R v BP [2010] NSWCCA 303
DJW v R [2015] NSWCCA 164
DSJ v R
NS v R [2012] NSWCCA 9
Hoch v The Queen [1988] HCA 50
66 NSWLR 228
R v XY [2013] NSWCCA 121
Source
Original judgment source is linked above.
Catchwords
R v BP [2010] NSWCCA 303
DJW v R [2015] NSWCCA 164
DSJ v RNS v R [2012] NSWCCA 9
Hoch v The Queen [1988] HCA 5066 NSWLR 228
R v XY [2013] NSWCCA 121
Judgment (1 paragraphs)
[1]
Judgment
HOEBEN CJ at CL:
Nature of application
Complaints of historical sexual assaults while they were children were made by four sisters against their uncle, the respondent. There were further allegations of a similar nature from a separate complainant who was not related to the respondent or to the four sisters. The separate complainant had moved to live on a farm near the respondent's house where the four sisters had previously resided.
Details of the four sisters and the other complainants are as follows:
JM born 1966 - tendency witness.
CM born 1967 - counts 1 - 2 on indictment.
SM born 1969 (twin to HM) - count 3 on indictment.
HM born 1969 (twin to SM) - tendency witness.
JC born 1982 - counts 4 - 6 on indictment.
An indictment containing six counts of various sexual offences was presented by the Crown against the respondent which related to three of the five principal witnesses - CM, SM and JC. The complaints made by the other two sisters (JM and HM) were relied upon as tendency evidence by the Crown in respect of all counts on the indictment. The Crown served a tendency notice referring to all five persons. In addition to the tendency evidence from JM and HM, the Crown sought to rely upon the evidence of each of the complainants named on the indictment as tendency evidence in respect of all the other counts on the indictment.
The counts on the indictment were as follows:
Count 1 - Commit act of indecency towards child under 16 years (11 years) (tucking penis up and saying "look I'm a girl").
Count 2 - Indecent assault of child under 16 years (12 years) (digital penetration while on back of motor cycle).
Count 3 - Indecent assault of child under 16 years (12 years) (touching genital area while in Land Cruiser).
Count 4 - Sexual intercourse with a child between 10 and 16 years (12 years) (digital penetration while on back of Harley Davidson).
Count 5 - Sexual intercourse with a child between 10 and 16 years (12 years) (cunnilingus after going for a ride on quad bike).
Count 6 - Sexual intercourse with a child between 10 and 16 years (12/13 years) (digital penetration while on motor cycle).
There were other incidents not charged. These involved the sisters.
Pinning JM against the wall in August 1981 while parents away.
Coming in while girls showering.
Incident with JM at holiday house at Malua Bay beach.
Asking sisters if they had pubic hair yet.
The following matters were raised in the tendency notice, dated 29 May 2014.
1. The person whose "tendency" is the subject of the evidence sought to be adduced is GM.
2. The tendency sought to be proved is his tendency to act in a particular way, namely to indecently assault young girls, specifically his nieces, by conduct of rubbing their legs/genital area while driving his motor vehicle with the girls in the front seat.
3. Further tendency sought to be proved is his tendency to sexually assault young girls, especially but not limited to, by acts of digital penetration while seated on either motor bike or quad bikes with the girls.
4. Further tendency sought to be proved is his tendency to indecently assault young girls by rubbing the breasts of young girls while he is seated behind them on either a motor bike or a quad bike.
5. Further tendency sought to be proved is his tendency to act in a particular way, namely to ask inappropriate questions of young girls in relation to the development of their breasts and/or pubic region.
6. Further tendency sought to be proved is his tendency to act in a particular way, namely to act indecently towards young girls specifically his nieces by standing naked before them with his penis tucked behind his legs and saying to the effect of "look at me, I'm a girl".
7. Further tendency sought to be proved is his tendency to have a particular state of mind, namely a sexual attraction to young girls, including but not limited to, CM, JM, HM, SM and JC.
8. Further tendency sought to be proved is his tendency to have a particular state of mind, namely a fascination bordering on the obsessive with the vaginas of young girls.
Before the trial, the respondent filed a notice of motion seeking orders for a separate trial in respect of the counts relating to JC (counts 4, 5 and 6). The respondent sought to exclude the evidence of HM and JM (being relied upon by the Crown only as tendency evidence) in respect of any count on the indictment. The respondent also sought to prevent any evidence from any of the sisters being admitted as tendency evidence against the respondent in respect of the counts which related to JC.
On 16 March 2015 the respondent was arraigned and pleaded not guilty at Wagga Wagga District Court. Her Honour English DCJ then heard legal argument in relation to the respondent's notice of motion. The evidence before her Honour comprised statements of the four sisters and JC, as well as statements from the mother of the four sisters and the parents of JC. All of those persons had given evidence in earlier committal proceedings and transcripts of their evidence were before her Honour. One of the sisters, JM, did not give evidence in the committal proceedings.
The orders made by her Honour on 18 March 2015 were:
1. I uphold the defence application.
2. I order that counts 4, 5 and 6 be severed from counts 1, 2, 3.
3. I am not satisfied that the evidence sought to be adduced as tendency evidence ought to be admitted and I uphold the defence application in that regard. The evidence of HM and JM is not to be admitted as tendency evidence in respect of the complainant SM. The evidence of CM, SM, HM and JM is not to be admitted as tendency evidence in respect of the complainant JC.
Although her Honour made no specific mention of the evidence of HM and JM not being admitted as tendency evidence in respect of the complainant CM (as well as SM), the parties approached the matter on the basis that this was an oversight and that her Honour's rejection of the proposed tendency evidence included that circumstance. I agree with that approach and I have dealt with this matter on the basis that her Honour made all the orders sought by the respondent in his notice of motion.
Following her Honour's judgment, the Crown asked for time to consider its position. On 19 March 2015 the Crown sought to have her Honour revisit her ruling in light of the decision of Jones v R [2014] NSWCCA 280 which had not been referred to in argument before her, either by the Crown or the respondent. Because Jones v R was subject to a non-publication order, it had only been brought to the Crown Prosecutor's attention overnight. The Crown acknowledged, in the light of the decision in Jones, that he had erred in agreeing with the respondent that Hoch v The Queen [1988] HCA 50; 165 CLR 292 set out the correct test for considering questions of concoction and contamination in the context of an application to rely upon tendency evidence and accordingly that Hodgson JA had correctly stated the law in BP v R; R v BP [2010] NSWCCA 303.
Further submissions were made by both sides on 19 March 2015. Her Honour indicated that she did not intend to reverse her ruling. She further stated "I will give further reasons if so required Mr Crown". At the time the Crown responded that he did not require further reasons. Subsequently when a transcript became available, a request was forwarded by the Crown to her Honour to provide the further reasons which she had foreshadowed on 19 March 2015. On 12 June 2015 her Honour's Associate notified the Crown that "her Honour does not propose to provide further reasons in the matter". In the proceedings in this Court, the parties proceeded on the basis that the judgment under consideration was that delivered by her Honour on 18 March 2015. I have approached the matter on the same basis.
The application in this Court is an appeal by the Crown pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against her Honour's order that the indictment be severed and an appeal pursuant to s 5F(3A) against her Honour's ruling in respect of tendency evidence on the basis that it has substantially weakened the Crown case.
Factual background
The four sisters grew up on a farm in a rural town in the Riverina area. The respondent and his wife lived on the neighbouring farm. The respondent was the older brother of the father of the four sisters. The respondent had no children of his own. The sisters moved to Wagga Wagga when their farm was sold in 1980 (which was when JM was aged about 14, CM was about 13, and the twins SM and HM were about 11). Before then the sisters were regular visitors to the respondent's farm where they would drive in his ute and ride on motor bikes. The respondent gave them driving lessons in his ute. Each of the four sisters described sexually inappropriate behaviour by the respondent during the course of some of those visits from a young age.
The background to the charges against the respondent was as follows. Count 1 related to a specific occasion when CM was aged 11 and the respondent came into his lounge-room after a shower when all the sisters were present and tucked his penis between his legs and said to them "look at me, don't I look like a girl". Count 2 related to another occasion when CM was aged 12 and the respondent was on the back of a motorcycle being driven by her. He put his hand down her pants and digitally penetrated her vagina. Count 3 related to an occasion when the respondent and SM were in his ute and the respondent ran his hand up her leg onto her genital area.
In 1983, a few years after the sisters had moved away from the farm, the unrelated complainant, JC, moved with her family into that property. JC had just had her first birthday. She had three brothers and over the years her family got to know the respondent and his wife well and her parents became close to them. She learned how to ride a motorbike from an early age.
As children they would go to the respondent's farm because he always had better motorbikes and quad bikes. The respondent taught her to ride the quad bikes from when she was aged 5 - 6 years old. She recalled him putting his hand down her pants and touching her vagina during these rides. At about the same age the respondent would also take her around the property in his farm ute and teach her to drive. While she was steering, the respondent would put his hand down her shirt and touch her breasts and put his hand down into her vagina and digitally penetrate her. This continued until she was in about year 7 - 8 when she stopped going to the respondent's property. JC also alleged that as she was getting older, the respondent would make comments about her breasts and vagina developing.
