R v Gregory-Roberts

Jurisdiction under s 5F(3A)

1. The respondent's case was that properly construed, s 5F(3A) only permits appellate intervention in respect of rulings or decisions as to particular evidence the exclusion of which "substantially weakens the Crown case". Where more than one piece of evidence is the subject of a decision or ruling, the cumulative effect of the exclusions cannot be taken into account.
2. That is not a natural reading of s 5F(3A), which provides: "(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."
3. There is no obvious reason for reading the word 'evidence' in the singular. That the right of appeal under subs (3A) is limited to a decision or ruling on the admissibility of evidence which "eliminates or substantially weakens the prosecution's case", also does not support the construction for which the respondent contended. Consistently with s 8 of the Interpretation Act 1987 (NSW), the word should be read as including one or more pieces of evidence dealt with in the decision or ruling.
4. The section is concerned with the effect of a decision or ruling to exclude evidence, on the Crown case. It is a matter for the Crown to determine the evidence to be led, for an accused to determine what evidence is objected to and the trial judge to rule on those objections. If objections are upheld, the Crown is given a limited right to appeal, that is, in the event that the decision or ruling eliminates or substantially weakens the prosecution case. The section thus plainly comprehends both decisions and rulings which either excludes evidence, or which limits the use to which evidence can be put.
5. In this case the respondent objected to the admission of the complaint evidence of three witnesses, as well as the admission of the evidence of the pretext conversations, each of which, if accepted by the jury, would support the evidence of the complainant.
6. His Honour excluded all of the evidence to which objection was taken. What now arises on appeal is whether that decision has substantially weakened the Crown case. That does not depend on a separate assessment of each piece of evidence which supported the complainant's evidence, to which objection was taken.
7. That approach to s 5(3A) is consistent with that taken in R v Nguyen [2010] NSWCCA 97 at [4] that "when there are a number of rulings on evidence which are sought to be challenged together in an application such as this, the court can consider the combined effect of those rulings and is not restricted to considering the effect of each individual ruling. In those circumstances, it seems to me that the appropriate course is first to look at each individual ruling to determine whether there is error, and then to consider whether the cumulative effect of those rulings is to eliminate or substantially weaken the prosecution's case." A similar approach was taken in R v Edwards [2015] NSWCCA 24 at [75] - [76].
8. In this case, so approached, I am satisfied that the effect of the challenged decision is to substantially weaken the Crown case.
9. As discussed in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 that requires an assessment of the Crown case. Further, as there discussed at [40], the issue must be approached on the assumption that the evidence in question is accepted by the jury.
10. Both complaint evidence and admissions can, undoubtedly, be important in cases of alleged sexual offending by an adult, in private, against a child, many years ago. Evidence of past complaint about matters the subject of such charges, if accepted by the jury, will support both the truthfulness and the reliability and credibility of the alleged victim. Such complaint has long been accepted to be important in cases of alleged sexual offending (see R v BD (1997) 94 A Crim R 131 at 139.) An alleged offender's admissions, if accepted, can corroborate aspects of the complainant's evidence and provide a basis for a submission as to consciousness of guilt on the accused's part.
11. Here the Crown case depends in large part on the evidence of the complainant. Given the nature of the evidence, which I will discuss below, I am satisfied that the rejection of both the complaint evidence and the evidence of the pretext conversations has substantially weakened the Crown case. Accordingly its right of appeal is enlivened.

The appeal must be upheld

1. I am also satisfied that there was error in the approach taken by the trial judge to the issues which he was called on to resolve under s 55 and s 66 of the Evidence Act and, as a result, error both of law and in the House sense, in the conclusions which he reached as to the admissibility of the disputed evidence, has been established.
2. Accordingly, the appeal must be upheld.

