Special Bulletin 18 — January 2007
This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book
Tully v The Queen [2006] HCA 56
The appellant was convicted of seven offences of indecent dealing with a child under the Criminal Code (Qld). The High Court dismissed his appeal against conviction. The majority comprised Callinan, Heydon and Crennan JJ in separate judgments. Kirby and Hayne JJ dissented in separate judgments.
The Court unanimously held that the trial judge was not required in the circumstances of the case to give the jury a Longman v The Queen (1989) 168 CLR 79 direction (Kirby J at [60], Hayne J at [90], Callinan J at [133], Crennan J at [187] and Heydon J agreeing with Crennan J at [151]). Kirby J at [52] and Hayne J at [91] would have allowed the appeal on the basis that the trial judge should have warned the jury that where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care (cf R v Murray (1987) 11 NSWLR 12 at 19 as approved in Robinson v The Queen (1999) 197 CLR 162).
This Bulletin focuses on what the Court said about the admissibility of uncharged sexual acts. The second ground of appeal was that the Court of Appeal should have quashed the appellant’s convictions on account of the way in which evidence of uncharged similar acts was dealt with at the trial.
The complainant gave evidence of uncharged acts. The evidence is set out by Callinan J at [103]. It included evidence that the appellant held his genitalia against the complainant’s breasts; that he committed three acts of sexual intercourse with her on a camping trip; that he digitally penetrated her about a dozen times; and that he raped the complainant “over a couple of dozen times”, “a real lot … 30” times, “quite a few times”, “more than five or six times”.
No objection was taken by trial counsel to the admission of the evidence for tactical purposes. In her closing address, trial counsel asserted that the extravagance of the complainant’s allegations made her evidence inherently improbable and unreliable.
The trial judge’s direction to the jury in relation to the evidence of uncharged acts is extracted at [116].
The High Court unanimously held that since the evidence was admitted without objection and used by defence counsel as “forensic capital” there was no error which could have led to a miscarriage of justice (Callinan J at [149], Heydon J at [151] and Crennan J at [156] agreeing; Kirby J at [66], Hayne J at [71]).
Callinan J (Heydon J at [151], Crennan J at [156] agreeing) said that although the authorities of the High Court are not as clear as they might be in relation to uncharged acts, the case was not one for the “final resolution” of the issues (at [135] and [149]). Kirby J at [66] and Hayne J at [71] said the case was an inappropriate vehicle to resolve larger questions about the admissibility of uncharged acts.
However, in obiter dictum Callinan J made several observations about the “proper characterization of the evidence of the uncharged acts”. His Honour said at [140]:
The judgments of the majority in Gipp [v The Queen (1998) 194 CLR 106] and subsequent authority accordingly do not, I would emphasize, countenance the reception of evidence simply as relationship evidence “to explain the nature of the relationship”. They require as a minimum that evidence of uncharged acts have some actual direct probative value relevant to the issues, that it be carefully scrutinized before it is admitted, that it may need to be characterized as propensity evidence, and that it almost always will require, if admitted over objection, directions appropriate for evidence of that kind.
His Honour at [142] rejected the Crown’s submission that the evidence of the uncharged acts was admissible as relationship evidence or evidence that put the charged offences “in context” on the basis that:
…nothing needed further to have been said or established at the trial regarding the relationship of the appellant with the complainant than the facts of the offences… The same may be said of “the context”. The evidence of the uncharged acts neither explained nor added anything to these with respect to any “relationship” or “context”, except the possibility of prejudice.
Callinan J at [143] observed that the suggestion in R v Fraser (unrep, 10/8/98, NSWCCA) that Wilson v The Queen (1970) 123 CLR 334 “propounded an unqualified rule that relationship evidence was admissible as a matter of course” is incorrect. His Honour at [145] expressed:
…very serious concerns about the reception, over objection, of non-specific, potentially prejudicial “relationship” or “contextual” or “background” evidence. Further, the practical reality is that in a case such as this one, in which there are multiple recurrent counts of the same offence or similar offences over a considerable period, any justification for the leading of “relationship”, “contextual” or “background” evidence will not be well founded. The position may, for example, be different if there is only one or a small number of offences charged.
Callinan J at [146] said it is important that “…both parties and trial judges pay close attention to any attempt to tender evidence of uncharged acts.” The evidence in this case was propensity evidence, and it was tendered without adverting to its true character. His Honour said at [147], “Timely objection to the reception of possibly inadmissible ‘relationship evidence’ will ensure that its actual character is identified…” His Honour cited Doyle CJ in R v Nieterink (1999) 76 SASR 56 with approval, in observing at [147] that evidence of uncharged acts had several potential uses including:
…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.
Callinan J also agreed with Doyle CJ’s observation that there has been a tendency towards an unsatisfactory non-specificity in the use of the term “relationship”. Further, 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.