[2009] NSWCCA 306
Hughes v The Queen (2017) 263 CLR 338
[2017] HCA 20
IMM v The Queen (2016) 257 CLR 300
Source
Original judgment source is linked above.
Catchwords
316 ALR 206
Festa v The Queen (2001) 208 CLR 593[2001] HCA 72
Ford v R (2009) 201 A Crim R 451[2009] NSWCCA 306
Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14
M v The Queen (1994) 181 CLR 487[1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35
McPhillamy v R [2018] HCA 5292 ALJR 1045
MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
Papakosmas v The Queen (1999) 196 CLR 297[1997] HCA 37
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
R v BD (1997) 94 A Crim R 131
R v XY (2013) 84 NSWLR 363[2013] NSWCCA 121
SKA v The Queen (2011) 243 CLR 400[2011] HCA 23
Taylor v R [2020] NSWCCA 355
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
The Queen v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56[2018] HCA 40
TL v The King [2022] HCA 35
Judgment (25 paragraphs)
[1]
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Director of Public Prosecutions (Crown)
File Number(s): 2019/306111
[2]
Judgment
SIMPSON AJA: On 6 May 2021 the applicant was arraigned in the District Court on an indictment that charged him with two counts of offences against provisions of the Crimes Act 1900 (NSW), they being:
Count 1: Intentional sexual touching of a child between 10 and 16 years, an offence against s 66DB(a) which carries a maximum penalty of imprisonment for 10 years;
Count 2: Sexual intercourse with a child aged between 10 and 14 years, an offence against s 66C(1), which carries a maximum penalty of imprisonment for 16 years, and is subject, pursuant to Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") to a standard non-parole period of 7 years.
The applicant entered a plea of not guilty to each count and a jury trial proceeded. On 18 May 2021 the jury returned unanimous verdicts of guilty on the first count and not guilty on the second. On 21 July 2021, pursuant to s 8 of the Sentencing Procedure Act, a community correction order was imposed.
The applicant seeks leave to appeal against the conviction on Count 1. He requires leave because the grounds on which he proposes to rely involve questions of mixed law and fact: Criminal Appeal Act 1912 (NSW) s 5. He has not sought leave to appeal against the penalty imposed.
The applicant has identified two proposed grounds of appeal against conviction. They are:
(1) that tendency evidence was wrongly admitted.
(2) that the verdict of guilty on count 1 was unreasonable.
[3]
Background
It is uncontroversial that the applicant and the complainant's older brother had been friends for some years. The applicant was a frequent visitor to the complainant's home and developed a friendship with the complainant and the family as well as with the complainant's brother. The applicant and the complainant socialised together at times. The applicant also became friendly with other friends of the complainant, including two school friends who may be referred to JR and XB, both of whom were the same age as the complainant.
Put briefly, the Crown case was that both offences on the indictment were committed on the same occasion, an evening between 1 October 2018 and 31 January 2019, in the home of the complainant, when the applicant was 20 years of age and the complainant was 11 years of age. The Crown alleged that on that evening the applicant and the complainant were seated on a lounge watching a movie. The applicant put his hand inside the complainant's clothing and touched his penis (Count 1) and then pulled down the complainant's pants sucked his penis (Count 2).
The relevant chronology thereafter is as follows:
1. in about August 2019, in circumstances to be more fully described below, the complainant told his mother that the applicant had sucked on his penis. He initially said that it had been a dream that he had;
2. it appears that police became involved by early September 2019;
3. on 9 September 2019 the complainant participated in a video-recorded interview with an officer (Detective Davis) of the Joint Investigation Response Team ("JIRT") in which the complainant gave an account of the offences alleged;
4. on 13 September 2019 the complainant's friends JR and XB participated in video-recorded interviews with Det Davis;
5. on 24 September 2020 the Crown served notice on the applicant's legal advisors of its intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW); the notice identified the evidence on which it proposed to rely as that of the complainant and JR, as recorded in their responses in the JIRT interviews;
6. on 28 September 2020, pursuant to the provisions of Pt 29 of Sch 2 of the Criminal Procedure Act 1986 (NSW) evidence (including evidence in cross-examination) proposed to be adduced in the trial from the complainant was taken and video recorded, as was evidence proposed to be adduced from XB;
7. on 9 October 2020 evidence (including evidence in cross-examination) proposed to be adduced in the trial from JR was taken and video recorded;
8. on or about 27 January 2021 the Crown issued an amended tendency evidence notice, identifying the tendency evidence on which it proposed to rely as that of the complainant and JR, as recorded in their JIRT interviews and their pre-recorded evidence;
[4]
The complainant's evidence
The complainant's evidence as recorded in the JIRT interview was that, on a date that he did not recall but which was before Christmas 2018, he and the applicant were in the lounge room of his home watching a movie on television. His parents were in bed. Nobody else was present. The complainant said that the applicant tried to put his hand on the complainant's genitals, the complainant tried to push him away, but he "wouldn't really stop". He said that the applicant put his hand on the complainant's penis, inside his clothing.