The details of the charges brought against the respondent relating to her (counts 4 - 6) are as follows. Count 4 involved an incident when JC was aged about 12 when the respondent had taken her for a ride around his property on his new Harley Davidson motorcycle. He stopped the bike and rubbed her breasts and then digitally penetrated her.
Count 5 is also alleged to have occurred when JC was aged 12. It related to an occasion when she was riding with the respondent on a quad bike when he told her to pull over on a dirt track. He then performed cunnilingus on her.
Count 6 occurred about six months later and involved the respondent touching JC's breasts and digitally penetrating her after she had been riding on the back of his motorcycle.
A summary of the evidence before her Honour, as set out in the statements and committal transcripts, is as follows. JM (a tendency witness) did not give evidence in the committal proceedings. The following comes from her statement of 11 May 2012. The first instance she could recall occurred in 1969. She was seated in the respondent's Land Rover. She was sitting next to him and she could recall him running his hand up her leg. She said that that type of behaviour continued for years. Sometimes the respondent would touch her underneath her underwear and would make sounds while he did so.
JM could recall another occasion when the respondent owned a GT Falcon and she was seated in the front seat and he ran his hand up her leg. A similar incident occurred while they were near a group of trees on the farm, but she could not remember specific details. She could recall witnessing the respondent touching her sisters in a similar fashion.
In approximately 1978 she was in year 7 at school and the respondent requested she take him on her motorbike to check something in a paddock. He sat behind her on the motorbike and he touched her on the breasts on the outside of her clothing. She ordered him to stop and he did so.
The family moved to Wagga Wagga in 1980. Between 1981 and 1983 JM's parents went away for a weekend and the sisters were being cared for by the respondent and his wife in the Wagga Wagga house. The respondent pinned JM against a wardrobe and said words to the effect "Come on how about it? You're big enough now". He was pulling at her clothing. She told him to "fuck off" and "get away" and that she did not need his money. Two of the sisters witnessed the incident.
JM said that she had been told by her sister, SM, that the respondent had pinned her (i.e. JM) to a bed in the family holiday home at Malua Bay and that SM had told the respondent to get off JM. JM could not remember that incident herself.
JM first complained about the behaviour towards her by the respondent to her mother on Christmas Day in 1996. She did not make any statement to the police until May 2012.
JM recalled the respondent making inappropriate comments about women's breasts in the presence of her and her sisters. He would tell them what she considered to be inappropriate jokes of a sexual nature and ask questions about their developing bodies and he would talk to them about boys. She thought the jokes were inappropriate but that was his way of being friendly to his nieces.
CM (a complainant - counts 1 and 2) said that when she was approximately seven years of age (around 1974) she would go to the respondent's farm and he would take her and her sisters driving in his Land Cruiser. The respondent would let her steer the ute while she was sitting on his lap and he would run his hands up and down the inside of her leg. He would slide his hand up her inner thigh. It made her feel uncomfortable.
When CM was approximately 11 years of age in 1977, she was in the lounge-room of the respondent's home. Her three sisters were present. The respondent's wife was in the kitchen washing up. The respondent had showered and came into the lounge-room wrapped in a towel. He removed the towel and tucked his penis between his legs and said to the girls "Look at me. Don't I look like a girl?" he then left the room. The sisters did not discuss the incident. CM was shocked at the respondent's behaviour.
Approximately a year later, around 1978, CM and her sisters were at the respondent's property. She was riding a motorbike and the respondent asked her for a lift to the shed. The respondent sat behind her on the motorbike as she rode to the shed. The respondent got off, retrieved what he came to get, and got on the back of the bike. As CM was about to start the bike, the respondent put his hands around her waist and put a hand down the front of her pants. He put his hand inside her underwear and penetrated her vagina with his finger. He stopped after about 30 seconds. CM started the bike and rode back to the paddock.
Approximately a year later, when she was in year 7 when she was aged around 12, the respondent asked her for a lift on the motorbike. He sat behind her and asked "Do you have hair down there yet?" She answered "Yes". CM dropped the respondent off and left.
On Christmas Day 1996 CM was at home with her husband and children. Her mother, father and sister JM were visiting. She overheard a conversation between her mother and JM about the respondent touching JM. She was asked by her mother if the respondent had touched her and she replied in the affirmative. The following day she informed her husband who had been a police officer.
In 1998 CM's grandmother (the respondent's mother) died. At that time the family became aware of allegations made by JC and another woman LL that they had been assaulted by the respondent. CM was aware that the respondent had been physically assaulted in 2000.
In around 2005 JC visited CM at her home in West Wyalong and they sat and talked. CM said that they did not go into detail but the conversation was such that CM knew that the respondent had touched JC inappropriately. They discussed confronting the respondent but were not strong enough to do so at that time.
In 2009 CM sought counselling. On 5 May 2010 she went to the Wagga Wagga Police to make a statement. On 24 August 2010 she made a statement at West Wyalong Police Station. CM gave evidence in the committal hearing in April 2014.
In her evidence at the committal proceedings, CM said that she had spoken to her husband about the allegations but did not go into details. She said "No-one knows what he actually did to me" except what is contained in her police statement. She said that she had not spoken to anyone else, other than her husband. She said that she and her sisters had spoken about things that the respondent did in front of them, but none of them had ever spoken about things which he did to them individually. She had spoken to her sisters individually on a number of occasions over a number of years. They spoke about what he "used to do to us" when they were in the ute at the same time.
CM said that she and JC had spoken to each other but neither went into detail. CM said that she said to JC "I don't want to know what he did to you".
SM (a complainant - count 3) could recall incidents occurring in about 1978 when she was aged 9 involving the respondent. She could recall when she and her twin sister, HM, stayed with the respondent and his wife, that the respondent would come into the lounge room naked, he would tuck his penis between his legs and say "Look at me, I'm a girl". He would do a little dance and turn his back and she could see his penis and testicles visible between his legs.
SM could recall the respondent coming into the laundry while she was in the shower, looking at her through the shower screen. She could recall the respondent running his hand up her legs to her genital area in a tickling motion while they were in the car.
When she was about 12 in 1981, she could recall sitting with her legs either side of the gearstick travelling into town with the respondent in his vehicle. The respondent ran his hand up to her genital region. She pushed his hand away and said "Don't do that" and the respondent replied with words to the effect "Teenage boys will do that to you".
SM could recall the respondent asking if she had pubic hair or if she had a boyfriend. She could recall an occasion when the family were on holidays in Malua Bay when the respondent came into the girls' bedroom and lay on her sister JM, groping at her breasts and genitals.
SM said that in 2009 after her sister CM had attempted to commit suicide, she made contact with the respondent and his wife. She rang and confronted him on the phone saying "I'm going to ring the police. You are going to go to gaol for what you did". She said that the respondent replied "Go ahead. It would be her word against mine and you couldn't prove anything". SM demanded that he put his wife on the phone but he refused to do so.
After several phone calls, CM spoke with the respondent's wife. She had a conversation with her and that was the last time they spoke.
In SM's statement of 4 November 2012 she said:
"At no time do I remember ever being sexually abused by GM. I don't remember ever really talking about these incidents with my sisters or mum and dad. I vaguely remember when all this came out that I was told about what had happened to my sisters.
CM told me about an incident when she was riding a motorbike with GM behind her. She told me that GM was groping her with his hands that were inside her clothing. She told me that he put his hand down her pants and his fingers went inside her vagina. She could not do anything because she was riding the motorbike."
SM could also recall a day when JM told her that it had happened to her as well, but she did not ask her sister to go into any detail as she did not want to know.
SM denied having a number of conversations with her sisters about the allegations against the respondent. She said that CM had told her what had happened and on another occasion, her sister JM had attempted to discuss matters with her but she cut her short. She said that she only had one discussion with CM about what happened. SM said that she never spoke with her mother about what occurred to her and that she did not intend to, nor had she had any discussion with her twin sister HM about the matter. She said that she did have "words" with her twin sister when she found out that HM had travelled to Albury to see the respondent and his wife following an assault upon him in 2000.
SM said that when she said in the committal proceedings that she had not been sexually abused by the respondent she meant "penetrated". At the time she first spoke with police, she was aware that her sister CM was going to make a statement to the police. SM said that she did not go to police earlier because she did not wish to hurt her aunt but once her aunt showed a lack of care about what the respondent had done to her and her sisters, she felt that her aunt was as bad as the respondent.
HM (a tendency witness) was the twin sister of SM. She said that she was aged 11 when the family moved to Wagga Wagga.
HM recalled an occasion when she and her sisters were in the respondent's lounge-room and he entered the room naked with his penis tucked between his legs and said "Look I'm a girl". She could recall regular occasions while in the car with the respondent that he would touch her on the leg and run his hand up the inside of her leg towards her crotch. She would push his hand away and remonstrate with him.