The complaint evidence

1. The Crown case is that the respondent first treated the complainant for short-sightedness as an 11 year old. After the second appointment he went to her home and spoke to her mother. Her parents, Greek immigrants, were at that time divorcing. Her mother then had the care of the complainant and the six other children of the marriage, one of whom had Down Syndrome. Another suffered an unspecified mental disability.
2. The respondent is alleged to have offered the complainant's mother assistance in speaking to the complainant about puberty. The mother accepted the offer, considering that to be a normal matter for a doctor to assist with. Shortly afterwards the complainant began attending the respondent's rooms, on her own, after school.
3. The initial advice which the respondent is alleged to have given the complainant related to physical and emotional changes involved in puberty. The advice is alleged to have progressed to sexual reproduction, oral sex and masturbation, pursued by the respondent in order to groom the complainant, to obtain her compliance with the conduct involved in the alleged offences.
4. It is also alleged that the offending ceased after the respondent bought the complainant gifts for her 12th birthday, while he was overseas; that she mentioned something to her sister, who became jealous; and that her mother became suspicious and then stopped contact between the complainant and the respondent. An allegation that there had also been inappropriate conduct towards the complainant's sister is not being pursued by the Director, although the respondent raised this matter in the evidence which he gave on the voir dire.
5. In 2009, some 28 years after the alleged offending, the complainant made complaint about the respondent to police. She has since made several statements. In her March 2009 statement she mentioned having spoken to a proposed witness, [MG], about the alleged offending. The complainant there says "I remembered speaking with a girlfriend [MG], about what happened. She was in my form at school. I don't remember how old I was when I spoke to her about it". She makes no mention of having made other complaints.
6. MG says in her March 2009 statement that she was at high school with the complainant; that they had classes together; and by year 9, in 1984 they had become best friends. That year, outside the maths room, she and the complainant were discussing another girl and gossip that she had been the subject of domestic violence by her father. The complainant then said "Her father is molesting her". MG asked 'How would you know that by just looking at her?" and the complainant replied, using words to the effect that "I was molested by my optometrist." She also recalled the complainant telling her that she did not wish anyone else to find out and that MG should not tell her sister.
7. RB said in her May 2009 statement that she was a school friend of the complainant in high school; that they became close and spent lunch breaks together; and that in 1986, while they were in year 11 together, and as his Honour summarised her evidence: "At the time my mother was madly in love with a local doctor and was having relationship difficulties as the doctor was married. My mother way telling [CB] and I about her relationship problems with the doctor at which stage [CB] turned around and said she had been in a relationship with a doctor. The way in which she described it was as though it was a current love affair or relationship at the time. I remember [CB] saying she had been seeing her eye doctor. I don't know his name, only that he was an optometrist. [CB] told me that she had started seeing this doctor in year 7, which would have been 1982 when she would have been around 12 or 13 years old. [CB] told me that the relationship continued for about two years. [CB] told me that she met the doctor after her mother had made an appointment. After her first appointment, [CB] told me that the doctor started seeing her outside consultations and that he would give her gifts, jewellery, cards and notes. At that stage my mother was trying to clarify how old the doctor was and who the doctor was. [CB] became very protective of his identity because he was married at the time. I then started to question [CB] telling her that it wasn't right. [CB] became more defensive. [CB] was describing her relationship to me, telling me that it was a loving relationship. I asked her if she was sleeping with him and she said; 'No. We're not sleeping together, he just loves to touch me and he loves my boobs'. I asked her to clarify what she meant by touching, [CB] then pointed to her body and indicated that he touched her all over. I remember asking her, 'Are you touching him and is he masturbating you?' She said, 'Yes'. I remember being very clear in my mind that this doctor was masturbating her and that [CB] was masturbating the doctor. I asked her where she was seeing him and she told me it was mainly in his surgery, but also outside of his surgery. I tried to get [CB] to tell her mother or anyone that this was not a normal healthy relationship and that she should tell her mother."
8. In her January 2013 statement, SS said that she attended high school with the complainant, but their friendship did not deepen until years 11 and 12, in 1986 - 1987. His Honour summarised her evidence (at p 10) to be that: "In or around 1986 I remember going to visit [CB] at her house. I routinely spent Saturday and Sunday afternoons at her house. We would act as teenagers, eating, listening to music, watching videos and talking about boys. It was during one of those afternoons that [CB] mentioned to me that a doctor she saw for her eyes had been having sex with her or was touching her sexually during her doctor's appointments. [CB] may have told me his name, but I cannot recall it. [CB] wore glasses and had really bad eyesight I remember she was often seeing an ophthalmologist or other eye specialist. I assumed this was the doctor she was referencing. I remember [CB] saying he was old, although I have no idea what his real age was. I was absolutely shocked by just the fact that it was a doctor, as I trusted doctors to help us".

The s 66 application

1. There is no issue that his Honour was correct in finding that the complaint to MG was made after an interval of 2 years or more, depending on the time in the school year of the last of the alleged offences and that the other two complaints were made some 4 years after the alleged offences.
2. It was whether the representations which the complainant made to each of the three witnesses was, at the time they were made, "fresh" in her memory over which the parties joined issue.
3. His Honour concluded that the representations were not then fresh, noting that it was only the complaint which she made to MG, to which the complainant was expected to refer in her evidence. That, his Honour accepted, was not fatal under s 66, if the requirements of the section were otherwise met, referring to what had been decided in XY (2010).
4. In his second judgment his Honour concluded at pp 15 - 16 that: "I find that the interaction of several factors leads to the conclusion that the statements which each of the three proposed complaint witnesses would purport to recount supports a conclusion that in each case the evidence fails to achieve the status of being fresh in the memory when and if made. In that regard I have not focussed solely on the passage of time, although in each case a considerable passage of time is one of the factors for consideration. In the first statement in time, although in general terms it may be capable of some confirmation by the complainant's evidence that she had spoken to [MG], "about what happened", the terms of that account neither match the terms of [MG's] account nor give comfort that, if it was the same conversation being referred to, that there is the basis for testing whether its terms indicate freshness in the memory. In that regard the matter is distinguishable from the kinds of features that rendered the accounts given in XY vivid and therefore more susceptible to an assessment that even the passage of time would have left the particular acts seared into the memory that was being recounted to [MG]. The two subsequent statements in 1986 to [RB] and [SS] meet other obstacles, additional to that of a further passage of time. In neither instance is there evidence of the complainant, either as to the fact making[sic] of the individual statements to the two witnesses or as to any circumstance of content which would aid in the assessment of whether the account was indeed fresh in the memory, notwithstanding the passage of time. Those considerations are weighed in light of the absence of evidence from the complainant about the statements, although, as I have noted that a complainant does not give evidence of having made a complaint is not a necessary bar to the admission of complaint evidence that otherwise satisfies s.66 and is otherwise admissible. Finding and determination as to "fresh in the memory" - On the basis of the above considerations I find that each of the three instances of evidence sought to be led as evidence of complaint should be excluded on the basis of a failure to satisfy the threshold test of being fresh in the memory of the complainant when and if made by the complainant."