When asked what happened next, the complainant said that he could not really remember, but that he tried to move away and that the applicant followed him. He said that the movie ended and he thought that the applicant went home.
In answer to a direct question the complainant said that nothing else had happened with the applicant. Det Davis pressed the complainant for more information; he began by emphasising that the complainant was not in any trouble, and that he could talk about anything he wanted to talk about. When asked next if there was anything the complainant did not want to talk about the complainant replied "sort of" and "I don't really know". He agreed that the questioning made him "a little bit uncomfortable".
After a short break Det Davis reminded the complainant again that he was not in any trouble, and that his (Det Davis') role as a police officer was to make sure that the complainant was safe. Det Davis asked the complainant who he had told about what had happened. The complainant nominated JR, as well as XB. He said that JR had told his (the complainant's) mother.
Det Davis then asked if the complainant had told JR that the applicant had sucked on his penis, to which the complainant replied "Yeah". He could not explain why he had not mentioned this previously. He said that talking about it made him feel uncomfortable. The transcript of the interview, which was before the jury as an aide memoire, records that the complainant was crying at this point.
After some other questions, apparently designed to put the complainant at ease, Det Davis returned to the subject, and asked what happened after the applicant touched the complainant on the penis. The complainant replied:
"He just started to suck on my penis and then I tried to push him away and then after that he went home."
The complainant said that his pants were off because the applicant pulled them off, although the complainant had tried to stop him.
[5]
The tendency evidence
The proposal of the Crown with respect to the tendency evidence was finally formulated in the amended tendency evidence notice dated 27 January 2021, which identified the tendency evidence on which the Crown proposed to rely as that of the complainant and JR, as recorded in their JIRT interviews and in their video-recorded evidence.
In his JIRT interview and later in his video-recorded evidence JR gave an account of an incident in which, he asserted, the applicant had sexually touched him, and another incident in which, he asserted, the applicant had attempted to do so. The first incident, on JR's account, took place at the complainant's home, where JR was "sleeping over", on the same occasion as the events that gave rise to the counts on the indictment. JR said that the complainant had gone to bed, JR and the applicant were on a couch, and JR was lying on his back with his head in the applicant's lap. The applicant was patting JR's leg. JR said that he told the applicant that he did not mind him doing that, but not to touch him anywhere else. He said that the applicant then patted his "private part" (which he later said was his penis).
The second incident, JR said, took place at the home of a cousin of the applicant on an occasion when the complainant was also present. JR was not specific about the timing of this event. JR said that he was sitting on a sofa between the complainant and the applicant, under a blanket. JR said that the applicant:
"…put his hand there and, and I, like, had my hand there so he won't, like, touch and I thought, like, he was trying to, like, move it or something."
JR said that he shouted the applicant's name and the applicant desisted.
Objection was taken on behalf of the applicant to the admission of the proposed tendency evidence. A hearing as to its admissibility took place on 9 February 2021 before Gartelmann SC DCJ. On 12 February 2021 his Honour ruled that the evidence would be admitted, giving reasons. His Honour applied the tests imposed by s 97(1) and s 101(2) of the Evidence Act, and held (i) that the evidence had significant probative value, (ii) that its probative value substantially outweighed any prejudicial effect that it may have on the applicant; and (iii) that any prejudicial effect could be cured by appropriate directions.
[6]
Disclosure evidence
There was a degree of confusion in the evidence concerning what was referred to as "complaint evidence" (but which might more accurately be called "disclosure evidence"). A chronology is difficult to discern. The complainant was asked in the JIRT interview who he had told about the events. He nominated JR and XB (although he thought it possible that it was JR who had told XB). The complainant was unable to be specific about when he had made the disclosure, beyond saying that it was when he was in year 6 (which was 2018). JR said in his JIRT interview that he did not think that the complainant told him himself, because the complainant knew that JR was already aware of what had happened. In his pre-recorded evidence JR said that the complainant had told XB, and had given XB permission to pass on the information to JR.
The following is drawn from the evidence of JR's mother (MR) and the complainant's mother. It was not disputed. At an unspecified time, JR told MR that he was uncomfortable with the way the applicant was behaving towards him (although he does not appear to have made any explicit disclosure of sexual conduct). He asked her if it was normal that the applicant wanted to sit down and cuddle him (and the complainant) while they were watching movies, and to put his arms around them. He then told MR that "[the applicant] had touched [the complainant's] penis with his mouth." He said that the complainant thought he was dreaming.
MR contacted the applicant and asked him to call on her. He did so and MR asked him about his conduct but did not put to him any specific allegation. The applicant denied any wrongdoing.
