Colquhoun v R

THE FACTUAL CIRCUMSTANCES 4The complainant was 13 at the time of the alleged offences in April and May 2007. He lived at Gymea in Sydney with his father and often visited the Gymea Bay Baths. At the Baths, the appellant, who was then 43 years old, befriended the complainant and gave him biscuits and chocolates. They fished and swam together and on three occasions the complainant and some of his friends fished from the appellant's boat. 5The first count of the Indictment related to an incident that the complainant said occurred when he stayed overnight on the appellant's boat. He said that on that occasion the appellant cuddled him, with his penis being near to the complainant's bottom, and that the appellant touched the complainant's penis on the outside of the complainant's clothing. The appellant was convicted on this count. 6The complainant also said that on another occasion on the appellant's boat the appellant lay on top of him and put his arms around the complainant and tried to kiss him. This alleged conduct was the subject of Count 2, upon which the appellant was acquitted. 7As to Count 3, upon which the jury could not agree, the complainant's evidence was that whilst at the Baths on 30 May 2007, the appellant cuddled the complainant and kissed him twice on the cheek. 8As to Count 4, upon which the appellant was convicted, the complainant gave evidence that, whilst at the Baths, the appellant cuddled him and touched him on the bottom with his hand three or four times. A police officer, Detective Harris, gave evidence that he observed this occurring. 9As to Count 5, upon which the appellant was also convicted, the complainant gave evidence that, whilst at the Baths on 30 May 2007, the appellant grabbed him and had his penis touching the complainant's bottom. In support of this count the Crown relied upon DVD film taken by Sergeant Harris of the alleged incident. Based on the film, the Crown put to the appellant in cross-examination that he pushed his penis toward the complainant's bottom in a "humping", sexual manner. The appellant denied these allegations, as he did those related to the other counts.

GROUND 1: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE ADMISSION AND/OR USE OF EVIDENCE OF SEXUAL INTEREST OF THE APPELLANT

GROUND 2: THE TRIAL JUDGE MISDIRECTED THE JURY WITH RESPECT TO THE USE OF EVIDENCE OF UNCHARGED CONDUCT 10These grounds of appeal relate to the following evidence.

Photographs and video recordings of children possessed by the appellant 11The Crown tendered in evidence a large number of photographs, and a segment of video footage, found in the possession of the appellant. A number of children are depicted in the images, including the complainant and other child witnesses in the Crown case. Many of the images are close up photographs of children in their swimming costumes or wearing boxer shorts only. The Crown Prosecutor cross-examined the appellant extensively about the photographs, emphasising that they were of children not adults and the partially clothed state of many of the subjects. 12In his closing address, the Crown Prosecutor referred to the fact that there were no adult males in the photographs and put that they were not "the sort of photographs that one might find in a family album. In my submission they are consistent with unusual interest".

The evidence of child witnesses WA and EG 13WA and EG's evidence was that the appellant gave children confectionary and other gifts. EG said that the appellant acted in a way that was "strange for his age" as he associated with children and not adults, whilst WA said that the appellant used to put his arm around him. 14In his closing address the Crown Prosecutor submitted that the appellant had an "unusual relationship" with boys in the area and that he had a "focus on dealing with adolescent or near-adolescent boys". 15The trial judge referred to this evidence in his Summing-Up. 16EG also said, in a record of interview that was tendered, that he had seen the appellant touch the complainant on the back and the leg. This evidence did not relate to the incidents the subject of the charges against the appellant. 17The Crown Prosecutor referred to this evidence in his closing address.

