Aravena v R

Court of Criminal Appeal (NSW)|2015-09-16|Before: Beazley P, Hall J, Wilson J, Blanch J

[This headnote is not to be read as part of the judgment] The appellant, Alexander Aravena, was charged with the offence of recklessly inflicting actual bodily harm with intent to have sexual intercourse, pursuant to s 61K(a) of the Crimes Act 1900 (NSW). Two further counts, of indecent assault and assault occasioning actual bodily harm, were charged in the alternative. At trial, the Crown adduced tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) of a 2006 incident in respect of which the appellant pleaded guilty to a charge of indecent assault. On 26 March 2014, a jury returned a verdict of guilty to the s 61K(a) offence. A sentence of 5 years, with a non-parole period of 3 years and 9 months, was imposed upon the appellant. The appellant sought leave to appeal against his conviction pursuant to s 5(1)(a) and s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The appellant advanced two grounds of appeal: That the trial judge, his Honour Hanley SC, erred in admitting the tendency evidence against the appellant; and That his Honour failed to put the defence case to the jury and thereby occasioned a miscarriage of justice.

Held per the Court, refusing leave to appeal as to ground (2) and dismissing ground (1) of the appeal: It is not necessary, for evidence to be admissible as tendency evidence, that the conduct occur on a number of occasions so as to evince a particular pattern of behaviour or a modus operandi. Although a single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple incidents of relevant conduct, such considerations did not deprive the evidence in this case of significance in the sense contemplated by s 97. [85]-[88] R v Ford (2009) 201 A Crim R 451; FB v The Queen [2011] NSWCCA 217; Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356. There was no error in the decision of the trial judge to admit the evidence under s 101 of the Evidence Act. As the critical issues for the determination of the jury were the nature of the assault upon the complainant by the appellant, and the question of his intention at the time, the probative value of the tendency evidence was very high. [96] The obligation on a trial judge is to act fairly and accurately to put the respective cases for the Crown and the accused to the jury. Whether that obligation has been met falls to be assessed in light of the nature of the trial, its length and complexity and by way of reference to the way in which the parties have conducted their respective cases. [106]-[107] Domican v R [1992] HCA 13; 173 CLR 555; RPS v The Queen [2000] HCA 3; 199 CLR 620; Cleland v The Queen [1982] HCA 67; 151 CLR 1; R v Malone (Court of Criminal Appeal (NSW), Blanch J, 20 April 1994, unrep). The fact that no objection was taken to matters put or omitted in summing up is cogent evidence in most cases that counsel saw no injustice or error in what was done. [120], [122] Criminal Appeal Rules (NSW), r 4; R v Tripodina (1988) 35 A Crim R 183; R v Abusafiah (1991) 24 NSWLR 531; Germakian v R [2007] NSWCCA 373; 70 NSWLR 467; FP v R [2012] NSWCCA 182; Ward v R [2013] NSWCCA 46.

Judgment

THE COURT: This is an appeal brought by Alexander Aravena (the appellant) against his conviction for an offence of recklessly inflicting actual bodily harm with intent to have sexual intercourse, an offence contrary to s 61K(a) of the Crimes Act 1900 (NSW).
The appellant was arraigned before his Honour Judge Hanley SC and a jury panel on 18 March 2014 upon an indictment charging him with that offence, together with two further charges, of indecent assault and assault occasioning actual bodily harm, each brought in the alternative to the s 61K(a) offence. The appellant entered a plea of not guilty to the principal charge and to the alternative count of indecent assault, but pleaded guilty to the physical assault contrary to s 59 of the Crimes Act. His trial commenced. On 26 March 2014 the jury returned a verdict of guilty to the s 61K(a) offence; it thus being unnecessary to return verdicts against the alternative counts.
A sentence of 5 years imprisonment, with a non-parole period of 3 years and 9 months, was later imposed upon the applicant. There is no appeal against that sentence.
The appeal is brought pursuant to ss 5(1)(a) and 5(1)(b) of the Criminal Appeal Act 1912 (NSW). There is an issue as to whether leave is required to argue some or all grounds raised. That issue will be dealt with below.