MR then contacted the complainant's mother and reported what JR had told her. The complainant's mother then had a conversation with the complainant. She asked him whether the applicant had touched him inappropriately. The complainant asked why she was asking, and then answered, "no, mummy". A few days later the complainant did not want to go to school. He went to his mother's bedroom and began to cry. She asked "are you ready to tell me the truth?" and "Is that why you're upset this morning?". The complainant then told her that the applicant had sucked on his penis. Initially, he said that it was a dream.
[7]
Defence evidence
Evidence was given in the defence case by the applicant's mother, Tanya Burns, and his aunt, Debbie Moller.
[8]
Tanya Burns
Ms Burns gave evidence that the family (including the applicant) moved to Queensland on 5 March 2018. She said that after the move she and the applicant on occasions travelled to NSW for visits and stayed with relatives. In August 2019 she and the applicant came to NSW for the funeral of her brother.
Ms Burns described the applicant as:
"… a kind, caring, loving, gentle soul"
She said:
"He don't drink, don't smoke, doesn't go to pubs or clubs. He's just a sweet person."
She said that the applicant suffers from a number of conditions including Asperger's Syndrome, Tourette's Syndrome, anxiety and Attention Deficient Hyperactivity Disorder, as a result of which he is "scared to do things" and is not a "risk taker". She said that she had never witnessed the applicant behave sexually inappropriately. She did not believe that the applicant could have done what the complainant described him as having done, because he would not "harm a fly".
Over objection Ms Burns was permitted to give evidence of a conversation she had with her sister in which she disclosed that she had been sexually molested for years as a young child. She said that the applicant overheard the conversation and was "distraught" and "angry" and was physically sick. (The point of this evidence was to indicate the unlikelihood that the applicant would himself have engaged in such conduct.)
[9]
Ms Moller
Ms Moller described the applicant as:
"… kind. He's got a good heart. He's funny. He's humorous and he's trustworthy and honest."
Ms Moller said she "definitely" did not think that the applicant could have behaved as alleged by the complainant. She had never seen him behave in a sexually inappropriate way. There was "definitely" no possibility that he could have committed the offences charged.
[10]
The application for leave to appeal
Section 6(1) of the Criminal Appeal Act specifies three bases on which a conviction may be set aside by this Court. They are:
1. that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence;
2. any wrong decision on a question of law, and
3. that there was a miscarriage of justice.
[11]
Ground 1: the admission of the tendency evidence
Ground 1 of the proposed appeal, as formulated ("The tendency evidence of JR was wrongly admitted") is directed to the decision of Gartelmann DCJ to admit JR's evidence as tendency evidence, thus invoking the second limb of s 6(1).
[12]
(i) s 97(1)
By s 97(1) of the Evidence Act tendency evidence is not admissible unless the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party tendering the evidence, have significant probative value. The "probative value" of evidence, as described in the Dictionary to the Evidence Act is:
"…the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue [in the proceeding]."
In criminal proceedings an additional restriction is placed on the admissibility of tendency evidence by s 101(2). As it applied at the relevant time s 101(2) provided:
"(2) Tendency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
Subsection (2) has been amended, with effect from 1 July 2020, with respect to proceedings the hearing of which began before that date, so as to remove the adjective "substantially", so that the restriction is on the admission of tendency evidence unless its probative value outweighs the danger of unfair prejudice to the defendant. It was and is common ground that the applicable version of s 101(2) is the unamended version: see the discussion by Kirk JA in Bektasovski v R [2022] NSWCCA 246 at [37]-[52].
Since the date on which the offences were alleged to have been committed, the Evidence Act has been amended by the insertion of s 97A, which provides that, in the prosecution of child sexual offences (as was the present case), certain tendency evidence is presumed to have significant probative value. That provision does not apply to the present proceeding.
The admissibility of the proposed tendency evidence is determined by the court by reference to its capability rationally to affect the probability of the existence of a fact in issue: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [38] ("IMM"). Admissibility is ordinarily decided at a point in the trial before the evidence in the trial is complete: R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [170] ("XY"), endorsed in IMM at [51]. For admissibility purposes, in the assessment of probative value, the court is to take the evidence at its highest - that is, to assume that it will be accepted by the jury: IMM at [44].
[13]
(ii) section 101(2)
"Unfair prejudice" may arise when there is a real risk that a jury may misuse the evidence - that is, use it for purposes other than that for which it is tendered: R v BD (1997) 94 A Crim R 131 at 139, cited with approval by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1997] HCA 37 at [91]; and see examples of potential unfair prejudice given in Hughes at [17]; Taylor v R [2020] NSWCCA 355 at [122(xxiii)] ("Taylor").
It must first be said that all evidence tendered in a Crown case (other than that tendered in the discharge of the Crown's overriding duty of fairness) is intended to make conviction more likely. In that sense, it could be said to be prejudicial: XY at [191]-[192] (Blanch J). That is not what is meant by "unfair prejudice" in s 101(2). The question is whether a danger of unfair prejudice arises from the use of the evidence. Evidence is not (unfairly) prejudicial merely because it strengthens the prosecution case. It is unfairly prejudicial only when the jury is likely to give the evidence more weight than it deserves, or when the nature or content of the evidence may improperly influence the jury or divert the jurors from their task: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [51] (McHugh J).
