Neal v R [2005] TASSC 70

Evidence Act 2001 (Tas), s55(1).

Smith v R [2001] HCA 50; (2001) 206 CLR 650; Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297, applied.

Judgment Number: [2005] TASSC 70

1 The appellant was convicted of one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125. The complainant was aged about 7 or 8 years on the relevant occasions, which occurred in 1980. The appellant lived with his wife at an address where they operated a motel. He was aged about 53 and 54 on the relevant occasions. The complainant lived nearby with her family. It was common to both sides of the case that she was often at the motel and sometimes in the presence of the accused.

2 The complainant gave evidence of the following sexual crimes being committed by the appellant against her:

(1) Aggravated sexual assault. She said that she was in the appellant's office with him. He was sitting at his desk and he pulled her close to him. He put his hand between her legs, underneath her dress and panties, and inserted his finger into her vagina and began moving it inside her for roughly 10 seconds. She described it as quite painful and a very dry sensation.

(2) Another aggravated sexual assault. During the tuna season, probably in March, she was in his office with him and he pulled her gently over to where he was sitting at his desk. He again inserted his finger into her vagina for roughly 10 seconds.

(3) Rape or, at the very least, sexual intercourse with a young person under the age of 17 years. In April, the appellant led her into his bedroom, sat her on the edge of a double bed, undid the zipper on his trousers, took his penis out, asked her to open her mouth and, holding his penis in his hand, inserted the end of it into her mouth for approximately 10 or 15 seconds. She described the experience as uncomfortable and nauseating.

(4) Another rape or sexual intercourse with a young person under the age of 17 years. On another occasion, he led her into the bedroom again and acted in a similar way. She did not want to co-operate by opening her mouth. She described him as "agitated to the point of holding me behind the back of my head and pushing his penis into my mouth". She said that only about 5 centimetres of it entered her mouth. It was in there for roughly 10 or 15 seconds. She described him as very ruffled with his hair falling over the front of his forehead.

3 Evidence was given for the State by the complainant's mother. The appeal concerns a passage in her evidence in which she related a conversation she had with the appellant during which he explained that his relationship with his wife was not a close, caring or loving one. She said that he indicated very strongly and quite often that his wife was frigid and he seemed much more contented when his wife was not present. The full text of the relevant passage of evidence is in the reasons for judgment of Hill AJ. Objection was made to the evidence by the appellant's counsel, solely on the ground that it was not relevant. However, the learned judge admitted the evidence, holding as follows:

"It comes back to the proposition that a person with an unsatisfactory sex life might be more likely to commit - or might have more reason to commit a sex crime than someone with a satisfactory sex life. It goes no further than that. It's evidence of minimal probative value which may however, to some degree, provide corroboration of the evidence of the complainant."

4 Counsel for the appellant did not submit to the learned judge that even if relevant, the evidence should not be admitted because its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the appellant. See the Evidence Act 2001, s135(a). However, the learned judge did address that issue:

"It therefore raises the question of whether there's any basis upon which the accused might suffer unfair prejudice if the jury hear this evidence. I can't see how [the] jury are likely to reason [in] any unfair way if they hear this evidence. It's plainly evidence that they would need to be very cautious about because it by no means follows that a person with an unsatisfactory sex life might commit a sexual crime. It's a very small piece of evidence that I think should be approached with caution but I do think that it's relevant in the sense that I've outlined and has some probative value and I don't see any risk of prejudice so on that basis I'll allow the evidence to be led."

5 The grounds of the appeal against the conviction complain that the learned judge erred (1) by admitting the evidence in question; (2) by incorrectly directing the jury as to the use it could make of the evidence; and (3) by failing to exercise his discretion to exclude the evidence.

