GE v R

[2018] NSWCCA 91

Court of Criminal Appeal (NSW)|2018-04-13|Before: Fullerton J, McCallum J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-04-13

Before

Fullerton J, McCallum J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

Judgment

SIMPSON AJA: I agree with Fullerton J.
FULLERTON J: On 19 July 2016 the applicant entered pleas of not guilty to an indictment containing ten counts (Counts 4 and 5 being cast in the alternative), each of which alleged sexual misconduct against CE, his adopted daughter.
The trial on that indictment was convened before Norton DCJ and a jury.
On 1 August 2016 the jury returned verdicts of not guilty in respect of Counts 2, 4 and 6 on the indictment. Count 2 charged an aggravated sexual intercourse with a child under 10 years, and Count 4 an aggravated sexual intercourse with a child between the age of 10 and 14 years. Count 2 involved an allegation of oral intercourse while Count 4 involved an allegation of anal intercourse. Count 6 charged an act of incitement of a child under the age of 16 to commit an act of indecency.
On 2 August 2016 the jury returned verdicts of guilty in respect of Counts 7 and 9 on the indictment. Count 7 charged an aggravated intercourse with a child over the age of 10 years and under the age of 14 years, involving oral intercourse, contrary to s 66C(2) of the Crimes Act 1900 (NSW). Count 9 charged an aggravated indecent assault with a child under the age of 16 years, involving a squeezing of CE's buttocks, contrary to s 61M(2) of the Crimes Act.
On 2 August 2016 the jury also returned verdicts of not guilty in respect of two further counts: one count of aggravated sexual intercourse with a child between the ages of 10 and 14 years (Count 8) and a further count of aggravated indecent assault of a child under 16 years (Count 10).
On 5 August 2016 the jury informed the trial judge that they were unable to reach verdicts in respect of the balance of the counts on the indictment, being Counts 1, 3 and 5. Counts 1 and 3 alleged two further acts of oral intercourse with CE charged as acts of aggravated sexual intercourse, whilst Count 5 (laid in the alternative to Count 4) alleged an aggravated indecent assault.

[6]

The first admission

TE gave the following evidence of the first admission: Q When you got home, what did you do? A I told [CE] to go and play a game in her room and when I came out from getting her organised in her room, [the applicant] was sitting at the dining room table with his head down. Q Did you say anything to him? A I sat down and I asked him how he could do this. Q What did he say? A He looked up at me and you could tell he was crying and he said that he doesn't know. He was in a dark place. Q As a result of him telling you that, what did you do? Where did you go? A I got up and I went outside onto the deck. Q Then what happened? A He followed me outside and he asked me what I was going to do. Q What did you tell him? A I told him that I wasn't sure yet - that I needed a bit of time and space to process what I had just heard. Q What did he say, if anything, to you? A He didn't go back inside or leave me alone. He started begging me not to go to the police. He told me he was sorry. He told me he loves me more than anything and he would never do it again. He told me he'd be better in future. He'd be a better dad. He'd be a better husband and he told me that I must understand that [CE's] not his biological daughter, so that makes a difference and he'd never do anything to [his other daughter].
She then explained further: Q What did he say, if anything? Can you recall? A He said, "Okay", but he was constantly telling me how sorry he was and he'd make it up to us and he'd be better. Q Did [MF] come? A He did. Q Did [MF] go? A He did. Q After he left, what happened then? A At some point between then and 20 February, I told [the applicant] he had to move out. Q And did he? A He did. Q Where did he go? Do you know? A Later, he told me he stayed with his friend from work, [AL]. Q [AL]? A Yes, I'm not entirely sure of his surname. I think it's [L] but his first name is [A]. Q He said that it was a work colleague of his, was he? A He was a work colleague from Elcom, [the applicant's] original job. I think by this point, [the applicant] was working at Commonwealth Bank. Q How long was he gone from the house? A It was only for one night. Q While he was away from the house, did he contact you? A Yes, he did. He sent multiple text messages and phoned me. If I recall, he also sent me flowers saying he was sorry. Q What were the texts and telephone calls about? What did he say to you? A Again saying that he was sorry and he would be better and it wouldn't happen again and he loved me and he loved [CE], he loved [his other daughter] and he loved our family. Q So he stayed away one night, you said? A Yes. Q And did he come back the following day? A Yes. Q Why did you let him come back? A Because when I was a young girl around [CE's] age, the same thing happened to me from my father and both my brothers and when I went to my mum and told her about it, it all stopped. It never happened again. And I had what I thought was a pretty good childhood. I grew up normally, I went to school and you know - met someone and had a child and I just wanted to save the family and I've - I've thought that maybe because she's told me, I would be able to stop it from happening again and pick up the pieces. … Q And after you let the accused come back to the house for the reasons you've given, wanting to pick up the pieces and try and prevent it from happening again, did you do something in so far as - … A Yes, I did. I told him that he would have to abide by certain rules to make sure that nothing would happen to [CE] ever again. Q And what did he say? A He agreed to this. Q What were the rules? A There were quite a few. Ones I can remember were that he was not to go anywhere near her bedroom or her bathroom, that he wasn't to stay up late at night after we'd all gone to bed and watch TV or play games, that he wasn't to go out to work functions anymore and come home drunk, that the children were never to be left alone with him - [CE] or [his other daughter] - all of which he agreed to.