The Crown Case at Trial

The complainant was aged 21 years at the time of this incident. She gave evidence that, on the night of 8 February 2013 she went to the Regent Hotel in Kingsford with friends. Whilst at the hotel, she drank eight or nine schooners of full-strength beer. She remained there with friends until closing time, which was around dawn.
On leaving the hotel, the complainant accompanied two young men to a nearby park, for the purpose of obtaining cannabis, although this quest was unsuccessful. The complainant thereafter walked to a bus stop on Bunnerong Road, intending to make her way home.
She waited at the bus stop for about 10 minutes but, when no bus arrived, she began to walk. By that stage, the complainant was feeling slightly "tipsy". She had walked only a very short distance when a white van drove towards her from the direction of Eastgardens. The van turned into a driveway in front of her. The appellant, who was driving the van, opened the front passenger door, and the complainant climbed inside the vehicle, assuming that she had been offered a lift.
The complainant told the appellant where to drop her, and he began driving in the direction she had indicated to him. She spoke to him about having been in the park earlier with the two men. The appellant said very little in response.
When the van reached Grace Campbell Crescent, the complainant told the appellant, "This is my street". Instead of stopping, the appellant responded with something like, "Cops are there" and continued driving. The complainant could not see any police. She directed the appellant to an alternative entrance to her street but he again made some comment about "the cops being there" and continued on. The complainant began to feel nervous.
The appellant drove some distance in the general direction of the airport, before reaching Botany Road and Foreshore Road, well away from the complainant's home, and in an area with little or no housing. The complainant asked the appellant to turn around. The appellant turned off the road and into a drive-way that terminated in a closed gate.
Whilst the van was stationary in the driveway on Foreshore Road, the complainant finished a cigarette she had been smoking and flicked it out of the window. Realising the area was surrounded by dry bush she opened the van door, intending to get out and extinguish the cigarette butt.
The appellant grabbed the complainant by her neck and pulled her to him, kissing her. She pulled away, but he forcibly held her neck. He tried to kiss her on the mouth but the complainant again pulled away from him.
The appellant shouted at the complainant to close the door, but she was unable to do so because of the appellant's grip on her neck. She told him that she couldn't, and he relaxed his grip slightly. She was then able to escape his hold on her and reached down to grab her bag and other possessions. The appellant immediately moved to the complainant's side of the van and grabbed her again. He pulled her neck downwards, forcibly holding her in the van. The complainant felt frightened and, in the hope that it would make the appellant release her, she offered to have sex with him if he let her go.
The appellant released her, and the complainant took the opportunity to kick out at the appellant, pinning him against the van door with her feet. The complainant grabbed her things and half jumped, half fell, from the van. The appellant pushed her backwards onto the scrubby bush beside the driveway. Grabbing the complainant's knees, he tried to force her legs open. The complainant struggled against the appellant, screaming loudly for help.
The complainant saw some bicyclists riding along the road and yelled for help. The appellant immediately got off her and backed away towards the front of the van, walking towards the driver side door. The complainant opened the passenger side door and retrieved a boot, and then ran across the road towards a group of golfers who were standing at a gate of a golf course situated on the other side of the road.
One of the golfers, Mr Slowgrove, had been playing golf at Botany Golf Club. At about 7.15am he heard screaming. He walked with his companions to a clearing and noticed a van parked across the road. He heard a woman calling out, "Leave me alone. Get off me", or something similar. He saw a woman at the back of the van calling, "Please stop. Help me". He saw the woman run across the road and drop down on the footpath near him. She was very distressed, and complained, 'The bastard tried to rape me'". She said, "I should not have went with him. I'm an idiot" (T56:57).
One of the bicyclists, Mr Townsend, observed that it was "quite obvious" that there was some sort of dispute between the man and the woman at the van. Stopping, he saw that the woman was "scrambling" to get away from the man. Although the road was quite busy, he saw her run across it without looking. He noted "the absolute sort of terror as she's trying to get away" (T47:48).
Another of the bicyclists, Mr Whiteman, heard the woman screaming for help. He looked at the man, who shrugged his shoulders. He then got back into the van and reversed out of the driveway onto Foreshore Road.
Both Mr Townsend and Mr Whiteman recorded the number plate of the departing van. Mr Townsend also recorded a phone number from the van's livery. Both men noted that the complainant was distraught, "rattled", and screaming. She repeatedly complained that the appellant had tried to rape her. She said, "Stupid me. Why did I hop in the vehicle? I can't believe I hopped in the vehicle". She said that the man had offered her a lift home and that she should not have got in to the van. The complainant was observed to be bleeding from scratches on her arms and legs.
