Gedeon v Commissioner of NSW Crime Commission

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow J.,Kirby J.,Hayne J.,Heydon J.,Crennan J.,Kiefel J.,Kirby,Hayne,Heydon,Crennan,Kiefel JJ
• Judgment Date: 04 September 2008
• Neutral Citation: 2008-0904 HCA A,[2008] HCA 43
• Docket Number: A23/2007 A28/2007,S536/2007
• Court: High Court
• Date: 04 September 2008

[2008] HCA 16

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

A23/2007

A19/2007

A28/2007

HML

Appellant

and

The Queen

Respondents

SB

Appellant

and

The Queen

Respondents

OAE

Appellant

and

The Queen

Respondents

Representation

Matter No A23/2007

T A Game SC with C S L Abbott for the appellant (instructed by Herman Bersee)

C J Kourakis QC, Solicitor-General for the State of South Australia with S A McDonald for the respondent (instructed by Director of Public Prosecutions (SA))

Matter No A19/2007

A L Tokley with C S Gallagher for the appellant (instructed by Gallagher & Co)

A P Kimber with K G Handshin for the respondent (instructed by Director of Public Prosecutions (SA))

Matter No A28/2007

N M Vadasz for the applicant (instructed by Kyrimis Lawyers)

M G Hinton QC with K G Handshin for the respondent (instructed by Director of Public Prosecutions (SA))

Evidence Act 1929 (SA), ss 34CA, 34I.

HML v The Queen

SB v The Queen

OAE v The Queen

Criminal law — Evidence — Similar facts — Sexual crimes — ‘Uncharged acts’ — Relevance — Admissibility — Applicability of test in Pfennig v The Queen (1995) 182 CLR 461.

Criminal law — Evidence — Similar facts — Standard of proof — Whether ‘uncharged acts’ must be proved beyond reasonable doubt — Directions to jury.

Practice and procedure — Application to amend notice of appeal — Whether leave should be granted to amend notice of appeal to raise issue of admissibility of evidence, to which no objection was taken at trial.

Words and phrases — ‘context’, ‘guilty passion’, ‘propensity evidence’, ‘relationship evidence’, ‘relevance’, ‘similar fact evidence’, ‘uncharged acts’.

Matter No A23/2007

Appeal dismissed.

Matter No A19/2007

Appeal dismissed.

Matter No A28/2007

1. Special leave to appeal granted.

2. Appeal treated as instituted, heard instanter and dismissed.

1 Gleeson CJ These matters raise issues concerning the admissibility at a criminal trial of a certain kind of similar fact evidence, and the proper directions to be given to a jury in the event that such evidence is admitted. In each matter, the evidence was that of a complainant who, in addition to giving an account of specific acts the subject of the charge or charges in an indictment, testified that other such acts had taken place between the accused and the complainant. This was described in argument as evidence of uncharged acts. I am content, for the purpose of stating my reasons, to adopt the description used in argument, although I do not suggest that it would always, or even usually, be a helpful phrase in a trial judge's directions to a jury. Of course, evidence of uncharged acts might come from a source other than the complainant; and uncharged acts of the same kind as the charged acts are themselves a particular example of evidence that reveals criminal or discreditable conduct of an accused other than the conduct with which he or she is charged. There are wider issues involved.

2 In cases of alleged child sexual abuse, it is not uncommon for a complainant to assert that the incidents the subject of charges against the accused were part of a pattern of behaviour that extended over a period of time, perhaps many years. There is nothing new about this kind of evidence, although in recent years the increase in reporting of, and prosecution for, child sexual abuse has drawn wider attention to some of the problems involved. In KRM v The Queen1, McHugh J pointed out that, in cases of sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted 2. He said that such evidence tended to explain the relationship of the parties or made it more probable that the charged acts occurred. In a footnote, he referred to a number of authorities, the first of which was R v Ball3, a decision of the House of Lords in 1910. In that case, which concerned incest, the Lord Chancellor referred to the law ‘which is daily applied in the Divorce Court … to establish … the existence of a sexual passion’ 4. His Lordship was referring to evidence of ‘guilty relations between the parties’ in aid of proof of what was then the matrimonial offence of adultery. In R v Hartley5, the English Court of Criminal Appeal said, of a complainant in a case of a sexual offence, that ‘where a person alleges that an offence such as that with which we are concerned here has been committed against him and that the occasion was not an isolated one, he is entitled to give evidence that the offence was indulged in habitually.’ The

reasons why, and the circumstances in which, that is so must be examined in order to decide the present matters.

3 In some Australian jurisdictions, there are statutory provisions governing these questions. The matters before the Court (two appeals and an application for special leave to appeal) come, however, from South Australia, where it is the common law that must be applied 6. Since there is a question of the admissibility of evidence, the logical starting point is relevance.

Relevance and proof

4 Evidence is information which, according to certain governing general principles and more detailed rules, will be received by a court for the purpose of deciding issues of fact that arise for its decision. The issues in civil cases are defined by the pleadings or other corresponding procedure. They are determined by the principles of substantive law that apply to the dispute, and by choices made by the parties within the boundaries set by those principles. In a criminal trial of an indictable offence, the indictment identifies the alleged offence. The prosecution sets out to prove the elements of the offence, that is to say, the specific offence alleged to have been committed by the accused. The jury will be directed, as a matter of law, that for a verdict of guilty it is necessary to be satisfied beyond reasonable doubt of those elements 7. The elements of the offence, to the extent to which they are disputed, identify the facts in issue, which may be refined by particulars 8. Depending upon the way in which the prosecution seeks to prove its case, or the way in which the defence is conducted, it may appear, as a matter of fact, that an element of the offence charged will not be established beyond reasonable doubt unless some subsidiary fact, relevant to a fact in issue, is proved to that standard. However, the legal requirement as to onus and standard of proof is related to the elements of the offence charged. In some cases, there may be only one available path to a conclusion of guilt, but often that is not so. Jurors are commonly instructed that they may be selective in their approach to the evidence, and even in their approach to different parts of the evidence of the one witness.

5 The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible 9. Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings 10. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability. The prosecution may set out to establish that an accused had a motive to commit an offence charged. Motive may rationally affect the assessment of the probability of the existence of one or more of the elements of an offence. Evidence that tends to establish motive, therefore, may rationally affect such assessment. If so, it is relevant. When the prosecution sets out to establish motive, that is often a step in the prosecution case that is not indispensable. If it is established, motive may support (sometimes powerfully) the prosecution case, but juries are often told that failure to establish motive does not mean the case must fail. The legal necessity is to establish beyond reasonable doubt the elements of the offence. What that entails as a matter of fact may depend upon the circumstances of the particular case. Some of the statements made in Chamberlain v The Queen [No 2]11 could have been interpreted as abrogating the fundamental legal principle, but what was there said was subsequently clarified in Shepherd v The Queen12.

6 Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham13. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her

father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no...