R v Edwards

The s 293 application

1. The willingness of several complainants to engage in sexual activities and to cooperate in that respect with Mr Edwards was said by the Crown to be explicable only by reference to the fact that they had had prior sexual experience. That experience is recorded in some detail in statements variously provided by each of the complainants concerned.
2. For example, Peter Hogan had regular sex with John Shiel in the first half of 1978 that went on to include sex with other men. When Peter Hogan was taken to Mr Edwards' place by John Shiel, he saw other men less. The Crown asserts that there was therefore a continuing round of sex with Peter Hogan that begins with John Shiel, moves to other men and then on to Mr Edwards. Mr Edwards on this analysis is therefore having sexual relations with Peter Hogan at the same time as he is having sexual relations with John Shiel.
3. Kevin Kittila's first sexual experience is with John Shiel. According to his statement, his first sexual experience with Mr Edwards was about two months later. The Crown alleges that the sexual activity between Kevin Kittila and these two men occurs at the same time. Kevin Kittila's statement indicates that the routine or pattern established by John Shiel is also used by Mr Edwards.
4. Shane McNamara's statement indicates that he was sexually assaulted by John Shiel between 1980 and 1988 on an ongoing basis, and that it was John Shiel who introduced him to Mr Edwards. He said that he was sexually assaulted by John Shiel and Mr Edwards every third weekend at the end of 1981 and every second weekend on an ongoing basis between 1982 and 1988. John Shiel took Shane McNamara to Mr Edwards' place between May and December 1980. John Shiel would assault him on Friday nights and Mr Edwards would do so on Saturday nights from 1981 to 1988.
5. Anthony Sork said that he was first sexually assaulted by his uncle Philip Sork. That continued from about the middle of 1980 until the end of 1983. He first met Mr Edwards and John Shiel around September 1981. He was first sexually assaulted by Mr Edwards at his uncle's apartment and that continued from January 1982 until December 1983. Therefore, when Anthony Sork was first assaulted by Mr Edwards, he was still being assaulted by his uncle.
6. Avelindo Robertson was introduced to sexual activity by Philip Sork in 1986 and that continued for about six months. He was introduced to Mr Edwards about six to eight weeks after beginning with Philip Sork. He began to "go out" with Mr Edwards in about September 1986 and he was "handed over" to Mr Edwards by Philip Sork. Moreover, this "changeover" occurred either the following night or the next weekend and sex occurred on that occasion.

His Honour's judgment

1. Jeffreys DCJ was not satisfied that the evidence concerned fell within the exception to exclusion contained in s 293(4) and it was accordingly disallowed. In particular, his Honour ruled that under s 293(4)(a)(ii), the sexual experience did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. Furthermore, his Honour indicated that there was in any event a danger that the jury might misuse the evidence in the sense that it may lose sight of the real issues in the trial if they were overwhelmed by the evidence of sexual experience. The probative value of the evidence was therefore outweighed by the danger of unfair prejudice to Mr Edwards and his Honour indicated that he would also have rejected it pursuant to s 137 of the Evidence Act.

Grounds of appeal

1. His Honour found that the sexual experience of the complainants did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. The Crown appealed against his Honour's ruling excluding the evidence of the complainants' prior sexual experience upon which the Crown sought to rely as an exception falling within s 293(4)(a) of the Criminal Procedure Act.