The Summing-Up 18The trial judge's Summing-Up at the trial included the following: "In this case you have heard evidence of matters which are not the subject of the charges. I have already told you that what the prosecution was doing [sic]. You have heard [the complainant] give evidence about other matters which might in your mind look like an offence but which have not been charged. The law permits that type of offence [semble: evidence] to be given by the prosecution for a number of purposes, to put the alleged offence in context, to show that it did not occur in a total vacuum. It is permitted to show the relationship between the accused and the complainant or to show that the accused had sexual desire or feeling for the complainant. If you accept that evidence it may show consistency in the account of the alleged crime. The evidence of the uncharged acts, the other matters which are said to constitute context, there are a number of them. [The complainant] gave evidence of cuddling and touching at various stages in the relationship he had with Mr Colquhoun. Certainly on the three occasions that he said he was on the boat he talked about Mr Colquhoun cuddling him continuously. Mr Colquhoun denies that there was [a] third time. That is a matter for you to decide. There is not only cuddling but there is also evidence from [the complainant] of inappropriate touching at various times. Those offences are charged. I will come in a minute to the actual matters that the Crown says constitute the offence. In evidence you have a large number of photographs. Most of these photographs are of various young boys who Mr Colquhoun identified. The Crown has introduced those matters into evidence because it says that that is material from which you can draw an inference about the attitude of Mr Colquhoun towards young people. You have heard a lot of evidence about the relationship of affection between Mr Colquhoun and [the complainant]. Those matters, the Crown says, gives you a context in which Mr Colquhoun, it says, did the alleged acts. It shows the relationship between Mr Colquhoun and [the complainant] and it also constitutes material from which you can make certain inferences about sexual desire. You will have to look at all that evidence individually. I am not going go through it in great detail. The Crown Prosecutor has done that and you will have the evidence there. You can think about what he said to you. Look at it with great care then decide whether or not you are satisfied that it occurred. You must not use this evidence of uncharged acts to show that it is more probable than not that any of the five offence occurred. Just because the evidence was given it does not make it true. If you are not satisfied about any of these uncharged acts then you must decide whether the prosecution has failed to prove the context, the relationship or the sexual desire. You do not have to be satisfied of all of them but even if you are satisfied of the uncharged acts you can only use it for the limited purposes that I have explained, that is the context of the events which give rise to the charges, the relationship or the existence of some sexual desire. It does not prove the offence for which it is charged and you must not use it for that purpose. You must not reason that if Mr Colquhoun did those uncharged acts that he is the sort of person who would commit the offence with which he is charged because the Crown has to prove beyond reasonable doubt that he did those specific acts which constitute the charges. If you are not satisfied about some or any of the uncharged acts does that cause you to have reservations about accepting his evidence about the offences charged? So I repeat to you the prosecution must prove its case beyond reasonable doubt and it can only do so on the evidence that bears on the commission of the five offences charged" (emphasis added) (AB pp 23 - 25).