The proper construction of s 66

1. The section provides: "66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606."
2. Contrary to the respondent's submission, it is apparent that his Honour erred in his approach to the exercise required by s 66 of the Evidence Act, in resolving the question of the admissibility of the complaint evidence.
3. Section 66 provides an exception to the hearsay rule (s 59). It required his Honour to determine whether the representations which it is alleged the complainant made to the three witnesses was, at the time that they were each made, fresh in her memory. That required all of the evidence which touched on this question to be considered, including the evidence as to each of the matters specified in s 66(2A)(a)-(c).
4. The conclusion arrived at could not rest on the passage of time before complaint was made. That was but one of the matters which had to be taken into account.
5. In considering the evidence, it also had to be borne in mind that s 66 does not require that a complainant remembers having made a complaint to someone else. By its express terms s 66(2) contemplates circumstances where an offence is fresh in the complainant's mind at the time that a complaint is made, but that the complainant does not later remember having made that complaint. In such an event, so long as the evidence establishes that at the time of making the complaint, the representations were fresh in the complainant's memory, evidence of the representations can be called from the person to whom the complaint was made.
6. What s 66 also does not require is that evidence be led from a complainant as to "the discrete issue" of the state of his or her memory at the time of making a complaint, although such evidence, if available, could be led, given the provisions made in s 66(2A). As discussed in XY (2010) at [78] - [79]: "78 … s 66(2A) is an interpretative section. It tells the reader how the section is to be interpreted. It makes clear that, in determining whether the occurrence of the asserted fact was "fresh in the memory" of the person, the court may take into account "all matters that it considers are relevant to the question". Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered. 79 For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase "fresh in the memory" no longer is to be taken as an indication that it means "recent" or "immediate". The expression "fresh in the memory" is now to be interpreted more widely than did the High Court in Graham's case. No longer is the "core meaning" of the phrase to be interpreted as "essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation". That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account "the nature of the event concerned". In Graham's case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered."
7. That conclusion as to the construction of s 66(2A) rested on a consideration of its terms, as well as the relevant legislative history, which included the amendment of the section following the High Court's judgment in Graham, and the consideration given to s 66 by the Australian Law Reform Commission in its 2004 review of the operation of the Evidence Act. That history is reflected in the note to s 66A(2A) itself, which specifies that it was enacted "as a response to the decision of the High Court in Graham v The Queen". In that case the view taken was that "fresh" in its context in s 66, meant "recent" or "immediate". Since the enactment of s 66(2A), it no longer has that meaning.
8. As discussed in XY (2010) at [72] - [74], the Commission: "72 … concluded that "understanding of memory processes has progressed significantly from that which formed the basis of the current law and the law should reflect that knowledge (Report 102 [8.112]). 73 The Commission found that there was strong support to amend s 66 to clarify that "freshness" should be determined by a wide range of factors and should not be confined to time. The Commission noted that while focusing primarily on the lapse of time between an event and disclosure of a memory about that event might be justified in relation to memories of unremarkable events, "the distinct and complex nature of emotionally arousing crime means that the nature of the event concerned should be considered in deciding whether memory is fresh at the relevant time". 74 The Commission concluded its enquiry into s 66 by stating: - "The nature of the events concerned and the age and health of the witness are only examples of a wide variety of considerations which may be relevant to the assessment of what is "fresh in the memory". The examples given are not intended to constrain that assessment. On the other hand, it is thought that the proposed amendments makes it sufficiently clear the ALRC's intention in the previous Evidence Inquiry that the quality of "freshness" will not be confined to the time which elapses between the occurrence of an event and the making of a representation about the event". [8.122]"
9. It follows that his Honour's consideration of whether, at the time of her complaints to the three witnesses, the representations were "fresh" in her memory, had to include the unusual circumstances of this alleged offending itself, as well as the time at which the representations were made by the complainant and her age and health at the time, if there was evidence of such matters. That exercise also could not properly rest on a comparison to the circumstances which arose for consideration in XY (2010), which his Honour considered to be distinguishable from the offending alleged in this case. It was the state of this complainant's memory which had to be determined.