In determining whether a danger of unfair prejudice has been established, it is appropriate to have regard to directions that can be given to circumvent any potential misuse of the evidence: XY at [192].
[14]
The tendency evidence notice
In the amended tendency evidence notice the Crown identified the tendencies which it sought to establish as:
"● [the applicant's] tendency to have a particular state of mind, namely his sexual interest in males aged 11 years old; and
● [the applicant's] tendency to act on that sexual interest, namely his tendency to sexually touch or attempt to sexually touch males on their genitals at aged 11 years old, and in circumstances they are known to him."
The Crown specified four "common features" of the allegations of the complainant and JR as relevant to establishing the asserted tendencies. These were:
"● The allegations concern boys aged 11 years;
● The allegations concern boys that were known to [the applicant];
● [The applicant] took advantage of his position of trust and/or authority to create opportunities to offend; and
● In relation to the sexual touching of the complainant … (Count 1), and one incident of sexual touching of JR, the [applicant] was seated on the lounge at the complainant's home while others were present."
The Crown made it clear that it sought to rely on JR's evidence in relation only to Count 1 on the indictment. It disclaimed any reliance on the evidence in support of Count 2.
[15]
The applicant's argument
The applicant did not dispute that JR's evidence had probative value. He contended, however, that the probative value of the evidence did not rise to the level of "significance", and that, in any event, on the application of s 101(2), whatever probative value the evidence had did not substantially outweigh any prejudicial effect it may have had on the applicant.
[16]
Was the probative value of JR's evidence significant?
The fact in issue to which JR's evidence was directed was the complainant's contention that the applicant had touched him on the penis.
A number of factors may bear upon the assessment of whether the probative value of proposed evidence is "significant": see generally Taylor at [122(xiv)]. These include:
(i) the number of times the asserted tendency has manifested itself;
(ii) the similarity of the circumstances in which the conduct the subject of the tendency notice occurred;
(iii) the distance in time between the events giving rise to the tendency evidence and the events giving rise to the charges;
(iv) the identity of the witnesses from whom the tendency evidence is adduced;
(v) the generality in which the tendency sought to be established is expressed;
(vi) the existence of other evidence relied upon by the Crown to prove the underlying charges.
A number of these circumstances were called in aid of the applicant's submissions. First, it was submitted that JR's evidence had "at best, basal significance", and that it was evidence of "such a high level of generality" that it could not satisfy the description "significant".
I would reject these propositions. In my opinion, far from having a high degree of generality, the evidence of JR was quite specific. While, to merit the description "significant", it is not necessary that the conduct relied upon display marked similarities to the conduct the subject of the charge(s) (see Hughes at [34], [37], [39]), nevertheless, the existence of such similarities remains relevant and cannot but enhance the weight - and therefore the significance - of the evidence. Contrary to the submissions of the applicant, there were, in this case, marked similarities in the conduct attributed to the applicant by JR and that attributed to the applicant by the complainant in relation to Count 1. In each case the conduct was alleged to have been committed in the evening, on a social occasion, when the applicant and the complainant (on the one hand) and JR (on the other) were on a lounge. The alleged victim of the conduct in each case was an 11-year-old boy, known to the applicant. More importantly, the conduct itself alleged in each case - touching, or attempting to touch, the victim on the penis - has close similarities. The evidence of JR had a high degree of relevance by reason of the similarities in the conduct that he alleged to the conduct alleged by the complainant. These were the "common features" that may demonstrate a tendency to act in a particular way: Bauer at [58]. The same conduct demonstrates a tendency to have the particular state of mind (a sexual interest in young males) alleged by the Crown.
[17]
Did the probative value of JR's evidence substantially outweigh any prejudicial effect that it may have on the applicant?
The second limb of the applicant's argument was that the probative value of JR's evidence did not, in any event, substantially outweigh any prejudicial effect that the evidence may have had on the applicant.
No unfair prejudice was here shown. Indeed, no attempt was made to identify any particular prejudice beyond what is inherent in any tendency evidence. The legislature has determined that tendency evidence is, within stated boundaries, to be admissible. When deciding that the evidence would be admitted, Gartelmann DCJ recognised that appropriate directions could be given to the jury to ameliorate any potential misuse of the evidence. In her summing up to the jury, about which no complaint is made, the trial judge, Beckett DCJ, gave precisely such directions. No danger of unfair prejudice has been shown.
I am satisfied that the tendency evidence was rightly admitted, and, perhaps more importantly, that no miscarriage of justice has resulted from its admission. I would reject Ground 1.
