Crawford v R

JUDGMENT

1. BEECH-JONES CJ AT CL: I agree with Adamson J.
2. DAVIES J: I have read in draft the reasons of Adamson J for joining in the Court's refusal of leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Those reasons accord with my own for joining in the Court's order.
3. ADAMSON J: Peter Crawford (the applicant) stands charged on an indictment of seventeen counts of sexual offences under Part 3, Division 10 of the Crimes Act 1900 (NSW). In all but one of which (count 3), the complainant is a female aged under sixteen years. The applicant's trial before Shead SC DCJ (the trial judge) and a jury is listed for hearing to commence on 6 February 2023. Of the seventeen counts, four (counts 1-4) relate to offences alleged to have been committed by the applicant while he was an acolyte in a church towards females (LL and KC) who assisted him in the church (the church counts). The remaining 13 counts relate to offences alleged to have been committed by the applicant on females (IS, JSD and JDD) while he was coaching netball (the netball counts).
4. The Crown served an amended tendency notice dated 6 July 2022 in which, in substance, it contended that, except in relation to count 3 (which charged an offence against LL when she was 19 years old), the evidence in respect of each complainant was cross-admissible in respect of charges against each other complainant and that the evidence in respect of each count, including count 3, was cross-admissible in respect of each other count with respect to that complainant.
5. The notice identified the tendency and the alleged common features as follows: "4. The tendency sought to be proved is: ● his tendency to have a particular state of mind, namely a sexual interest in female children aged 11 to 16 years; and ● his tendency to act in a particular way, namely, to act on that interest by touching them in a way that carried sexual overtones, and in circumstances where he was acting in a supervisory role. 5. The common features of the allegations include: a. With the exception of Count 3, each complainant was aged from 11 to 16 years at the time of the alleged touching. b. In respect of each complainant, he maintained a supervisory role as a netball coach or official (IS, JDD, JSD) or as an acolyte (LL and KC). c. In respect of each complainant, the alleged touching occurred at a time where the accused was acting in his role as netball coach or official (IS, JSD, JDD), or as an acolyte (LL and KC). d. In respect of the complainants IS, JDD, JSD and LL, the nature of the touching included touching or tapping them on the bottom. e. In respect of IS, the nature of the touching included touching or massaging her genitalia. f. In respect of KC, the nature of touching included brushing up against her breasts. g. In respect of JDD and JSD, the nature of the touching included touching or rubbing them on the stomach."
6. The applicant applied for the netball counts to be tried separately from the church counts. He argued that the evidence of the netball counts was inadmissible on the church counts and vice versa.
7. On 26 August 2022, the trial judge made the following orders and ruling (as expressed in her reasons): "151 I dispense with the notice requirements pursuant to s 100(1) of the Evidence Act for the amended tendency notice. 152 The evidence is admissible for a tendency purpose in the manner contended for by the Crown. 153 I decline to order separate trials for the "church matters" (Counts 1 to 4) and the "netball matters" (Counts 5 to 17)."
8. By notice of appeal filed on 9 December 2022, the applicant sought leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal against the trial judge's refusal of his application for separate trials. The basis of the application was the contention that the trial judge incorrectly held that the evidence of the netball counts and church counts was cross-admissible (with the qualification that the trial judge found that the evidence of count 3 was only admissible with respect to counts 1 and 2, being against the same complainant, LL).
9. At the conclusion of the hearing of the application on 3 February 2023, the Court ordered that leave to appeal be refused. What follows are my reasons for joining in this order of the Court.

Summary of Crown case

1. Before addressing the substance of the applicant's submissions in light of the trial judge's ruling, it is helpful to set out the Crown case on each of the counts (which has largely been derived from the summary in the Crown's written submissions to this Court).

