Colquhoun v R

APPEAL GROUND 1: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE ADMISSION AND/OR USE OF EVIDENCE OF SEXUAL INTEREST OF THE APPELLANT 12On appeal the appellant complained of the admission and use made at the trial of the following evidence. As no relevant objection was made by the appellant's counsel at the trial, the appellant is precluded from relying upon this ground of appeal unless leave is granted under r 4 of the Criminal Appeal Rules.

(a) Photographs and video recordings of the complainant in the appellant's possession 13The Crown tendered at the trial two compact discs which the appellant had given to the complainant's mother. They contained photographs, and video footage, of scenery, people unrelated to the trial, animals, the appellant and a large number of photographs of the complainant, many whilst he was dressed only in boxer shorts or a swimming costume. The photos and footage were taken by the appellant, or under his direction. 14After the complainant's mother had produced the CDs to the Court, the Crown Prosecutor asked her what, in general terms, she had seen on them. She responded: "Lots of photos of him [the complainant] with like only his cossies on and just of his body and not his head". 15In cross-examination the Crown Prosecutor put to the appellant that he took photos of the complainant partially clothed that focused on his body rather than his head, and he played a segment of the video footage which he suggested to the appellant panned down the complainant's body, seeming "to focus momentarily on his crotch area". The appellant responded that the camera "just happened to be stopped at that point in time". 16In his closing address the Crown Prosecutor quoted the evidence of the complainant's mother referred to above and put that: "[W]hen one looks, for instance, at the thumbnail photographs [hard copy photographs taken from the CDs], one might wonder whether they are the sorts of photographs that would appear in a family album". 17He also put that there was reason to wonder whether the relationship of the appellant and complainant was "a father/son relationship in any genuine sense". 18In the course of his Summing-Up, the trial judge said: "[The Crown Prosecutor] asked you to look at the images in exhibit B [the CDs] very closely, and said they are not the kind found in a family album, and in particular drew attention to one of the videos I think it was in which he stated there was a concentration of the camera on the crutch of the complainant. Now that is my paraphrase of the argument put by him. You will have the video. If you think that is a correct submission you will act up on [sic] it. If, on the other hand, you think it is not that is a decision making fact finding process for you and you alone". 19On appeal the appellant submitted that the CDs were not relevant except to show sexual interest of the appellant in the complainant and that the evidence therefore amounted to tendency evidence which was inadmissible, in the absence, as was the case, of compliance with s 97 of the Evidence Act 1995 (see also s 101). 20In response the Crown submitted that the evidence was admissible as context evidence to provide, for example, independent support for the complainant's evidence of the types of recreational activities that he enjoyed with the appellant, and that the evidence did not suggest any sexual interest of the appellant in the complainant. The Crown implicitly accepted that if the evidence did in fact suggest the existence of such a sexual interest, compliance with ss 97 and 101 would have been required, or the trial judge would have had to direct the jury that it could not use the evidence to draw an inference of such sexual interest, that is, not to use it for a tendency purpose. No such direction was given, or sought, at the trial. 21Where the impugned evidence is that an accused, on an occasion prior to that of the alleged offence, had a sexual interest in a child complainant and acted upon that interest, the need for a tendency direction is readily apparent. If such evidence is admitted simply because it provides context to the complainant's evidence (and not as a result of compliance with ss 97 and 101 of the Evidence Act), the jury must be directed not to use it to reason that because the accused has engaged in such conduct on a prior occasion he or she is the more likely to have engaged in it on the occasion the subject of the charge. 22The courts have however gone further and treated evidence of an accused's sexual interest in, at least, a child complainant as being tendency evidence subject to the strictures of ss 97 and 101 of the Evidence Act even when the evidence does not suggest that the accused had previously committed an unlawful sexual act in relation to the child (R v AH (1999) 42 NSWLR 702 at 708 - 9; Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 462 at [87]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [30] and [39]; ES v R (No 1) [2010] NSWCCA 197 at [38] - [40]; ES v R (No 2) [2010] NSWCCA 198 at [67]; RWC v R [2010] NSWCCA 332 at [126] - [128]; BBH v R [2012] HCA 9; 245 CLR 499 at [152]; Steadman v R (No 1) [2013] NSWCCA 55 at [10]). Whilst I have some misgivings as to whether evidence which is in effect no more than evidence of motive (because it is simply evidence of a sexual interest of the accused in the complainant which has not been acted upon) should be treated as tendency evidence, the Court must accept the existing approach, at least where, as here, there has been no specific challenge to it. 23I turn then to the question of whether the evidence on the CDs was capable of suggesting a sexual interest of the appellant in the complainant and whether the jury was invited to use it for that purpose. 24Neither of the parties invited this Court to view the material on the CDs which were not in any event provided to the Court. In evidence however were some 123 small ("thumbnail") photographs (Exhibit Y; duplicated to some extent in Exhibit C) representing images on the CDs. It is not clear whether they comprise all the still photographs on the CDs. 25Many of the photographs were admissible for the context purpose described by the Crown in that they show the complainant engaging, by inference in the company of the appellant, in obviously enjoyable outdoor activities such as canoeing, fishing and horse riding. They thus support the complainant's evidence about the context in which the alleged offences were committed and assist in understanding why the complainant associated with the appellant. However many of the photos did not serve this purpose. These comprised close-up photographs of the complainant wearing only boxer shorts or a swimming costume, with many photos of his body, some showing his body but only part of his head. The evidence elicited by the Crown Prosecutor from the complainant's mother (see [14] above) emphasised to the jury this character of the photos, as did the cross-examination by the Crown Prosecutor of the appellant (see [15] above). 26The Crown Prosecutor's cross-examination concerning a segment of the video footage on the CDs similarly drew attention to the focus of the appellant, as the camera operator, on the complainant's body, including his crutch. This was well capable of carrying the implication that the appellant's interest in the complainant was of a sexual nature. The same implication arose out of the Crown Prosecutor's reference in closing address to the complainant's mother's evidence concerning the CDs and his assertions concerning the nature of the relationship between the appellant and complainant (see [16] and [17] above). 27A similar approach to the CDs was evident in the trial judge's Summing-Up with its reference to the jury looking "very closely" at the images on the discs and to the question of whether in the video footage the camera lingered on the complainant's crutch (see [18] above). In this context, the trial judge's indication to the jury that if it accepted the Crown's argument concerning the video footage, it would "act up on it" [sic] was plainly an invitation to the jury to form a view as to whether the footage indicated a sexual interest of the appellant in the complainant and, if it concluded that it did, to take that into account in deciding whether the Crown had proved beyond reasonable doubt that the appellant committed the offences charged. 28For the reasons I have given earlier, this invited the jury to engage in impermissible tendency reasoning. 29In these circumstances, the photographs and film should not have been admitted into evidence, except to the extent that they were reasonably necessary to provide support for the complainant's evidence concerning the context in which the alleged offences were committed. Moreover, the evidence having in fact been admitted, the jury should not have been invited, expressly or impliedly, to use it as tendency evidence. Rather, directions not to so use it should have been given as there was a real risk that the jury might otherwise embark upon impermissible tendency reasoning (see Toalepai v R [2009] NSWCCA 270 at [49]). Whether those directions would have been sufficient to overcome the prejudice to the appellant from admission of the evidence need not be considered as no such directions were given. 30No relevant objection was taken on behalf of the appellant at the trial, but nonetheless leave under r 4 of the Criminal Appeal Rules should be given as the impermissible admission and use of this evidence was a significant feature of the trial, without which it is realistically possible that the outcome of the trial might have been different (R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 see [20] - [21]). For the same reason, the proviso to s 6(1) of the Criminal Appeal Act 1912 is inapplicable: I am unable to be satisfied that no substantial miscarriage of justice has occurred. In those circumstances, the appellant's convictions should be quashed.

