R v F

R v F - [2002] NSWCCA 125 - NSWCCA 2002 case summary — Zoe

[16]

(p) In reply, Mr Byrne SC made it clear that the defence was not strictly one of accident. Rather it involved a specific denial of any deliberate touching of any complainant on the penis, either inside or outside his shorts. Although, he added, by reason of the activities in which they had been engaged, there may have been occasions when there had been an inadvertent touching or brushing of the clothes or lower body of the boys. (q) Upon the second morning of the pre trial hearing (on 30 October 2001), Judge Hock ruled against the respondent in relation to the preliminary argument, and indicated that, subject to the question of concoction, the Crown would be entitled to " present the indictment with the counts joined ." Mr Byrne appropriately brought to her attention that there was an intervening step to be determined, namely whether there was sufficient similarity in the evidence of the various complainants for it to qualify as coincidence or tendency evidence. (r) Her Honour then made it clear that the rulings given so far were confined to the preliminary issue, and indicated that the reasons for its determination would be given, when the remaining issues were decided, in a single judgment. When later delivering the reasons for this preliminary ruling, on the third day of the hearing (31 October), Judge Hock said that she had distinguished Saunders on the basis that, unlike that case, there had here been no earlier decision on the merits, the " order for separate trials [having been] merely an endorsement of the position adopted by the Crown and the defence ". Next she indicated that she accepted the Crown submission that it was now " on notice of the defence, the accused having given evidence in the aborted trial,… and that this had the effect of a reassessment of the earlier decision to run all trials separately ." Although not said in express terms, the clear implication was that this amounted to a change of circumstance and as such provided a good and sufficient reason to depart from the earlier position established by consent.

[24]

(z) After a review of the material placed before her on the voir dire, Judge Hock found, by reference to the fact that the boys had been in different classes; to the fact that with one exception they had not known each other; and to the timing of their complaints and statements to the police; that the possibility of concoction had been excluded save in relation to JPMcF, since he had been informed by GDG of his allegation almost immediately after the incident which he had described, and before making a complaint himself. She then expressed her conclusion as follows: " In my opinion, coincidence is not available as a reasonable explanation consistent with innocence nor is there any evidence of a financial motive or grudge against the school in general or the accused in particular. There does not seem to me to have been any antipathy towards the accused by any of the complainants prior to the alleged incidents. I do not find there is a real as opposed to a speculative possibility of concoction between (MHS, SAL and GDG): see Colby (1999) NSWCCA 261 at para 111 . In the absence of those possibilities, in my view there is no reasonable conclusion consistent with the innocence of the accused. Therefore, I would not exercise my discretion under section 101 to reject the evidence, nor am I obliged to exclude it by the operation of s 137. The evidence is admitted under s 97 and s 98 ." (aa) It is clear from the concluding sentence that whatever uncertainty may have existed to that point, there was a ruling that the evidence was admissible both as tendency and coincidence evidence. At that stage no order was made, in any formal way, concerning the application by the defence for a separate trial, nor for that matter of the severance of the trial involving JPMcF, although as I next observe, this was the inevitable result of the ruling. (ab) After delivering judgment, the following exchange occurred: " HER HONOUR: Where do we go from there? BYRNE: Your Honour, that effectively means a separate trial for the [JPMcF] allegation.

[44]

In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said : ' What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination. ' Bellear DCJ, in a passage quoted above, dealt with para 2 of the Notice of Motion by saying that he was making an order excluding 'all prosecution evidence' against the respondents. What is important is not his Honour's use of the word 'order', but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterized as a judgment or order. " (Emphasis added). 17 In my view, having regard to the character and effect of the decision made by Hock J, the present is a case which falls properly for review under s 5F. In this regard it bears some similarity to Regina v T, NSWCCA 19 October 1988 where an appeal under s 5F, brought by the accused, was heard by the Court. It involved a challenge to orders made for the joinder of a number of counts involving several children, who had been pupils of the accused, effectively into two groups which the trial judge directed were to be tried separately from one another. The separation of the two groups followed his Honour's findings that they were factually different. The joinder of the counts within each group followed a finding first that the evidence concerning them amounted to similar facts, and second that there was no real chance of it being tainted by collusion, fantasy or suggestion. The difference between the two cases lies only in the fact that formal orders for joinder and severance were there made, and a certificate was given by his Honour under s 5F(3)(b) of the Criminal Appeal Act. 18 While the Crown appeal lies of right, I am satisfied having regard to the history of the proceedings, and in particular the way in which the Crown has changed its position, that it would be unfair to the respondent if he were not given leave to appeal, so as to argue the application which he had made, and which did not find favour with her Honour. 19 In this regard, I would however confine that leave to the admissibility of severance points. The threshold point it seems to me, truly involved a discretionary consideration as to whether the admissibility and joinder issues should be entertained at all. It did not, in my view, amount to an interlocutory judgment or order within the meaning of the authorities. Even if it did, I am not persuaded that error was demonstrated in that regard.