6 In her closing address to the jury, counsel for the Crown relied on the challenged evidence only as a possible explanation for the appellant committing the offence. She referred first to evidence from the complainant, her mother and her sister, that tended to establish that there was a close and affectionate relationship between the appellant and the complainant. It included evidence that on occasions the complainant sat close to the appellant on his knee; that there an occasion when she was seen sitting with the appellant on his bed; that on occasions he read or told her stories; that he was like an uncle and very affectionate; and that he gave the complainant a lavish present of a Barbie doll's life-size head with makeup to apply to it. Having referred to that evidence, counsel for the Crown then drew the jury's attention to the challenged evidence and continued:

"Well what use can you make of that evidence? ... And you may just think that if Mr Neal wasn't fulfilled sexually within his marriage that that might well explain how he could come to a situation where he turned his attention to somewhere else, to the child, [the complainant], to seek sexual gratification elsewhere. I'm certainly not suggesting that just because a person is not sexually fulfilled that it necessarily follows that they will abuse another person. But you might be able to use that to explain his actions in this particular case."

7 Counsel for the appellant addressed the jury about the challenged evidence in the following way:

Then there's the evidence that you've been asked to consider about Mr Neal's relationship with his wife, which came from [the complainant's mother], and I suggest to you it was an exceptionally low blow of the Crown to suggest that a person with an unhappy marriage may be more inclined to be a child molester, and is exactly what you were asked to use that information on. It's a very long bow to draw and you might think - I ask you again to consider your own life experiences in relation to that. The fact that the Crown are asking you to draw that inference may be reflective of the fact that there are weaknesses in the Crown case, because why would they ask you to rely on information like that if they thought they had a strong enough case, why would they ask you to use it in that way."

8 When summing up to the jury, the learned judge turned to what he described as "a couple of other minor pieces of evidence that the Crown relies on", and shortly after said:

"There's also the evidence of the mother that Mr Neal said things about his wife's frigidity or lack of enthusiasm for sex. You may think that's of some value, you may think that it's insignificant. You should certainly approach that with caution because there must be plenty of men who find themselves in that sort of situation without molesting children. You mustn't jump to a conclusion, however it's open to you if you think fit to regard that evidence as providing some suggestion of a possible motive or explanation for the alleged criminal conduct."

9 Evidence that is not relevant in the proceedings is not admissible. Evidence Act, s56(2). By s55(1), "evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding". The facts in issue at the trial were whether the appellant sexually misconducted himself with the complainant in the ways alleged.

10 The fact of an unhappy or sexless marriage could be relevant to the issue whether a party to it entered into a sexual relationship outside the marriage, because it could rationally affect the assessment of the probability of such conduct, providing a reason why the person concerned might have sought sexual relief outside the marriage, although its probative value would not be great. The necessary link of relevance between an unhappy or sexless marriage on the one hand and sexual misconduct with a 7 year old child on the other hand, is not so clear. Sexual acts with a very young child are of a very different character than those performed between adults. The question that may be posed is this, will men who suffer an unhappy and sexless marriage have more reason to want to commit sexual acts against young children than men who enjoy a happy and sexually satisfying marriage. With some hesitation, I have concluded that the answer is in the affirmative and for that reason, the minor fact, concerning the appellant's marriage, could rationally affect the assessment of the major fact in issue. It was evidence akin to evidence establishing motive. The probative value of it was weak and it added little of value to the Crown's case, but that is insufficient to prevent it from being relevant. "If evidence is of some, albeit slight probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is 'weak', and ... whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility". Festa v R [2001] HCA 72; (2001) 208 CLR 593 at [14]. Evidence is either relevant or it is not. Smith v R [2001] HCA 50; (2001) 206 CLR 650 at [6]. I conclude that the appellant has not established that the learned judge erred on the question of relevance.

11 It is the appellant's case that notwithstanding that his counsel did not raise the point at the trial, the learned judge should have excluded the challenged evidence because the undoubtedly weak probative value of it was substantially outweighed by the danger that the jury might use the evidence in a way that was unfairly prejudicial to the appellant. In Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at [91] and [92], McHugh J pointed out that evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted and he cited, with obvious approval, the statement of the Australian Law Reform Commission in its Interim Report No 26 on Evidence, (1995), Vol 1, par644:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case."

