200 A Crim R 206
Doyle v R [2014] NSWCCA 4
FDP v R (2008) 74 NSWLR 645
[2008] NSWCCA 317
192 A Crim R 87
Gilbert v The Queen (2000) 201 CLR 414
[2000] HCA 15
Source
Original judgment source is linked above.
Catchwords
200 A Crim R 206
Doyle v R [2014] NSWCCA 4
FDP v R (2008) 74 NSWLR 645[2008] NSWCCA 317192 A Crim R 87
Gilbert v The Queen (2000) 201 CLR 414[2000] HCA 1574 ALJR 676170 ALR 88109 A Crim R 580
HML v The Queen (2008) 235 CLR 334[2008] HCA 1682 ALJR 723245 ALR 204183 A Crim R 159
JDK v R [2009] NSWCCA 76194 A Crim R 333
S v The Queen (1989) 168 CLR 266[1989] HCA 6664 ALJR 12689 ALR 32145 A Crim R 221
Shepherd v The Queen (1990) 170 CLR 573[1990] HCA 5665 ALJR 13297 ALR 16151 A Crim R 181
The Queen v Bauer [2018] HCA 4092 ALJR 846
359 ALR 256
Judgment (22 paragraphs)
[1]
Judgment
HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.
WALTON J: I agree with Price J.
PRICE J:
[2]
Introduction
Upon his arraignment before Huggett DCJ ("the trial judge") and a jury in the District Court at Sydney on 24 May 2018, the applicant pleaded not guilty to an indictment containing six counts.
Counts 1 to 4 alleged sexual offences against the complainant AM. The offending was alleged to have occurred in September 2007 when AM was 13 years of age and travelled to Batemans Bay with the applicant to whom he was related through his aunt.
Count 1 was a charge of aggravated indecent assault on a person under 16 years of age contrary to s 61M(1) of the Crimes Act 1900 (NSW). AM gave evidence that he and the applicant stayed in one of the rooms at the Zorba Motel. The applicant told him to have a shower which he did. The applicant then joined him. Neither of them was wearing clothes. Whilst AM was washing himself, he felt the applicant's penis rubbing against his anus. The applicant was standing behind him. AM said that the applicant's penis: "… felt like a hard rock pressing against me … my anus." The jury found the applicant guilty of this count.
Count 2 was a charge of aggravated sexual intercourse with a person above the age of 10 years and under 14 years contrary to s 66C(2) of the Crimes Act. AM told the jury that when he and the applicant got out of the shower, he lay on the bed. The applicant fondled and sucked his penis. He did not recall how long this went on for. The jury found the applicant guilty of this count.
Count 3 was a charge of aggravated attempted sexual intercourse with a person above the age of 10 years and under 14 years contrary to ss 66C(2) and 66D of the Crimes Act. AM gave evidence that on the following day, the applicant told him that he needed a haircut, so they went to a hairdresser at the mall. The hairdresser said that he had lice and would not cut his hair. The applicant spoke to the hairdresser who then cut AM's hair. After the haircut, the applicant brought lice treatment products and they returned to their motel room to treat AM's hair.
When AM went into the shower, the applicant joined him. When washing the product through AM's hair, the applicant was standing behind him and neither one was wearing clothes. AM gave evidence that whilst his hair was being washed, he felt the applicant's penis trying to penetrate his anus. He felt a sharp stabbing pain around his anus. AM was not certain if the applicant's penis had gone into his anus because he had stepped forward to move his body away from the sharp pain. The jury found the applicant not guilty of this count.
Count 4 was a charge of aggravated sexual intercourse with a person above the age of 10 years and under 14 years contrary to s 66C(2) of the Crimes Act. AM gave evidence that the applicant put a towel on the bed when they both got out of the shower. AM lay on the towel and the applicant sucked his penis. AM said that it was not for a long period but it was not short either. AM told the jury that while the applicant was sucking his penis and after he had stopped, the applicant said to him that he could always tell him to stop and that the applicant would constantly ask whether he was enjoying it or did he like it. The jury found the applicant not guilty of this count.
Counts 5 and 6 alleged sexual offences against the complainant NC between 23 September 2009 and 13 January 2010. NC was then 6 years old. The applicant was in a relationship with NC's mother during the relevant period.
Count 5 was a charge of aggravated indecent assault on a person under the age of 16 years contrary to s 61M(1) of the Crimes Act. NC gave evidence that the applicant took him into a 'drying room' at the hotel where they were staying in Sydney and rubbed his private parts under a towel. The applicant stopped when they had to go back to the hotel room. The jury found the applicant not guilty of this count.
Count 6 was also a charge of aggravated indecent assault on a person under 16 years of age contrary to s 61M(1) of the Crimes Act. NC gave evidence that the applicant took him to a cabin in the Navy base where he worked. Inside the cabin the applicant told NC to lie on the bed and then started rubbing NC's 'dick' under his undies. The jury found the applicant not guilty of this count.
The Crown relied on tendency evidence in its case against the applicant, namely the evidence of NC and NC's brother, WC, to show that the applicant had a sexual interest in young males and that he was willing to act on that interest.
A notice dated 26 February 2018 had been served on the applicant by the Crown which stated that the Crown intended to adduce tendency evidence pursuant to s 97(1) of the Evidence Act 1995 (NSW). The notice, so far as relevant, included the following:
"2. The indictment contains six counts relating to two complainants (AM and NC). The Crown seeks to rely upon the evidence of each complainant as tendency evidence in respect of the counts relating to the other complainant. In summary, it is contended that the evidence in respect of each complainant on the indictment is cross-admissible as tendency evidence.
3. Further, the Crown also seeks to rely upon the evidence of WC as tendency evidence in respect of the complainants on the indictment.
4. The tendency sought to be proved is:
• His tendency to have a particular state of mind, namely a sexual interest in young males; and
• A tendency to act on it, namely his tendency to indecently or sexually assault young males from time to time under his authority.
5. The following common features of the allegations (in respect of each complainant) are relied upon by the Crown:
• All complainants are male.
• All complainants allege that the accused touched them on the genital region.
• The first sexual act in respect of AM and NC was performed when they were around the same age (AM was about 7, NC was about 5 or 6).
• The complainants were all aged 13 years or younger.
