R v GAC

R v GAC - [2007] NSWCCA 315 - NSWCCA 2007 case summary — Zoe

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The charged offences and the tendency evidence 3 The respondent was charged with two sexual offences against MA ("the complainant"). The complainant is the daughter of LA, with whom the respondent had commenced to have a sexual relationship in late 2006. It involved sometimes the respondent staying at LA's house and sometimes LA and the complainant staying at the respondent's house. The first charge was of aggravated indecent assault (Crimes Act, 1900, s 61M(1)). The second charge was of aggravated sexual intercourse without consent (Crimes Act, s 61J(1)). Both offences were alleged to have taken place at LA's house between 1 November 2006 and 15 December 2006. The complainant was then 12 years old, that being the circumstances of aggravation in both charges. 4 On 17 September 2007 the respondent was arraigned and pleaded not guilty to each of the charges. The Crown had given notice of its intention to adduce tendency evidence, and there was an immediate voir dire hearing on the admissibility of the evidence. Documents were tendered, relevantly the Crown brief for the two charges including the tendency evidence being the indictment, Form 1, facts sheets and complainants' statements relating to the respondent's pleas of guilty in 1997 to charges of sexual offences against JC and AR. The Crown said that it proposed to tender as tendency evidence the two facts sheets "and/or" the statement of JC and identified parts of the statement of AR; no doubt in some manner there would also be evidence of the respondent's admission to at least the facts sheets. 5 From records of interview with the complainant in the Crown brief, the two offences with which the respondent was charged occurred on the one occasion. The respondent was at LA's house. He had drawn a bath for the complainant. The complainant bathed and went to her brother's room to dry herself and dress. In the bathroom or while she was drying herself and dressing the respondent touched her on her breasts and squeezed her nipples, this giving rise to the charge of aggravated indecent assault. The respondent also parted her labia and looked into her vagina and manipulated her clitoris, this giving rise to the charge of aggravated sexual intercourse without consent. 6 According to the complainant, at the time he was touching her the respondent asked her what the round circle was and told her it was a vagina hole, and said "When you get older can I lick it?". She said that the respondent touched on her "rude parts" about twice, and that when she was in her brother's bedroom the respondent asked whether, when she got older, she wanted to have sex. 7 JC is the respondent's daughter. The facts sheet recorded incidents in April 1987, when she was 10 years old, and in May 1996, when she was 19 years old. The Crown accepted before the judge that the latter incident could not be used as tendency evidence given her age at the time, and it was thus excluded from the proposed tender: however, as later mentioned it could be material to the admissibility of the remaining tendency evidence. As to the former incident, JC and the respondent were alone in the family home; the respondent pulled her shorts and underpants down and put his finger in her vagina and moved it around; he lay on top of her and was touching her breasts and body and pushed his penis against her vagina until it went inside. The facts sheet included - "The victim recalls that the defendant then started having sex with her regularly and that he would sneak into her bedroom at night and put his hand over her mouth. He then would have sex with her again. He also touched her a lot and would also lick her vagina." 8 JC's statement so far as concerned with the 1987 incident was generally to the same effect, but included that prior to the incident the respondent touched JC all over outside her clothes and said things like, "Does that feel good?". It was more graphic, and spoke of the pain and fright experienced by JC. It also included that thereafter there was regular sex and "he used to touch me a lot and lick my vagina". At the commencement of the statement it was said in general terms, "My father has had regular sexual intercourse with me since I was ten years old and has had sex with me on more than one hundred occasions". 9 It is convenient to note at this point the May 1996 incident involving JC. The respondent and JC's mother had separated, and the respondent was living elsewhere. He came to the house when JC was alone. He had forced sexual intercourse with JC, from which she became pregnant. 10 AR was a friend of JC. She lived with JC's family for about 3 months. The facts sheet recorded incidents in December 1995, January 1996 and March 1996, spanning the living with the family. In December 1995, when AR was 14 years old, the family members were at a carnival at a coastal town. Alcohol and marijuana were consumed. The respondent and AR walked through the sand dunes. They stopped and sat down, and AR went in and out of sleep due to her drugged and intoxicated state. At waking times she found the respondent's hand on the middle of her thigh, then his forefinger in her vagina. In January 1996 AR walked with the respondent at his request, during which he pinched her on the bottom and put his hand up her skirt to about a centimetre from her vagina. In March 1996 AR had just turned 15. She was asleep at the family home, and awoke to find the respondent sitting on her bed with his hand under the sheet touching her vagina. 11 AR's statement was again generally to the same effect, but it was more detailed, and the paragraphs nominated by the Crown included that after returning from the sand dunes she rebuffed the respondent's attempt to put his hand up her skirt and he said, "What, can't I play with your pussy any more". They also included that from early 1996 the respondent made comments to her like "You're so beautiful", "You've got nice legs" (there were others which I do not set out), with what AR described as a slimy smile. 12 The Crown contended in the tendency notice that the proposed evidence in the two facts sheets and the statements of JC and AR was admissible to prove that the respondent had a tendency - "(i) to carry out acts of the following sexual nature: (a) touching of breasts;