Consideration

1. Section 293 of the Act is in the following relevant terms: "293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant…"
2. The purpose of s 293 was to limit the circumstances in which complainants in sexual assault matters would have to endure the public revelation what might otherwise be personal and sensitive matters: R v White (1989) 18 NSWLR 332 at 340. In GEH v R [2012] NSWCCA 150 at [57] I said this: "[57] It is uncontroversial that the original version of s 293 was introduced to limit the circumstances in which complainants in sexual assault cases would have to endure having what might otherwise be personal and sensitive matters examined in public: see R v White at 340."
3. To similar effect in R v Burton [2013] NSWCCA 335 at [70], Simpson J said the following: "[70] The judge's conclusions that the evidence indicated 'a general sexual willingness on the part of the complainant', and that it 'might act as some sort of antidote to the evidence that the complainant had, in the past expressly disavowed any interest in intimacy with the [respondent]' betrays an impermissible approach to the question of consent in the prosecution of allegations of sexual offences. The reasoning contains an unstated premise. The unstated premise is that a person who engages sexually with another person will, or is likely to, engage sexually with any other person. It is a patently false premise. Section 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination that proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (person A) provided the foundation for an inference that that person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from the criminal courts, first by s 409B of the Crimes Act, and subsequently by s 293 of the Criminal Procedure Act. Yet that is precisely the process of reasoning disclosed in the passages of the judgment set out above, and the inference that was explicitly drawn…"
4. Campbell JA's comments in Taylor v R [2009] NSWCCA 180 at [47] are also instructive: "[47] The structure of section 293, so far as presently relevant, is that subsection (3) creates a blanket rule making inadmissible the types of evidence described in it. Subsection (4) then creates six exceptions to that blanket rule. Before an exception applies, the evidence that is proposed to be adduced must both: 1) be one or other of the types of evidence described in paras (a)-(f) of subsection (4), and 2) meet the test that 'the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission'. The proposed evidence would need to be known in some detail before counsel or the judge was in a position to tell whether it fell within one or other of paras (a)-(f) of subsection (4), and whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission."
5. In the present case the Crown was at pains to emphasise that the reason for and purpose of the tender with which his Honour was concerned had nothing at all to do with the mischief identified in these authorities to which the section was clearly directed. The Crown contends in this Court that each of the five complainants acquired a certain amount of sexual experience or engaged in a certain amount of sexual activity with men other than Mr Edwards before they were made available to him, and that the evidence referred to above demonstrates that this sexual activity was occurring "at or about the time" that the sexual activity began with Mr Edwards.
6. His Honour found that the sexual experience of the complainants did not form part of a connected set of circumstances in which the sexual offences alleged against Mr Edwards were committed. His Honour said this: "So far as the aspect of a temporal nature is concerned, if it is sexual experience in the way that Harrison J speaks, then obviously that gate, as it were, is gone through by the evidence. I am not certain that what Harrison J speaks of is a matter which allows the evidence to get through the temporal gate, but even if it does get through the temporal gate, I am not satisfied that it can be said, in accordance with what the Court of Criminal Appeal said in Morgan and what Heydon J said in Tubou, that the sexual experience is or forms part of a connected set of circumstances in which the sexual offences alleged against the accused were committed by the accused. Accordingly, in my judgment the evidence does not come within the exclusion and it will not be allowed."
7. His Honour's references were to what I said in GEH v R at [63] to [66] as follows: "[63] Was the evidence in question also evidence of KN's sexual experience or lack of it, or sexual activity or lack of it taken part in by the complainant, at or about the time of the commission of the alleged sexual offence by the appellant? Importantly, the words in the subparagraph are 'taken part in by the complainant'. They serve on one view to distinguish between sexual experience and sexual activity. The former rather encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to a single or isolated sexual experience, or a number of them, at some particular time. The inquiry brought forward by the words 'sexual experience or lack of sexual experience' appears to be related to whether the complainant was or was not 'sexually experienced'. In contrast, the latter suggests a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part, at or about the time of the commission of the alleged offence by the appellant, but not at some other time. [64] The distinction may be critical, because any complainant's sexual experience, in the historical sense, will necessarily be his or her sexual experience 'at or about' the relevant time. In other words, a complainant's sexual experience will be his or her state of being at or about the time of the commission of any alleged prescribed sexual offence because that state of sexual experience or lack of sexual experience will in an ambulatory fashion always exist at the relevant time. On the contrary, evidence of particular sexual activity may clearly be either activity at or about the time of the commission of the alleged offence or it may not. The words "taken part in by the complainant" clearly relate only to sexual activity or lack of sexual activity, and not to the complainant's sexual experience or lack of sexual experience, because of the commas surrounding the words 'or of sexual activity or lack of sexual activity taken part in by the complainant'. In this way, evidence that relates to a complainant's general state of sexual experience may more readily satisfy the temporal test in subparagraph (4)(a)(i) than evidence relating to singular acts of sexual activity or lack of it in which the complainant is alleged to have taken part. [65] That distinction may be less significant having regard to the words used in s 293(4)(a)(ii). That is because that subparagraph speaks in terms of the evidence being 'of events that are alleged to form part of a connected set of circumstances'. In that way the historical experience of the complainant appears to be restricted or limited to sexual experience that is also capable of being