61 ALJR 182
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
Farrell v R [1998] HCA 50
193 CLR 1
PD v R [2012] NSWCCA 242
Pfennig v R [1995] HCA 7
182 CLR 461
R v Alexander Cittadini [2008] NSWCCA 256
189 A Crim R 492
R v Anna Zhang [2005] NSWCCA 437
Source
Original judgment source is linked above.
Catchwords
61 ALJR 182
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
Farrell v R [1998] HCA 50193 CLR 1
PD v R [2012] NSWCCA 242
Pfennig v R [1995] HCA 7182 CLR 461
R v Alexander Cittadini [2008] NSWCCA 256189 A Crim R 492
R v Anna Zhang [2005] NSWCCA 437158 A Crim R 504
R v Ellis [2003] NSWCCA 31958 NSWLR 700
R v Fletcher [2005] NSWCCA 338156 A Crim R 308
R v Ford [2009] NSWCCA 306273 ALR 286
R v Leak (1969) SASR 172
R v Shamouil [2006] NSWCCA 112
Regina v DaetzRegina v Wilson [2003] NSWCCA 216139 A Crim R 398
Regina v Li [2003] NSWCCA 407
Regina v Ngatikaura [2006] NSWCCA 161
Regina v PWD [2010] NSWCCA 209205 A Crim R 75
Ryan v R [2001] HCA 21206 CLR 267
Sutton v R [1984] HCA 5152 CLR 528
The Queen v JMS [1998] VSCA 19
Truong v RR v LeNguyen v R
Judgment (3 paragraphs)
[1]
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: BJS - Appellant
Regina - Respondent Crown
Representation: Counsel:
Mr G Walsh (Solicitor) - Appellant
Ms N Noman SC - Respondent Crown
Solicitors:
Mr G Walsh - Appellant
S Kavanagh - Solicitor for Public Prosecutions
File Number(s): 2008/055729
Decision under appeal Before: Finnane DCJ
File Number(s): 2008/055729
[2]
Judgment
1HOEBEN CJ at CL:
Background
The Appellant appeals from a judgment of Finnane DCJ in respect of an indictment containing eleven counts involving four complainants. Those complainants were:
PR
K-AC
MG
LH
2Set out hereunder are short particulars of the terms of the indictment:
Count 1: Between 1 February 1976 - 31 December 1977 did indecently assault PR, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 11 or 12).
Count 2: Between 1 February 1976 - 31 December 1977 did indecently assault PR, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 11 or 12).
Count 3: Between 1 January 1979 - 31 December 1979 did indecently assault K-AC, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 12 or 13).
Count 4: Between 1 January 1979 - 31 December 1979 did indecently assault K-AC, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 12 or 13).
Count 5: Between 1 January 1980 - 30 June 1980 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 7 or 8).
Count 6: Between 1 January 1980 - 30 June 1980 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 7 or 8).
Count 7: Between 1 January 1981 - 30 June 1981 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 8 or 9).
Count 8: Between 1 January 1981 - 30 June 1981 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 8 or 9).
Count 9: Between 1 January 1981 - 30 June 1981 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 8 or 9).
Count 10: Between 1 January 1981 - 12 July 1981 did indecently assault MG, contrary to s76 Crimes Act 1900 (she being under the age of 16, namely 9).
Count 11: On or about 20 May 1981 did indecently assault LH, contrary to s76 Crimes Act 1900 (she being under the age of 16 years).
3A number of pre-trial applications were heard by the trial judge between 27 September and 29 October 2010. They included an application for separate trials in respect of each of the complainants referred to in the indictment, and that all purported tendency and coincidence evidence be excluded.
4Statements were tendered and evidence was called on the voir dire. The Crown called the four complainants, three proposed tendency witnesses, two psychologists who had treated one complainant and one tendency witness. The defence called a psychiatrist, Dr Roberts, to give evidence regarding the treatments of the complainant and the witness. The Crown called Dr Ellis, psychiatrist, in response.
5Judgments were delivered on 27 October and 29 October 2010 (reasons delivered subsequently). The trial judge determined that the evidence of the complainants and the tendency witnesses should be admitted in relation to each complainant. The coincidence evidence was excluded. His Honour refused the application for separate trials. His Honour also refused to allow evidence to be led by the defence concerning psychological treatments upon the complainant and the tendency witness.
6The trial commenced on 2 November 2010. During the course of the trial, two jurors were discharged. His Honour summed up to the jury on 23 and 24 November 2010. The jury retired to consider its verdict on 24 November 2010.
7On 29 November 2010 the jury returned guilty verdicts on counts 5 and 6 (two of the six counts concerning MG) and count 11 (the sole count on the indictment concerning LH). The jury were given a "Black direction" regarding the remaining counts.
8On 30 November 2010 the jury returned verdicts of guilty on counts 1 and 2 (the two counts on the indictment concerning PR) and counts 7 - 10 (being the remaining four counts on the indictment concerning MG). The jury were unable to decide on counts 3 and 4, being the two counts on the indictment concerning K-AC.
9The Appellant was sentenced on 19 April 2012. His Honour imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years, to date from 30 November 2010.
10A Notice of Appeal was filed on 27 July 2012. The Appellant relies upon nine Grounds of Appeal in support of the appeal against conviction and one Ground of Appeal in support of the application for leave to appeal against sentence.
11The Grounds of Appeal are:
That the trial miscarried as a result of the trial judge ordering that all of the counts of each complainant be tried together.
That the trial miscarried as a result of the trial judge permitting the Crown to rely upon tendency evidence.
That the trial miscarried as a result of the trial judge finding that evidence of the complainant MG and witness CP having undergone modalities of treatment such as hypnosis was irrelevant to the issue of those witnesses' reliability and thus his Honour's refusal to exclude the evidence of such witnesses upon the joint trial of each of the counts.
That the trial miscarried as a result of the trial judge upholding objection pursuant to the provision of the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) so as to prevent the defendant being permitted to cross-examine CP and MG about the content of the counselling sessions upon the trial of the Appellant.
That the trial miscarried as a result of the trial judge excluding evidence in the defence case sought to be called from Dr John Albert Roberts and in particular such evidence bearing upon the reliability of witnesses MG and CP.
That the trial miscarried as a result of his Honour refusing to discharge the jury in circumstances where the Crown was permitted to adduce evidence of the psychiatric history of witness "Y" despite his Honour earlier ruling that such evidence was not relevant to the issues to be tried.
That the trial miscarried as a result of the trial judge's ruling that the Crown Prosecutor be permitted to cross-examine the Appellant.
That the trial miscarried as a result of the trial judge's refusal to discharge the jury consequent upon permitting the Crown Prosecutor to cross-examine the Appellant as to tendency.
That the trial miscarried as a result of the trial judge directing the jury after they commenced their deliberations that they
could "reluctantly agree" as to their verdict.
That the sentence imposed upon the Appellant was too severe.
Factual Background
12The Crown presented the following case. The Appellant was a Catholic priest. On a number of occasions he had taken advantage of his position as a priest to sexually assault young girls.
13In relation to counts 1 and 2, PR was aged 11 and was living in a northwestern country town. She was the daughter of a devout Catholic woman. The Appellant knew two brothers of PR because they attended a boarding school with which he was from time to time associated. He stayed in the home of PR on four occasions in a spare bedroom. He was welcomed by the mother, who did not on any occasion specifically invite him to come.
14The first incident occurred when only PR and a sister aged five were in the home. The Appellant and PR were in the kitchen when he asked her to come and sit on his lap and give him a cuddle. She did this, sitting sideways on his legs. He then forcefully put his fingers between her legs and her clothes and pushed them into her vagina. PR who was wearing shorts felt very frightened and jumped off his knees and moved away from him.
15PR had her back to him and was facing the sink. She then felt his hand around her throat and was pushed towards the stove. He then began pushing into her bottom from behind and she felt something hard pressing against her. He then took one hand off her throat and proceeded to pull down her pants and her underpants, until they were nearly all the way down below her buttocks. She felt too frightened to call out. The Appellant said "Just stay there". She heard the front door slam shut. He then pulled up her pants and moved away. Her sister saw part of what happened. She did not tell her mother what happened. Some years later she told one of her brothers.
16In relation to counts 5 - 10, it was the Crown case that the offences committed against MG started when she was aged 8. MG lived with her parents and her sister in a house in a suburb of Sydney. The Appellant was a priest in the local parish church. Her parents were devout Catholics and welcomed his visits to the home. He would often stay for dinner and would sometimes entertain the family by playing a clarinet.
17The Appellant gained access to the bedroom of MG and her sister by telling their parents that he would say night prayers with them. At first that is what he did, but after a while, when he had finished the prayers, he would molest MG. Count 5 involved him hugging her hard and then kissing her hard on the mouth. This happened six to eight weeks after she first met him.
18Count 6 concerned an incident a few weeks after the first one. The Appellant again came into the bedroom, ostensibly to say prayers, but then kissed MG hard on the mouth forcing his tongue inside her mouth, causing her breathing difficulties and scratching her face with his. This then happened many times in 1980 and 1981 and she learned to kiss him back to make it easier to breathe.
19Count 7 concerned an incident in 1981 when the Appellant came to the house during the day. While her mother was on the telephone in the kitchen, the Appellant grabbed MG in the lounge-room, picked her up and forced his tongue into her mouth. This caused her considerable anxiety because she thought her mother would come in and she would be in trouble.
20Counts 8 and 9 involved the Appellant coming into her room and lying on top of her. At the time she was aged nine. The Appellant used to press his groin onto hers, place her hand on his penis, which was hard, and then roll around on top of her and rub his penis onto her hand and her legs.
21Count 10 involved the Appellant getting into bed with MG, kissing her and putting pressure on her vaginal area, moving his body around on her. She was aged 9 at the time. MG later found out from her older sister, MM, that he was doing the same sort of thing to her.
22LH was aged 15 when she met the Appellant. She was attending a western suburbs Catholic school at the time. He used to attend the school to say mass and as school chaplain. In 1981, one of her close friends was killed in a car accident. A number of friends came to her house to console her over the loss. The Appellant arrived uninvited before midday and said mass for all those present. He then asked to see LH privately and persuaded her to get in a car with him. This car was so placed that it was not visible from her house. He then started talking to her about the different sorts of love that existed, mentioning sexual love and the love Jesus had for them.
23The Appellant then started touching her on the hands and forearms and her knee and leg while holding her hands. She tried to pull away, but he kept persisting and eventually put his hand under her dress and grabbed her in the crotch, around the vaginal area. She broke away from him. She saw him a few times after this but largely tried to avoid him. He sent her a letter and when she said she did not have it, he sent her more letters. She destroyed all of them except one which became an exhibit in the trial.
24Evidence as to tendency was given by MM, an older sister of MG. Their mother used to regularly invite the Appellant to the family home on a weekly basis. The Appellant would bring scotch for the father and sugar coated peanuts for MM and MG. The Appellant used to say prayers with the sisters at bedtime.
25After bedtime prayers, the Appellant would routinely enter the bedroom of MM with the light off and close the door until it was ajar. On the first few occasions, the Appellant sat on the bed, said prayers and then placed his hand on her head and gave a blessing before leaving. The routine started to change subtly over time. The Appellant told MM that he loved her, and started hugging her and kissing her on the lips. He was putting his tongue into her mouth and kissing her very violently while holding her in an overpowering hug. The Appellant used to lie on MM, suffocating her while kissing her violently. MM remembered feeling scared, helpless and repulsed. This went on for about a year and stopped when the family went overseas in 1981.
26The Crown called evidence from SS, as tendency evidence. Her family used to attend a Catholic Church in Victoria. SS met the Appellant, who was a priest at this church, in 1981 when she was 9 - 10 years old. He attended the family home on four or five occasions.
27At the end of 1981, after attending a family New Year's Eve function, the Appellant went back to the house of SS at the family's request. While her parents were in the kitchen, the Appellant, who was sitting on a beanbag in the lounge-room, asked SS to sit beside him. When she did, he pulled her into the beanbag and put his arms around her, holding her close. She felt as if she could not get away. He then kissed SS on the lips. He placed his lips on her lips and left them there for several seconds and then took them off before once again kissing her on the lips. She observed that the Appellant's eyes were closed during this kissing. SS said that she felt scared and uneasy. The kissing stopped just before her parents returned from the kitchen.
28The Crown called CP to give tendency evidence. In 1983 CP was 16 - 17 years old, attended a school in Queensland and was a member of the local parish. The Appellant started visiting the family home. During these visits, the Appellant started getting closer to CP and he would put his arm "around her and things like that". The Appellant started placing his hand down the back of the shorts of CP on the skin around the buttock area, or if they were sitting at a table, on the inside of her upper thigh. CP was too afraid to react when this touching occurred. She was confused that a priest was doing this.
29On another occasion, the Appellant was driving CP to school when he pulled up before the school grounds. When CP said goodbye, the Appellant leaned over and gave her a passionate kiss, sticking his tongue in her mouth.
30On another occasion, when the Appellant was sleeping at the family home of CP, he entered her bedroom while she was asleep. She awoke to find the Appellant in bed with her. The Appellant was on top of her with all of his weight pinning her down, pumping his groin area against her groin area. The Appellant had a dressing gown on with nothing under it. CP failed in her attempts to push him off. The Appellant rolled off her only after the pumping became quite "frenzied" and ended with a "great big grunt". The Appellant said "You better go clean yourself up". In the toilet she found that she was "rather wet and sticky in the pubic groin area". He told CP after the event that he had told her mother what had happened. The Appellant also gave CP a gold chain and cross. A month later, CP spoke about the event to her mother because she had not had a period yet and was concerned that she may have been pregnant as a result of what had happened in the bed with the Appellant.
Ground 1: That the trial miscarried as a result of the trial judge ordering that all of the counts of each complainant be tried together.
Ground 2: That the trial miscarried as a result of the trial judge permitting the Crown to rely upon tendency evidence.
31The tendency sought to be proved was the Appellant's tendency to act in a particular way, or to have a particular state of mind, namely:
(a) Having a sexual interest in seven to seventeen year old girls.
(b) To engage in sexual activities with seven to seventeen year old girls.
(c) To use his past relationships with families to gain access to seven to seventeen year old girls so that he could engage in sexual activities with them.
(d) To use his social relationships with the families to obtain access to seven to seventeen year old girls so that he could engage in sexual activities with them.