In April 1981 her parents went on holidays. The respondent and his wife came to care for the sisters in the family home in Wagga Wagga. She could recall seeing the respondent pin her sister JM against a wall in the rumpus room and grope her and say words to the effect "How about it J?". HM said that she tried to stop him and push him away from her sister. The respondent and his wife left the premises shortly thereafter.
She recalled her mother RM asking her on her 27th birthday (1997) whether the respondent had ever done anything to her. She made a statement to police on 20 October 2012. She also gave evidence in the committal proceedings.
HM said that on the day of her 27th birthday when her mother asked her if the respondent had ever done anything to her, she said "no". She said that her sister SM was present at the time. She said that she had never discussed the allegations with her sisters. There had been a discussion about court dates, but not details. She could, however, recall asking her sister CM to speak to the respondent to stop him going to her house. She remembered that she was pregnant at the time.
In her statement of 20 October 2012 HM said that even with her twin sister SM she never really spoke about the things that the respondent had done to us "like rubbing our legs in the car". She could not recall the respondent touching her in a sexual way like her breast or genital area. She said that she had never gone into any details with her sisters about the respondent. She knew that he had done things to the others, especially JM and CM. She knew that they would tell her what happened, but she did not think she could cope with it if they did tell her.
JC (a complainant - counts 4 - 6) and her family moved into the property adjoining that of the respondent in 1983. She and her brother, GC, spent a lot of time at the respondent's property riding motorbikes. They would often have dinner with the respondent and his wife. She could recall sitting at the dinner table when the respondent would try to touch her leg with his feet and legs. She could recall the respondent walking naked through the house after he had taken a shower.
When she was five or six, the respondent taught her to ride a quad bike. He would sit behind her and put his hands up her top and touch her on the breast. He would also put his hands into her pants and touch her vagina. He would take her out in the farm ute and teach her how to drive. She would sit on his knee and steer. He would change the gears and operate the pedals. He would put his hands down her top and touch her on the breasts. He would also touch her on the vagina before inserting a finger into her vagina.
As she got older, she went to the respondent's farm less and less. She could recall him making comments about her breasts and vagina developing. She could recall feeling the respondent's erect penis pressing into her back while they were riding the motorbike.
In 1993 or 1994, the respondent purchased a Harley Davidson motorbike. He took her for a ride. She sat behind him. He stopped the bike and touched her on the breasts before inserting a finger into her vagina. She asked him to stop as she was experiencing pain and they returned to the farm.
On another occasion when she was 11 or 12 she was riding a quad bike. The respondent was seated behind her. He told her to stop and she did so. He got off the bike and told her to lie down. She lay on the seat of the bike. He removed her shorts and underwear and performed cunnilingus. He invited her to touch him or lick him. She pushed him off. They returned home. She went home and took a long bath.
It was about six months before she returned to the respondent's farm. On the next occasion, they were again on a motorbike. The respondent stopped the bike and inserted a finger in her vagina. She told him to stop, which he did, and they resumed riding the bike.
She first complained to her parents in about 1995, although nothing was formally reported. During the committal hearing, she said that she first raised what had occurred to her in response to an inquiry from her mother, who had been informed that the respondent had allegedly interfered with someone else. That someone else was LL.
JC's parents apparently split up in around 1996. In 2000 the family sold the property adjoining that of the respondent and moved to Temora. JC said that she had spoken to others about what had happened to her. She had spoken to her father and her brothers and her mother. As the years went by, she had spoken with others and she had sought counselling. She was aware of rumours within the community about the respondent as long ago as 1999.
She said that one of the respondent's nieces (CM) made contact with her and asked her if she was a victim. She thought that this was around 2003. She said that she went to West Wyalong and met up with CM. She said that they talked about the allegations to an extent, but that she did not go into detail.
She had a conversation with her ex-boyfriend DB and she was aware that he had seriously assaulted the respondent.
RM was the mother of the four sisters. RM said that it was Christmas in 1996 when JM told her that the respondent had been touching her from the time she was little until the early 1980's. She could recall her other daughter, CM, walking in and from the look on her face, RM said she was aware that she had also been a victim.
RM said that while she did not discuss details with either daughter "Over the years things came out about what had happened". She said that when she spoke to the twins on their birthday in January 1997, they both denied anything had occurred involving them. She subsequently learned that they chose not to make any disclosure that day because it was their birthday.
RM said that in 1998 at her mother-in-law's funeral, she spoke to a sister-in-law, EM, and advised her to keep her grandchildren away from the respondent. When asked why, she informed her sister-in-law that the respondent had assaulted her daughters. She heard that EM had spoken to others who also disclosed there had been other victims.
She could recall the incident referred to by her daughters that occurred to JM in the house in Wagga Wagga when the respondent and his wife left early before she and her husband had returned from a trip to Melbourne. It was the recollection of RM that the respondent's explanation for the early departure was that a disagreement had occurred between CM and his wife. RM said that she could not understand why such a disagreement would have occurred, but subsequently learned of the incident involving JM.
RM said that CM had informed her of a comment made by the respondent when he rubbed his hand over her upper leg to the effect "This is what boys are going to do to you when they take you out". She was aware of the dislike of the respondent by her daughters, but they had not gone into the reasons why.
RM was extensively cross-examined in the committal proceedings. She said that she was close to her daughters. Before the disclosures about the respondent she had been ambivalent towards him and her husband did not trust the respondent. There was friction between the two of them. RM said that it was her daughter who first broached the subject of the respondent at Christmas 1996 saying to her "Mum, I've got something terrible to tell you. I want to tell you about Uncle G". She said that she asked her daughters about the Melbourne weekend and why their uncle and aunt had left early and she was informed that there had been an incident between JM and the respondent. RM said that she did not push her daughters for details but encouraged them to talk to their husbands and partners.
She confirmed that she then spoke to the twins, who initially said that they had not experienced anything at the hands of the respondent. This was because it was their birthday and they did not want to discuss it on that day. RM said that she soon found out that it was otherwise. She learned about SM first but could not be precise as to when that occurred.
RM became aware of the respondent putting his penis between his legs and dancing around in front of them saying "Do you think I look like a girl". It was something which she discussed with her daughters. RM said that she had no discussion with any of her daughters about things which were alleged to have occurred in the Land Cruiser or the ute, other than one of the girls had told her that the respondent had rubbed his hand up and down her leg and said "This is what boys are going to do to you when you grow older". She thought it was CM who had told her that.
RM recalled another occasion, a family wedding, but she was not sure about the year. It was after her mother-in-law's funeral. On this occasion, she requested that she and her husband not be seated with the respondent and his wife at the wedding.
RM was aware that the respondent had been assaulted in 2000 and she had her suspicions as to why. She did have a discussion with her daughters about the motive for the assault. She was aware that CM had gone to the police and that she would be contacted about making a statement.
RB was the mother of JC. She and her former husband had four children, including JC. She was aware that two of her children, GC and JC, became friendly with the respondent and his wife. She could recall an occasion when those two children had been with the respondent and they returned home. JC ran a bath and remained in the bath for a long time, which she felt was unusual for her.
She was aware of the respondent purchasing a new Harley Davidson motorbike. In 1997 she became aware of allegations that the respondent had been abusing CM. She had met up with LL and LL had told her that she too had been abused by the respondent.
When she heard that, RB became concerned for her own daughter and spoke to her asking her whether GM had done anything to her. JC replied "yes". JC told her that the respondent "Didn't actually have sex with her" but that he used to touch her. JC did not want anyone to know. The family did end up finding out when JC's boyfriend assaulted the respondent because one of her sons, GC, was present at the time of the assault.
The judgment of 18 March 2015
Her Honour summarised the thrust of the respondent's submissions as follows:
"The accused argues that there is a real risk of contamination of the evidence because of the way in which the allegations have emerged over time and of course of the way in which the complainants have interacted with each other and a decision was made to come forward and to complain, that there exists a relationship between the complainants and the other Crown witnesses, that there existed the opportunity for concoction as a result of the conversations between the various complainants and witnesses over time and there exists a motive for there to be a concoction on the part of at least some of the complainants and/or witnesses, that there is a risk of contamination of testimony to be called in the Crown case and that that is something which significantly reduces the probative value of the tendency evidence." (Judgment, 16.7 - 17.1) (R v GM (District Court (NSW), 18 March 2015, unrep at 16 - 17) (R v GM, District Court (NSW) 18 March 2015, unreported)
Her Honour then set out ss 97 and 101 of the Evidence Act 1995 (NSW) (the Act). By reference to those sections, her Honour noted that the court was required to embark on two inquiries:
"First, whether the evidence has significant probative value which is the s 97 inquiry; and secondly, whether the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused, and that is the s 101 inquiry." (Judgment 17.9 - 18.1)
Her Honour went on to further analyse those requirements as follows:
"The assessment of the probative value of evidence does not depend on its believability or reliability. The issue is whether, and to what extent, the evidence is "capable" of affecting a jury's determination of a fact in issue - DAO v R [2011] NSWCCA 63 at [182].