The church counts

1. The Crown case on the church counts is summarised in the table below. Count/ offence under Crimes Act Complainant/ approx. age Date Alleged conduct 1 (s 61M(2) - assault with act of indecency against a child under 16 years) and, in the alternative, 2 (s 61L - assault with act of indecency) LL/ 15 or 16 years 2016 In the context of LL playing music at church services and being the choir master of the church, the applicant, an acolyte, would hug her and joke with her. On one occasion when they were alone in the sacristy room, he placed his arm around her and then tapped her on the bottom. The conduct was repeated on an almost weekly basis. 3* (s 61KC(a) - intentionally sexually touch without consent and knowing LL did not consent) LL/ 19 years November 2020 LL was alone with the applicant in the sacristy. He tapped her on the bottom and said, "off you go." 4 (s 61M(2) - assault with act of indecency against a child under 16 years) KC/13-14 years 2017 KC was an altar server at the church. The applicant would invite her to the registry change rooms and tell her that she was his favourite of all the altar servers. The applicant would touch KC when she was dressing for mass. On one occasion (count 4), the applicant stepped back such that his back brushed up against KC's breasts. KC left the room and eventually left the role of altar server.

*Not relied on for tendency in respect of count 4 or counts 5-17 as LL was 19 years' old but relied on for tendency in relation to counts 1 and 2, which concerned the same complainant (LL).

1. LL reported the conduct to Father Kwak in about December 2020, when she learned that the applicant had been arrested and charged with the netball counts. KC reported the conduct to Father Kwak in January 2021.

The netball counts

1. The Crown case on the netball counts is summarised in the table below. Count Complainant/ approx. age Date Alleged conduct 5, 6, 8-12 (s 66DB(a) - intentionally sexually touch child between the ages of 10 and 16) IS/ 11 years March-June 2019 The applicant gave IS private netball lessons twice a week. IS' mother was generally present during these sessions. The applicant would touch IS' clothing around the stomach area and would touch her on or near her bottom when he was saying goodbye. 7 (s 66DB(a) - intentionally sexually touch child between the ages of 10 and 16) IS/11 years March-June 2019 The applicant touched IS on the bottom. 13 (s 66DB(a) and s 344A - attempt to intentionally sexually touch child between the ages of 10 and 16) IS/11 years June 2019 IS, who had attended a child protection talk at school and realised that what the applicant was doing was wrong, wore long pants to the final training session with the applicant. She crossed her legs when waiting to do hill runs. He told her to open her legs and moved his left hand towards her vagina. IS stepped backwards and the applicant again said, "open your legs". IS ran up the hill to her mother and disclosed the alleged offending. 14 (s 66DB(a) - intentionally sexually touch child between the ages of 10 and 16) JDD/12 years September 2019 JDD played netball for a club of which the applicant was the coach. She attended a netball presentation in a short top which left some of her stomach exposed. At the end of a conversation with JDD, the applicant patted her stomach for about 5 seconds. 15 (s 66DB(a) - intentionally sexually touch child between the ages of 10 and 16) JDD/13 years January 2020 JDD went to a sports field to attend a netball game. The applicant, who was setting up, walked behind JDD who felt her bottom being brushed. She turned around and saw the applicant, who smiled at her. JDD told her mother that the applicant "kind of touched me." 16 (s 66DB(a) - intentionally sexually touch child between the ages of 10 and 16) JSD/15 years 29 July 2020 The applicant asked JSD to umpire for his netball team. As he was speaking to her, he touched her face to move her head so that she was looking at him and poked her stomach with his finger. At the end of the conversation, he tapped JSD on the bottom as she walked away. 17 (s 61KC(a) - intentionally sexually touch complainant without her consent and knowing that she did not consent) JSD/16 years 5 September 2020 JSD attended netball courts as a spectator and umpire. The applicant sat next to her on a bench. As they were conversing, he poked her on the stomach and grabbed onto her hips. She moved away from him and, as she moved to adjust her skirt, he slapped her on the right buttocks. JSD told others, including her mother, what had happened. Her mother made a complaint to Netball NSW. The matter was reported to police.