12 It was submitted for the appellant that the risk of unfairness was that the jury might rationalise that a person in an unhappy and sexless marriage was more likely to look elsewhere for sexual gratification and in this case, to seek it from a 7 year old child. However, that was the very basis upon which the challenged evidence was relevant and admissible. Its relevance was that he had a reason to seek sexual gratification outside his marriage. To succeed with the argument, the appellant needed to establish the risk of misuse of the evidence in some other way. In written submissions it was claimed that the challenged evidence created a risk of unfairness because it might have caused the jury to be biased against the appellant, regarding him as a person who was likely to seek sexual gratification elsewhere than in his marriage, but once again, that is merely another way of saying that the evidence carried with it a risk of unfairness because it was relevant. As submitted by counsel for the Crown, the evidence sought to be excluded by the appellant did not suggest that he was of bad character, nor that he had a propensity to commit crimes of a sexual nature, nor that he was a sexual deviant. If the evidence had any of those characteristics, then it could be said to be more likely to arouse feelings of horror and disgust, which would have unfairly prejudiced the appellant, but the evidence did not fit that category.

13 Finally, it was submitted for the appellant that the learned judge failed to adequately warn the jury about the dangers of using the challenged evidence to conclude guilt. Counsel for the appellant accepted that as there is no rule of law governing what direction should have been given, the appellant cannot succeed on this basis unless he establishes that a miscarriage of justice occurred.

14 When dealing with the evidence, the learned judge pointed out to the jury that they should be cautious, "because there must be plenty of men who find themselves in that sort of situation" (an unhappy and sexless marriage) "without molesting children". He directed the jury that "you mustn't jump to a conclusion" and explained the way in which the jury might use the evidence by saying that "it's open to you if you think fit to regard that evidence as providing some suggestion of a possible motive or explanation for the alleged criminal conduct". There was nothing else his Honour could have usefully added. The valid use of the evidence was appropriately confined by the summing up.

16 I have had the benefit of reading in draft form the reasons for judgment of my colleague Hill AJ in this matter.

17 While I agree with his ultimate conclusion that the appeal should be dismissed for the reasons stated by him, I formed a different view as to the admissibility of the challenged evidence.

18 A summary of the challenged evidence and the arguments as to the conclusions drawn by the learned trial judge appear relevantly in the judgment of Hill AJ and I do not propose to repeat them. I agree with his comment at par12 of his reasons as to the characterisation of the appellant's relationship and the comments which follow at pars13 and 14.

19 However, in my view, the challenged evidence needs to be looked at in the context of the acts alleged. The challenged evidence may have led the jury to believe that the appellant was not receiving sexual gratification within his marriage. Sexual gratification may be obtained in a number of ways and is not confined to sexual intercourse in what might be described as the normal way between an adult male and an adult female. The acts alleged to have been perpetrated against the complainant were acts which appeared on the face of them designed to obtain sexual gratification for the appellant. Were the jury to look at the evidence in that light, that is, sexual gratification however achieved, they may very well have made a logical connection between the evidence and the alleged acts.

20 I would conclude for those reasons that the evidence was relevant to a fact in issue.

21 In taking that view of how the jury might view the evidence, however, I would agree with the view of the learned trial judge that the probative value of the evidence was minimal. I am also of the view that the potential for its prejudicial value to outweigh that minimal probative value clearly exists and for that reason the evidence should have been excluded. The learned trial judge erred, in my view, in not excluding the material.

22 Notwithstanding this view, I would dismiss the appeal for the reasons stated by Hill AJ.

23 The appellant was convicted of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The particulars of the indictment alleged against the appellant are:

"... at Eaglehawk Neck in Tasmania between on or about the first day of January 1980 and or about the 31st day of May 1980 maintained a sexual relationship with [the complainant] a girl aged 7 years."

24 The complainant gave evidence that the appellant had indecently assaulted her on two occasions by inserting his finger into her vagina. These incidents, she alleged, occurred in about March 1980 when she was in the office of a hotel being run by the appellant. She further alleged that in April the same year, the appellant committed two acts of oral rape against her. The complainant's mother, father and sister also gave evidence. The appellant denied the allegations.