described as or at least restricted or related to an event. [66] In the present case the evidence in question is directly related to a particular 'sexual activity taken part in by the complainant' and not to her state of sexual experience generally. The evidence is limited to the complainant's alleged sexual activity with John Hastings. The question is whether it is evidence of something that occurred 'at or about the time of the commission of the alleged prescribed sexual offence'. In my opinion it is not. It did not take place 'at the time'. It could only have taken place 'at about the time'. It did not take place at about the time of the alleged sexual offences or either of them in the sense that it took place some three or so months later. The issue to which the exception in subparagraph (4)(a)(i) is presently directed is the achievement of a fair balance between the lost forensic advantage to the appellant if it applies, having regard to the probative value of the evidence on the one hand, and the distress, humiliation or embarrassment that KN might suffer if the evidence were admitted on the other hand. Having regard to that equation, it does not seem to me that the subject matter of the alleged conversation between Amy Hastings and KN took place at about the time that the appellant was allegedly sexually abusing her. In the vernacular, it took place some time later."
8. The exception in s 293(4)(a)(ii) is directed at those cases where the sexual activity or experience (or lack of it) is connected with the alleged offences in time and place. As Basten JA said in GEH v R at [11]: "[11] The second and cumulative requirement of s 293(4) is that the relevant 'event', which must be taken to include a non-event, must form part of 'a connected set of circumstances in which the alleged prescribed sexual offence was committed' (emphasis added). The focus of the requirement is the circumstances in which the alleged offence was committed..."
9. Beech-Jones J summarised the position in GEH v R at [83] as follows: "[83] In those cases reviewed by Harrison J where evidence was found to fall within this exception, the evidence was of some 'event' that had relevance beyond what it might reveal about the complainant's credit. They concerned an event that was in each case found to be so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed. In R v Morgan, the conduct of the complainant in having intercourse with her boyfriend within 1 to 2 hours of the sexual assault having occurred 'could be seen by the jury as making the occurrence of the offence less likely' (at p. 551E per Mahoney JA) and formed part of 'the context in which the alleged offence was committed and against which the complainant's evidence might reasonably be evaluated' (at p. 544F per Gleeson CJ). Similarly in R v Rahme, Sully J at least found that evidence of the complainant's previous (apparently voluntary) occupation as a prostitute had been wrongly rejected as those events had an appreciable connection with the set of circumstance surrounding the alleged offence, bearing in mind that the appellant was charged with having forced her into prostitution. According to his Honour, it went beyond her credit and to 'the very heart of the facts in issue at the trial' (at [59]). In contrast in this case, the making of an allegedly false accusation against another older male might have impacted on KN's credit but it did not reveal an 'event' that was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having occurred."
10. It was submitted on behalf of Mr Edwards that the complainants' alleged willingness to submit to and cooperate fully with him in a range of sexual activity did not connect their conduct with other offenders at some earlier period of time to him. Mr Edwards submitted that that was precisely the type of evidence that the section was designed to exclude. The fact that a complainant has previously engaged in anal sex with person A did not form part of a connected set of circumstances between the complainant and person B, if B is accused of engaging in anal sex with the same complainant days, weeks or months later. The prior sexual activity with person A is not admissible to assess the likelihood of the complainant consenting to, or participating in, anal sex with person B. The prior sexual activity is not admissible to assist in understanding how the complainant may have responded to the sexual activity.
11. It should be noted that the section does not speak in terms of the reason or purpose that it was enacted to satisfy or to promote. Whatever principle it was designed to serve has not found its way into the words of the section so as to restrict or limit its operation or application to only the service of that purpose. Depending upon whether or not its conditions are met, the prohibition upon receipt of the evidence concerned either applies or does not apply as the case may be, regardless of the purpose for which the tendering party may wish to use it.
12. In my opinion the evidence in question in this case satisfies the terms of s 293(4)(a)(i) and (ii).
13. Consistently with the views that I expressed in GEH v R, the complainants' sexual experience, in the sense of their historical engagement in sexual activity over some years, is necessarily their existing state of sexual experience at or about the time of the alleged sexual offences with which Mr Edwards has been charged. Section 293(4)(a)(i) is concerned with the complainants' "sexual experience…at the time of the commission of the alleged prescribed sexual offence." The evidence of the sexual experience of the complainants that the Crown wishes to tender satisfies the temporal conditions of admissibility with which the section is concerned.
14. Moreover, the evidence in question is of events that the Crown alleges form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. The term "connected" is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming part of a connected set of circumstances. Be that as it may, in the present case, the complainants' sexual experience is clearly evidence of events that are alleged to form part of a connected set of circumstances. The sexual experience of the complainants is directly referable to a series of events that actually form part of the circumstances in which the alleged offences occurred. The complainants were handed around or passed between or among a series of individuals, including Mr Edwards, who groomed them with gifts and other favourable treatment before engaging in acts of sexual intercourse with them on regular and reoccurring occasions. The evidence does not, for example, relate merely to the sexual experience of the complainants with individuals unconnected to Mr Edwards or in isolated or unique circumstances.
15. In my opinion his Honour erroneously excluded the evidence in question.
16. The Crown also wished to rely upon s 293(4)(b). That section does not apply in this case as it is concerned with evidence of a relationship between Mr Edwards and the complainant. The Crown has not sought to adduce evidence of that kind.