[18]
Ground 2: the verdict of guilty on Count 1 was unreasonable
[19]
Applicable legal principles
The test to be applied where it is asserted that a verdict of guilty is unreasonable or unable to be supported having regard to the evidence dates back at least to the decision of the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M") where Mason CJ, Deane, Dawson and Toohey JJ said (at 493):
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted)
Their Honours went on to say (at 494):
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (internal citations omitted)
In every case it is necessary that the court undertake its own independent assessment of the evidence, both as to its sufficiency and quality, in order to determine whether the accused person has been shown, beyond reasonable doubt, to be guilty of the offence charged: M at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 23 ("SKA"). At the same time, it is necessary that the court pay due deference to the constitutional role of the jury in determining questions of fact in a criminal trial, and to have due regard to the advantage the jury enjoys over the appellate court in seeing and hearing the witnesses called at trial: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].
[20]
The applicant's contentions
On behalf of the applicant it was contended that the verdict of guilty on count 1 could not be supported because:
(i) the verdict of guilty was inconsistent with the verdict of not guilty on count 2;
(ii) the evidence demonstrated the absence of, or the limited opportunity, for the applicant to commit the offence;
(iii) there were significant discrepancies between the evidence of the complainant and JR;
(iv) the manner in which the complainant's allegations emerged made it unreliable; and
(v) the finding of guilt was not in accord with the character evidence
[21]
(i) and (iv) inconsistency
The first point made on behalf of the applicant was that the acquittal on Count 2 reflected seriously on the reliability and credibility of the complainant's evidence, such that, it was submitted, his evidence in respect of Count 1 could not be accepted. Particular emphasis was placed on the circumstance that, as described by the complainant, the act of fellatio that constituted the offence the subject of Count 2 followed immediately upon the conduct the subject of Count 1. The conduct alleged to have constituted the Count 2 offence should be regarded as "an evolution and continuation of the conduct" the subject of Count 1. That being the case, the conduct constituting the offence the subject of Count 2 was "inseparable" from the conduct constituting the offence the subject of Count 1. Both counts depended on the reliability of the complainant's evidence. If his evidence could not be accepted with respect to count 2 it was no more reliable in respect to count 1. The verdict of guilty of Count 1 could not be reconciled with the acquittal on Count 2.
I do not accept these contentions. There are many potential reasons for a jury to return different verdicts in respect of allegations made by the same complainant. It is well established that, where it is said (as was at the heart of the submissions in this case) that the different verdicts are inconsistent and cannot be reconciled, the test is one of "logic and reasonableness": MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366 ("MacKenzie").
The issue has arisen frequently in cases of sexual offending. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said (at [34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of the jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases [including MacKenzie]: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed."
(An amendment to the Jury Act 1977 (NSW), post-dating the decision in MFA, permitting, in some cases, majority verdicts in criminal trials does not affect the force of the reference to the importance of unanimity, which is still required of the jurors participating in the majority verdict.)
[22]
(ii) opportunity
The next point made on behalf of the applicant concerned his opportunity to commit the offence within the time frame specified in the indictment, that is between 1 October 2018 and 31 January 2019. That range was narrowed by the complainant's evidence that the offences were committed after Halloween (31 October 2018) and before the complainant's brother's birthday (4 December 2018). JR agreed that the events occurred in 2018, although he was less specific about when.
The applicant's mother gave unchallenged evidence that she and the family, including the applicant, relocated to Queensland on 5 March 2018, and lived there, with intermittent visits to NSW, including for a family funeral on 20 August 2019. On that occasion the applicant stayed with his cousin. (Given the date range on the indictment, the attention paid to the evidence of the August 2019 visit is best seen as something of a distraction.)
Enquiries made by Det Davis (by reference to telephone and travel records) established that the applicant was in Queensland from 31 November 2018 until 4 January 2019, and that, from 4 January 2019 until 9 January 2019 he was in NSW, in the locality of the complainant's home. As was acknowledged on behalf of the applicant, that left open the whole of November 2018 when the offence could have been committed. That is entirely consistent with the complainant's evidence.
[23]
(iii) discrepancies between the evidence of the complainant and JR
The applicant then pointed to inconsistencies in the evidence given by the complainant and JR. One asserted discrepancy lay in the evidence of disclosure. The complainant said in his JIRT interview that he had told JR; JR said that he had learned of the incident from XB who had been given permission by the complainant to pass it on. In my opinion, bearing in mind that the evidence was given by sub-adolescent boys, 9 months after the events, these differences are of no moment. It is hardly surprising that they have slightly different recollections of the circumstances in which the complainant's allegations became known to his friends. What is clear is that the complainant's circle of friends were aware, from an early date, of the allegations.
The major discrepancy between the evidence of the complainant and JR concerns the circumstances in which the complainant alleged that the offences against him had been committed. The complainant's evidence was that nobody was present in the house except his parents (who were in bed), the applicant and himself. JR's evidence was that the first incident that involved him occurred at the complainant's home, on the same evening as the offences the subject of the counts on the indictment, but after the complainant had gone to bed (although he gave no evidence of having seen or having been aware of, any conduct of a sexual kind towards the complainant before the complainant went to bed) and that the conduct towards him occurred later in the night. The evidence of the complainant and JR on this issue is irreconcilable.
