Tully v The Queen

Tully v The Queen - [2006] HCA 56 - HCA 2006 case summary — Zoe

[136]

"In this case, ladies and gentlemen, you have also heard evidence from the complainant about a number of offences which haven't been charged. You must remember that the accused is charged only with the 10 offences set out in the indictment and as I have already said to you, you have got to consider those charges separately. If you find that you have a reasonable doubt about an essential element of the charge, you must find the accused not guilty of the charge, but as I have said, in addition to the 10 offences, you have also heard evidence from the complainant of other incidents in which she says sexual activity involving the accused occurred. She wasn't particularly specific about that activity in her audio-tapes, although there were some more specifics given in cross-examination. Those incidents are not the subject of any charges before you and you can use the evidence of them for one purpose only, that is, if you accept the evidence, it shows the prosecution says, the real nature of the relationship between the accused and the complainant and it does put the 10 charges in their proper context, but you should really only have regard to the evidence of the incidents, not the subject of the charges, if you find them reliable. If you accept them, you must not use them to conclude that the accused is someone who has a tendency to commit the type of offence with which he is charged. It would be quite wrong for you to reason that if you are satisfied, for example, that he had sex with the complainant at Agnes Water, he is therefore likely to have committed count 1, 2, 3 or 4, or whatever. Remember that the evidence of the incidents, not the subject of the charges, comes before you only for the limited purpose mentioned and before you can convict the accused, you must be satisfied beyond reasonable doubt that the charge has been proved by evidence relating to that charge. However, if you don't accept the complainant's evidence relating to the incidents not the subject of the charges, you can take that into account when considering her evidence relating to the offences that have been charged. For example, if you think, I will use the Agnes Water example again, if you think that she is just making up these episodes of sexual intercourse at Agnes Water, obviously, that is going to significantly affect her credibility and that is going to reflect on whether you accept what she says in relation to counts 1 or 2 or 3 or 4, et cetera. So, that is just in relation to the offences which are not charged, which generally - I probably will not list them all, but there is the Agnes Water camping trip, there is the testicles against the breasts, there is the fact that she says she was raped up to 30 times by the accused and she says he also inserted his finger in her vagina on up to a dozen occasions. So those things all have not been charged and that I refer to when I say acts that have not been charged." Neither party made any application to the trial judge for any redirections.

[141]

"Evidence of complaint generally admissible (1) This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence. (2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made. (3) Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence. (4) If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint. (5) Subject to subsection (4), the judge may make any comment to a jury on the complainant's evidence that it is appropriate to make in the interests of justice. (6) In this section - complaint includes a disclosure. preliminary complaint means any complaint other than - (a) the complainant's first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or (b) a complaint made after the complaint mentioned in paragraph (a). Example - Soon after the alleged commission of a sexual offence, the complainant discloses the alleged commission of the offence to a parent (complaint 1). Many years later, the complainant makes a complaint to a secondary school teacher and a school guidance officer (complaints 2 and 3). The complainant visits the local police station and makes a complaint to the police officer at the front desk (complaint 4). The complainant subsequently attends an appointment with a police officer and gives a formal witness statement to the police officer in anticipation of a criminal proceeding in relation to the alleged offence (complaint 5). After a criminal proceeding is begun, the complainant gives a further formal witness statement (complaint 6). Each of complaints 1 to 4 is a preliminary complaint. Complaints 5 and 6 are not preliminary complaints." Keane JA, who wrote the principal judgment, said:

[143]

"Apart from the issue of the complainant's reliability by reason of delay in making a complaint, the justification for judicial intervention in the fact-finding process of present relevance was identified in Longman v The Queen and Doggett v The Queen as a judicial concern that the lay mind may not be alert to the forensic disadvantages which may be suffered by an accused by reason of the lapse of time. These disadvantages may involve problems, both in marshalling evidence in his or her defence, and in attacking a prosecution case made more plausible because the lapse of time gives rise to the risk of honest but erroneous memory on the part of a complainant. This latter problem may be especially acute in the case of a complainant who was a young child at the time of offences alleged to have occurred many years before trial. In this case, the new evidence upon which the appellant seeks to rely does not suggest that the appellant was disadvantaged by the delays of which the appellant complains. Rather, this evidence tends to confirm that a warning of the forensic disadvantage suffered by the appellant by reason of the lapse of time would have been given on a false assumption. That is so because, having regard to the further affidavit material presented on appeal, it would have been quite wrong to suggest that the appellant's ability to marshal evidence in support of his case was adversely affected by the delay on the complainant's part. The learned trial judge cannot fairly be criticized for failing to perceive that delay may have adversely affected the appellant's ability to present his case. No such prejudice was identified to her Honour however; and indeed no such prejudice was identified in the hearing in this Court. This was not a case where the complainant's age at the time of the occurrence of the offences of which she gave evidence, coupled with the lapse of time before her complaints were brought to the appellant's attention were such as to give rise to a realistic concern that the effects of the long passage of time on child fantasy or semi-fantasy may have created a problem that honest but erroneous memory has given the complainant's evidence a false plausibility. Finally in relation to this point, there was no application at trial for a Longman direction. It is now said that this is another example of the incompetence of those who represented the appellant at trial. The failure of those who represented the appellant at trial to seek a Longman direction is, however, reasonably explicable on the footing that the view was reasonably open that this was not a case of 'long delay' of the kind apt to disadvantage the accused in any of the ways discussed above." After setting out some passages from the trial judge's summing-up, Keane JA went on to say:

