Phillips v The Queen

Phillips v The Queen - [2006] HCA 4 - HCA 2005 case summary — Zoe

[33]

On or about 19 November 2001, when she was 15, MM decided to cease living at the house of her then boyfriend, PP, his father and brother. She knew the appellant, having been at the same school. He and MS, a friend of the appellant, arrived at PP's house. MM said she wanted to go to her mother's house at Mission Beach. The appellant said he might be able to give her a lift. He left, but later rang and arranged to pick her up and take her home. Soon afterwards, MS drove MM away while the appellant distracted PP's attention. MS drove her to a friend's house, and thereafter dropped her at the property owned by the appellant's parents. On it were two houses. One of them was the house where BS had gone in August 2000, and in which the appellant and his parents resided. The other one was vacant, and the appellant was waiting there. The appellant then departed and returned with his mother, bringing food, drink and additional bedding. The mother then departed.
For some time the appellant and MM rode a motor bike, ate dinner and drank alcohol. When darkness fell the appellant expressed a desire to go to sleep. In the living room there were two beds, some distance apart. The appellant asked for a goodnight kiss, but MM refused. In response to the appellant's repeated threats to use a baseball bat, MM began to undress. The appellant asked for fellatio, and against her will, she complied. The appellant then penetrated her twice with his penis. MM was crying throughout. That was the subject of count 6.
The circumstances relating to count 7, as narrated by MM, began after she and the appellant smoked a cigarette. Over her expressed objections, and in compliance with the appellant's wishes, she performed fellatio again. Again the appellant had vaginal intercourse with MM twice. The appellant then threw the baseball bat outside the window and filmed MM for a short time.
The appellant's evidence admitted that there had been consensual kissing, touching and fellatio, but denied intercourse.

[79]

Difficulties arise in this case from the narrowness of the purpose for which the similar fact evidence was admitted.
An initial difficulty in the trial judge's approach, as counsel for the appellant said, was that strictly speaking it was not correct to say that in a practical sense the issue in relation to all complainants was consent. For three of them it was (counts 1-2, 4 and 5); but for the other three it was whether the appellant had done the acts alleged (counts 3 and 6-8). And in relation to two of the first group of three counts there was an issue as to whether the appellant had made an honest and reasonable mistake of fact about consent (counts 4 and 5). On counts 3 and 6-8, in theory issues of consent would arise if the evidence of the complainants that the appellant did to them what he denied doing were accepted by the jury; but if their evidence on that issue were accepted, it would be unlikely that their evidence on consent would be rejected.
Another difficulty is that the narrowness of the purpose limited the probative value of the evidence, but left open the risk of the evidence having a prejudicial effect on issues other than consent. The trial judge strenuously endeavoured to overcome that problem by his directions to the jury, and no complaint was made about those directions.
But another difficulty, to which counsel for the appellant drew attention, could not be overcome in that way. Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count supported by one complainant's evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to "the improbability of similar lies" on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen[15]; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.
Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.
The difficulty can be illustrated by count 5. In her evidence in relation to that count, SW admitted that, without protest, she witnessed a game in which KW removed most of her clothing and BM and the appellant removed all of theirs; she consented to the appellant massaging her breasts; and she consented to performing fellatio on the appellant, at least for a time. She contended that she did not consent to vaginal intercourse. In assessing whether the prosecution had removed any reasonable doubt on that subject, of what probative value was it that BS said that nearly a year earlier she had not consented to the appellant carrying out acts of fellatio and vaginal intercourse on her after not offering him any encouragement at all? Or that TK said that four months earlier she had not consented to the appellant carrying out acts of vaginal intercourse after not offering him any encouragement at all? Or that ML said that about three months earlier she had not consented to the appellant having vaginal intercourse with her after not offering him any encouragement at all, and passing out through drunkenness? Or that MM said that five months later she had not consented to the appellant carrying out two acts of fellatio and four of vaginal intercourse without having offered him any encouragement? Or that JD said that about two years later she had not consented to various overtures to sexual intercourse, again without having offered him any encouragement? Of what probative value in relation to whether SW consented were those five items of testimony, even taken together?
Evidence by other complainants that they had not consented to the sexual acts allegedly performed on them by the appellant had no more probative value than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant. Like the evidence of the other complainants in this case, evidence of that kind may demonstrate some "propensity" in particular complainants, but it demonstrates nothing about the appellant.
In short, as counsel for the appellant submitted, the evidence, tendered as it was on the issue of the consent of each complainant, was irrelevant to that issue. "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 proceeding."[16] Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent.

