AE v R

Court of Criminal Appeal (NSW)|2008-03-20|Before: Bell JA, Hulme J, Latham J, Mr P

JUDGMENT OF: Bell JA at 1; Hulme J at 1; Latham J at 1

Allow the appeal DECISION: 2. Set aside the verdicts and convictions on counts 11, 14 and 15 3. Substitute a verdict of acquittal on count 11 4. Direct a new trial on counts 14 and 15

CATCHWORDS: CRIMINAL LAW - appeal against conviction - verdict inconsistent and unreasonable having regard to the verdicts on other counts - conviction quashed - verdict of acquittal entered - EVIDENCE - tendency and/or coincidence evidence - whether probative value substantially outweighed prejudicial effect - miscarriage of justice - conviction quashed - new trial ordered

Edwards v R (1993) 178 CLR 193 Hoch v R (1988) 165 CLR 292 M v R (1994) 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 CASES CITED : Pfennig v The Queen (1995) 182 CLR 461 R v ATM [2000] NSWCCA 475 R v Beserick (1993) 30 NSWLR 510 R v Ellis [2003] NSWCCA 319 R v Heyde (1990) 20 NSWLR 235 Zoneff v R [2000] HCA 28; 200 CLR 234

PARTIES: AE (Appellant) Regina

COUNSEL: Ms C Davenport SC (Appellant) Mr P Ingram (Crown)

SOLICITORS: SE O'Connor (Appellant) S Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/00002776

BELL JA HULME J LATHAM J

Thursday 20 March 2008 AE v R Judgment 1 THE COURT: On 29 February 2008 this Court made orders; allowing the appeal, setting aside the appellant's convictions on counts 11, 14 and 15, substituting a verdict of acquittal on count 11 and directing a new trial on counts 14 and 15. These are our reasons for the making of those orders. 2 The appellant stood trial before Andrews ADCJ and a jury on an indictment that charged him with 15 sexual offences; 13 offences relating to his stepdaughter, PNE, and two offences relating to his daughter, CNE. On 10 November 2006 the jury returned verdicts of "not guilty" on counts one to 10, 12 and 13 and "guilty" on counts 11, 14 and 15. Count 11 charged an offence against PNE and counts 14 and 15 charged the offences against CNE. 3 The appeal against the conviction on count 11 was on the ground that the verdict was unreasonable having regard to the verdicts on the balance of the counts that depended on the evidence of PNE. 4 The appeal against the convictions on counts 14 and 15 was on the ground that the admission of tendency and/or coincidence evidence (PNE's evidence of the sexual assaults committed by the appellant against her) had resulted in a trial that was unfair.

Factual background 5 PNE was born in 1974. She had one brother CJE. When PNE was aged eight years her mother, PM, married the appellant. This was in June 1982. In October 1983 PM gave birth to the appellant's daughter, CNE. 6 The events that were the subject of the counts relating to PNE were alleged to have occurred between September 1983 and May 1992, commencing when PNE was nine years old and ending when she was 17 years old. 7 The two offences relating to CNE arose out of a single incident that was alleged to have occurred in the winter of 1995 when she was 11 years old. 8 PNE and CNE each complained of the appellant's sexual misconduct for the first time on 15 February 2005. On that day the appellant told PM that their marriage was at an end, a revelation that caused her considerable distress. Later that day CNE made her complaint and, in consequence of it, she, PM and CJE spoke to PNE who also made a complaint.