Evidence Act 1995 (NSW)

1. References to legislation in these reasons are references to the Evidence Act 1995 (NSW) (the Act), unless otherwise stated.
2. Section 97 of the Act relevantly provides: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - … (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. …"
3. It was common ground that s 97A of the Act applied in the present case as the complainants were (with the exception of count 3) children, being persons under 18 years of age and the offences charged are "child sexual offences". Section 97A of the Act relevantly provides: "97A Admissibility of tendency evidence in proceedings involving child sexual offences (1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. (2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2) - (a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest), (b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. (3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally. (4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. (5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account - (a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act), (b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred, (c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act, (d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act, (e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act, (f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features, (g) the level of generality of the tendency to which the tendency evidence relates. …"
4. Section 101(2) of the Act relevantly provides that tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
5. The applicant submitted to the trial judge (and to this Court) that there would be unfair prejudice to him arising from an alleged tendency "across five complainants, compounded with inter count cross-admissibility as pleaded, engaging vertical (intra complainant) and horizontal (inter complainant) pleading, would be such as to produce, in the mind of a single jury, unfair prejudice, which would not be susceptible of cure by direction."
6. Before the trial judge, the applicant limited his objection to the evidence to the question of prejudice (which arises under s 101) and did not address ss 97 or 97A of the Act. In other words, the applicant did not contend that the evidence did not have substantial probative value.

Criminal Procedure Act 1986 (NSW)

1. Section 21 of the Criminal Procedure Act relevantly provides: "21 Orders for amendment of indictment, separate trial and postponement of trial … (2) If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having … ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. …"
2. Section 29 of the Criminal Procedure Act relevantly provides: "29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. … (3) Proceedings related to 2 or more offences … may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
3. Section 29A of the Criminal Procedure Act provides: "29A Tendency or coincidence - offences to be heard together (1) A court must hear and determine together proceedings for 2 or more offences if - (a) the offences are alleged to have been committed by the same person, and (b) the offences are - (i) charged in the same indictment, or (ii) listed for hearing on the same day and at the same place, and (c) the prosecution has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than 1 of the offences. (2) This section is subject to section 21(2)."

The trial judge's reasons for ruling that the evidence was cross-admissible and that the application for separate trials should be refused

1. Her Honour noted that (as referred to above) the applicant did not make submissions directed to s 97A (presumed substantial probative value) and that he relied on s 101.
2. Her Honour considered that the evidence had probative value not only as to tendency to have, and to act on, a sexual interest in girls under 16 years, but also (at [131]) to rebut a potentially innocent explanation for the alleged conduct (such as that the complainants had misinterpreted physical contact or fabricated the allegations). Her Honour found that the presumption in s 97A of the Act had not been rebutted and did not consider that there were exceptional circumstances which warranted taking the matters in s 97A(5) into account. Her Honour further found that, even without the presumption in s 97A, the evidence had substantial probative value within the meaning of s 97.
3. Her Honour addressed the conduct and the connections between the conduct alleged before turning to s 101 and the risk of unfair prejudice. Her Honour applied the test in s 101 and said, of present relevance: "143 I do not accept the accused's submission that the tendency evidence would be so overwhelming such that to admit it would be unfair. The factual similarity that the accused calls in aid of his argument points, rather, to admissibility. There is no unusual feature of the tendency evidence in this case that is, in a predictive sense, productive of unfair prejudice. Jury directions will ensure that the evidence is not misused or elevated beyond its purpose. Accordingly, given that it must be accepted that jurors will act in accordance with directions, there is no risk that the jury will use tendency reasoning improperly or unfairly. 144 I do not accept the accused's submission that the similarity of the alleged events cannot be relied upon unless the Crown seeks to utilise coincidence reasoning. 145 I am satisfied that the probative value of the tendency evidence outweighs any prejudicial effect it may have on the accused. The tendency evidence is admissible."
4. Her Honour also found that the evidence in support of count 3 was relevant to counts 1 and 2 because of its similarity and that it concerned the same complainant, LL, although LL was 19 years of age at the time of the alleged conduct comprising count 3.
5. Her Honour found, at [149], that the indictment was not "oppressive" and the applicant was not prejudiced by the number of charges or complainants "in the sense contemplated by s 21 of the Criminal Procedure Act."
6. Her Honour concluded as follows: "148 It appears to me that the weight of the combined evidence of the complainants is the focus of the accused's challenge, in that it is submitted that the jury will 'reason cumulatively', engage in 'probabilistic reasoning' and the indictment is too 'crowded'. 149 An indictment containing multiple charges involving five complainants, where the evidence is cross admissible on a tendency basis, is by no means uncommon. The indictment here is not overcrowded, nor is it oppressive. The number of charges, nor the number of complainants, is such that the accused will be prejudiced by a joint trial, in the sense contemplated by s 21 of the Criminal Procedure Act. 150 Further, standard directions will ensure that the jury is not prejudiced against the accused given the number of charges or the number of complainants. The jury will not be overwhelmed by the number of charges. The jury will be directed to consider each charge separately based on the admissible evidence relating to it. The tendency direction will set out the proper use to which the jury will put that evidence."