What his Honour failed to consider

1. What is alleged is that the complainant, an 11 year old girl, had initially been taken to consult the respondent, an ophthalmologist, for her short-sightedness. The Crown's case is that after his approach to her mother, she came to regularly attend his rooms after school, alone, in order to receive instructions about puberty. It was then that she was initially groomed by the respondent, before the alleged offences were committed.
2. The respondent's instructions are alleged to have begun with an explanation of the physical and emotional changes associated with puberty; that they eventually developed to the point where the respondent gave the complainant physical instruction as to how to masturbate; as well as instruction as to what orgasm involved and whether she had yet achieved it, using the techniques he had taught her; the respondent eventually using his own finger to stimulate her clitoris, while kissing her on the mouth; and later, licking her clitoris; and posing the complainant, while she was dressed only in her underpants, in sexually provocative poses, while he photographed her.
3. These were all, unquestionably, most unusual experiences for any 11 year old child to have when seeing an ophthalmologist, after school, in his rooms. Further light is shed on the nature of those experiences for the complainant, by the evidence that, at the time, she came to consider the respondent to have been her boyfriend. Contrary to the respondent's submissions, all of this evidence is capable of informing a conclusion that these were memorable, complex and emotionally arousing experiences for the complainant.
4. This, when considered together with the complainant's youth and her naivety in sexual terms when she was aged only 11 years, made it highly likely that the memory of these events would endure in her memory for years to come. That is consistent with these events being still fresh in her memory at the time that she made the representations in issue to the three proposed witnesses, when only some two and four years had passed since the events were alleged to have occurred.
5. Consistent with the events being such as to have long remained in the complainant's memory is also that, some 28 years afterwards, she was able to give police a detailed account of the events which formed the basis of the charges then laid. That she also then remembered speaking to MG, but did not mention having made complaint to her other two school friends, does not suggest that the representations which on their evidence she made to each of them, some four years after the alleged events, were not then fresh in her memory.
6. Given the provision made in s 66(2), that she makes no mention of speaking to the other two witnesses about these matters in her 2009 statement is, of but limited significance in determining whether the representations the three witnesses say she made to each of them, were fresh in her memory at the time she made them.
7. Further, the fact that what the three witnesses remembered the complainant having told them, many years earlier, was consistent with what she said in her statements to police about the alleged offending many years later, also supports the conclusion that those representations were fresh in her memory when she spoke to the witnesses.
8. In MG's case what she remembered being told was that the complainant had been molested by an "optometrist", rather than an ophthalmologist. In the circumstances that difference is of little moment. In RB's case amongst the things that she remembered was that the complainant said that she had been touched and masturbated by a doctor. In SS's case, that the complainant had said that she had been touched sexually and masturbated by a doctor during appointments.
9. That decades later, the language used by the complainant and the witnesses in their statements and that the details of what she and they remembered her telling them differed in certain respects, is not surprising. That is not a proper basis for concluding that at the time that the representations were made to each of the three witnesses, they were not fresh in the complainant's memory. Nor is the fact that the complaint witnesses were not given the details of the offences which the complainant later provided in the statements which she made to police.
10. As discussed in XY (2010), at [90] "ambiguity or apparent inconsistency between such accounts" is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate such evidence, including any matter of alleged inconsistency between statements to police and the terms of the representations earlier made to the witnesses and also to determine the weight they are to be given. In this case, where the trial will be conducted so many years after the event, in undertaking its task the jury will undoubtedly have to consider not only the reliability of the evidence of the complainant, but also that of the three witnesses.

The complaint evidence is admissible under s 66

1. In the result, it must be accepted that his Honour erred both in his approach to the exercise he was called on to undertake under s 66 and in concluding that at the time that she made her complaints to the three witnesses, these unusual, emotionally disturbing events, which remained in her memory decades later, were not fresh in the complainant's memory some two and four years after they are alleged to have occurred.
2. The evidence is admissible under s66.

