ES v R

Defence case 27 The appellant gave sworn evidence denying all offences, and denying any inappropriate conduct with the complainant. He said there was no ladder in the swimming pool at Busby. He said he was not allowed to take passengers in the truck that he drove, and never did so. He had conversed with the complainant in the presence of others about whether he was circumcised. 28 The appellant gave evidence of a high level of stress and volume in the confrontation on 17 March 2007, and agreed that in that setting he eventually said "yes OK OK I touched you". He had repeatedly denied this, but he was sick and tired of the screaming, and after half to three-quarters of an hour he made that comment to shut the complainant up. 29 Evidence had been adduced through the officer in charge of the investigation that the appellant had no convictions for assault or sexual assault.

Jury addresses 30 In his address to the jury, the Crown Prosecutor said this: When you're evaluating the evidence in the case, please also consider the evidence from [the complainant's] sister [K], not just the fact that she walked in and discovered the accused having a look at [the complainant's] genitals and his response, the red, flustered face et cetera. But also the way in which [the complainant] started trying to sleep with her at night.

As I said to you, it's not a question of the crown saying, well he's not a witness you'd believe and that's the end of the story. You must be persuaded on the account that [the complainant] gave you. But it's not just a question of what's called oath on oath, that is, one person saying A and the other person saying B. This is a situation where the accused himself admitted to what he did and is now trying to come back from it. It's a situation where [K] sees him doing something, which with the wisdom of hindsight, was quite improper. Of course he denies it.

It's not a case where you'd be thinking to you yourself, well 30 odd years ago, how could you remember? It's a case where you would be satisfied, I'd suggest to you [the complainant's] account, but you have the added benefit of the admission and you have the added benefit of the support to [the complainant's] account by what her sister has told you.

Summing up 31 In the course of his summing up, the trial judge said this: The complainant's sister gave evidence you will recall that on an occasion she when looking for the complainant for her to come and play with their brother [J] in the yard came upon the complainant and the accused in a bedroom where the complainant had her pants and underpants down around her ankles and the accused was between her legs and he said that he was examining her for her complaint of a rash. The complainant did not give evidence of that incident. The Crown relies upon that as corroborating as to the evidence of the complainant as to the conduct of the accused towards her. The complainant did not give evidence of that incident, she said when asked that there were more than fifty instances of what she terms misconduct and she was asked to tell the police about the incidents that had occurred she says to her which were strong in her memory or firm in her memory and that is why the Crown relied upon the seven specific instances that the complainant says was sexual misconduct by the accused.

You heard from the complainant's older sister that on one occasion she observed circumstances which she said in hindsight appear to be different to the explanation that the accused gave.

You have heard the accused deny that he ever misconducted himself in a sexual way towards the complainant. These are my words, not his, but you known what I am saying. He has denied the complainant's allegations. He has denied the complainant's sister's allegation.

In this particular criminal trial, let me tell you, the Crown does not need to prove the allegation made by the complainant's older sister of what she said she saw and which in hindsight she said she thought was now something different to what she was told then, and that is because that allegation although relevant, is not a charge the Director of Public Prosecutions, the Crown, has brought against the accused.

Now members of the jury, I do not propose to review the evidence of all of the witnesses. There are some things however that I propose to say about the evidence of all of the witnesses. The complainant has given evidence to you of seven instances that she can specifically remember in which she says, the accused sexually interfered with her. The Crown has relied upon five of those seven specific instances. In relation to the two, in respect of which the Crown does not present a charge, you are entitled to take it into account if you are satisfied beyond reasonable doubt that it occurred.

Equally, in relation to what the complainant's older sister has said about the specific occasion that she remembered, you are entitled to take it into account as corroboration, that is, something that supports the complainant's allegations, if you are satisfied beyond reasonable doubt that it occurred.

So what I am saying is, in relation to the complainant's evidence, in relation to the two instances in respect of which the Crown does not bring a specific charge, and in relation to the complainant's oldest sister's evidence of the incidents which she said she saw, you are entitled to take it into account in support of the complainant, if you wish to do so, but only if you are satisfied beyond reasonable doubt that the incidents occurred. If you are not satisfied beyond reasonable doubt that incidents occurred then you put them to one side. 32 There was no relevant objection to the summing up or request for further direction.

Issue on appeal 33 The appellant relies on the following grounds of appeal: 1. The trial judge erred in admitting the evidence of [K's] observation of the appellant touching the complainant's genitalia.