The counts relating to PNE's allegations 9 In order to understand each of the grounds of appeal it is necessary to say something about the allegations that were the subject of PNE's evidence. They are summarised below: Count 1 - between 1 September and 31 October 1983. The appellant came into PNE's bedroom when everyone was asleep and put his hand on the outside of her underpants over her vagina. She was aged nine years. Count 2 - between 31 October 1983 and 31 January 1984. The appellant came into PNE's bedroom and touched her vagina and breasts, telling her not to tell anyone about it because he and she would get into a lot of trouble, the family would be broken up and he would have to go away. PNE was aged nine years. Count 3 - between 1 January 1984 and 31 January 1985. The appellant came into PNE's bedroom and had penile/vaginal intercourse with her. This count was originally charged as one of attempted carnal knowledge and particularised as having occurred between 1 and 31 January 1984. It had been PNE's account that it occurred in the January school holidays in 1984 at a time when the family had moved to a country town. Count 4 - between 1 February 1984 and 26 May 1985. The appellant had penile/vaginal intercourse with PNE in a shed at the rear of premises at which he was working at the time. PNE said this offence occurred when she was about nine and a half to 10 years old. The count was originally framed as occurring between 1 February and 26 May 1984. It, too, was amended during the course of the trial. Count 5 - between 1 September 1984 and 31 December 1985. When PNE was aged between 10 ½ to 11 years during the school holidays she had accompanied the appellant in a truck on a trip to Bathurst. He stopped the truck at a truck stop, saying to her that he wanted to have a "naughty" with her. He pulled the truck off the road and instructed her to get into the back of it. He placed her on some boxes and had penile, vaginal intercourse with her as she lay on them. This offence was originally charged as occurring between 1 September and 31 December 1985 when PNE was aged 10. It was amended during the course of the trial to particularise a broader time span and to allege that PNE was aged 10 or 11 years. Count 6 - between 1 September and 31 October 1986. This offence occurred during the school holidays when PNE was aged about 12 years. She stayed overnight at the depot at which the appellant was working. She was sleeping on a fold out bed in the office of the depot. The appellant came over and removed the covers and had penile/vaginal intercourse with her. Count 7 - between 1 January and 3 February 1987. Towards the end of the school holidays in January 1987 the family went on a holiday to Toukley and stayed at a caravan park. PNE was 12 years old. On one occasion when her mother and the other children were away the appellant touched her on the vagina on the outside of her underpants. This activity was interrupted by the return of the family. Count 8 - between 15 March and 30 April 1988. At this time the appellant was operating an all night diner. Around Easter PNE was working inside the caravan, from which the business operated, with the appellant. He closed the door and instructed her to bend over a bench and he had penile/vaginal intercourse with her. She was aged 14 at the time. Count 9 - between 1 and 31 December 1988. The appellant took PNE with him to the Mount Canobolas State Forest to cut down a Christmas tree. They travelled in the family Toyota Land Cruiser. While they were in the forest the appellant had penile/vaginal intercourse with PNE. The door of the vehicle was left open to obscure them from the view of any persons who may have passed by. After the assault PNE took a photograph of the appellant which was tendered in evidence. Count 10 - between 1 March and 26 May 1989. On an occasion when PM and CJE were working at the diner, PNE was at home lying on the lounge room floor watching television when the appellant approached her and asked for a naughty. He had penile/vaginal intercourse with her. She said this occurred regularly, at least once a week. She was aged 14 at the time of this assault. Count 11 - between 1 and 31 December 1989. Around Christmas 1989 the appellant again took PNE to the Mount Canobolas State Forest to cut down a Christmas tree. At this time the family had acquired a red Ford Falcon sedan. The appellant had penile/vaginal intercourse with PNE as she lay on the back seat of the red Falcon. After the assault he went to get the Christmas tree. PNE was aged 15 at the date of this assault. Count 12 - between 1 May and 30 September 1990. This offence occurred just after PNE turned 16. She was at home lying on the lounge room floor when the appellant came over and licked her on the vagina and then had penile/vaginal sexual intercourse with her. Both PM and CJE had been working at the diner and they were asleep when this incident occurred. Count 13 - between 1 January and 26 May 1992. This offence occurred just before PNE's 18th birthday. She had been assisting the appellant to prepare food in the garage of the family home. He told her that he wanted to have "a naughty". She refused and the appellant pulled down her pants penetrating her vagina with his penis from behind. This incident was charged as an offence of sexual intercourse without consent knowing that PNE was not consenting, she being under his authority. 10 PNE's evidence included that the appellant had sexual intercourse with her on a regular basis. She said that he had told her not to tell anyone about it and that if she did she would split up the family and get him into trouble. He had said things to this effect on many occasions. She said that in her final year at school she used to make sure that she locked the bathroom door to prevent the appellant from walking in on her. The evidence of uncharged sexual misconduct was admitted to put the allegations that were the subject of the charges in context. The admission of this evidence is not the subject of a ground of appeal and it is not necessary to refer to it further. 11 The allegations the subject of the two counts arising out of CNE's complaint are summarised below: Count 14 - during the winter in 1995 CNE came home after a game of netball. The appellant was the only person at home. He asked her to come over to the bed on which he was lying. He pulled her next to him and put his hand under her underpants inserting his fingers into her vagina. Count 15 - this offence related to the same incident as that charged in count 14. The appellant touched CNE on the breasts. This was charged as an indecent assault. 12 CNE gave evidence that when she was in her final year at school the appellant would touch her on the bottom or the breasts whenever he had the opportunity. The admission of this evidence was not the subject of a ground of appeal, however, since there is to be a new trial on these counts it is appropriate to say something about it. Evidence of the relationship between an accused and the complainant which discloses uncharged episodes of sexual misconduct is only to be received where it is relevant and has probative weight which justifies its admission: R v ATM [2000] NSWCCA 475 at [73]; and see R v Beserick (1993) 30 NSWLR 510. It is doubtful that evidence of inappropriate touching of CNE on her bottom or breasts (or the request to look at her body as she was returning from the shower) when she was aged 16 would have sufficient probative weight to justify admission on counts that relate to sexual misconduct when she was aged 11 years. Ground 1 - the verdict on count 11 is inconsistent and unreasonable having regard to the evidence 13 Senior counsel for the appellant submitted that the evidence in support of count 11 did not differ in any material respect from the evidence in support of the 12 counts of which the appellant was acquitted. The Crown case in each instance was wholly dependent on the acceptance of PNE's evidence and the doubt about her reliability reflected in the acquittals was submitted to necessarily extend to the offence charged in count 11. 14 The test that is to be applied in determining whether the verdict of a jury is to be set aside on the ground that it is unreasonable is that set out in the joint judgment in M v R (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question, the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations." 15 The High Court considered the application of the test enunciated in M in the context of asserted inconsistency of verdicts in MFA v R [2002] HCA 53; 213 CLR 606. Gleeson CJ, Hayne and Callinan JJ in their joint reasons said (at 617 [34]): "The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." 16 McHugh, Gummow and Kirby JJ in their joint reasons in MFA said (at 631 [85]): "In judging suggested inconsistency, this Court said in MacKenzie ((1996) 190 CLR 348 at 367) that 'If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted' … [86] Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and common sense' and suggest a compromise in the performance of the jury's duty ( MacKenzie at 368). Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission ( MacKenzie at 368)." 17 Senior counsel for the appellant placed considerable emphasis on the differing verdicts on counts nine and 11 in seeking to demonstrate that this was a case of true inconsistency. These counts charged sexual assaults (penile/vaginal intercourse) around Christmas 1988 and 1989 when on each occasion the appellant and PNE went to the Canobolas State Forest to cut down a Christmas tree. PNE's evidence in chief on each of these counts was brief and we will set it out in full: " Count Nine - December 1988 Q. Do you remember in December 1988, Christmas time when you were 14, something about a Christmas tree? A. Yes. Q. Can you tell us what happened about that? A. The accused thought it would be a good idea for us to have a real Christmas tree. Q. And what happened? A. So he would take me out to the Canobolas State Forest and we cut down a Christmas tree. Q. Do you recall on this time, December '88 what sort of vehicle he had? A. I recall him having a Toyota 4-wheel drive. Q. When you were out there, out at Mount Canobolas pine forest did something happen? A. Yes, before he went to cut down the tree he got me to - the door was - the passenger side door was open but it was also facing off the road and he got me to stand behind that door leaning on the front seat with my feet standing on the ground and he would pull down my pants and penetrate my vagina with his penis from behind. Q. What happened when he finished? A. He pulled out his penis and ejaculated on the ground." (T 06/11/06 14.24-50) 18 In cross-examination CNE recalled that she had been wearing shorts and a t-shirt on the occasion of the assault charged in count nine. It had been a warm day. She confirmed that the appellant had penetrated her from behind. She was asked if he had done this once or more than once and she replied "four or five times". She was shown a photograph of the appellant standing in a forest. She said that she had taken the photograph on the 1988 trip. It was taken after the sexual assault. 19 PNE's evidence in chief of the assault charged in count 11 was as follows:

Count 11 - December 1989 "Q. In 1989 did the accused buy a car? A. Yes. Q. What sort of car was that? A. A red Ford Falcon sedan. Q. At around Christmas time did something happen of a sexual nature with the accused? A. We would take - we took that car out to get the Christmas tree, to the forest. Q. When you say 'the forest' which one do you mean? A. The Mount Canobolas State Forest. Q. What happened out there? A. He - because it was so isolated he would have sex with me out there. Q. Well can you tell us what he did? A. He penetrated my vagina with his penis. Q. How did he do that and where did it occur? A. In the back seat of the red Ford Fairlane. Q. What did he do? A. Pulled my pants down and penetrated me with his penis in my vagina. Q. After he finished what happened? A. He ejaculated on the ground and then he would go and get the Christmas tree." (T 06/11/06 16.14-44) 20 In cross-examination PNE was unable to recall the clothes that she was wearing on this occasion. She was challenged about an asserted inconsistency between her evidence, that the appellant had leaned into the car, penetrating her as she lay on the back seat, and her statement made in mid-2005 in which she had said, "he made me get into the back seat of the car … he got in and took his pants off". PNE maintained that she had not intended in her statement to convey that the appellant had got into the car completely. She was asked how many times the appellant had penetrated her on this occasion and she responded, "four or five times. It was never very long". 21 Before leaving the evidence it is necessary to refer to passages in the cross-examination of the appellant, which were significant to the Crown Prosecutor's submissions on this ground. At trial the Crown Prosecutor submitted that the appellant had lied in his evidence, falsely asserting that CJE had been present on the 1989 trip to the forest. The relevant passages in the cross-examination are as follows: "Q. Well AE, there's never been any evidence of that has there, from anyone, has there, that the brother went out? A. I never give any evidence to be able to tell it. Q. You see, it was never suggested to anyone that the brother went with her and you out to the Canobolas pine forest? A. No there wasn't. Q. That's right, because what PNE says is the truth isn't it? A. The reason it was not mentioned about the brother, because the interest was on PNE and CJE would be no good to the defence case saying he was there. Q. You see, it was never suggested to PNE or CJE that he went, was it? (no verbal reply) Q. Answer yes or no? A. In evidence, no. (T09/11/06 18.25-46) … Q. You owned a red Ford Falcon at Christmas time 1989? A. Possibly I was, yes. Q. Well the records indicate you do and you went out to Canobolas State Forest in that red Fairlane in December 1989? A. We done that every Christmas. Q. Do you agree or disagree you went out there in December '89 in the red Fairlane? A. I agree if I had that Fairlane. I haven't got the time in front of me when I owned that red Fairlane. Q. You bought in September '89 that's what the records say. A. That would be it. I swapped it with Tony Leahy for the 4-wheel drive for the red Fairlane. Q. So you were out at Canobolas State Forest to cut down a pine tree? A. That was the normal procedure. Q. And PNE was with you? A. Yes, and CJE. Q. Well I'm suggesting to you that CJE wasn't but PNE was and she was on her own? A. I don't agree. Q. You see, as I said to you earlier, there has not been any evidence that CJE was out there. No one suggested to him that he was out there at Christmas '89, did they? A. I didn't compile the evidence sir, I don't know. Q. Well you were here this morning? A. I heard in the evidence, there was no suggestion, yeah. Q. And you had sexual intercourse with PNE in the back seat of that Fairlane? A. I certainly did not. Q. And you penetrated her vagina with your penis? A. No. Q. She was aged 15 years of age? A. I'm not sure. Q. And you ejaculated on the ground? A. No I did not. (T 09/11/06 31.55-32.46) 22 The appellant's evidence was given on 9 November 2006. CJE had given evidence in the Crown case earlier that day and had not been asked any question concerning trips to the Canobolas State Forest. The cross-examiner, wrongly, put to the appellant that it had not been suggested to anyone that CJE had gone with them. PNE had been asked in cross-examination if CJE had accompanied them on the 1988 trip. 23 In his closing address at the trial the Crown Prosecutor said this: "Count 11, relates to the incident again out at Canobolas forest. You recall the accused saying that well CJE was there, I mean that just has to be a lie because where did that come from. You would think that that would be a significant thing to raise. The RTA records exhibit H particularises the third line from the bottom that the accused acquired a red Ford Fairlane on 14 September 1989. This offence is alleged to have occurred in December 1989 and that's consistent with exhibit H and there's also a photo of the car in exhibit A." (T 09/11/06 58.23-34) … Accused gave evidence, essentially he denied anything of a sexual nature that took place. … I submit to you that he made up things like saying that CJE was out at the pine forest and that would be something he could surely if it occurred bring out." (T 09/11/06 64.47-54). 