Exclusion under s 135 and s 137

1. His Honour's reasons for exclusion of the evidence under s 135 and s 137, it was argued by the respondent, could only be disturbed on this appeal if House v R error was established. This may not be accepted, given that the evidence was excluded under s 66.
2. Consistent with what his Honour said in his second judgment as to this aspect of his decision being but an indication of how he would exercise the discretions given by these provisions, he explained only in the case of two of the three witnesses, how, if he was wrong in the conclusions which he reached under s 66, that he would exercise these powers. In doing so, he did not meet the obligation to give reasons for the decision, particularly as to how he had undertaken the required statutory balancing exercise required by s 137. That exercise does not appear to have been undertaken.
3. In case he was in error in his conclusions under s 66, his Honour turned to consider "other grounds of challenge", observing (at p 17): "I have excluded the proposed evidence in each of the three conversations as failing to meet the threshold requirement of being fresh in the memory but consider it appropriate to indicate my disposition in regard to other grounds of challenge, in the event that I be in error as to the threshold "fresh in the memory'' issue in one or more of the impugned conversations."
4. He concluded in relation to the evidence of RB, that it was of such real and unfair prejudice, that it had to be excluded under both s 135 and s 137. That conclusion rested on the observation (at pp 17 - 18) that: "I have previously noted the disparity between the anticipated evidence of the complainant and that contained in the conversation of which [RB] would give evidence. That also occurs in the context of the complainant not being susceptible to testing as to her memory of what was said. [RB] gives an account of the complainant speaking of a "relationship with a doctor" that continued over two years of sexual activity of a kind not mentioned by the complainant in her intended evidence, "he just love to touch me and he loves to touch my boobs" and her agreement when asked "are you touching him and is he masturbating you", also extends the scope of the complaint into the area of tendency evidence going beyond any matter indicated by the Crown in the case statement."
5. His Honour also considered that "putatively curative" directions would be inadequate and that if the evidence was admitted conditionally, on the basis that it did not go to establish the truth of the complaints, it was highly likely to result in confusion.
6. As to SS's evidence, his Honour took the view that it should be excluded under s 135 because of the absence of evidence from the complainant of having made such complaint and because of the general and qualified nature of the complaint. His Honour also said (at pp 18 - 19): "I note that the asserted account is also not given in the first person. Whilst that may be understandable and is allowable in some instances where a witness can be invited to give an account to the best of their recollection, there is in the substance of the account an absence of clarity as to what it was that the complainant told [SS]. As the complainant does not recall any such conversation I would regard it as being of such reduced weight as to call for its exclusion, particularly as to being evidence going to the truth of the allegations."
7. His Honour did not deal with the exclusion of the evidence as to the complaint made to MG.
8. Sections 135 and 137 provide: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. … 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
9. As has oft been discussed, while s 135 gives a discretion, s 137 requires a balancing of the probative value of the evidence against the danger of unfair prejudice to the accused. If that process results in a conclusion that its probative value is outweighed by the danger of unfair prejudice, the Court has no discretion and must refuse to admit the evidence.
10. The complaint evidence is sought to be tendered for the purpose of proving the acts charged. There is no question that under s 55 of the Evidence Act, the complaint evidence is relevant, going as it does to the assessment of the probability of the existence of facts in issue. Under s 66, it will be received as evidence of the facts in issue and will also be relevant to an assessment of the complainant's credibility and reliability (see IMM v The Queen [2016] HCA 14 at [71] - [72]).
11. In assessing the probative value of the complaint evidence, for the purpose of either s 135 or s 137, account cannot be taken of its honesty or reliability. Whether it is accepted by the jury will depend on matters such as the time when complaint was made, what was said and to whom. At this point, however, it must be assessed on the assumption that it is accepted (see IMM at [52] - [58]).
12. If accepted, the complaint evidence is clearly of real probative value, given that it establishes complaint about conduct which became the subject of the charges, made to school friends, many years before the complainant approached the police.
13. The risks to which the respondent pointed as establishing unfair prejudice, was that the evidence would be misused by the jury as context or tendency evidence, or evidence of general sexual misconduct or guilty passion. That was said to have particular arisen in the case of RB and SS.
14. The reason for excluding the evidence was said by his Honour to be expected disparity between the complainant's accounts and RB's evidence. That, however, goes to the respective reliability of their evidence, a matter for the jury, not to the question of unfair prejudice.
15. In relation to SS, his Honour considered the ambiguity of her statement to be a basis for its exclusion. Again, that was a matter for the jury. His Honour also took into account that the complainant gave no evidence of making complaint to SS, but that was of limited significance, given the provisions of s 66 earlier discussed.
16. His Honour did not deal with MG's evidence, which was that when discussing another school child, outside a classroom, the complainant said that she had been molested. While that was a succinct summary of what is now alleged against the respondent, it accords with what the complainant says happened to her.
17. Legitimate use of relevant evidence provides no ground for the exercise of the discretion under s 135, or the duty under s 137 (see R v Yates [2002] NSWCCA 520 at [252]).