In my opinion this discrepancy is of some significance. I have considered whether it is such as to warrant the conclusion (using the language of Pell) that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of the applicant's guilt on Count 1.
This is not a question that can be resolved by recourse to the advantage of the jury in seeing and hearing the evidence of the complainant. It has not been suggested that the assessment of the reliability of the complainant's evidence (or that of JR) depends upon observation of their demeanour. The Court was not invited to watch (and I have not watched) the video recordings of either of the JIRT interviews or the pre-recorded evidence. The videos were not included in the papers provided to this Court and no complaint was made by either party, nor was any suggestion made that the independent assessment of the evidence required by SKA and other cases would be assisted by the Court's viewing that material. There could be no restraint in doing so; the video recordings were the evidence that the jury saw, and the applicant did not give evidence, so no "imbalance" of the kind acknowledged in SKA could result.
[24]
(v) character evidence
The final matter relied upon on behalf of the applicant concerned the evidence given by his mother, Tanya Burns, that the applicant suffers from anxiety, and is not a "risk-taker", was averse to sexual abuse of children and is unlikely to have done anything serious that would result in detection by an adult.
This evidence does not alter my assessment that the jury were entitled to conclude that, on the occasion in question, the applicant did conduct himself as the complainant alleged. In addition to considering (and rejecting) each of the individual criticisms made on behalf of the applicant, I have considered their cumulative weight. Having done so, the combined weight of the matters relied upon by the applicant has not caused me to have a reasonable doubt about the evidence of the complainant.
Having examined the whole of the evidence, I am satisfied that it established, beyond reasonable doubt, the applicant's guilt of the Count 1 charge. I accept that the offence may well have been spontaneous and opportunistic. Particularly in the light of the tendency evidence, I am satisfied, beyond reasonable doubt, that the applicant was guilty of the Count 1 offence.
I would therefore reject ground 2 of the proposed appeal. It follows that, although I would grant leave to appeal, I would dismiss the appeal.
The orders I propose are:
Leave granted to appeal.
Appeal dismissed.
FAGAN J: I agree with the orders proposed by Simpson AJA and with her Honour's reasons.
With respect to ground 1, it is relevant that the applicant was nearly 10 years older than both the complainant and the tendency witness, JR. The applicant was aged 20 years when the offending in count 1 and the two incidents concerning JR occurred. Both the complainant and JR were about 11 years old. The applicant's conduct towards JR - patting his genitals on the outside of his clothing on one occasion and moving his hand towards that area and stopping only when JR shouted his name on the second occasion - occurred in similar circumstances to the incident alleged in count 1. Each event of actual or attempted sexual touching took place in the home of either JR or the complainant when one of the boys was seated next to the applicant on a couch. JR's account of the two instances concerning himself was capable of being accepted by the jury and, if accepted, would significantly support the tendencies relied upon by the Crown. Those tendencies would in turn be significantly probative of count 1. There was no error or miscarriage of justice in the reception of JR's tendency evidence.
[25]
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Decision last updated: 07 August 2023
On or about 2 October 2019, following the complainant's JIRT interview, the applicant was arrested in Queensland (where he was then residing) and extradited to New South Wales and charged.
The trial commenced on 6 May 2021. In accordance with the provisions of Ch 6, Pt 6, Div 3 of the Criminal Procedure Act and Pt 29 of Sch 2 thereof, the video recordings of the JIRT interviews and the video recorded evidence of the complainant, JR and KB were played to the jury.
Evidence was also given in the Crown case by JM (the mother of XB), the mother of the complainant, the older brother of the complainant, the mother of JR (MR) and the investigating police officer, Det Davis (who had conducted the JIRT interviews). The applicant did not give evidence. Evidence was given in the defence case by his mother, Tanya Burns, and his aunt, Debbie Moller.
The complainant said that he remained friends with the applicant via social media.
The complainant's pre-recorded evidence given on 28 September 2020 was to similar effect. He was taken through the transcript of the JIRT interview. He was asked to describe what the applicant had done, to which he replied:
"So he pulled my pants about halfway down and then he pulled my underwear about the same and then he started - he put his mouth over my penis."
He said that he had not said anything to the applicant at the time because:
"…I was scared I was gonna get hurt by him."
The complainant said that his parents had gone to bed at around 9 pm and the conduct of which he spoke had occurred at about 10 pm or 10.30 pm. He said that he felt "really anxious and really scared and sad". He said that he felt sad because he knew the applicant "as a really good friend and then he did that". He said that he was "really flustered and really shocked that he'd do something like that".
The complainant said that he did not initially tell his mother because:
"it was really hard to tell her and talk to her about it, 'cause it was very, very awkward … he was one of my friends and he did that to me."