[150]

"Sub-section (2) is to be understood in the light of common law rules which developed by way of qualification to the general principle stated above. Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability. Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case. The law requires a warning to be given 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. However, as was held in Longman v The Queen, in relation to a similar Western Australian provision, the sub-section is not directed to such a general requirement. Rather, it is aimed at a more specific rule, by which the common law identified certain classes of case where evidence was considered to suffer from intrinsic lack of reliability. Although the classes were not closed, they included certain well-established categories. Thus, in Carr v The Queen, reference was made to 'the rules which oblige a trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child'. It will be noted that the present case fell into both of the second and third categories. The reasons for those categories were discussed in such cases as Longman v The Queen and B v The Queen. They included what are now rejected as 'stereotypical assumptions'. Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect. ... That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman. Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration." It is upon the statements of principle in Robinson that a court should focus, rather than upon a comparison of the facts of it with the facts of the case before the Court. The features present in Robinson are certainly not a factual catalogue of the particular facts which will require a Longman direction in other cases. Nor was it, regrettably, a particularly exceptional case. The Court of Appeal took too narrow a view in this case of the principles for which Robinson stands. Furthermore, it was not a valid point of distinction that the appellant in that case had given evidence at his trial, whereas this appellant, had, as he was entitled to do, remained silent.

[155]

Uncharged acts were considered in Gipp v The Queen. The evidence that was adduced there, of a general nature, was of repeated sexual abuse by the accused of the complainant. The trial judge told the jury that the history of that abuse was led to show the "relationship" between the accused and the complainant, and that there was no need for them to be satisfied beyond reasonable doubt of these so-called "background facts". By a majority (Gaudron, Kirby and Callinan JJ, McHugh and Hayne JJ dissenting), the Court decided that the verdicts of guilty were unsafe and unsatisfactory. The reasoning of the Justices in the majority was not all to exactly the same effect. Gaudron J was of the view that general evidence of uncharged sexual abuse is not admissible unless it has a special probative value as similar fact, or propensity evidence, or it becomes an issue by reason of the way in which the defence has been conducted. Her Honour was also of the opinion that the view that history of sexual abuse need not be proved beyond reasonable doubt was erroneous, because it left open the possibility that a jury might reason from a finding, on the balance of probabilities, that if there was a relationship involving sexual abuse then the accused was guilty of the offences charged. Kirby J concluded that the direction with respect to the evidence of uncharged acts was, as the Crown conceded in this Court, undesirable and should not have been given. His Honour's opinion was that evidence of that kind is admissible only if the facts to which it goes, may constitute "indispensable links in a chain of reasoning towards an inference of guilt". His Honour was of the further opinion that the evidence was, as it has been described variously, "dispositional", "background", "tendency", "propensity", "relationship", or in some circumstances "similar fact", evidence. Because no consideration had been given to its proper characterization, and therefore its admissibility, and any directions that should have been given regarding it, the trial there had miscarried. I too concluded that the true character of the evidence was of propensity. As with Gaudron J, I expressed my concern about the reception of so called "background" evidence:

[167]

"a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue". It is important, in my opinion, that both parties and trial judges pay close attention to any attempt to tender evidence of uncharged acts. If it truly is, as I think it was in Gipp and may have been, if anything, here, propensity evidence, and it is tendered without adverting to its true character as such, the prosecution may obtain the benefit of its prejudicial effect without the disadvantage of the strictures that apply to evidence of that kind. There is another potential disadvantage to a defendant in the reception of such evidence in a case in which the defendant does give evidence. The prosecution evidence of uncharged acts will have already further darkened the character of the accused, over and above the impact of the nature of the acts charged. He will in all likelihood then enter the witness box as a person of bad character, without necessarily having sought to show his own good character, or to impute bad character to a witness for the prosecution. Section 15 of the Evidence Act governs evidence of bad character, and lays down strict rules for its introduction, rules which do not have any ready application to circumstances of the kind present here. Timely objection to the reception of possibly inadmissible "relationship evidence" will ensure that its actual character is identified, and whether it is truly admissible relationship evidence as such, within the narrow confines accepted by all of the judges in Wilson, stressed by the majority, if somewhat differently, in Gipp, and accepted in part at least by McHugh J and Hayne J in KRM. It may be that once it is established, if such be the case, that the evidence in question is truly relationship evidence, that the proper directions are those which Doyle CJ (Perry J and Mullighan J agreeing) in the Full Court of the Supreme Court of South Australia thought appropriate in R v Nieterink. After reviewing the authorities, including Wilson, his Honour pointed out that in many cases of sexual offences against children, the evidence of uncharged acts had several potential uses. Almost certainly correctly, in my respectful opinion, his Honour said that the evidence of a particular relationship might be admissible to explain a criminal act, or the circumstances in which it was committed, that might otherwise be surprising, and, on that account, implausible. His Honour pointed out that the evidence may establish a pattern of guilt to explain a child's submission and silence. I certainly agree with his Honour's opinion that there has been a tendency towards an unsatisfactory non-specificity in the use of the term "relationship". I further think, as did his Honour, that the term "background" is unsatisfactory because of its failure to identify the precise manner in which it is suggested that the evidence of uncharged acts can be used.

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