18. As the Crown submitted, clear directions to the jury are capable of dealing with the risk that the jury would use the complaint evidence for impermissible purposes such as illegitimate forms of reasoning such as context or propensity reasoning, as the respondent contended arose (see SKA v Regina [2012] NSWCCA 205 at [205]). That possibility cannot in this case provide a foundation for the conclusion that the danger of the evidence causing unfair prejudice to the respondent outweighed its probative value, or that it would otherwise be unfairly prejudicial.
19. There was also an issue as to whether the inferences to be drawn from the evidence as to the conversations on which the Crown seeks to rely is a matter for the jury, or can be considered by a trial judge, when called upon to exercise a discretion under s 137.
20. In R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 where by majority (Basten JA, Hoeben CJ at CL and Simpson J, Blanch J not expressly deciding, Price J contra) the Court decided that trial judges in New South Wales should continue to disregard questions of credibility, reliability and weight in dealing with the admission of evidence challenged under s 137. However, Hoeben CJ at CL and Blanch J considered that the existence of "competing inferences" (or alternative interpretations) was relevant to the assessment of probative value.
21. The respondent relied on the approach of Blanch J who observed that: "205 In my view the contention by the Crown that the comments made by the respondent in the conversations under review amount to a confession is open to question. There are other interpretations open including that he was not aware of the real identity of the complainant. 206 The trial judge correctly noted the respondent could not be expected to recognise the voice of the complainant after nine years and when she had grown up in the intervening time. She noted that the background noise in the call and the respondent's early responses indicated a degree of confusion at the respondent's end of the call. She also noted the lack of clarity in what is said to be a confession. She also noted his positive denial when he understood her claim related to a time when she was eight years old. 207 Those matters are all relevant for the judge to consider when assessing the capacity of the evidence to establish the fact in issue. What must be done then is to weigh that capacity against the unfair prejudice. In this case when I do that I find the capacity of the evidence to prove guilt is compromised because of the competing inferences open when interpreting the conversations and the unfair prejudice is highly significant. It is evidence that may inflame the jury or divert the jurors from their task. Furthermore, such prejudice could not be corrected by directions to the jury and it outweighs the probative value of the evidence."
22. By way of contrast, Simpson J took the view: "153 I accept, as I have above, that different interpretations may be placed upon the respondent's answer to the complainant. I accept that an argument is available to him (whether or not he gives evidence) that it has not been conclusively or even persuasively shown that, when he gave that answer, he knew that the person to whom he was speaking was the complainant. (I accept also that there are persuasive arguments to the contrary.) I accept that the answer cannot be construed as a confession to any of the individual allegations made by the complainant that have been translated into the individual counts on the indictment. I accept that the admission of the evidence might put the respondent in a position of needing to make a forensic decision about giving evidence or not giving evidence. 154 I do not accept that this last is a relevant consideration. That a person might, by reason of the admission of contested evidence, consider himself or herself forced to give evidence in a criminal trial is not, ordinarily, a relevant consideration in the determination of the admissibility of the evidence. It cannot be said that evidence is unfairly prejudicial merely because it is of such potency or force that it calls for an answer by the accused person. The objective of Crown evidence in a criminal trial is to call for an answer, if an answer is available. 155 True it is, that in Cook, I held that s 137 ought to be exercised in favour of that appellant, in circumstances in which the contested evidence (which was evidence of flight from the police, tendered as showing that he acted out of a consciousness of guilt) could have forced him to give an explanation. That was not because that appellant considered himself forced into the witness box, and was therefore denied his right to silence. It was because the only explanation he could give in respect of the flight evidence would have exposed him as having a history of the very kind of offence with which he stood charged. It was nothing to do with the abrogation of the right to silence."
23. Consistently with that approach, in R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238, Simpson J observed at [196] - [198]: "196 I am unable to accept that the existence of "competing inferences" available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence. 197 Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice. 198 In my opinion, the decision to exclude the evidence based on s 137 of the Evidence Act resulted from an incorrect approach to the task required by the section. The starting point of the assessment is to assume that the inferences most favourable to the Crown will be drawn, and to assess the potential probative value on that basis, without regard to the availability of any competing inference."
24. Burton was not referred to in IMM, but XY (2013) was. By majority the construction of s 137 in XY (2012) was preferred over that in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507.
25. The issue which fell to be determined in IMM was whether, in determining the "probative value" of the evidence for the purposes of each of ss 97(1)(b) and 137, the trial judge ought not to have proceeded upon the assumption that the jury would accept the evidence in question. The majority relevantly held that: "38 By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. 39 The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. ... … 47 In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue."
26. That approach is consistent with that discussed by Simpson J in both XY (2013) and Burton.
27. It follows that in undertaking the assessment of probative value under s 137, the evidence having to be taken at its highest, requires an assumption that it is accepted by the jury on the basis for which the Crown contends. That there are other inferences which might be drawn by the jury, is not relevant to the s 137 exercise.
28. In all of those circumstances, the evidence cannot be excluded under either s 135 or s 137. Its prejudicial effect is not unfair and it does not outweigh its probative value.