Evidence Act 1995 - s 137

1. Section 137 of the Evidence Act provides as follows: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
2. Having excluded the evidence as earlier described, his Honour proceeded to say this: "If I be wrong in that regard, it seems to me that there is a danger of a jury misusing the evidence in the sense that a jury may well lose sight of the real issues in the trial being overwhelmed by the evidence in relation to sexual experience. In my view, the evidence is such that I must refuse to admit it because, in my view, its probative value is outweighed by the danger of unfair prejudice to the accused. The danger being the misuse by the jury by being distracted from the issues before them."
3. In dealing with the issue in that way, his Honour omitted further to elaborate upon the danger that he perceived or the way in which he considered that it might weigh unfairly against the accused having regard to its probative value. His Honour did not proceed to indicate how he considered that the evidence might be misused by the jury and he did not give consideration to the possibility that appropriate directions could be formulated to ameliorate or eradicate the perceived danger.
4. Wood CJ at CL made the following observations in R v Yates [2002] NSWCCA 520 at [252]: "[252] On the other side of the comparison is 'unfair prejudice', or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which sections 135 to 137 (or for that matter s 192) speak. Prejudice argues for exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, insofar as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections 135-137."
5. In the present case the Crown wishes to tender the evidence for a very specific and correspondingly limited purpose. It is a purpose that in my view is easily understood and equally easy to explain. That is, the Crown wishes to tender the evidence in order to explain why the complainants engaged in sexual activity with Mr Edwards apparently cooperatively and without complaint when an inexperienced person in the same situation might reasonably have been expected to resist the assaults alleged. That evidence has a significant probative value.
6. To the extent that the evidence concerns the activities of others and the perpetration of sexual assaults upon the complainants by them, as opposed to earlier assaults by Mr Edwards, there seems to me to be little room for confusion or misuse of the evidence. The prospect of unfair prejudice to Mr Edwards also seems correspondingly remote. The evidence is conspicuously amenable to the formulation of appropriate directions to ensure that its purpose is understood by the jury and that the use they make of it is accordingly limited. In this respect I am entirely unable to understand Mr Edwards' submission that the admission of evidence describing prior sexual activities of men other than Mr Edwards with the complainants is somehow unfairly prejudicial to him. The breadth and nature of the sexual abuse exposed by the evidence may arguably create sympathy for the complainants that would carry potential prejudice to Mr Edwards but it is not in my view likely to be unfairly prejudicial. The acts of sexual abuse specifically alleged against Mr Edwards are themselves not inconsiderable and the context in which the jury's view of the complainants would be formed necessarily includes the acts charged. Finally, if the names or notoriety of these other men were thought to be of concern, their identities could be suppressed and reference to them by pseudonym could be ordered.
7. His Honour in this way took into account plainly irrelevant matters. In my opinion he failed to take into account as a material consideration the legitimate use to which the evidence concerned could be put. His Honour also failed to give consideration to the prospect of directions to the jury to cure his concerns. His discretion miscarried as a result: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5.
8. In my opinion, the evidence is admissible.