• All complainants allege that the accused assaulted them on at least one occasion when they were lying down on a bed.
• In the case of AM and NC, the accused was, when the alleged offences occurred, temporarily in a position of authority in relation to them.
• In the case of both AM and NC, the accused engineered a situation whereby he would have access to the complainants alone (on holiday in Batemans Bay, in a sauna, at the navy base)."
[3]
AM's evidence of uncharged acts
As the grounds of appeal centre upon the tendency evidence of WC in its application to prove counts 1 and 2, it is unnecessary to recount all of the evidence in the applicant's trial. It is however, necessary to summarise AM's evidence of two uncharged acts by the applicant and the tendency evidence of WC.
AM gave evidence that when he was about seven years old, the applicant came to visit and stayed the night. AM shared a bedroom with his brother 'J.' The next morning when AM woke up, the applicant was sleeping on the bedroom floor. When AM and J saw the applicant, they jumped all over him with excitement. They cuddled with the applicant and then J fell asleep. AM remained awake.
AM told the jury that the applicant put his hand down AM's Spiderman pyjama pants, fondling and stroking his genitals. AM could not recall if the applicant said anything or did anything else.
AM gave evidence of a second uncharged act which was alleged to have occurred when he went on a trip to Adelaide with his brother and the applicant. He could not recall when the trip took place or how old he was at the time.
On one occasion during that trip, AM recalled waking up naked. He was lying on the floor and it was dark. He could feel a sticky, gooey sensation on the lower part of his stomach and between his thighs and legs. The applicant was there, and he was not wearing anything from the waist down. AM could not recall what the applicant was doing. After refreshing his memory from his statement, AM said that the applicant was stroking his own penis and playing with AM's penis.
In cross-examination, AM agreed that he had not mentioned the Adelaide trip or the incident in either his first or second statement to police dated 25 September 2015 and 15 February 2017 respectively. He agreed that the first mention of the Adelaide trip and the sexual assault was in his statement dated 21 May 2018. He agreed that his recollection of the Adelaide trip came to him in a flashback. He said that it was his mind reprocessing every single memory that he had with the applicant. The flashback related to all the sexual and explicit things that the applicant had done to him, including what had happened in Adelaide.
[4]
Tendency evidence of WC
WC gave evidence that his mother dated the applicant when WC was about 10 or 11 years old. They were living in Victoria and the applicant visited them on three or four occasions. When he did so, he stayed at their house. WC told the jury that on two occasions, the applicant sexually assaulted him.
On the first occasion, WC said that the applicant came into his bedroom when he was about to fall asleep. The applicant went under the covers, pulled his pants down, put his hand around his penis and thrust it in his hand. The applicant pulled WC's boxer shorts down to his knees and touched him skin to skin. This went on for about 10 minutes. WC pretended to be asleep. The applicant did not say anything but WC could hear him breathing, "deep breaths."
WC gave further evidence of a second incident. He stated that it was similar to the first one, except that it occurred on a different day. The applicant came into his bedroom, pulled his boxer shorts down, put his hands around WC's penis, skin to skin, and 'thrust it in his hand.' This went on for roughly the same amount of time and the applicant didn't say anything. After he was done, the applicant left the room; WC pulled up his pants and went to sleep.
WC attested that these incidents occurred on different days but could not provide specific dates.
[5]
The applicant's case at trial
The applicant did not give evidence in the trial but relied on his answers in two interviews with police on 18 December 2015 and 15 September 2016. The applicant disputed that any of the alleged sexual impropriety had taken place but did not dispute at trial that he had taken AM to Batemans Bay or that he had taken NC to the Navy base in Sydney. The applicant's case was that AM, NC and WC were unreliable witnesses. As to the Crown's case on tendency reasoning, it was the applicant's position that he never engaged in indecent and/or sexual conduct of any type with either AM, NC or WC and the circumstances would not arise for the jury to use tendency reasoning.
[6]
The grounds of appeal
The Notice of Appeal identifies the following grounds:
"Ground One: In directing the jury that the tendency events alleged by the Crown concerning WC required proof beyond reasonable doubt, there was an unacceptable, appreciable and demonstrable risk that the evidence of WC, if accepted, was elevated to an intermediate fact by the jury or otherwise regarded as an essential and direct causal link in proof of counts 1 and 2 relating to AM.
Ground Two: In all of the circumstances the directions of the learned trial judge that the tendency events of WC were relevant (but only if proved beyond reasonable doubt) gave rise to an unacceptable risk of compromise by the jury in finding counts 1 and 2 proved.
Ground Three: The learned trial judge failed to take into consideration, or at all, whether or not the tendency events of WC were in the nature of intermediate facts. They were not intermediate facts because they had no immediate causal relationship with counts 1 and 2.
The question of a sexual interest in children is not an intermediate fact when considering a comparative and separate event. An inchoate state of mind, such as criminal intent, is not an intermediate fact.
Where an inchoate state of mind tantamount to guilty passion is applied in proof of a comparative event at the criminal standard, section 137 of the Evidence Act is engaged. Otherwise, the requirement to find the WC events proved at the criminal standard could not pass the test prescribed by section 101 of the Evidence Act. Section 101 of the Evidence Act has work to do.
The content of the unfair prejudice was the real and appreciable risk that the jury reached a compromise in relation to counts 1 and 2. Given the real possibility that the WC events were accepted and applied as intermediate facts by the jury, the verdicts of guilty ought not be sustained."
[7]
The trial judge's directions
In order to consider the various arguments in this appeal, the trial judge's directions as to tendency must be set out in some detail. Her Honour's oral directions were accompanied by written directions which were to be read by the members of the jury in conjunction with her Honour's oral directions. The written directions were in almost identical terms to the oral directions.
Before turning to the directions on tendency, it is apposite to note that the trial judge's summing up included directions on compromise of verdicts, the need to consider each count separately, and as to the honesty and reliability of the complainants' evidence.
As to compromise of verdicts, her Honour said:
"Understand also that the presence of more … than one count on the indictment - here, six counts - is, in no way, an invitation for you to compromise your verdicts in any way at all. For example, it would obviously be wrong for you to find the accused guilty of … some counts; say, three, but guilty of the other three counts simply because you could not all agree on each individual count. To break any disagreement that way would be unfair and completely improper because it would mean that you have disregarded the requirement that any verdict, whether it be guilty or not guilty, must be unanimous."