(e) To use his position of authority to obtain access to seven to seventeen year old girls so that he could engage in sexual activities with them.
32The particular activities which the Appellant was alleged to have engaged in which demonstrated the tendencies were kissing on the mouth, placing his tongue inside the mouth, lying on top of the complainants and witnesses, rubbing against the complainants and witnesses and touching the complainants and witnesses in the vaginal area. The common link was the use by the Appellant of his social and pastoral relationship with the families to obtain access to the young girls so that he could engage in sexual activities with them.
33There was no issue that the Crown had served notice of the intention to lead tendency evidence, pursuant to s97 of the Evidence Act 1995 (NSW). The position of the defence was that there should be four separate trials with no tendency/coincidence evidence to be called in any trial.
34The defence at trial submitted that the proposed tendency evidence did not have the requisite significant probative value because there was:
(i) A lack of similarity between the alleged conduct on the various occasions.
(ii) A lack of similarity of the circumstances in which the alleged conduct took place.
(iii) A risk of concoction and contamination of the proposed tendency evidence.
(iv) A complainant, MG, and a tendency witness, CP, who had undergone psychological treatment which could have distorted their memory and thus affected the probative value of their evidence.
35Section 97 of the Evidence Act relevantly provides:
"97 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.
..."
36Section 101 of the Evidence Act relevantly provides:
"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/accused] unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the [defendant/accused].
..."
37No issue arose as to the power of the prosecution to have the various counts heard together on the basis that they formed part of a "series of offences of the same or a similar character" within the terms of s29(1)(c) of the Criminal Procedure Act 1986 (NSW). Rather, the Appellant relied upon the power of the Court to order separate trials, pursuant to s21 of the Criminal Procedure Act 1986 which relevantly provides:
"21 Orders for amendment of indictment, separate trial and postponement of trial
...
(2) If of the opinion:
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.
..."
38Gibbs CJ in De Jesus v R [1986] HCA 65; 61 ALJR 1 referred to an established line of authority in cases involving sexual offences that "The charges should not be tried together if the evidence on one count is not admissible on another count": citing Sutton v R [1984] HCA 5; 152 CLR 528 at 531. In De Jesus, Brennan J (at [7]) and Dawson J (at [10]) accepted that approach without adopting categorical language. Dawson J noted that the concept of a "series" of offences appeared to impose an additional characteristic beyond the fact that the offences must be of the same or a similar character, while noting that similarity was itself a feature capable of enabling the offences to be described as a series, quoting Lord Pearson in Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39.
39The general principle that there should be separate trials, unless the evidence to be called in respect of one count is admissible in respect of another, was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by the ruling on the admissibility of the tendency evidence.
40There was no challenge to the requirement that the various counts involved a series of offences of the same or a similar character, for the purposes of s29(1) of the Criminal Procedure Act. Rather, issue was joined over the proper application of s21(2), i.e., the Court's power to order separate trials. It was accepted that the power was engaged wherever evidence admissible in respect of one count was inadmissible in respect of another. Once engaged, it was further accepted that the power should properly be exercised.
41In this way, the issues were narrowed to the operation of the rules of evidence with respect to tendency and coincidence evidence. The prosecution proposed to rely upon evidence which was admissible with respect to one count in relation to each of the other counts, either as demonstrating a tendency on the part of the Appellant to act in a particular way, or to have a particular state of mind or to demonstrate the improbability that particular events occurred "coincidentally".
42His Honour ruled against the coincidence evidence, but allowed the evidence as to tendency with the exception of the evidence of two persons (FH and AB). Accordingly, the success of Ground of Appeal 1 depends upon whether his Honour properly admitted the evidence as to tendency.
43Propensity/tendency evidence was explained in Pfennig v R [1995] HCA 7; 182 CLR 461 at 488 by Mason CJ, Deane and Dawson JJ:
"72 Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency."
44That test no longer applies under the Evidence Act. The general law principles have been varied. The exclusion, subject to exceptions, is set out in s97 and is subject to the further restriction imposed by s101.
45The language of s97(1)(b) refers to the evidence having "significant" probative value. This is not consistent with the requirement under the general law that there be no rational explanation for the evidence, apart from its cogency in respect of the charge. Further, the balancing test required by s101(2) is inconsistent with a general requirement as to probative value in terms of the Pfennig test. As explained by Spigelman CJ (with whom Sully, O'Keefe, Hidden JJ agreed) in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]:
"The "no rational explanation" test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe section 101(2) to that effect."
Section 101(2) "requires the Court to make a judgment, rather than to exercise a discretion": (Ellis at [95]). That approach was confirmed by a further five judge court in DAO v R [2011] NSWCCA 63 at [40] (Spigelman CJ); [98] cf at [171] - [173] (Simpson J).
46In an evaluative judgment, the criterion is identified by the applicable statute or the general law.
47"Probative value" is defined in the Dictionary to the Evidence Act:
"Probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
No guidance is given as to the meaning of the adjective "significant". It does not mean "substantial". It has been held to mean something more than mere relevance, but something less than a "substantial" degree of relevance. It has also been held that the evidence must be "important" or "of consequence", recognising that:
"The significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." (R v Lock (1997) 91 A Crim R 356 at 361 per Hunt CJ at CL;)
48In AW v Regina [2009] NSWCCA 1 Latham J (Bell JA and Fullerton J agreeing) said at [47]:
"47 ... The evidence must have significant probative value, that is, it must be evidence that is meaningful in the context of the issues at trial. The provision is concerned with the qualitative aspects of the evidence, not quantitative ones. ... It must be more than merely relevant, but may be less than substantially so ... The question for the trial judge was whether the evidence was important in establishing the facts in issue ..."
49The issue which divided the Court in R v Anna Zhang [2005] NSWCCA 437; 158 A Crim R 504 does not arise in this case because on either test the evidence was admissible. There Simpson J placed emphasis upon the word "could" in the definition of "probative value" and said:
"139 ... evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible."
50In that case Basten JA (in dissent) identified the question under s97(1)(b) as whether the degree of impact that the tribunal of fact could rationally regard the tendency evidence as having on the probability of the existence of a fact in issue, is "significant". At [46] in Zhang Basten JA said:
"[46] ... It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of "probative value" requires such an exercise. That conclusion follows from the definition of "probative value" in the Dictionary to the Act, namely "the extent to which the evidence could rationally affect the assessment of the probability" of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98."
51R v Ford [2009] NSWCCA 306; 273 ALR 286 provided guidance as to the meaning of "prejudicial effect" as follows:
"56 The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case. If that were so, then the more powerful the evidence was in showing the guilt of the accused, the greater would be the difficulty of the Crown in putting the evidence before the jury. Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J. In R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199 [116], Wood CJ at CL (with whom Sully and Howie JJ agreed) said that the prejudice referred to in section 137 meant "damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves".
...
58 The same concept, of evidence being prejudicial if it involves a risk of an unfair trial, has been adopted in relation to section 101(2). In R v RN [2005] NSWCCA 413, this Court (Sully J, with whom Grove and Howie JJ agreed) adopted, as expressing the essence of the task called for by section 101(2), the statement by McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528-9:
"If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.""
52The following statements of principle concerning tendency evidence are helpful.
53In R v Alexander Cittadini [2008] NSWCCA 256; 189 A Crim R 492 Simpson J (with whom McClellan CJ at CL agreed) said at [22] - [23]:
"22 Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
23 Put another way, tendency evidence is tendered to prove (by inference) that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind)."
54In Regina v Li [2003] NSWCCA 407 Dunford J (Spigelman CJ agreeing) said, at [11]:
"Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was necessary for this purpose to show that he had detained her on any other occasion."
55In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 Simpson J (with whom McClellan CJ at CL agreed) said at [67]:
"67 In my opinion, the present appellant's argument focused too narrowly upon a tendency to have sexual intercourse in a particular fashion. The DPP's explanation, provided to the appellant's legal advisors, shows that the "tendency" which it sought to establish was wider, and more detailed. The DPP sought to establish a pattern of behaviour, or even a modus operandi, in the appellant's behaviour. This included the use of his position as parish priest in meeting Catholic families and involving himself in their lives, developing a special relationship with the families, the children of the families, and in particular with a child the focus of his attention; and the introduction of the child to sexually explicit material and, eventually, inappropriate sexual behaviour."
56In Ford Campbell JA (Howie and Rothman JJ agreeing) at [38], identified as an error, the judge's apparent view that tendency evidence must itself show a tendency to commit acts that are closely similar to those constituting the particular crime with which the accused is charged. In that case, the accused was charged with sexual intercourse without consent against an 18 year old woman who was a guest in the accused's home. The evidence of two other women he had indecently assaulted while they were guests in his home was held to have significant probative value. The respondent in that case argued that there was nothing unusual about the allegations by the women of sexual interference after a social event involving the consumption of a considerable amount of alcohol. That argument was rejected (Ford at [126]). The lack of a striking pattern or similarity between the charged incident and the other two incidents was held not to be determinative. Campbell JA observed, at [38]:
"38 The second flaw is the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is "a tendency to act in a particular way". "
57In relation to tendency in this case, the trial judge said:
"The Crown case against the accused is that he was a Catholic priest who used his position to insinuate himself into the families of girls whom he sexually abused. In each case it is said that he was working in a parish and the girls who were abused were members of families who regarded themselves as Catholic and who regarded visits by him as a priest as welcome visits. In each case it is said that he befriended the parents and as a result would often attend the house, sometimes even staying overnight or for some time.
He then took advantage of his position as a priest to intrude into the private lives of the girls. On some occasions he went into bedrooms and kissed, fondled or touched the girls. With one of the complainants, he invited her to sit on his knee in a confessional and indecently assaulted her while she was there. With another complainant, he lured her into a car and stroked her leg in an indecent way. It is also alleged that on occasions he pressed his penis against the body or leg of a girl and that he went so far as to pull down the pants of a girl on one occasion. What is striking about all of the proposed evidence of the complainants and of CP is his use of his position as a priest to gain access to the girl and then his conduct in molesting them in various ways.
There are differences in each case. For example, it is alleged that he grabbed PR by the throat and was using force to pull down her pants. It is not alleged that he did this to any other complainant. What he is alleged to have done to CP is strikingly similar to what it is alleged he did to MG. LH was much older than the other girls, who were each aged between eight and eleven.
It is also clear (see PWD par [79]) that for the evidence to be admissible under s97, there does not have to be striking similarities or even closely similar behaviour.
Of course, once I have determined as I do that the evidence to be adduced in the case of each complainant is properly tendency evidence in relation to the case of each other complainant and that CP's evidence is properly tendency evidence in relation to each of the complainants, I then have to consider whether the probative value of the evidence substantially outweighs any prejudicial effect it might have on the accused (see s101(2)). Probative value is defined in the dictionary to the Evidence Act and clearly what I'm directed to consider is whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. I am required to carry out a balancing task and to identify the type or types of prejudicial effect the evidence may give rise to and why I have reached the view that its probative value substantially outweighs any prejudicial effect.
This is not a case where the Crown seeks to establish an identical behaviour pattern, but rather to establish that by use of his position the accused was able to get access to girls for the purpose of sexually abusing them and that he did so.
In my opinion, the evidence of the complainants and of CP as was said in PWD (par [88]): "Is capable of rationally affecting the assessment of the probability of the [accused] having engaged in the conduct alleged and having had a sexual interest in doing so."
I would be giving the jury directions that they could take the tendency evidence into account only if they were satisfied it had been proved beyond a reasonable doubt.
In my opinion the calling of this evidence would not be likely to deflect the jury from the essential task of considering the evidence against the accused on each count of the indictment. Accordingly, I am unable to find that the introduction of this evidence would be likely to cause any unfair prejudice to the accused and I find that the probative value of the evidence substantially outweighs any prejudicial effect it might have on the accused."
58The Appellant submitted that in respect of each of the complainants and CP, there were substantial differences in the behaviour alleged. The Appellant identified those differences, e.g., in one case the actions involved mainly kissing but in the other, some violence was used. In particular, the Appellant submitted that the conduct alleged against him with respect to PR, was quite different to that alleged with respect to the other complainants.
59The Appellant submitted that in carrying out the balancing exercise, his Honour had failed to properly assess the real prejudice which was likely to arise in a joint trial in which evidence of a variety of sexual forms of offending were alleged to have been committed upon girls of different ages and in a variety of circumstances. Such a procedure was, the Appellant submitted, fundamentally unfair.
60The Appellant submitted that there was a real risk of contamination of the evidence of MG and MM, since they were sisters who, as children, were aware of the allegations in a general sense involving him. They had had an opportunity to discuss such allegations and had exchanged their police witness statements. A similar problem arose with PR, in that her brothers had also made accusations against the Appellant. There was a sibling relationship with some of the tendency witnesses, who provided statements or gave evidence on the voir dire.
61The Appellant relied upon the observation of Hodgson JA (with whom Price and Fullerton JJ agreed) in BP v R; R v BP [2010] NSWCCA 303:
"110 One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value ... However, this will be so only if there is a real chance rather than a merely speculative chance of concoction... The onus is on the Crown to negate the "real chance" of concoction ..."
62In relation to his treatment of the tendency evidence, his Honour relied heavily upon what was said in Regina v PWD [2010] NSWCCA 209; 205 A Crim R 75 (Beazley JA, with whom Buddin J and Barr AJ agreed).
63The statements of principle by his Honour in his judgment were, with respect, correct and relevant. His Honour's summary of the tendency evidence from the complainants and the tendency witnesses was accurate. His Honour acknowledged that there were "differences in each case". Despite those differences, his Honour noted that there were significant similarities, particularly as to "tendency". His Honour focused upon the consistency of the relevant tendency, not on the factual differences which had existed (which would have been of significance if the evidence was being admitted for coincidence purposes, but which had much less force in the context of evidence to be admitted for tendency purposes).
64The Appellant submitted that the variety and types of offending, and the offending upon different aged girls, constituted the real prejudice that should have led to the evidence being excluded. Such an approach is contrary to authority, i.e. that the evidence does not need to be strikingly or closely similar to be admissible as tendency evidence. If it is not necessary for evidence to be strikingly or closely similar for admissibility under s97, it would be incongruous if the fact that the evidence was not strikingly or closely similar, led to its exclusion under s101. That part of the Appellant's submission has not been made out.