Tendency

1. Section 97 of the Evidence Act provides relevantly as follows: "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: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (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."
2. The Crown gave a tendency notice in accordance with s 97 of the Evidence Act approximately two years prior to the commencement of the trial. The tendency sought to be proved was Mr Edwards' tendency to act in a particular way. The notice listed the following twelve tendencies: (i) To engage in sexual activity with young boys between the ages of 9 and 15 years. (ii) To use his friendship with John Shiel and Philip Sork to gain access to young boys who had been groomed to engage in sexual activity so that he could engage in sexual activity with them. (iii) To request young boys between the ages of 9 and 15 with whom he was engaging in sexual activity to befriend other young boys for the purpose of engaging in sexual activity with those other boys. (iv) To groom young boys for sexual purposes by providing them with lollies, clothing, jewellery, money and presents for the purpose of encouraging them to engage in sexual activity with him. (v) To take young boys aged between 9 and 15 years of age to the movies, the beach, restaurants, amusement parks, gaming arcades and motor bike riding and other fun activities to encourage the boys to engage in sexual activity with him. (vi) To provide alcohol and prohibited drugs to boys aged between 9 and 15 to lower their inhibitions so that they would more easily submit to sexual activity with him. (vii) To take young boys aged between 9 and 15 years of age away on holidays, in particular to the North Coast of New South Wales and the Gold Coast Queensland for the purpose of facilitating sexual activity with them. (viii) To take photographs of young boys who had gone on holidays with him and John Shiel and to give these photographs to the boys' parents upon their return such as to continue to engender the parent's trust. (ix) To invite young boys between the ages of 9 and 15 years to stay at his apartment on Friday nights and Saturday nights with John Shiel and another young boy between the ages of 9 and 15 years for the purpose of engaging in sexual activity with the young boys [modus operandi]. (x) To prepare young boys aged between 9 and 15 years of age to have anal intercourse with him by thrusting his penis between the back of their thighs. (xi) To have sexual interest in young boys aged 9-15 years. (xii) To take young boys between the ages of 9-15 years driving, especially in National Parks and having boys sit on his lap and steer the car, for the purpose of further befriending the young boys [modus operandi].
3. His Honour permitted the Crown to lead evidence in relation to four categories of evidence, namely categories (iv), (v), (vii) and (ix). The Crown now seeks to challenge his Honour's decision to reject categories (i), (ii), (vi) and (x).
4. In my opinion, this aspect of the Crown's appeal should be dealt with in the following way. There was placed before his Honour a very considerable amount of material, consisting of scores of statements, a wealth of photographic and other exhibits and over 700 pages of evidence received on a voir dire over a period of 18 days between 21 January 2014 and 27 February 2014.
5. On the later of those two dates his Honour published his reasons for judgment. He embarked upon the not uncomplicated analysis and dissection of the evidence by comparison with the twelve tendency categories identified in the s 97 notice. His Honour's conclusions were based upon identification by him of numerous bases upon which his Honour considered that the categories could be differentiated or distinguished. I have read and re-read his Honour's reasons in order to appreciate the way in which his Honour did so.
6. However, having done so, I am unable to accept that there is any easily discernible basis for distinguishing categories (iv), (v), (vii) and (ix), in respect of which his Honour permitted the Crown to lead evidence, and categories (ii), (vi) and (x), in respect of which he declined to do so. I accept that category (i) is similar to (xi) that his Honour rejected, and which is not pressed in this Court, and I would also reject it. The tendency categories (ii) and (vi) appear to me to be materially indistinguishable from the categories that his Honour allowed. Category (x) is, however, somewhat different..
7. His Honour rejected tendency category (ii) in the following way: "In my view bearing in mind what I have already ordered in relation to s 293 I am not of the opinion that that evidence is of significant probative value."
8. I disagree. The friendship network between Mr Edwards and other adult males is on the Crown case central to his operating procedure. It is arguably relevant and ought not to have been excluded.
9. Tendency category (vi) relates to the alleged provision of alcohol and drugs to boys to facilitate their disinhibited cooperation in sexual activities. His Honour concluded that the evidence relating to both alcohol and marijuana was not of significant probative value. His Honour did not elaborate upon that conclusion and I am otherwise unable to agree with it. Once again I am unable to accept that there is any basis for distinguishing this tendency category from others that his Honour allowed, which allegedly demonstrate methods or practices adopted by Mr Edwards to induce the complainants to submit to sexual activity with him. Tendency category (vi) is in effect a continuation of tendency category (iv).
10. Tendency category (x) is different. His Honour rejected this evidence as follows: "In my view, taking into account what the Court of Criminal Appeal said in AE, I am not of the view that the evidence is of significant probative value."
11. I take his Honour's reference to that case to be an adoption and application of the proposition that the conduct identified in tendency category (x) is an unremarkable circumstance that is common to sexual offences against children, or more particularly in this case to offences against boys. One of the difficulties for present purposes is that the evidence does not permit this Court to form a conclusion about whether or not the physical actions identified in this tendency category in fact amount to unremarkable circumstances common to offences with which Mr Edwards is charged or are on the contrary to some extent idiosyncratic.
12. It seems to me that it is not possible to say whether or not the nominated tendency more likely than not falls outside the range of activities that are commonplace or unremarkable. To that extent it is therefore not possible to say that the activities in question have significant probative value. In my opinion his Honour was correct to reject this evidence.
13. In the circumstances I would also allow the Crown to lead evidence with respect to the tendency categories (ii) and (vi).

