SIMPSON AJA: This is an application, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), for leave to appeal against an interlocutory order of a judge of the District Court made on 14 July 2021.
[2]
Relevant circumstances
The relevant circumstances have a degree of complexity.
The applicant stands charged in a single indictment with four counts of offences of sexual intercourse without consent, brought under s 61I of the Crimes Act 1900 (NSW), and one count of indecent assault brought under s 61L (now repealed) of the Crimes Act. Three complainants are named in the indictment. Essential elements of an offence against s 61I are that sexual intercourse (as defined in s 61HA) took place and that the sexual intercourse was without the consent of the complainant. The first count on the indictment is an allegation of an offence of sexual intercourse without consent against a complainant to whom I will refer as C1. The second and third counts on the indictment relate to a complainant to whom I will refer to as C2. The fourth and fifth counts relate to a complainant to whom I will refer as C3.
All offences are alleged to have been committed in Jindabyne between a range of dates commencing in July 2017 and ending in September 2017.
The Crown alleges that there are common elements to the alleged offences, such as to enliven the tendency evidence provisions in Part 3.6 of the Evidence Act 1995 (NSW) (relevantly ss 97, 101). Accordingly, the Crown served on the applicant's solicitors notice of its intention to adduce tendency evidence. The tendency the Crown identified in an Amended Tendency Notice dated 27 May 2020 was:
"the [applicant's] tendency to perform sexual acts upon young women living in the sharehouse managed by him without their consent and despite their overt resistance or lack of consciousness."
The proposed tendency evidence was, in relation to each of the charges, the evidence of each other complainant. The admissibility (or otherwise) of the tendency evidence was important, because, if the evidence were ruled admissible, all five counts could, without injustice, be tried on a single indictment in a single trial. Section 29 (1) of the Criminal Procedure Act 1986 (NSW) provides that a court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances -
(a) the accused person and the prosecutor consent;
(b) the offences arise out of the same set of circumstances;
(c) the offences form or are part of a series of offences of the same or a similar character.
Paragraph (c) is applicable.
Section 29A requires that a court must hear and determine together proceedings for 2 or more offences if all are alleged to have been committed by the same person, and the offences are charged in the same indictment or listed for hearing on the same day and at the same place, and the prosecutor has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than one of the offences. By subs (2), s 29A is made subject to s 21(2). Section 21(2) 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."
The allegation of C1 was that, on a date between 1 July and 30 September 2017, the applicant forced her to perform fellatio upon him. For present purposes, it is unnecessary to go further than that in relation to the allegations made by C1 or either of C2 and C3. Except for one thing it is unnecessary to outline the evidence the Crown proposes to adduce. The exception lies in one part of the evidence the Crown proposes to adduce in relation to Count 1 (of which C1 is named as the alleged victim). That evidence is a printout of Facebook Messenger messages exchanged between the applicant and C1 over a period of months after the date on which the offence is alleged to have been committed. The Crown had served the printout as part of the brief of evidence on which it proposed to rely. Many of the messages, in particular those sent by C1, are capable of supporting the Crown case that C1 did not consent to the sexual intercourse alleged. Others are more equivocal. One message in the exchange involved C1 telling the applicant that she had not consented to the fellatio, and that she had told him that she was menstruating. The applicant asked her twice, if everything was "okay", to which she replied:
"Yeah, I'm trying to have a kid tbh."
(The Court was told that "tbh" stands for "to be honest").
The applicant offered congratulations, said "that's exciting", wished C1 "good luck on the baby" and added "it will be so cute". C1 responded "WTF" (what the fuck). The printout does not reveal the dates on which these exchanges took place, but C1 said (when she gave evidence) that they were at the start of 2018.
In May 2020 the matter came before Wells SC DCJ for a ruling on the admissibility of the proposed tendency evidence. It is not clear, from the material before this Court, how that came about. No notice of motion (if there was one) was put before this Court. Nor is it clear what orders, if any, were sought. The evidence put before her Honour included the whole of the Facebook messages. On 27 May 2020, Wells SC DCJ ruled that the evidence of each complainant would be admissible in the trial of the charges concerning each other complainant. That being the case, her Honour said:
"The indictment ought not be severed."