[45]

TENDENCY AND COINCIDENCE EVIDENCE 20 As I have observed, a critical question for determination, in relation to the admissibility of the evidence, was whether it qualified as tendency or coincidence evidence. That question was dealt with somewhat briefly by her Honour early in the judgment, by reference to the similarities which the Crown had identified in point form (a) to (p), in its submissions. Relevantly, they were said to be as follows: " Although the charges alleged against the accused occurred at different times over this 11 year period they have a common thread involving the following similarities: (a) The 4 boys were all students at [named school] (b) They were all young, aged between 12 and 14 years; (c) The accused was working as a gym teacher at the school; (d) All involved penis play; (e) All occurred when the boys were in their school uniforms or gym clothes; (f) Two occasions (GDR para 10 onwards and JPMCR para 11) occurred whilst the accused supported the boys on gym equipment and he touched them on the crotch; (g) Three occasions (SAL,MHS and JPMcF) the approaches were made to the boys in the privacy of the sports room or his office (which is located in the sports room); (h) Three occasions (SAL, MHS and JPMcF) each boy was grabbed from behind ; (h) Three occasions the accused inserted his hand both inside their pants and underpants (SAL para 8, MMS para 20 and JPMcF para 12); (i) Three occasions each boy was restrained in the use of his hands (GDR's wrists were strapped to the high bar para 11, JPMcF hands on the parallel bar para 11, SAL had his hands held by the accused behind his back para 7); (k) With all boys he watched them shower whilst they were naked (GDB para 9; SAL para 2); (l) With two boys he playfully slapped them on the bottom (GDG and MMS para 18); (m) With two boys he spoke about sexual matters - with MMS he spoke about "wanking", penis size, a woman 'getting wet' during sex and foreskin para 14 and 15; he asked JPMcF whether pictures of Samantha Fox gave him an erection para 10; (n) Three boys were ones who had difficulties at school - GDG had problems at school and learning difficulties (petit mal epilepsy p. 27 committal; and misbehaved in mid 1991 called another boy's sister a slut and disciplined by the accused p. 25); MMS was bullied by other students at the school (para 6); JPMcF's parents were separated and got into trouble with the deputy School Principal for having pornographic magazines; (o) those same three boys he gave special attention or told them they were special; (p) SAL was summonsed from Economics Class (para 6); GDG was told "Mr F wants you over at the high bar" (p. 28)" 21 Although, on the face of the reasons for judgment, there are suggestions that the threshold question of admissibility was determined by reference to coincidence, it does seem that the evidence was also considered to qualify by reference to tendency. These are of course separate considerations, and any direction to the jury would need to reflect the differences which arise. 22 It was necessary for her Honour to give careful consideration, so far as the Crown placed reliance on s 97 of the Evidence Act, to whether or not the conduct alleged by the various complainants was capable of showing that he had a tendency (or propensity) to touch boys on the penis without their consent and had the particular state of mind necessary to make that act one of indecent assault. If it had that character then before it was admissible, the Crown still had to show that it had a "significant probative value" (s 97(1)(c)) - an expression which has been held to mean that the evidence must be more than merely relevant, and to be "important" or "of consequence" (R v Lockyer (1996) 89 A Crim R 457). Its significance, it has been held, depends upon the nature of the fact in issue to which the evidence is relevant, - here whether the respondent did touch the complainants on the penis either inside or outside their shorts in circumstances amounting to an indecent assault - and upon the significance which the evidence may have in establishing that fact: R v Lock (1997) 91 A Crim R 356. 23 Since the evidence was, in this case, to be tendered by the Crown, it was also necessary that it be shown to have passed through the s 101(2) threshold - i.e. that its probative value substantially outweighed any prejudicial effect it might have had on the respondent. The combined effect of s 97(1)(b) and s 101(2) was held in Lock to require an application of the same test as that approved in Pfennig v The Queen (1995) 182 CLR 461 at 481 to 483, and in Hoch v The Queen at 295, namely that the evidence bears no reasonable explanation other than the happening of the event or events in issue. (See also BRS v The Queen (1997) 191 CLR 275 and KRM v The Queen (2001) 75 ALJR 550). 24 In Regina v OGD (No 2) [2000] NSWCCA 404, it was held that, if the Crown failed to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence must be excluded, not because of the rule in Hoch, but because of the requirement in s 101(2) of the Evidence Act: see also Regina v Colby [1999] NSWCCA 261 at para 107 to 111. 25 Independently of this provision, the question of admissibility also calls for a consideration of ss 135 and 137 of the Evidence Act, as to the exercise of which, Hoch was held in OGD (No 2) to provide a guide. 26 So far as the Crown relied on s 98 of the Evidence Act, it had to establish first that the acts alleged by the complainants were "related events", i.e. that they were "substantially and relevantly similar, and that the circumstances in which they occurred were substantially similar" (s 98(2)). Next, it had to meet the requirements noted in relation to the tendency evidence, namely, that the evidence would have "significant probative value" (s 98(1)(b), and that its "probative value substantially outweighed any prejudicial effect which it may have had on the respondent" (s 101(2) - that is, the prejudice associated with the risk of the tribunal of fact using the evidence inappropriately: Regina v Lockyer at 460 and Regina v Colby [1999] NSWCCA 261 at para 97). Once these requirements were met then the evidence would be admissible to prove that, "because of the improbability of the events occurring coincidentally," the respondent did the act alleged in any given count and/or that he had the particular state of mind alleged in relation to it, for example to rebut any defence of accident (Thompson v The Queen (1989) 169 CLR 1). 27 In Pfennig it was held that it was not necessary, under this provision, to speak in terms of a "striking similarity", or "underlying unity" or other similar description previously employed in decisions depending upon the admissibility of similar fact evidence at common law, the test being one of substantial and relevant similarity. 28 However, for all practical purposes, questions of admissibility under this heading are likely to be determined by similar considerations to those applied at common law, in that it would be necessary to show that:

[83]

34 Of some relevance additionally was the evidence which the other pupil, MB, gave to the effect that MHS had spoken to him before the newspaper article, asking whether he knew of anyone else who had been assaulted by the respondent, to which he replied that he did not, but suggested that it would be worth getting into contact with JPMcF, because he had spent a lot of time in the respondent's office. As emerged from the evidence of former Detective Sergent Spence, he had approached JPMcF after he had been given his name by MHS. 35 It was also established that the complainant MSF, in the trial which had resulted in a directed acquittal, had made complaints to other children (who were older than the present complainants) about the conduct of the respondent during 1977, had left the school in 1980, and had been born on 27 March 1963 (or possibly 1965 - the transcript being somewhat equivocal in this regard). 36 A starting point for consideration of the question which arises is the proposition well established on the authorities, that sexual offences should not be tried together unless the evidence on one count is properly admissible to prove another: Sutton v The Queen (1984) 152 CLR 528 and De Jesus v The Queen (1986) 61 ALJR 1. 37 That principle needs to be understood in the light of the further proposition that in order for the evidence to be admissible, it must be shown first to be relevant to a fact in issue (Smith v The Queen (2001) 75 ALJR 1398), secondly to conform with the requirements of ss 97 and 98 of the Evidence Act, and thirdly not be such as to warrant exclusion under sections 101, 135 or 137 of the Evidence Act. 38 In relation to relevance, Mr Byrne SC accepted that the question whether evidence that a school teacher had committed a sexual assault upon one student could rationally affect the assessment of the probability that he had committed a sexual assault upon another student, depended on the circumstances. That was, in my view, a correct concession. I do not however accept the associated submission that the facts in this case required that question to be answered in the negative. 39 Where, as here, there was evidence as to the differences in ages and classes of the complainants, as to the fact that with one exception they had not known or spoken to one another, and where there was an absence of evidence suggesting shared or common knowledge of the respondent's suggested tendency or propensity towards young pupils, the evidence in my view did have a clear relevance for the reason noted by Gleeson CJ in Regina v ACK, NSWCCA 22 April 1996 at page 5, and within the meaning of the Evidence Act (s 55) as rationally affecting the assessment of the probability of the fact in issue: see Regina v AH (1997) 42 NSWLR 702 at 709. The mere possibility of gossip occurring among school boys was insufficient to require any different conclusion. Moreover, as Gaudron J observed in BRS v The Queen (1997) 191 CLR 275 at 299, evidence of conduct on other occasions can have special probative force in relation to the possibility of any one complainant concocting his or her account if there are particular, (or, I would add, common) features which render it improbable that two or more persons would give such accounts if the conduct alleged had not, in fact, occurred. 40 The next question for determination is whether there was a sufficient similarity in the conduct alleged, and in the circumstances in which it occurred, so as to be capable of showing that:

[87]

(b) reversed in relation to the other two complainants, one of whom said that his penis had been touched after he was instructed to lower his pants so that he could be examined for spots; and the other of whom said that his penis had been touched while he was sitting on the lap of the accused. 44 Lee CJ at CL said (at p 6) that the incidents in this second group lacked "the essential probative impact which was necessary", observing that "they amount, in my view, to no more than a description of two different incidents in both of which the appellant touched a boy on the penis. It may have been different if there had been several such incidents for the question of whether there are similar facts is in many respects one of degree" (Emphasis added). 45 The final sentence in this passage is of importance, and in my view carries the day for the Crown in this case. While there are some individual differences in detail, it does not seem to me to matter whether the incident alleged occurred in the same room or in one of the several rooms used by the respondent. Substantially they were similar locations being his place of work in connection with his teaching activities. 46 Moreover, I do not consider it fatal that not all of the acts alleged occurred during a gymnastic exercise, as distinct from arising in the course of the boys being in the immediate control of the respondent in connection which his teaching duties. While this fact caused me to reflect carefully on this aspect of the case, the number and coincidences of the acts and dealings otherwise alleged satisfies me that this case falls on the other side of the line to that examined in relation to the second group of cases in Regina v T. 47 Subject to any question of concoction, the relevance requirement for admissibility was clearly established. I see no room for error in her Honour's findings that the evidence was relevant to the fact in issue in relation to each complainant; that it had a probative value of significance or importance; and that such probative value was of sufficient weight to outweigh any prejudicial effect which it may have had on the respondent. In that regard it had a particular relevance in relation to the question whether the touching had been accidental or deliberate, and whether it was of a sexual nature or one occurring in the proper discharge of the duties of a gymnastic instructor supervising exercises of boys in circumstances which can lead to injuries: Lockyer at 459. 48 The remaining issue concerns that of concoction, that is, whether there was a "real chance" or a "real danger" of that providing an explanation for the coincidence of accounts of any one or more of the complainants (per Brennan and Dawson JJ in Hoch at 299, 300 and 302) or whether a coincidence of account was "reasonably explicable" on the basis, for example, that there was a sufficient relationship between the complainants or an opportunity or motive for concoction (per Mason CJ, Wilson and Gaudron JJ at 297). The relevant test which was proposed in Regina v Colby calls for the identification of a "reasonable possibility as distinct from a speculative or conjectural one"; and it was a test where the onus rested upon the Crown, to negative that possibility: Regina v OGD (No 2) at p 447. 49 I am unable to see any error in relation to her Honour's assessment of this aspect of the case. Having regard to the absence of contact between GDB, MHS and SAL, the differences in their ages, and the classes which they attended, as well as the sequence of disclosure by them, I am unable to see that there is any reasonable possibility of concoction. The suggestion that there may have been gossip which they could not recall, was somewhat thin and largely a matter of conjecture or speculation and each had made a first complaint before the newspaper article was published. Moreover, there was no basis in the evidence, presented during the voir dire inquiry, to suggest that any one of them had a financial motive, or a grudge against the school or the respondent, or any antipathy to the latter before the events alleged. Any resentment or anger on their part subsequently, attributable to the act alleged, would be understandable and would not provide any basis for assuming concoction. To so suggest would be circular. 50 The present case is accordingly not of the genus noted by Gaudron J in BRS v The Queen (1997) at 300-301 involving concoction where a complainant has possibly manufactured an account after becoming aware of a like event or like allegation involving the accused or has been infected by discussions by others concerning him - per Lee CJ at CL in Regina v T at p 4. Nor is it a case where there was any evidence of joint concoction. 51 Mr Byrne SC however, sought to make some capital out of the evidence, from the mother of SAL, to the effect that she recalled friends talking about the respondent "indecently touching kids at school", at some time while she thought he was in Year 11 at another school. SAL had no recollection of any such conversation, and found it hard to believe, although there was evidence to the effect that he had told his mother in 1984 that the respondent was a paedophile, without going into any further detail. Additionally, there was evidence that, before this conversation, that is on the day following the alleged assault, SAL had returned home from school with wet trousers because he had taken to showering in his underpants to avoid the attention of F in the shower block - an event partially corroborating his evidence. 52 He similarly sought to make capital out of MHS' recollection of overhearing Year 10 boys referring to the respondent as "a bit dodgy" - although there was no suggestion put to him that, he had attached any particular sexual connotation to that comment. 53 It is true that neither of these matters was mentioned by her Honour. However, when considered in their full context, and in particular absent any greater specificity in the suggested "gossip" I am not persuaded that they justify any different conclusion from that which she reached. 54 In relation to JPMcF, there was the fact of the earlier disclosure by GDB to him, and there was additionally the fact that his first complaint followed the newspaper article. There was no specific suggestion of antipathy or annoyance on his part beyond any resentment arising out of the acts alleged, particularly in circumstances where he had worked for the respondent for some years following the events alleged. However, as her Honour found, the other circumstances mentioned did give rise to a reasonable possibility of concoction on his part. I am not persuaded that error was shown in this regard.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Cases Cited (22)