Coincidence

1. The Crown served a coincidence notice dated 17 January 2014. The only coincidence calling for consideration here is coincidence B, which is also tendency category (x). His Honour dealt with this matter in his reasons for judgment as follows: "So far as coincidence (b) is concerned, the coincidence is the evidence of Grant Gilmartin, Shane McNamara, Avelindo Robertson, that the accused would thrust his penis between their thighs. I have already found on the tendency argument that what that activity was was effectively in my view the sort of activity which could not be said to be improbable and it's my view that it does not have significant probative value."
2. Section 98 of the Evidence Act is relevantly in these terms: "98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (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. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) …"
3. The Crown contended that his Honour appears to have limited his consideration of the evidence in question to an assessment of its probative value. He did not consider the question of whether it was improbable that five young complainants would otherwise be aware of such sexual conduct, and appears implicitly at least to have proceeded upon the basis that the physical acts under consideration were unremarkable or commonplace features of child sexual assault. There is no evidence to support the latter proposition.
4. The issue of how the section should be approached and what matters should be considered in order to determine or assess significant probative value was considered in DSJ v R; NS v R [2012] NSWCCA 9 at [10] as follows: "[10] However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury."
5. The Crown contended in this Court that his Honour did not, either by reference to the evidence itself or other evidence to be adduced by the prosecution, consider whether there was a real possibility of an alternative explanation. On the contrary, his Honour dismissed the evidence as commonplace and concluded accordingly that it had no significant probative value.
6. In R v Burton [2013] NSWCCA 335 at [182]-[184], [197]-[198], Simpson J said this: "[182] As I have said above, the s 137 exercise consists of three steps. The first is the quantitative assessment of the probative value of the evidence. The second is the assessment of the danger of unfair prejudice. The third is the judgment whether the latter outweighs the former. It is a balancing exercise. [183] The exercise required by s 98 is different. Section 98, like s 137, does not arise for consideration unless the evidence has been determined to be relevant. Section 98 calls upon the court to consider, not whether the evidence has the capacity rationally to effect the assessment of the probability of the existence of a fact in issue - that having already been determined - but to take the evidence, in conjunction with other evidence already adduced or to be adduced by the tendering party, and, in the light of all that evidence, to measure the significance of the (potential) probative value. It is in this respect that a possible alternative explanation becomes relevant. It is of significance that in para [78] Whealy JA referred to an alternative explanation 'arising on the evidence'. A possible 'alternative explanation arising on the evidence' within s 98 is not the same as 'a competing inference' to be drawn from the very evidence the admissibility of which is in question. Under s 98, the court looks at the whole of the case of the tendering party (so far as it is known) in order to assess the significance of the challenged evidence. Section 98 does not require the balancing of the (potential) probative value of the evidence as so measured against any other consideration. (In criminal proceedings, such a measure is required by s 101, but that is not presently material.) [184] Accordingly, I am of the view that the manner in which this Court approached the assessment of probative value for the purposes of s 98 does not compel a similar approach in relation to s 137. … [197] Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice. [198] In my opinion, the decision to exclude the evidence based on s 137 of the Evidence Act resulted from an incorrect approach to the task required by the section. The starting point of the assessment is to assume that the inferences most favourable to the Crown will be drawn, and to assess the potential probative value on that basis, without regard to the availability of any competing inference."