25 He appeals against his conviction on the ground that the trial judge erred in admitting evidence of conversations between the appellant and the complainant's mother. The challenged evidence is as follows:

"Can you recall any of the conversations that he had with you? ... Mr Neal indicated that he wasn't - he - that there were - that he - excuse me - Mr Neal indicated to me that his marriage or his relationship with his wife was not a close and caring and loving relationship.

Yes. And did he say anything in particular that gave you that impression? ... One particular evening in the restaurant I was working in the restaurant. He brought out a picture of his wife and he said to me - he indicated that she had an evil look on her face even when she was smiling, that she had this evil look on her face.

Did you ever - ... She was sitting over in the restaurant -

Yes? ... it was an evening where Mrs Neal was actually sitting down talking with a young man, and so he followed his conversation on from that, so these occurrences happened at the same time. He said, 'Betty's sitting with that man who is obviously homosexual', he said that the only men that his wife would be comfortable with would be homosexual males because there was no desire there and she wasn't comfortable with desire.

Okay. And did he ever say anything else to you about - or intimate anything about his sexual relationship with his wife? ... He indicated very strongly and quite often that his wife was frigid and he seemed to be much more contented when she wasn't there."

26 Counsel for the appellant at the trial, when objecting to the admissibility of the evidence, said:

"... the suggestion the jury may be left with is that should he have been unhappy in his relationship, well that might - may have given him a reason to have acted in the way that is alleged, which is quite an improper suggestion or inference to make."

"... it's not relevant to establishing any evidence in relation to the allegations, it's evidence of a conversation had about a private relationship with his wife at the time, it's not involving the complainant at all."

28 Counsel for the State submitted that the evidence was relevant as being "relevant as relationship evidence", and also evidence of "motive and/or the appellant's guilty passion for the complainant". She submitted further:

"... that comments made by the accused to the witness concerning his relationship and his wife's frigidity, are relevant because it can be used for the purpose of understanding the accused [sic] passion towards the complainant, and in that way, it's relevant to explain his motif [sic] for committing the sexual acts upon her."

29 His Honour ruled the evidence was admissible in the following terms:

"This evidence wouldn't - can't go to establish anything about a tendency. There's no suggestion that the accused had a tendency to molest children or do anything improper. It comes back to the proposition that a person with an unsatisfactory sex life might be more likely to commit - or might have more reason to commit a sex crime than someone with a satisfactory sex life. It goes no further than that. It's evidence of minimal probative value which may however, to some degree, provide corroboration of the evidence of the complainant. It therefore raises the question of whether there's any basis upon which the accused might suffer unfair prejudice if the jury hear this evidence. I can't see how jury are likely to reason any unfair way if they hear this evidence. It's plainly evidence that they would need to be very cautious about because it by no means follows that a person with an unsatisfactory sex life might commit a sexual crime. It's a very small piece of evidence that I think should be approached with caution but I do think that it's relevant in the sense that I've outlined and has some probative value and I don't see any risk of prejudice so on that basis I'll allow the evidence to be led."

30 On the hearing of this appeal, the appellant contended that the evidence was irrelevant and not admissible as going to motive, relying on the Evidence Act 2001, s55(2). Section 55 provides as follows:

"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) Evidence is not taken to be irrelevant only because it relates only to -

31 The appellant further submitted that if the evidence was found to be relevant, the prejudicial effect of its admission outweighed any probative value that it had and it should have been excluded in the exercise of the Court's discretion.

32 It was submitted that it did not rationally follow that because there was evidence that the appellant was in an unhappy marriage, he would turn his attention to a 7 year old child and would commit acts of criminal conduct. The learned trial judge had directed the jury in the following terms:

"There's also the evidence of the mother that Mr Neal said things about his wife's frigidity or lack of enthusiasm for sex. You may think that's of some value, you may think that it's insignificant. You should certainly approach that with caution because there must be plenty of men who find themselves in that sort of situation without molesting children. You mustn't jump to a conclusion, however it's open to you if you think fit to regard that evidence as providing some suggestion of a possible motive or explanation for the alleged criminal conduct."