[88]

In this case none of these criteria are met - either on the issue of whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent. Take count 8, assaulting JD with intent to rape her. Where is the strong degree of probative force necessary to permit the exceptional reception of evidence that in earlier years the appellant had indecently assaulted or raped five other complainants? What was the really material bearing of that evidence on the issues to be decided on count 8? What was there about the prejudicial evidence which showed that on five earlier occasions the appellant had a strong desire for sexual intercourse (with consent if he could get it, without it if he could not) which caused its probative value clearly to transcend that prejudicial effect? Did the evidence have "strength in its probative force", or was its specific probative force "sufficiently great"? Did it have "some specific connexion with or in relation to the issues for decision" giving "significant cogency" to the evidence about count 8?
The similarities relied on were not merely not "striking", they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant's desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.
Counsel for the appellant rightly submitted that to conclude that the similar fact evidence was correctly received in this case would mean that none of the statements set out above requiring high probative quality any longer represented the law.
There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature. Although none of these features is necessary for admissibility, the high probative value required in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason. After the evidence had closed but before addresses, the trial judge told counsel for the prosecution that, in relation to this case, she ought to shake the words "similar fact" from her mind and her vocabulary; and he said that if the probative value of the evidence depended on similarities in the way the offences were committed, he would have discharged the jury. The trial judge's statements reflect the conclusion to which he had gradually moved during the trial that features of each incident to which the complainants testified, even taken together, did not give the evidence sufficient probative value to justify its reception. That conclusion was correct.

[89]

The trial judge from time to time referred to Pfennig v The Queen. But he did not apply the tests stated in that case. Rather he followed the agreement of counsel and applied the tests advanced in R v O'Keefe. The Queensland Court of Appeal in R v O'Keefe said that the tests it stated were the "only sensible resolution"[27] of passages in Pfennig v The Queen which were not as "workable" as the views expressed by minority judges[28], revealed "fundamental difficulty"[29] and "artificiality"[30], were "rather perplexing"[31], had led to "the expression and application of different tests" in State courts[32] and had a "dubious pedigree"[33].
It must be said at once that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled[34]. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this Court; to gather together rules expressed in several cases; to apply rules to different facts; and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this Court, trial judges and intermediate courts retain their proper functions[35]. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this Court. Such a rule is binding on all courts and judges in the Australian Judicature.
There was no argument in this case specifically directed to the issue of whether Pfennig v The Queen should be overruled or qualified or whether, if R v O'Keefe differs from Pfennig v The Queen, it should be preferred. Nothing said in these reasons should be understood as indicating any view about whether it is necessary, or would be desirable, to revisit what is said by this Court in Pfennig v The Queen.
Having regard to the basis upon which the present appeal should be decided and to the course taken in argument, it is sufficient to make only two points. First, Pfennig v The Queen must be understood against the background of the decisions, especially the decisions of this Court, that preceded it. Secondly, taking sentences or parts of sentences in reasons for judgment and divorcing them from the context in which they sit is to invite error. Thus the references in Pfennig v The Queen to propensity evidence being a form of circumstantial evidence[36] must be understood against the background of what was said in Martin v Osborne[37], Plomp v The Queen[38], Sutton v The Queen[39], Hoch v The Queen[40] and Harriman v The Queen[41].
What is said in Pfennig v The Queen[42] about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged[43]. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.
The tests advanced in O'Keefe are expressed differently. Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig. Indeed, much that is said in the reasons in O'Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig. These are reasons enough to conclude that the O'Keefe tests should not be adopted or applied. Intermediate and trial courts must continue to apply Pfennig.

[90]