The police were called to attend and arrived at the location soon after. At the scene, a pair of boots, a jacket, and a handbag were observed lying on the ground. The complainant was crying. She said, "He pushed me into a bush and I just screamed and kicked. I got away from him. I ran over here. He sped off" (T59).
In the bushy area the complainant indicated to the police, the officers saw an area where the branches appeared to be lower than the rest of the plants, as if something had pushed them down.
The complainant was taken by ambulance to St George Hospital. On examination by a doctor, she was noted to have multiple bruises and abrasions over her body. There were bruises present on her back, her right shoulder and above the right shoulder blade; there was an abrasion under the left shoulder blade. Two superficial abrasions were seen on the lower back, and there were multiple linear scratches on the back of the left thigh, together with four small linear scratches to the inner aspect of the left thigh. Further abrasions were present on the back of the right calf, and faint scratches could be seen on the back of the right thigh. The complainant's right knee was red and swollen, as was the back of her right wrist. There was bruising in an ovoid or fingertip pattern on her left arm.
The complainant was not observed to be intoxicated.
Although possibly indicative of other mechanisms of injury, the injuries observed were regarded by the examining doctor as entirely consistent with the history given by the complainant of having been held down on a rough surface, and with having her legs forced apart.
Police inquiries began immediately to locate the van and its driver. The van, a white Toyota Hi-Ace, was quickly traced through the vehicle registration number recorded by the bicyclists. The van's owner advised police that he had loaned the van to "Alex" prior to Christmas 2012. The owner obtained the appellant's name, address, and other contact details for Alex from a firm of couriers, for whom the appellant worked. He provided the appellant's details to police.
The van had been leased by the owner to the appellant for use as a courier vehicle. It had stickers affixed to the front and the back displaying the name "Urban Couriers", and a phone number.
The employee of the courier company from whom the van owner had obtained the appellant's contact details sent a text message to the appellant that day querying what was wrong with the van. He responded that it had had a flat tyre since the previous day.
Shortly after, the appellant contacted the van's owner, claiming that the number plates of the Toyota Hi-ace had been stolen. The owner reported the theft to police.
The appellant was contacted by police by telephone that day, 9 February 2013, and told that the police wished to speak to him about his van. He asked if the inquiry concerned the stolen number plates.
At about 7.30pm on 9 February 2013 the appellant personally reported the theft of the number plates from his van. He told the officer who took the call, "I wanted to report my number plates were stolen. My van has been parked out the back and my friend rang me today and told me that police contacted him and that the plates were used in some things. I just checked and they have been stolen. I don't know when it happened". The appellant said, "It's been parked there for a while and I just checked and the plates have been taken". He provided his name, address and home phone number, and gave the stolen registration plate number as BVV 14N (T77).
At about 7.45 that evening detectives attended the appellant's address. They saw a white Toyota Hi-Ace in the rear yard of the premises, and saw that the van seemed to have had some recent work done on it. The rear passenger tyre had been removed and was lying on the grass next to the van, which had been jacked up. A number of wheel nuts, apparently freshly painted black, were nearby.
When the appellant answered the door to the detectives' knock, the officers saw that his head appeared freshly shaven. His scalp was smooth and shiny and appeared wet. It was much lighter than the skin of his face, neck and ears.
When told that police were making inquiries about a white van that had been used in an attempted sexual assault earlier that day, the appellant claimed that the Hi-Ace had been sitting with its tyres off in his yard for some time. He said that he had noticed the number plates missing from the van earlier that afternoon. On arrest, the appellant expressed disbelief, saying, "What? Me? This is unbelievable. Are you kidding?" (T97; T103). He refused to be interviewed.
Later that same night a search warrant was executed at the appellant's home. The van, without number plates, was still parked in the yard. On searching the house police located a set of NSW registration plates BVV 14N wrapped in a shopping bag inside a drawer beneath clothing in the bedroom used by the son of the appellant's girlfriend. Inside a waste bin in the bathroom of the premises a quantity of black hair clippings were found.
Images later obtained by police from closed circuit security cameras in operation on 8 and 9 February 2013 at each of the Captain Cook Hotel and the Waterworks Hotel showed the appellant with a head of hair at 12.09am and 12.25am, respectively, on 9 February 2013.
On 16 February 2013 the white Toyota Hi-Ace van was examined by a crime scene officer. It appeared that the front of the van had been scrubbed, or subjected to some sort of abrasive action, in the very recent past. The van was not displaying any sticker or other livery with a telephone number for Urban Couriers. Footage taken on 1 February 2013 was obtained from security cameras that showed the rear of the van BVV 14N with an Urban Couriers label visible.