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The judge's reasons 19 The judge first outlined the charges and evidence in the Crown brief. As well as the complainant's records of interview the Crown brief included statements of LA, of a teacher at the complainant's school and of the school principal, to which I will later refer. His Honour outlined the 1996 charges and the incidents involving JC and AR. 20 The judge set out the tendency to carry out the acts of a sexual nature for which the Crown contended, describing it as a submission, but did not refer to the asserted tendency to have a state of mind. The judge said - "30. There is force in each of those submissions from the facts that I have outlined. However, most acts of heterosexual intercourse will involve touching the breasts and touching of the vagina and some form of penetration of the vagina. Furthermore, most forms of sexual intercourse, whether heterosexual or homosexual, will involve making comments of a sexual nature. There are obvious similarities between the tendency evidence and the acts alleged against the accused and there are also dissimilarities. The similarities are placed in a schedule in Exhibit VD8 and the dissimilarities are contained as part of the written submissions on behalf of the accused which are MFI 2. 31. Clearly each of the current complainant, JC and AR, were aged between ten and sixteen. However, the current complainant was pre-pubertal whereas both JC and AR were post pubertal. It is clear that the accused was a parent of JC and stood essentially in loco parentis to both AR and the current complainant. In saying that the accused stood in loco parentis to the current complainant, I must point out that there was no male normally resident in the current complainant's house, but the accused was having sexual relations with the complainant's mother and indeed the complainant's mother had stated that she had started telling the complainant about the 'facts of life' and she had asked the accused to talk to the complainant, from a man's point of view, as to what happens with the male body and to ask the complainant to be careful as she could be sexually active when she started high school in the following year and the complainant needed to be aware of how boys might try to talk her into having sexual relationships with them. In other words the complainant's mother had placed the accused in the place of a parent, in the place of a father towards the complainant. But for the assault upon AR in the sand dunes at Forster, the other offences occurred in the home of the complainant in premises that were either permanently or temporarily being used to accommodate the complainant. The circumstances of the assault upon AR in the sand dunes at Forster involved alcohol and marijuana, whereas none of the others do. There was digital penetration of each of JC, AR and the complainant, although the digital penetration of JC was a forerunner to penile penetration. There is no suggestion in the evidence of AR of any proclivity of the accused to cunnilingus but clearly it was a matter raised by the accused, if the evidence, of course, be accepted of the complainant and the complainant's mother and such a proclivity is mentioned in the evidence of JC." 21 The judge found in decisions of this Court a three step approach, saying - "34. The dictionary attached to the Evidence Act defines probative value of evidence to mean: 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue'. As was stated in R v Fletcher [2005] NSWCCA 338, in R v Zhang [2005] NSWCCA 437 and by Simpson J in R v Gardner [2006] NSWCCA 190 and in R v Ngatikaura [2006] NSWCCA 161 the question of admissibility involves three steps or questions: (1) Is the evidence capable of being ascribed probative value? (2) Does the evidence, when considered alone or in conjunction with other evidence adduced or to be adduced, have significant probative value? and