The onus is on the Crown to establish that tendency evidence has significant probative value. The "unfair prejudice" addressed in s 101 is similar to that addressed in s 137 of the Evidence Act. Generally it is prejudice associated with a risk that a jury will take an irrational approach and use the evidence to the detriment of an accused. In AE v R [2008] NSW CCA 52 the Court found that the trial Judge should have rejected tendency evidence of a long course of sexual misconduct against one complainant when considering whether the Crown had proved two counts of alleged sexual misconduct against a second complainant because of the risk that the jury would be "overwhelmed" by the strength of the tendency evidence - at para [45].
Further, the Court found that the evidence should have been rejected because there was a possibility of deliberate concoction arising from the fact that the complainants were sisters and had been in contact with each other at the time that each made a complaint - para [44]. The reasons for that finding were not fulsome unfortunately." (Judgment 18.6 - 19.2)
Her Honour then sought to analyse the position at common law, but in doing so, focused on s 101 of the Act rather than s 97. Her Honour said:
"The position at common law, it has been said that tendency evidence, that is "reasonably capable of explanation on the basis of concoction" will lack the necessary probative value. When considering whether concoction is a reasonable possibility it is relevant to examine the relationship, opportunity and motive of the witnesses - Hoch v R (1988) 165 CLR 222 at 297. That formulation has been adopted in relation to s 101 of the Evidence Act.
In BP v R [2010] NSW CCA 303 at 110 Hodgson JA observed that the risk of concoction or contamination "powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect". If concoction and/or contamination may be the explanation for apparent similarities, the tendency evidence is deprived of force.
It has often been noted that the chance of concoction must be a real chance, not merely a speculative chance - see R v Colby [1999] NSW CCA 261 at para [111], referred to in BP at para [110]. The Crown bears the onus of negating any "real chance" of concoction - R v OGD [2000] NSW CCA 404 at [74] and BP at [110].
In relation to contamination a slightly different and less restrictive approach has been adopted. Evidence that may have been contaminated will be excluded under s 101 and if the risk of contamination affects material issues and "goes to the substance of the evidence" - per Hodgson JA in BP at para [123].
In this case there appears to be no dispute that the contentious evidence has probative value in that it is capable of bearing on two facts in issue: first, whether the conduct founding each charge did occur; and whether the conduct, if it did occur, was sexually motivated. There is a real issue, however, as to whether it has significant probative value."
Having set out those statements of principle, her Honour briefly summarised the way in which the Crown sought to rely upon the tendency evidence and concluded:
"The statements do not show close similarity in all aspects of the details, but they do show a consistency in interest particularly the age of the young girls, in the way in which the opportunity was used, and in his behaviour. In relation to each count the evidence of the complainants and the witnesses has significant probative value in that the evidence is capable of being an important circumstance in establishing a definite tendency on the part of the accused to engage in sexual misconduct towards, particularly, prepubescent girls.
In that regard I find that the Crown has discharged the onus of establishing that the evidence has significant probative value." (Judgment 20.9 - 21.3)
Her Honour then had no further regard to s 97, but focused on s 101 of the Act as follows:
"Turning then to the provisions of s 101, the onus is on the Crown to establish that the probative value of the tendency evidence substantially outweighs any prejudicial effect.
There is no onus on the accused in that regard, although his counsel has addressed to me extensively regarding the real possibility of concoction because two of the complainants and two proposed tendency witnesses are sisters; all of the alleged victims come from a close knit rural community where there has been considerable discussion, not only amongst the families involved, but the wider community, also including discussion prior to disclosures to others and the police; that if the evidence is admitted as tendency evidence the real risk of unfair prejudice to the accused is significant.
I accept that when assessing whether there has been a real possibility of concoction it is relevant to examine the relationship, opportunity and motive of the witnesses. I have gone to some length to set out the evidence in that regard.
The motive on the part of the four sisters is said to be a conscious or unconscious decision to bolster the complainant CM who appears to have been most adversely affected by the alleged sexual abuse upon her.
It is important to examine all of the relevant considerations, important and relatively objective considerations are the timing and the content of the complaints made by the various witnesses. The timing and content of the complaints may assist me to determine whether there is a real risk that an opportunity for concoction and/or contamination has been utilised.
As between the four sisters and their mother there is a close relationship both at the time of the alleged offences, although no contemporaneous complaint was ever made, but more importantly there has been ample opportunity for concoction.
Subsequent to the taking of statements there is no credible reason for the complainants to concoct their evidence but a close examination of the statements and the evidence at committal raises a real doubt in my mind as to the true extent of the discussions between RM and her daughters and their partners which gives rise to a suggestion of concoction.
All the various witnesses deny discussing detail, yet their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length." (Judgment 21.3 - 22.6)
By reference to the evidence, her Honour set out her conclusions as follows:
"Contamination is also a real possibility in those circumstances.
The various witnesses reluctantly admit that there has been discussion but they maintain no detail was discussed. With respect, I find that somewhat incredulous, given the content of the statements and the evidence at the committal. It may well be that the evidence of the conduct of the accused towards each of the witnesses is true, but I find there is a distinct risk that the witnesses have developed their evidence as time has gone by, subconsciously or unintentionally, through influence and discussion. That risk undermines significantly the probative value of the evidence as tendency evidence.
Further, there is, what I see as a potential significant problem in the evidence of SM and HM, and that is their initial denials that anything occurred to them - the statement of SM in which she denies anything occurring and then her change of heart and a charge now being laid in respect of her as a complainant.
There has been contact between CM and the complainant JC prior to them making their statements to police, and whilst they deny discussing detail, it is apparent that they had a close discussion sufficient for them to both state at the time they were not strong enough to go to the police. It defies credulity that there would not have been some greater in-depth discussion than is suggested by them in light of the fact that they went to the effort of meeting to discuss what the accused had allegedly done to each of them.
A substantial risk of unfair prejudice arises if the evidence is allowed as tendency evidence.
In defending these charges, if the accused wishes to raise the risk of concoction before a jury, there are matters which he would no doubt not wish to raise, such as the rumours which were rife in the communities of Barmedman, Temora and West Wyalong for years that he had sexually assaulted a number of young girls, perhaps even over and above those to be mentioned in the evidence, if it is to be adduced at the trial. The jury may well hear more evidence of a highly prejudicial nature than ever was intended to be adduced in the Crown case.
In those circumstances, it may well be that despite the strongest of directions the jury would be overwhelmed by the totality of the evidence and arrive at conclusions without proper consideration of the evidence and return verdicts of guilty based upon impression rather than the evidence in the circumstances.
I find that the risk of concoction and contamination significantly reduces the probative value of the evidence. I find that an unfairness could arise which could not be overcome in the minds of the jurors.
I find there is obvious motive for concoction and when the chronology is carefully examined and the evidence, as it has evolved over time, is examined, there is a real risk of both contamination and concoction which extends not only between the M sisters but also involves JC." (Judgment 23.3 - 24.8)
The current state of the law
As a starting point it is necessary to keep the provisions of sections 97 and 101 clearly in mind. These provisions have changed what was traditionally the common law approach to questions of tendency evidence and the effect on it of the risk of concoction and contamination.
"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. …"
Under the Dictionary to the Act, "probative value" is defined:
""Probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
"101 - Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. …"
The most comprehensive statement by this Court of the law in relation to these sections and their interaction is in Hughes v R [2015] NSWCCA 330 at [158] - [204]. In reviewing that case law, the court (Beazley P, Schmidt and Button JJ) said:
"159 There are three matters that call for consideration. The first is what the phrase in s 97, "evidence that a person has a tendency to act in a particular way or to have a particular state of mind", means. The second is the meaning of significant probative value in s 97(1)(b). As explained below, the first and second of these matters are interrelated. The third is what is involved in the judicial task required by s 101 in determining whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
160 It needs to be understood at the outset that evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is subject of the charge or charges: see Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 at [124] per Simpson J. This was explained in Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [359]:
"The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning."
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Significant probative value
162 It is appropriate to commence with an understanding of the meaning of the defined term "probative value". In Shamouil, Spigelman CJ (with whom Simpson and Adams JJ agreed) said in relation to the definition in the Evidence Act of "probative value":
"61 … the critical word in this regard is the word could in the definition of probative value as set out above, namely, 'the extent to which the evidence could rationally affect the assessment ...'. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has 'probative value', as defined, if it is capable of supporting a verdict of guilty.
62 This conclusion is reinforced by the test that evidence must 'rationally affect' the assessment. As Gaudron J emphasised in [Adam v R [2001] HCA 57; 207 CLR 96], a 'test' of 'rationality' also directs attention to capability rather than weight. (emphasis in original)."
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The meaning of "tendency"
166 The New South Wales authorities have not accepted that it is necessary, for evidence to be admissible as a "tendency" that it exhibit, to use the language of the common law relating to similar fact and propensity evidence, "underlying unity", "a modus operandi" or a "pattern of conduct": Velkoski v The Queen [2014] VSCA 121 at [171]. As Basten JA (Fullerton and R A Hulme JJ agreeing) said in Saoud v R [2014] NSWCCA 136; 87 NSWLR 481, at [40], "such language … may provide little guidance in applying the current statutory test". Rather, the admissibility of tendency evidence requires that it have "significant probative value".