65The Appellant's reliance upon the observation of Hodgson JA in BP (see [61] hereof) is problematic. In BJS v Regina [2011] NSWCCA 239 at [27] Basten J identified the difficulties with that statement of principle and concluded that it was "inconsistent with Ellis and should not be applied as a general rule".
66The Appellant's submissions on the issue of contamination go very close to requiring the trial judge to usurp the function of the jury by making a ruling as to admissibility which went considerably beyond the evaluative process required by ss97 and 101 of the Evidence Act. Moreover, his Honour was well aware of the risk of contamination and he excluded some of the proposed tendency evidence on that basis.
67The evidence of MG and her sister MM, both by way of statement and on the voir dire, taken at its highest from the Appellant's point of view, did no more than establish a merely speculative chance of concoction, rather than a "real chance". The evidence of PR when taken with that of her siblings CT, MT and LT, was to the effect that any discussion was limited in its content. Each witness had seen some media reporting of the Appellant being charged before they made their police statements. Such a level of publicity was considered by this Court in BJS v R where Hall J (with whom Basten JA and RS Hulme J agreed) said at [213]:
"213 I do not consider that publicity as to the Appellant's arrest and charging with other sexual offences, of itself, can be taken as having given rise to a risk of contamination. The publicity was limited in its terms. It lacked specificity as to precisely what it was that the Appellant had allegedly done. The fact that the charges related to alleged sexual assault does not in itself suggest there was a real possibility of contamination. ..."
In BJS at [203] the nature of the publicity was analysed in detail and it was this to which reference was made by Hall J at [213].
68The submissions as to contamination and concoction by the Appellant have not been made out.
69Although not specifically referred to in the Grounds of Appeal, submissions were directed to s137 of the Evidence Act in relation to the evidence of the complaints and tendency witnesses. In Regina v Ngatikaura [2006] NSWCCA 161 Simpson J said:
"71 Because of the view I take of the nature of the evidence in question, ss135 and 137 are immaterial. S97 and s101(2) provide the tests for the admission of tendency evidence; in my opinion, they leave no room for the application also of either s135 or s137."
This statement of principle was implicitly approved in Christian v R [2013] NSWCCA 98 at [59].
70The above considerations are sufficient to deal with Grounds of Appeal 1 and 2. Subject to the resolution of one outstanding matter, I would reject Grounds of Appeal 1 and 2.
71The issue which I have reserved in relation to Grounds of Appeal 1 and 2 is whether the psychological treatment afforded to MG and CP was of such a kind as to attract the exclusionary provisions of ss97 and 101. I have considered that issue in Grounds of Appeal 3 and 5. The outcome of those Grounds of Appeal will determine the outcome of this issue, insofar as it relates to Grounds of Appeal 1 and 2 and other Grounds of Appeal.
Ground of Appeal 3: That the trial miscarried as a result of the trial judge finding that evidence of the complainant MG and witness CP having undergone modalities of treatment such as hypnosis was irrelevant to the issue of those witnesses' reliability and thus his Honour's refusal to exclude the evidence of such witnesses upon the joint trial of each of the counts.
Ground of Appeal 5: That the trial miscarried as a result of the trial judge excluding evidence in the defence case sought to be called from Dr John Albert Roberts and in particular such evidence bearing upon the reliability of witnesses MG and CP.
72It is convenient to deal with these two grounds of appeal together since they essentially raise the same issue.
73The relevant evidence was that of MG, CP, Mr Lyleson, a psychologist; Ms Schaan, a psychologist; Dr Roberts, a psychiatrist and Dr Ellis, a psychiatrist.
74MG prepared three statements concerning the Appellant: 21 October 2008; 1 May 2009 and 6 February 2010. She gave evidence on the voir dire. She attended Mr Lyleson on five occasions in 1999. The reason she saw Mr Lyleson was because of what had happened to her as a result of the conduct of the Appellant. She said that on the first occasion she saw Mr Lyleson, she explained to him what the Appellant had done to her. She also mentioned it on one other occasion.
75When she went to Mr Lyleson to talk about the abuse by the Appellant, she noticed that he did hypnotherapy. As she was trying to give up smoking at the time, she thought that it might help her. She also wanted to build up her confidence. One of the exercises that Mr Lyleson gave her was to place her hands in front and imagine that she was holding her life in her hands. She clearly remembered that occasion but could not remember what else they spoke about at other times. She knew that she underwent some hypnotherapy with him, but this was to do with her confidence.
76She said that during those sessions when hypnotherapy was applied, there was definitely no discussion about the abuse that she had suffered at the hands of the Appellant.
77Under cross-examination, MG denied that any hypnotherapy had been used when she first attended Mr Lyleson. She agreed that she had undergone hypnotherapy during a later attendance, but that this was to assist her in regaining her confidence. She did not think that she had gone into any detail about the sexual abuse when she spoke to Mr Lyleson. She thought that she had only told him that she had been sexually abused by a priest and then continued to relate that into her life. She said that the type of therapy that she had described with her hands held out parallel, focusing on the energy between her hands, happened only once. When asked how many times she had been hypnotised during the course of her treatment with Mr Lyleson, she answered "I only remember one, maybe two, times". She thought that the other session of hypnosis might have related to her smoking.
78She did not remember ever undergoing a mode of therapy where she was asked to relax, to delve into her subconscious mind and to consider things from the past that needed help and to consider abuse that was holding her back. She remembered doing a session where she was asked to do something with moving fingers. She could not say what Mr Lyleson did when she undertook that therapy. She just remembered being surprised that her finger moved.
79Mr Lyleson gave evidence on the voir dire. He did not remember the sessions with MG, apart from his notes. His notes recorded five attendances: 23 April, 3 May, 14 May, 21 May and 26 May 1999. He did remember MG telling him about being touched or molested by a priest. He remembered that in a general sense as a topic.
80After MG mentioned that she had been molested, he thought that she might be somebody who could end up in a court setting. He said that he conducted two sessions of hypnosis with MG. He could not remember for sure, but believed that he might have told MG that the hypnosis session might impact on her presentation as a witness in court. He had a vague recollection of MG saying that she had no interest in taking anything to court.
81There was no note of hypnotism being carried out during the first session on 23 April 1999. During that first session, MG did not say a lot about being sexually abused by a priest. She did not want to go into detail about that. When asked whether the fact of her sexual abuse was an issue that needed to be dealt with in therapy, he said:
"I didn't make up my mind about that one way or the other, and she seemed to be pretty well functioning. Her goals were more about having a better life rather than pulling herself out of a depression or something, so I'd put it certainly as a consideration that it might need attention but she was saying it didn't and I took her word for it."
He remembered MG saying that it was not something that she needed to go into.
82His memory was that their discussions were not focused at all on MG's sexual abuse as a major part of the therapy. MG said that she was not interested in talking about it and he respected her wishes. He explained that the technique whereby people were asked to close their eyes and hold their hands out parallel in front of their body and to imagine their energy between their hands was known as "Rossi Hands". He could not explain the reference to "Rossi Hands" at the end of his notes relating to the first consultation. He had no note of what he said or what she said if he had used that technique on that occasion.
83He said that during the second session he put MG into a trance but that it was a light trance. He could not recall, nor did he have any notes of what MG said when she was in that trance. There was no mention of sexual abuse in his notes. He said that he was very careful when it came to sexual abuse to make no suggestions of any kind during therapy.
84On the third session he made a note "molested by a priest 9". He did not remember what it was that MG had said about being molested by a priest when aged 9. There was a note that he had given "homework" to MG at the end of that session. This could have been journal work or diary work. He did not think that he had asked MG to write down her dreams because that was something which he rarely did. He said that he was very careful with hypnosis not to make any suggestions that could create memories or enhance memories or distort memories. He saw that as a real danger and it was not therapeutic.
85He explained the reference in his notes of 21 May to "trance to future self". It meant for MG to do an age progression into a time in the future when a problem was already solved and then generally "what I do is have the person look back from the future and remember the steps they took to get there". He said that it included visualising what would seem like past events that were actually future events. He agreed that a person did not always know that they were being hypnotised and that some induction techniques were quite subtle. In his case, however, he always obtained permission from the patient before administering such a technique. He did not know for how long MG was in a trance on 21 May.
86On the last attendance on 26 May Mr Lyleson made a note that read "Finger signals. Finger middle, yes. Pointer, no". He explained that this signified another hypnotic technique - ideomotor finger signals. "It's a process of asking if you have signals from the subconscious mind, the part that can help the client with whatever problem they're having. It requires no talking, so they can just lift a finger, can lift it spontaneously. That would be considered a signal from the subconscious mind".
87Under that note Mr Lyleson had written "Things from the past need help. Abuse holding her back. There are resources not being used". He did not remember if those were notes about what happened during the course of the ideomotor finger signal process but he imagined that they were. He did not believe if finger signals were being used, that anything was said at all by MG. He thought that the words in the notes were his opinions.
88CP gave a statement to the police on 24 October 2008. She did not know any other person who had made a complaint about the Appellant. She underwent counselling with Ms Schaan in 2006. During that counselling, the topic of the Appellant came up. The topic came up in general conversation about other matters. She went to Ms Schaan on a totally unrelated matter and during the course of the discussions, mention of the Appellant occurred. Her reason for seeing Ms Schaan was that she had lost her job of 22 years. Part of her redundancy included counselling for a number of sessions. At the time, she had a physical disability being a problem relating to her shoulder.
89She attended approximately 10 sessions with Ms Schaan. On probably five occasions, the events involved with the Appellant were discussed. She did not receive any form of treatment or have any techniques applied to her in relation to that topic. She was not referred to any written material in relation to that topic.
90Under cross-examination she could not recall whether Ms Schaan taught her breathing techniques and relaxation techniques. She could not recall whether Ms Schaan taught her how to process in her mind issues about anxiety and other emotional difficulties. She could not recall Ms Schaan teaching her a technique which involved her tapping pressure points on her head and saying affirmative things about herself. She said this would have been difficult because her shoulder problem prevented her from lifting her arms to her head. She agreed that her memory of these sessions was not particularly good.
91When asked what she was able to remember about the techniques and methods which Ms Schaan used with her, she said that she recalled techniques relating to pain management. These involved breathing exercises and relaxation exercises, such as taking herself to a nice place like a waterfall while doing those exercises.
92CP did not recall whether Ms Schaan had asked her to write out an account of what happened when she was sexually abused. She did recall an occasion when Ms Schaan suggested that she write a letter to her deceased grandmother. When she wrote that letter, she did not write things about the Appellant in it.
93It was suggested to CP that Ms Schaan had asked her to write an account of the incidents with the Appellant amongst other things and that she did write one out, that she read it to her partner and that her partner became angry and that she told Ms Schaan that that was what had happened. CP agreed that this probably did happen because she recalled writing a letter to her grandmother. She probably did write about the Appellant, but could not recall what she wrote.
94CP agreed that during the course of her sessions with Ms Schaan, there was discussion about how she felt about the topic of the Appellant and what happened to her. She explained to Ms Schaan that she was angry about it and that she felt shame about it. She had difficulty talking about it, even with Ms Schaan. She said that when Ms Schaan gave her homework, she did not always do it. CP was asked whether she remembered any technique that involved moving her eyes. She thought that that happened in Ms Schaan's office, probably on one occasion only. She could not say that this was in the context of dealing with her emotions concerning sexual assault.
95Ms Schaan made statements dated 18 March 2009 and 27 September 2010. She gave evidence on the voir dire and her treatment notes were an exhibit. She had been a registered psychologist since 1994. She came in contact with CP as a result of CP being made redundant by her employer. She saw CP on twelve occasions during 2006. She made notes on the occasions that she saw CP.
96The first consultation on 3 July 2006 was an initial needs assessment as to how she could best assist CP. She did not recall the sessions and had to rely quite a lot on her notes, in order to say what transpired. In the first session, CP talked about constant shoulder pain. Apart from speaking with CP, she did not engage in any psychological techniques or modalities on that occasion.
97The next consultation was 13 July 2006. Her notes for that session referred to "prefer kinaesthetic relaxation to visual". She explained this reference:
"One example of kinaesthetic relaxation would be one by one to tense various parts of the body and then relax. A visual relaxation method is when a person is guided through visual images of nature to have the mind focus on pleasant experiences and environments."
98The next consultation was 27 July 2006. Her notes from that session referred to "mindfulness technique". She described this as "A wide range of different techniques really and it involves helping a person become aware of feelings, to manage them effectively, to diffuse them and to accept them for what they are". She said that she did not perform any mindfulness techniques during that consultation.
99The next consultation was 10 August. Her notes referred to "Explained EFT technique for processing emotion". Ms Schaan explained that EFT is short for Emotional Freedom Technique. It involves tapping meridian points, mainly on the head and face. It is a kinaesthetic emotional diffusion technique". She believed that she only explained the technique to CP. If she had demonstrated it or practised it, she would have recorded that in her notes.
100The next consultation was 24 August. Once again, she referred to teaching "EFT technique". The next consultation was 31 August. Her notes from that session included:
"Client had difficulty discussing issue. Expressed numbness experiences. Explored what it is like to feel uncomfortable. Discuss sexual interference by brothers' friends, priest."
101Ms Schaan said that she understood that the priest was a separate person from the brothers' friend or friends.
102The next consultation was 7 September 2006. Her note of this was:
"Client had written down story of what happened around being molested. She had read it to partner, who was angry. Watched show on TV where perpetrator's side was shown. Explored fears around abuse then/now. Discussed her various siblings to whom this did not happen. Explored the why around parents not protecting. Explored guilt, shame, in relation to parents. Eight year old and fifteen year old child exercise. Empty chair interactive and writing exercise, homework. Explained what to expect in coming weeks: feelings, reactions. Partner's reaction management."
103The next two consultations occurred on 14 September and 21 September 2006. The notes from the latter consultation included "Client felt comfortable reading story of two incidents of sexual molestation today. Processed feelings around each ... addressed shame with EFT technique release". Ms Schaan said that in that session the story that CP had written was read to her but she did not have an independent recollection of what was said.
104Consultations took place on 28 September 2006 and 19 October, with the last consultation on 2 November 2006. Her notes from that last session included: "Explored feelings about molestation" and "Discussed ways of looking at past to integrate experience into identity". Ms Schaan said that she had never used memory recovery techniques in any of her therapy.