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(3) Does the probative value substantially outweigh the prejudicial effect? If the answer to any of these questions is 'No' the evidence is not admissible under s 97 as tendency evidence." 22 It may be observed that the third question arises under s 101(2), and admissibility under s 97 was elided with the application of that subsection. 23 The judge first asked whether the evidence was capable of being ascribed probative value. He said, referring to authority, that it was not sufficient that the respondent engaged in sexual misconduct with JC and AR and allegedly with the complainant, and that it was necessary that there be "a significant similarity in the conduct or a pattern of some sort or a modus operandi that can be determined by looking at all the conduct involving each child, not by analysing each act separately". Noting that examination of the similarities and dissimilarities was, although relevant, not determinative, he said that he had sought to set out the evidence to show the similarities and dissimilarities, and that having carefully considered them he concluded that the tendency evidence was capable of rationally affecting the probability of whether the respondent digitally penetrated the complainant and touched her on the breasts as she alleged. 24 The judge then asked whether the evidence when considered alone or in conjunction with other evidence adduced or to be adduced had significant probative value. He concluded - "41. Tendency evidence is placed before a jury as evidence tending to prove the guilt of the accused. If admitted it is as Howie J said in Harker [ R v Harker [2004] NSWCCA 427] positive proof of guilt. The jury are asked to reason that because the accused acted in a particular way on some other occasion or occasions with another girl or girls he or she must have acted in the same way on another occasion with the complainant. In the present case the Crown wishes to adduce the evidence in order to argue that because the accused acted in a particular way with both JC and AR he must have acted in the same way towards the current complainant MA. 42. In my view it would be open to the jury to see the tendency evidence as important or of consequence when viewed with the other evidence in determining if the accused digitally penetrated the complainant as alleged in the indictment and sexually assaulted her as alleged in the first count in the indictment. I would reach the same conclusion myself without needing to predict a jury's approach which was the approach favoured by Basten JA in his dissenting judgment in Zhang and majority of the Tasmanian Court of Criminal Appeal adopted in L v Tasmania [2006] TASSC 89." 25 The judge then asked whether the probative value substantially outweighed the prejudicial effect. He said at [47] that s 101(2) required the court to consider the prejudice in each case, not solely the presumed prejudice where evidence of an accused's bad character is placed before the jury. His reasoning to answering his question in the negative should be set out in full - "49. … If the tendency evidence be admitted, it would be open to the accused to argue that he made admissions when he did wrong things, and pleaded guilty in connection with his conduct towards JC and AR, and the jury could be assured that if he did the wrong things currently alleged by MA, he would have admitted those offences as well. However, I do not see that as a powerful argument militating against prejudice that this evidence will undoubtedly cause in the jurors' minds. In this court's experience, evidence of limited good character, such as, 'I am a petty thief, I am not a drug supplier', rarely carries weight with a jury, and the argument indicated is akin to arguments presented when evidence of limited good character is placed before a jury. 50. In the current matter, it is not evidence of limited good character or limited bad character. Rather it is evidence of bad character of the very type alleged in the counts in the indictment. Notwithstanding the warnings that a trial judge must give, and the possible positive use that the accused might make of the tendency evidence, the jury will be invited to use the tendency evidence to reason that because the accused molested his own daughter, and AR, he did the same thing to MA. Evidence only has probative weight if it is considered rationally. If the tendency evidence is admitted, the jury will know that the accused is a self-confessed child molester. Of course, the trial judge will need to tell the jury that the accused has been punished for those crimes and must not be punished for them again by a verdict based on emotional, and not rational consideration. 51. Sexual molestation of children is a very emotive issue in the community. That is completely understandable, and a concern of every parent. Frequently one seeks and hears it discussed, not only in the media, both irrationally and in emotive ways. No matter how many times a jury is told to be objective and dispassionate, that in the context of the trial of a self-confessed child molester is, to use the vernacular, a big ask. One cannot ignore the risk of, at least, one juror being unable, either consciously or unconsciously to ignore such directions, and to consider the matter emotionally and irrationally. Such an approach may mean that the juror closes his or her ears and mind to the warnings as to how the tendency evidence may help the accused on the question of the complainant's credibility. There is a possibility that the issue of credibility may be ignored altogether. The potential for very great prejudice remains regardless of what could be said by the trial judge to ameliorate it. 52. The tendency evidence does have significant probative value. However, it is not crucial to the Crown case in the sense that if it is not admitted, the offences alleged cannot be established. There is corroboration for the complainant, MA, on the question of the discussion of cunnilingus from her mother, and on the question of a sudden change in behaviour of the complainant from both the principal of the school, and the teacher's aide, to whose evidence I have referred. 53. A jury may be persuaded to listen to the complainant's evidence more sympathetically because of her mild intellectual disability. It is clear from the electronic record of interview with the complainant, that unusually, these days, for a twelve year old, she is very sexually, or was at the time of the interview, sexually unaware. She could initially only refer to her vagina as her 'rude part', and as the source from which her 'wee' came. Subsequently, she remembered that that part of her body was called the 'pussy', and then much later in her record of interview, she said that that part of her anatomy was the 'vagina hole', a term used by the accused to her. 54. Having presided in a number of trials of this nature here at Campbelltown, I have found juries to be reluctant to accept the evidence of girls as young as twelve of sexual molestation, when it is clear they are very sexually aware. It is clear from the transcripts of the ERISP before me that here the complainant is very sexually unaware. In my view, that makes the Crown case stronger than it might otherwise be. The tendency evidence here is not overwhelming as it was in Ellis [ R v Ellis (2003) 58 NSWLR 700], where the modus operandi included the removal of a full pane of glass, which the evidence disclosed was rare and, therefore, very distinctive. 55. Viewed objectively, the similarities here are not as compelling as in Nassif [ R v Nassif [2004] NSWCCA 433], where there were four separate sets of offences involving bizarre assaults on a young woman in broad daylight in Marrickville, Leichhardt, Croydon or Burwood, where the offender used a stolen Ford, wore no disguise, and exhibited a motive of sexual intent. Identity of the offender was the issue in that trial. The evidence here is not in the same category as either the evidence in Milton [ R v Milton [2004] NSWCCA 195], Fletcher [ R v Fletcher [2005] NSWCCA 338] or Harker , or indeed, the evidence in L v Tasmania . The evidence in Milton , Fletcher and Harker has been summed up succinctly in the written submissions, on behalf of the accused, and I need not recite it further. Section 101(2) requires more than the competing considerations of prejudice and probative value of the tendency evidence being evenly balanced. It requires more than the scales being tipped slightly in favour of the probative value of the evidence. The scales must be tipped substantially in that direction. 56. I am not persuaded that that is the case here. Accordingly, I reject the tendency evidence. I have borne in mind the balancing exercise, as required by s 101(2), and also the approach of McHugh JA in Pfenning v The Queen [(1995) 182 CLR 461] at 529 that was quoted in [11] of R v RN [2006] NSWCCA 423. For those reasons the tendency evidence is rejected."