The pretext conversations

1. Under authority of a warrant on 24 June 2010 the complainant telephoned the respondent. After identifying herself the conversation continued: "[ACCUSED]: Hello [COMPLAINANT]: Hello can I please speak to John Roberts thanks [ACCUSED]: Speaking [COMPLAINANT]: Hi, I'm someone you knew a long time ago, um this is Dr John Gregory Roberts, yeah? [ACCUSED]: Yes. [COMPLAINANT]: It's [CB] here. [ACCUSED]: [CB] … [CB] [COMPLAINANT]: Yes, I knew you when you worked at Bondi Junction plaza, about thirty years ago. Maybe a bit less than that. [ACCUSED]: yeah. [COMPLAINANT]: Do you remember me. [ACCUSED]: I remember the name, yeah. [COMPLAINANT]: yes, I saw you for about a year, maybe longer. I was seeing you every couple of weeks. Do you remember that. [ACCUSED]: Um, I do. [COMPLAINANT]: You do remember that? [ACCUSED]: yes. [COMPLAINANT]: I need to um, I've come to a point in my life where I need to just get some clarity on what went on there at your offices, and I feel, I want to know why. [ACCUSED]: yeah, well I can understand that. [COMPLAINANT]: Can you? [ACCUSED]: Mmmm Hmmm. [COMPLAINANT]: Can you understand that you weren't meant to be doing those things to me when I was that age? [ACCUSED]: I think, what I should do is get your record out and talk to you from my rooms. [COMPLAINANT]: I um, I want to talk about it now [ACCUSED]: I can't [COMPLAINANT]: You can't talk about this now. [ACCUSED]: No. [COMPLAINANT]: When can you talk about it? [ACCUSED]: Uh, tomorrow [COMPLAINANT]: Tomorrow? [ACCUSED]: yeah. [COMPLAINANT]: What time? [ACCUSED]: Well I don't have the, my booking book in front of me but about um.. [COMPLAINANT]: I can't ring you [ACCUSED]: one thirty [COMPLAINANT]: One thirty, I work, I can't call you at one thirty can we make it in the evening please? [ACCUSED]: Right at the moment I am on call uh and... [COMPLAINANT]: It can be next week. I just need to speak to you about this. [ACCUSED]: Can you give me your number? [COMPLAINANT]: No, I am not giving you my details. [ACCUSED]: Ok. The problem is I just don't know when I'm going to be at the hospital, and when I am not going to be at the hospital. That's the only difficulty right at the moment because I am just on call. [COMPLAINANT]: Should I just keep trying you at home. [ACCUSED]: Well I don't think that is the best place. [COMPLAINANT]: No, well I need to speak to you and the only way I can do it is if you give me a time to call. [ACCUSED]: Well the end of my day tomorrow would work. [COMPLAINANT]: The end of your day, what time is that? [ACCUSED]: Uh five, five fifteen. [COMPLAINANT]: Five fifteen, can I call you, five fifteen, I don't. Can it be six o'clock. [ACCUSED]: Five....thirty. [COMPLAINANT]: Can it be Six O'clock please. [ACCUSED]: You could try then. I'll give you my office number. [COMPLAINANT]: What's your office number. [ACCUSED]: 9389 XXXX [COMPLAINANT]: 9389 XXXX I'll ring you then. [ACCUSED]: okay."
2. The Crown also relied on subsequent calls when the complainant spoke to the respondent's wife and his secretary, who provided her with information on his authority, to which it is not presently necessary to turn. The Crown case was that the content of the four conversations revealed a consciousness of guilt, which supported an interpretation that what was said amounted to admissions.
3. In issue between the parties was the relevance of these conversations, it only being evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, which is admissible under s 55(1). That section also provides at s 55(2): "(2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence."
4. The respondent's case was that what he had said was not capable of constituting admissions; that what had been said was inherently ambiguous and equivocal; and that he had not responded to any specific allegations or offences with which he had been charged, or indeed any offence, sexual or otherwise.
5. His Honour concluded that the pretext conversations were not admissible under s 55, because (at p 31): "There is an important distinction between evidence which is ambiguous and as such is prima facie admissible and material that is simply not relevant. The former, as the Crown properly notes, may give rise to competing inferences which upon proper direction it is for the tribunal of fact to assess. The latter is material that has failed to attain that modest level of capacity described s.55 of the Evidence Act whereby, if it were accepted it could have a rational effect (directly or Indirectly), upon the assessment of the probability of the existence of a fact in issue in the present trial. In the present instance I find that level of capacity has not been attained by the pretext conversation and I uphold the challenge as to relevance."
6. On appeal the question of whether his Honour was correct in coming to this conclusion was in issue.

What is an admission?

1. In resolving whether his Honour erred, it is necessary to begin with a consideration of the word "admission" which is defined in the Dictionary to the Evidence Act to mean "a previous representation" that is: "(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding."
2. "Representation" is there defined to include: "(a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated."
3. The respondent conceded that a previous representation can amount to an admission, if it relates either to a particular count, or is a general admission (see Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168 and R v Centraco [2005] NSWCCA 11). He contended, however, that he had not made any admissions at all.
4. It was also conceded that where evidence relied on by the Crown was open to more than one interpretation, or inference, it was not inadmissible, even if one interpretation or inference was consistent with innocence (see R v Ali [2015] NSWCCA 72). The respondent contended, however, that his Honour was correct in concluding that what he had said in the pretext conversation lacked the capacity, on any interpretation, to amount to an admission.