105Under cross-examination Ms Schaan explained the difference between kinaesthetic relaxation and kinergetics. Ms Schaan said that she had never practised kinergetics in relation to any paying patient, including CP. She said that kinaesthetic relaxation was physical relaxation. It did not include trying to create new realities.
106Ms Schaan was asked to explain "mindfulness techniques". She did so by saying a mindfulness technique helped people learn how to stop resisting emotion and actually process it and feel it and experience it and accept it as it is. She said that the intention of mindfulness was to remove the story about the feeling and just feel the feeling. She said that there were many mindfulness techniques, and she could not recall the one which she used with CP. She did not agree that a mindfulness technique required a person to focus on the event or the feeling and to understand it and name it to themselves.
107When talking about the emotional freedom technique, using continuing tapping upon parts of the body, she did not agree that it was undertaken while a specific traumatic memory was focused upon. She agreed that in a typical emotional freedom technique, the person decides what they want to clear from their system, what particular emotion is a trouble to them. She agreed that they are told to focus on that particular emotion. She agreed that the technique involved the use of affirming statements. These statements were normally positive self statements. She agreed that the person was asked to repeat that statement and tap the meridian points on their head. She did not agree that they were asked to stay focused on the issue as they did it. She agreed that people were asked to move their eyes up, down, clockwise and counter-clockwise but had never heard of the technique being used in ways that involved people being asked to hum a song while they moved their eyes in those ways. She said that the self-affirming phase happened at the end of the process where tapping and eye movement were involved. It was not simultaneous.
108It was suggested to Ms Schaan that the emotional freedom technique used the same fundamental components as systematic desensitisation and distraction techniques. She said that she did not understand what the relationship or comparison was.
109Ms Schaan said that she was not familiar with EMDR (rapid eye movement desensitisation and reprogramming). She had read a definition of the technique for the purpose of preparing her statement, but she did not know anything at all about it until then. She taught emotional freedom techniques to CP so that CP could use them at home. She gave a hand out about emotional freedom techniques to CP.
110On 31 August CP had difficulty telling Ms Schaan about the sexual interference. Ms Schaan explored with CP what it was like to feel uncomfortable. Such exploration of what it was like to feel uncomfortable would come under "mindfulness". When CP said something to her about sexual interference at the hands of a priest, she made no notes of what was said to have happened. She suggested that CP write down the story of what happened to her.
111On 7 September, CP came back and there was a discussion about what CP had written. Ms Schaan explained her notes: "Eight years old and fifteen years old child exercise". Ms Schaan said "It's a hypothetical exercise to get a person to think about the cognitive and emotional capacities of a person at a particular age and to ... build understanding about what a person's perspective of the world might be at that age". Ms Schaan could not recall whether CP told her at what age she was sexually assaulted.
112Ms Schaan said that she would have done the exercise in order to assist CP with her understanding concerning the sexual assault, more than to assist CP with her emotions. Ms Schaan would not call the technique a visualisation technique. Ms Schaan did not agree that the emotional freedom technique used much the same psychological tools as hypnosis. She did not use hypnosis on her clients and she had not been trained in hypnotic technique. She was not able to comment on the proposition that EMDR therapy uses much the same psychological tools as hypnotherapy.
113Ms Schaan was taken to her statement of 27 September 2010 in which she said that cognitive behaviour therapy, mindfulness technique and emotional freedom techniques were all modalities that were scientifically validated psychological treatment methods and that they were endorsed by the Australian Psychological Society. She did not accept the proposition that the Australian Psychological Society did not endorse any techniques. She rejected the proposition that emotional freedom techniques had never been peer reviewed or experimentally assessed.
114Dr Roberts, psychiatrist, gave evidence on the voir dire. The following documents were tendered on the voir dire:
Report 9 October 2010 relating to MG (5 pages);
Report 9 October 2010 relating to MG (17 pages);
Report 11 October 2010 relating to MG (2 pages);
Report 9 October 2010 relating to CP (5 pages);
Report 11 October 2010 relating to CP (7 pages);
Report answering two questions (2 pages);
Bibliography of articles and journals referred to by Dr Roberts in his reports;
Letter from Greg Walsh & Co to Dr Roberts, dated 6 October 2010;
Letter from Greg Walsh & Co to Dr Roberts, dated 7 October 2010;
115Dr Roberts was in private practice. He maintained both a clinical and a forensic practice. He had been a psychiatrist since 1974. He had been using hypnosis in a clinical setting since 1974/5. He was a member of the Australian Society for Hypnosis.
116He had used hypnosis primarily in attempts to treat general anxiety disorders, to treat phobic states, to attempt to control excessive weight and as an adjunct to a general program designed to assist people in giving up smoking. He had been asked to do other things, such as hypnosis using age regression for forensic purposes, but he found that unreliable. He said that such exercises were prone to give rise to memories of events that might not have occurred, to distort recollections and to make evidence that a person might give in a forensic sense, potentially unreliable.
117He had given evidence in criminal trials about the impact of hypnosis on a person's state of consciousness and memory on a number of occasions. He had studied academic articles about hypnosis. He had studied textbooks on hypnosis and also looked at articles on the Internet and from journals.
118He described EMDR therapy. He said that it was a treatment that was deemed to be analogous to hypnosis. He said that EMDR had had its vogue and that memories and recollections recovered as a result of EMDR might not be reliable.
119Dr Roberts said that the "emotional freedom technique", described by Ms Schaan was without any scientific basis whatsoever. He said that any repetitive stimulus, be it visual, auditory or tactile can be used to induce a hypnotic state. The technique of re-aligning meridians involved a technique that was therefore similar to what could be regarded as hypnosis.
120Dr Roberts was asked what the "Rossi Hands" technique was. He said that it was a technique for the induction of hypnosis. It was, however, not a direct technique. He agreed with the description of "Rossi Hands" given by Mr Lyleson.
121Dr Roberts said the point of using "Rossi Hands" ought to have been to utilise some aspect of the perception of MG of her inner-self, or subconscious - if one accepts that that exists - to modify behaviour. In relation to hypnosis generally, Dr Roberts said:
"I think that as a general principle if one is doing something beyond just simply getting a person to relax and to minimise anxiety, you would be looking at a level of hypnosis that is somewhat deeper, rather than lighter, but not hypnosis of great depth."
122He said "as a general principle, the deeper the level of hypnosis, the greater the level of suggestibility".
123Dr Roberts was asked to assume that within minutes of being hypnotised in this way, MG had told Mr Lyleson that the reason why she had come to see him was that she had been sexually abused. Dr Roberts responded that this might potentially give rise to memory problems, in particular the creation of new memory. Dr Roberts said that hypnosis might create memories of events that have not occurred, that it might result in a circumstance where suspicions were concreted into certainties and potentially affect the forensic reliability of a person to give evidence in regard to matters of fact. (This factual assumption was never adopted by MG or by Mr Lyleson.)
124Dr Roberts was of the opinion that any hypnosis, regardless of the subject matter, ran the risk of having an impact upon a patient's recollection.
125Dr Roberts said:
"If the patient identified the problem [sexual assault by a priest] as the major source of concern, or a significant source of concern, in my opinion it would be very difficult to envisage that that would not have been impacted upon by the treatment given." [i.e. hypnosis]
126Dr Roberts agreed that it would depend on how the treatment was given, what was said, how it was said, what her state of consciousness was and "a whole lot of other things". He did not know those things because he was not there.
127Dr Roberts said that it could not be said that hypnosis did not alter the recollection of MG because there was no evidence as to what her memory was before the hypnosis session. Although Dr Roberts agreed that there was no evidence as to what was said between MG and Mr Lyleson, he considered that the normal approach would be to use hypnosis to deal with the main reason why the patient was attending, i.e. the sexual assaults.
128Dr Roberts said that the process of age progression or regression involved necessarily suggestions being put by the therapist. He said that "Ideomotor finger signalling", which was a finger signalling technique, could be used in the hypnotic state. Because it was disruptive to the induction of the hypnotic state to converse with a patient, the signalling technique is used.
129In relation to Ms Schaan's treatment of CP, Dr Roberts characterised the techniques which she described as "fringe therapies, fringe philosophies". He had never used that form of therapy because it had no basis in fact. Dr Roberts said that the description which Ms Schaan gave of a technique involving eye movements was very similar to the technique of EMDR. Its purpose was desensitisation and reprogramming. In this case, he said it would be reprogramming of recollections and emotions associated with an event.
130In relation to Ms Schaan's use of mindfulness techniques, Dr Roberts said that this was similar to meditation and that meditation and hypnosis were virtually identical. It was very difficult, if not impossible, to distinguish between the two. Dr Roberts said that visualising oneself in or going into a beautiful place such as a waterfall, was a very standard hypnotic induction technique. Dr Roberts said that journal writing and writing accounts were utilised as a form of memory recovery technique.
131Dr Roberts said that he did not have any special expertise in relation to children and did not regard himself as a child psychiatrist. Dr Roberts disagreed that in relation to both CP and MG the Court was not dealing with recovered memory. He said that from a psychiatric point of view, he thought the reasonable position was that the psychiatrists did not know what they were dealing with. He agreed that what he was saying was that the therapy conducted by Mr Lyleson had the potential to have altered MG's memory. The risk depended on a number of unknown factors.
132By reference to the report of Dr Ellis, Dr Roberts said:
"I disagree most strongly with Dr Ellis' statement that there is no evidence that suggestion was used. The essence of hypnosis is suggestibility."
133Dr Roberts said that it was universally agreed that hypnosis was a state of hyper-suggestibility. He said that the only purpose of doing hypnosis was to make suggestions.
134Dr Roberts was asked if he would discount the possibility that, at the end of the initial consultation with Mr Lyleson, there could have been some hypnosis directed at relaxation only. He said that he could not negate the possibility, however, the level of hypnosis undertaken showed a greater depth than one would expect for relaxation. Dr Roberts said that the other area where he disagreed with Dr Ellis was that MG reported a recollection that did not differ before and after the therapy period. He said that, to his knowledge, that had not been established.
135Dr Ellis was a psychiatrist, who gave evidence on the voir dire, and provided a report dated 13 October 2010. Dr Ellis had been provided with a summary of facts relating to MG and CP, their statements and the statements of Mr Lyleson, Ms Schaan and a number of other persons. He had also been provided with the notes taken by Mr Lyleson and Ms Schaan, the transcript of evidence of MG, CP, Mr Lyleson and Ms Schaan and the five reports of Dr Roberts.
136Dr Ellis agreed with the general proposition that hypnosis can influence the experience of memory. He thought the likelihood of distorting memories was greater if the hypnosis was performed over longer periods of time, reinforcing new memories, if suggestion and leading questions were used and if the content of the memories was congruent with the recipient of the hypnosis.
137Dr Ellis said that in this case, there was evidence from witnesses and from MG that the recollection of the allegation was never forgotten and was reported to witnesses before undergoing therapy. The therapy was brief (five sessions) of which parts of three sessions included hypnosis. There was no evidence that suggestion was used, but the contemporaneous notes were brief. The witness reports of her recollection did not differ before and after the therapy period.
138Dr Ellis concluded that there was no evidence that the hypnosis had induced an intrusive recollection, as the recollection was reported before the hypnosis. There was less certainty as to whether the recollection was distorted because the exact recollection pre and post treatment was not recorded in detail. However, there was no evidence of a change of substance in the recollection after hypnosis. Therefore, while hypnosis would have impacted on any recollected memory, the extent of that impact cannot be determined with certainty from the information, other than that a new memory was not intruded during the treatment.
139Dr Ellis noted that hypnosis was a "diffusely defined concept". He thought defining treatment by reference to this diffuse boundary, was an exercise in analogy.
140Dr Ellis said:
"Breathing exercises, relaxation techniques involving imagining a calm place, writing a journal or letter of thoughts, feeling and memories, role-playing the point of view of a child are all standard therapeutic techniques that are used in cognitive behavioural therapy. They may share some analogies to early preparation for hypnotic states, but they do not involve alteration in consciousness. They do not, if used correctly, involve suggestion or command. They are not techniques listed in those of concern regarding witness testimony."
141Under cross-examination Dr Ellis agreed that he had observed hypnotherapy being done but had not performed it. He did not see any evidence that EMDR had been done at all, in either Mr Lyleson's therapy or Ms Schaan's therapy. Dr Ellis said that EMDR would not be considered a hypnotic induction technique but "like all forms of psychotherapy, shares some similarities with hypnosis in that there is putting someone at ease, relaxing, asking them to talk about memories".
142Dr Ellis agreed that the "Rossi Hands" technique is a form of hypnotic induction. He noted, however, that by the time MG went into the trance to future self, she had already twice raised the topic of being molested by a priest. Dr Ellis said that there were statements that were provided to him of people to whom MG had spoken beforehand so the available evidence suggested that there was a notion that appeared before the therapy and that notion persisted in a similar manner after the therapy, i.e. that she had been assaulted by a priest.
143Dr Ellis said that a point of difference between himself and Dr Roberts was that Dr Roberts included as hypnosis a much broader category of psychological techniques than he did. He did not include things like role-playing with a chair and writing a journal. He did not think that EFT progressed to the level where one would consider it to be hypnosis. Dr Ellis said that the therapists' notes were very scant, but that the intent of the therapies was not to cause the patients to recall recovered memory. One of the reasons that MG went for therapy related to her sexual abuse, but she did not go for the purpose of recalling the memories for the purpose of testimony.
144The trial judge dealt with this issue as follows:
"The only witnesses who gave evidence of hypnotism by psychologists were MG and CP and submissions ultimately about exclusion of evidence related to them.
In my opinion what the evidence revealed was that each complainant spoke of sexual assaults happening when each of them was between 8 and 10 years old. Each of them is now in her early forties.
MG spoke to a psychologist in 1999 and raised sexual assault as a problem to be dealt with along with other problems. She saw Mr Eric Lyleson, a registered psychologist, on a number of occasions in 1999 and on some occasions, he hypnotised her. The sessions were not entered into for any forensic purpose and notes of Mr Lyleson do not contain any details of what MG told him. He made no attempt to assist her to recover a memory. She claimed to remember what happened to her in the sexual assaults before she went to see Mr Lyleson.
There was no evidence that Mr Lyleson sought to entrench any memories. After the last session with Mr Lyleson, MG did not have any further sessions with psychologists. She made her statements to the police after she became aware of the arrest of the accused. She did not know any of the other complainants.