(b) A telephone conversation between the complainant's mother and the appellant subsequent to the alleged offences 31The appellant complained also of the admission of evidence from the complainant's mother of a telephone conversation she had with the appellant approximately two weeks after the third alleged offence in which the appellant said that he was missing the complainant and that a psychiatrist whom he had consulted had said that he was suffering from separation anxiety. 32She also said: "I said to him, well you better tell your psychiatrist that you touched my boy and you put your hands all over him and you have him sitting on your lap and that and - and the psychiatrist will tell you that that's not legal". I do not accept the appellant's submission that in saying this the complainant's mother was accusing the appellant of criminal acts that had not been charged. What she said was explicable as, primarily, a reference to the massage that was the subject of Count 3 of the Indictment and her reference to the complainant sitting on the appellant's lap was not of itself an accusation of criminal conduct. This part of the mother's evidence was not of significance as it amounted to little more than a repetition of her evidence concerning the massage and was not alleged to have resulted in any express or implied admission by the appellant of what she asserted. Whilst it should have been regarded as irrelevant and therefore not admitted into evidence, its admission was of no consequence. 33Furthermore, contrary to the appellant's submission, the statements attributed to the appellant that he was missing the complainant and was said to have separation anxiety did not amount to evidence of sexual interest of the appellant in the complainant rendering the evidence inadmissible as tendency evidence. The evidence was comprehensible as simply indicating a close friendship between the appellant and the complainant and thus as supporting the complainant's evidence of that. It was not suggested to this Court that at the trial this evidence had been sought to be used as evidence of sexual interest. 34I would accordingly reject this second aspect of the first ground of appeal. 35As the appellant has established under Ground 1 an entitlement to have his convictions quashed the remaining grounds of appeal can be dealt with briefly.