33 The State submits that the evidence was relevant to motive and admissible and that the jury "could use the evidence of an unhappy relationship as direct motivation to commit crime".

34 In argument I think it was taken that unhappiness in the relationship involved the lack of sexual gratification for the appellant and I am dealing with the evidence on that basis.

35 I am aware that it is "undesirable to set the hurdle of relevance too high" (see Odgers Uniform Evidence Law, 6th edn par1.3.20 ff). In that text, reference is made to the Australian Law Reform Commission Report (ALRC 26, vol 1, par641) as to the rationale upon which s55 is based in the following terms and I set out below part of the passage referred to:

"The definition requires a minimal logical connection between the evidence and the 'fact in issue' ... The definition requires the judge to ask 'could' the evidence, if accepted, affect the probabilities. Thus, where a judge is in doubt whether a logical connection exists between a fact asserted by evidence and 'a fact in issue', he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection."

36 Adopting the approach to the admissibility of the conversation in accordance with the approach taken in Smith v R [2001] HCA 50; (2001) 206 CLR 650 at 655, one has to determine what the fact in issue for determination by the jury was. It seems to me that fact was whether the appellant committed the acts as alleged by the State. Could the evidence of the complainant's mother that the appellant said his wife was frigid and uncomfortable with expressions of desire, if accepted, rationally affect the assessment by the jury of the probability that the appellant did commit the acts as alleged with the complainant, a 7 year old child.

37 In my view, it is a large step to take to find such a connection with the state of the appellant's relationship with his wife to a likelihood of his committing the acts alleged. In my view, a reasonable jury might properly find a logical connection from the evidence with perhaps the appellant seeking some sexual fulfilment with an adult female other than his wife. But it seems to me most unlikely that the jury would find such a connection with that evidence and the seeking of such fulfilment with a child. I fail to see how the evidence could "rationally affect" the assessment of the probability of the existence of the fact in issue in the proceedings to be decided by the jury.

38 In my view, the evidence was irrelevant as it failed to come within the definition in s55 and was therefore inadmissible. The learned trial judge erred in allowing it to be received. Further, if that view is found to be incorrect, I consider the prejudicial effect of the evidence outweighed its probative value. With respect, I agree with the learned trial judge's description of such value as "minimal".

39 The appellant had denied the charges. There was evidence of recent complaint and some of opportunity. I am concerned as to the use to which the jury could put this evidence and I accept Ms Jago's submissions in that regard based on Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297, per McHugh J, referring to R v BD (1997) 94 A Crim R 131 at 137, per Hunt CJ at CL.

40 However I do not need to finally decide that point as I consider the evidence to be irrelevant and inadmissible in any event.

"402 (1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgement or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

"... a hypothetical reasonable jury, acting properly, upon a proper direction, and upon admissible evidence only, would, without doubt, have convicted the appellant".

Per Blow J in Owen v R [2001] TASSC 79.

43 Here the jury had evidence from the complainant who gave detailed evidence of each of the allegations. On my reading of the transcript, she was unshaken in cross-examination. They heard evidence from her father, mother and sister. The appellant did not give evidence but, as I said earlier, the jury saw his interview with police. There was ample evidence, if the jury accepted the State's witnesses, to be satisfied beyond reasonable doubt of the guilt of the appellant. The challenged evidence was, it seems, not a major part of the State's case and the learned trial judge urged caution in the jury's use of it in any event.

44 I do not consider that the appellant lost a "chance of acquittal which was fairly open to him" (see Underwood J (as he then was) in Jones v R 46/1996, par40).

45 Counsel for the appellant conceded that, the challenged evidence aside, there was evidence the jury could have properly used to reach a verdict of guilty but submitted principally, as I understand it, that the appeal should be allowed and no retrial ordered because of the appellant's health which I accept is poor. Counsel for the State urged a retrial if the appeal were to be allowed.

46 In my view, the admission of the evidence had no effect upon the ultimate verdict. Despite my finding on the question of the admissibility of the challenged evidence, I consider that no substantial miscarriage of justice has actually occurred and I would therefore dismiss the appeal.