The complainant said that he had told his mother and brother and JR that he thought what had happened was a dream, because:
"I thought [the applicant] was a good person and that he wouldn't do something like that to me. So my mind thought he was a good person and I tried to stop myself from thinking that he would do something like that."
The complainant said, however, that the evidence he had given was the truth.
The complainant said that his brother had asked him some questions, that he found that it "was really hard and awkward" to tell him, but eventually he did report something to his brother.
In cross-examination the complainant was pressed about the timing of the incident of which he complained. He maintained (as he had said in the JIRT interview) that the incident took place before Christmas 2018, but not in December. He thought it would have been November. That was because he remembered going to a Halloween party (31 October) which was before the incident (that is, the incident occurred after Halloween and before Christmas). Despite having earlier said that it was not in December, the complainant agreed that it could have been early in December, but before his brother's birthday which was on 4 December.
The complainant agreed that in July 2019 he had visited the applicant in Queensland and that, while there, he had felt comfortable with the applicant.
The complainant said that at the time of the incident, the applicant was living at a New South Wales address. He did not think that JR was present in the house on the occasion of the offences, nor was his brother or XB, but his parents were in their bedroom with the door closed.
The question raised for determination when the ground of appeal is that there has been a wrong decision on a question of law necessarily focuses attention on the decision to admit the evidence - in this case, the decision of Gartelmann DCJ. Different issues may arise where the ground asserted is that the admission of the evidence caused a miscarriage of justice. In that case, the focus is on the use made of the evidence in the trial: McPhillamy v R [2018] HCA 52; 92 ALJR 1045 at [11], citing The Queen v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] ("Bauer"). The evidence given in the trial may, for example, not conform to the evidence by reference to which the decision to admit was made. This makes the framing of the ground of appeal an important consideration: Elomar v R [2014] NSWCCA 303; 316 ALR 206 at [165]-[167]; Bektasovski at [2]-[3], [55]-[66].
In this case, the evidence on which Gartelmann DCJ determined admissibility is precisely the evidence that was presented to the jury - the JIRT interview and the pre-recorded evidence of JR, taken together with the JIRT interview and the pre-recorded evidence of the complainant. The first question for determination is whether JR's evidence had the capacity rationally to affect the assessment of the probability of the existence of a fact in issue in the trial. That requires attention to the fact in issue to which the evidence is directed.
Once it is determined that the proposed evidence has that capacity, the next question is whether that probative value is "significant". Evidence is significant if it is "important" or "of consequence": IMM at [46]. The significance of evidence depends upon the nature of the fact in issue to which it is said to be relevant and the significance or importance of the evidence in establishing that fact. To be significant the evidence must be influential in the fact-finding exercise: IMM at [46] citing Cross on Evidence, 10th Australian ed (2015) at 763. To be of significant probative value, the evidence must be assessed, by the judge, to make more likely, to a significant extent, a fact in issue in the proceedings: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 ("Hughes") at [40], citing Ford v R (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [125].
In the assessment of the probative value of evidence two interrelated but separate questions arise:
1. to what extent does the evidence support the tendency sought to be established?;
2. to what extent does that tendency (if established) make more likely the facts making up the offence charged?
The High Court has held (in Bauer at [58]), that, where the tendency evidence involves allegations of sexual offences against more than one complainant:
"… the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true."
That same reasoning is capable of being, and in my opinion ought to be, applied where the tendency evidence is of conduct not the subject of a charge, but is given by a witness other than the complainant in the proceedings. That is, in such a case (and the present is such a case), it is appropriate to look for some common feature of the alleged offending.
Most recently, in TL v The King [2022] HCA 35; 96 ALJR 1072 at [28], a unanimous High Court (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) summarised the principles as follows:
"Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and 'having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence'. For evidence to have 'significant probative value', it 'should make more likely, to a significant extent, the facts that make up the elements of the offence charged; in other words, the evidence must be 'important' or 'of consequence' to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged." (internal citations omitted)
The next proposition put on behalf of the applicant was that, because the evidence was sourced from a single witness, its significance was diminished. While the converse is undoubtedly the case - that is, a greater number of witnesses giving evidence of the same or similar conduct will enhance the probative value of the evidence of each witness, and therefore the likelihood of establishing the tendency sought to be established - it is not correct that, where the evidence of a tendency is given by one witness only, that evidence is not capable of achieving significance. In this case, for reasons given above, the probative value of JR's evidence was not diminished by reason of the absence of evidence of the same or similar conduct from other witnesses.
The applicant's next proposition may be dealt with similarly. It was that, because JR's evidence was confined to two discrete occasions or incidents (in support of a single occasion of offending against the complainant) the significance of its probative value was diminished. To be fair to counsel, it was acknowledged that the fact that the number of incidents is "confined" does not preclude a finding that the evidence has significant probative value - rather, the proposition was that caution should be exercised in the evaluation of the significance of the probative value of the evidence. Having exercised that caution, I am satisfied that each of the two incidents of which JR gave evidence was, individually, of significant probative value. When the two are taken together, that value was enhanced.