[8]

The third admission

The third admission was in a text message sent by the applicant, after TE had moved to New Zealand with her children: Q Then did you reply in the blue background, "You are missing my point, tho. I want to get you out of that job you are in. Say what you like, but I [sic] happens after work functions. I want to get out of this house, I want to take you away from anything that can trigger this again. You are asking me such a HUGE thing to stay, and try trust you again, when all I want to do is run for the hills. I need to see that you are willing to give it all up for the sake of our family. And I need to be able to carry on with as normal a life as possible. Staying here together, that won't be possible." A Yes. Q. Did the accused reply, "[TE], don't talk trash about it being my work. It has never happened after a work function. Only once after a piss up on the town with [A]. I work from 9 to 5 every day. Which I would have to do with ANY job in order to support us. Moving to New Zealand isn't magically going to change our lifestyle. I am still going to have to work the same hours in a shitty little job with the same amount of stress." A Yes.
TE explained the meaning of the messages: Q And may I take you to this sentence, "Say what you like, but I happens after work functions." Firstly, did you mean to type the word "I"? A No. Q What word were you intending to type? A It was meant to read "but it happens after work functions". Q Could you tell the members of the jury what you were referred to when you used the word "it" in that text message? A I was referring to [the applicant] sexually abusing [CE].
The applicant gave evidence denying that the conversations the subject of the first and second admissions had taken place, and explained what he meant by the text message. He gave the following evidence: Q You've heard [TE] say that you made admissions to her about sexually assaulting [CE] on that day. Is that true? A Yes, sorry, [CE] making allegations against me. Q Did you have a conversation about [TE] about you sexually assaulting [CE] on that day? A No, I did not. Q Did you say anything to her like, "I was in a dark place" or anything like that? A No, I did not. Q Did you say anything to her like it was different because [CE] was not your biological daughter? A No, I did not.
The significance of this body of evidence, from the Crown's perspective, was encapsulated in the Crown prosecutor's closing address: The Crown relies upon these utterances as admissions that the accused engaged in sexual conduct with the complainant, and while the allegation of breast touching and fingering is nonspecific as to the charged counts on the indictment, they support in the Crown's submission that sexually inappropriate contact actually occurred. The admissions as to cunnilingus you might think support the occurrence of Count 8, which is an allegation of cunnilingus at XX Road. And her Honour will direct you, will give you very specific directions of law how you can use these admissions if you accept that they occurred, and the Crown says that you would, and she will direct you about them as well as that text message of 30 May 2013 upon which I've already made [submissions] to you about what inferences that you would draw beyond a reasonable doubt about what those text messages mean.
In defence counsel's closing address the jury were urged to reject TE's evidence as untrue and, so far as the text messages were concerned, to accept the reasonable possibility that the applicant was talking about generalised bad behaviour in the marriage when referring repeatedly to "it" having occurred at various times, but not to sexual misconduct of any kind.