APPEAL GROUND 2: THE TRIAL JUDGE ERRED IN FAILING PROPERLY TO DIRECT THE JURY REGARDING A MOTIVE TO LIE ON THE PART OF THE COMPLAINANT AND HIS MOTHER 36At the trial the appellant asserted that the complainant and his mother had a motive to lie because requests by them to the appellant for money had been rejected. On appeal the appellant complained that the trial judge failed to direct the jury that a rejection of this asserted motive should not necessarily lead to the conclusion that those Crown witnesses were telling the truth. The appellant did not seek any such direction at the trial. 37The relevant principles are as summarised by Latham J (with whom Spigelman CJ and Hidden J agreed) in Doe v R [2008] NSWCCA 203 at [58]: "58 ... Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive ('the central theme'), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful." 38The alleged motive to lie, although put directly in the final address by counsel for the appellant, overall received little emphasis at the trial. Whilst there was cross-examination about requests for money, it was not put to the complainant or his mother that they gave false evidence as a result of the appellant refusing these alleged requests. The trial judge referred to the alleged motive in his Summing-Up but that issue could not, in the sense referred to in Doe, be regarded as in any way a, or the, central theme of the Summing-Up. Moreover, there was no express or implied invitation by the judge to the jury to reason that the rejection of the motive would indicate that the witnesses were telling the truth. 39In these circumstances, and as the trial judge gave the jury clear instructions about the onus and standard of proof, both before and after his reference to the motive to lie, I do not consider that it was necessary that the direction referred to by the appellant be given. The fact that the point was not taken at the trial provides some support for the view that, in the context of the trial, fairness did not require such a direction to be given. 40As there was in my view no necessity for the direction to be given, I would refuse a grant of leave under r 4 of the Criminal Appeal Rules to rely upon this ground.

APPEAL GROUND 3: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE CROSS-EXAMINATION OF THE APPELLANT REGARDING THE COMPLAINANT'S EVIDENCE 41The Crown Prosecutor put to the appellant in cross-examination that there were a number of matters in the complainant's evidence which the appellant did not dispute. The appellant responded: "Probably, probably, yeah - like the rest of the statements, there's a pinch of truth surrounded in lies". 42The Crown Prosecutor then put details of the complainant's evidence to the appellant and sought confirmation of their truth. This part of the cross-examination culminated in a request to identify anything else that the complainant said that was wrong. 43In my view, when considered as a whole, the cross-examination was fair to the appellant, constituting legitimate, forceful testing of the appellant's evidence consistent with the principles stated in Libke v The Queen [2007] HCA 30; 230 CLR 559. That it was fair in the context of the trial derives support from the appellant's counsel's lack of objection to it. 44At one point the Crown Prosecutor asked the appellant whether there was anything else that the complainant lied about. Although this was impermissible (Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232 at [147] - [151]) the question did not in my view cause any unfairness when assessed in the context of the lengthy cross-examination and the appellant's initial assertion that the complainant had lied (see [41] above).

APPEAL GROUND 4: THE TRIAL JUDGE ERRED IN FAILING TO DISMISS THE JURY ON APPLICATION BY THE DEFENCE FOR THE TRIAL JUDGE SAYING "OTHER PRISONERS" TO THE JURY IN OPENING DIRECTIONS 45During his opening remarks to the jury, the trial judge referred in passing to the sentencing of "other prisoners". The appellant's counsel sought a discharge of the jury on the grounds that the remark was prejudicial to the appellant because it informed them that the appellant was in custody. His Honour rejected the application and in my view the appellant has not shown any basis, consistent with the principles stated in House v The King [1936] HCA 4; 55 CLR 499, for interfering with his Honour's discretionary decision. In any event I cannot see that there was any prejudice to the appellant as, even if the jury concluded from the remark that the appellant was in custody, there was no reason for it to infer that this was so other than because of the charges then before the Court for trial.