…
174 Relevantly to the issue in this case, as to the relationship between similarity and significant probative value, Campbell JA stated:
"125 … there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test.
126 The Respondent submits that 'the phenomenon of young women, who are drunkenly sleeping after a social event, being the subject of sexual interference is unfortunately not so compellingly rare or exceptional as to give the evidence significant probative value'. I do not accept that tendency evidence has to be of a tendency to do an act that is 'compellingly rare or exceptional' before it can have significant probative value."
175 His Honour's approach was applied in PWD, where the accused, the music master and principal of a Catholic boarding school, was charged with 10 counts of sexual misconduct against four boys. The prosecution sought to adduce evidence of the four complainants, and a further two witnesses of sexual conduct by the accused as tendency evidence admissible on all counts. The sexual conduct described by each complainant was different, both as to the type of sexual act and the seriousness of the alleged conduct. The trial judge, in a pre-trial ruling, ordered that the counts on the indictment relating to each of the complainants be severed on the basis that, as the acts and surrounding circumstances constituting the several offences were so different, the tendency evidence lacked significant probative value (at [4]-[6]).
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178 This Court held that the evidence was admissible as tendency evidence and ordered that the counts on the indictment be tried together, stating, at [79]:
"The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour."
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182 Thus, in summary, the law in this State is that whether the Court thinks that evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence.
183 In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that "the nature of the similarities will depend very much on the circumstances of the case"."
184 The critical point made in these authorities is that tendency evidence need not show a tendency to commit acts that constitute the crime or crimes with which the accused is charged. There only needs to be a "tendency … to act in a particular way" (s 97(1)) relevant to the conduct subject of the charge. Relevance is determined by reference to the Evidence Act, s 55, that is, evidence which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
185 When regard is had to the inferential nature of tendency evidence and the requirement that it be relevant evidence, it is apparent that tendency evidence is not only directed to the particular type of conduct that constitutes an element of the charge. There is a wide range of evidence relevant to the determination of the guilt of a person of a particular crime. When the question of admissibility of tendency evidence arises the question is whether conduct said to exhibit a tendency allows, by an inferential process of reasoning, that the person was more likely to act in a particular way or have a relevant state of mind on the particular occasion that is the subject of the charge or charges: see Gardiner at [124] per Simpson J.
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Section 101 - whether probative value significantly outweighs prejudicial effect
189 Section 101(2) provides that tendency evidence cannot be used against a defendant in a criminal trial, [unless] its probative value substantially outweighs its prejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2) see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirby and Schmidt JJ agreeing) stated in DAO at [170]:
"What is involved under s 101 is quintessentially a judgment - a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called 'decision' (read judgment) under s 101 is reviewable only on House v The King principles."
190 The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74 at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:
"The question [under s 101(2)] requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228."
191 As is the case with s 97, the "no rational explanation" test as held in Pfenning v The Queen [1995] HCA 7; 182 CLR 461 no longer reflects the appropriate consideration of the matters to be balanced under s 101(2): see Ellis at [95]-[96]. As Campbell JA stated in Ford, at [64]:
"The proper carrying out of the balancing task requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is that the judge has reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [[2004] NSWCCA 427] at [47], [58]; R v RN [2005] NSWCCA 413."
192 In Sokolowskyj, the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that "[t]he concept of 'prejudicial effect' is understood in substantially the same way as 'unfair prejudice'", as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the "prejudicial effect" the evidence "may have on the defendant" (emphasis added). In DAO, Simpson J considered, at [171], that such terminology meant that:
"… it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect."
See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32].
193 This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial."
A question then arises as to where in that process of reasoning consideration should be given to evidence of a risk of concoction or contamination and when that is determined, how that evidence should be treated.
Again, guidance is provided by recent case law. While these cases set out relevant principle, each was dependent largely on its particular facts.
The first step in that process is to consider some of the observations in DSJ v R; NS v R [2012] NSWCCA 9 (Bathurst CJ, Allsop P, Whealy JA, McCellan CJ at CL and McCallum J). There Bathurst CJ said:
"8 Third, it follows from the use of the word could in the definition of significant probative value that what the Court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: cf R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [59] - [67].
9 Fourth, the matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the Court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value.
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.
11 ALLSOP P: I have read the reasons of Whealy JA. Subject to the following, I agree with his reasons. I agree with the orders proposed. I appreciate the reasons for, and importance of, the reconciliation of my reasons in DAO v R ([2011] NSWCCA 63; 278 ALR 765) with those of Simpson J in R v Zhang [2005] NSWCCA 437, 158 A Crim R 504. I accept his reconciliation of our views. It is important, as Whealy JA recognises, that there be no misunderstanding about the task of the judge. It is his or her task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do. I also agree with the additional comments of the Chief Justice.
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78 [WHEALY JA]: In this appeal the Crown has conceded that, in performing the task under s 98, a trial Judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial Judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.
79 In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial Judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole.
80 Secondly, the trial Judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial Judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt.
81 The Crown, in making its concession, however, stressed that at no stage in this process was the trial Judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial Judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained."
Although those statements of principle were concerned with s 98, it has been acknowledged on a number of occasions that the same principles apply equally to s 97 of the Act (JG v R [2014] NSWCCA 138 at [105] (per Simpson J with whom Hall and Schmidt JJ agreed)).
The issue of where in the process of reasoning the risk of concoction and contamination should be considered was dealt with directly in Jones v R [2014] NSWCCA 280 where Bellew J (Gleeson JA and Schmidt J agreeing) said:
"The third issue
76 The primary judge concluded that questions of concoction and contamination were relevant only to issues of credibility and reliability. Having reached this conclusion, the primary judge found that the decision of this Court in Shamouil prohibited any consideration being given to questions of concoction and contamination.
77 The essence of the submissions advanced by senior counsel for the applicant was that in cases decided since Shamouil (notably DSJ and XY) there had been something of a relaxation in the application of the relevant principles, such that the possibility of concoction or contamination was a relevant consideration when assessing the probative value of tendency evidence.
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85 In the present case, the primary judge found that the possibility of concoction or contamination of the evidence was a matter which went only to issues of credibility and reliability. He concluded, in effect, that in those circumstances the decision in Shamouil precluded him from having regard to any issue of credibility and reliability in an assessment of the probative value of the evidence.
86 It must be emphasised that in the course of his judgment in Shamouil, Spigelman CJ made reference to the fact that the relevant authorities were in favour of a restrictive approach to the circumstances in which issues of reliability and credibility might be taken into account in determining the probative value of evidence. He did not describe that approach as one which prohibited the consideration of those issues when determining that question. In describing the approach as restrictive, his Honour recognised that there may be cases in which issues of credibility or reliability may be relevant to that determination.
87 The effect of the conclusion reached by the primary judge in the present case was that the decision in Shamouil prohibited, under any circumstances, consideration of issues of credibility. That overstated the effect of the decision in Shamouil, although it does not alter the view I have ultimately reached as to the disposition of the present application.
88 Those parts of the judgments in DSJ and XY set out above support the conclusion that in assessing probative value of tendency evidence for the purposes of ss 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. However, they also support the conclusion that in assessing such probative value the Court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence.
89 Whether that may extend, in a given case, to allowing a Court to take into account concoction and contamination is a separate question entirely, the answer to which will depend largely upon the evidence. The evidence in DSJ and XY did not involve any issue of credibility and reliability. Accordingly, the Court was not required, in either case, to determine the question.
90 It is conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences. It may be that in such a case, those inferences are relevant to a determination of the probative value of the evidence. However, the evidence in the present case does not give rise to such inferences. For the reasons set out below, his Honour's conclusion that there was no evidence of concoction or contamination was one which was well open to him. In those circumstances, the third issue raised by senior counsel for the applicant based upon the judgments in XY and DSJ does not require determination."
The same issue was considered by the Court in DJW v R [2015] NSWCCA 164 where R A Hulme J (with whom Simpson and Bellew JJ agreed) said:
"40 It is, however, necessary to refer in some detail to a case in which judgment was delivered after the primary judge's determination. The judgment is presently restricted: Jones v R [2014] NSWCCA 280. In that case, the primary judge had held that questions of possible concoction or contamination relate to the reliability and credibility of the evidence. This was said to be so on the basis that Hoch v The Queen and post-Evidence Act cases that had applied it, notably BP v R; R v BP and FB v R, should not be followed. In accordance with cases such as R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 and R v XY the probative value of the evidence was not to be determined by an assessment of its reliability and credibility.
41 In Jones v R, Bellew J (Gleeson JA and Schmidt J agreeing) considered (at [87]) that the primary judge had gone too far in holding that R v Shamouil prohibited, under any circumstances, consideration of issues of credibility. He referred to some of the judgments in DSJ v R; NS v R and R v XY and said (at [88]) that they supported the conclusion that in assessing probative value a court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence. Whether that may extend to allowing a court to take into account concoction and contamination was said (at [89]) to be a separate question which would depend largely upon the evidence. His Honour allowed (at [90]) for the possibility that evidence of concoction and contamination may give rise to competing inferences that may be relevant to a determination of the probative value of the evidence.