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The competency of the appeal 26 Section 5F(3A) of the Criminal Appeal Act provides for appeal by the Attorney-General or the Director of Public Prosecutions against any decision or ruling on the admissibility of evidence - " … but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 27 The Crown has the onus of demonstrating that the decision or ruling has eliminated or substantially weakened the prosecution's case: R v Shamouil (2006) 66 NSWLR 228 at [30]. 28 The Crown submitted that the exclusion of the tendency evidence substantially weakened its case against the respondent. The respondent submitted that there was considerable evidence supporting the complainant's allegations against the respondent, and that the Crown had not discharged its onus. It might be thought odd that the Crown should argue for the weakness of its case against the respondent and the respondent should argue for the strength of the Crown case against him. That is a consequence of the qualification in s 5F(3A). The oddity may explain why neither side's submissions went into detail. 29 As I have indicated, the Crown brief included records of interview with the complainant. There were two interviews, one on 12 December 2006 and the other on 26 April 2007. Both interviews were undertaken by a police officer and a case worker from DOCS. The records of interview were quite lengthy, and within them could be found the facts earlier briefly stated for the offences charged against the respondent. 30 Apart from the records of interview and associated statements of the police officer and the case worker, there were in the Crown brief statements of LA, of Mrs Loraine Collings and of Miss Sandra Martin. 31 Mrs Collings was a teacher at the complainant's school. In her statement she referred to a change in the complainant's behaviour from mid-October 2006, including that the complainant "began to display sexualised behaviour". Mrs Collings was told that the complainant and a boy at the school "took their shirts off … and wanted to hump". 32 Mrs Collings recounted some talk with the complainant about the respondent, whom the complainant referred to her "step-dad" or "step-father", causing her to take the complainant to the school principal, Miss Martin. In Miss Martin's office, according to the statement - "Sandra Martin said to [the complainant], 'Is there anything else you want to talk about'. [The complainant] looked at me, so I said, 'You mentioned your step-dad.' [The complainant] said, 'I walked into my brother's room and my step dad came in. We sat on the edge of the bed. Then he turned on the bath for me and when I was in it, he pulled me apart and told me this is your vagina hole and white stuff comes out of it.' [The complainant] then continued to talk about an incident (time/date was not discussed). [The complainant] said, 'When Mum was cooking dinner in the kitchen, I was sitting on the lounge watching a movie. My step-dad sat next to me and told me to turn the movie off. He talked about private parts and my vagina hole and what boys do and that a boy's penis goes into a vagina hole. He said that he wants one because that they are nice. He said to me that he wants mine.'" 33 The statement of Miss Martin spoke also of change in the complainant's behaviour, including a report of humping. She gave a quite lengthy account of what was said by the complainant when brought to her by Mrs Collings. It was to the same effect, but more detailed, as that in Mrs Collings' statement. Miss Martin called DOCS, and in due course came the interviews with the complainant. 34 The statement of LA included in particular (I have reduced the respondent's first name to an initial) - "9. One day I was at home with [G] and [the complainant] came home from school. [The complainant] said, '[G] said to me that he wants to lick me out'. I said, '[G] did you say that?' [G] said, 'No I was only talking about it.' I said to [G], 'What did you say? Don't you ever say that 'cause I'm trying to tell her that she's not to have sex with boys.' [G] said to me, 'It was just my fantasy, I just would like to that's all'." 35 LA was very upset, and there was what LA referred to as a fight. The judge observed, "It would appear that that was the end of the relationship between the complainant's mother and the accused". 36 The qualification in s 5F(3A) requires that the Court assess the strength of the Crown case in order to determine whether the exclusion of the tendency evidence substantially weakens it: R v Shamouil at [29] and cases cited. A number of questions arise

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(a) No current trial 37 The first question is whether, on the authority of R v Milakovic [2004] NSWCCA 199, the necessary assessment is not able to be made because there is no current proceedings, and the Crown case and the tendency evidence at a future trial might be different. 38 Prior to the respondent being arraigned, Neilson DCJ informed the parties that "I won't be hearing this matter because - I will deal with the voir dire but I can't hear the matter because I'm returning to Sydney next Friday". A jury was not empanelled, and it is clear enough that the trial did not proceed beyond his Honour's ruling excluding the tendency evidence. We do not know what order(s) were made for a future trial. From what we were told at the hearing of the appeal, it is by no means certain that Neilson DCJ will preside at a future trial of the respondent and probable that he will not. 39 It may be that, because it was known that his Honour would not preside, a trial never commenced; if it did, it must have terminated. Putting procedural matters aside, the judge presiding at the future trial will not be bound by the judge's decision. Whoever presides, the facts on which admissibility of the tendency evidence is to be decided may not be the same, because of a change in the Crown case or a change in the Crown's proposal to tender tendency evidence (and there is room for change, see later in these reasons). The Crown accepted that this could be so, without demur from the respondent. 40 There could be utility in this Court deciding the appeal. Its decision would in practice be determinative if there is no change in the facts on which admissibility of the tendency evidence is to be decided, and could provide guidance if the facts change. But the qualification in s 5F(3A) is jurisdictional (R v Shamouil at [27]). Utility is not enough - the qualification must be satisfied. 41 In R v Milakovic the presiding judge refused leave to the Crown to cross-examine an unfavourable witness. The Director of Public Prosecutions appealed pursuant to s 5F(3A). The jury was discharged and the accused was further remanded for trial. The appeal was dismissed as incompetent, on the ground that the refusal of leave to cross-examine was not a decision or ruling on the admissibility of evidence but also on the ground that the refusal of leave did not eliminate or substantially weaken the Crown case. 42 As to the latter ground, Grove J said - "10 A second obstacle to the Crown contention is the requirement that it be demonstrated that the decision or ruling (assuming it is in a given situation on the admissibility of evidence) eliminates or substantially weakens the Crown case. There is no case being currently tried either at the stage of preliminary or full hearing. It is not known whether Mr Bajic [the allegedly unfavourable witness] will or will not adopt the same stance in the forthcoming trial, if he is called. It is not known what the circumstances will be in which the presiding judge at that trial may be asked to make a ruling if an application under s38 of the Evidence Act is made. If these events occur, they will be dealt with by the presiding judge in accordance with whatever circumstances have arisen. The jurisdiction of this Court does not extend to an advisory opinion concerning something which might happen at a future trial. That does not undermine the jurisdiction which may be exercised where a trial is in progress for the purpose of pre-trial rulings specific to lis pendens .

