Ground 1 Admissibility of the police interviews with MW
17 As has already been noted, edited copies of the two videoed interviews which MW had with police on 9 September 2002 were admitted as evidence in the Crown case on the trial of allegations of sexual assault offences committed by the appellant upon AM. The interview did not contain any explicit reference to assaults allegedly committed upon MW by the appellant except that there was an account of an incident that could have been taken to be that giving rise to the first count in the indictment: the allegation of the three way kiss. There was some dispute before this Court as to the details of the matters contained in MW's interviews, such as whether there was a reference to the incident giving rise to the first count or not. Because I have come to the view that there must be a new trial for other reasons, it is unnecessary for this Court to review the Judge's exercise of discretion in any great detail. If the Crown presses the tender of MW's interview at a re-trial, it will be for that trial judge to determine whether to admit the evidence or some part of it.
18 The appeal was conducted on the basis that the edited contents of MW's interview were admissible because they were relevant and fell within the exception to the hearsay rule found in s 65(1)(c) of the Evidence Act, or that at least it was open to the Judge to find that it was so admissible. The argument before this Court centred on the Judge's decision to admit the evidence notwithstanding his acknowledgment of its highly prejudicial nature. It was submitted that errors of principle occurred such that the decision to admit the evidence notwithstanding s 137 of the Evidence Act miscarried. It was submitted that the Judge misconceived the proper way in which the jury could use the evidence and that his reasons for admitting the evidence disclosed an inconsistency that went to the very heart of his decision.
19 MW's interview contained evidence of uncharged sexual activity between the complainant and the appellant. There were allegations that had not been supported by the evidence of the complainant herself. However, they were relatively minor having regard to the complainant's allegations. Whether such evidence should be admitted will depend upon the purpose for which it is being admitted and the probative value of the evidence to achieve that purpose. If the evidence is being admitted as context evidence, then its probative value will depend upon the need for the complainant's specific allegations giving rise to the charges in the indictment to be put into context so the jury can understand the full nature of the allegations made by the complainant. If the evidence is being used to prove a tendency of the accused to indulge in sexual activity with the complainant, it has to pass through the test for admissibility under s 97 and s 101 of the Evidence Act. If it does so, it can be used by the jury as evidence of the commission of the offences charged.
20 Both context evidence and tendency evidence impact upon the credibility of the complainant but in different ways. By providing context to the specific allegations in the charges, the evidence makes the complainant's account more intelligible and might explain aspects of her conduct, such as the absence of complaint. By proving a tendency of the accused, the evidence makes it more probable that the complainant is telling the truth in respect of the particular allegations because the accused is likely to have acted in the way that the complainant said he did. The principles set out in this and the previous paragraph seem to me to be uncontroversial and were decided some years ago in R v AH (1997) 42 NSWLR 702 and confirmed in R v Fraser (NSWCCA, unreported, 10 August 1998).
21 The interview of MW contained four discrete types of evidence relevant to the trial of allegations made by the complainant: direct evidence of one of the counts in the indictment; direct evidence of uncharged allegations of sexual assaults by the appellant upon the complainant; evidence of complaint by the complainant to MW about sexual acts committed by the appellant; and an alleged confession by the appellant to MW of sexual activity with the complainant. Clearly different considerations apply in determining whether to admit these different types of evidence regardless of the issue arising from the fact that MW was deceased and had never been subject to cross-examination. At the trial no attention, or insufficient attention, seems to have been given to the distinction between the different types of evidence and how the jury might use each of them.
22 For example, although there might be some argument as to whether the incident described by MW of the appellant kissing both him and the complainant was that to which the first count on the indictment related, the probative value of the evidence would clearly transcend its prejudicial value. The jury had evidence of such an event from the complainant. If MW was describing that event, as I believe he was, then it was direct evidence with no prejudicial effect other than to prove the allegation. If there were the possibility that MW was referring to some other occasion, then, unless the Crown intended to lead it as coincidence evidence, it had little probative value even though its prejudicial value might not have been great. It added little to what the complainant had said about the relationship between her and the appellant.
23 Similarly there were accounts in the interview of an alleged admission made by the accused to MW of sexual activity with the complainant of a nature similar to that contained in count 4 on the indictment. Clearly that admission might not have been able to be linked to that specific charge but that would not have meant that it was inadmissible. If the admission could be linked to count 4, it was direct evidence of the commission of that offence. If it could not be so linked, it was evidence to prove the sexual relationship between the appellant and the complainant. The evidence would, to my mind, have had little probative value to prove the context in which the complainant made her allegations, and if that was the purpose for which it was led, it seems to me that it should have been rejected because of its highly prejudicial nature in light of the fact that MW could not be cross-examined. It could also have been relied upon as evidence of the sexual interest of the appellant in the complainant. If this was to have been its use, the Crown ought to have issued a tendency notice in respect of that evidence.