24 The Judge reminded the jury of the Crown Prosecutor's submissions in the course of his summing up. "Count 11, this was the second Christmas tree incident at Canobolas forest. In relation to this count, the Crown put that the accused had said that in fact CJE was there. The defence put to you that the accused - sorry the Crown put to you that the accused has been caught out lying about this matter. There has never been any suggestion that CJE was there. It was never put to CJE that he was there. The accused was - has suddenly come up with this story to cover his tracks and it is clearly untrue on the Crown case. He did own a red Fairlane at this time, this was in December '89 and the accused had penile sexual intercourse with her at that time." (AB 38-39) 25 The Judge gave no further direction concerning the use to be made of the suggested lie. 26 On appeal the Crown in written submissions contended that the verdicts may be rationalised in this way: "[30] The claim by the appellant that CJE had been present at the time when count 11 occurred was not made in relation to any other counts. That claim is a significant distinguishing feature between the evidence before the jury on that count and the other 12 counts referable to PNE. [31] The appellant had made a general denial of any sexual misconduct but not denied the Christmas tree cutting trip in 1988 (count nine). On the other hand, the appellant had claimed that CJE had been on the Christmas tree cutting trip in 1989 (count 11). [32] The jury must have accepted that PNE was a witness of truth in order to return a verdict of guilty on count 11. [33] The jury might have accepted that PNE was a witness of truth on the other counts but declined to return verdicts of guilty because on those other counts (where there was no such claim by the appellant) the evidence given by PNE was attended by a number of features likely to have had the effect of calling into question the accuracy of various aspects of her evidence." 27 The features to which the Crown referred in [33] above were (i) the substantial amendments made to a number of the counts reflecting PNE's uncertainty in dating relevant events; (ii) the amendment of count five to charge the completed offence; and (iii) the shift in PNE"s evidence from describing a single act of penetration in each of counts three to 13 to the claim of multiple acts of penetration in cross-examination. 28 The uncertainty in dating the early offences and the change in the description of the nature of the assault charged in count five were matters that may explain the acquittals on those counts, notwithstanding the jury's acceptance of PNE as a truthful witness. 29 PNE's evidence in chief on each of the counts that charged the appellant with penile/vaginal intercourse was brief. In cross-examination when she was asked for details of the assaults she described multiple acts of penetration. It may be that there was no relevant inconsistency, but if there was it was an inconsistency that applied to her evidence concerning count 11. 30 There were two matters that the Crown Prosecutor relied on as providing a rational basis for the verdicts on counts nine and 11. 31 Firstly, the Crown submitted that PNE's account that she had taken a photograph of the appellant after the sexual assault in 1988 might have caused the jury to have a reasonable doubt about count nine. This was because the jury might have reasoned that it was unlikely that PNE would have taken the photograph as a memento of a trip on which she had been sexually assaulted. It followed, so it was said, that the jury might have reasoned that the photograph had been taken on some other trip. This would still not explain the inconsistency between the verdicts on count nine and 11. Unlike the offences charged in the earlier counts, PNE was able to date each of these assaults because each occurred in the lead up to Christmas. She may have been mistaken about the occasion on which she took the photograph, but that would not explain why the jury would entertain a doubt that she was assaulted in 1988 when she went with the appellant to collect a Christmas tree but not that she was assaulted in 1989 when she went with the appellant to collect a Christmas tree. 32 Secondly, the Crown Prosecutor submitted that the jury may have found that the appellant lied when he said that CJE had been present on the 1989 trip and this may explain the conviction on count 11. The difficulty with this submission is that the asserted lie was not left to the jury on the basis that it was capable of evidencing consciousness of guilt. On the appeal the Crown did not contend more than that the asserted lie was capable of adversely affecting the appellant's credibility. Accepting that is so, it would not provide a rational basis for the inconsistent verdicts. A doubt about the appellant's credibility does not explain how the jury reasoned to guilt on count 11 in circumstances in which they entertained a doubt in relation to each of the other counts which depended on acceptance of PNE's evidence. It is only if the asserted lie was capable of providing independent support for PNE's account that the verdicts could be satisfactorily explained. 33 The Crown Prosecutor's submission at trial may be thought to have been an invitation to the jury to engage in consciousness of guilt reasoning with respect to the asserted lie. This was unfortunate. It is important that prosecutors exercise caution before inviting a jury to reason towards guilt on the basis of lies told by the accused: R v Heyde (1990) 20 NSWLR 235. It is prudent to raise the question of whether an asserted lie is to be left as capable of evidencing consciousness of guilt with the trial judge before the commencement of addresses. In a case in which an asserted lie is to be left on this basis (and therefore as some evidence capable of affirmatively strengthening the Crown case) it is necessary for the judge to direct the jury in accordance with Edwards v R (1993) 178 CLR 193. There was no such direction in this case. Analysis of the asserted lie does not suggest that it was capable of affording independent support for the Crown case on count 11. It was not put to the appellant that he had lied when he said that CJE accompanied them on the 1989 trip in order to provide himself with a defence to the charge. If the appellant were to be taken to have deliberately lied about CJE's presence on the trips to the forest in order to provide himself with a defence it is difficult to see that it was a lie confined to the 1989 trip. The appellant's answer (that CJE had accompanied them on the trip) while given in the course of cross-examination concerning the 1989 trip, is to be understood in the context of the preceding answer in which he spoke of "the normal procedure" and, as noted, his counsel had raised with PNE the question of whether CJE had accompanied them on the 1988 trip. 34 The Crown's submission on the appeal concerning the asserted lie does no more than point to one means of reconciling the verdicts based upon a view that the jury, wrongly, reasoned towards guilt on the strength of a submission made by the Crown Prosecutor, which should not have been put.