A trial was listed to commence in Queanbeyan on 4 November 2020 before Bennett SC DCJ. Prior to the commencement of the trial, on 28 October 2020, the Crown served a revised printout of the Facebook exchanges on which it proposed to rely. The revision involved the redaction of that part of the messaging in which C1 told the applicant that she was "trying to have a kid" and the applicant responded by offering congratulations and "good luck on the baby". The basis for the redaction of the messages was s 293(3) of the Criminal Procedure Act (now s 294CB) which provides:
"293 Admissibility of evidence relating to sexual experience
…
(3) Evidence that discloses or implies -
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible."
"Complainant" is defined in s 290A(1) as:
"a person … against whom a prescribed sexual offence with which the accused person stands charged is alleged to have been committed."
The Crown took the view that the communication by C1 that she was "trying to have a kid" disclosed or implied that she had or may have had sexual experience or had or may have taken part in sexual activity. No response was made on behalf of the applicant to the service of the revised Facebook messages.
The trial before Bennett SC DCJ commenced as scheduled on 4 November 2020. The Crown Prosecutor opened, conventionally, the Crown case to the jury. As permitted by s 159(1) of the Criminal Procedure Act, counsel for the applicant addressed the jury (although arguably, and certainly in the view of Bennett DCJ, he went beyond what was permitted by subs (2) of s 159). What emerges with clarity from the address is that the applicant acknowledged that oral intercourse had taken place, but proposed to raise a defence of consent.
C1 gave evidence on 5 (Thursday), 6 (Friday) and 9 (Monday) November. On Thursday 5 November the redacted version of the Facebook messages was admitted into evidence without objection.
Later on that day, 5 November, during a break in proceedings, counsel for the applicant raised the question of the redaction of the Facebook messages. He sought to insist that the redacted passages remain part of the evidence and that the whole of the Facebook exchanges go into evidence. He wished to rely on C1's communication to him of her attempt to become pregnant as contradictory of the proposition that, at some time before the message was sent, he had sexually assaulted her. As it was put in this Court (as recorded in the transcript):
"… would a person who has been assault[ed] in the fashion alleged, would they engage in voluntarily divulging very personal information about herself[?]".
Bennett DCJ upheld the position taken by the Crown, that the evidence of the exchange, if admitted, would contravene s 293(3) of the Criminal Procedure Act. He ruled that the redacted parts of the Facebook exchange were inadmissible. The trial proceeded before Bennett SC DCJ on that basis, but aborted by reason of illness of the applicant's solicitor. A new trial is scheduled. The Crown has given notice, under s 306I of the Criminal Procedure Act, that it proposes to tender as evidence in the new trial an audio-visual recording of the evidence given by C1 in the trial before Bennett SC DCJ.
On 20 May 2021 the applicant filed a notice of motion in the District Court. He sought three orders, in the alternative, as follows:
1. That pursuant to s 192A Evidence Act 1995, the court giving [sic] a ruling or make a finding that s 293 of the Criminal Procedure Act 1986 does not apply in relation to Facebook text communications that took place between the accused and the complainant in count 1.
In the alternative
2. That count 1 of the indictment be permanently stayed on the basis that the accused cannot receive a fair trial.
In the alternative
3. That count 1 be severed from the indictment and there be a separate trial for count 1.
4. Any other orders the Court deems appropriate.
The reference in Order 1 to s 192A of the Evidence Act 1995 (NSW) was misconceived. Section 192A provides that, where there arises in any proceedings a question of, inter alia, admissibility or the use of evidence proposed to be adduced, the court may, if it considers it appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced.
Bennett DCJ had already, during the course of the aborted trial, made a ruling as to the admissibility, in that trial, of the redacted passages of the Facebook exchanges. What the applicant appears to have been seeking, by Order 1, was to achieve a contrary evidentiary ruling on the same question for the purposes of a subsequent trial.
The notice of motion came on for hearing before Townsden DCJ. The oral argument, that took place on 12 July 2021, centred predominantly on the primary order sought, which was, in effect, a challenge to the ruling of Bennett SC DCJ that the extract from the Facebook messages redacted from the printout was inadmissible by reason of s 293(3) of the Criminal Procedure Act. There was also argument in relation to the second alternative order sought, that Count 1 be severed from the indictment and be the subject of a separate trial. No argument of any substance was addressed to the question of a permanent stay, flagged as the first alternative.