APPEAL GROUND 5: THE TRIAL JUDGE ERRED IN FAILING PROPERLY TO DIRECT THE JURY REGARDING THE ONUS OF PROOF AND THE DEFINITION OF INDEPENDENTLY VERIFIED EVIDENCE 46The appellant has not under this heading in my view raised any arguable point concerning the trial judge's directions to the jury. 47In his submissions in relation to this ground of appeal he has however also raised an issue concerning fresh evidence, as follows. 48The complainant's evidence at the trial was that the massage the subject of Count 3 came about because he had injured his back playing soccer. The appellant, on the other hand, said that the complainant had hurt his back in falling off his bike. On appeal the appellant seeks to tender a letter from the Sutherland Shire Football Association stating when the soccer competition season usually begins and ends, with a view to proving that the complainant could not have hurt his back playing soccer. There are a variety of reasons why this application should be refused. It is sufficient to say that the letter does not identify any particular season and in any event says nothing about the possibility of the complainant having hurt his back in pre-season soccer practice or whilst playing informally with friends.

APPEAL GROUND 6: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF CRIMINAL OFFENCES COMMITTED BY THE POLICE INVOLVED AND THE FAILURE OF THE LEGAL SYSTEM TO DEAL WITH THE CRIMES ACCORDINGLY 49In his handwritten submissions in support of this ground of appeal, the appellant raised a variety of matters as follows. 50First he asserts that one of the police officers investigating the offences improperly disclosed the appellant's criminal history to Crown witnesses. The appellant had the opportunity to, but did not, raise this issue at the trial. It is not surprising that he did not do so before a jury, but it was open to him to apply for a judge alone trial if he regarded the issue as of sufficient significance. The appellant is bound by his conduct below and in my view is not entitled to raise these allegations for the first time on appeal. 51Secondly the appellant seeks to rely on appeal on a forensic report dated 30 January 2009. The report was in existence and in the possession of the appellant at the date of trial. The issue to which it relates, namely tampering with evidence, was agitated at the trial at length. The evidence is not fresh evidence and does not in any event appear to assist the appellant. He should not be permitted to tender it. 52Thirdly the appellant asserts that Detective Prior committed perjury at the trial. However Detective Prior was cross-examined at length at the trial and the appellant's submissions do not establish any error in the proceedings at the trial. 53Fourthly the appellant complains of the rejection of a permanent stay application that he made in May 2008. The application was based upon the foreshadowed use of certain tendency evidence. When the Court rejected the Crown's attempt to use that evidence, there remained no basis for the stay that had been sought. There is accordingly no substance in this complaint. 54Fifthly the appellant complains on appeal that the trial judge "did err, by not making comments about the criminal offences by police did [sic] pervert the course of justice by concealing the crimes". However the appellant has not established that there was any basis in the evidence for his allegations concerning the conduct of the police.

APPEAL GROUND 7: THE CREDIBILITY OF THE CROWN WITNESSES AND THE INCONSISTENCIES OF THEIR ACCOUNTS OF EVENTS GAVE RISE TO A MISCARRIAGE OF JUSTICE 55The appellant first asserts that the complainant's mother and sister lacked credibility because of matters that occurred in other court proceedings. To the extent that these matters may have been relevant they should have been, but were not, raised at the trial. It is not open to the appellant to rely upon them on appeal. 56Secondly the appellant asserts that there were inconsistencies in the evidence called by the Crown at the trial. The points made by the appellant were all open to be, and largely were, raised by the appellant's counsel in address at the trial. None were of such significance as to cast doubt upon the soundness of the jury's verdicts. 57Thirdly the appellant refers to further evidence he wishes to rely upon on appeal. One item is the letter concerning the soccer season referred to in [48] above. Others concern other aspects of the hearing. In my view the appellant has not raised any arguable case to justify the admission of any of the items of evidence as new or fresh evidence on appeal and his application to lead that evidence should be rejected. To a significant extent the submissions made by the appellant in relation to Grounds of Appeal 5, 6 and 7 rely on evidence he hopes to elicit from witnesses the subject of his application for examination orders (see [5] above). As no basis has been shown for the making of those orders, his application should be dismissed (see further at [63]).