35 It was necessary for this Court to consider the whole of the evidence that was before the jury, mindful of the advantage, which the jury had in seeing the witnesses. A cautious jury might have accepted PNE as a truthful witness but been unwilling to convict on those counts in which she was imprecise either in dating the event or in her account of the assault. Count 13 charged the appellant with sexual intercourse without the consent of PNE knowing that she was not consenting thereto. This was the only count in which knowledge of lack of consent was an element. Given the history that PNE described of being subject to sexual intercourse over a period of many years the jury might have accepted her evidence of this offence but not been satisfied that the Crown had proved knowledge of the absence of consent. However, we were not able to discern a rational way to reconcile the verdicts on counts six - 10 and 12 with the verdict on count 11. Each of these counts alleged assaults on occasions that were identified with some precision. There is nothing in the transcript of the evidence to suggest any difference in the quality of PNE's evidence concerning these counts from her evidence in support of count 11. The differing verdicts on counts nine and 11 put the issue in stark relief. 36 We considered this to be a case in which the MacKenzie test of logic and common sense was not satisfied and for this reason that the conviction on count 11 should be quashed. Since the conviction could not be maintained because it is inconsistent with the verdicts of acquittal on the other counts, the appropriate order was to substitute a verdict of acquittal rather than to direct a new trial.