Tendency evidence adduced by the Crown at Trial

At trial, the Crown asserted that the appellant had a tendency or tendencies to behave in a particular way. The asserted tendencies were: 1. To prey upon young women who were vulnerable by virtue of being alone in the early hours of the morning, in the street, after a night out; 2. To approach such women and ingratiate himself with them; 3. To offer transport to their destination; 4. To isolate or attempt to isolate them; 5. To do so in geographical areas close to his home and familiar to him; 6. To touch or attempt to touch them in the area of the vagina; and 7. To use physical force to restrain them when rebuffed.
These tendencies were said to be established by the facts of a single event that had occurred on 14 April 2006, an event which had led to the appellant being charged with indecent assault (an offence to which he had pleaded guilty). A document setting out the agreed facts of the incident was tendered before the jury (Ex. R).
The facts of that incident were that, in the early hours of 14 April 2006 the applicant, who had been standing at a bus stop on Anzac Parade at Kingsford, spoke to a young woman who was walking home to Kingsford after a night out drinking. The appellant asked the victim for a light but she did not have one. He then suggested that they share a taxi but she refused. She told him a bus was due in five minutes. When the bus arrived soon after, both boarded.
After a short trip the complainant got off the bus. The appellant followed her. As she stood waiting at traffic lights to cross the road he approached her, again asking her for a light. She again said no. The two walked in the same direction along Beauchamp Road, with the appellant continuing to try to engage the complainant in conversation.
As they approached an intersection, the complainant said goodbye. The appellant made his third request for a light and, when the complainant again said she could not give him a light, he grabbed both her hands. She protested, but the appellant lifted her skirt and put his hand on her vagina on the outside of her underwear.
The complainant managed to free one of her hands and pulled her skirt down. The appellant lifted her onto his shoulder and carried her up the street. She kicked and punched the appellant until he put her down. Almost immediately he picked the complainant up again. When she began screaming for help the appellant put her down and ran off. The appellant was later identified by a DNA match.