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33 The appellant has not established that the decision under appeal will eliminate or substantially weaken the prosecution's case at the prospective trial unless it is quashed." 44 Dowd J agreed with both judgments. 45 In R v ELD [2004] NSWCCA 219 the Director of Public Prosecutions appealed pursuant to s 5F(3A) against the rejection of evidence because its probative value was outweighed by the danger of unfair prejudice to the accused: Evidence Act, s 137. The ruling was given on a voir dire hearing prior to the empanelling of a jury. An appeal was brought, and the trial was adjourned. 46 Bell J, with whose reasons Howie and Hislop JJ agreed, said - "23 The rulings made by the Judge were as to the admissibility of evidence at the trial before her. After announcing them she remanded the respondent for trial on a future date. When the respondent's trial comes on for hearing it may proceed before another judge. The ruling made by the Judge as to the admission of evidence has not become final as between the Crown and the respondent by the entry of a conviction or an acquittal: Rogers v The Queen (1994) 181 CLR 251; R v GK [2001] NSWCCA 413; 53 NSWLR 317; R v Edwards [1998] 2 VR 354. The judge presiding at the respondent's trial is not bound to adopt evidentiary rulings made at an earlier aborted trial: R v GK per Mason P at [4] and [5] and Sully J at [74]. It is to be noted that Sully J observed that a ruling excluding evidence under s 137 of the Act made at one trial should be followed at a subsequent trial if the earlier trial had resulted in a verdict that had not been set aside on appeal and if there was no proper basis for distinguishing it: at [77]." 47 Her Honour referred to R v Milakovic, citing [10] of the judgment of Grove J, and continued - "26 In R v NKS [2004] NSWCCA 144 it was contemplated that a pre-trial determination of the admissibility of evidence might be the subject of an appeal under s 5F(3A) (paragraph [18]). The trial in NKS was on foot at the time the appeal was determined. 27 In NKS and Milakovic this Court observed that the right of appeal under s 5F(3A) is one that is to be exercised with restraint. The right of appeal allows recourse to this Court to test the correctness of an evidentiary ruling that substantially weakens the Crown case before verdict. The fact that the Director elects to exercise the right to bring an appeal under s 5F(3A) should not ordinarily be an occasion to abort the trial. It appears that it was the Parliament's intention in enacting s 5F(3A) that appeals under the provision be determined during the currency of the trial. In Milakovic a passage from the second reading speech introducing the amendment into the CAA is set out at paragraph [12]: 'If an acquittal results from an erroneous evidentiary ruling the Crown has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as the result of an erroneous evidentiary ruling. It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated the Crown would exercise this new appeal power sparingly.' (Hansard, 20 November 2003 pp 5427 - 5428) 28 Section 5F(5) provides that this Court may vacate a decision or ruling upon a successful appeal under subs (3A) and give or make some other decision or ruling instead of the one appealed against. Where the trial has been aborted and the accused remanded for trial on some future date new evidence may come to light that is relevant to the exercise of the discretion to refuse to admit the evidence that was the subject of appeal. It is undesirable for this Court to make rulings on the admission of evidence in advance of the trial.

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29 No point was taken at the hearing either challenging the competence of the appeal or contending that the Judge's rulings did not operate to substantially weaken the Crown case. It is appropriate to deal with the appeal in the way it was argued." 48 The appeal was allowed and the judge's ruling was set aside. Her Honour said at [46] that "[f]or the reasons earlier given" it was not "an appropriate case in which to make rulings instead of those that are the subject of the appeal". 49 In R v ELD there does not seem to have been a submission that, as later emphasised in R v Shamouil, the qualification in s 5F(3A) is jurisdictional, and the decision did not explore the reasoning in R v Milakovic. In the present case the respondent did take the point that the judge's ruling did not operate to substantially weaken the Crown case. The respondent did not submit that the appeal was incompetent because there was no current trial, or refer to R v Milakovic, but the jurisdictional question must be addressed. 50 Sperling J in R v Milakovic appears to have considered that futurity of trial, at which the admissibility of the evidence might not arise or the presiding judge might come to a different decision or ruling, meant that the factual finding necessary for satisfaction of the qualification in s 5F(3A) could not be made. Grove J accepted that there could be jurisdiction "where a trial is in progress for the purpose of pre-trial rulings specific to lis pendens". His Honour considered that discharge of the jury made an appeal at least inappropriate. It is not entirely clear whether he considered that it negated jurisdiction, but he appears to have thought that it could not be demonstrated that the decision or ruling eliminated or substantially weakened the Crown case if there was "no case being currently tried either at the stage of preliminary or full hearing": at [10]. 51 There are, with respect, difficulties in these views. Rulings may be given after arraignment and prior to the empanelling of the jury, and are part of the trial: Criminal Procedure Act, 1986, s 130. Despite the parliamentary references to an appeal while the jury is excused cited by Grove J, s 5F(3A) must accommodate the procedure for "pre-trial" rulings for which s 130 provides, and with it the possibility that there will then be an adjournment of the substantive trial and that the judge who makes a ruling will not later preside. It is not uncommon for the trial to be adjourned following a "pre-trial" ruling against which the Director of Public Prosecutions appeals - R v Shamouil was such a case - and there have been many cases in which the appeal has then been entertained. The undesirability of disruption of criminal proceedings does not apply with full force in the case of a "pre-trial" ruling, and the practical difficulties of obtaining immediate hearings in this Court can not be put out of consideration. 52 Further, while trial futurity may make it inappropriate to give an appellate decision or ruling on admissibility in substitution for that appealed against, it does not preclude assessment of the effect on the Crown case by regard to the Crown case ascertained as at the time the decision or ruling at trial was made or as at the time of the appeal. Particularly if the decision or ruling involved assessment of probative value, the judge's reasons could provide a sufficient understanding of the Crown case; in any event, it will be for the Crown to explain its case in order to discharge its onus. Whether a decision or ruling eliminates or substantially weakens the prosecution's case is at least akin to a question of present fact, to be found by this Court, and need not contemplate what might happen at a future trial. 53 It may be that in some cases the Court can not make a finding because of uncertainty in what the Crown case will be at a future trial, but in my opinion the explanation for R v Milakovic lies in the rather different consideration that, because the occasion for leave to cross-examine the allegedly unfavourable witness might never arise or might arise in different circumstances, any decision in the appeal would be (as Grove J said) no more than an advisory opinion. So far as R v Milakovic suggests that the fact that there will be a fresh decision at the future trial in the circumstances then obtaining necessarily precludes a finding that the prosecution's case is eliminated or substantially weakened by the decision or ruling under appeal, I respectfully do not agree. 54 In the present case the Court is able to determine whether the exclusion of the tendency evidence substantially weakens the Crown's case against the respondent. The Crown case is known from the Crown brief and the tendency evidence is known from the facts sheets and the statements of JC and AR. The necessary assessment can be made.