42 What was said by Bellew J in Jones v R was strictly obiter; the determination of the case was based upon a finding that it was open to the primary judge to have found that there was an absence of evidence of concoction or contamination. Nevertheless, I respectfully agree with his Honour's reasoning with one relatively minor exception. That is that Simpson J in R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at [189]-[194] (with whom Barr AJ and I agreed) identified that in R v XY, only two of the five judges constituting the court accepted the relevance of there being competing inferences to the assessment of probative value for the purposes of s 137. R v Shamouil and R v XY were concerned with that provision. DSJ v R; NS v R was concerned with s 98 (coincidence evidence). In JG v R, Simpson J said (at [105]) that (on the authority of DSJ v R; NS v R) competing inferences were also potentially relevant to the assessment of probative value in relation to s 97. The distinction is that ss 97 and 98 (but not s 137), require consideration of "other evidence adduced or to be adduced by the party seeking to adduce the evidence".
43 The primary judge in the present case was in error (the decision in Jones v R was not available to her) in determining the issue of concoction or contamination quite separately from the issue of whether the evidence had significant probative value. Whilst her Honour acknowledged what was said by Basten JA in BJS v R [2011] NSWCCA 239 in criticism of BP v R; R v BP, the separate treatment by her of the concoction/contamination issue, and finding that it was determinative by itself in respect of the trials concerning RW and CW, indicated an approach which was more akin to the Hoch approach. The Crown submitted, and I respectfully agree, that this resulted in her Honour adopting an approach that was unduly favourable to the applicant.
44 in the present case I am prepared to assume that the issue of possible concoction or contamination in the present case could give rise to a competing inference in the assessment of whether there was significant probative value. I am prepared to make this assumption because the applicant's submissions on this subject must all be rejected in any event."
The issue arose again in McIntosh v R [2015] NSWCCA 184 where Basten JA (with whom Hidden and Wilson JJ agreed) said:
"35 For reasons to be explained shortly, the question of "concoction" arose only peripherally in the present case. However, the reliance by the applicant on the possibility of concoction as a basis for rejecting the admissibility of the evidence raises an issue as to the relevant legal principle being invoked. Its relevance arises from the need for the court to be satisfied that the evidence will have "significant probative value", for the purposes of s 97(1)(b) and, further, that the probative value will be sufficient to substantially outweigh any prejudicial effect, for the purposes of s 101(2).
36 In his written submissions, the applicant contended that tendency evidence is "not admissible where the prosecution has failed to exclude the reasonable possibility of concoction and/or contamination." That proposition was derived from the pre-Evidence Act case of Hoch v The Queen. In the course of oral submissions, counsel for the applicant conceded that this proposition is not consistent with the language of the Evidence Act. The statutory scheme now in force was explained by Spigelman CJ in R v Ellis.
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(iii) Assessment of probative value - concoction
42 The role that a possibility of concoction or contamination may play in the application of s 97 requires careful consideration. The first question requires the assessment of whether the proposed evidence has significant probative value. That assessment may depend on whether the evidence is accepted by the jury or not. If it is rejected in its entirety, it will have no probative value. On the other hand, if it is accepted in its entirety, it will still be necessary to assess its probative value. That exercise is separate from the assessment of its possible prejudicial effect.
43 Two questions arise in this context: first, are questions of reliability and credibility relevant in assessing probative value? Some assessment must be made both for the purposes of ss 97 and 98 and for the separate exercise required under s 101. The latter section has a similar function (though the language differs) to s 137, which requires the Court to refuse to admit prosecution evidence "if its probative value is outweighed by the danger of unfair prejudice to the defendant." The proper approach to assessing probative value for the purposes of s 137 was discussed in R v XY. In that case the Court, following R v Shamouil, held that the function of the judge in applying s 137 was to assess the capacity of the evidence to support a particular finding, but it is not its credibility and reliability, those being matters to be left to the jury if the evidence be admitted. That approach depended in part on the definition of "probative value" in the Dictionary to the Evidence Act as meaning "the extent to which the evidence could rationally affect that assessment of the probability of the existence of a fact in issue". Spigelman CJ in Shamouil noted that "[t]he focus on capability draws attention to what it is open for the tribunal of fact to conclude." Further, the words "rationally affect" were apt to refer to "capability rather than weight".
44 In the discussion which followed in XY, I considered the extent to which reliability and credibility could be involved in the exercise to be undertaken by the judge under s 137. In particular, that discussion noted that the term "credibility" can be used to refer to plausibility, objectively considered. On the other hand, it may refer to an assessment of the truthfulness of the witness. The term "reliability" can have similar nuances of meaning.
45 In adopting the reasoning in Shamouil and XY, it is appropriate to acknowledge that the exercise to be undertaken pursuant to s 97 differs in one respect from that likely to arise under s 137. It was noted in XY that the question of exclusion under s 137 was likely to arise in isolation from the full circumstances of the prosecution case. By contrast, both s 97 and s 98 require the judge to assess the probative value of the proffered evidence "either by itself or having regard to other evidence adduced or to be adduced" by the prosecution. Acknowledging the difference in statutory language, the practical differences will often be less marked. That is partly because the exercise required by s 137 will not be carried out in total ignorance of the other evidence to be called in the prosecution case. Similarly, as demonstrated by the conduct of the present case, a decision to admit evidence under ss 97, 98 and 101 is most likely to be made before the full detail of the prosecution evidence has been revealed. The primary reason for the additional language in ss 97 and 98 is that, like the general law principle relating to "similar fact evidence", tendency and coincidence evidence cannot have probative value except in a context where, for example, both the conduct of the accused and the relevant tendency to act have been identified with some particularity.
46 The concept of "concoction" suggests a deliberate fabrication of the evidence. By contrast, the term "contamination" may involve an unconscious process of suggestion being adopted.
47 Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.
48 It should be acknowledged that this conclusion is inconsistent with the approach identified in the leading Australian text, Cross on Evidence. However, that reasoning appears to have relied upon cases which predated R v Ellis in 2003. Further, the view accepted here appears to be consistent with the explanation of R v XY accepted by the author of Cross as the applicable law in this State.
49 In the present case, both Dion Chandler and CC were cross-examined in an attempt to cast doubt on the reliability of their evidence. The cross-examination was tentative, in the sense that while the possibility of conversations between the complainant and the witness were suggested, the possible content of those conversations was not explored, the topic being identified at a high level of generality. In any event, these challenges took place after the evidence had been admitted and not before. If a possibility of concoction at a level sufficient to affect the capacity of the evidence to bear significant probative value were to be identified, it would probably have been necessary to carry out a reasonably searching cross-examination on the voir dire, before admissibility was ruled on. That did not happen. Thus, the reason why the trial judge did not consider the possibility of concoction in making his rulings, was that it was neither relied upon by counsel for the accused at trial, nor was it inherently necessary for the judge to consider such matters in assessing significant probative value."
The most recent statement of principle in relation to the "possibility of contamination or concoction" is in Hughes v R:
"Risk of contamination or concoction
201 There is a question whether the possibility of concoction or contamination is even a relevant consideration in determining whether evidence has significant probative value. There are numerous cases on this question. It is necessary to refer only to BJS, which his Honour applied as well as Jones and McIntosh.
202 In BJS, to which we have already referred at [89] - [90], the Court was concerned with the tests posited in both s 97 and s 101 for the admissibility of tendency evidence. Basten JA, at [23], pointed out that the common law "no rational explanation" test was inapplicable both in respect of s 97 and s 101. His Honour at [27], also approved as "unimpeachable" a statement in FB as follows:
"110 One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence."
203 The manner in which the risk of contamination and concoction should be dealt with is addressed in the cases of Jones and McIntosh, to which we have already referred, at [94] - [97]. It may be that Basten JA's remarks in McIntosh at [47] and [49] are to a different effect than his remarks in BJS. We do not, however, see them as inconsistent with Jones, which has been substantially endorsed in DJW v R [2015] NSWCCA 164. However, it would be a distraction in this case to analyse the nuances of the various authorities on this question, given Zahra DCJ's finding at p 55, which, on our consideration of the evidence was well based, that the Crown had excluded:
"… the reasonable possibility that there has been any concoction by the complainants or tendency witnesses or there is a reasonable possibility their evidence is contaminated."
204 His Honour took the view, at p 52, that there was no reasonable evidence of contamination or concoction that would produce a risk of prejudice or would act to reduce the otherwise significant probative value of the tendency evidence. In any event, to the extent that his Honour, at p 8, applied the approach in BSJ, that approach was favourable to the applicant."
On 14 April 2016 the High Court by a majority (French CJ, Kiefel, Bell and Keane JJ) gave judgment in IMM v The Queen [2016] HCA 14. The effect of that judgment was to uphold the interpretation of s 97 of the Act in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. In that regard the plurality said:
"35 The issue here concerning a trial judge's assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute's language is the primary source, not the pre-existing common law.