2. The trial judge failed to adequately direct the jury and/or misdirected the jury in relation to this evidence.

3. The trial of the appellant miscarried by virtue of the reception of inadmissible and prejudicial evidence, and the treatment of the same by the Crown Prosecutor and the trial judge. 34 I will consider in turn the following issues: (1) Whether there was error in admitting the evidence of K (ground 1). (2) Whether there was error in the directions to the jury (ground 2). (3) Whether there was error in relation to other evidence (ground 3). (4) Whether the appeal should be allowed having regard to the proviso.

Statutory provisions 35 The appeal requires some consideration of ss 97 and 101 of the Evidence Act 1995, which are as follows: 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: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(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.

(2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note . The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence 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.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 36 It also involves some consideration of s 6(1) of the Criminal Appeal Act 1912, which is as follows: 6 Determination of appeals in ordinary cases

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Admission of evidence 37 As noted earlier, K's evidence about her observation of events in the master bedroom in 1973 or 1974 was objected to on the basis that its prejudicial effect outweighed its probative value. This objection occurred in circumstances where no notice had been given under s 97 of the Evidence Act, no direction under s 100 of that Act (concerning dispensation with notice) had been sought or given, and the Crown had stated prior to the empanelling of the jury that the Crown would not be leading tendency evidence. 38 Where a person is charged with one or more sexual offences against a child, evidence of uncharged inappropriate sexual contact between the accused and that child can have probative value. In my opinion, there are (at least theoretically) three broad ways in which it can do so: (1) As context evidence (so that the charged acts are not seen unrealistically as being isolated); (2) As motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and (3) As tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has). 39 However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]-[67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]-[158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101]. 40 Consistently with this, it is now well established that if evidence of uncharged acts is to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272. 41 Accordingly, in this case the only basis on which the evidence in question could have been admitted was as context evidence. Context evidence can have probative value in various ways, such as to show that the alleged offences were not isolated incidents, and thus to explain lack of surprise or resistance or complaint by the complainant, or explain why the accused was confident enough to do the act. 42 In this case, when objection was taken to the evidence, there was no reference made to s 97 or s 101 of the Evidence Act, and these sections were not referred to by the trial judge. The trial judge addressed the question in terms of whether the evidence was relevant and if so whether its probative value was outweighed by its prejudicial effect. The trial judge held the evidence was relevant in that it corroborated the complainant, and that it was not unfairly prejudicial (Transcript 4/3/09, pp 3-4). 43 In my opinion, the evidence objected to potentially had considerable probative force, particularly because it was evidence that could be considered as corroborating the complainant; but it would have that force only as motive/tendency evidence. If it were considered as doing no more than enabling the charged acts to be seen in context, and as not supporting the complainant at all by way of motive/tendency reasoning, its probative value was at best extremely modest. However, since the evidence was not admissible in this case as motive/tendency evidence because of failure to comply with s 97, its considerable probative force in that character must be considered as being unfairly prejudicial. In my opinion, it is clear that accordingly the modest probative value as context evidence was plainly outweighed by the danger of unfair prejudice from its probative force as motive/tendency evidence (which, for the reasons I have given, must be considered as unfairly prejudicial). 44 In my opinion, the admission over objection of this significant piece of evidence was a miscarriage of justice within the first part of s 6(1) of the Criminal Appeal Act. As pointed out by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [18], this phrase has been treated as meaning any departure from trial according to law regardless of the nature or importance of that departure. Accordingly, in my opinion the appeal must be allowed in this case, unless the proviso to s 6(1) applies.

Directions to jury 45 It will have been seen from the extracts of the Crown Prosecutor's address to the jury that the Crown Prosecutor invited the jury to treat K's evidence as corroborating the complainant; and it will have been seen that in his summing up the primary judge referred to the Crown as relying on K's evidence as corroborating the evidence of the complainant, referred to the appellant's denial of K's allegation, and said the jury was entitled to take it into account as corroboration supporting the complainant's allegations, if satisfied beyond reasonable doubt that it occurred. 46 The requirement of satisfaction beyond reasonable doubt would only arise if K's evidence of this incident had been admitted as tendency evidence, which it was not: DJV at [30], JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333 at [32]. In any event, the directions of the primary judge did nothing to combat the prejudicial effect of the wrongly admitted evidence, but on the contrary encouraged its use as corroboration of the complainant's evidence, which it could not legitimately be.