In a further argument advanced on behalf of the applicant, reliance was placed on what were contended to be "marked" differences between the conduct alleged by the complainant and the conduct alleged by JR. The "marked differences" were that the alleged touching of JR (in the first incident) was a passing contact involving a single "tap" (or "pat") outside JR's clothing, and an attempted touching (in the second incident) which ceased when JR called out the applicant's name. By contrast, it was argued, the allegation of the complainant was that the applicant persisted in the sexual touching over the complainant's resistance, and did so inside his clothing.
I do not regard these differences as "marked". I am satisfied that the overall conduct attributed to the applicant by JR demonstrated, to a significant extent, a tendency to have a sexual interest in young boys and a tendency to take advantage of an opportunity to act on that interest by touching or attempting to touch their genitals. That there were minor differences in the manner in which the applicant was said to have acted on that interest does not detract from the significance of the evidence. The probative value of JR's evidence was significant.
In undertaking that task, the court is to proceed on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. It is then to examine the record to see whether, notwithstanding that assessment, it is satisfied that, either by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence, the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 ("Pell") at [39].
In this case, as the submissions on behalf of the applicant recognised, two obvious possible reasons for the different verdicts present themselves. The first is that the complainant's evidence in respect of Count 1 was strongly supported by the tendency evidence given by JR. As I have found in relation to Ground 1, that evidence gave significant support to the complainant's allegation in relation to the first count. The tendency evidence was expressly not directed to the complainant's allegation in respect of Count 2. The trial judge gave firm and clear directions to that effect, more than once and, indeed, asked the jury to "write down" that the tendency evidence could be used only in relation to their consideration of Count 1. It is very likely that the tendency evidence was influential in the jury's determination of Count 1.
The second reason concerns the manner in which the complainant's evidence in respect of Count 2 was elicited (see [77(iv)] above). Resort to the questioning of the complainant by Det Davis in the JIRT interview shows that the complainant's account of that event was prompted by a direct leading question. Although Det Davis had offered the complainant several opportunities to expand on what he had said about the first offence the complainant was resistant to volunteering anything about the second offence. Eventually, Det Davis asked him directly:
"Did you tell [JR] that [the applicant] had sucked on your penis?"
to which the complainant replied: "Yeah". It was at this point in the interview that the complainant is recorded as having been crying.
In his evidence Det Davis, who was a member of the Sexual Abuse Unit of the Police Force, was asked about questioning children. He said:
"… we try to avoid leading questions because if you ask a leading question then there's always that possibility that they may be just giving you the response because they think that's the response that you want, which is a yes or a no. And yes or a no just pretty much shuts down that question. It doesn't open up any further avenues of questioning really. So we, yeah we want to avoid that."
He agreed that he tried to ask questions "in an open way so that they [the child interviewee] cannot feel pressured to give a particular response".
In this respect the evidence of the complainant's mother is also of significance. The complainant initially denied any inappropriate conduct by the applicant, and, when he did make disclosure, he began by saying that it was a dream.
In the light of this evidence, it may well be that the jury considered that the complainant's reluctance to speak of the fellatio adversely affected the weight to be given to his evidence in respect of Count 2. I do not accept that the verdict of guilty on count 1 was vitiated by inconsistency with the acquittal on count 2.
I have come to the conclusion that, notwithstanding this discrepancy, the jury was entitled to accept the evidence of the complainant as to the commission of the conduct the subject of count 1. The belief of JR that the conduct towards him occurred on the same night as the alleged conduct towards the complainant is explicable by his age, his knowledge of what the complainant alleged, and the passage of 9 months before he was asked to give his account. Confusion over the occasion to which he attributed the conduct does not in a substantial way affect the credibility of his account. Moreover, it is the reliability of the complainant that is in issue in this application.
With respect to ground 2, Simpson AJA has identified two substantial matters that explain how the jury could rationally have found count 1 proved beyond reasonable doubt whilst not being so convinced of count 2. The reasons identified by her Honour accord with my own view of this issue. First, the delayed, halting and tentative manner in which the complainant's allegation of count 2 emerged from him was a source of doubt that did not apply to count 1. Secondly, count 1 was supported by JR's tendency evidence, which was not admitted on count 2, as the jury were directed. The jury exercising appropriate caution about finding facts adverse to the applicant could have been left with a reasonable doubt about count 2 whilst finding no reason for doubt, and stronger support, for count 1. Having reviewed the trial record I am left with no reasonable doubt concerning the count upon which the applicant was found guilty and I consider it was open to the jury to have returned that verdict.
DHANJI J: I agree with the orders proposed by Simpson AJA and with her Honour's reasons. I also agree with the additional observations of Fagan J.