As to considering each count separately, her Honour said:
"The fact the charges are tried together does not relieve you of your responsibility of considering each count separately and considering the particular evidence that relates to each count, nor does it relieve the Crown of its responsibility of proving the elements for the offence alleged in each count on the basis of the evidence relevant to that count. Normally, the effect of this direction that you must consider each count separately is that when you are considering the counts referable to one complainant, you would be required to ignore the fact of and content of any allegation made against the accused by any other person. However, in this trial, circumstances might arise when that general rule does [not] apply. These circumstances relate to what you have heard referred to as "tendency reasoning" and I will give you a specific direction about such reasoning in due course."
As to the honesty of the complainants' evidence, her Honour said:
"Understand, in relation to the complainant, AM, if you were to determine that he had been deliberately dishonest in relation to all of his evidence, it would of course follow that you would reject that evidence and you [would] acquit the accused of counts 1 to 4. In relation to the complainant, NC, if you were to determine he had been deliberately dishonest in relation to all of his evidence, it would follow that you would reject his evidence and would acquit the accused of counts 5 and 6. If you were to find that either or both complainants have been deliberately dishonest regarding only part of his evidence, you would have to consider the remainder of his evidence in the light of that adverse finding you made regarding his honesty. That is because if you found you had a doubt regarding the honesty of either or both complainants in one respect, that may mean you would have trouble accepting other things he said or indeed anything he said in his evidence.
If you were to conclude that a witness was doing his or her best to be honest, you would need to consider the next aspect of reliability which relates to accuracy."
[8]
Ground One: In directing the jury that the tendency events alleged by the Crown concerning WC required proof beyond reasonable doubt, there was an unacceptable, appreciable and demonstrable risk that the evidence of WC, if accepted, was elevated to an intermediate fact by the jury or otherwise regarded as an essential and direct causal link in proof of counts 1 and 2 relating to AM.
[9]
Argument
In written submissions, the applicant recounted that in the structure and casting of the trial judge's directions it was open to the jury to regard the evidence of WC as comprising one or two tendency events "capable of supporting counts 1 and 2 and in proof of AM." This was on the sole basis that satisfaction had been reached at the criminal standard of proof as to one or both of the tendency events alleged by WC. Accordingly, the evidence had no relevance unless proof of that evidence was placed at the same standard as an element or elements of an offence.
The applicant contended that the effect of the trial judge's directions as to the tendency evidence was to elevate WC's evidence "to the level of intermediate fact if found proved beyond reasonable doubt." The applicant argued that in no sense could the evidence of WC be considered as capable of providing intermediate facts in proof of counts 1 and 2 for AM. WC's evidence of the applicant's misconduct with him was in the nature of a strand in the cable as opposed to a link in the chain and no more than a relevant circumstance in the jury's consideration of the AM counts.
The applicant submitted that this direction by the trial judge effected a serious unfair prejudice to the applicant because in all of the circumstances "there was an unacceptable, appreciable and demonstrable risk that, if found beyond reasonable doubt, the evidence would be accorded significant or substantial undue weight."
The applicant pointed to what was said by the High Court in The Queen v Bauer at [86]:
"Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt." [1] (Citations omitted.)
The applicant argued that in the circumstances of the present case the relationship between the evidence of WC and AM did not demonstrate a "significant possibility" that the jury might regard the evidence of WC as so closely connected to that of AM as to be indispensable or as part of a direct, causal chain of proof.
[10]
Consideration
The cornerstone of the applicant's complaint is the trial judge misdirected the jury as to the standard of proof required before they could use WC's evidence. Her Honour directed the jury that the Crown was obliged to satisfy them beyond reasonable doubt of:
1. The honesty and essential accuracy of the applicant's conduct towards him;
2. The applicant's conduct demonstrated that he was a person with a sexual interest in young male persons; and
3. The applicant acted upon that interest by engaging in indecent and/or sexual activity with young male persons known to him through family and/or personal relationships.
Her Honour directed the jury before the decision in Bauer. In applying the criminal standard of proof, her Honour was faithfully following what was considered to be the law in New South Wales that the correct standard of proof of tendency evidence in sexual offences is beyond reasonable doubt.
Guidance about the appropriate standard of proof was provided in HML v The Queen. [6] Hayne J said at 416 [247]:
"It is important to recognise, however, that at least a majority of the Court [7] is of the opinion that "[i]n the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt"." (Citations in original.)
Kiefel J (as her Honour then was) said at 500 [506]:
"The admission of relationship evidence to show the accused's sexual interest in the complainant clearly involves use of the accused's tendency to engage in acts with the complainant such as those charged. Where the accused has already offended that propensity or tendency may be taken as showing a preparedness on the part of the accused to act upon it and to continue to act upon it. It is to be recalled that in cases such as this there is usually no independent evidence to prove the acts relied upon as relationship evidence. It is for the jury to determine whether all, or some, of the evidence is acceptable for the purpose suggested by the prosecution, assuming for present purposes that they do not accept the direct evidence of the offences given by the complainant as itself sufficient. A finding of propensity on circumstantial evidence is one as to an intermediate fact. In the ordinary course a jury would be instructed by the trial judge that they must only find that the accused has a sexual interest in the complainant if it is proved beyond reasonable doubt. From that point they may consider that it is more probable that the accused committed the offences." (Citations omitted.)
[11]
Ground Two: In all of the circumstances the directions of the learned trial judge that the tendency events of WC were relevant (but only if proved beyond reasonable doubt) gave rise to an unacceptable risk of compromise by the jury in finding counts 1 and 2 proved.
[12]
Argument
The applicant's written submissions on Ground 2 repeat much of what was argued in respect of Ground 1 and it is unnecessary to recount those submissions as the applicant's arguments have been rejected.
The Crown's written submissions in respect of Ground 2 referred to the trial judge's directions to the jury not to reach a compromise verdict. The Crown also referred to a Note from the jury to the trial judge in which the jury asked whether they needed to be satisfied beyond reasonable doubt that counts 3 and 4 occurred in Batemans Bay. This question was answered by her Honour in the affirmative. The Crown argued that the differing verdicts in relation to counts 1 to 4 were explicable on the basis that the jury entertained a reasonable doubt that counts 3 and 4 occurred at the Zorba Motel in Batemans Bay as was explained in her Honour's remarks on sentence.