Consideration 19As the Crown submitted on appeal, evidence was admissible at the trial to support the complainant's evidence that he regularly spent time with the appellant, swimming and fishing, in a context that was likely to be enjoyable for a young boy. Such evidence was relevant to explain why the complainant continued to associate with the appellant. It therefore helped in the evaluation of the complainant's evidence and was thus admissible (Norman v R [2012] NSWCCA 230 at [23] - [35]). 20However in my view the evidence to which Ground 1 relates cannot wholly be characterised in this fashion. Its volume and content, and the way it was used in cross-examination and address, leave little doubt that, viewed objectively, the bulk of it was tendered and relied upon to demonstrate the sexual interest of the appellant in the complainant. This amounted to use of the evidence to show that because he had a sexual interest in the complainant the appellant was more likely to have committed the offences alleged. However unless the conditions specified in ss 97 and 101 of the Evidence Act 1995 for the admission of such tendency evidence are satisfied, the evidence may not be admitted or used for that purpose (Colquhoun v R (No 1) [2013] NSWCCA 190 at [22]). The Crown did not contend that these conditions were satisfied in the present case. 21The evidence to which the trial judge referred in the passages from the Summing-Up that I have quoted in [18] above went beyond the categories of evidence covered by Ground 1 to refer to evidence of the complainant that the trial judge thought the jury might consider indicated that the appellant had committed offences further to those charged, that is, "uncharged acts". However it was not permissible for the jury to use any of the evidence to which the trial judge there referred, as the trial judge said it could, to establish sexual desire or feeling of the appellant for the complainant. An invitation to the jury to use the evidence for impermissible tendency reasoning was thus made explicit in the Summing-Up, particularly in the portions of the quoted passages that I have highlighted (see [18] above). 22Furthermore, it was not permissible for the trial judge to indicate to the jury, without a more precise explanation, that the evidence was able to be used to "show the relationship between the accused and the complainant". Without identification of a permissible use, such as to put the complainant's evidence in context and render it explicable, this direction was liable to encourage the jury to use the evidence for the impermissible tendency purpose of suggesting that, because of an apparent sexual interest of the appellant in the complainant, the appellant was more likely to have committed the offences charged. As explained by McClellan CJ at CL in DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [29], evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context". 23Understandably the Crown conceded on appeal that the trial judge's directions concerning the use to which this evidence could be put by the jury were erroneous. It however submitted that the Court should nevertheless apply the proviso to s 6(1) of the Criminal Appeal Act 1912 and dismiss the appeal. To apply that proviso, the Court must be of the view that "no substantial miscarriage of justice has actually occurred". I do not consider that to be the situation here. The evidence in question, together with the submissions and directions to the jury concerning it, constituted a prominent aspect of the trial, with the potential to be regarded by the jury as of considerable significance to their deliberations. 24As the determination of the prosecution's case required the jury to form views as to the credit of the complainant, the appellant and Detective Harris, and the reliability of their evidence, this Court is not in a position to form, and give effect to, a view as to the appellant's guilt, at least as to Counts 1 and 4. This would be necessary for the Court to apply the proviso. 25Count 5 is arguably in a different position as the Crown relied heavily in relation to it upon the objective evidence of the DVD film taken by Detective Harris. However I am not satisfied that, when considered on its own, without the benefit of the complainant's evidence, the film demonstrates beyond reasonable doubt that, as the Crown alleges, the appellant placed his hand on the complainant's buttock, that his groin came into contact with the complainant's buttocks, and that the appellant "humped" the complainant (or that following his contact with the complainant, the appellant moved his hand "as though adjusting his penis"). The complainant's evidence cannot be taken into account by this Court because, first, its acceptance would require this Court to make a finding concerning the complainant's credit, which it is not in a position to make, and, secondly, regard cannot be had to the jury's obvious acceptance of the complainant's evidence due to the erroneous directions given to it. 26In these circumstances, the conclusion follows that the trial miscarried and the appellant's convictions must be quashed. The points the subject of Grounds of Appeal 1 and 2 were not taken at the hearing, but the appellant should not in my view be precluded by r 4 of the Criminal Appeal Rules from taking them on appeal as he has demonstrated that he has lost a not unrealistic chance of acquittal such that a miscarriage of justice has occurred (R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 (see [21])). I would accordingly grant leave to rely upon those two grounds.

GROUND 3: THE CROSS-EXAMINATION OF THE APPELLANT 27As the appellant has succeeded on Grounds 1 and 2, this ground, and those remaining, can be dealt with briefly. It is sufficient to say that in relation to Ground 3 I do not regard the Crown Prosecutor's cross-examination of the appellant concerning the evidence of the complainant and two child witnesses as departing from the standards of fairness identified in Libke v R [2007] HCA 30; 230 CLR 559. Subject to one matter, the prosecutor did no more than perform his duty to test the credibility and reliability of the account which the appellant gave (ibid at [75]). Questions asking the appellant to identify error in the witness' accounts were not unfair when read in the context of the prosecutor's detailed cross-examination. The absence of objection to the cross-examination by the appellant's counsel, either in the course of the cross-examination or subsequently, provides some support for the view that there was no unfairness apparent in the context of the trial (ibid at [76]). 28The qualification to these views is that at one point the prosecutor asked the appellant whether one of the witnesses had been lying. This was impermissible (Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232 at [147] - [151]) but when assessed in the context of the whole of the lengthy cross-examination, in which the prosecutor permissibly asked the appellant on a number of occasions whether evidence given by Crown witnesses was correct, this question did not in my view result in any unfairness to the appellant (see ibid at [152]).