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(b) Objections to the prosecution's case 55 Where the decision or ruling is made at a time when the Crown case has not substantially been presented, and particularly when there is a voir dire hearing at the commencement of the trial, it may be uncertain whether all the material in the Crown brief will in due course be admitted against the accused. Is "the prosecution's case" the evidence which the prosecution proposes to tender, or must there be a forecast of objections, of what the Crown will ultimately press to have admitted, or of what it will succeed in having admitted? We were informed that there is to be objection to the evidence of the complainant via the records of interview, and that a voir dire hearing on that matter has been appointed. (It does not seem that the judge was told of a proposed objection.) Successful objection to this evidence could mean that the prosecution would not continue regardless of the tendency evidence. In other cases the strength of the prosecution's case could vary other than terminally, depending on objections and evidentiary rulings yet unknown. 56 It was not suggested that the evidence of complaint to Mrs Collings and Miss Martin would be objected to, or was inadmissible; similarly the evidence of LA to which I have referred. Nor did the respondent concede admissibility; there may be objection to (for example) the evidence of change in behaviour and reported humping, and to the complaint to Miss Martin of an incident when the complainant was sitting in the lounge watching a movie. Similarly, there may be particular objection to the tendency evidence. The Crown's proposal to tender the tendency evidence had two difficulties. One difficulty was the "and/or" in the Crown notice of intention to adduce tendency evidence, because the statement of JC and the parts of the statement of AR went further than the facts sheets. While by his pleas of guilty the respondent presumably admitted the contents of the facts sheets, admission of the contents of the statements may be another matter. The other difficulty was that some of the material was open to objection even if the tendency evidence in principle was admitted. It is sufficient to instance JC's evidence of sex on more than one hundred occasions, and to question whether the Crown would seek to have before the jury AR's evidence of the respondent's "slimy smile". In this and perhaps other respects there may be the room for change to which I earlier referred.

[36]

65 This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that "probative value" falls to be assessed by the trial judge including: tendency and coincidence evidence (s97(1)(b), s98(1)(b), s101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and (c)); and the comparative weight with unfair prejudice (s135(a), s137)." 63 What did the Chief Justice mean by credibility or reliability considerations? The victim had positively identified the accused from the photo-board, but he later said that he could not recall any physical details of the assailant. His Honour recorded at [34] the submission that the photographic identification was weakened by the victim's later retraction and his divergent statements about whether he had previously seen the assailant. The victim had also given a detailed physical description of the assailant, to which the retraction was also material, although the consistency of the description with the appearance of the accused was disputed. These matters did not enter into consideration. The positive identification, if evidence fit to be left to the jury, was to be taken at face value in the determination of substantial weakening. 64 If the same goes for the prosecution case as a case, the evidence in the Crown case other than the excluded evidence is also to be taken at face value provided it is fit to be left to the jury. In R v Shamouil there was no other clear identification of the accused - the Chief Justice described the case as to the identity of the assailant as circumstantial. In the present case, unlike in R v Shamouil, the evidence of the complainant, if accepted, would suffice to establish the offences with which the respondent is charged. Should it be determined that because, absent investigation of reliability or credibility considerations, the prosecution's case would be fully made out by the complainant's evidence, rejection of the tendency evidence would not eliminate or substantially weaken it? 65 Such an approach to weakening would be consistent with use by the Crown of the appeal mechanism only where acquittal would result from an erroneous evidentiary ruling. But it would be rather unrealistic. Not everything in the prosecution's case survives testing at the trial. The prosecution is entitled to call more than one witness or tender more than one document to prove the one matter, and to support by other evidence acceptance of the evidence of a critical witness. The approach would greatly restrict Crown appeals pursuant to s 5F(3A) where the decision or ruling could in reality be significant in the outcome at the trial. 66 As Spigelman CJ said in R v Shamouil at [37], a case which is very likely to succeed may still be substantially weakened if evidence of cogency or force is withheld. Although in the assessment of the strength of the Crown case credibility and reliability considerations going to its weight are generally put aside, the strength is not a matter of one witness or document sufficient for proof of a matter. As an abstract illustration, assume that the critical fact in the prosecution's case is that the cat was black. One witness will say that the cat was black; that evidence is fit to go to the jury, and in accordance with R v Shamouil it is to be assumed that the jury will accept it. A second witness will also say that the cat was black. In my opinion, it could properly be said that exclusion of the evidence of the second witness would substantially weaken the Crown case; instead of two witnesses saying the cat was black, the Crown will have only one witness saying the cat was black. Declining to enter upon the credibility and reliability of the evidence does not mean ignoring that the credibility or reliability of the evidence of the first witness may be impugned at the trial, or that the evidence of the second witness may support its acceptance or independently be accepted by the jury. 67 This is, in my view, in accordance with this Court's decision in R v SJRC [2007] NSWCCA 142. Text messages said to corroborate the complainant's evidence of sexual assault were excluded under s 137 of the Evidence Act. James J, with whom Harrison J agreed, adopted at [26]-[27] the "criterion" stated by the Chief Justice in R v Shamouil at [37] for determining whether the prosecution case would be substantially weakened. His Honour noted that the Crown could still rely on the complainant's evidence. He said - "29 However, such a Crown case would depend for its success almost entirely on the jury's forming a favourable view of the credibility of the complainant. It can be anticipated that at a trial the credibility of the complainant would be attacked, on grounds including the complainant's obvious hostility to the respondent and what, it would be suggested, is the inherent unlikelihood of the respondent engaging in sexual acts with the complainant in a bathroom in a hospital to which other persons had access. 30 In my opinion, the two text messages, which occurred only three minutes apart and without any intervening message from the complainant, are clearly open to the interpretation urged by the Crown that the respondent was admitting that on Friday 6 January 2006 sexual acts had occurred between the respondent and the complainant and that the respondent now regretted what he had done. The respondent's expressed regret is capable of forming part of the basis for an inference that the respondent knew that the complainant had not consented to the sexual acts.