The Crown submitted that there was no reason to doubt that this was the case and the guilty verdicts were logically based and not compromise verdicts.
In submissions in reply, the applicant contended that the Jury Note both highlighted the confusion that the jury had reached concerning how to use tendency and "increased the unacceptable, appreciable, and demonstrable risk relied on by the applicant."
The applicant submitted that in further instructing the jury, the trial judge gave a broader, more general direction to the jury on tendency in answer to the Jury Note.
As to the reason advanced by the Crown for the not guilty verdicts on counts 3 and 4, the applicant submitted that this Court was not bound by the remarks of the trial judge. Furthermore, any explanation of how the jury came to the not guilty verdicts was said to be "impermissible speculation."
[13]
Consideration
The Jury Note which was referred to by the Crown in submissions was received by the trial judge when the jury was considering its verdicts. The trial judge read the Jury Note onto the record in the following way:
"Some jurors are confused. Do we have to prove that a count happened in the place claimed; for example, count 3, 'On or about September 30, 2007, at Batemans Bay in the State of New South Wales'. Do we have to ensure it happened in Batemans Bay to come to a conclusion as it's written on the indictment? Does the count have to … occurred at the location with reasonable doubt [I think, you mean 'beyond reasonable doubt'] - specified on the indictment (at Batemans Bay). Also, could we please receive information/guidance on how we can use tendency?"
The applicant complains that in responding to the jury's request for "… information/guidance on how we can use tendency?," her Honour gave a more general direction by not confining the demonstration of the tendency alleged by the Crown to acting upon a sexual interest in young male persons by engaging in indecent and/or sexual activity with young male persons "known to him through family and/or personal relationships."
Whilst this issue was raised in argument, the applicant did not seek to amend or add to the Grounds of Appeal. Accordingly, I do not propose to deal with this complaint other than to state that it does not advance the applicant's Grounds of Appeal.
It is a logical leap to contend as the applicant does, that the trial judge's direction on the criminal standard "gave rise to an unacceptable risk of compromise by the jury in finding counts 1 and 2 proved."
The trial judge gave a clear warning to the jury that they were not to compromise their verdicts "in any way at all" and reminded them of "the requirement that any verdict … must be unanimous." [16]
WC's evidence was relevant to all of the counts on the indictment. However, the jury found the applicant not guilty of the sexual offending against NC (counts 5 and 6). These verdicts of not guilty strongly suggest that the jury considered each count separately and focussed upon the complainants' evidence that was relevant to each count.
It is evident from the Jury Note that the members of the jury were concerned to obtain the trial judge's direction as to whether they had to be satisfied beyond reasonable doubt that the offence occurred at Batemans Bay as alleged in the indictment for count 3. Count 4 was in similar terms.
[14]
Ground Three: The learned trial judge failed to take into consideration, or at all, whether or not the tendency events of WC were in the nature of intermediate facts. They were not intermediate facts because they had no immediate causal relationship with counts 1 and 2.
[15]
The question of a sexual interest in children is not an intermediate fact when considering a comparative and separate event. An inchoate state of mind, such as criminal intent, is not an intermediate fact.
[16]
Where an inchoate state of mind tantamount to guilty passion is applied in proof of a comparative event at the criminal standard, section 137 of the Evidence Act is engaged. Otherwise, the requirement to find the WC events proved at the criminal standard could not pass the test prescribed by section 101 of the Evidence Act. Section 101 of the Evidence Act has work to do.
[17]
The content of the unfair prejudice was the real and appreciable risk that the jury reached a compromise in relation to counts 1 and 2. Given the real possibility that the WC events were accepted and applied as intermediate facts by the jury, the verdicts of guilty ought not be sustained.
[18]
Argument
In written submissions, the applicant repeated the contention that WC's evidence was elevated to an essential intermediate fact by the trial judge's directions as to the standard of proof. The applicant's argument was that there was a real and demonstrable possibility that WC's evidence was regarded in this way. The applicant submitted that if so regarded, the tendency evidence of WC was invested with a probative value by the jury that did not "substantially" outweigh "any prejudicial effect it may have on the defendant" and ss 101 and 137 of the Evidence Act were engaged.
The Crown pointed out that the applicant's principal argument was that the requirement of a higher standard of proof of tendency evidence meant that too much weight was given to the evidence by the jury. The Crown referred to the trial judge's direction to the jury not to substitute the tendency evidence for evidence on each count. The Crown submitted that in terms of whether the standard of proof was in any way relevant the issues under ss 101 and 137 of the Evidence Act was a separate issue.
The Crown referred to the observation of the High Court in Bauer at [69] that for the purpose of these provisions, the evidence is to be taken at its highest. The question of weight, the Crown said, was a matter for the jury.
In reply, the applicant argued that the permitted use of WC's tendency evidence failed to comply with Bauer and WC's evidence should not have been admitted by reason of s 101(2) of the Evidence Act.
In oral argument, the applicant accepted that there was a significant degree of overlap with the arguments in Ground 1 but said the focus in this Ground was upon s 101(2) of the Evidence Act.
[19]
Consideration
Tendency evidence is defined in the Dictionary to the Evidence Act as follows:
tendency evidence means evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection.
Section 95(1) provides:
95 Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
…
Sections 97(1)(b) and 101(2) of the Evidence Act relevantly provide:
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.
…
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
…
(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.
The "probative value" of evidence is also defined in the Dictionary:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Before proceeding to deal with Ground 3, it is important to observe that it is for this Court "itself to determine whether [tendency] evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was." [17]
In BC v R, [18] this Court (Leeming JA; Ierace and Hidden JJ) with the agreement of the parties, considered at [60] that the High Court's statement applied to the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect on the applicant for the purposes of s 101(2), even though Bauer was concerned with s 97.
WC's evidence had significant probative value as it was capable of establishing the tendency asserted by the Crown and that he acted upon that tendency. Furthermore, the existence of that tendency made it more likely, to a significant extent, that the applicant acted upon that tendency by committing the sexual offences with which he had been charged.
[20]
Rule 4 of the Criminal Appeal Rules
The Crown argued that Rule 4 applies as Mr Webb failed to raise with the trial judge the standard of proof required for tendency evidence during her Honour's directions. Although that may be so, Mr Webb did raise this issue with her Honour in oral argument concerning the admissibility of WC's evidence.