24 The uncertainty as to whether the admission might have been linked to a particular charge and whether the account of the three way kiss related to the first count arose because MW's interview raised particular allegations of other sexual acts between the complainant and the appellant about which the complainant did not give evidence. It was not clear whether the specific acts that were the basis of the charges were the only sexual acts that had been allegedly committed by the appellant against the complainant. The complainant was not asked about the other acts mentioned in MW's interview during cross-examination. However, the failure of the complainant to mention them did not render the evidence of MW inadmissible. It was evidence of the relationship that existed between the complainant and the appellant other than as teacher and student, or budding actress and producer. It may have been admitted as evidence giving context to the complainant's allegations or it might have been evidence of the appellant's sexual interest in the complainant. If it were used as the latter, it was tendency evidence.
25 The material contained in MW's interview and played to the jury was referred to generally in the trial and in the written submissions of the Crown before this Court as "context evidence". The trial judge told the jury before the tape of MW's interview was played as to the use that they could make of it. During these directions he said:
It is corroborative evidence of part of [the complainant's] testimony and supports her allegations of a growing relationship between her and the accused. As such, it supports that evidence in [the complainant's] account of events, which says there was a growing sexual relationship, and the allegations she makes did not just spring, as it were, from nowhere. They were in context. It is admitted and placed before you on that basis.
26 In determining to admit the evidence of MW's interview, the only prejudicial aspect of MW's evidence considered by the Judge, other than the inability of the defence to cross-examine him, was "a strong emotional demand not to disbelieve the dead". No apparent regard was given to the prejudicial nature of the evidence, for example, flowing from the fact that the interview contained accounts of uncharged sexual activity to which no reference was made by the complainant. In other words no consideration was given to the fact that the jury might use the evidence or some part of it as tendency evidence if not warned against that approach.
27 Because no attention was given to the different types of evidence contained in the interview of MW when its admissibility was being considered, it was dealt with in a general way by the judge when deciding whether he should exclude it under s 137. Although the judge ultimately approached the question as to whether it should be rejected on the basis of weighing the probative value against its prejudicial effect, I do not believe, with respect, that the Judge paid sufficient regard to the nature of the evidence, the purpose for which it could be used by the jury, and its potential for unfair prejudice having regard to that purpose. If that had been done, I am by no means satisfied that all of the edited interview would have been admitted. For example, as I have already indicated, in my opinion the evidence of the alleged admission had so little weight as context evidence it should have been rejected under s 137.
28 In my opinion the significance of the fact that MW could not be cross-examined differed depending upon what part of his evidence was being considered and the purpose for which it was to be admitted. For example, it seems to me that there was little significance in the fact that MW could not be cross-examined in relation to his evidence of complaint by AM. That evidence was relevant, not because of context, but because it was evidence relevant to the consistency in the conduct of the complainant. The Judge told the jury that they could not use it as evidence of the truth of what the complainant said, so that it had limited probative value. There was other evidence of complaint in any event. However, it seems to me to be a very different matter when regard is had to the allegation that the appellant admitted having committed a sexual act upon the complainant. As I have already indicated, that had limited value as context evidence but was highly prejudicial. I do not see how it was open to a judge to admit the evidence in the absence of an opportunity to cross-examine the witness.
29 The Judge determined that there would be no danger of unfair prejudice inherent in the evidence outweighing its probative value for two reasons. The first was that the jury would be able to see the demeanour of MW in the video-recorded interview. The second reason was that the jury would be directed to take a two-step approach when dealing with the evidence in the Crown case. Firstly, the jury was to consider the evidence led by the Crown disregarding what was contained in MW's interview. It was then to form an assessment, on the basis of that evidence, of whether they were "comfortably sure that the complainant was telling the truth, and telling it accurately". If the jury reached that degree of satisfaction they could then have regard to the interview of MW to see whether it raised that belief to belief beyond reasonable doubt. This was how the Judge directed the jury they were to approach MW's interview, both before the interview was played to them and during the summing up.
30 I understand the genesis of this approach was based upon the fact that the Judge saw MW's evidence as purely corroborative and corroboration could not support evidence that was inherently unreliable. Therefore, the reasoning proceeds, before the jury could consider the interview of MW, they had to find the complainant reliable. But I believe there are a number of difficulties with this approach. Firstly, as I have already indicated, it blurs the different types of evidence contained in MW's interview and offers the jury no assistance at all as to how to use the contents of the interview in determining whether it raised a belief in the complainant's truth and reliability from comfortable satisfaction to belief beyond reasonable doubt.
31 Secondly, it does not recognise that some of the evidence once admitted was not simply corroboration of the complainant but was direct evidence of the commission of the offences charged in the indictment. Nor does this manner of dealing with the evidence take sufficiently into account, in my opinion, the difference in the prejudicial effect arising from various parts of the interview.
32 Thirdly, this type of evidence has not been considered to be corroboration, certainly since the inception of the Evidence Act, and to simply refer to it as corroboration deflects attention from the basis of its admission under the rules of evidence contained in the Act. For example, the use of the term "corroboration" or a reference to the evidence being "corroborative" masks the fact that some of the evidence may have been regarded by the jury as tendency evidence and, therefore, insufficient regard was had to its prejudicial effect as such or to what directions to give about it to the jury. This is a matter raised by the third ground of appeal.