Ground 2 - the admission of the tendency/coincidence evidence resulted in a trial that was unfair 37 Before the jury was empanelled trial counsel applied for an order separating the trial of the counts involving PNE from those involving CNE. This application was dealt with at the same time as an application made by the Crown to adduce the whole of the evidence of PNE on the trial of the counts involving CNE as evidence of tendency and/or coincidence (the Crown also sought to lead the evidence of CNE on the trial of the counts involving PNE on a tendency and/or coincidence basis). The Judge admitted the whole of this evidence over objection and, in light of this determination, dismissed the application to separate the trials. 38 The basis upon which the Crown Prosecutor at trial contended that the whole of PNE's evidence was admissible in the trial of the counts involving CNE (and vice versa) was put this way: "The tendency relied upon by the Crown your Honour is the tendency of the accused to engage in unwanted sexual activity with a young daughter and a young step-daughter who were under his authority. The coincidence evidence relied upon by the Crown is the improbability of the events as described by each complainant occurring as a matter of coincidence or chance." (T 03/11/06 13.35-41) 39 The Judge identified the following features of the evidence as relevant to the determination of the probative value of the evidence under the tendency rule and the coincidence rule:

· "Both complainants were of a similar age when the assaults commenced - PNE was nine years of age and CNE was 11 years of age; · Assaults on both complainants occurred at the appellant's residence in a bedroom; · Each of the complainants were residing with the appellant in a family unit when the assaults took place; · At the time of the assaults the appellant and the complainant were the only people present in the bedroom; · The first assault on each complainant was in 'largely identical terms'; (AB 220) · The appellant had warned each complainant, 'don't tell anyone, he would always remind not to tell anyone and the accused told her she would get into trouble if she told'" (AB 221). 40 His Honour held: "The tendency evidence sought to be adduced does have significant probative value in particular in relation to the number of occasions and the particular conduct relied upon, the age of the complainants at the time of the alleged offences, the degree of similarity between the conduct on the various occasions and the degree of similarity of the circumstances in which the conduct took place." (AB 222) …