CITATION : R v F [2002] NSWCCA 125 FILE NUMBER(S) : CCA 60779/01 HEARING DATE(S) : 20/2/02 JUDGMENT DATE : 9 April 2002

COUNSEL : G I O Rowling (Crown) P Byrne SC (CCF) SOLICITORS : S E O'Connor David Giddy & Associates CATCHWORDS : Criminal Law - Evidence - admissibility - tendency and coincidence - evidence of similar offences with other victims - possibility of concoction - complainants at same school, but of different ages with no reason to socialise together - indecent assault by teacher - joinder of counts or severance of counts - no formal orders made by judge. LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 Barton v The Queen (1980) 147 CLR 75 BRS v The Queen (1997) 191 CLR 275 Chow v DPP (1992) 28 NSWLR 593 Commonwealth v Mullane 1961) 106 CLR 166 Connolly v Director of Public Prosecutions (1964) AC 1254 De Jesus v The Queen (1986) 61 ALJR 1 Gipp v The Queen (1998) 194 CLR 106 Hoch v The Queen (1988) 165 CLR 292 KRM v The Queen (2001) 75 ALJR 550 The King v Snow (1915) 20 CLR 315 Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 Pfennig v The Queen (1995) 182 CLR 461 Regina v ACK, NSWCCA 22 April 1996 Regina v AH (1997) 42 NSWLR 702 at 709 R v Bailey (1988) 36 A Crim R 633 CASES CITED: R v Bozatis and Spanakakis (1997) 97 A Crim R 296 Regina v Colby [1999] NSWCCA 261 Regina v Cooper, NSWCCA 24 February 1998, R v Georgiou (1999) NSWCCA 125 Regina v GLC, NSWCCA 31 March 2000 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim R 457 Regina v OGD (No 2) [2000] NSWCCA 404 R v Powch (1988) 14 NSWLR 136 R v Rogerson (1990) 45 A Crim R 253 Regina v Saunders (1994) 72 A Crim R 355 R v Steffan (1993) 30 NSWLR 633 Regina v T, NSWCCA 19 October 1988 Smith v The Queen (2001) 75 ALJR 1398 Sutton v The Queen (1984) 152 CLR 528 Thompson v The Queen (1989) 152 CLR 528 DECISION : Crown appeal dismissed. Leave to appeal granted to respondent, but appeal dismissed.

(1980) 147 CLR 75

(1997) 191 CLR 275

(1992) 28 NSWLR 593

(1986) 61 ALJR 1

(1998) 194 CLR 106

(1988) 165 CLR 292

(2001) 75 ALJR 550

(1915) 20 CLR 315

(1987) 46 SASR 126

(1995) 182 CLR 461

(1997) 42 NSWLR 702

(1988) 14 NSWLR 136

(1993) 30 NSWLR 633

(2001) 75 ALJR 1398

(1984) 152 CLR 528

(1989) 152 CLR 528

(1993) 30 NSWLR 30

(1961) 106 CLR 166

(1989) 169 CLR 1

[2000] NSWCCA 404

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Parties

Cases Cited (22)