…
44 The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as "significant".
…
52 Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence."
Unfortunately in the context of this case, there was no occasion for the plurality to consider the application of s 101. Some guidance, albeit slight, can be taken from the following observations:
"57 In R v XY, Basten JA spoke of reliability being taken into account, but this was in the context of an assessment of the risk of prejudice under s 137, not as part of the assessment of the probative value of the evidence, which is the other side of the "weighing" exercise. In R v Shamouil, Spigelman CJ ventured that there may be some limited circumstances in which credibility and reliability will be taken into account in determining probative value. His Honour referred in this regard to what had been said by Simpson J in R v Cook. Her Honour there suggested that evidence that was obviously "preposterous" might be withheld from the jury.
58 It would not seem to be necessary to resort to an assessment of the reliability of evidence of this quality for it to be excluded under s 137. For the reasons already given, evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance. If it were necessary, the court could also resort to the general discretion under which evidence which would cause or result in an undue waste of time may be rejected.
59 Before turning to the application of ss 97(1) and 137 to the facts in this case, there should be reference to the appellant's submission concerning the risk of joint concoction to the determination of admissibility of coincidence evidence. The premise for the appellant's submission - that it is "well-established" that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen - should not be accepted. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the "rational view ... inconsistent with the guilt of the accused" test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting."
Consideration
No issue was raised as to the application of ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912. Quite clearly, the ruling by her Honour would significantly weaken the Crown case. The contrary was not submitted. It is also clear that her Honour's decision to sever the hearing of the counts on the indictment flowed directly from her Honour's refusal to allow the Crown to rely upon the tendency evidence. The issue here is not the Crown's power to bring the appeal but whether it has established that the appeal should succeed.
I have concluded that there are a number of errors in her Honour's approach to the admissibility of the tendency evidence, such as would require the intervention of this Court. In that regard, it should be noted that no challenge was made in this Court to the contents of the tendency notice. It should also be noted that the material before her Honour comprised statements and a transcript of the evidence given in earlier committal proceedings so that when considering the evidence, this Court was in as good a position as her Honour.
As was pointed out in Hughes v R there is an issue as to whether the possibility of concoction or contamination is a relevant consideration in determining whether evidence has significant probative value. In BJS v Regina [2011] NSWCCA 239 and in Jones v R and DJW v R this was a consideration in determining significant probative value under s 97. The observations of Basten JA in McIntosh v R, however, suggest otherwise.
If (which I believe is correct) the possibility of concoction or contamination where it arises in evidence, is a relevant consideration when determining whether evidence has significant probative value under s 97, her Honour was in error in not taking that matter into account when considering whether the tendency evidence had significant probative value. Moreover, as was pointed out in DJW v R by RA Hulme J, the process followed by her Honour of determining the issue of concoction or contamination quite separately from the issue of whether the tendency evidence had significant probative value gave rise to an approach which was more akin to that in Hoch v The Queen. There RA Hulme J said:
"43 The primary judge in the present case was in error … in determining the issue of concoction or contamination quite separately from the issue of whether the evidence had significant probative value. Whilst her Honour acknowledged what was said by Basten JA in BJS v R [2011] NSWCCA 239 in criticism of BP v R; R v BP, the separate treatment by her of the concoction/contamination issue, and finding that it was determinative by itself in respect of the trials concerning RW and CW, indicated an approach which was more akin to the Hoch approach. The Crown submitted, and I respectfully agree, that this resulted in her Honour adopting an approach that was unduly favourable to the applicant."
Another error in her Honour's judgment was her approach to s 101 of the Act in which she implicitly, if not expressly, applied the Hoch test and a "no rational view" test when considering the possibility of concoction or contamination. The error in this approach was made clear by the plurality in IMM v The Queen at [59] (see [96] hereof).
At 19 her Honour said:
"The position at common law, it has been said that tendency evidence, that is "reasonably capable of explanation on the basis of concoction" will lack the necessary probative value. When considering whether concoction is a reasonable possibility it is relevant to examine the relationship, opportunity and motive of the witnesses - Hoch v R (1988) 165 CLR 222 at 297. That formulation has been adopted in relation to s 101 of the Evidence Act.
In BP v R [2010] NSW CCA 303 at 110 Hodgson JA observed that the risk of concoction or contamination "powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect". If concoction and/or contamination may be the explanation for apparent similarities, the tendency evidence is deprived of force.
It has often been noted that the chance of concoction must be a real chance, not merely a speculative chance - see R v Colby [1999] NSW CCA 261 at para [111], referred to in BP at para [110]. The Crown bears the onus of negating any "real chance" of concoction - R v OGD [2000] NSW CCA 404 at 74 and BP at 110."
Such an approach was specifically disapproved in McIntosh where Basten JA said:
"36 In his written submissions, the applicant contended that tendency evidence is "not admissible where the prosecution has failed to exclude the reasonable possibility of concoction and/or contamination." That proposition was derived from the pre-Evidence Act case of Hoch v The Queen. In the course of oral submissions, counsel for the applicant conceded that this proposition is not consistent with the language of the Evidence Act. The statutory scheme now in force was explained by Spigelman CJ in R v Ellis."
Her Honour's reasoning on this issue appears to have relied upon cases which predated Regina v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94] - [96]. Her Honour was clearly in error in adopting the Hoch approach as applied in BP v R; R v BP, (BJS v Regina per Basten JA at [24], [26], RS Hulme J at [42]; Jones v R at [75]). It follows that her Honour applied the incorrect test for the admission of tendency evidence under the Act.
Her Honour also erred in making assessments of credibility and reliability when determining the admissibility of the tendency evidence. This is clear from IMM v The Queen at [52]. Statements of principle to this effect are set out in DSJ v R. When carrying out that exercise "it is no part of the court's task to engage in a fact finding exercise to determine the reliability or credibility of the evidence or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value (Bathurst CJ at [9] and "It is his or her [the judge] task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do" (Allsop P at [11]).
This is clearly what her Honour did when concluding that:
"… a close examination of the statements and the evidence at committal raises a real doubt in my mind as to the true extent of the discussions between RM and her daughters and their partners which gives rise to a suggestion of concoction".
"… their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length" (Judgment 22.5)
"… but they maintain no detail was discussed. With respect I find that somewhat incredulous given the content of the statements and the evidence at committal. I find there is a distinct risk that the witnesses have developed their evidence as time has gone by, subconsciously or unintentionally through influence and discussion."
"… it is apparent that they had a close discussion sufficient for them to both state at the time that they were not strong enough to go to the police. It defies credulity that there would not have been some greater in depth discussion than is suggested by them in light of the fact that they went to the effort of meeting to discuss what the accused had allegedly done to each of them." (Judgment 23)
In making those findings which were pivotal to her Honour's conclusion that the tendency evidence should be rejected, her Honour did precisely that which the case law enjoined her not to do, i.e. she made an assessment of the credibility and reliability of the evidence of the witnesses. As was made clear in Jones v R at [88]:
"88 Those parts of the judgments in DSJ and XY set out above support the conclusion that in assessing probative value of tendency evidence for the purposes of ss 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. However, they also support the conclusion that in assessing such probative value the Court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence."
The above errors are such that her Honour's conclusion that the tendency evidence should not be admitted cannot stand. That, of course, does not end the matter. It is necessary for this Court to examine the evidence, apply the correct test and reach its own conclusion.
The question of what is the correct test under s 101 is not without difficulty. The concluding sentence in the observation from Jones v R just set out provides some guidance. This was clarified in DJW v R where RA Hulme J said:
"41 In Jones v R, Bellew J (Gleeson JA and Schmidt J agreeing) considered (at [87]) that the primary judge had gone too far in holding that R v Shamouil prohibited, under any circumstances, consideration of issues of credibility. He referred to some of the judgments in DSJ v R; NS v R and R v XY and said (at [88]) that they supported the conclusion that in assessing probative value a court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence. Whether that may extend to allowing a court to take into account concoction and contamination was said (at [89]) to be a separate question which would depend largely upon the evidence. His Honour allowed (at [90]) for the possibility that evidence of concoction and contamination may give rise to competing inferences that may be relevant to a determination of the probative value of the evidence."
The reference to "competing inferences" is, of course, a reference to the statements of principle in DSJ v R.
In McIntosh Basten JA postulated the test somewhat differently:
"44 In the discussion which followed in XY, I considered the extent to which reliability and credibility could be involved in the exercise to be undertaken by the judge under s 137. In particular, that discussion noted that the term "credibility" can be used to refer to plausibility, objectively considered. On the other hand, it may refer to an assessment of the truthfulness of the witness. The term "reliability" can have similar nuances of meaning.
…
47 Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted."
Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value. Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible. In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.
There is no doubt that the two sister complainants and the two sister tendency witnesses spoke to each other about various aspects of their interaction with the respondent. Consistently, however, they denied speaking to each other as a group. Such discussions as they had, occurred on an individual basis. The exception to that was the evidence of the sisters that they had spoken about things that the respondent did in front of them but "none of us have ever spoken about the things that he did to us". This was a reference to occasions when all four sisters were present, i.e. the penis between the legs occasions and the touching in the farm ute. The cross-examination at the committal hearing was of a general kind and did not extend to a testing of what was actually said in any of those one-on-one conversations between the sisters.