Other evidence 47 The appellant also challenged the admission and/or treatment of other evidence: (1) Generalised evidence of misconduct; (2) Evidence of the incident when the appellant came into the complainant's room supposedly looking for a dog; (3) Evidence of the incident when the appellant came into the complainant's room when the complainant's mother was out; and (4) Evidence concerning removal of the door of the complainant's bedroom. 48 Ms Rigg for the appellant submitted that, while items (2) and (3) could possibly have had some probative value as context evidence, this could not have outweighed their prejudicial effect. She also submitted that the jury was not provided with appropriate guidance in relation to any of these items of evidence, and that the trial judge's directions to the effect that it could use the two uncharged acts in support of the complainant if satisfied beyond reasonable doubt that they occurred, was apt to mislead the jury. 49 For the Crown it was submitted that item (2) was admissible to show complaint at the first opportunity; to enable the jury to understand the complainant's evidence that, after a few complainants, she gave up complaining to her mother; and to explain why she stayed with the family so long, having been conditioned to this type of conduct. The Crown submitted that item (3) was admissible to explain the complainant's conduct in barricading her door. It was submitted that the probative value in these respects was not outweighed by the danger of unfair prejudice. 50 The Crown accepted that the directions to the jury as to the use it could make of items (1) to (4) were inadequate. However, in relation to all these matters, the Crown submitted that the appellant had not demonstrated that there had been a miscarriage of justice which would justify the grant of leave under Rule 4 of the Criminal Appeal Rules. 51 As noted earlier, no objection was taken to any of this evidence, and no complaint made about the trial judge's directions. In his address to the jury, the defence counsel used the uncharged acts among other matters, to discredit the complainant's evidence, by suggesting her evidence was inconsistent with her continued contact with the appellant between 1980 and 2000. 52 Before this Court, the appellant tendered a communication from the defence counsel at trial asserting that he was not aware of the inadmissibility of the evidence of the uncharged acts or the lack of adequate directions, and that there was no tactical reason for not objecting to the evidence or complaining about the trial judge's directions. In my opinion, this communication does not give substantial support to the appellant's contention that a miscarriage of justice was shown. 53 But for the existence of grounds (1) and (2) concerning K's evidence, I may have acceded to the Crown's submissions based on Rule 4. But in relation to ground (1) and in relation to ground (2) insofar as it relates to the effect of evidence wrongly admitted, Rule 4 does not apply; so the appeal must be allowed unless the proviso to s 6(1) applies.

Proviso 54 It was submitted for the Crown that the proviso should be applied, because the Crown case was substantially supported by the admission of the appellant that he did touch the complainant when she was young. 55 In my opinion, this Court cannot be satisfied there was no substantial miscarriage of justice within the meaning of the proviso. It is true there was evidence of an admission by the appellant that he touched the complainant; but the appellant gave an explanation of this which the jury could rationally have accepted, if not persuaded by other evidence of the guilt of the appellant. The jury had before it the evidence of K concerning an uncharged incident, which should not have been admitted and which, particularly having regard to the directions concerning it, could have been very material in the jury's deliberations. 56 I do note that the appellant raised good character in a particular respect, relevantly the absence of convictions for sexual assault. In those circumstances, it may well have been open to the Crown to lead the evidence of K to rebut this evidence of good character, without satisfying the requirements of s 97 and s 101: see s 110(3) of the Evidence Act. However, the evidence of good character was led after the evidence of K had been wrongly admitted; and the Crown concedes that, had that evidence been excluded, it is likely that defence counsel would have not led the evidence of good character. Accordingly, this consideration does not affect the question of miscarriage of justice. 57 For those reasons, I would not apply the proviso.

Conclusion 58 It would appear that leave to appeal is necessary, because the appeal is not a pure question of law. I would grant leave to appeal, allow the appeal and quash the convictions and sentences. 59 A question has arisen as to whether this Court should direct a verdict of acquittal or direct a new trial. The question is whether the Court considers that the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order: see Criminal Appeal Act s 8, ST v R [2010] NSWCCA 5. 60 The last of the appellant's non-parole periods expired on 11 January 2010, and the last of his sentences will expire on 11 October 2010. This is one factor weighing against ordering a new trial. Other factors are the significant lapse of time since the alleged offences were committed, and the stress and uncertainty that would be caused by such an order. 61 Factors in favour of ordering a new trial are that there was admissible evidence on which a jury, properly instructed, could convict (and it may be, if K's evidence were to be admitted as tendency evidence in a new trial, that the Crown case could be considered very strong), the administration of justice favours resolution of the charges at a properly conducted trial, and the first trial was quite short. 62 A verdict of acquittal would tend to suggest that the appellant was innocent of the charges. If a new trial is ordered, the Director of Public Prosecutions may well decide not to put the appellant on trial, particularly because of the expiration of his non-parole periods. 63 On balance, I consider that the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order. 64 For those reasons, I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed. (3) Convictions and sentences quashed. (4) Direct that there be a new trial. 65 WHEALY J: I agree with Hodgson JA. 66 BUDDIN J: I agree with Hodgson JA. **********

08/09/2010 - To correct the names of Counsel - Paragraph(s) cover

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