[38]

The approach on appeal 70 Neither s 97(1) nor s 101(2) expresses a discretionary decision, compare ss 135 and 136 of the Evidence Act. Section 97(1) states that tendency evidence is not admissible if "the court thinks" that it would not have significant probative value, with the necessarily evaluative determination of what the court thinks. Section 101(2) does not refer to what the court thinks; the tendency evidence cannot be used against the defendant unless its probative value substantially outweighs any prejudicial effect it may have on the defendant. There must nonetheless be evaluation of probative value and prejudicial effect, and omission of reference to what the court thinks may not be particularly important. 71 There can be a fine line between discretion and evaluation. In the different context of whether there had been contempt of court, Spigelman CJ said in Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [33]-[35] - "33 As Wilson J said in Hinch at 43: '… a decision which is the outcome of the balancing process is not a discretionary judgment. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact.' 34 Furthermore, as Toohey J said in Hinch at 77: 'There is a balance which the court is called upon to strike. It is not an exercise of discretion; it is an evaluation of competing interests against the background that contempt must be established beyond reasonable doubt.' 35 The task of balancing conflicting public interests involves the making of a judgment by a process of evaluation. It is distinguishable from the making of a finding of fact. It is also distinguishable from the exercise of a discretion, in the sense of a choice between alternative courses of action. Although distinguishable, a process of evaluation will be found, for many jurisprudential purposes, to have a close analogy with fact finding and the exercise of a discretion." 72 See also Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [34]-[40], referring to a value judgment as distinct from the exercise of a discretion. 73 In R v Ellis Spigelman CJ, with whom the other members of a five judge bench relevantly agreed, said at [95] - "Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick (2000) 111 A Crim R 326 at [20] per Sheller JA; F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368.)" 74 In R v Blick (2000) 111 A Crim R 326 Sheller JA had said of s 137 of the Evidence Act, which also does not express a discretionary decision - "19 When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion; see the cases referred to by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 at 716 and following, particularly Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 and Miller v Jennings (1954) 92 CLR 190 at 197. In the second of those cases, Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was "reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant." Translated to the task set by s137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment; see Heydon, 'A Guide to the Evidence Acts', 2nd ed, para 3.725.

[39]

20 Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." 75 It has nonetheless been held that an appeal from a decision to admit or reject tendency evidence attracts the approach of an appeal from a discretionary decision. Sheller JA, with whom James and Dowd JJ agreed, said in R v Blick that the balancing under s 137 was analogous to a discretionary judgment. In R v Fletcher Simpson J, with whom McClellan CJ at CL agreed, said - "36 A decision to admit or reject evidence tendered under s 97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving "a degree and value judgment" (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75]." 76 In Jacara Pty Ld v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Sackville J recorded at [75] the parties' acceptance that an appellate court's review of a decision to exclude evidence under s 97(1) is in accordance with the principles applicable to a discretionary judgment. In R v Milton [2004] NSWCCA 195 Hidden J, with whom Tobias JA and Greg James J agreed, referred at [33] to it not being open to the trial judge to have found that the test in s 101(2) was satisfied. In R v Zhang (2005) 158 A Crim R 504 Basten JA observed at [45] that there was a distinction in principle, even if the dividing line was blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of evaluation and judgment, and was inclined to a different view. Simpson J, however, with whom Buddin J agreed, repeated at [141] that appellate review was on the principles in House v The King (1936) 55 CLR 499. 77 Reference should be made to R v Cook [2004] NSWCCA 52, in which it was said at [38] that the balancing under s 137 of the Evidence Act was akin to the exercise of a discretion because it was the exercise of judgment, but not "in the sense that, if the exercise is not performed in accordance with the section, it cannot be undertaken by an appellate court". This is, with respect, a little obscure. In relation to s 90 of the Evidence Act the question of discretion or evaluation has been agitated, without binding result, in Em v The Queen [2007] HCA 46, see at [55], [182], [198]-[199]. The last word may not have been written. 78 However, the Crown accepted that the principles in House v The King governed its appeal, and there is no present occasion to question that position. In House v The King Dixon, Evatt and McTiernan JJ said at 504-5 - "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

[40]