I am satisfied that there is considerable improbability of the evidence in relation to both complainants occurring coincidentally. In my view the evidence does have significant probative value. I find that this evidence, namely the two or more events are related because (a) they are substantially and relevantly similar and (b) the circumstances in which they occurred are substantially similar." (AB 223) 41 The Judge correctly stated the test in s 101(2) of the Act and found that it was satisifed in relation to the tender of the whole of the evidence as tendency and/or coincidence evidence. He did not explain his reasons for coming to this conclusion. (AB 223) His Honour went on to consider whether the evidence should nonetheless be rejected under the provisions of s 135 or s 137. Having determined that the probative value of the evidence substantially outweighed any prejudice to the appellant it is difficult to see that any basis remained for rejection under either s 135 or s 137.

42 The assault on CNE occurred when she was 11 years old. The allegation was of indecent touching in the area of the breasts and digital penetration of the vagina on an occasion when the appellant was lying on his bed and CNE was the only other person at home. PNE described a history of sexual molestation commencing when she was aged nine years. The first assault occurred when the appellant came into her bedroom at night when the other members of the household were asleep and touched her on the outside of her underwear in the area of her vagina. The second count involving PNE was of a similar incident. The remaining counts arising out of her complaint involved acts of penile/vaginal intercourse, which largely occurred at locations away from the family home. The similarities that the Judge identified were, in reality, unremarkable circumstances that are common to sexual offences against children. 43 The Crown Prosecutor on the appeal did not maintain that PNE's evidence was admissible under s 98 to prove the appellant's guilt on the counts relating to CNE on the basis of the improbability of the events occurring coincidentally. This was a realistic concession that the allegations made by PNE were not of events that were substantially and relevantly similar to the allegations made by CNE nor were the circumstances in which they occurred substantially similar. It was an error to admit the evidence of PNE at the trial of the counts involving CNE under the coincidence rule.

44 The happening of the assaults against PNE and CNE was in issue at trial. This was a matter that was significant to the assessment of the probative value of the evidence demonstrating the relevant tendency evidence as well as by way of coincidence reasoning. The Judge approached the matter by considering whether the Crown had excluded the possibility of joint concoction. He found that it had. If two or more persons make similar allegations about another in circumstances in which no possibility of joint concoction exists the allegations may possess significant probative value for the reasons that are explained in Hoch v The Queen (1988) 165 CLR 292 at 296 per Mason CJ, Wilson J and Gaudron J at 296. If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations. Hoch was concerned with the admission of similar fact evidence under the common law and propounded the "no other rational view" test that was adopted in Pfennig v The Queen (1995) 182 CLR 461 at 482-483 per Mason CJ, Deane J and Dawson J. This is not the test for the admission of tendency or coincidence evidence under the Act; R v Ellis [2003] NSWCCA 319. However, it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence. To the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction: The complainants were sisters and were in contact with one another at the time each made her complaint. Insofar as the Judge assessed the probative value of PNE's allegations as being substantial in proof of the allegation that the appellant assaulted CNE his Honour erred. 45 The evidence of the assaults on PNE was not admissible on the trial of the counts involving CNE unless its probative value substantially outweighed any prejudicial effect that it may have had on the appellant. The prejudicial effect is likely to have been great. This is so notwithstanding that the jury acquitted the appellant on 12 of the counts which depended on PNE's evidence. The jury may have accepted PNE as truthful but considered that her recall of the offences was not sufficiently reliable to establish beyond reasonable doubt the happening of the events as they were particularised in the indictment. The risk that the jury would be overwhelmed by the evidence of the long course of sexual misconduct against PNE in considering whether the Crown had proved the counts charging offences against CNE was real. We consider that the Judge erred in concluding that the probative value of PNE's allegations as evidencing a tendency to sexually molest young female members of the appellant's household substantially outweighed any prejudicial effect the evidence might have on the appellant's case.