The Appellant's Case at Trial

The appellant gave evidence at his trial.
He did not dispute having picked the complainant up when driving in the early hours of 9 February 2013, and did not dispute that he had physically assaulted her (a fact he acknowledged by the plea of guilty entered to the relevant charge). He denied, however, that his intent had been sexual, and claimed that he had instead been trying to get the complainant out of his van.
The appellant told the jury that he went out on the evening of 8 February 2013 to the Captain Cook Hotel on Botany Road at Botany, and then to the Waterworks Hotel. He said that he left the hotel alone at about 4am (with security footage from the latter hotel showing him there until 4.30am).
Having driven to the hotel, he slept in the van for a time, in case he was in excess of the alcohol limit for drivers, before beginning the drive home at sunrise. He detoured on the way to get a soft drink from a specialist South American shop at Kingsford, but thought better of it before he arrived at the shop, and turned into a driveway intending to turn around and go home. He deposed that, as he stopped in the driveway, but before he could reverse out of it to turn around, the complainant walked up to his van and appeared to be about to speak to him. He wound down the van's window and asked her if she was lost.
The appellant said that, without replying, the complainant opened the front passenger door of the van and got in. She asked him to take her to Hillsdale. The appellant agreed.
The appellant thought that the complainant was drunk or affected by drugs. He told her he would drop her off on his way to Maroubra. The appellant told the jury that the complainant said she had been drinking all night, and using cannabis, and had been with some men who had asked her for sex.
The appellant suggested that he drop her off at a particular bus stop, but she refused, asking to be driven further. He said that she had offered to make it worth his while if he took her for a drive or drove her home. The appellant refused the offer, saying he would take her home.
The Appellant drove on, asking for directions from time to time. After having driven beyond Hillsdale, he stopped and queried where he was taking the complainant. She told him, "It's just a little bit further". She mentioned that she lived in Botany, and the appellant ended up on Foreshore Road.
The appellant said that he had become concerned at the length of the drive, and told the complainant he was turning back. He said that, when he drove into a driveway to turn around, the complainant grabbed the steering wheel and told him to stop. The appellant told her she was a crazy bitch. When she offered him sex if they went for a drive, the appellant said that he refused and told her to get out of the van. The complainant ignored him. The appellant leant over her and opened the passenger side door, insisting she get out. When she did not, he pushed her, and then pushed her harder. He said that he pushed her by her arms and her leg near her knee (T132-133).
When the complainant remained seated in the van the appellant deposed that he got out of the vehicle and walked around to the passenger door. Having asked the complainant again to get out without result, the appellant grabbed the complainant by the wrists and attempted to pull her hands off the dashboard, which she was holding. When unsuccessful at removing her from the van the appellant described a "scooping" motion whereby he took hold of the complainant's legs and quickly pulled her from the van. He claimed that she fell out, landing on her buttocks in bushes near the driveway. It was then that the appellant saw some people cycling by. He heard the complainant yell for help. He told her not to forget her stuff and saw her retrieve her things from the van and walk across the road. He noticed that her legs were red and bleeding and became concerned that he would get into trouble with the police.
Noticing one of the van's tyres was a little flat, he drove home slowly.
He acknowledged having removed the number plates from the van and falsely reported them stolen. He also admitted having removed Urban Couriers stickers from the exterior of the van and shaving his head to change his appearance. He claimed to have done these things because he was fearful that he would get into trouble with police for having pulled the complainant from the van and hurt her.
He explained his "paranoia" about getting into trouble with police by reference to the fact that he was on parole at the time of the incident, and was fearful of being returned to prison.
The appellant conceded in cross-examination that the area where he had turned into the driveway was an isolated area on Foreshore Road.
As to the incident led by the Crown as tendency evidence, the appellant conceded that he had entered a plea of guilty to the relevant offence, but said that he had no memory of the events, as he was stressed and drinking large amounts of alcohol at the time.
He acknowledged that there were some similarities between the conduct alleged against him and that of which he had previously been convicted, although he later denied that proposition.

The Appeal

The appellant advanced two grounds of appeal. 1. The learned trial judge erred in admitting the tendency evidence against the appellant. 2. The learned trial judge failed to put the defence case to the jury and thereby occasioned a miscarriage of justice.

