, as I understand it, is that there is a very fine line, if any, between motive and tendency in a context such as this.

MR BABB: That line, your Honour, is far clearer in a connected set of circumstances occurring on the same day. That . . . . . evidence of actual state of mind is completely distinct from the tendency to have a state of mind when there is the temporal connection that we have in this case. And this has been recognised in the authorities in the intermediate appellate courts that is cited by . . . . . and sexual assault cases including those authorities.

My learned friend referred to Justice Hodgson’s decision in 2005, in the case of LJW v R [2010] NSWCCA 114. That was a case where there were two counts of sexual intercourse with a child in circumstances where the child was driven to Muswellbrook, and the sexual intercourse occurred on the night. And during the drive, some hours before, he was asked – he was told by the offender that he saw him masturbating the day before, and the child said, no, I might have had my hands down my pants.

Justice Hodgson reasoned in that case that the evidence was not tendency evidence, that it was evidence of state of mind because of the proximity and time, that at the time of developing the Evidence Act provisions in relation to tendency, the Law Reform Commission was focusing on previous misconduct and past misconduct – and misconduct in the past. Justice Hodgson reasoned in LJW that the conversation earlier in the day fell within the O’Leary principle, being part of the same connected series of events, and that an inference was available that the same state of mind continued up to the time of the offending, and that that was to be distinguished from ‑ ‑ ‑

GAGELER J: Mr Babb, in sum, I think what you are saying is that the authorities upon which the applicant seeks to rest the application for special leave are in favour of the reasoning adopted by the majority, properly analysed.

MR BABB: The authorities relied on by the respondent are in favour of the reasoning adopted by the majority, and the authorities relied on by the applicant are cases where there is a significant temporal difference. For example, Ritchie was a case where the charged offences were alleged to have occurred in 1985 through to February 1987, and the inadmissible uncharged act occurred in 1988 at a time when the complainant may have been three years older than at the time of the offending. When one looks at that temporal difference and the fact that the offending – the uncharged act was after the event – one can clearly see that the distinction between motive and tendency aligns. But it does not do so when there is the temporal connection displayed ‑ ‑ ‑

GLEESON J: Mr Babb, perhaps the question I have is anterior to the question of the point of principle here, but the difficulty I have is understanding how this evidence is capable of having any probative value at all. Can you assist me with that?

MR BABB: Yes, your Honour. The . . . . . The Court of Criminal Appeal summed up the relevance correctly. There were two of the points – and this is at the application book 68 over to 69 – it was evidence of:

motive for the accused’s alleged conduct on the evening of the same day on which the shower incident took place.

GLEESON J: But what I do not understand is, how is that the case? As I understand it, the evidence was that the appellant looked at the complainant who was washing her sister.

MR BABB: He came up and stared at her for “too long”, and then later that night, “exposed himself to her”. The relevance, your Honour Justice Gleeson, is in answering the question, the . . . . . about whether the accused’s exposure of his penis was intentional or accidental. So, it was state of mind. And the direction about the shower incident came in the part of the summing up that went to intention and direction. So, it was the particular issue in this case that gave this real relevance. The submission being put was, he may have exposed himself and . . . . . turn away as opposed to beckoning the child to come to him.

In those circumstances, it assumed relevance, and if the relevance was not . . . . . tendency, a requirement for a particular degree of relevance, but, in my submission, there was not significant prejudice in this particular instance, because this was not uncharged criminal acts. This was conduct that was unlikely to attach the same approbation of the jury, and the directions were carefully considered by counsel and agreed to.

GAGELER J: Mr Babb, what do we do with the first sentence of paragraph [22] of the majority’s reasons?

MR BABB: Your Honour, that sentence is strange, given that paragraph [2] of the majority’s judgment refers to the directions that are detailed in full by Justice Barr, and the directions – I am not sure, your Honour – we have conceded that it is factually incorrect, that statement. But what we can do is look at the directions that were given.

Directions were given about inferential reasoning about the requirement to be satisfied beyond reasonable doubt multiple times in the summing up, and they were given a written precis that stressed the need to be satisfied of the elements of the offending beyond reasonable doubt. So, at paragraph [22] in that one line – which is inexplicable given the detail with which the directions were gone through by Justice Barr – it seems to be a slip, your Honour.

GAGELER J: Yes. Thank you, Mr Babb.

MR BABB: Thank you, your Honours. They are my submissions.

GAGELER J: Thank you. Mr McDonald, do you have anything in reply?

MR McDONALD: Yes, thank you, you Honour. Mr Babb submitted that the actual state of mind was a completely different question to the tendency to have a state of mind, and that this was a case of actual state of mind continuing. With respect, that is not the distinction that the majority itself drew in paragraph [10]. It was also suggested that there was a clear temporal connection. These two things happened on the same day, but the evidence was that the applicant had, in fact, left the house during the day and had come back late in the evening. So, it was not as if this was a continuing course of conduct.

As has been raised, the actual effect of the shower incident was very ambiguous in itself, anyway. I also just wanted to raise the fact, given your Honour’s first question to me was about whether the sentence had been completed, that one of the consequences of this conviction for my client is that he is subject to sex offender reporting obligations, which are ongoing. So, it is not as though this does not have any continuing effect for him. And, in any event, being incorrectly convicted would be a serious miscarriage, even if everything was spent.

So, if the Court pleases, that is, I think, all I wanted to say in reply.

GAGELER J: Thank you, Mr McDonald. We will retire momentarily to consider the course we will take.

AT 9.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.57 AM:

GAGELER J: Given its procedural history, we are not satisfied that this case presents as a suitable vehicle for examining the question of principle which the applicant seeks to raise, nor do we consider that the interests of justice in the individual case warrant the grant of special leave. There will be an extension of time for the filing of the application, but special leave is refused.

The Court will now adjourn until 10.15 am.

AT 9.58 AM THE MATTER WAS CONCLUDED