33 Fourthly, although the Judge determined at the outset of his reasons that the evidence had high probative value despite its highly prejudicial effect, he appears to have reduced its probative value by the two-step approach without necessarily reducing its prejudicial effect.
34 Fifthly, notwithstanding that the courts consider the effectiveness of directions given to a jury on the basis that the jury will obey them, I believe that it is highly artificial in a case such as this to tell the jury to disregard a significant and prejudicial part of the Crown case while trying to determine whether they are comfortably satisfied with the complainant's evidence. I also have difficulty in appreciating how evidence that is admitted only to give context to the complainant's account can elevate her reliability from comfortable satisfaction to proof beyond reasonable doubt.
35 Although under this ground of appeal complaint was made that the judge did not take into account the possibility that the jury might conclude that MW committed suicide, I do not believe that it would have done so. The jury knew that MW had died, but they did not know when that death occurred. It could have been any time between the taking of the interview and the trial: a period of about 2 years. They were told not to speculate about the cause of his death and, even if they did do so contrary to that direction, I do not believe they would have concluded that he had committed suicide.
36 It was submitted that, when the Judge was considering whether to exclude the evidence under s 137 of the Act, he took into account that the evidence would be subject of warnings under s 165 of the Act but he did not give those warnings in the summing up. Therefore, it was argued, the trial judge's discretion miscarried. The Judge at the end of his judgment added, perhaps by way of afterthought, that the evidence would be accompanied by warnings under s 165(1)(a), (c) and (d). These are warnings that the evidence might be unreliable because it was evidence of hearsay or an admission (a), because it might have been affected by the witness's age (c), and because the witness might reasonably be supposed to have been criminally concerned in the events (d). The only warning the Judge gave the jury was that in respect of it being hearsay evidence, untested by cross-examination. Defence counsel sought no other warning.
37 For my part I do not understand why the witness's age of 14 meant that his evidence might be unreliable. Nor do I understand how the Judge might have warned the jury of the unreliability of his evidence because MW was complicit in the offences committed by the appellant. The Judge had already determined that the statements made by MW were not against interest because MW might not have seen his acts as more than "a breach of proper conduct originated and perpetrated by the accused". This was hardly a case where the jury had to be warned that MW might have a reason for lying because he wanted to diminish his own criminality by making false allegations against the appellant. There was no error in the Judge not giving these warnings. But in any event, it is clear that the Judge had decided to admit the evidence before he considered that he was going to give warnings to the jury about its potential unreliability.
38 In my opinion the Judge erred in the manner in which he determined and dealt with the issue of whether he should reject the interview of MW under s 137. In my opinion there was a miscarriage of justice by the admission of the evidence and the way that the jury were invited to consider it. True it is that to some degree the Judge reduced the probative force of the evidence by the two-step approach, but the alleged admission made by the appellant to MW was highly prejudicial evidence that in my opinion should not have been admitted and certainly not as context evidence. The ground having been made out, the appeal must be allowed, the verdicts quashed and a new trial ordered.
39 In my opinion, it would be open for a judge on the retrial to admit some parts of the edited interview after a careful analysis of the contents of that interview and a proper assessment made of the probative value of its various parts as against their prejudicial effect.
40 The fact that the defence could not cross-examine MW was an important consideration but not necessarily a decisive one. However, as was pointed out in R v Suteski (2002) 56 NSWLR 82 at [127], each case has to be determined on its own particular facts depending upon the probative value of the evidence and its prejudicial effect. Suteski was a very different case to the present. In the present case the fact that the defence could not cross-examine MW might have had more significance when considering some part of his evidence than it would when considering some other part of it. For example, it might be considered that it had more prejudicial impact in regards to the alleged admission rather than it did to the evidence of complaint.
41 Before leaving this ground of appeal, I should mention one matter that was not the subject of any argument but it may be a matter that should be considered if the Crown makes application to adduce the evidence at a retrial. The videotaped evidence of MW was made in accordance with s 7 of the Evidence (Children) Act 1977. The section in effect requires a police officer questioning a child under the age of 16 years to ensure that any representation made by the child during the questioning is recorded. The recording can be played as evidence in chief of the child under s 9. However s 11(2) requires that the child who gives evidence by that procedure be available for cross-examination and re-examination in the courtroom or by alternative arrangements such as video link. I understand that the evidence of MW's interview was not played under these provisions, but it may be a relevant factor to be considered under s 137 of the Evidence Act that the legislature has mandated that in the normal case the child be available for cross-examination at the trial where a tape, made in accordance with s 7, is played to the jury.
42 It is very unsatisfactory that the appeal should be allowed because of the Crown's desire to have MW's interview admitted notwithstanding that he could not be cross-examined. In my opinion the Crown case against the appellant was a strong one even without that material having regard to the evidence supporting the complainant's account.