Ground 1: The learned trial judge erred in admitting tendency evidence against the appellant

A Preliminary Question of Leave

As a ground raising a question of law alone, leave would not ordinarily be required to argue it: s 5(1)(a) of the Criminal Appeal Act. However, there was a preliminary question in this matter as to whether leave was in fact necessary because of the operation of r 4 of the Criminal Appeal Rules.
Rule 4 is in these terms. 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
The Crown contended that the appellant had not taken objection to the admission of the tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) ("the Act"), instead confining his objection to s 101, and thus r 4 applied to the ground as framed. The appellant contended that leave was not required as objection had been taken to the evidence at trial on the twofold basis that it did not satisfy the requirements of either s 97 or s 101 of the Act.
The original Notice served upon the appellant by the Crown notifying him of its intention to adduce "tendency evidence" pursuant to s 97 of the Act was in very broad terms, asserting a tendency to assault females in a sexual or indecent way. The appellant objected to the evidence sought to be led to establish a tendency of that nature, arguing that the evidence met neither the test at s 97 of the Act nor that at s 101.
The trial judge thereafter granted leave to the Crown to amend the tendency notice, to better particularise the tendency the evidence was said to establish. An amended notice was subsequently served on the appellant, asserting tendencies as set out at [37] above. The appellant thereafter appeared to concede that the evidence was admissible pursuant to s 97, but maintained his objection on the basis that the evidence could not meet the s 101 test.
The Crown argued before this Court that, having confined his objection to the admission of the evidence to a contention that it could not satisfy s 101 of the Act, r 4 precluded the appellant from making the broader complaint mounted before this Court, without obtaining leave to do so.
There is authority supportive of an argument of that nature: Bin Sulaeman v R [2013] NSWCCA 283; Shepherd v R [2011] NSWCCA 245; Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195.
In Poniris v R [2014] NSWCCA 100 Macfarlan JA referred to each of those decisions when determining whether r 4 applied to a ground of appeal advancing an objection to evidence pursuant to s 137 of the Act, when the objection taken at trial had been based on relevance. His Honour said at [55] (with the agreement of Adamson and Bellew JJ), "In my view the objection as to relevance cannot suffice to allow objections on any basis to be advanced on appeal without first obtaining leave. To hold otherwise would be contrary to the purpose of r 4 and the discouragement of "armchair appeals" which that provision seeks to achieve (see Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [169] - [170]; Flanagan v R [2013] NSWCCA 320 at [69]-[72]). It would also undermine basic principles of appellate review and the efficient administration of justice."
If the Crown's contention that the appellant conceded the s 97 argument is correct, r 4 applies, and the appellant would require the leave of this Court to advance this ground.
However, whilst the argument that the appellant requires the Court's leave to advance this ground has some superficial attraction, careful reading of the transcript of the voir dire hearing and of the arguments before the trial judge concerning the admissibility of tendency evidence, make it less so.
During argument on the voir dire some relatively general objection to the capacity of the evidence to meet the requirements of s 97 was raised by trial counsel for the appellant. Whilst but faint opposition to the admissibility of the evidence was mounted, the issue was raised. It was contended by the appellant that the evidence of the 2006 incident was not capable of establishing a tendency to act in a particular way, as required by s 97.
Counsel then moved quickly to the argument that the evidence did not meet the requirements of s 101, apparently on the basis that he considered it as having more prospects of being accepted by the trial judge.
That is, his concession (quickly given) was that the evidence would be found by the trial judge to satisfy the requirements of s 97, as opposed to a concession that it was admissible per se.
That there could be such a degree of confusion before this Court as to what the appellant's argument was before the trial judge, and what concessions were made by him, points to the need for counsel at trial to firmly and clearly articulate any position taken on the admissibility of evidence (or on the need for re-direction), lest r 4 be considered to apply to any subsequent argument on appeal.
Given that the point was taken here, albeit faintly and without clarity, leave is not required to advance this ground.

The Arguments of the Parties

The appellant contended that the evidence of a single incident, remote in time, and which was in many respects factually dissimilar to the allegations aired at trial, was incapable of establishing that the appellant had any of the tendencies particularised by the Crown.
It was argued that, as the facts of the assault upon the complainant were in contention, and were not confirmed by evidence independent of the complainant, the facts of the 2006 indecent assault had little or no probative value relevant to the facts in issue at trial, since any comparison between the established incident and the alleged incident must necessarily proceed on the assumption that the latter had been established.
The appellant submitted that the facts of the 2006 incident, as a single episode of opportunistic conduct are factually dissimilar from the present allegation, could prove no more than the appellant's prior misdeed, as opposed to a tendency to act in a particular way. The singularity of the earlier crime deprived it of any real probative value, and certainly of probative value which outweighed the danger of unfair prejudice to the appellant, leading to a conclusion that the evidence should not have been admitted at trial.
The Crown submitted that the 2006 offence, whilst the only incident available to establish a particular tendency, was capable nevertheless of establishing a modus operandi of deliberate and patient conduct in pursuing a purpose of sexually interfering with a woman who was in isolated circumstances. That is, the evidence was capable of establishing both a tendency to act in a particular way, and to do so with a particular state of mind. The Crown submitted that the evidence was properly admitted by the trial judge.