It is hardly surprising that Mr Webb did not take the point whilst her Honour was summing up.
[21]
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Dismiss the appeal.
[22]
Endnotes
[2018] HCA 40; 92 ALJR 846; 359 ALR 256; 271 A Crim R 558 ("Bauer").
(1990) 170 CLR 573; [1990] HCA 56; 65 ALJR 132; 97 ALR 161; 51 A Crim R 181 ("Shepherd").
Bauer at [69].
Bauer at [58]-[60].
S v The Queen (1989) 168 CLR 266; [1989] HCA 66; 64 ALJR 126; 89 ALR 321; 45 A Crim R 221 ("S v The Queen").
(2008) 235 CLR 334; [2008] HCA 16; 82 ALJR 723; 245 ALR 204; 183 A Crim R 159 ("HML").
Gummow J at [41], Kirby J at [63], Kiefel J at [506] and [HML] at [132].
HML at 360-1 [31]-[32].
HML at 490 [477].
[2008] NSWCCA 272; 200 A Crim R 206.
See, eg, FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317; 192 A Crim R 87; DJS v R [2010] NSWCCA 200; JDK v R [2009] NSWCCA 76; 194 A Crim R 333.
[2014] NSWCCA 4.
Bauer at [57]-[60].
See [39]-[40] above.
(2000) 201 CLR 414; [2000] HCA 15; 74 ALJR 676; 170 ALR 88; 109 A Crim R 580.
See [30] above.
Bauer at [61].
[2019] NSWCCA 111.
See [69]-[72] above.
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Decision last updated: 06 February 2020
As to the reliability of the complainants' evidence, her Honour said:
"Understand, in relation to the complainant AM, if you were to find that his evidence regarding what he said the accused did to him at the time alleged in each count on the indictment was not accurate, it would follow that you would have doubt about the reliability of an essential part of his evidence and you would acquit the accused of counts 1 to 4. If however you were to find that AM was not accurate in his evidence regarding a matter that was not essential to proof of counts 1 to 4, you might nevertheless be able to conclude that his evidence regarding essential matters was sufficiently reliable or you might not.
Likewise, if you were to find that NC's evidence regarding what he said that accused did to him at the time alleged in count 5 and 6 on the indictment was not accurate, it would follow that you would have a doubt [of] the reliability of an essential part of the evidence, then you would acquit the accused of count 5 and 6. If however you were to find that NC was not accurate in his evidence regarding a circumstance not essential to proof of those counts, you might nevertheless be able to conclude that his evidence was sufficiently reliable regarding essential matters or, on the other hand, you might not.
Ultimately these are all matters for you to determine. You will give to each part of the evidence of each witness the weight that you see fit; "weight" meaning the extent to which the evidence helps you to determine the issues in dispute and then to determine what, in your judgment, are the true facts."
The trial judge gave lengthy directions concerning the use that could be made of the tendency evidence. Without detailing all of those directions, her Honour's summing up included the directions set out below.
If the jury was to use the tendency evidence led by the Crown, there were two additional matters that would need to be proven beyond reasonable doubt:
"You heard reference, in the addresses, to a suggestion by the Crown that you would find that evidence before you demonstrates a tendency on the part of the accused. I will give you specific directions, in due course, about a potentially available path of reasoning known as "tendency reasoning." For now, I mention this simply because before you could use tendency reasoning in your deliberations, the Crown would be required to prove two essential matters beyond reasonable doubt and because of that, it is not strictly correct to state that the only matters the Crown needs to prove beyond reasonable doubt are the elements. It must always prove the elements but if tendency reasoning is to be relied upon, then there would be two matters that the Crown would have to prove beyond reasonable doubt before that method of reasoning could be used by all or any of you.
It would not have, of course, have escaped your collective observations that there is significant conflict between aspects of the evidence given by each complainant and what the accused told police in one or more of his interviews. It is most important that you understand you are not here simply comparing competing versions and merely selecting and acting upon a version that you prefer. Even if it be the case that you preferred the evidence relied upon by the Crown to prove its case, you could not convict the accused unless you were satisfied beyond a reasonable doubt as to the truthfulness and essential accuracy of the evidence the Crown relies upon to prove each count; in particular, each complainant. That task is a very different one to simply comparing versions and picking the version you prefer."
"I have directed you that in considering each complainant's evidence and whether the Crown has satisfied you as to the honesty and essential accuracy of his evidence in relation to a particular count, you are entitled to consider whether his evidence is supported by any other evidence before you. Such "other evidence" includes whether the method of reasoning referred [to] by the parties as "tendency reasoning"; it being a method of reasoning that might, depending upon your findings, be capable of providing support for the evidence of a complainant. It is that latter type of reasoning that is the subject of this direction.
What is "tendency reasoning" and how might it apply? The Crown contends that evidence is before you which demonstrates a pattern of behaviour revealing that at the time of the conduct alleged in counts 1 to 6, the accused was a person with a particular tendency; namely, that he was a person with a sexual interest in young male persons and that he acted upon that interest by engaging in indecent and/or sexual activity with young male persons known to him through familial and/or personal relationships. The Crown submits that if it is able to prove the existence of this tendency, that would be relevant to proof of counts 1 to 6 because it would make more likely that the accused acted upon that sexual interest by engaging in indecent and/or sexual activity with AM and NC at the particular times alleged in counts 1 to 6."
With respect to the tendency evidence of WC:
"Before I give you some important directions regarding tendency reasoning and what must be proved before it could be applied by one or all or any of you, let me firstly identify the evidence that the Crown contends reveals or demonstrates the particular tendency the Crown alleges. The first body of evidence that the Crown relies upon as revealing or demonstrating the tendency alleged is the evidence given by WC.
WC, you must keep this in your mind at all times, is quite properly called a "tendency witness" because his evidence regarding acts he alleges were committed upon him by the accused is of course completely separately (sic) to the allegations contained on the indictment. That evidence is before you only for the purpose of the Crown seeking to prove the tendency it alleges. For that reason, if it ultimately be the case that the Crown failed to prove the things it must prove before WC's evidence could be used as a foundation for tendency reasoning when you are considering counts 1 to 6, that would mean that you would have to disregard WC's evidence completely because it is relevant only for tendency purposes.
