Ground 2: tendency and coincidence evidence
The background to these grounds
88As mentioned above, prior to the empanelment of the jury in the first trial, by Notice of Motion, an application was made on behalf of the appellant that there be a separate trial in respect of the allegations of each of the four complainants named on the indictment as it then stood. The outcome of that application depended upon whether or not the evidence upon which the Crown proposed to rely as tendency and/or coincidence evidence would be admitted for those purposes (or either of them). The Tendency Evidence Notice (s 97) nominated a number of witnesses from whom the Crown proposed to call evidence. These included students of the college, who were to be called to give evidence of the appellant behaving in a sexual way to themselves, or of having observed the appellant behaving in a sexual way to others.
89The proposed witnesses named in the Tendency Evidence Notice also included police officers who would give evidence of the execution of a search warrant at the appellant's home after his arrest in September 2008, and to the seizure of a number of items from those premises. Those items included DVDs, books and magazines, condoms and a club membership card. The Crown proposed to rely on these items of evidence as indicating a sexual interest, on the part of the appellant, in young boys.
90The Coincidence Evidence Notice (s 98) indicated that the Crown proposed to rely on the allegations of GB and TE to establish that, because of the improbability of the events the subject of those allegations occurring coincidentally, the appellant did in fact engage in the conduct alleged. Further, the Coincidence Evidence Notice foreshadowed that the Crown intended to rely on the evidence of the various items seized from the appellant's home to support TE's assertion that the appellant showed him pornographic videos and magazines.
91The Notice of Motion was supported by an affidavit sworn by the appellant's solicitor. The affidavit recounted, in detail, the arrest and charging of the appellant, as well as other members of the Catholic Order of priests who administered and staffed the college. Annexed to the affidavit were many pages of extracts from newspaper and internet reports, and comments posted on the internet. It appears that this was intended to provide the foundation for the proposition that GB, and perhaps TE, had been influenced to bring their complaints by becoming aware of other allegations against the appellant, or other members of the college staff. This, in turn, appears to have been directed to a proposition that the evidence of the two complainants lacked probative value because it was affected by contamination resulting from what was said to be widespread media publicity.
92Cogswell DCJ determined that (with minor exceptions) the evidence would be admitted for tendency and coincidence purposes. The effect of that ruling was that the application for separate trials would fail and the Notice of Motion would be dismissed. Although there is in the material before this Court no record of any formal order being made, it may be taken that, at least by implication, his Honour made an order dismissing the Notice of Motion. Once he had determined that the evidence of both complainants was admissible for tendency and coincidence purposes, it was inevitable that such an order would be made.
93That is of some significance, for reasons that appear below.
94At the commencement of the second trial a similar application was made to Garling ADCJ. Garling ADCJ considered himself bound by the order made by Cogswell DCJ. In reaching that view, he relied on s 130A of the Criminal Procedure Act.
95Sections 130 and 130A are relevantly in the following terms:
"130 Trial proceedings after presentation of indictment and before empanelment of jury
(1) In this section, court means the Supreme Court or District Court.
(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.
(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:
(a) the proceedings are part of the trial of the accused person, and
(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.
(4) ...
(5) ...
130A Pre-trial orders and orders made during trial bind trial Judge
(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
(2) ...
(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.
(4) In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial."
96There was no dispute that, for the purposes of s 130A(3), the trial before Cogswell DCJ had been "discontinued", and that the (implied) order made by Cogswell DCJ dismissing the Notice of Motion seeking separate trials was an order within that sub-section.
97There is an issue, as yet unresolved, whether s 130 and s 130A encompass pre-trial rulings on evidence: see R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [151] per Howie J. This doubt derives from the interpretation given to the word "order" as it appears in s 5F of the Criminal Appeal Act 1912 (NSW): see R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633; DAO v R [2011] NSWCCA 63; 81 NSWLR 568.
98Garling ADCJ was alive to this issue. He cited a decision of Haesler DCJ in R v BO [2012] NSWDC 194, in which his Honour concluded that, since s 130A is designed to avoid the unnecessary re-ventilation of issues which often lead to delays in criminal trials, the word "order" in s 130A encompasses pre-trial rulings and orders relating to the admissibility of evidence.
99Garling ADCJ agreed with that view and adopted it. That is not the subject of any ground of appeal.
100It is necessary to do no more than note that that issue exists. Certainly, it would be helpful if the NSW Parliament were to effect an amendment to put the matter beyond doubt. Section 130 and s 130A would be considerably more useful if it were clear that they are intended to ensure that pre-trial rulings on evidence are (absent the interests of justice dictating to the contrary) binding on subsequent judges dealing with the same proceedings.
101There are two reasons why the issue does not call for determination in this case. The first is that it has not been raised in the very lengthy submissions provided on behalf of the appellant. The second is that, in any event, what was done by Cogswell DCJ amounted to an order. The order was to dismiss the Notice of Motion by which the appellant sought separate trials: see DAO v R [2011] NSWCCA 63; 81 NSWLR 568.
102Garling ADCJ extracted sub-s 130A(1) and (3). He went on to say:
"It is argued on behalf of the accused that I should make an order which would allow the reconsideration of this application on the basis that it would not be in the interests of justice for the previous order to be binding. The onus of proof, of course, is upon the accused.
...
It is argued on behalf of the accused that I should allow this matter to be reconsidered because his Honour [Cogswell DCJ] made this ruling on the evidence available to his Honour but before his Honour heard the evidence in the trial. It is argued that the evidence which came out in the trial, which included evidence from the complainant, evidence from the accused and other evidence on the accused's behalf would allow this court to come to a different view. It is argued that the evidence given by the complainant [GB] was significantly unreliable.
...