GROUND 4: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE ADMISSION AND/OR USE OF FALSIFIED EVIDENCE 29This ground relates to a typed note and a $10 bank note found between the spokes of the complainant's bicycle after the appellant had been arrested and charged with the offences in question. The authorship of the note was in issue at the trial. On appeal the appellant seeks to lead further evidence on the issue but has not demonstrated any arguable basis for an entitlement to do so.

GROUND 5: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE ADMISSION AND/OR USE OF POLICE STATEMENTS THAT WERE MADE USING KNOWN LIES 30This ground of appeal should be rejected, at least for the reason that the written police statements about which the appellant complains were not in evidence at the trial.

GROUND 6: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF CRIMINAL OFFENCES COMMITTED BY POLICE INVOLVED 31The appellant complains that Detectives Harris and Brown disclosed the appellant's criminal history to the complainant's father prior to him providing a written statement to the police. This ground should be rejected at least for the reason that it was open to the appellant to cross-examine Detectives Harris and Brown at the trial on this issue but he chose not to do so. It was understandable that the appellant made this choice as the cross-examination would have disclosed his criminal history to the jury but if the appellant had regarded this issue as of particular significance he could earlier have sought a judge alone trial.

GROUND 7: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF COACHING OF WITNESSES 32The appellant submits that Detective Harris coached the complainant and his father in their evidence. This was an issue that could have been and, in the case of the complainant, was raised at the trial. The appellant seeks to elicit further evidence on this issue but has demonstrated no arguable basis for an entitlement to do so.

GROUND 8: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF UNFAIR CROSS-EXAMINATION OF THE APPELLANT 33The appellant has raised no arguable issue beyond that raised by Ground 3 above. The ground should accordingly be rejected.

GROUND 9: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF MAJOR INCONSISTENCIES AND LACK OF CREDIBILITY OF CROWN WITNESSES 34The matters relied upon by the appellant were all open to be, and largely were, raised by the appellant at the trial. No arguable issue is raised by this ground of appeal.

GROUND 10: A MISCARRIAGE OF JUSTICE OCCURRED AS A RESULT OF THE INTRODUCTION OF PREJUDICIAL EVIDENCE FROM [DETECTIVE] CHRISTIAN POPP AND THE TRIAL JUDGE'S FAILURE TO PROPERLY DIRECT THE JURY 35The appellant's submissions in relation to this ground of the appeal raise a similar issue to that raised by Grounds 1 and 2, which have been upheld. Otherwise no arguable issue is raised by the appellant under this heading.

GROUND 11: THE PREJUDICIAL AND UNFAIR DIRECTIONS GIVEN TO THE JURY BY THE TRIAL JUDGE DID MISGUIDE THE JURY CAUSING A MISCARRIAGE OF JUSTICE 36To some extent the appellant's submissions reflect Grounds 1 and 2, which have already been upheld. Otherwise, the submissions do not raise any arguable issue. In particular, the appellant's submission that the Summing-Up "mocked and downplayed" the appellant's case is clearly not well founded.

THE APPLICATIONS TO HAVE WITNESSES EXAMINED 37The appellant's applications for the examination of witnesses (see [3] above) are largely designed to support the grounds of appeal referred to above. As he 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, the applications should be dismissed.

ORDERS 38As Appeal Grounds 1 and 2 have been upheld and the proviso to s 6(1) of the Criminal Appeal Act found to be inapplicable, the appellant's convictions of the offences charged in the counts of the Indictment upon which verdicts of guilty were returned must be quashed. A new trial should be directed but it will remain for the Director of Public Prosecutions to decide whether a retrial should occur bearing in mind, inter alia, that the appellant has already served the bulk of the non-parole period of his sentence. That period is due to expire on 18 October 2013, with the overall term to expire on 18 November 2015. 39For the above reasons, I propose the following orders: (1) Grant leave under r 4 of the Criminal Appeal Rules to rely on Appeal Grounds 1 and 2. (2) Allow the appeal. (3) Quash the appellant's convictions entered following the return of verdicts of guilty at his trial in May 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. 40FULLERTON J: I agree with Macfarlan JA. 41ADAMSON 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: 22 August 2013