[9]

The summing up

The trial judge summarised the evidence of the admissions and the submissions of counsel concerning it, after which she directed the jury in the following terms: So the direction I give you is as follows. If you find the accused made the statements, or that the "it" in the text referred to sexual conduct, you may in certain circumstances take this into account as evidence of guilt. So thus, the first question for you is to look at the evidence and decide whether you find the statements were made and whether you find the word "it" refers to sexual conduct in the text. When I say you may take those things into account I am not suggesting that they separately or together could prove the accused's guilt on any count. What I mean is that you may consider those matters along with all of the other facts that the Crown relies on and which you find established on the evidence when considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if you find the accused made one, two, or all of the admissions, that finding could prove the accused's guilt beyond reasonable doubt with respect to any one count on the indictment. If you find the words spoken and/or sent by text amount to a general admission by the accused of sexual conduct towards the complainant even though they may not refer to any particular episode or count, that evidence of an admission could properly support the occurrence of the conduct charged and described in the indictment. Put another way such evidence could be relevant and important in assessing the complainant's credibility and providing evidence of the relationship in which the events are said to have occurred.
Her Honour continued: Because the Crown seeks to rely on these words and text as admissions the Crown must prove, beyond reasonable doubt, that they were made and that they were admissions. You are not to use these admissions if you find them to be admissions in any other way. In particular, you may not use them to reason that the accused is a bad person and therefore more likely to have omitted the offences. There are two important warnings I have to give you about what is called "tendency thinking". I must give you some important warnings with regard to this evidence which the Crown says amounts to admissions. You must not use evidence of other acts committed against a complainant as establishing a tendency on the part of the accused to commit offences of the type charged or that he is the sort of person who would commit the types of crimes with which he is charged. You must not substitute the evidence contained in the admissions for the evidence of the specific counts described as "offences" on the indictment. You must not reason that because the accused may have done something wrong or admitted to having done something wrong with the complainant on other occasions which are not the subject of any count, he must have done so on the occasions in the indictment. You must keep in mind at all times the very limited basis that you, the jury, can take that evidence into account. You need to focus your attention on the evidence that bears on each specific charge in the indictment. Your decision as to whether the Crown has proved the elements of each offence beyond reasonable doubt must be made on the evidence that is led in relation to each count separately.

[10]