General principles

1. The decision to refuse to order separate trials is an interlocutory order which is amenable to appeal under s 5F(3)(a) of the Criminal Appeal Act. However, an evidentiary ruling is not: see the summary of authorities referred to in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 (DAO) at [74] (Allsop P). This Court has repeatedly emphasised that restraint ought be exercised before granting leave to appeal against the refusal of a separate trial where the basis of the application is an evidentiary ruling. The reason for the restraint to be exercised pre-trial (and therefore, necessarily, pre-conviction) appears from the following passage in Spigelman CJ's judgment in DAO: "13 … His Honour's ruling was necessarily made on the basis of an expectation as to what the evidence of each complainant will be. By reason of their evidence in chief, and perhaps particularly by reason of their cross-examination, the force and nature of the complainants' evidence may differ from that which can be anticipated at the present stage of proceedings. The course of the trial may lead to the decision being reopened. 14 Furthermore, the significance and weight to be attached to the evidence can be affected by the nature and strength of directions given by the trial judge to the jury. These are matters capable of further assessment on appeal if the applicant is convicted in relation to one or more of the complainants. 15 I note that s 5F(6) specifies that, if leave is refused, the refusal does not preclude an appeal following conviction on the matter to which the refused application for leave related. The Court has not been addressed on the issue as to the position where leave is granted. However, s 5F(6) should be regarded as having been introduced as a matter of caution. If leave is granted this Court is, nevertheless, hearing the appeal at an interlocutory stage. A decision under s 5F does not preclude further consideration of the issue under ss 5(1) and 6(1) of the Act on appeal following a conviction, if any. 16 The fact that what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave. There are two countervailing considerations. 17 First, the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial."
2. Schmidt J, at [212] of DAO also said, of present relevance: "As to the possibility of another appeal after conviction, I wish to make only this observation. The trial judge's ruling rested on views reached pursuant to ss 97(1)(b) and 101 of the Evidence Act as to the probative value of anticipated evidence. As the Chief Justice observes, that is a ruling which may be revisited during the course of the trial, as the evidence unfolds. Any post-conviction appeal brought under ss 5(1) and 6(1) of the Criminal Appeal Act, if that results, would arise to be determined on the basis of the evidence received at trial. It is unnecessary to deal with that possibility on this appeal, other than to observe that should the same issue as to admissibility of evidence be raised in a post-conviction appeal, as has already been determined in a s 5F appeal, considerations of the kind discussed in Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462 as to issue estoppel would appear to arise for consideration."