The ruling of Bennett SC DCJ on the s 293(3) question appears to have been presented to Townsden DCJ, and treated by him, as binding by reason of s 130A of the Criminal Procedure Act. Section 130A relevantly provides:
130A Pre-trial orders and orders made during trial bind trial Judge
(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by a trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.
…
(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.
A "pre-trial order" is defined in subs (4) of s 130A as:
"… any order made or given after the indictment is first presented but before the empanelment of a jury for a trial."
The ruling made by Bennett SC DCJ was made during the course of the trial, and after the empanelment of the jury. It was not a "pre-trial order" for the purposes of s 130A(1). It was, however, an order made by a trial judge for the purpose of s 130A(3) and was therefore binding on the trial judge hearing any subsequent trial proceedings relating to the same offence unless the subsequent trial judge considered that it would not be in the interests of justice for the ruling to be binding.
Townsden DCJ applied the test stated in s 130A(1) to the s 293(3) admissibility question and concluded that he was not satisfied, in all the circumstances, that it would not be in the interests of justice for the orders made by Bennett SC DCJ and Wells SC DCJ to be binding. (There was never any issue that the ruling of Wells SC DCJ, that the evidence of each complainant be cross-admissible in the trial, was binding.) It may be accepted that, as the ruling made by Bennett SC DCJ was not a "pre-trial order", but was "an order made by a trial judge in relation to [the discontinued] proceedings relating to the same offence", the relevant provision was subs (3). The test prescribed by subs (3) for departing from such a ruling is identical to the test prescribed by subs (1) for departing from a "pre-trial order". The finding under s 130A(1) should be treated as a finding under s 130A(3).
Townsden DCJ did not expressly address either of the alternative orders sought in the notice of motion, for permanent stay or separate trial of Count 1. He did, however, order that the notice of motion be dismissed, thus effectively refusing an order for permanent stay or an order for separate trial of Count 1.
Section 5F(3)(a) of the Criminal Appeal Act permits an appeal, by leave, to this Court against an interlocutory judgment or order given in proceedings. It is well established that a ruling on evidence is not, for the purposes of s 5F(3)(a), an interlocutory judgment or order: R v Powch (1984) 14 NSWLR 136; Steffan v R (1993) 30 NSWLR 633. Neither the ruling made by Wells SC DCJ nor the ruling made by Bennett SC DCJ is amenable to an application for leave to appeal under s 5F(3)(a). Orders dismissing applications for permanent stay, or for separate trial, are, however, orders of the kind that may be the subject of a grant of leave to appeal under that subsection, even where the substance of the application lies in what is essentially an admissibility of evidence question. But in cases where the substantive order sought is one that is susceptible of a grant of leave under s 5F(3)(a), a strong circumstance against the grant of leave is that the underlying basis for the application, or complaint about the ruling against which leave to appeal is sought, is a preliminary ruling on evidence: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [16], [106], [208]; DSJ v R; NS v R [2014] NSWCCA 77 at [4]-[11] per Gleeson JA.
Subsection (5) of s 5F provides:
"(5) The Court of Criminal Appeal -
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against."
In the application for leave to appeal to this Court the applicant expressed the orders sought as follows:
"1. That Leave be granted to appeal pursuant to s 5F(3)(a) Criminal Appeal Act 1912.
2. That the Orders made by A Townsden DCJ on 14/07/2021 be dismissed.
3. That section 293 CPA [Criminal Procedure Act] does not engage in relation to text message communication between the complainant in Count 1 and the accused.
4. That Order 3 is an advanced [sic] ruling pursuant to section 192A Evidence Act 1995.
5. That the matter be listed for trial on a single indictment.
6. In the alternative to Orders 3 and 5 that section 293 CPA is engaged and Count 1 is severed from the indictment and that there be separate trials.
7. That Order 6 is an advanced [sic] ruling pursuant to section 192A Evidence Act 1995.
8. Any other orders the Court deems appropriate."
It is difficult to make any sense of some of these proposed orders. At the commencement of the hearing counsel took a different course altogether. He sought to amend order 2 by substituting "vacated" for "dismissed" (adopting the language of s 5F(5)(a)). He abandoned reliance on the challenge to the s 293(3) ruling made by Bennett SC DCJ. He accepted that that was a ruling on the admissibility of evidence and outside the scope of s 5F(3)(a) of the Criminal Appeal Act. He therefore accepted that, in the trial of Count 1, the redacted version of the Facebook messages would constitute the evidence. He abandoned reliance on each of the orders proposed as Orders (3), (4) and (5). He maintained the application for a separate trial of Count 1.