If the Crown does not establish what it has to establish before you can use tendency reasoning, then you put his evidence completely to one side and have no regard to it because [its] only potential relevance is in seeking to prove the tendency the Crown is alleging. Remember, in your mind, he is called "tendency witness" which helps you remember, he is only relevant for tendency purposes. That is the first body of evidence that the Crown relies upon to demonstrate or reveal the tendency it alleges.
The second body of evidence that the Crown relies upon to demonstrate the tendency it alleges is the evidence given by each complainant about acts of an indecent and/or sexual nature each alleges were committed by the accused."
They could not use tendency intra-complainant:
"… you are never permitted to take into account what one complainant says about the accused's conduct when you are considering whether the Crown has proved another count referable to that same complainant. That is because the law requires that evidence relied upon for the purposes of tendency reasoning must come from one or more sources independent/separate from the complainant. Tendency reasoning could only be used across the two complainants and WC. If you are looking at one complainant, AM, if you are satisfied of the things that the Crown has to prove before tendency reasoning could be applied when you are looking at AM's counts you could use WC's evidence and you could use NC's evidence provided the Crown satisfies you of the things I will come to. But you could not use one thing that AM says and say, "Well, that shows a tendency and I'll use that when I'm looking at count 2 for AM," because that is all coming from AM; it is not coming from a source independent from AM. Bear that in mind."
Before using any tendency reasoning, the jury must be satisfied beyond reasonable doubt that the tendency acts occurred, including the honesty and essential accuracy of WC's evidence, and that the act or acts reveal or demonstrate the tendency alleged by the Crown:
"What are the matters that the Crown must prove before you would be entitled, if you wish, to apply tendency reasoning in your deliberations? There are two. The first matter the Crown must prove beyond reasonable doubt is that all or at least some of the conduct relied upon as demonstrating the tendency did in fact occur. In making that finding you are not required to consider each alleged act in isolation but you are permitted to consider it in the context of other evidence given by that complainant or by that tendency witness.
In practical terms, what that means is, the Crown must satisfy beyond reasonable doubt as that other honesty and essential accuracy of WC's evidence regarding the accused's conduct towards him before WC's evidence would be capable of being relied upon for tendency reasoning purposes in relation to counts 1 to 6. You have got to [be] satisfied as to WC's honesty and essential accuracy before his evidence could be used for tendency purposes for AM and for NC. Obviously, if you were not satisfied of WC's evidence, his honesty and essential accuracy, off he goes off the table; he has got no further relevance because he is only potentially relevant for tendency purposes. You have got to be satisfied beyond reasonable doubt of what he said happened, happened."
"If, however, the Crown has satisfied you beyond reasonable doubt that one or more of the acts occurred - one or more of WC, one or more of AM, one or more of NC - then you would need to go on and consider the second matter that the Crown must prove beyond reasonable doubt before you could use tendency reasoning. You must ask yourselves, from the one or more acts you found had occurred, whether you can conclude beyond reasonable doubt that that act or those acts do in fact reveal or demonstrate the particular tendency alleged by the Crown which, as I repeat, was that the accused was a person with a sexual interest in young male persons and that he acted upon that interest by engaging in indecent and/or sexual activity with young male persons known to him through family and/or personal relationships."
If they could not conclude beyond reasonable doubt that the tendency acts occurred or that they revealed or demonstrated the alleged tendency, the jury was not to include them in their reasoning:
"If you cannot make that conclusion beyond reasonable doubt, if you cannot conclude that from the act or acts you found occurred, that they do demonstrate or reveal the particular tendency alleged, then again, you disregard completely any suggestion of tendency reasoning and you decide the facts in dispute in relation to [the] count on the indictment without having regard to tendency reasoning and therefore no regard to WC. But if you have found one or more of the acts attributed to the accused has been proven beyond reasonable doubt and from that act or acts, that proved act or those proven acts, you can conclude beyond reasonable doubt that the accused was a person with a sexual interest in young male persons which he acted upon by engaging in indecent and/or sexual activity with young male persons known to him through familial and/or personal relationships, then you would be entitled to have regard to the existence of that tendency when you are determining whether the Crown has proved that the accused committed the specific acts alleged on the indictment."
"I direct you that if you were not satisfied beyond reasonable doubt as to the honesty and essential or vital accuracy of WC's evidence, you must entirely disregard his evidence and place it out of your minds altogether."
They were only to use tendency evidence for the purpose of establishing the tendency:
"… I need to ensure that you understand how tendency reasoning must not be used by you and its limitations. Here of course I included the evidence of the tendency witness, WC; tendency reasoning is only placed before you for the purpose of seeking to establish the tendency asserted by the Crown against the accused. You cannot use tendency reasoning in some other way.
It would be completely wrong to allow tendency reasoning to support a process of reasoning; that because the accused committed one or more acts of a[n] improper kind towards one young male person he, in some way, [is] a person of bad character and for that reason he must have committed the offences charged. You must not reason that way. You cannot punish the accused for other conduct attributed to him by automatically or simply finding him guilty of any charge in the indictment. That is not the purpose of tendency reasoning and you must not reason that way. Simply put, you could not use tendency reasoning in any way prejudicial to the accused unless you accept the Crown's argument that the evidence has a foundation, because one or more of the acts did occur, and that those one or more acts do disclose the tendency alleged and that it does make it more likely therefore that the accused committed one or more of the offences charged against him.
Of course, evidence relied upon for the purpose of establishing a tendency is not a basis for automatic reasoning. You do not say the existence of the tendency must mean that the accused acted in accordance with the tendency on the particular occasions alleged on the indictment. It may mean that he did but it is not automatic. For each count, you need to calmly and objectively consider whether or not the accused in fact acted in accordance with that tendency by committing the particular act alleged."
And further:
"I remind you, of course, as I have said many times now, before the accused could be convicted of any offence on the indictment, you must be sufficiently satisfied as to the truthfulness and essential accuracy of the complainant named within that count. Even if you were satisfied beyond reasonable doubt as to the existence of the tendency alleged by the Crown at the relevant times, that fact may lend support to the evidence of a complainant but it could never be a replacement for a complainant if you were to view a complainant as deliberately dishonest and/or unreliable in vital respects. You would not, for example, say that [a] complainant is completely faulty but tendency reasoning will fix up a faulty complainant. It can support, it cannot substitute for a complainant.