Consideration

Section 97 of the Act provides, relevantly: The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) […].
In his judgment on the voir dire the trial judge identified the facts in issue in the trial to which the evidence of the 2006 incident was directed, and of which it was said to be probative. They were the question of the appellant's intention towards the complainant, and the nature of the assault he committed upon her. Each of these issues fell to be assessed by the jury in a context where the appellant had acknowledged having assaulted the complainant by his plea to the charge brought against him pursuant to s 59 of the Crimes Act, but disputed any sexual act or intention in so doing.
His Honour concluded that the evidence was capable of rationally affecting the probability of the facts in issue (s 55 of the Act). He also determined that the evidence had the capacity to establish that the appellant had the particularised tendencies, and that the existence of such tendencies had significant probative value. It was thus "tendency evidence" for the purpose of s 97.
The trial judge correctly noted that the fact that a single incident was relied upon to establish that the appellant had the particular tendencies was a feature relevant to considerations of admissibility, but not determinative of it. He made a similar observation as to the lapse of time between the 2006 incident and the allegations at trial. Both of these features could militate against the admissibility of the evidence of the 2006 incident, but did not necessarily do so. His Honour concluded that the evidence was tendency evidence. In that this evidence had the capacity to inform the jury's assessment of the two facts in issue - the nature of the assault the appellant acknowledged having committed upon the complainant, and his intention at the time - the trial judge concluded that the evidence had significant probative value.
Whilst the trial judge did not set out the reasons for his conclusions in this regard at exhaustive or even great length, that was no doubt because of what he had understood to be the appellant's concession, that the evidence had significant probative value. That misapprehension was induced by the failure of trial counsel to clearly articulate either his objection to the admission of the evidence, or the basis upon which objection was taken.
It is important to observe that his Honour's conclusion as to the probative value of the evidence was not based upon any "concession" as referred to in the preceding paragraph but resulted from his own independent assessment as to the nature of the tendency evidence including in particular its capacity to establish particular matters such as those identified below: see para [93].
Tendency evidence has previously been referred to by this Court as a "building block" or "stepping stone" which provides a foundation for an inference to be drawn that an accused person has acted in a particular way or had a particular state of mind on another relevant occasion: DAO v R [2011] NSWCCA 63 at [179] per Simpson J (as her Honour then was). Her Honour continued, "The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of "significance". The level of generality of the evidence may affect the significance of its probative value: Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; Ford [2009] NSWCCA 306; 273 ALR 286 at [53]."
It is not necessary, for evidence to be admissible as tendency evidence, that the conduct occur on a number of occasions so as to evince a particular pattern of behaviour or a modus operandi. As Campbell JA explained in R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [45]: "… It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions. The forensic purpose of its tender is to prove that the Respondent has a tendency to act in a particular way, namely that identified in the tendency notice ... Thus, the evidence falls within the chapeau of section 97(1) and will be inadmissible unless the requirements of paras (a) and (b) of section 97(1) are met, and the requirements of section 101(2) are also met."
In Ford, Campbell JA further stated: "125 … there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test. 126 The respondent submits that 'the phenomenon of young women, who are drunkenly sleeping after a social event, being the subject of sexual interference is unfortunately not so compellingly rare or exceptional as to give the evidence significant probative value'. I do not accept that tendency evidence has to be of a tendency to do an act that is 'compellingly rare or exceptional' before it can have significant probative value."
His Honour's remarks have been endorsed in later decisions of this Court: see FB v The Queen [2011] NSWCCA 217 at [26]; Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 at [40].
Although neither case expressly refers to tendency evidence relating to a single incident, as is the case here, it is apparent from their Honours' respective remarks that a single incident is not for that reason precluded. A single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue. However, such considerations did not deprive the evidence in this case of significance in the sense contemplated by s 97 and considered in R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356.
Notwithstanding the relative brevity of the reasons given by the trial judge, we do not regard him as having determined that aspect of the issue by reference to some mistaken principle, or other error of the nature contemplated by House v The King [1936] HCA 40; 55 CLR 499.
The trial judge next turned to consider the test set by s 101 of the Act. Section 101 provides, relevantly: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) […] (4) […].
In approaching this aspect of the matter the trial judge noted the obligation upon him to assess whether the probative value of the evidence substantially outweighed any prejudicial effect that might flow to the appellant. His Honour noted that, "… the evidence is prejudicial, highly so, but this in effect underlines its significant probative value" (p.9 of Judgment on 19 March 2014).
The trial judge identified the following features as being of particular probative value: 1. The capacity of the evidence to inform the jury of the appellant's state of mind at the time of the assault; 2. Its capacity to characterise the quality and nature of the assault; and 3. Its capacity to inform the assessment made by the jury of the complainant's evidence, and of the evidence of those witnesses to whom she had made complaint.
His Honour was cognisant of the need to address the question of whether the evidence was so unfairly prejudicial that its probative value could not be said to substantially outweigh that prejudice. Having considered the probative value of the evidence to be high, the trial judge concluded that its value in that regard substantially outweighed the prejudicial effect.
Indeed, his Honour went further and assessed the admissibility of the evidence by applying the more stringent test set out in Pfennig v R [1995] HCA 7; 182 CLR 461, a test that dealt with issues of admissibility at common law and which has no application to the admissibility of evidence pursuant to the Evidence Act. Applying the higher test, the trial judge concluded that "there would be no reasonable view of the [tendency] evidence that was consistent with the innocence of the accused" (p.11 of Judgment on 19 March 2014).
Whilst the Pfennig test was not apposite, in that it imposed a higher test for the Crown to meet in seeking to adduce the evidence than was required, there was no disadvantage to the appellant in his Honour's reference to it.
It is our view that his Honour correctly weighed the competing considerations raised by s 101 of the Act, and appropriately determined the admissibility of the evidence in a principled way. There was no error in the decision of the trial judge to admit the evidence. In a trial where the critical issues for the determination of the jury were the nature of the assault upon the complainant by the appellant, and the question of his intention at the time, the probative value of the tendency evidence was very high. It was capable of both assisting the jury to determine those matters and, additionally, to rebut the accused's contention, implicit in his plea of guilty to the offence of assault occasioning actual bodily harm, that he had not done or intended anything of a sexual nature to the complainant.
This ground should be dismissed.