CP went to see Ms Schaan, because she had been retrenched from a job she had held for more than 20 years. Her former employer paid for the counselling, which was given to her to help her cope with the consequences of retrenchment. She had a shoulder problem as a consequence of a failed operation and continuing pain in that shoulder. She had smoking problems and weight problems. She also mentioned that she had been sexually assaulted by a priest.
During the course of the twelve sessions, techniques were applied from time to time, according to Dr Roberts [see later] that were either hypnosis or something similar to hypnosis. Ms Schaan did not seek to help her to recover a memory. Ms Schaan denied that she hypnotised CP and gave evidence that she had no training in hypnosis. CP claimed to have a memory of what sexual abuse happened. According to her, that memory did not change. None of the sessions were conducted for any forensic purpose and there is no evidence that the sessions influenced the evidence she intends to give in any way. The hypnosis sessions helped her to feel better about herself.
She made her statements to the police after she became aware of the arrest of the accused. She did not know any of the other complainants. Dr Roberts provided a number of reports and gave evidence. The Crown objected to the reports and the evidence claiming that it was irrelevant, however, I allowed the reports to be tendered on the voir dire and allowed him to give evidence, because I wanted to determine if the reports or the evidence were relevant for the trial.
In essence his evidence was that there was a risk that a false memory may be created or entrenched by any hypnotism, even if it were not directed to sexual assault. It was possible, according to Dr Roberts, for a memory to be created or a false memory entrenched even if the hypnotism was not directed to any forensic purpose.
It is clear that the treatments of MG and CP were not part of a forensic exercise of "recovering memory". Mr Lyleson specifically denied that he attempted any such thing. Ms Schaan claimed that she did not hypnotise CP at any time, but some of her techniques may have been similar to the induction phase of hypnotism. Dr Roberts disclaimed any pretence to be someone who was a child psychiatrist.
I have carefully considered the evidence of Dr Roberts, but I do not find it convincing. What he raises in his evidence, in my opinion, is the bare possibility, for reasons which are not satisfactorily explained, that the psychologists may have in some way affected the memory of their patients about sexual abuse, even though they did not raise specific questions about this and they did not seek to entrench or create any memory at all. According to Dr Roberts the entrenching or creating of memory could occur in circumstances where the subject of sexual abuse was not being discussed but where hypnosis or hypnosis like therapy was being applied during which other matters were discussed. I found it extremely difficult to follow, just as I found it difficult to accept his evidence that a person engaging in meditation was in fact doing something very similar to hypnosis.
What occurred in these cases was quite different from cases where police officers have specifically arranged for witnesses to be hypnotised with a view to obtaining evidence from them. Neither of the psychologists who have given evidence before me were attempting in any way to get their patients to remember anything for the purposes of some form of litigation.
I can see nothing to throw any doubts on the reliability of CP or MG and I can see no circumstances for excluding the evidence of either of them.
Of course in determining whether I should exclude this evidence I have regard to the provisions of section 137 of the Evidence Act 1995 and to the recent decision of R v JG (Court of Criminal Appeal, unreported). This decision confirms the application of section 137 in determining the question whether evidence of a complainant who has been hypnotised should be admitted in evidence or whether such evidence should be excluded.
Unlike the case of JG, MG and CP were not the subject of hypnosis for forensic purposes.
MG was hypnotised four times by a psychologist who was treating her for difficulties in her life. He did not seek to get any details of the sexual abuse, did not make any suggestions about it, did nothing to entrench any memories she may have had, but did on at least one occasion ask her during hypnosis to deal with her feelings. She claimed her memory before the hypnosis and after it remained the same. Dr Roberts was of the opinion that she may have been mistaken and her memory afterwards may have been different than it was before hypnosis. I can see nothing that would lead me to conclude that she should not be permitted to give evidence of that memory. CP was not hypnotised, according to Ms Schaan. CP also denied that this occurred. I can see no proper basis for excluding her evidence."
145The Appellant submitted that his Honour had not properly applied s137 of the Evidence Act to the evidence of MG and CP in that he had not taken into account the effect of hypnosis on the probative value of their evidence. The Appellant relied upon the general statements of principle by Dr Roberts to the effect that the administration of hypnosis as a therapy, even when not directed to towards specific memories, and when not seeking to modify memory, would inevitably have an effect on the reliability of a witness' recollection.
146The Appellant referred to the admission by Mr Lyleson that he had used hypnosis on at least two occasions when treating MG and perhaps three. The Appellant referred to the "Rossi Hands" technique and the ideomotor responses which suggested a deeper level of hypnosis. The Appellant submitted that in line with the opinion of Dr Roberts, the very process of hypnosis itself was capable of creating memories about events that may not have existed and distorting recollections, even though hypnosis may not have been directed to treating those memories. This was particularly so when MG saw Mr Lyleson for the specific purpose of dealing with the effect on her of sexual abuse by the Appellant.
147The Appellant submitted that when those matters were taken into account, the probative value of the evidence of MG was seriously reduced, so as to not satisfy the balancing test required by s137.
148In relation to CP, the Appellant relied upon the evidence of Ms Schaan when describing the various techniques used. He submitted that when that evidence was taken with that of Dr Roberts, it became clear that Ms Schaan was engaging in hypnotic techniques, even though she did not acknowledge that fact. That being so, the same qualifications as to the reliability of her evidence, applied as in the case of MG. Accordingly, the requirements of s137 had not been made out and her evidence should be rejected.
149The difficulty for the Appellant in those submissions is that they depend very heavily upon the evidence of Dr Roberts being accepted. With some justification, the trial judge was critical of the evidence of Dr Roberts. While that issue is more appropriately discussed in relation to Ground of Appeal 5, it needs to be kept in mind when considering Ground of Appeal 3.
150In the case of CP, Dr Roberts' evidence assumed that hypnotic techniques were used, despite the specific denials to that effect by both CP and Ms Schaan. As the trial judge appreciated, it was speculative on the part of Dr Roberts to assert that because certain techniques described by Ms Schaan "could" be associated with hypnosis, that this was so. There was no evidence any hypnosis was used in the treatment of CP by Ms Schaan. I have concluded that the trial judge did not err in rejecting the evidence of Dr Roberts insofar as it sought to challenge the probative value of the evidence of CP.
151Another difficulty for the Appellant in maintaining this ground of appeal is that in the case of both MG and CP, evidence as to the sexual assaults by the Appellant on them had been related by them to other persons well before they received any psychological treatment.
152It is true, as Dr Roberts stated, that they had not made statements and had not in terms set out clearly the precise nature of the allegations. It is, however, clear that the broad thrust of the allegations had been communicated to others. There was no evidence that any suggestions had been made to either CP or MG by the psychologists in relation to these issues, nor was there any attempt to enhance or recover any memory. There was no evidence that the recollection of either witness was in any way impacted by the treatment which they received.
153On this issue the comment by Brooking JA (with whom Tadgell and Buchanan JJA agreed) in The Queen v JMS [1998] VSCA 19 is of assistance:
"22 In a case in which there was no evidence whatever of what the counsellor had said to the complainant - for all the jury knew, there might have been nothing remotely resembling "therapy" and nothing more than the giving of one or two pieces of practical advice - it would have been quite mischievous and misleading for the jury to hear testimony from an expert which might well have suggested to a lay person that on the evidence the complainant had received therapy which had tended to alter her memory."
154In relation to the submission that it would be difficult, if not impossible, to cross-examine MG and CP because their recollections had been influenced by the therapy undertaken, the observations by Basten JA in Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 are applicable. That was a case which raised similar issues in relation to the possibility of contamination of memory by the use of hypnosis. Basten JA said:
"129 His Honour commenced this part of his reasons, with proposition (b), at [190], that the ordinary juror is unlikely to know about the effects of hypnosis upon the human memory. He might have added, in accordance with the expert evidence before him, that psychologists and psychiatrists had the limited advantage of knowledge of ignorance. There was evidence that hypnosis "may increase the confidence of recall of events that may be believed to have happened" (see report of Dr Roberts, p 7) but no expert evidence suggested that there was any scientific explanation of how that occurred, or the extent to which it occurred in specific cases. Once elements of hyperbole are removed (for example, the comment by Dr Roberts as to "the liability of hypnotic intervention ... to create forensic havoc") it is clear that little can be said with precision as to even the possible effects of the two hypnosis sessions on the daughter's memory. As noted above, there is no evidence of any significant additional detail being elicited in the course of those sessions, beyond that contained in the lengthy interviews conducted before the hypnosis.
...
131 The possibility that the two sessions of hypnosis have increased the confidence of the daughter in the memories earlier recorded must be acknowledged. However, the evidence did not support giving that factor significant weight. ..."
155RS Hulme J in JG made similar observations:
"165 Dr Roberts and the author whom Dr Roberts quoted, did not attempt to quantify the factors mentioned but it is not difficult to conceive of circumstances where they might substantially impede the chances of a successful cross-examination. On the other hand it is not only hypnosis that can impede or reduce the chances of a successful cross-examination. The death of someone whose representations can be proved by others, say in the circumstances contemplated by section 65 of the Evidence Act, can have such an effect. So can serious mental deterioration, simply forgetting or more serious loss of memory, or even irremediable absence of a witness.
166 Furthermore, the fact problems may arise in some circumstances provides no adequate basis for concluding they must arise, either in all cases or in a particular case where hypnosis has been used ..."
156The conventional application of s137 of the Evidence Act, as interpreted by cases such as R v Shamouil [2006] NSWCCA 112 would allow the evidence of MG and CP to be adduced, given its high probative value if it were accepted by the jury. In this case, however, his Honour not only looked at the probative value of the evidence and balanced that against its prejudicial effect, the trial judge went further and made an assessment of the reliability of the evidence, a step which on one view of s137 he should not have taken but which could only favour the Appellant.
157The approach to s137 of the Evidence Act in New South Wales was summarised by Basten JA in JG as follows:
"71 ... Further, this Court has construed s137 as requiring attention to the capability of the evidence to have a particular effect, rather than its reliability, which is a matter for the jury.
72 The approach to be adopted under s137, in assessing the probative value of the evidence is to inquire whether, if accepted by the jury, it "could rationally affect the assessment of the probability of the existence of a fact in issue": Dictionary, probative value. That assessment involves an objective test of the capability of the evidence to support an inference, rather than assessment of what the jury is likely to conclude: R v Shamouil [2006] NSWCCA 112 at [61], Spigelman CJ, Simpson and Adams JJ agreeing. As the Chief Justice stated at [64]:
"To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different but not irrelevant context in Doney v The Queen [1990] HCA 51; 171 CLR 207 at 275, this is not a permissible "basis for enlarging the powers of a trial judge at the expense of the traditional jury function". In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137."
73 The judgment in Doney approved the approach taken by this Court in R v R (1989) 18 NSWLR 74 in which Gleeson CJ (Maxwell and Wood JJ agreeing) rejected the proposition that, where there was some evidence, capable of supporting a conviction, a trial judge could direct an acquittal because, on his or her own assessment of the evidence, a verdict of guilty would be unsafe and unsatisfactory. Although the assessment of the evidence as a whole is undoubtedly a different function from assessing individual pieces of evidence, nevertheless, absent statutory authority, it is doubtful whether, consistently with principle, the trial judge should be entitled to assess "safety" in relation to the latter, but not the former. The power of the trial judge, in determining relevance, must be to assess the capability of the evidence, if accepted by the jury, of affecting the assessment of a fact in issue. If it could rationally affect that assessment, there may no doubt be circumstances where the affectation is either irrational or cannot be rationally assessed. That appears to have been the factor which weighed upon his Honour's mind in the present case. However, it is a mere matter of semantics to say that the latter concerns are not properly described as involving a "danger of unfair prejudice" to the respondent. If that is accepted, then the role of the trial judge is identified by the terms of s137 and any alternative approach would be inconsistent with the requirements of that provision.
74 It was acknowledged in Shamouil, in circumstances which were not identified with any precision, that questions of credibility or reliability could not be categorically excluded in all circumstances: (at [56] and [63], referring to R v Cook [2004] NSWCCA 52 at [53] (Simpson J)). The primary judge was conscious of that principle: The question was whether it operated in the present circumstances and, if so, in what manner.
75 It follows that, in my view, Buddin J was in error in applying the so called McFelin principles for two reasons: First, there was no authority binding his Honour, either of a single judge or an Australian appellate court, which required that he be affirmatively satisfied of the safety of admitting the evidence which was not the product of hypnosis. Secondly, that test, even if applicable under the general law, cannot stand with the requirements of the Evidence Act which provides otherwise."
158It follows that Ground of Appeal 3 has not been made out. His Honour did not err in admitting the evidence of MG and CP.
159The Appellant submitted that the evidence of Dr Roberts should have been admitted because the jury might give the evidence of CP and MG undue weight. This was because an ordinary juror would be unlikely to know about the effects of hypnosis upon human memory. It was therefore important that the jury have before it the evidence of Dr Roberts concerning the possible risk that the recollections of JG and CP had been altered by the therapies used by the psychologists who provided treatment to them.
160I have already indicated why the evidence of Dr Roberts is irrelevant to the admissibility under s137 of the evidence of CP. Accordingly, its admissibility needs to be considered only in relation to the evidence of MG.
161The Appellant submitted that the evidence of Dr Roberts was relevant and therefore admissible because it was directed to the reliability of the evidence of MG in that she had undergone treatment by hypnosis on approximately three occasions, at the hands of Mr Lyleson and that as a result, there was a risk that her memory concerning him had become distorted. The opinion of Dr Roberts on those issues was based on his "specialised knowledge" as a psychiatrist and on learned articles to which he referred. The effect of the evidence of Dr Roberts has already been set out. The Appellant relied upon such cases as Farrell v R [1998] HCA 50; 194 CLR 286 to the effect that expert evidence concerning a medical condition which may affect a witness' ability to give reliable evidence is admissible, provided the expert evidence extends beyond the experience of ordinary persons.
162One of the reasons for the trial judge rejecting the evidence of Dr Roberts was that he found it unconvincing. His Honour was of the opinion that at most it raised the "bare possibility" that the memory of MG had been adversely affected. On that basis, his Honour was entitled to reject the evidence under s108C of the Evidence Act because his evidence could not "substantially affect the assessment of the credibility" of MG.