You should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the accused and only given such weight you think it deserves in the context of all the evidence before you."
The applicant referred to the following passage in Shepherd v The Queen, [2] where Dawson J said at 579:
"On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning."
The applicant submitted that in no sense was WC's evidence part of a temporal series connected to the applicant's conduct alleged against AM. WC's evidence was said to be no more than a circumstance able to be taken into account by the jury in considering the evidence of AM which, if accepted, was a strand in the cable and not a link in the chain. Put to the jury as an intermediate fact, WC's evidence, the applicant argued, could not have passed the test under s 101 of the Evidence Act, as "there was an unacceptable risk that the jury accorded WC's evidence a status substantially exceeding that of a relevant circumstance of significant (if so regarded) value."
Another submission was that the evidence of AM had significant difficulties in respect to the question of reliability and in all the circumstances, in finding counts 1 and 2 proved, there was an appreciable risk that the jury deployed the evidence of WC as an intermediate fact towards proof of those counts.
In oral submissions, the applicant submitted that Bauer applied to the uncharged acts asserted by WC notwithstanding that he was not a complainant. The applicant noted that Bauer was not known to be the law at the time of the direction, but maintained that the criminal standard direction was erroneous and contrary to Shepherd. It was submitted that the applicant did not benefit from the criminal standard direction being given, and that it was not desirable in the circumstances.
The Crown contended that Bauer is distinguishable from this case as it referred to single complainant sexual offences cases, and that even if trial judge erred in giving the criminal standard direction, the applicant benefitted from the highest standard of proof being required before the jury could use the evidence of WC against him, and that it was open to the jury to return a verdict of guilty on counts 1 and 2 even if the criminal standard direction was given in error, or if the jury disregarded the evidence of WC entirely.
The Crown submitted that the trial judge gave the jury a very clear warning against impermissible propensity reasoning and told them that if they found the tendency evidence proved, they could not automatically convict the applicant in relation to the other complainants and that they still needed to go on to consider the truthfulness and accuracy of each individual complainant. The fact that the jury found the applicant not guilty on a number of counts, the Crown contended, indicates that the jury followed the trial judge's directions.
The Crown submitted that it did not follow that the criminal standard direction resulted in the jury giving WC's evidence too much weight, as the jury was directed not to substitute the tendency evidence for the evidence on each count. The Crown submitted that the standard of proof directed is a separate issue as it relates to ss 101 and 137 of the Evidence Act because probative value is to be taken at its highest, [3] and the question of weight is a matter for the jury.
In written submissions in reply, the applicant argued that Bauer contemplated multiple complainant cases, [4] and submitted that in such cases the possibility of prejudice against an accused is greater due to the possibility of confusion amongst a jury which is tasked with identifying commonalities between multiple witnesses.
It was further put to this Court that, in circumstances where WC's evidence was "wrongly elevated as an intermediate fact," meant "that the possibility of jurors reaching their verdicts upon evidence of propensity unrelated to a specific offence upon an identified occasion that Dawson J describes in S v The Queen (1989) 168 CLR 266, 276, arises." [5] The applicant submitted that contrary to the views of the trial judge, the fact that two identical events have occurred on separate occasions (in the sense that one came first and one came second) said nothing aside from asserting that the events did not happen at the same time. This was said to speak "to nothing curative of the deficiency of particulars linking the two acts of WC, enlivening a sense of embarrassment corresponding to a denial of 'the allegations' as a group or 'set'."
Gleeson CJ was in dissent on this point, [8] as was Crennan J. [9]
The opinion of the majority in HML has been applied in this Court. In DJV v R, [10] McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said at [30]:
"The need for care in identifying the basis upon which the evidence is admitted, either tendency or context, must be emphasised. In HML, Gummow, Kirby, Hayne and Keifel JJ state (see Hayne J at [247]) that where evidence is tendered to prove a propensity, being the sexual interest of an accused in a complainant, the jury must be told that they must be satisfied of that interest beyond reasonable doubt (see also Howie J in Toki [2000] NSWSC 999; (2000) 116 A Crim R 536; R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely consistent in their reasoning (see Kirby J at [61] and Keifel J at [505]-[506]) and HML was decided having regard to the common law. However, unless after full argument of the issue this Court or the High Court says otherwise, this Court should accept that in sexual assault cases the appropriate standard of proof of tendency evidence is beyond reasonable doubt." (Citations in original.)
There have subsequently been many decisions of this Court where the criminal standard has been applied. [11]
In Doyle v R, [12] Bathurst CJ (with whom Price and Campbell JJ agreed) observed at [129]:
"There is no doubt that to the extent reliance was placed on uncharged sexual conduct in establishing the tendency, that conduct had to be proved beyond reasonable doubt." (Citations omitted.)
In Bauer the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) considered in single complainant sexual offences cases that the jury should not ordinarily be directed that the standard of proof of uncharged acts is beyond reasonable doubt.
Bauer involved a single complainant. In considering the criterion of significant probative value under s 97 of the Evidence Act, the High Court drew a distinction between an accused charged with a number of sexual offences committed against a multiplicity of complainants and an accused charged with a number of sexual offences against a single complainant. [13]
Notwithstanding that consideration, the passage in the judgment upon which the applicant founds his complaint appears under a heading of directions in single complainant sexual offences cases and further reference is made to "directions ordinarily to be given … in a single complainant sexual offences case." It is appropriate to quote all of what was said by the High Court at [86]:
"(vii) Jury directions in single complainant sexual offences cases
Before departing from Ground 2, however, it is appropriate to say something further of the directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it. Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused's guilt of that offence beyond reasonable doubt. Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria." (Emphasis added, citations omitted.)
It is not entirely clear whether the High Court's statement as to the standard of proof was intended to be confined to single complainant sexual assault trials. In the present case, there were two complainants. However, there appears to me to be no logical basis for different standards of proof that are dependent upon the number of complainants.
In my opinion, this case is not an appropriate vehicle to finally determine this issue. It is ordinarily the case that an accused person favours the application of the criminal standard of proof and not the Crown. In the present case, the usual argumentation has been inverted.