The appeal

In the written submissions filed by the applicant's counsel it was contended that the evidence of the admissions, so described, could only have been properly admissible either as tendency evidence or as context evidence, and that the trial judge's directions as to how the jury should approach their consideration of that evidence were inadequate for that reason.
At the hearing of the appeal that argument was effectively abandoned, as was the submission that her Honour's direction to the jury that they must not apply tendency reasoning was deficient.
The applicant's reformulated case advanced on the hearing of the appeal appears to be in response to the Crown's filed submissions and its reliance upon ARS v R [2011] NSWCCA 266 where, at [80]-[87], Bathurst CJ (Hidden and Johnson JJ agreeing) confirmed the correctness of the approach of Giles JA in Rolfe v R [2007] NSWCCA 155; 173 A Crim R 168 where, at [62]-[69], his Honour considered the basis upon which an accused's general admissions to having engaged in sexual conduct or sexual activities with a complainant might be relied upon by the Crown in proof of guilt.
At [66]-[67] Giles JA made the following observations: [66] Evidence of uncharged sexual conduct may be given by the complainant. Possibly it could be given by a third party observer, or it could be by way of admission by the accused. In R v Wickham evidence of the accused's admission to a police officer of earlier sexual activities with the complainant was held to be admissible "for the same reasons as" the complainant's evidence of uncharged sexual conduct. The evidence will ordinarily be of sexual conduct on particular occasions, necessarily occasions other than those of the charged sexual conduct. [67] Where the evidence is by way of admission by the accused of sexual activities with the complainant, and is not attributed to particular occasions being occasions other than those of the charged sexual conduct, in my view an additional relevance can arise. Such an admission that the accused engaged in sexual conduct with the complainant, whilst non-specific as to the charged sexual conduct and not of itself sufficient to prove that conduct, is relevant not on the bases of context and background and of "guilty passion" earlier mentioned, but because when taken with other evidence the jury could regard it as relating to or at least encompassing the charged sexual conduct and supporting that the charged sexual conduct occurred. If accepted, it could rationally affect the assessment of the probability of the conduct charged against the accused (see Evidence Act, s 55). It will, of course, require an assessment of the admission, understood in its own context; for example, marked generality may mean that the admission can not properly be taken to encompass the charged conduct.
In ARS, as with the present case, the Crown adduced evidence of general admissions by the accused of having sexual contact with his stepdaughter, not as tendency evidence, but as a general admission capable of supporting the occurrence of the conduct charged in the indictment without it being capable of establishing the accused's guilt on any particular count. In ARS the trial judge directed the jury that were they to find that what the accused was recorded as having said to his stepdaughter amounted to a general admission by him of sexual conduct towards her, even if it did not refer to any particular episode, "… that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment".
At [83]-[86], Bathurst CJ said of that approach as follows: [83] The approach adopted by the Crown and by the trial judge in his summing up is consistent with what was approved in Rolfe v R above. The evidence was not sought to be used as tendency evidence. The trial judge's direction as to the use to which the evidence could be put was therefore correct, in my opinion. [84] There remains, of course, the risk that the evidence could be used as tendency evidence. This risk also affects evidence of uncharged acts. However, as I indicate subsequently in this judgment the trial judge made a general anti-tendency direction. [85] The analysis above is not affected, in my opinion, by what was said in the High Court in HML v R [2008] HCA 16; (2008) 235 CLR 334, in considering the admissibility of uncharged acts. In that case, Hayne J, with whom Gummow and Kirby JJ agreed, made the following comments (at [156]): Evidence that shows that the accused had a sexual interest in the complainant may also be important in assessing the credibility and coherence of the complainant's evidence generally and, in particular, the account of the events that constitute the offence as charged. But the relevance of the evidence of other sexual conduct or events lies in the proof of demonstrated sexual interest in the complainant. The relevance of such evidence in a particular case may or may not be sufficiently captured by describing it as evidence about the nature of the relationship between the complainant and the accused. To describe the evidence as "relationship evidence" or evidence of "guilty passion" is to assert the relevance of the evidence. [86] In the present case the evidence was said to constitute an admission of past sexual conduct. Such evidence, in this case, would be relevant and important in assessing the complainant's credibility and providing evidence of the relationship in which the events occurred. It may be accepted that the fact that the admission was made and the fact they were admissions were matters to be proved beyond reasonable doubt (see HML above). The direction of the trial judge accommodated this. In the passage of the summing up referred to at [82] above, the trial judge emphasised that the question of whether the recordings constituted admissions was a matter for the jury. In relation to the recording he made the following remarks in the context of the expert evidence called in respect of the tape (SU 91): It is not a case of choosing between their evidence [that is, the evidence of the experts]. If you think that there is a reasonable possibility that the evidence of Mr Guard [sic] favouring the accused when taken in conjunction with all the other evidence may be correct you should proceed on that basis. In other words in determining whether the Crown has proved its case beyond reasonable doubt you are required to take into consideration the reasonable possibility that the evidence of Mr Guard [sic] when taken in conjunction with all the other evidence may be correct. If you think that there is no reasonable possibility of the evidence of Mr Guard [sic] being correct and that the evidence of Mr Ringrose is correct then you should proceed accordingly.