Ground 2: The learned trial judge failed to put the defence case to the jury and thereby occasioned a miscarriage of justice

The appellant contends that the trial judge did not put the defence case to the jury.
This complaint was not raised by the appellant at trial and, accordingly, r 4 applied. The question of leave will be dealt with below.
The appellant argued that only a "passing reference" was made to some aspects of the evidence which he relied upon, rather than giving a summary of sufficient depth to ensure that the appellant's case was understood by the jury.
The appellant submitted that, for the trial judge to comply with the obligation to put the defence case to the jury, it was necessary in the context of this case to summarise the appellant's evidence to the jury, and to instruct the jurors to acquit the appellant if that evidence was accepted; to remind the jury of the appellant's denial of having indecently assaulted the complainant or of intending to have sexual intercourse with her; to advise the jury that the plea of guilty to the s 59 charge was not a concession that the indecent assault had occurred; to detail "implausibility and inconsistencies" in the complainant's evidence; and to advise the jury to consider the reliability of the complainant in light of her state of intoxication.
The appellant contrasted what is characterised as an "intelligible summary" of the Crown case by the trial judge with the asserted inadequacies of his Honour's account of the appellant's case.
There is no question that the directions given by the trial judge to the jury during the course of the summing up principally dealt with evidence led in the Crown case. However, that does not of itself bespeak error.
Whether or not a party's case has been adequately put to the jury is not to be measured in minutes spent, or the number of words spoken; nor can it be assessed by direct comparison with the attention given by the trial judge in his or her summary of the case brought by the opposing party. Fairness and balance is not achieved and cannot be gauged by such means.
That is particularly the case where the opposing party is the Crown. It is almost axiomatic that, in a criminal trial, the Crown's case will constitute the vast majority, if not the whole, of the evidence placed before the jury. Necessarily, in such a case, in giving the jury directions as to how to approach the evidence before it, and how to apply the relevant law to that evidence, greater time and attention will be given to the Crown case than to any case called for the accused. That was the case here.
The obligation on a trial judge is to fairly and accurately put the respective cases for the Crown and the accused to the jury, as was noted by the High Court in in Domican v R [1992] HCA 13; 173 CLR 555 at [561]: "Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities". Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."
Whether that obligation has been met falls to be assessed in light of the nature of the trial, its length and complexity, and by reference to the way in which the parties have conducted their respective cases.
The question ultimately is whether the trial judge put an accused's case in such a way as to allow a jury to properly consider the issues raised on the accused's behalf: R v Malone (Court of Criminal Appeal (NSW), Blanch J, 20 April 1994, unrep). There is no standard formula against which the instructions given in any particular trial may be measured. As was stated in Cleland v The Queen [1982] HCA 67; 151 CLR 1 by Gibbs CJ (with whom Wilson and Dawson JJ agreed on this issue) at [10], "It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case."
The appellant's trial was of short duration, with the evidence occupying little more than three days. The majority of the evidence led was called by the Crown. The issues for the determination of the jury were very straightforward and there could have been no misapprehension about them.
The trial judge referred to the evidence principally in the context of giving particular directions. Whilst he did not, as the appellant points out, summarise the evidence given to the jury by the appellant, his Honour was not required to do so. Section 161 of the Criminal Procedure Act 1999 (NSW) provides: 161 Summary by Judge (1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial.
The trial judge indicated that he did not intend to summarise the evidence, and no issue was taken with that approach by the appellant at trial. Given the short duration of the trial, and the absence of any complexity in the case for the appellant, that approach was open to the trial judge. How an accused's case is put to the jury during a summing up is a matter for the trial judge, subject always to meeting the court's obligation to ensure that an accused person receives a fair trial.
Those present at the trial - the trial judge, the Crown Prosecutor and counsel for the accused - are ordinarily in the best position to determine what is necessary in the context of an individual case. Much will depend upon the individual case. The trial judge, with the assistance of counsel, is well placed to assess the difficulties of any evidentiary or legal issues that have arisen, to consider the apparent comprehension of the jury (always evident to those present), and to decide what is required to assist the jury in its deliberations, without needlessly repeating evidence and submissions to a jury who has heard both. It is both contemptuous of the ordinary intelligence of those who serve on the jury, and unduly wasteful of the resources of the courts, for trial judges to add a lengthy summing up to what may have been a short trial.
In RPS v The Queen [2000] HCA 3; 199 CLR 62,0 Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [41]: "[…] it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes."
These are matters very much for the trial judge, within the confines of the dictates of fairness.
The appellant's case at trial was, to deny the complainant's allegations, to give his account of what had happened between him and the complainant, and to explain his conduct after the incident by reference to his fear of being returned to gaol because of the physical assault he had perpetrated on the complainant. The trial judge reminded the jury of the appellant's evidence as to how and why he had sought to remove the complainant from his van; more was not necessary.
During the course of the summing up, the trial judge gave the jury directions of direct relevance to the task of considering the appellant's case. 1. The jury was told in clear terms that the applicant had pleaded not guilty to the charges involving a sexual element, and was not guilty unless the Crown proved otherwise to the requisite standard. 2. The jury was reminded that counsel had addressed them, and directed to consider the submissions made to them by the parties. 3. It was stressed that the burden of proof was on the Crown and the applicant did not have to prove any fact or issue at all. 4. The jury was told that it was necessary to exercise caution when assessing the complainant's evidence, and to approach it with great care. This direction, in accordance with R v Murray (1987) 11 NSWLR 12, was not required: s 294AA of the Criminal Procedure Act. That the jury were directed in this way was favourable to the appellant. It was not necessary for the trial judge to go further in relation to the issue of the complainant's purported intoxication. The appellant did not seek a direction in accordance with s 165 of the Act and, arguably, it would not have assisted the appellant for his Honour to point specifically to the appellant's claim that the complainant was intoxicated, since it was not supported by any other witness, including police officers and a doctor who spoke with the complainant. 5. The trial judge reminded the jury that the appellant had given evidence and referred to his account of having assaulted the complainant by "scooping" her out of the van in an attempt to remove her from his vehicle. This evidence was the foundation of the appellant's case. 6. He similarly reminded the jury of the appellant's evidence as to his status as a parolee, and his consequent fear of arrest and incarceration, setting the evidence of consciousness of guilt that had been led by the Crown in a context favourable to the appellant. 7. His Honour referred to the address by the appellant's counsel at trial, and reminded the jurors of the points that had been made.
On considering the whole of the summing up, we consider that the trial judge adequately put the appellant's case to the jury, and instructed the jury in relation to the relevant law. There was no failure in this regard.
That the appellant's counsel at trial considered that his Honour's summary and directions was sufficient in the context of the trial as it was conducted, and against the atmosphere of the trial as counsel had experienced it, is indicated by the fact that there was no application for more to be said.
That trial counsel did not see a need for further directions to the jury suggests that there was no need for that to occur:
Although it is true, as the High Court said in Pemble v R [1971] HCA 20; 124 CLR 107, that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done: R v Tripodina (1988) 35 A Crim R 183, at 191, per Yeldham J (with whom Carruthers and McInerney JJ agreed).
His Honour can not reasonably be criticised for not doing that which he was not asked to do and which was, in our view, quite unnecessary in the overall context of the trial.
Because no request was made of the trial judge for further directions to the jury, r 4 applies to this ground and the appellant must obtain the leave of the Court to advance it. Rule 4 is to be given its full effect, as has frequently been held in this Court. In R v Abusafiah (1991) 24 NSWLR 531 Hunt J (Gleeson CJ and Mahoney JA agreeing) stated, at 536: "The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside" See also Germakian v R [2007] NSWCCA 373; 70 NSWLR 467, at [10]; FP v R [2012] NSWCCA 182; and Ward v R [2013] NSWCCA 46 at [26]-[34], for example.
In our judgment, there has been no error which constitutes such a departure from the essential requirements the law imposes as to go to the root of proceedings. The appellant has failed to establish a possibility that real injustice has occurred: Tripodina at 195.
Leave should not be granted to advance this ground.

ORDERS

The orders of the Court are: 1. Refuse leave to appeal in respect of ground 2 of the notice of appeal. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2015

Criminal Procedure Act 1999(NSW)

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