163There is another basis on which the evidence of Dr Roberts should have been rejected. As in JG, Dr Roberts was not able to explain how hypnosis might adversely affect a witness's memory where the hypnosis was not directed in any way towards that memory or a subject matter connected in some way to the memory. This is particularly the case with MG where Mr Lyleson was very careful to make no suggestions to her when providing this treatment. His Honour was entitled to be sceptical of Dr Roberts equating meditation with hypnosis, or something very similar to it.
164Large parts of the evidence of Dr Roberts, both orally and in his reports, did not set out the factual basis for the conclusions which he reached. Many of those conclusions were based on assumptions which were not supported by the evidence. In some cases, the conclusions were little more than ipse dixit statements.
165In view of the evidence of MG, CP, Mr Lyleson and Ms Schaan, which was all one way, and which was to the effect that no attempt had been made to reconstruct or modify any memory of past events, let alone the sexual assaults, the introduction of the evidence of Dr Roberts with the deficiencies to which I have referred, would have run the risk of significantly distracting the jury from its essential task of assessing the evidence. The potential for false issues to be raised by that evidence was real and significant.
166It follows that Ground of Appeal 5 has not been made out and that his Honour did not err in rejecting the evidence of Dr Roberts.
Ground of Appeal 4: That the trial miscarried as a result of the trial judge upholding objection pursuant to the provision of the Criminal Procedure Act 1997 (sexual assault communications privilege) so as to prevent the defendant being permitted to cross-examine CP and MG about the content of the counselling sessions upon the trial of the Appellant.
167This Ground of Appeal relates to the matters covered by Grounds of Appeal 3 and 5. As indicated, the primary judge directed that the counselling notes should be produced and their content has been set out above.
168The provisions of s298 of the Criminal Procedure Act 1987 have since been amended but at the time relevantly provided:
"298(4) The court must not give leave to adduce evidence that discloses a protected confidence or the contents of a document recording a protected confidence unless the court is satisfied that:
(a) 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 substantial probative value, and
(b) Other evidence of the protected confidence or the contents of the document recording the protected confidence is not available, and
(c) The public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.
(5) Without limiting the matters that the court may take into account and the purposes of subsection (4)(c), the court must take into account the likelihood, and the nature or extent, of harm that would be caused to the principal protected confider if the evidence that discloses the protected confidence or the contents of the document recording the protected confidence is adduced."
169There was no issue that the communications between MG and Mr Lyleson were protected confidences and that they fell within the sexual assault communication privilege provisions (ss 295 - 300 of the Act). The legislation did not apply to CP as the definition of "sexual assault offence" in s295 at that time did not encompass offences in other jurisdictions.
170His Honour's reasons on this issue were:
"What is clearly intended by these provisions is that confidential communications revealing instances of sexual assault should not be made the subject of evidence in the trial unless the trial judge, applying the appropriate tests comes to the conclusion that this evidence should be given. In particular, the court must have regard to the following words (his Honour then set out the provisions of ss 298(4)).
...
These words mean, in my opinion, that I must not, once I am satisfied there is a protected confidence involved, give leave to adduce evidence, unless I am satisfied of three matters:
1. The evidence will have substantial probative value and
2. Other evidence of the protected confidence or of the contents of the documents recording the protected confidence is not available, and
3. The public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of the document because it is of substantial probative value.
In my opinion, the notes of Mr Lyleson contain confidential communications which within the meaning of these sections are protected confidences. The evidence which MG can give concerning the counselling sessions would reveal those protected confidences.
For the purpose of determining what I should do I have already heard the evidence of each of them on the voir dire and I'm able to come to the opinion that MG would not be likely to suffer any harm of any kind as a result of the adducing of evidence about the psychological counselling sessions.
However I am unable to form any opinion that the evidence that MG and Mr Lyleson could give about these documents and these sessions would be of substantial probative value in the trial.
In my opinion all of the evidence about these counselling sessions reveals nothing more than that MG was unhappy with life many years after the alleged episodes of sexual abuse and sought psychological counselling to assist with the problem. In the course of that counselling, she revealed that she had been sexually abused at a much earlier stage of life. No detail was gone into by the psychologist and in my opinion, there is no evidence of a satisfactory nature that causes me to think that the evidence of MG was affected adversely by the psychological counselling. The mere fact that she was hypnotised and was made the subject of some techniques which are similar to hypnotism in my opinion does nothing to detract from the evidence which she is going to give. At its highest, the evidence of Dr Roberts raises a bare possibility that her memories of events may have been enhanced or entrenched but that possibility does not, in my opinion, mean that the evidence has substantial probative value. It would also be irrelevant, in my opinion, for the evidence of Dr Roberts or any other psychiatrist to be called about the psychological counselling sessions.
In my opinion the evidence would not be of substantial probative value and it should not be admitted. Furthermore, in my opinion, admitting this evidence will distract the jury from the task that is before them, namely whether the accused committed all or any of the acts alleged against him.
In the case of CP, in my opinion, there is evidence to establish that she was not hypnotised and the bare possibility that techniques were applied, which may have had some similarity to hypnosis, does not change this position. Any examination of the psychological counselling sessions would be irrelevant.
But the evidence of these complainants also has features common to that of the other complainants, i.e.
The accused gained access to their families using his position as a priest to do so.
He frequently visited the family home and at least one parent was very pleased to receive him.
He used his position as a priest to get access to the complainants who were each of them school girls.
He sexually abused each of them although some of the abuse was not at home but in a confessional or in a car.
Mr Boulten submitted that the trial would miscarry if I did not permit the examination and cross-examination of CP and MG concerning their psychological counselling sessions and if I did not permit the examination and cross-examination of Mr Lyleson and Ms Schaan as well as the calling of Dr Roberts.
He contended that the only two witnesses who were hypnotised were CP and MG and to allow their evidence to be given in the trial as tendency evidence in relation to each of the other complainants would be to create an unfair prejudice to the accused because he would not be able to cross-examine them about the fact that they had been hypnotised and would not be able to suggest to them that because of that hypnotism their memories of what occurred were affected.
I do not agree with these submissions. In my opinion there is no evidence to suggest that either of these witnesses has a false or entrenched memory as a result of hypnotism. Indeed, what each of them says occurred as I have said earlier, has similarities with what each of the other complainant has said happened to her. CP and MG both claim that their memory of what occurred did not change because of the psychological counselling sessions. I cannot accept and do not accept that the evidence that could be given by Mr Lyleson, Mr Schaan or Dr Roberts could do anything more than raise a bare possibility that their memories may have been affected in some way.
It follows that I will not permit the documents which show notes of the conferences to be tendered in evidence. I will not permit CP or MG to be examined or cross-examined about the documents or the counselling sessions and I will not permit Dr Roberts the psychologist or any other psychiatrist to be examined or cross-examined about the counselling sessions."
171From the contents of the notes which have been summarised above, for the reasons given by his Honour and for the reasons set out for rejecting Grounds of Appeal 3 and 5, his Honour's conclusion on this issue was undoubtedly correct. The probative value of the counselling notes was of a very low order and could not be characterised as having "substantial probative value". On the contrary, as his Honour found, in relation to CP they were irrelevant. Accordingly, even though his Honour incorrectly found that CP was covered by the legislation, the proposed evidence and cross-examination of her was correctly rejected because they were irrelevant.
172No error in his Honour's conclusion has been established. This Ground of Appeal has not been made out.
Ground of Appeal 6: That the trial miscarried as a result of his Honour refusing to discharge the jury in circumstances where the Crown was permitted to adduce evidence of the psychiatric history of witness "Y" despite his Honour earlier ruling that such evidence was not relevant to the issues to be tried. (The reference in this Ground of Appeal to "Y" is a reference to CP.)
173This ground of appeal is based on evidence given by CP in answer to questions put by the prosecution in re-examination:
"Q. I forgot to ask you this but after [BJS] left and you stopped contact with him did you continue at school that year or what was the situation?
A. I'm not sure of the timeframe but as -
BOULTEN: Well I object to this.
HIS HONOUR: Why?
CROWN PROSECUTOR: I press it.
HIS HONOUR: I allow it, yes go on.
CROWN PROSECUTOR: Q. Yes you can continue.
A. Again, I'm not sure of the timeframe, but after the event I suffered a sort of breakdown and ended up with an entire term off school. And I believe as a result of this incident.
Q. Was it Xxxxxxx College where you missed the time?
A. Yes it was.
CROWN PROSECUTOR: Yes, that's all. Thank you your Honour.
HIS HONOUR: Do you have any cross-examination?
BOULTEN: There's a matter of law I wish to raise with your Honour.
HIS HONOUR: All right. Just go outside for a minute members of the jury can we cut the witness off please." (T.859)
174Senior counsel for the Appellant explained his objection as follows:
The evidence whether the witness was psychologically damaged was irrelevant, and she was not an expert.
The evidence would make relevant the witness's psychological profile at that time. This would require the admission of all of the evidence as to her psychological condition, including the consultations with Ms Schaan.
175His Honour responded to the objection as follows:
"HIS HONOUR: Well I don't agree with you. I don't think it's got anything to do with Jordan Schaan. That occurred many years later. I'm not going to go over all the reasons I gave you then for saying it's irrelevant, because it's still irrelevant. But she's given a view about how she felt after the event and how it affected her. That's all she's saying.
BOULTEN: She said that she had a psychiatric breakdown and she knows why it was.
HIS HONOUR: She thought she did.
BOULTEN: Yes. No she said she did.
HIS HONOUR: I can tell the jury that's a matter of her view, that's how she feels; it's not a matter of expertise or anything of the kind." (T.861)
176In further exchanges with counsel, his Honour refused to allow any questions to be addressed to the attendance by CP on Ms Schaan. He did allow senior counsel for the Appellant to ask questions about CP's state of mind at the time of the assaults. CP was cross-examined about the evidence which she had given about having had a breakdown and about the stresses in her life in 1983 and 1984. Evidence was elicited about her mother's psychiatric problems and the state of her parents' marriage. In that cross-examination CP agreed that she had sought treatment over the years for "emotional difficulties" and that it was more than six months after the offending before she took time off from school.
177At trial, senior counsel for the Appellant sought a discharge of the jury on the basis of the wrongful admission of this evidence. That application was refused by the trial judge but a copy of his Honour's reasons is not available.
178On appeal, the Appellant submitted that the evidence should not have been admitted because it was not relevant to a fact in issue (s55(2) Evidence Act 1995) and because CP lacked the expertise to express the opinion which she did. The Appellant submitted that the jury should have been discharged because of the prejudice created by the question and answer. This was because they invited the jury to speculate that firstly, the witness had suffered a psychological breakdown and secondly, that the breakdown had occurred as a result of being sexually assaulted by the Appellant. The Appellant submitted that allowing senior counsel to cross-examine CP in relation to the evidence had only increased the prejudice.
179A proper examination of the question makes it clear that CP was not being asked for her opinion as to why she took time off from school. The question sought to establish that soon after the incident with the Appellant, she became sufficiently unwell to prevent her attending school. Accordingly, that part of the answer which expressed her belief was non responsive.
180I agree, however, that the relevance of the question, limited as it was, was problematic. That having been said, in the context of this trial the prejudice, if any, created by the answer was minimal. It did not provide a basis for the discharge of the jury. The decision to further cross-examine on the issue was a forensic one made by experienced senior counsel at trial. The evidence was so peripheral that there was no need for him to do so. Nevertheless, the cross-examination was effective in not only identifying other causes for why CP may have been away from school, but in also establishing a significant temporal gap between the assaults and when she took time away from school.
181In the event the evidence was put to good effect by the defence and formed the basis for "worrying point 7" and "worrying point 8" in the defence submissions at the conclusion of the trial. The evidence was selected to highlight two discrete points. The evidence was said to provide a basis for suggesting that the witness had problems that were unrelated to the Appellant and that over the years she had sought out psychologists or psychiatrists (T.1262).
182This ground of appeal has not been made out.
Ground of Appeal 7: That the trial miscarried as a result of the trial judge's ruling that the Crown Prosecutor be permitted to cross-examine the accused.
Ground of Appeal 8: That the trial miscarried as a result of the trial judge's refusal to discharge the jury consequent upon permitting the Crown Prosecutor to cross-examine the accused as to tendency.
183The background to these grounds of appeal were questions put by the Crown to the Appellant at T.958-959. The questions were:
"Q. The first proposition is this, I put to you squarely that from about 1976 until at least 1983 you had a sexual interest in young girls and young women, correct? [emphasis added]
A. No, not correct.
Q. Further, that you used your office as a respected Catholic priest and at times family confidante, to gain access to young girls and young women, that's correct isn't it? [emphasis added]
A. No, it's not correct.
Q. And further, this is the third proposition that I put to you, that having gained that opportunity you then acted on that sexual interest and you indecently assaulted the young girls and young women for whom you had gained such access, correct? [emphasis added]
A. No, not correct."
184The Crown asked the following question:
"Q. Do you say that you acted in an open manner towards these people and they've come along to court and told something which didn't happen?"
Objection was taken to that question by the defence.
185The basis for the objection was firstly, that the question called on the Appellant to explain what was in the mind of the witnesses who had come along to give evidence and secondly, it invited the Appellant to comment on the motivation of those witnesses to come forward. After discussion, the trial judge overruled the objection and allowed the questions to continue. The questions continued at T.962.
"Q. What I was just putting to you before, a moment ago, was this, am I right in understanding that you are saying that you only ever acted towards these people in an open way within the terms of your office and yet they're coming along?
A. Yes."
The Crown then put to the Appellant the evidence of PR and members of her family to the effect that he had stayed in her home on three occasions.
186It was against this background that the following questions were asked of the Appellant at T.963:
"Q. And you say that's wrong do you?