In the Crown's submission, her Honour's directions to the jury were entirely concordant with that approach.
In oral argument, the applicant's counsel accepted that ARS is authority for the proposition that TE's evidence of what the applicant said to her was admissible as a general admission by him that he had misconducted himself towards CE. He maintained the submission, however, that the trial judge's direction as to how the jury might use that evidence was deficient because they were not directed that before they could use any of his admissions in support of guilt they would need to be satisfied that they "related to or at least encompassed the charged conduct". Counsel submitted that the comments of Giles JA at [67] in Rolfe, and this Court's endorsement of the correctness of that approach in ARS, necessitated that the trial judge give a direction to that effect and that without it the direction that was given was flawed. It was not submitted that her Honour's directions were deficient in any other respect.
In the course of oral argument, and using the trial judge's directions as a template, the applicant's counsel proposed a reformulated direction in the following terms: The Crown does not suggest that if you find the accused made one, two, or all of the admissions, that finding could prove the accused's guilt beyond reasonable doubt with respect to any one count on the indictment. If you find the words spoken and/or sent by text amount to a general admission by the accused of sexual conduct towards the complainant, even though they may not refer to any particular episode or count, that evidence of an admission could properly support the occurrence of the conduct charged and described in the indictment but only if you are satisfied that the general admissions relate to or are at least encompassed by the charged conduct and go to establish the fact that it occurred. Put another way such evidence could be relevant and important in assessing the complainant's credibility in proving evidence of the relationship in which the events are said to have occurred.
No redirection of that kind, or redirections of any kind, were sought by trial counsel.
In Dent v R [2017] NSWCCA 166, at [113], Hoeben CJ at CL referred to the judgment of Basten JA (with whom Button and N Adams JJ agreed) in Greenhalgh v R [2017] NSWCCA 94 where, in relation to r 4, his Honour said at [14]: Certain points may be made in relation to the purpose and effect of r 4. It is in terms a constraint upon the pursuit of a ground of appeal which would otherwise be available. It assumes the existence of a ground which, if upheld, could result in the quashing of a conviction. On the other hand, it does not assume that the ground will be upheld; rather, it precludes reliance upon the ground. If the ground can be seen to lack merit, leave will be refused. The converse is not necessarily correct. That is because, while lack of merit may be readily discernible, merit may not. That fact is inherent in the rationale for r 4; divorced from the understanding resulting from involvement in the trial, a claim that something should have happened which did not is hard to evaluate. If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused.
I am not persuaded that there is merit in the reformulated argument advanced at the hearing of the appeal in support of the sole ground of appeal relied upon by the applicant. I do not regard the trial judge's directions as deficient in any relevant respect or that the reformulated direction proposed by the applicant's counsel was warranted. The direction that was given was sufficient to guide the jury as to the use they could properly make of the admissions to support the occurrence of the conduct charged in the indictment.
There is no basis for a grant of leave under r 4 unless this Court is satisfied that there is an arguable case that the trial judge has made an error of law or the Court is otherwise satisfied that the conviction is productive of a miscarriage of justice. I am not satisfied that leave under r 4 should be granted on either basis.
I would refuse leave and dismiss the appeal.
McCALLUM J: I agree with Fullerton J, for the reasons her Honour has stated and for the following additional reasons.
The decision in Rolfe at [66] holds that an admission of uncharged sexual conduct might be admissible "for the same reasons as" a complainant's (or presumably another witness's) evidence of uncharged sexual conduct. Justice Giles noted that such evidence will "ordinarily" be of sexual conduct on particular occasions (necessarily other than those on the indictment). However, the judgment does not exclude the proposition that a general admission of uncharged conduct might be admissible for the same reasons, that is, either as tendency evidence or as context evidence, subject always to the constraints relating to those kinds of evidence. In the case of allegations of sexual offending by a family member, a general admission of sexual conduct might well have significant probative value when admitted for either of those reasons.
The decision in Rolfe further holds at [67] that a general admission might also be admissible as an admission of the charged conduct if, taken with the other evidence, it is capable of "relating to or at least encompassing" the charged conduct and supporting a finding that the charged conduct occurred.
The evidence admitted (without objection) in the present case was not confined to the second category. As noted in the Crown's written submissions, the first and third alleged admissions were general admissions which did not refer to any particular act, charged or uncharged. However, the second alleged admission referred to three specific acts, only one of which was capable of referring to a count on the indictment (count 8, of which the applicant was acquitted). It follows that the relevance of the evidence was not confined in the manner assumed by the additional direction the applicant contends should have been given. The two general admissions were admissible on the basis recognised in Rolfe at [67], namely, that when taken with other evidence the jury could regard them as relating to or at least encompassing the charged sexual conduct. The judge's direction in that respect was entirely in accordance with the decision of this court in ARS (indeed, the judge adopted the precise words of that decision). The specific admission was admissible on the basis recognised in Rolfe at [66]. The judge's "anti-tendency" direction (to adopt the term used by the Chief Justice in ARS) obviated the risk of misuse of that evidence.
For those reasons, I agree with the orders proposed by Fullerton J.