The appeal 79 The Crown submitted that, in holding that the probative value of the evidence did not substantially outweigh the prejudicial effect that it would have, the judge failed properly to consider in what particular respect or respects the evidence sought to be adduced by the Crown might be used by the jury in some unfair way, and accordingly failed properly to consider what prejudicial effect it might have upon the respondent. It relied in this respect on the observations by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [91]. His Honour there said that evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted, and (by citation from R v BD (1997) 94 A Crim R 131 at 139) that there must be prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way. 80 The Crown further submitted that the judge failed properly to take into account his power to give appropriate directions or to consider whether any such direction should be given, as a relevant matter in the balancing exercise required by s 101(2) of the Evidence Act. The Crown referred to R v Carusi (1997) 92 A Crim R 52 at 55-6, R v Cook at [37], and R v Ngatikaura [2006] NSWCCA 161 at [32]. It relied particularly on R v RN [2005] NSWCCA 413 at [14], where Sully J (with whom Grove and Howie JJ agreed) said of the balancing exercise that, even when there is risk of prejudice to the defendant such as to justify excluding the evidence, "the exclusion of the evidence is not the only just way of dealing with any perceived prejudice: adequate direction by the judge to the jury is an example of a possibly appropriate alternative in a particular case". 81 The respondent's submissions questioned the probative value of the tendency evidence. He submitted that, apart from the "simplistic similarity" of being sexual offences involving young girls, there were many differences between the offences charged and the 1987 and 1995-6 offences involving JC and AR respectively and no particular pattern in the sexual misconduct. 82 The judge's analysis of the similarities and dissimilarities between the evidence of the offences charged against the respondent and the tendency evidence showed sexual misconduct other than in the ways set out in the Crown's tendency notice, and any tendency to act in those ways was accompanied by more generally engaging in sexual misconduct. Harking back to earlier in these reasons, the May 1996 incident involving JC could bear upon the admissibility of the tendency evidence so far as it suggested general sexual misconduct rather than the more particular misconduct. However, there is no occasion to depart from the judge's finding of substantial probative value. The judge correctly said at [54] that the tendency evidence was not overwhelming, and at [55] that the similarities were not as "compelling" and the evidence was not "in the same category" as in other cases to which he referred. The Crown's difficulty in the appeal is that the judge did not err in the respects for which the Crown contended. 83 The judge considered how the tendency evidence might be used by the jury in an unfair way. He directed himself that he must consider the prejudice in the particular case, and did so. The unfair use was that the jury might reason no more rationally than that, if the respondent molested JC and AR, he did the same to the complainant, and that emotion not rationality would govern and "the issue of credibility" might be ignored (at [50]-[51]). The judge did not use the language of use in an unfair way, but the prejudice he identified was of that kind. 84 The prejudice was, as the respondent pointed out, similar to that identified in R v Watkins (2005) 153 A Crim R 434, where Barr J (with whom Grove and Howie JJ agreed) said - "49 It seems to me that the difficulty about the evidence was the risk to which it gave rise that the jury would be overwhelmed by the knowledge that the appellant had been convicted of a series of frauds on a previous employer and would refuse to contemplate the appellant's defence to the charges before them, which were of a similar nature. His Honour recognised such a risk during a debate with counsel on 12 May 2004 when he said this - It gives rise to prejudgment. What do you say to the proposition that in this case that as a possibility, a jury might hypothetically, as soon as they learn about the 1984 matter, fold their arms and say 'oh well we might as well rack the cue here, he's obviously guilty, we won't listen to any more evidence, it's all over, he's done it before, he must have done it this time', why wouldn't they possibly take that approach? 50 It seems to me that there was a real danger that the jury's recognition of the appellant's prior guilt was likely to divert them from a proper consideration of the evidence as bearing on the question of his intent in the charges before them. The difficulty of obviating that risk had to be taken into account in assessing the likely prejudicial effect of the evidence." 85 The judge had regard to directions to the jury as an available course. He said that the jury might reason in the manner last mentioned "[n]otwithstanding the warnings that a trial judge must give" (at [50]). He said that the jury would be told not to punish the respondent again by basing their verdict on emotional rather than rational considerations, but no matter how many times the jury was told to be rational and dispassionate it was "in the trial of a self-confessed child molester … a big ask" (at [50]-[51]). In his Honour's view "[t]he potential for very great prejudice remains regardless of what could be said by the trial judge to ameliorate it" (at [51]). 86 The Crown submitted that the judge did not consider the "standard" directions or any particular directions which could be given. There is no reason to think his Honour failed to turn his mind to possible directions. He was of the view that there was prejudicial effect no matter what directions were given. 87 The Crown further submitted that the judge was in error in not proceeding on the assumption that, if appropriate directions were given, the jury would act in accordance with the directions. It referred to McHugh J's emphasis in Gilbert v The Queen (2000) 201 CLR 414 at [31]-[32] that the fundamental assumption of a criminal trial is that the jury acts on the evidence and in accordance with the directions of the trial judge. Prejudicial effect, however, is to be evaluated without such a foreclosing assumption, and his Honour's remarks were not directed to the present situation. 88 The judge did in his reasons refer to use which might be made of the earlier guilty pleas to the advantage of the respondent. There was a suggestion in the Crown's submissions that the judge's consideration was wrongly diverted to whether the respondent might be able to use the tendency evidence in that way. It may be that, in balancing probative value and prejudicial effect, possible probative value in favour of the accused is not material. But the judge did not weigh this in the balance adversely to the Crown, and it was not a matter which contributed to his conclusion that the scales were not tipped substantially in favour of probative value. 89 It was well open to the judge to see a real risk of unfair misuse of the tendency evidence, and to conclude that directions could not be given which would satisfactorily prevent it. Treating his ruling as the exercise of a discretion, error in the respects for which the Crown contended has not been shown. For completeness, as an evaluative judgment it is one which was open to the judge and which I would not displace on appeal.

At a glance

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Judgment (43 paragraphs)

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Cases Cited (37)