B v The Queen

[1992] HCA 68

High Court of Australia|1992-07-01|Before: Gaudron JJ, Brennan J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1992-07-01

Before

Gaudron JJ, Brennan J

Source

Original judgment source is linked above.

Judgment (71 paragraphs)

[1]

The applicant (the accused) was charged on indictment before the Supreme Court of the Australian Capital Territory with committing acts of indecency upon and having sexual intercourse with his daughter who was sixteen years of age at the time of the trial. The learned trial judge gave the jury a warning that it was unsafe to convict on the uncorroborated evidence of the daughter. The warning related to the danger of convicting on the uncorroborated evidence of the victim of a sexual offence. Section 76F(2) of the Evidence Act 1971 ACT now precludes the giving of such a warning but, as the warning given by the learned trial judge favoured the accused, the failure to comply with s. 76F(2) gives no ground for quashing the accused's conviction. His Honour did not give a warning that it was unsafe to convict the accused on the uncorroborated evidence of a child though he was free to give such a warning having regard to s. 76F(3)(b). Counsel for the accused submitted in this Court that his Honour was obliged to give a warning pointing out the dangers of acting on a child's evidence, but I respectfully agree with Dawson and Gaudron JJ. that, in the circumstances of this case, it was open to the trial judge to abstain from giving such a warning. The absence of such a warning gives no ground for quashing the conviction when the circumstances did not require it.

[2]

When his Honour gave the warning that it was dangerous to convict on the uncorroborated evidence of the daughter, he was constrained to give the jury a direction on corroboration. In giving them that direction, his Honour said:

[5]

Later, his Honour said: [I]ndependent evidence coming from the accused, himself, which tends to show sexual desire for the victim, and some measure of gratification of that desire, supports the case for the prosecution because it is consistent with the allegations that the accused now faces and makes unlawful and unnatural behaviour credible; it explains the whole thing. And it may serve to allay any concern that the jury - you - may be having that [the daughter's] allegation is a fabrication. How much weight you attach to it is for you. But what I tell you is, that is very strong corroboration if you accept it and there is no reason why you should not accept it, coming from his own lips. The jury might have understood that, provided they accepted the accused's evidence of his earlier acts of indecent dealing - and every consideration favoured acceptance - they were bound to regard that evidence as strong corroboration of the daughter's allegations. But it was for the jury to say whether the evidence of prior acts of indecent dealing was "very strong corroboration". True it is that the accused's evidence of those prior acts set the background in which the jury were to evaluate the daughter's evidence and it removed some of the natural reserve that the jury might otherwise have felt in accepting an allegation that the accused had indulged an abnormal passion for his daughter. But the evidence of the prior acts of indecent dealing had an equivocal character when the central issue in the trial was whether the accused, having been charged and convicted on his own confession of the prior acts, had returned home repentant and had fallen victim to false allegations by a rebellious daughter exploiting his past conduct or whether, after returning home, he had earned her antipathy by continuing his indecent treatment of her. The evidence was capable of being regarded by the jury either as an explanation of the daughter's alleged concoction of charges against her father or to show the unnatural relationship existing between the accused and his daughter. So much was conceded in this Court. The accused tendered the evidence, inviting the jury to use it for the former purpose; the prosecution, once the evidence was in, were entitled to invite the jury to use it to establish the truth of the daughter's present allegations. In the passages cited from his Honour's directions to the jury, his Honour might have been understood as dismissing the accused's case that, because his daughter resented her father and the domestic discipline to which she was subject, she was concocting her current allegations.

[17]