The argument advanced on behalf of the applicant was to the following effect. The redacted portion of the Facebook message ("I'm trying to have a kid …") is important to the issue of consent in Count 1. That is because it will be put to the jury that the revelation in a personal message to him of C1's attempt to have a baby is inconsistent with her allegation of non-consensual sexual intercourse, and the jury would be unlikely to accept that a victim of non-consensual sexual intercourse would communicate in those intimate terms with her alleged rapist.
The basis of the separate trial application was the proposition that, while the evidence of the redacted Facebook messages could not be adduced in the trial of the charge involving C1, it could be expected that C1 would be called as a tendency witness in a separate trial of Counts 2 - 5, in which the evidence of those messages would not be excluded by s 293(3). That is because s 293(3) prohibits evidence that discloses that a complainant (as defined in s 290A(1)) has or may have had sexual experience, or taken part in sexual activity. There is no such prohibition in relation to a witness. In a trial of Count 1, s 293(3) would operate; it would not do so in a separate trial of Counts 2 - 5.
Deprivation of the evidence of the redacted parts of the Facebook messages would, the applicant argued, create an injustice that could, in part, be remedied by an order for a separate trial of count 1. In relation to that count, the applicant accepted that he would remain deprived of capacity to make the point that communication of the kind made by C1 was inconsistent with her allegations. However, an order for a separate trial would remove that injustice in relation to a trial of the allegations made by C2 and C3.
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Conclusion
The notice of application for leave to appeal, both as filed, and after abandonment of several of the nominated orders sought, was an undisguised attempt to avoid the consequences of the evidentiary rulings of Wells SC DCJ and Bennett SC DCJ, each of which the applicant conceded was unassailable under s 5F(3) of the Criminal Appeal Act.
In DAO in circumstances not materially dissimilar, a five judge bench of this Court granted leave to appeal but dismissed the appeal. The principal reason for granting leave was that an issue of principle concerning the appropriate test to apply in the determination of an appeal from a ruling on admissibility of tendency evidence had arisen. Spigelman CJ further saw the issue of the admissibility of the tendency evidence in that case as "of potentially critical significance" in the trial.
No such considerations are here involved. No issue of principle arises as to the determination of either Wells SC DCJ or Bennett SC DCJ. Those rulings may, in due course, be tested in the event that the applicant is convicted of all or any of the counts. That is no different to any case in which a ruling on evidence adverse to an accused person is made before or during a trial. It is part of the exigencies of the trial process.
Moreover, it could hardly be said that the excluded evidence is of major, let alone critical, significance. The applicant wishes to have the opportunity to have C1 cross-examined on a Facebook exchange made some months after the events giving rise to Count 1, that, he argues, or hopes, will undermine C1's claim that she did not consent to the oral intercourse.
By s 29A of the Criminal Procedure Act, the prima facie position is that, where tendency evidence is to be adduced in proceedings for two or more counts, a joint trial of those counts will be held. That is subject to s 21(2), (set out above), by which a court may order a separate trial of any count or counts if of the opinion that a joint trial of the counts might cause prejudice or embarrassment to an accused person in his or her defence, or that for any other reason it is desirable that one or more counts be tried separately.
Townsden DCJ was plainly not persuaded that a joint trial of the counts on the indictment would cause prejudice or embarrassment to the applicant in his defence, or that, for any other reason, the applicant should be tried separately on Count 1.
The only reason advanced on behalf of the applicant for the taking such a course was to avoid the statutory prohibition on evidence of the kind ruled inadmissible by Bennett SC DCJ. I am not persuaded that the judgment of Townsden DCJ ought, under s 5F(5)(a) be vacated.
I am not satisfied that the inability of the applicant in a joint trial to cross-examine C1 on the redacted Facebook messages is such as to cause prejudice or embarrassment in his defence; nor is there any other reason to direct a separate trial (s 5F(5)(b)).
I propose that leave to appeal be refused.
ROTHMAN J: I agree with Simpson AJA.
IERACE J: I also agree with Simpson AJA.
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Decision last updated: 15 June 2022