46 It was an error to admit the whole of PNE's evidence as tendency or coincidence evidence on the trial of the counts relating to CNE. The evidence was admitted, and the question, which Ground Two raised, was whether as the result the trial of counts 14 and 15 was unfair. 47 On the appeal the Crown Prosecutor submitted that the Judge's directions (which were acknowledged to be confusing) had operated to neutralise any prejudice occasioned by the admission of the tendency/coincidence evidence. This was because the directions focussed on the need for there to be a striking similarity between the acts before the jury might have recourse to PNE's evidence in considering the counts relating to CNE and there was no such striking similarity. 48 The directions were as follows: "In this case you have heard evidence from two complainants. And in the present case you may consider such evidence but only for the limited purposes of whether you are satisfied - well for the purpose of whether you are satisfied beyond reasonable doubt that either of these offences occurred. It would be completely wrong to reason however that because the accused has committed one crime, has been guilty of one part of - one piece of misconduct - is therefore the sort of person who would be like to offend again. The evidence in relation to the two complainants is admitted on a limited basis in this sense. The first question for you is whether those allegations are true or not. If you accept them beyond reasonable doubt in relation to both complainants, you may for example use that to rebut a suggestion of accident. But sometimes there may be such a striking similarity between two different acts such as in the case of the allegations against - in relation to both complainants. You may be satisfied beyond reasonable - you must be satisfied beyond reasonable doubt that the person who committed one set of acts - sorry I will repeat that. Sometimes there may be such a striking similarity between two sets of acts that a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts must have committed the other. That is to say that the accused person has put a certain stamp upon the offences which make it easily recognisable that he must have committed both sets of offences. This could not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity and such a clear underlying unity between these two sets of acts in relation to both complainants as to make coincidence a very unlikely explanation of what happened in each case. And that is what the Crown says here. The Crown says that it is so unlikely that you can disregard it that two or more people - that both sets of acts were committed. If you decide that the Crown is right and you must bear in mind there is not sufficient of the evidence simply raises or deepens a suspicion that the accused is guilty of all offences, it must make any conclusion other than guilty an affront to your common sense. The Crown says that provided you are satisfied beyond reasonable doubt the accused committed the crimes alleged in respect of one complaint, then the circumstances in which the other crimes were alleged to have been committed were so similar as to lead inevitably to the conclusion that he must have committed the other offences." (SU AB 32-33) 49 It is difficult to see how PNE's allegations, which were themselves in issue, could rationally affect the likelihood of CNE's allegations being true save by coincidence/improbability reasoning. The Crown Prosecutor's submissions set out at [47] above served to highlight why the evidence of PNE should not have been admitted as coincidence evidence. The directions did not address, nor could they, the prejudice of the whole of PNE's evidence being received on the trial of the counts relating to CNE. In the course of oral submissions the Crown Prosecutor acknowledged so much. He submitted that: "The circumstances were ripe for an application to be made by trial counsel to the trial Judge at the conclusion of the summing up if not during the course of it and that application was to discharge the jury." (T 9.9-11)

In the Crown's submission the Court should infer that trial counsel made a forensic decision not to seek a discharge because his cross-examination of PNE had been effective and this in some unstated way might have flowed on to the jury's consideration of the counts involving CNE. 50 It is sufficient to state the submission in order to understand why it was rejected. The Crown's acknowledgement that the trial had reached a stage by the end of the summing up such that it was ripe for an application to discharge the jury, implicitly recognises that no re-direction could have cured the defect. Trial counsel's failure to seek further directions is not to the point. He objected to the admission of PNE's evidence on the trial of the counts relating to CNE. The evidence was admitted. The reception of it occasioned a miscarriage of justice. It was not a case in which the proviso to s 6(1) of the Criminal Appeal Act 1912 could be applied and for those reasons it was appropriate that the convictions on counts 14 and 15 be quashed. Senior counsel for the appellant acknowledged that the appropriate order in respect of these counts was to direct a new trial. 51 For these reasons the Court made the following orders: 1. Allow the appeal; 2. Set aside the verdicts and convictions on counts 11, 14 and 15; 3. Substitute a verdict of acquittal on count 11; 4. Direct a new trial on counts 14 and 15. **********

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