As I see the position, his Honour had before him a significant amount of evidence. His Honour, in a lengthy judgment covering a number of matters, obviously gave careful consideration to the point it is sought to re-argue. When I am looking at s 130A I do not consider it on the basis that one of the parties may not agree with his Honour's ruling or that I, indeed, may have reached a different conclusion. The section of the Act is in place for a purpose and that is that pre-trial orders or orders in another trial made by another judge, the trial Judge, cannot be re-argued except in exceptional circumstances.
...
I have concluded, having looked at all those matters quite rightly raised, that this is not a matter in which I could rule that it would not be in the interests of justice for the order to be binding ... I cannot make any other finding than that I am bound by section 130A in relation to the first of these matters.
... I am not hearing arguments as to whether I would have admitted [the evidence] in this trial, I am purely ruling in relation to section 130A and, having considered all those matters, I have concluded that I am bound by section 130A in his Honour's ruling. I could not say it would not be in the interests of justice that that order be binding."
103The argument that was put to Garling ADCJ was to the effect that experience in the first trial demonstrated unreliability in the evidence of both complainants. This, it was said, was because there was a risk that their evidence had been contaminated by pre-trial publicity, and because the complainants were hostile towards the appellant. Those arguments were essentially the same as had been put before Cogswell DCJ. They provided no basis for departure from the order made by Cogswell DCJ.
104An additional argument was put to Garling ADCJ. That was that, since both GB and TE had given evidence in the first trial, and had been cross-examined, Garling ADCJ was in a better position than had been Cogswell DCJ to assess their credibility. Moreover, as the appellant had also given evidence in the first trial, it was possible to discern "an alternative explanation" for conduct of the appellant of which the two complainants gave evidence. The alternative explanation went to the appellant's possession of the items seized in the execution of the search warrant, tendered as indicative of the appellant's interest in homosexual activity, particularly with young boys or men. The alternative explanation was the appellant's involvement in HIV/AIDS organisations.
105These submissions were, in my opinion, misconceived. The task of a judge determining admissibility of evidence under s 97 or s 98 is to decide, first, whether it would have "significant probative value". Since "probative value" is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Evidence Act, Dictionary), the assessment is of the capacity of the evidence to have that effect to a significant degree. In DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158, this Court held that, for the purposes of s 98, the assessment of probative value may take into account any alternative explanation (in a criminal case, inconsistent with guilt) of which there is a real possibility: at [10] (per Bathurst CJ) and at [78]-[82] (per Whealy JA). That appears to be because s 98 specifically directs attention to other evidence adduced, or to be adduced, by the tendering party. (The same must, obviously, apply to evidence tendered under s 97.) Both the Chief Justice and Whealy JA, however, also held that in the assessment of probative value it is no part of the judge's function to embark upon an assessment of the credibility of the evidence. That is, and remains, within the province of the jury: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [167]. That applies equally whether the evidence is tendered under s 97 or s 98, or is sought to be excluded under s 137. In a criminal case, a further assessment is required: to be admissible under s 97 or s 98, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant (s 101(2)).
106The submissions put to Garling ADCJ invited his Honour to make an assessment of the probative value of the evidence by evaluating the credibility of the two complainants on the basis of the evidence they gave in the first trial, particularly their cross-examination. That was wrong in principle, and Garling ADCJ was correct not to succumb to the invitation.
107A similar submission was made to this Court, and should similarly be rejected.
108Moreover, what was said to be the possible subject of an alternative explanation was not the criminal conduct alleged, but the appellant's possession, at the time of his arrest, of items that might be thought to be indicative of a sexual interest in young men or boys.
109In an alternative argument put on appeal, the appellant's solicitor seized upon the reference in the decision of Garling ADCJ to "exceptional circumstances". The contention was that his Honour applied the wrong test.
110Had his Honour applied an "exceptional circumstances" test, then there is an available argument that this denoted error. However, in my judgment, he did not apply such a test. He set out the relevant sub-section (sub-s (3)) of s 130A, and twice thereafter expressed the conclusion, in correct terms, that he could not rule "that it would not be in the interests of justice for the order made by Cogswell DCJ to be binding". That is a test in the language of s 130A. The single reference to "exceptional circumstances" does not express the approach taken by Garling ADCJ to the issue that was before him.
111Finally, it was argued that Garling ADCJ erred by failing to exercise the "discretion" conferred by s 130A. This was not a case, it was (correctly) pointed out, in which the second judge exercising jurisdiction was limited to the material available to the judge who made the initial decision. In this case, available to the judge, and said to be relevant to the assessment of probative value for the purpose of s 97 and s 98, was the evidence given by GB and TE in the trial, as well as that of the appellant. The evidence of the appellant can immediately be put to one side; probative value for the purposes of s 97 and s 98 is to be assessed by reference to the evidence in question, having regard to other evidence adduced or to be adduced by the tendering party. There is no room in that assessment for reference to be made to evidence tendered or to be tendered by the opposing party.
112The relevance of the evidence of GB and TE in the trial was said to lie in the effect of their cross-examination. There was nothing in those parts of the cross-examination to which reference was made that impacted on this evidence other than their credibility. For the reasons given above, that does not affect the assessment of the probative value of the evidence so far as s 97 and s 98 are concerned.
113It will be seen that both grounds 1 and 2 rely upon s 130A of the Criminal Procedure Act. There is no separate challenge to the decision (by Cogswell DCJ) that the evidence was admissible as tendency and coincidence evidence, nor any ground that asserts miscarriage of justice as a result of the admission of the evidence. No argument was directed to the admissibility of the tendency and coincidence evidence. To the extent that it is possible to do so in the absence of argument, I would conclude that the tendency and coincidence evidence was properly admitted.
114I would reject grounds 1 and 2.