APPEAL GROUND 8: UNSAFE CONVICTION 58The following observations that I made (with the concurrence of RA Hulme and Garling JJ) in TWL v R [2012] NSWCCA 57 are applicable to consideration of this ground of appeal in the present case: "58 This ground has its foundation in s 6 of the Criminal Appeal Act 1912. The High Court recently considered this ground in SKA v The Queen [2011] HCA 13; 243 CLR 400. It is apparent from the judgment of the plurality in that case, and from the earlier decision in M v The Queen [1994] HCA 63; 181 CLR 487, that the question for a court of criminal appeal when considering such a ground of appeal is not simply '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' (M at 493 and SKA at [11]). The Court is also required to conduct its own 'independent assessment of the evidence, both as to its sufficiency and its quality', and to assess whether, 'notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (M at 492 - 3; SKA at [14]). 59 This requirement was reflected in the later reference in the plurality judgment in SKA to the 'central question' as being 'whether on the evidence the Court was satisfied that the applicant was guilty of the offences' (at [20]). 60 In light of my conclusion that the appellant's conviction should be quashed on other grounds, it is neither necessary nor desirable that I deal with this ground of appeal to the full extent dictated by SKA and M. In particular, as there were deficiencies in connection with the trial that resulted in a miscarriage of justice, it would be inappropriate for me to form and express a view, based upon what I find to have been a flawed trial process, on whether at the trial the Crown proved beyond reasonable doubt that the appellant was guilty of the offence charged. 61It is appropriate however that I consider the first aspect of the task identified in SKA and M, that is, whether on the evidence that was before the jury, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The answer is to this question is important in considering whether a retrial should be ordered because it should be assumed, in the absence of any indication to the contrary, that the Crown would lead substantially the same evidence at a retrial as that which it led at the initial trial. If that evidence was not capable of sustaining a conviction, it would be inappropriate to order a retrial on substantially the same evidence: Gerakiteys v R [1984] HCA 8; 153 CLR 317 at 321. As was noted in R v Taufahema [2007] HCA 11; 228 CLR 233 at [52], 'if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial'. Moreover, 'a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first' (ibid at [52])." 59This approach was reiterated by me in TWL v R (No 2) [2012] NSWCCA 93. An application for special leave to appeal was refused by the High Court ([2012] HCA Trans 257). 60Applying the approach in TWL, the question for present consideration is therefore whether on the evidence that was before the jury it was open to it to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. In my view, if the jury accepted the complainant's evidence as credible and reliable, it was clearly open to it to convict the appellant. When assessed in the context of the relationship described by the complainant, confirmed by other evidence including that of the appellant himself, there was no inherent unlikelihood in the complainant's evidence of the alleged offences. Nor were there any significant inconsistencies in the evidence or other matters that would have rendered a properly instructed jury's verdicts of guilty challengeable on appeal. The appellant's submissions in relation to this ground of appeal largely repeat submissions made earlier and do not raise any arguable matter that requires further consideration. 61In a case such as the present this Court cannot form a view about whether the appellant's guilt was proved beyond reasonable doubt because that would require it to form a view about the credibility of the witnesses called at the trial, in particular the complainant. This is a function for the jury, not this Court and, as the jury was not properly instructed, this Court cannot rely upon the jury's verdicts as establishing the credibility of the Crown witnesses. 62For these reasons, although the trial miscarried and the verdicts of guilty should accordingly be quashed, the appellant is not entitled to verdicts of acquittal as there was evidence at the trial upon which a properly instructed jury could have convicted him. In these circumstances, a new trial should be ordered. The Director of Public Prosecutions of course retains a discretion as to whether to proceed with such a trial. The fact that the term of imprisonment to which the appellant was sentenced will expire on 18 November 2013 will be a relevant consideration in this regard.

THE APPLICATIONS TO HAVE WITNESSES EXAMINED 63The appellant's applications for the examination of witnesses (see [5] above) are largely designed to support the grounds of appeal referred to above. The appellant has not established that any of the witnesses sought to be examined could give evidence that he would be entitled to lead for the first time on appeal. Accordingly the application should be dismissed

ORDERS 64For the above reasons, I propose the following orders: (1) Grant leave under r 4 of Criminal Appeal Rules to rely on Appeal Ground 1. (2) Allow the appeal. (3) Quash the appellant's convictions entered following the return of verdicts of guilty at his trial in February 2009. (4) Direct a new trial of the charges upon which the appellant was convicted. (5) Dismiss the appellant's applications for examination of witnesses filed on 18 January 2013 insofar as they relate to the present proceedings. 65FULLERTON J: I agree with Macfarlan JA. 66ADAMSON J: I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2013