[I]t often happens, both in civil and criminal cases, that evidence is tendered on several alternative grounds, and yet it is never objected that if on any ground it is admissible, that ground must not prevail, because on some other ground it would be inadmissible and prejudicial. Restrictions on the purposes to which evidence can be put arise when evidence is admissible only for a limited purpose. If evidence, admitted for one purpose, is not admissible for another purpose, it cannot be used for that other purpose [11] . Even though the accused's evidence disclosed his previous acts of indecent dealing with his daughter in order to support his defence, that evidence was capable of being "very potent corroboration and very incriminating", as the learned trial judge said. Evidence of the commission of offences other than the offence charged is prima facie inadmissible, but evidence of other offences [12] may be admitted if the evidence is relevant to a fact in issue [13] and if its probative force is sufficiently high to outweigh the inevitable prejudice flowing from the nature of the evidence [14] . Here, once the accused chose to tender the evidence and the learned trial judge admitted the evidence of his prior acts of indecent dealing, that evidence was available to prove the accused's sexual attraction towards his daughter [15] . The evidence, once admitted, was treated as available to be used for that purpose. When an objection was taken at the trial to the prosecutor's cross-examination of the accused about his prior relationship with his daughter, the learned trial judge ruled against the objection saying: [I]t seems to me that the Crown is entitled to investigate the depth of the previous relationship. I do not think I can stop this cross-examination. I will allow it on that basis, that is it - the depth of the previous relationship is relevant to whether the girl's allegations now are true or not. The evidence was, if the jury chose so to regard it, strongly supportive of the truth of the daughter's current allegations. 1. Walker v Walker (1937), 57 C.L.R. 630, at pp. 636, 638. 2. R. v Finlayson (1912), 14 C.L.R. 675, at p. 679; Cross on Evidence, (4th. Aust. ed., 1991), par. 1535; Wells, Evidence and Advocacy (1988), pp. 80-82. 3. [1906] 2 K.B. 389, at pp. 411-412. 4. Wigmore on Evidence, (rev ed., 1983), vol. 1, par. 13; Maxwell v Director of Public Prosecutions , [1935] A.C. 309, at p. 321. 5. Usually, evidence of the conduct constituting the offences rather than the fact of conviction: see Reg. v Shepherd (1980), 71 Cr. App. R. 120, at pp. 123, 124. 6. Makin v Attorney-General (N.S.W.), [1894] A.C. 57, at p. 65; and see, e.g., Reg. v Sims and Anderson , [1967] Qd R. 432, at p. 439. 7. Perry v The Queen (1982), 150 C.L.R. 580, at pp. 604-605, 609-610; Sutton v The Queen (1984), 152 C.L.R. 528, at pp. 534, 547-548, 560, 564-565; Hoch v The Queen (1988), 165 C.L.R. 292, at pp. 294-295, 300; Harriman v The Queen (1989), 167 C.L.R. 590, at pp. 593-594, 597. 8. R. v Ball , [1911] A.C. 47; R. v Kennewell , [1927] S.A.S.R. 287, at p. 302; Pettman, cited Archbold's Pleading Evidence and Practice in Criminal Cases, 44th ed. (1992), vol. 1, par. 13-58

[19]

quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice. In the context in which this passage appears, it is clear that his Honour, by referring to evidence "admitted for other purposes", was referring to evidence which is admissible for other purposes, not to the purposes of the party tendering the evidence. His Honour went on to discuss R. v Kennewell and Reg. v O'Meally [No. 2] [18] in terms which show that he was directing his attention to the "purpose for which the evidence could be used" [19] , not to the purpose for which the tendering party intended the evidence to be used. In this case, the evidence of prior acts of indecent dealing was admissible to prove the offences charged and the fact that the accused tendered the evidence for an exculpatory purpose did not preclude the use of the evidence, once admitted, to prove those offences. To adopt Wigmore's words [20] , the evidence satisfied "all the rules applicable to it in that capacity". The learned trial judge would have been in error to direct the jury that the evidence was not to be regarded in determining whether the accused was guilty of the offences charged when the evidence was capable of being strongly supportive of the daughter's allegations. If the judge had directed the jury that the evidence could not be used to prove the charges in the indictment, he would have mis-stated the significance of the evidence [21] . Indeed, he would have been inviting the jury to act irrationally. Juries are happily accustomed to ignore invitations of that kind. 1. (1972) 128 C.L.R. 114. 2. (1972) 128 C.L.R., at p. 123. 3. [1953] vL.R. 30. 4. (1972) 128 C.L.R., at p. 125. 5. op. cit., p. 694. 6. See the comparable situation considered by Menzies J. in Donnini (1972), 128 C.L.R., at p. 133.

[64]

The additional relevance - or required probative value - may lie in a striking similarity between the previous offences and the offences in question such that they would all appear to be committed by the same person. In that event, evidence of the previous offences is correctly called similar fact evidence. But there are other circumstances, not necessarily involving similarity, in which evidence of the commission of previous offences may have the probative value required for its admission. The relevant circumstances for present purposes occur when the evidence establishes a relationship which is not of an innocent character but points strongly to the commission of the offences in question [34] . Thus, in this case, the prosecution might have contended (as the trial judge recognized) that the evidence of the commission of the previous offences by the applicant showed that the applicant was sexually attracted to his daughter - a matter which the jury would be entitled to think was abnormal as between a father and daughter - and that he was sexually attracted to his daughter to the extent that he gave physical expression to that attraction. The prosecution might have contended that, in the circumstances, evidence of the existence of that attraction was sufficiently relevant to justify its admission to prove the commission of the offences with which the applicant was charged, notwithstanding the inevitable prejudice which the evidence carried with it. But the prosecution did not so contend and did not attempt to lead evidence of the commission by the applicant of the previous offences. That evidence was led by the defence and for a different purpose. The trial judge was not asked to rule, nor did he rule, that the evidence was admissible for the purpose of proving a particular propensity or disposition on the part of the accused pointing to his guilt. The evidence, therefore, remained inadmissible for that purpose. This was not a case in which evidence led for a limited purpose was nevertheless generally admissible. In such a case, the party tendering the evidence cannot limit the use to which the evidence may be put once it is admitted. It was a case in which the evidence in question was not admissible to show propensity until it was led for that purpose and the trial judge, having applied the appropriate test, ruled that it was admissible for that purpose.