Subject to other grounds of appeal, the consequence of the trial judge having erroneously received the similar fact evidence in the appellant's trial is that there should be an order for new trials on the counts of which the appellant was not completely acquitted, namely counts 2, 4, 5, 6, 7 and 8. Those new trials should be separate in the sense that there should be one trial on count 2, one trial on count 4, one trial on count 5, one trial on count 6 and count 7, and one trial on count 8. Further, the retrials on counts 5 and 6 could only be on charges of unlawful carnal knowledge: that is because the appellant was acquitted of rape on those counts, and because it is not open to this Court to disturb those acquittals[44].
However, the appellant contends that there should be no retrial on count 7 on the ground that the different verdicts on counts 6 and 7 were unreasonable. The relevant ground of appeal stated that the combination of the verdict on these counts was "explicable only as the product of compromise between jurors, some persuaded beyond a reasonable doubt and some not". The appellant submitted that the issue on which this division took place was consent.
It will be remembered that MM alleged that after being threatened by a baseball bat in an unoccupied residence on the farm owned by the appellant's parents, she was raped twice (count 6); she shared a cigarette with the appellant; and she was then again raped twice (count 7). The appellant was acquitted of rape on count 6, but convicted of unlawful carnal knowledge. He was convicted of rape on count 7.
The verdicts on counts 6 and 7 were not strictly inconsistent. But the appellant pointed out that while MM in describing the two rapes the subject of count 6 referred to being threatened with a baseball bat, in describing the next two rapes she did not refer to any threats, and she did not recollect seeing the bat (although she knew it was there, and it was in fact there). The appellant submitted that that sequence of events would have made it more likely for him to be convicted on count 6 and acquitted on count 7, yet the jury acquitted on count 6 and convicted on count 7.
The appellant also contended that an explanation offered by the Court of Appeal for these verdicts - that the jury may have experienced a reasonable doubt about whether the appellant had made an honest and reasonable mistake as to consent in relation to count 6 - was unconvincing. That contention has some force, because the trial judge did not leave that issue to the jury on either count 6 or count 7, and it was not open on either of the versions of events offered to the jury - the appellant denied intercourse, while MM said that she had protested and cried at all material times.
The appellant also rejected another explanation advanced by the Court of Appeal and the trial judge in his sentencing remarks. That explanation is that the jury may have been troubled by the unfairness of charging the appellant with two counts of raping MM where the acts were punctuated only by a brief cigarette break, while on count 3 the appellant was charged only with one count despite his acts of intercourse being interrupted by his getting up to close the door. The trial judge also said that the jury may have reasoned that, if the appellant were found guilty on two counts of rape, not one, he would have received double the punishment - which in turn would have meant that he would receive twice as much punishment for the single incident involving MM as he would receive for the single incidents involving the other complaints in relation to which they convicted. Hence the jury arrived at what the trial judge called a merciful verdict on count 6 - a conviction only of unlawful carnal knowledge. To the factors listed by the trial judge in support of that possibility may be added the fact that in relation to the only other complainant whose complaint led to two charges, BS, there was an acquittal of indecent assault and a conviction of rape.
Difficulties in understanding jury verdicts which are explicable on the basis that one of them is "merciful", or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably[45]. The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case[46]. This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. "It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside."[47]
There is no injustice here. Something happened to MM which caused her to run from the isolated house owned by the appellant's parents in darkness at 4.00am. She arrived at a neighbouring farm about half a kilometre away at 4.45am. Whatever happened to MM while she was in the appellant's company was something which she must have found very unpleasant, because she was observed by the neighbours to be "panicky", "distressed", "shaking like a leaf", "crying", "shaky", "agitated", "afraid" and "upset". From the neighbouring farm she rang PP and made a complaint to him. After she was driven to PP's house she made another complaint. She went to a youth shelter, to the police and to a doctor. She made a complaint at each of these stages.
MM then took part in a taped telephone conversation with the appellant in the evening in which he, in effect, admitted to having threatened her into having sexual intercourse and to having thrown the baseball bat out the window. Her claim that there had been a baseball bat which had been thrown out the window was also corroborated by its discovery outside the window by the police. Her evidence also received some support from a video film made by the appellant and tendered on his behalf: it showed her to be happy and relaxed before the alleged rapes and drawn after them. The appellant's explanation for the making of that video - that it was part of a plan between himself and MM to protect her from PP and enable her to move back in with PP - was scarcely intelligible and was likely to have been found wholly unconvincing by the jury.
Were it not for the success of the appeal in relation to the issue of similar fact evidence, there would be no injustice in the conviction for rape on count 7 and for unlawful carnal knowledge on count 6 standing. And in spite of the success of the appeal, there is no injustice in new trials taking place on count 6 (for unlawful carnal knowledge) and on count 7 (for rape).
Even if the verdicts on counts 6 and 7 had been unreasonable, it would not follow that there should be no retrial on them. But the appellant urged another reason against a retrial on count 7.

[91]

On the assumption that either of the challenges to the conviction for rape on count 7 succeeded, the appellant advanced a further argument in relation to the question of retrial on that count. He submitted either that no retrial should be ordered and that a verdict of not guilty be entered or that a verdict of not guilty of rape be substituted for the conviction and that any retrial be limited to a charge of unlawful carnal knowledge. The argument was that the facts on counts 6 and 7 were closely related. Having been acquitted of rape on count 6, the appellant could not be retried on that charge. It was impossible, however, for him fairly to be retried for rape on count 7, because if the evidence about the complainant being threatened with the baseball bat, which was closest in time to the count 6 events, were tendered on count 7, that would not give full value to the effect of his acquittal of rape on count 6.
This reasoning is unsound. The appellant did not ask this Court for an acquittal on count 6, or oppose a retrial on count 6 in relation to unlawful carnal knowledge. If there is to be a retrial on count 6, it is open to the prosecution to call evidence about the baseball bat, for to do otherwise would render the balance of MM's testimony "incomplete and artificial"[48]. The acquittal of rape on count 6, for reasons discussed above, was a merciful verdict. From the appellant's point of view, one beneficial aspect of the mercy shown is that it eliminated the possibility that MM did not consent to the appellant's conduct in relation to count 6. The appellant remains entitled to contend at any second trial, as he did at the first trial, that he did not participate in sexual intercourse. The evidence about the baseball bat is not prejudicial on that issue in relation to count 6. It is simply part of the story. And it is material on count 7. If it becomes known at any second trial that there had been an earlier trial and an acquittal - and this might arise by reason of the cross-examination of witnesses at the second trial on their evidence at the first - it can be made clear to the jury that the previous acquittal of rape cannot be challenged and that the evidence must not be taken to prove guilt on the earlier charge of rape[49].

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