7. Mr Edwards took issue with the proposition that his conduct was more than commonplace. He contested the suggestion that the act of thrusting a penis between the thighs of young male sexual assault victims, the complainants in these cases, was not commonplace or was out of the ordinary. He maintained that there was a real possibility of an alternative explanation (see DSJ v R; NS v R at [78]-[81]) in the sense that there was evidence that demonstrated that the others, including others known to the complainant, had engaged in the alleged act. Contrary to the Crown's submission, there was no need for Mr Edwards to advance an alternative explanation because it was already part of the prosecution case. The evidence did not support a finding that it is improbable that the events occurred coincidentally.
8. Disposition of this ground of appeal is burdened with at least the following difficulty. The extent to which the physical activity in question is either out of the ordinary on the one hand or commonplace on the other hand is not a matter that is notorious as a well-known fact or something that this Court can determine from experiences that influence or inform all members of society in the same way. In order to give any content to the expression "improbable that the events occurred coincidentally", there needs necessarily to be some experiential or evidential framework against which to assess the probability concerned. The behaviour may, for all that this Court knows, or for all that the evidence reveals, be completely idiosyncratic, thus enhancing the probability that its repetition was no mere coincidence, or it may be so usual and widespread that its identification by a series of otherwise unrelated complainants entirely fails to explain the likelihood of its replication or repetition in unconnected circumstances.
9. The answer to this obvious difficulty may lie in the approach indicated by Simpson J in Burton. For the purposes of s 98 the Court looks at the whole of the case of (here) the Crown as the tendering party in order to assess the significance of the evidence. The Court is not required to balance the potential probative value of the evidence measured in that way against any other consideration. However, coincidence evidence cannot be used against an accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2) of the Evidence Act. That inquiry seems to me to reignite the unanswerable concern about whether the activity in question is commonplace or atypical.
10. This appeal does not, however, call for a consideration of s 101(2) of that Act. As Simpson J said in R v Nassif [2004] NSWCCA 433 at [46]-[47]: "[46] Examination of the language of s 101(2), particularly when contrasted with the language of ss 97 and 98, yields yet another of those mysteries of the Evidence Act that have diverted litigation lawyers, judges and commentators for nigh on a decade. Sections 97 and 98 are, in their terms, concerned with admissibility. Unless the evidence under consideration has significant probative value, it is not admissible to prove either tendency or coincidence. [47] Section 101(2), by contrast, if literally construed, appears to envisage that the evidence is admissible and is admitted ('evidence ... that is adduced by the prosecution ...'), but then to place restrictions - restrictions to the point of annihilation - on the use that can be made of that evidence. Why s 101(2) was so framed, is, as I have suggested above, a mystery. The only sensible way to approach s 101(2) is to treat it, like ss 97 and 98, and almost in defiance of its language, as a rule of admissibility, and put unproductive debate about its terminology to one side. It seems to me that s 101(2) has generally been construed as a rule with respect to admissibility…"
11. In my opinion the evidence that Mr Edwards would thrust his penis between the thighs of the complainants as some form of prelude to anal penetration, having regard to the similarities in the events in the case of the several complainants and the circumstances in which they occurred, does not reliably inform the question of whether or not it is improbable that the events occurred coincidentally. The issue requiring an answer is whether this evidence has significant probative value. That question has to be evaluated in the context of understanding what it is the Crown is attempting to prove by adducing the evidence, or in other words, of what fact in issue in the Crown case is this evidence said to be probative? That is not clear at all. It does not seem to me that the alleged activity is so enigmatic or unusual that its occurrence says anything about, or informs an understanding of, any identified issue in the proceedings.
12. I observe that, as earlier discussed, his Honour disallowed the evidence in question as tendency evidence. That decision was challenged by the Crown but I rejected that challenge. His Honour's rejection of the category (x) evidence as coincidence evidence is equally comprehensible. I consider that the evidence is not admissible to prove that it is improbable that the events occurred coincidentally. The evidence does not appear to me to have significant probative value.