A. Yes.
Q. And you say it's wrong because you never stayed there?
A. I never stayed in the house.
Q. You can't be mistaken about that?
A. No.
Q. You heard MT saying that you stayed in the house?
A. Yeah, I heard him say that.
Q. He's wrong is he?
A. Yes.
Q. No mistake?
A. No mistake.
Q. As far you're concerned?
A. No mistake.
Q. And WT, the mother, said you stayed on a number of occasions do you recall that evidence?
A. Yeah I remember that evidence.
Q. And she's mistaken as well?
A. Yeah."
187Senior counsel for the Appellant made an application that the jury be discharged. The basis for the application was the series of propositions that between 1976 and 1981 he had had a sexual interest in young girls and young women, and that he had used his position as a Catholic priest to gain access to young girls and young women and that he had indecently assaulted the young girls and a young woman "for whom you had gained such access". Senior counsel for the Appellant submitted that the phrase "young girls and young women" went beyond the tendency that was advanced in support of the evidence that was admitted as tendency evidence. He submitted that the tendency relied upon by the Crown was a tendency to act in particular ways in relation to girls, aged between 7 - 17 years. "Young women" could include persons older than 17. Senior counsel for the Appellant submitted that the questions allowed the inference that the Appellant had indecently assaulted other young girls and young women beyond those who had given evidence in the proceedings. His Honour refused to discharge the jury on that basis.
188His Honour was correct in refusing to discharge the jury on the basis put forward on behalf of the Appellant. In relation to the questions put concerning "young girls and young women", it was clear from those questions that the period concerned was 1976 - 1981, which correlated with the period stipulated in the counts on the indictment and in the tendency notice. The oldest of the complainants was 17. It was, in the circumstances, entirely appropriate to categorise that complainant as "a young woman". It was also clear that the questions were confined to those persons called at trial and did not extend to any broader group.
189The submission by senior counsel for the Appellant has an air of unreality about it. Witnesses had given evidence who clearly came within the description of "young girls and young women". There was no suggestion in any of the evidence that other unspecified young girls and young women had been the objects of sexual interest by the Appellant. The context in which the questions were put made it clear that they were directed to the witnesses who had given evidence at trial.
190If there were any doubt on that issue, it was resolved by the trial judge when at T.987, following the discussion with counsel, he gave further specific directions to the jury. His Honour reminded the jury of the questions which had been put to the Appellant and directed the jury that the "young girls and young women", to which reference was made, were restricted to those persons specifically mentioned in the trial and not to any other group. The trial judge directed the jury not to assume that the questions related to any conduct beyond that raised in the proceedings. His Honour directed the jury not to speculate that the Appellant had roamed around doing anything else to anyone else.
191The second basis for the application to discharge the jury arose from those questions which referred, in general terms to witnesses "coming along" to give evidence or being mistaken in the evidence which they gave. Senior counsel for the Appellant submitted that these questions were impermissible because the Appellant was being asked questions about whether a complainant, or other witness, had a motive to lie.
192The Appellant relied upon the observation in Palmer v R [1998] HCA 2; 193 CLR 1 (Brennan CJ, Gaudron and Gummow JJ) at [8]:
"8 If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F:
"the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.""
193The submission of the Appellant is not made out. The question objected to, and which formed the basis for the application to discharge the jury (T.962.5), fell well short of asking the Appellant to explain or speculate on why witnesses had given evidence. The question at [169] hereof did not give rise to the problem identified in Palmer. In Palmer the questioning imposed an onus on the accused, which was impermissible. That was not the situation here.
194There was nothing objectionable about the subsequent questions. The Appellant was asked about the complainant, PR, her brother and mother. He was asked if each was wrong in saying that he had stayed in their home. He was asked if he could be mistaken in his evidence. He was asked whether the mother was mistaken in her evidence (T.963.50 - 964.46). What he was not asked was whether the evidence of those witnesses was false due to "invention, malice, mistake or other cause" (R v Leak (1969) SASR 172.
195The Appellant was not asked why a witness gave particular evidence. He was asked if particular evidence was wrong. He was asked one question about whether a witness was mistaken. It is clear from the sequence of questions that this question followed on from the questioning as to whether a witness was wrong. The question was clearly being asked to suggest error, rather than invite an opinion as to the basis for the contradictory evidence. None of the questions asked the Appellant why it was that a witness had given evidence wrong or otherwise.
196In the course of the summing up, senior counsel for the Appellant asked his Honour to specifically direct the jury on the subject of motive to lie. He provided his Honour with a document relevant to that direction. His Honour complied with that request (SU 23.11.10 - p 45-51). If there were any concern about those questions, his Honour addressed those concerns by giving directions in accordance with those sought on behalf of the Appellant.
197This ground of appeal has not been made out.
Ground of Appeal 9: That the trial miscarried as a result of the trial judge directing the jury after they commenced their deliberations that they could "reluctantly agree" as to their verdict.
198On 29 November 2010 (having retired to consider its verdict on 24 November) the jury provided a note as follows:
"We've only been able to reach a unanimous decision on three counts. The remaining eight we weren't unanimous and are unlikely to be."
The jury then returned verdicts of guilty in respect of counts 5, 6 and 11.
199The trial judge gave a "Black direction". During the course of that direction, his Honour said:
"Each of you has sworn or affirmed that you will give a true verdict according to the evidence - that is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. Again I can only urge that you listen carefully to what each of the others say, calmly weigh up one another's opinions and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the difference of opinion which you may have, and it may convince you that your original opinion was wrong.
This is not to suggest that you can consistently join in a verdict if you do not honestly and genuinely think it is the correct one. Now that is a very important matter and I cannot emphasise it enough. You may go away from here saying to yourself "Well I really didn't want to do that" but you have got to be able to say "I did in fact agree", reluctant though it was. It would be quite wrong to go away and say "I didn't agree". As I said to you before if people do that it throws in doubt the whole system. So you think about it and you decide if you do agree.
Your decision on any of the remaining counts must be unanimous, whether it be guilty or not guilty. There is no possibility of any majority verdict. It has to be a unanimous verdict. All twelve of you - and of course it has to be decided beyond reasonable doubt. Yes, all 10 jurors, I'm sorry not 12 jurors. I'm reading of course from a direction that is given in every case and I am wrong - all 10 of you must agree on the verdict and any verdict, not only has to be unanimous, you have got to be satisfied beyond reasonable doubt.
It may be that the particular paths that lead each of you to that unanimous decision are not quite the same, but your verdict of guilty or not guilty must be a verdict of you all. In other words provided you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given.
Experience has often shown that juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged." (SU 29.11.10, 85-87)
200On 30 November 2010 a further note was provided to the trial judge by the jury as follows:
"Would your Honour please clarify "reasonable doubt" to assist our understanding? For example, does the presence of any doubt constitute doubt? Can you suggest an example to assist us in this regard? For example, is there a probability weighing or thresh-holding that might apply? Can your Honour please clarify the reluctant agreement, juror finding you referred to yesterday?"
201His Honour responded to the question concerning "reluctant agreement" as follows:
"Now reluctant agreement is the second thing and I hope I did not create confusion in saying it. If we take an example far from here there can be many situations in life where there is what could be called reluctant agreement. For example, you may have a son, daughter, or relative or friend who comes to you and says I need a loan, I am really in desperate trouble, please give me $1000 and you reluctantly agree. You say okay, very well, I am a bit short myself but I can see the problem you are in, I will give you $1000 and you hand over the $1000. Now you could say I reluctantly agreed to give it. You cannot say I refused to give it because in fact you did give it, but it was reluctant, you agreed it was an agreement but you found it difficult to come to that agreement. Now reluctant agreement means nothing more than that here. You might find it difficult to come to an agreement, you might rather wish that you did not have to, but you say yes I do agree nevertheless. Now that is a reluctant agreement and we can get many other examples. You can get it in the workplace - an employer might say to an employee "I want you to go to Queensland next week, you have to go to Brisbane and go by car, then to Bundaberg and you have got to stay there a week and we are doing this work. You might say I do not want to go there, I really do not want to go there, I have got things to do here, I've got lots of things I want to do here and he might say to you "Well, I am not going to force you, but I would like you to go, it is in the interests of the company that you go." You weigh it up and you say - All right I would rather not but I will." Now, it is reluctant but it is an agreement, you cannot say he forced me to, he said he would sack me if I did not because he said I will leave it to you, I could get someone else but really you are the person who is the best placed and the company will suffer if you do not go - so I agree or I do not agree. If I agree, it is reluctant I would rather not but I do. That is a reluctant agreement and here you're being asked to look and say - well even though I find it difficult, yes I do agree, that is my agreement. If I say it is to be contrasted with saying that it is not my agreement but I will give in because I want to go home and then going and telling everyone afterwards I did not agree at all, then people say that is funny, how on earth did that result happen if you did not agree.
So you can be reluctant but you can agree. Now if there is a reasonable possibility of the accused being innocent on any of the remaining charges you should find him not guilty, that is the plain fact, that is what the law says a reasonable possibility of innocence. If there is not, even though it is difficult to find any person guilty of something, then if there is not, that reasonable possibility you should find him guilty. If you are not satisfied beyond reasonable doubt, you should find him not guilty. If you think there may be a possibility or a probability even that he did it, but I'm not satisfied beyond reasonable doubt you should find him not guilty.
So just to reiterate, you decide what is in the circumstances, your satisfaction beyond reasonable doubt. Unless you are satisfied beyond reasonable doubt you find him not guilty. There is a reasonable possibility of innocence, you find him not guilty. If you think he might have done but you cannot be entirely sure you find him not guilty, if even though reluctantly, you think I've got to agree he is guilty, you find him guilty. If the reluctance is on the other side, that people - a lot of people are saying look, we think he is innocent - you are reluctant to say that but eventually you say yes, reluctantly I agree - reluctantly you agree and you agree he is not guilty." (SU 30.11.10 4.1 - 5.9)
202Senior counsel for the Appellant expressed reservations about the analogies used by his Honour when discussing "reluctant agreement". His Honour was not prepared to give further directions on the subject.
203The Appellant submitted that the difficulty with the analogy relating to the $1000 loan was that the loan was between a parent and a child, where other considerations relating to the making of the loan could arise so that the agreement to make the loan might turn out to be a completely unreasonable one. Similarly, the Appellant submitted that in many situations there might be an imbalance of power between an employer and an employee, so that the agreement to travel interstate might not represent a real agreement. The Appellant submitted that this might have distorted the reasoning process followed by the jury.
204It would have been preferable for his Honour not to have raised the concept of "reluctant agreement" in his summing up. When asked to explain what he meant by that term, the analogies used by his Honour were not helpful and had the potential to be misunderstood by the jury. Looked at as a whole, however, the effect of his Honour's direction was that in some cases there were agreements which were difficult to come to but that the essential ingredient was that there be genuine agreement.
205The effect of the direction was to remind the jury of the standard of proof, how to approach it and to direct that as long as the jury applied the correct test, they were required to return a unanimous verdict, even if it entailed a degree of reluctance. While it would have been better not to have raised the issue of "reluctant agreement", when the summing up is looked at as a whole, the Appellant was not disadvantaged and no injustice occurred.
206What is of particular significance is that following his Honour's directions, the jury still distinguished between outcomes in relation to the various counts in that they were not able to agree on verdicts of guilty for counts 3 and 4.
207The situation is not dissimilar to that referred to by RA Hulme J in FP v R [2012] NSWCCA 182 at [178], although the circumstance being considered by RA Hulme J was somewhat more extreme than that which occurred here:
"178 A usefully thorough review of the many cases concerned with this issue appears in the judgment of Simpson J in RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209. In that case, the trial judge embellished the direction as to the standard of proof of his own volition. Whilst it was held that it was wrong for the judge to have done so, what was said was found not to constitute a miscarriage of justice. It did not diminish the standard of proof and was not misleading or confusing as other attempts at elaboration by trial judges had been found to be. The unnecessary addition to the response given by the judge in the present case can be similarly characterised."
208Even if his Honour were in error, there has been no substantial miscarriage of justice (s6(1) Criminal Appeal Act 1912). Accordingly, this ground of appeal has not been made out.
209It follows from the above analysis that the Appellant's appeal against conviction should be dismissed.
Application for leave to appeal against sentence
Ground of Appeal 10: That the sentence imposed upon the Appellant was too severe.
210The Appellant was sentenced on 19 April 2012. The delay in sentencing occurred because the Appellant made two applications in the course of the proceedings to the Court of Criminal Appeal. Those applications were unsuccessful.
211When assessing the objective seriousness of the offence, his Honour said:
"4. Each assault was serious, planned and callous. The offender used his position as a priest to gain access to the homes in which each of his victims lived. Because of his position as a priest and because of his standing in the community generally, he was very trusted and the parents of each of the victims readily gave him access to their daughters because of that trust and the esteem in which he was held."
212His Honour concluded that the sentences to be imposed should particularly emphasise individual and general deterrence. In that regard, his Honour took into account that the Appellant continued to deny his guilt and showed no remorse.
213In the sentencing proceedings, five matters relating to the Appellant's subjective case were raised:
(1) He was a man of previous good character.
(2) He would serve his sentence in harsh conditions.
(3) His age and health.
(4) Extra curial punishment.
(5) Public humiliation and vilification.
214In relation to his previous good character, his Honour said:
"He has put himself forward as a man of good character and a large number of character testimonials have been tendered... I am prepared to accept that in his life as a priest and since then, apart from this type of offence, he has conducted himself in an exemplary manner. However, it also has to be said that he used his eminence in the community and his role as a priest to gain access to his victims and to carry out sexual offences on them."
215In relation to (2), his Honour noted that there was no evidence before him that he would serve his sentence in harsh conditions. Although the Appellant had been in a remand facility where he was locked up for all but one hour per day, his Honour noted that after he was sentenced, his conditions would improve substantially. His Honour did not accept that his conditions of imprisonment would be harsh.
216In relation to (3), his Honour noted that the Appellant was 69 years of age and had a problem with his hearing. Otherwise, there was no evidence that the Appellant was suffering from any health problems.
217In relation to (4) and (5), his Honour said:
"15 As to 4, this seems to be based on evidence of media comments and articles on the Internet including a rather irrational one that talked about murder. I do not accept that any of this amounts to some form of extra curial punishment and I decline to take it into account in any way at all.
16 As to 5, the argument submitted is that there is powerful evidence of public humiliation and vilification of the offender and this should in some way be taken into account in sentence. I do not accept that this should be taken into account in this instance. There may be cases where such consideration would be of relevance. However, there is no basis for lessening the sentence because the arrest of the offender caused a great deal of public comment."
218Before passing sentence, his Honour summarised the relevant sentencing considerations as follows:
[3]
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Decision last updated: 12 July 2013
Because he was aged 69, a gaol sentence was going to fall very heavily upon him.
Apart from these offences, he had led a blameless life and was entitled to the benefit of that good character, however, he used his position as a priest to get access to his victims.