JC only spoke to one of the sisters, CM. That conversation occurred when JC had visited CM at her home at West Wyalong. Both JC and CM denied that they had exchanged any detail about what the respondent had done to them. When one looks at their statements and evidence, that is clearly correct. The evidence of JC is quantitatively and qualitatively different to that of CM. The offences against JC are different and more serious. Their evidence to the effect that they did not feel strong enough to go to the police, does not indicate that they were talking about the detail of what the respondent had done to them, but rather what (if anything) they should do about it. It should be noted that JC did not speak to any of the other sisters.
The reliability and credit findings made by her Honour were contrary to the evidence of the sisters and JC and would clearly be contested issues in any trial. In those circumstances, I do not see how it could be said on the material before her Honour, that there was an inherent implausibility in what those witnesses said at the committal. I do not see how the evidence of the sisters and JC could give rise to a competing inference sufficient to deprive their evidence as to tendency of its significant probative value.
To the extent that the common law factors of relationship, opportunity and motive remain relevant, they do not give rise to any inherent implausibility or powerful competing inference in this matter. Just because four of the tendency witnesses are sisters and as such had the opportunity of discussing these matters with each other, is not enough. This is particularly so when they have denied any detailed discussions as to what the respondent did to each of them and they were not cross-examined as to the detail of those conversations. The evidence of motive is thin and does not apply to JC. In any event the accusations against the respondent had been made well before 2009 when CM made her suicide attempt.
I have particular difficulty with her Honour's finding that "All the various witnesses denied discussing details yet their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length". The only unusual detail which I can identify is the respondent's conduct after a shower of positioning his penis behind his legs. Since the evidence of all of the sisters is that they were present together on at least one occasion when this occurred and that it was a regular occurrence, it is not surprising that the description of what the respondent did in that regard was similar. That criticism could not apply to JC.
Her Honour's finding (at 24.1) that if the tendency evidence were allowed to be given, the respondent's capacity to properly defend himself might be impeded because evidence might emerge of the rumours which were extant in the local community, does not withstand scrutiny. The rumours to which reference was made in the evidence related to the four sisters and JC. This was particularly so in relation to the physical assault by JC's former boyfriend on the respondent. It is difficult to see how the respondent would be unfairly disadvantaged in that circumstance since these were the very matters which he was required to meet in the Crown case. There is no suggestion anywhere in the evidence that there were any rumours concerning LL, which is not surprising since the alleged offences against her occurred well before these offences.
If anything, the evidence suggested that contamination and concoction were unlikely. This can be inferred from the evidence of JM that her sister SM had told her about an incident with the respondent which occurred at the holiday home at Malua Bay. Despite SM having told her about it, JM was still unable to remember the incident and did not say or suggest that she had in some fashion recovered that memory. This is the very antithesis of concoction and contamination.
In the course of the hearing in this Court, Hall J put forward a scenario which is to be contrasted with the evidence in this matter and which could give rise to inherent implausibility or a competing scenario which might substantially erode the significant probative value of any tendency evidence (Appeal transcript 5.33). The scenario put forward by Hall J was that of an allegation of sexual misconduct by a former teacher against a group of former pupils. In that scenario the former pupils, now adults, formed a victims' group and used to meet on a regular basis to discuss what had happened to each of them with this teacher.
In such a scenario there would be no issue as to the occurrence of the meetings, or as to what was discussed at the meetings. Depending on the level of detail discussed and the actual evidence, that may well be a scenario where a denial of contamination would be regarded as inherently implausible or where the very facts themselves might give rise to a competing inference which would substantially erode the significant probative value of any tendency evidence. The contrast between that scenario and the issues raised in this matter is stark.
On my reading of the evidence of the four sisters and JC I am satisfied, for the purposes of s 97 and s 101 of the Act, that it has significant probative value. I am satisfied that significant probative value has not been eroded by inherent implausibility nor is there a competing inference sufficient to deprive the tendency evidence of its significant probative value. There is certainly material in the evidence which would enable cross-examination at trial as to the possibility of contamination or concoction. Those, however, are matters for the jury not for a trial judge ruling as to the admissibility of evidence at the commencement of the trial. This is particularly so when such a ruling of necessity would involve the making of findings as to the credibility and reliability of that evidence.
Section 101(2) of the Act provides that tendency evidence cannot be used against a defendant in a criminal trial unless its probative value substantially outweighs its prejudicial effect on the defendant. In carrying out that balancing exercise, I am satisfied that the probative value of the tendency evidence does substantially outweigh any prejudicial effect on the respondent. Just because four of the tendency witnesses are sisters, had the opportunity to talk about the actions of the respondent and did in fact talk about them, does not create unfairness of the type envisaged by the section. This is particularly so when that evidence can be tested at trial.
It also needs to be kept in mind when considering s 101 that in a case such as this clear directions by the trial judge would substantially remove any potential unfairness. The factual scenario in this trial is relatively straightforward and such directions as would be required to be made by the trial judge would not be complex and would be readily understood by the jury.
It has long been recognised that appropriate trial directions need to be provided so that a jury is properly instructed in the evaluation required of evidence in the nature of tendency evidence where it is contended at trial that the evidence is affected by contamination. This issue was addressed in The Queen v Glennon (No 2) [2001] VSCA 17. Although the court was there addressing the concept of similar fact evidence, the observations are of equal importance in relation to a Crown case in which tendency evidence is relied upon. In Glennon, Callaway JA (with whose reasons Winneke P and Ormiston JA agreed) observed:
"155 'Collusion' does not have a special meaning which includes unconscious influence or innocent infection. The point is rather that, just as collusion deprives disputed similar fact evidence of its probative value, the same may be true of unconscious influence or innocent infection from media publicity. The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies."
Although in that case the question of unconscious influence or contamination was argued on the basis of media publicity, the approach to be taken with respect to jury directions applies equally to a case of contamination arising in other circumstances. Callaway JA in Glennon (No 2), referred to the following observations from R v Best [1998] 102 A Crim R 56 at [64] per Callaway JA (with whom Phillips CJ agreed):
"In addition, quite apart from any such comment, there is a direction that the judge should give at trial where collusion is raised as an issue. The jury should be told, with the full authority of the judge's office, that they must be satisfied that there was no collusion before they use disputed similar fact evidence as part of their reasoning. (The same applies to any other factor, such as unconscious influence or contamination by media publicity, that would affect the argument which gives such evidence its probative force.) Cases on the standard of proof of circumstantial evidence are referred to later in this judgment, but it will usually be wise to tell the jury that they must be so satisfied beyond reasonable doubt. That accords with the practice in England (see R v H [1995] 2 App Cas 596 at 602B) and is obviously conducive to justice.
The observations there made as to trial directions would, in my opinion, apply equally to an issue of contamination as raised in the present proceedings.
The orders which I propose are:
1. That the Crown appeal, pursuant to ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 be allowed.
2. That the orders of English DCJ of 18 March 2015 be quashed.
3. That the six counts on the indictment against the respondent be heard together.
4. That the Crown be at liberty to adduce as tendency evidence in that trial the evidence of JM, CM, SM, HM and JC.
HALL J: I agree with Hoeben CJ at CL.
BUTTON J: I agree with the judgment of Hoeben CJ at CL.
As for his Honour's discussion of the role of asserted concoction or contamination in assessing probative value with regard to tendency or coincidence evidence, I have reflected upon whether the decision in IMM v The Queen [2016] HCA 14 supersedes the jurisprudence that has developed in this Court since the handing down of the judgments in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 in 2006 and R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 in 2013.
On the one hand, if it is now clear that trial judges are not to engage in an assessment of credibility or reliability in assessing probative value, that could suggest that there is no role for consideration of alternative inferences about asserted concoction or contamination. That is because it could be said that the possibility of concoction is merely an aspect of credibility, and the possibility of contamination is merely an aspect of reliability.
On the other hand, the plurality in the High Court of Australia did not expressly disapprove the analysis that has been provided by this Court over the last 10 years. To the contrary, by way of footnote 45 within [59] of the plurality judgment, their Honours referred with approval to what had been said by Basten JA (with the agreement of Hidden and Wilson JJ on this point) in one of the most significant of those cases, McIntosh v R [2015] NSWCCA 184 at [42]-[48], and did not demur from what his Honour said in the rest of that judgment.
As well as that, the plurality expressly reserved the question of the role, if any, that asserted concoction could play with regard to the test contained in s 101 of the Act: at [59].
Finally, the plurality spoke of the possibility of evidence, even when taken at its highest, possessing low probative value (the "identification on a foggy night" example): at [50]. That approach seemingly admits of taking into account, at least, factors that go to the reliability of evidence.
In the circumstances, unless and until the High Court speaks more determinatively and adversely with regard to the jurisprudence developed by this Court, I am content to regard it as remaining applicable to the task of trial judges.
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Decision last updated: 09 February 2018