Consideration

1. Dr Webb SC, who appeared on behalf of the applicant in the Court below and in this Court sought, in this Court, to contend that the presumption in s 97A that the evidence will have "significant probative value" did not carry over to the exercise required by s 101(2) of the Act. However, he confirmed (as is evident from the transcript and written submissions) that no such submission had been made to the trial judge. Indeed no submissions had been made to the trial judge regarding the construction and effect of s 97A of the Act.
2. As the trial judge assessed the anticipated evidence as having significant probative value under s 97 of the Act (quite apart from the presumption that it did in s 97A), the submission referred to above by Dr Webb does not arise. In these circumstances, the present application is not an appropriate occasion for this Court to address the construction of s 97A. It is a novel provision, the construction of which has not yet arisen for consideration by this Court.
3. As referred to above, and confirmed by Dr Webb at the hearing in this Court, the principal basis of the application is that the trial judge erred in ruling the evidence to be cross-admissible on the basis of tendency (this being the basis for the refusal to order separate trials). The applicant has repeated in this Court his argument that the probative value of the evidence does not outweigh the danger of unfair prejudice to the defendant.
4. I discern no error in the trial judge's approach, her Honour's reasons or in the rulings. The number of charges is, in this context, by no means unusual, much less excessive. The probative value of the evidence (both to positively establish the alleged tendency and to exclude innocent explanations) is, as her Honour found, very high. The risk of unfairness (if there be any) can be ameliorated, as her Honour found, by directions. There is no reason to suppose that these directions will be unduly complex or difficult to formulate: see, for example, JS v R [2022] NSWCCA 145 at [50] (Basten AJA, Hamill and Dhanji JJ agreeing).
5. I note that Dr Webb confirmed, orally in this Court, that there was no issue that the offences on the indictment formed "part of a series of offences of the same or similar character" within the meaning of s 29(1)(c) of the Criminal Procedure Act.
6. It was also open to her Honour to accept that the applicant was not "prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment" (s 21(2)(a) of the Criminal Procedure Act) and that there was "no other reason" to order that the accused be separately tried for the church counts and the netball counts (s 21(2)(b) of the Criminal Procedure Act).
7. For the reasons explained in the passages set out above, if this Court refuses leave, the applicant's rights to appeal against any potential conviction on the basis that the evidence of the netball counts was not admissible with respect to the church counts, or vice versa, are preserved.
8. In so far as it is appropriate for me to express a view as to the admissibility of the evidence in the course of an application for leave, I consider the anticipated evidence (as outlined in the witness statements before the trial judge and this Court) to be admissible.
9. For the reasons given above, it is appropriate for this Court to exercise restraint in relation to applications for leave to appeal against interlocutory orders where such orders are based on evidentiary rulings. Further, the applicant's challenge to the trial judge's ruling lacks merit.
10. There is an additional reason why leave ought not be granted. The trial judge made the relevant orders, including refusing the application for separate trials, on 26 August 2022. Although both the applicant and the Crown requested her Honour's reasons, the trial judge was not informed that the applicant intended to apply for leave to appeal pursuant to s 5F of the Criminal Appeal Act. Absent being notified of another purpose, her Honour was entitled to assume that the parties merely wanted reasons to be provided before the commencement of the trial.
11. The present application for leave was not filed until 8 December 2022, just over a week prior to the commencement of the court vacation. When the application was filed, her Honour had not yet provided reasons for the order. Had the applicant notified her Honour of the need to provide reasons for the purposes of the present application, such reasons could have been provided such that the application could have been heard well before the trial was due to commence. Her Honour was informed of the application on 27 January 2023 and provided reasons on 30 January 2023. It can be inferred that, had her Honour appreciated the need for reasons earlier, her Honour would have provided them earlier.
12. As referred to above, the trial is listed to commence on 6 February 2023. The application was listed as soon as practicable after being filed (but could not be listed until the reasons were available). Thus, the application has been heard on the Friday (3 February 2023) before the trial is due to start the following Monday (6 February 2023).
13. It is important that trial dates not be upset by late applications for leave to appeal. Even if there had been merit in the application, I would have been disposed to refuse leave to appeal since, for the reasons given above, the applicant's rights, if convicted, are protected and it is preferable that trials are not vacated without good reason.

Conclusion

1. For the reasons given above, I joined in the following order which was made at the conclusion of the hearing on 3 February 2023: 1. Refuse leave to appeal.

Amendments 30 March 2023 - Publication restriction removed - judgment published 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: 30 March 2023