The offences were predatory and planned and apart from LH, all of his victims were very young.
The offences against MG in counts 8, 9 and 10 were the worst of all of the offences in that they involved very serious sexual misconduct.
He had no remorse or contrition which meant that there could be little hope of rehabilitation. He had not sought any counselling or assistance.
As the offences were old offences, regard had to be had to sentencing patterns of the past. It was not easy to reach any conclusions about this since there were very few cases involving facts like this. His Honour was unable to find anything to suggest any pattern of sentencing for offenders such as this Appellant who in breach of trust, acted in a predatory way against young children. His breach of trust was worst than most because he used his position as a priest to get access to children.
The case was one appropriate for the imposition of an aggregate sentence.
The worst offences were counts 9 and 10 and notwithstanding that they were old offences, they were very serious. Accordingly, his Honour proposed to impose the maximum sentence for those offences.
There must be a considerable degree of concurrence, otherwise the overall sentence would be too great. Offences 9 and 10 were committed at the same time and the proper application of sentencing principles meant that those two sentences would have to be wholly concurrent.
There must be cumulation of sentences and the aggregate sentence would reflect that.
His Honour found special circumstances arising from the Appellant's age and the fact that this was the first time he had been imprisoned.
219His Honour determined the individual sentences as follows:
Counts 5 and 6 - 3 years imprisonment.
Counts 1 and 2 - 4 years imprisonment.
Count 7 - 1 year imprisonment.
Count 8 - 5 years imprisonment.
Counts 9 and 10 - 6 years imprisonment.
Count 11 - 3 years imprisonment.
As previously indicated, the total sentence imposed was imprisonment with a non-parole period of 5 years with a balance of term of 3 years. The commencement of the imprisonment was backdated to 30 November 2010. The Appellant would be eligible for release on parole on 29 November 2015.
Appellant's submissions and consideration
220The Appellant submitted that his Honour erred in not finding that he had been subjected to extra curial punishment. This submission was based primarily on evidence given by the Appellant's wife in the sentence proceedings.
221Her evidence was that she and the Appellant married in September 2004. She had a child from a previous marriage, who was aged about five and a half at the time of the Appellant's arrest. Another child was born in November 2004. She said that as a result of the arrest and conviction of the Appellant, the Department of Community Services removed the children and it was only when proceedings in the Children's Court at Parramatta were dismissed that the children were allowed to return home. She said that the Appellant had not been allowed to see the children since the date of his arrest.
222His wife gave evidence of threats which were made against her and the children. There was a particular threat made online to the effect that she and the children would be sliced up into little pieces so that the world could see what happens to the families of [paedophiles]. She said that the police had done little to protect the family and that these threats and the substantial amount of adverse publicity were having a very deleterious effect on the health of the Appellant.
223There was a report from Dr Roberts to the effect that when he interviewed the Appellant in prison, he was depressed and one of the reasons for that depression was the threats which had been made against his family.
224The Appellant relied upon the observations of Kirby J in Ryan v R [2001] HCA 21; 206 CLR 267 at [123] where his Honour said:
"123 I agree with Callinan J[127] that in sentencing a prisoner such as the Appellant, account might properly be taken of the particular features to which such a prisoner is exposed, including the additional opprobrium, adverse publicity, public humiliation and personal, social and family stress which he suffered. Thus, in re-sentencing the present Appellant, it might be appropriate to fix a custodial sentence proper to his case taking into consideration, in a general way, the extent to which the Appellant is now publicly identified as a paedophile as a result of the criminal proceedings taken against him. Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence, it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required."
225Evidence was also given by the Appellant's wife to the effect that she had been told by him that he was treated in a humiliating and contemptuous way on occasions by Corrective Services staff. She gave evidence concerning the harsh conditions he had endured while on remand awaiting sentence.
226It is accepted that in certain circumstances extra curial punishment can be taken into account in the sentencing process. In Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398 at [62] James J (with whom Tobias JA and RS Hulme J agreed) said:
"62 ... while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight."
227His Honour was aware of the online threat, but declined to give it any weight because of its extreme nature. His Honour was entitled to do so. There was no evidence of anything being done by any person to implement this threat. There was no evidence of any other specific threats.
228His Honour took into account that offences of this kind when discovered and punished, usually involve public humiliation and some level of vilification. His Honour did not consider that the evidence before him justified him doing anything more than recording the submission. The approach of his Honour was in line with that of Howie J in Kenny v R [2010] NSWCCA 6 at [49] where he said:
"49 ... My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However having regard to what Basten JA has written about this matter, the issue appears to be unresolved in the High Court and need not be determined for the purpose of disposing of this ground of appeal. Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment. That was in effect the position in Allpass. It was also the position in R v King [2009] NSWCCA 117 where media coverage of the respondent's sentence resulted in threats to him and made him a virtual prisoner in his own home."
229Following Kenny, Basten JA (with whom Blanch and Hall JJ agreed) in Duncan v R [2012] NSWCCA 78, a case where there had been fourteen months of "vitriolic attacks verbally and on Facebook and a wealth of adverse material in print on radio and TV", said:
"29 This was not a case in which the applicant suffered public humiliation or vilification as a person having a high profile in the community, but rather because of the enormity of her conduct and the fact that it had a wide impact within a small community. The fact of such a public response is less important for itself, rather than for its effect on the applicant. The sentencing judge took account of the psychologist's report prepared by Dr Katie Seidler, a clinical and forensic psychologist. Dr Seidler noted that she had symptoms of depressed mood, but also noted that she had been on an anti-depressant drug since mid-adolescence: paragraphs 44 and 45. She reported having attempted to take her life on four occasions, two preceding the crash and two thereafter. There were no symptoms of post-traumatic stress disorder: paragraph 47. The applicant was described as "tearful and upset in describing how she does not believe she will cope in prison and how she is scared of being the victim of assault in custody": paragraph 49. Reference was made in the same passage to her degree of upset at being separated from her children. Although noting that the applicant was suffering from "considerable emotional distress and psychological disturbance across almost all domains of functioning" there was no clear identification of a psychological disorder of a moderate to severe kind, or of one which could readily be traced to the crash itself."
230The report of Dr Roberts, other than indicating a level of depression on the part of the Appellant did not indicate a more than usual reaction to the publicity consequences of his actions. Moreover, the reasons put forward by Dr Roberts as contributing to the Appellant's depression go beyond the public humiliation associated with his arrest and conviction. They related to certain remarks said to have been made by the trial judge (which were disputed (CUR 24 v DPP [2012] NSWCA 65)).
231On the evidence before his Honour, it was open to him to reach the conclusion which he did concerning the effect on the Appellant of his public humiliation as a result of his arrest and conviction.
232The question of the Appellant's inability to see his children while he has been in custody appears to relate to a dispute between him and the Department of Community Services and does not relate directly to these offences. In the absence of further evidence, neither his Honour nor this Court can take that matter into account.
233It follows that I am not persuaded that his Honour erred in his treatment of the matters which were placed before him under the heading "Extra Curial Punishment".
234The Appellant submitted that his Honour erred in failing to give adequate weight to his age and health in the sentencing process. Simply expressing the Appellant's submission is indicative of the problem associated with it. His Honour clearly took these matters into account. The complaint is that he did not give them sufficient weight. That, of course, involves a challenge to his Honour's sentencing discretion and unless clear error is identified, such a submission cannot succeed.
235In this case his Honour did take into account the Appellant's age and noted that "a gaol sentence is going to fall very hard on him". His Honour also took it into account when making a finding of special circumstances. The ratio between the non-parole period and the total sentence was 55 percent. His Honour was correct to observe that in relation to the Appellant's health generally, "he was [not] in any particular state of bad health".
236It is true that the report of Dr Roberts described the Appellant as being "stressed" and that he "presented in a manner consistent with depression". That is not unexpected, given that the Appellant had at that time spent a considerable period in custody. His description of the Appellant when he visited him (approximately four days before he was to be sentenced) was unremarkable. In particular, Dr Roberts did not regard the level of depression as sufficient to require medication.
237No error in his Honour's approach to the Appellant's age or state of health has been made out.
238The Appellant submitted that his Honour erred in not adequately taking into account his previous good character. Once again, this submission suffers from the weakness previously referred to, i.e., it challenges the extent to which the sentencing judge took a matter into account and therefore challenges the sentencing judge's exercise of discretion.
239His Honour's approach to the Appellant's character was unexceptionable. The Appellant received the benefit of the fact that he had "conducted himself in an exemplary manner" during his life, except for this series of offences. His honour remarked "Apart from these offences, he has led a blameless life and is entitled to the benefit of that good character". This is not the situation which arose in Ryan where the sentencing judge entirely disregarded the Appellant's good character because of the nature of his offending.
240What his Honour did in this case was to also take into account the counter balancing consideration that it was as a result of his position in the community that the Appellant was able to gain access to his victims and commit offences against them. This was a legitimate approach. What is clear, however, is that his Honour did take the Appellant's previous good character into account as a matter in mitigation of sentence and as a matter which favoured him.
241Error in his Honour's approach to the Appellant's previous good character has not been made out.
242The Appellant submitted that his Honour did not have proper regard to sentencing practices at the time of the offending, i.e. between 1976 and 1981. The Appellant submitted that a substantial quantity of material was placed before his Honour, including cases where this principle had been applied, but that his Honour had not properly taken those matters into account. In particular, his Honour had not taken into account the relatively low ratio between non-parole periods and head sentences prevalent at the time, i.e. that non-parole periods were often less than 50 percent of the head sentence.
243The Appellant submitted that his Honour's statement that there are "very few cases involving facts like this" was indicative of his failure to give proper consideration to the cases to which he was referred. The Appellant submitted that in a number of those cases, the offending conduct was much more serious than in his case and that in nearly all of the cases, there was a serious breach of trust as the offenders were either the father or some other relative of the victim.
244It is clear from his Honour's remarks on sentence that he accepted "As the offences are old offences, regard has to be had to sentencing patterns of the past". The criticism by the Appellant is that having recognised the principle, his Honour failed to apply it appropriately.
245A matter which was troubling his Honour was that although he had been referred to historical cases, none were truly comparable because none involved the same degree of breach of trust and predatory conduct. This was a clear reference to the "Table of sentences imposed for comparable cases" which had been provided to his Honour and which listed thirteen cases. Some of those cases related to similar or more serious types of indecent assaults. Some of those cases involved a breach of trust in that the offence was committed by a family member. However, as his Honour pointed out, there were no cases involving facts such as were before him, except perhaps the matter of Ryan. In Ryan, of course, the offences were more serious and the sentences were substantially heavier.
246The significant matters which his Honour took into account were that the Appellant had offended against three victims for more than five years and had used his position as a priest to gain access to them. It was accepted by the defence on sentence that the offending entailed a gross breach of trust. It was not, as the Appellant's submissions assert, that his Honour was "preoccupied" with the nature of the breach of trust. Rather, the nature of the breach of trust was a very distinctive part of the offending and constituted a most important consideration when assessing the objective seriousness of the offences individually and the offending as a whole.
247When one takes into account the following matters, it is clear that his Honour did have regard to historical sentencing patterns and that had the Appellant been sentenced in accordance with current sentencing standards, his sentence would have been substantially longer. There were three complainants and the offending took place over 5 years. All offences involved indecent assaults. There were 9 offences. The maximum penalty for all but the last offence was 6 years imprisonment. The last offence had a maximum penalty of 4 years imprisonment. Although his Honour imposed an aggregate sentence, there was a considerable degree of concurrence. The offences against PR involved some force and those against MG were predatory in nature and escalated over time.
248Against that background, and given the unusual features of the offending, it cannot be said that his Honour failed to have regard to sentencing principles appropriate to offences which had been committed many years in the past.
249The Appellant submitted that his Honour's approach to fixing indicative sentences was erroneous in that he imposed the maximum penalty (6 years imprisonment) in respect of counts 9 and 10.
250In relation to those counts, his Honour said:
"The worst offences are counts 9 and 10 and I have decided to impose a maximum sentence on him for these two offences. This reflects my view that notwithstanding the offences are old ones, they are very serious ones. The maximum sentence available is really not sufficient, but if any offender engaged in such actions now he would be liable to larger penalties for offences that are now expressed somewhat differently."
251The Appellant submitted that while the conduct amounted to a gross breach of trust, the nature of the acts involved could not be regarded as the worst case of indecent assault. This was particularly so when it was conceded by the Crown in submissions that the offences overlapped. The Appellant submitted that whether there were now in existence greater penalties for the offences was irrelevant. The correct inquiry was where in the range of the then available sentences the Appellant's conduct stood.
252Some of the indicative sentences set out by his Honour are high. That is not determinative. Button J (with whom McClellan CJ at CL and Garling J agreed) said in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]:
"227 ... However, it must be remembered that the indicative head sentences cannot be the subject of an appeal to this Court. It is only the aggregate head sentence and aggregate non-parole period that can be the subject of an appeal. It follows that it is not a matter of this Court analysing each indicative sentence and determining whether it is erroneous. Rather, it is a matter of looking at the whole of the sentencing structure in order to determine whether the aggregate sentence can stand or not."
253In PD v R [2012] NSWCCA 242 at [44] Beech-Jones J (Basten JA and Hall J agreeing) said in relation to appeals against aggregate sentences:
"44 ... An indicative sentence is not itself amenable to appeal but an "erroneous approach in the indication of the sentence that would have been imposed for an offence may well reveal error in the aggregate sentence reached" (R v Brown [2012] NSWCCA 199 at [17] per Grove AJ with whom Macfarlan JA and McCallum J agreed). However, that is not necessarily the case. The materiality of any error in an indicative sentence to the overall aggregate sentence will need to be demonstrated before this Court would intervene. ... "
254Given the seriousness of the offending in counts 9 and 10, the aggregate sentence while high was within the range of sentences for offences of this kind. No error has been demonstrated in the aggregate sentence imposed by his Honour. Even if there were error, no lesser sentence is warranted in law (s6(3) Criminal Appeal Act 1912).
Conclusion
255The orders which I propose are as follows:
(1) With respect to Grounds of Appeal 1 - 9, the appeal is dismissed.
(2) Leave to appeal is granted with respect to Ground of Appeal 10 but the appeal is dismissed.
256DAVIES J: I agree with Hoeben CJ at CL.
257ADAMSON J: I agree with Hoeben CJ at CL.