Separate trial - Damien Leonard

1. His Honour's ruling in this respect was in these terms: "In relation to the evidence in the case against the accused concerning Damien Leonard in my view taking into account the evidence that in my view is admissible in relation to tendency the accused would receive an unfair trial in relation to Damien Leonard if the accused was being tried at the same time in relation to the other complaints. Accordingly I propose to separate the trial in relation to Damien Leonard."
2. The complainant Damien Leonard had no prior sexual experience. Mr Edwards was his football coach. He took him for drives and had him sit on his lap. Mr Edwards supplied cigarettes and alcohol and showed him pornographic material.
3. The evidence concerning Damien Leonard is also brief. He only visited Mr Edwards' home on one occasion. There is no evidence of sexual intercourse. The only allegations of sexual conduct consist of Mr Edwards and this complainant masturbating in the presence of each other, after which they slept together in the same bed. This complainant did not see Mr Edwards after the end of the football season. Mr Edwards was not the coach of any other complainant.
4. It is the Crown case that Mr Edwards was attempting to groom Damien Leonard for further sexual activities but that they did not eventuate.
5. His Honour separated the trial upon the basis that he excluded evidence in tendency categories (i) and (vi). I have excluded (i) but allowed (vi). There is a similarity between tendency categories (iv) and (vi). The Crown contends in these circumstances that there is no remaining reason to separate the trial of Mr Edwards based on the Damien Leonard complaints.
6. Mr Edwards' response proceeds upon the basis that the way in which the Crown proposes to use this evidence exposes a line of impermissible reasoning that would result in an unfair trial. That is said to be because it improperly directs the jury's attention away from the critical question of whether Mr Edwards committed the offence alleged and invites the jury to infer that Mr Edwards was clearly intent on committing other offences against Damien Leonard and that he must therefore be guilty of the offence charged. Mr Edwards contends that there is a significant difference between the modus operandi alleged concerning Damien Leonard and that suggested with respect to the other four complainants. Moreover, the acts charged are different, the circumstances in which the other offences are said to have been committed are different and the nature of the individual relationship with Damien Leonard is different to the relationship with the other complainants. Mr Edwards contends in the circumstances that there is a real risk that the tendency evidence in relation to the other four complainants would be used inappropriately to reason towards proof of guilt in this matter.
7. Although not without some doubt, I think that his Honour's decision was correct. The Damien Leonard allegations are arguably different to those of the other complainants. There is in my view a risk that the weight of the other cases could spill into the Damien Leonard allegations and swamp the limited nature of those allegations in an unfair and prejudicial way. Mr Edwards is entitled to the presumption of innocence and this application must not be decided upon the basis of an unestablished predisposition or anticipation about the possible or probable outcome of the trials or any of them. There is a possibility that if the trials were not separated, the jury might erroneously be inclined to determine guilt on the basis of an impression that Mr Edwards had a general sexual interest in young males rather than focussing upon the need for proof of the actual count on the indictment.

Conclusions and orders

1. For those reasons, I am persuaded that error is established in respect of the ruling given on 10 February 2014 relating to the evidence objected to under s293 of the Criminal Procedure Act and the ruling given on 27 February 2014 relating to tendency evidence so far as it concerned categories (ii) and (vi). However, the Crown's right of appeal under s 5F (3A) is limited to the circumstance where "the decision or ruling eliminates or substantially weakens the prosecution's case". While that is an issue going to jurisdiction, it is not intended to involve an inquiry into the weight to be given to the evidence excluded: the section directs attention to "the prosecution's case", to be considered as a "case": R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [39] per Spigelman CJ, Simpson and Adams JJ agreeing at [81] and [82].
2. It has been accepted that, when there are a number of rulings on evidence which are sought to be challenged together, this court can consider the combined effect of the rulings in determining the jurisdictional question: R v Nguyen [2010] NSWCCA 97 at [4] per Hodgson JA; Johnson and Latham JJ agreeing at [24] and [30]. In the present case, the respondent questioned the correctness of that decision but the point was not foreshadowed so as to enable the matter to be argued before an enlarged bench. The same issue potentially arose in R v Burton [2013] NSWCCA 335 but the need to address it was obviated by the Court's conclusion that each of the challenged rulings individually overcame the jurisdictional hurdle: at [6]-[8] and [202]-[216] per Simpson J, R A Hulme J and Barr AJ agreeing at [219] and [220].
3. In my view, the ruling excluding evidence of sexual activity under s 293 plainly substantially weakens the prosecution case. The ruling as to tendency evidence raises a more difficult question. The two categories of tendency evidence wrongly excluded are not, of themselves, central to the Crown case. In my view, however, they form an integral part of the course of conduct relied upon by the Crown. If the erroneous ruling is allowed to stand, the result will be that a complex series of directions will have to be given as to the differential use which may be made of many individual items of evidence, some being properly relied upon for a tendency purpose and others not. That will contribute, unnecessarily, to the complexity of the Crown case and, in my view, substantially weaken it.
4. Accordingly, I am satisfied that this Court has jurisdiction to determine the appeal in respect of each impugned ruling.
5. In the circumstances I propose the following orders: 1. Allow the appeal in part. 2. Vacate the ruling given on 10 February 2014 relating to the evidence objected to under s293 of the Criminal Procedure Act. 3. Vacate the ruling given on 27 February 2014 relating to tendency evidence so far as it concerns categories (ii) and (vi). 4. Otherwise dismiss the appeal.
6. McCALLUM J: I agree with Harrison J.

Amendments 17 August 2018 - publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2018