In any event, should it be accepted that the trial judge misdirected the jury as to the standard of proof required before they could use WC's evidence, the jury could neither have understood that WC's evidence was an essential intermediate fact which constituted an indispensable link in the chain of reasoning towards a finding of guilt in counts 1 and 2 nor elevated the weight to be given to that evidence.
The trial judge gave comprehensive instructions to the jury as to how WC's evidence must not be used. In addition to the oral directions, [14] the written directions provided to the jury included the following:
"How tendency reasoning must not be used and its limitations
21. Having directed you as to what the Crown must prove before tendency reasoning could be used by one or more of you in carrying out your fact finding task, I need to give you some important directions about how tendency reasoning must not be used by you and about the limitations of such reasoning.
22. Tendency reasoning (and here I include evidence of the tendency witness WC) has only been placed before you for the purpose of seeking to establish the tendency asserted by the Crown against the accused and such reasoning must never be used in any other way.
23. It would therefore be completely wrong to allow tendency reasoning to support a process of reasoning that because the accused committed one or more acts of a sexual or indecent nature towards one young male person that he is in some way a person of bad character and for that reason he must have committed the offences charged. You cannot punish the accused for other conduct attributed to him by finding him guilty of the charges in the indictment. That is not the purpose of tendency reasoning and you must not reason in that way. You cannot use tendency reasoning in any way prejudicial to the accused unless you accept the Crown's argument that the evidence does disclose the tendency alleged and that it does make it more likely that the accused committed the offences charged against him.
24. Furthermore, evidence relied upon for the purpose of establishing a tendency on the part of the accused and in turn to provide the foundation for tendency reasoning, must not be used to reason in an automatic way, namely that the existence of the asserted tendency must mean that the accused [acted] in accordance with that tendency on the occasions alleged on the [i]ndictment. It may mean that he did but that is not an automatic result. For each count you need to calmly and objectively consider whether or not the accused in fact acted in accordance with that tendency by committing the particular acts alleged.
25. I remind you that before the accused could be convicted of any offence alleged on the [i]ndictment I have told you that you must be sufficiently satisfied as to the truthfulness and essential accuracy of the complainant named within that count. Even if you are satisfied beyond reasonable doubt as to the existence of the tendency alleged by the Crown at the relevant times, that fact may lend support to evidence of a complainant but could never be a replacement for a complainant should you all form a view that he has been deliberately dishonest and/or unreliable in all or part of his evidence.
26. You should also bear in mind that tendency reasoning is just one part of the way the Crown seeks to prove its case against the accused. Only give it such weight you think it deserves in the context of the evidence before you." (Emphasis in original.)
Her Honour's directions made it plain to the jury the limits on which WC's evidence could be put to use and that the weight to be given to that evidence was a matter for them. As was said in Gilbert v The Queen, [15] by McHugh J at 425 [31]:
"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions."
I am not persuaded there was a risk that WC's evidence would be accorded significant or substantial undue weight.
It is evident that the jury paid careful attention to her Honour's directions. The jury found the applicant not guilty of four of the six counts on the indictment.
In raising in argument S v The Queen, the applicant appears to be contending that her Honour erred in admitting WC's evidence when she rejected the arguments advanced by Mr Webb, his trial counsel. Shortly stated, Mr Webb submitted that WC's evidence was insufficiently particular because he could neither identify which of the two events occurred first nor could he provide any feature to distinguish one event from the other preventing adequate cross-examination and causing embarrassment to the applicant in the conduct of his defence. Mr Webb also contended that WC's testimony was in reality inadmissible evidence of a generalised guilty passion which created a risk of substitution for the particular conduct alleged in counts 1 to 6.
The trial judge rejected these arguments in a carefully considered judgment that was delivered on 18 June 2018. Her Honour distinguished S v The Queen. Her Honour said that WC was able to identify two separate occasions when the applicant indecently assaulted him and these two separate occasions were the only occasions the applicant so behaved. There were no remaining occasions not covered by WC's evidence. The applicant was able, her Honour said, to mount a defence to the conduct alleged and to test WC's evidence.
Her Honour considered that a further point of distinction with S v The Queen was that WC's evidence was not relied upon to prove any particular count on the indictment but was evidence intended only to be used towards providing a foundation for tendency reasoning.
The first point that should be made about the applicant's complaint of the trial judge's rejection of Mr Webb's argument founded upon S v The Queen is that there is no Ground of Appeal which deals with the issue. The second point is that no error in her Honour's judgment has been demonstrated.
I have already rejected the applicant's arguments regarding the elevation of WC's evidence to an essential intermediate fact.
I would reject Ground 1 of the appeal.
In responding to the jury's question, her Honour provided the following instruction:
"In the circumstances pertaining to counts 1 to 4, you do need to be satisfied that it happened as AM said it happened, namely that it happened at Batemans Bay when they stayed overnight at Batemans Bay."
For counts 3 and 4, the Crown alleged that the sexual offences took place on 30 September 2007 at the Zorba Motel in Batemans Bay. This was on the following morning after the applicant had sexually assaulted AM in the same motel room (counts 1 and 2). The applicant and AM had checked into the hotel on 29 September 2007 and stayed overnight.
It was AM's evidence that the applicant sexually assaulted him in the shower whilst he was washing lice treatment product through AM's hair (count 3) and after they both got out of the shower (count 4). AM gave evidence that prior to that time, he had been with the applicant at the mall. AM's hair had been cut by a hairdresser. Both he and the applicant then went to the supermarket where the applicant purchased lice treatment product before returning to the motel.
There was evidence in the trial that checkout time at the Zorba Motel had always been before 10:00am, but one could checkout up to 12:00pm without incurring additional cost.
Although it is neither necessary nor appropriate to determine the bases upon which the jury reached their verdicts, it is sufficient to state that it is not impermissible speculation to conclude that it was open to the jury, on the evidence in the trial, not to be satisfied beyond reasonable doubt that counts 3 and 4 occurred at the Zorba Motel in Batemans Bay.
I would reject Ground 2 of the appeal.
I have previously provided my reasons for rejecting the applicant's arguments upon which Ground 3 are based. [19] There was no real risk of the jury using the tendency evidence improperly in an unfair way. The significant probative value of WC's evidence substantially outweighed any prejudicial effect on the applicant.