Were admissions made by the respondent?

1. There is certainly no reference in the conversation to any sexual misconduct but, nevertheless, what the respondent said is, on its face, adverse to his interests in the outcome of these proceedings, given certain of his representations.
2. While it is not in issue that the complainant was, when she was a child, the respondent's patient, in resolving the question over which the parties joined issue, as to whether those representations amounted to admissions, it could not be overlooked that after some 28 years, when he received a telephone call from the complainant "out of the blue", as he submitted, the respondent remembered the complainant. That was so even though she had been only 11 years old when he came to treat her for short sightedness. The respondent's submission, that in those circumstances it would be "almost impossible for a jury to infer or assume that there was a meeting of minds during that conversation", could not be accepted.
3. It is in that context, that what the respondent said must be considered. The respondents first representation was: "[COMPLAINANT]: I need to um, I've come to a point in my life where I need to just get some clarity on what went on there at your offices, and I feel, I want to know why. [ACCUSED]: yeah, well I can understand that."
4. Given that the respondent remembered the complainant, contrary to his case, it must be accepted that one interpretation which is, undoubtedly, open is that his understanding was adverse to his interests in these proceedings. The conversation continued: "[COMPLAINANT]: Can you? [ACCUSED]: Mmmm Hmmm. [COMPLAINANT]: Can you understand that you weren't meant to be doing those things to me when I was that age? [ACCUSED]: I think, what I should do is get your record out and talk to you from my rooms. [COMPLAINANT]: I um, I want to talk about it now [ACCUSED]: I can't [COMPLAINANT]: You can't talk about this now. [ACCUSED]: No. [COMPLAINANT]: When can you talk about it? [ACCUSED]: Uh, tomorrow"
5. When the respondent said that he should get the complainant's record and talk to her from his rooms, he was no doubt seeking to end the conversation. His conduct, however, in light of the memory he had of the complainant and the understanding he had revealed as to her need to know what had gone on at his offices, in not denying that he had done things to the complainant in his rooms, which he ought not to have done, given her then age, is, also capable of being found by the jury to be a representation adverse to his interests in these proceedings and hence an admission.
6. That being so, it follows that his Honour erred in excluding the evidence under s 55 as not having the capacity, if it were accepted, of having a rational effect (directly or indirectly), upon the assessment of the probability of the existence of a fact in issue in these proceedings.

Sections 135 and 137

1. Again, his Honour turned to consider other matters argued, if his conclusion under s 55 was wrong.
2. The respondent gave evidence on the voir dire. His Honour described that evidence at pp 24 - 29 to be: "The accused gave evidence on the voir dire. He said that he has been practicing as a specialist ophthalmologist for some 35 years, now being 74 years of age. In 1988 or 1989, following upon a call from a person identifying himself as a police officer, a meeting was arranged to discuss matters related to [CB's] family. Given the accused's prior knowledge of extreme domestic discord of long standing within [CB's] family, he assumed that the conversation would concern such matters as an apprehended violence order responding to violent behaviour of which he had been told and relating to [Mr B]. Two officers attended the accused's rooms and referred him to highlighted parts of what was said to be a statutory declaration in the possession of the officers. The accused was not given free access to the document beyond the highlighted portions to which his attention was drawn nor was he told which member of [CB's] family was the author of the document. The two matters referred to in the document were an allegation, which the accused believed referred to a date in 1983, that he had followed an unspecified member of the family and at the time that he had "a strange look" in his eye. A further allegation was recalled by the accused has(sic) having been shown to him in a highlighted passage which said that he had "masturbated [CB] outside her pants". The accused said that he "quite profoundly" denied both allegations. The two officers took notes which they undertook to send him. This was never done, but the accused was assured that the police intended to take no action having told him that the allegations were "so bizarre" that they "wouldn't stand up in court". After the visit from police in 1988 or 1989, the accused said he did not consider it necessary to obtain legal advice. He did tell his wife, to whom he had been married since 1974, of the police visit. There was no further mention of the matter until October 1991. At that time, the accused received a letter hand delivered and received by his receptionist. That letter, which is exhibit 2, purports to be from a person identifying themselves as a legal representative of VB, the sister of the complainant. The letter reads as follows: "I am contacting you in regard to your relations with [CB's] family, in particular those relations which occurred from the year 1981 to the year 1983. My legal representative has advised myself to contact you privately about this matter on behalf of all family members concerned, seeking quiet compensation as this would be beneficial for both parties. If you are in agreement with this alternative, you can reach myself at XXX XXXX between standard office hours this following Wednesday, the 16th October 1991. If there is no response during this time, I will inform my legal counsel to proceed with the proper authorities, as was my first intention." The document bears a signature above the printed name, VB and is counter signed with an unidentifiable and otherwise unidentified signature. Alongside each signature is the date 15th October 1991. The letter concludes with a note that the document was only to reach the hands of the addressee after a receipt had been signed and dated in the presence of the courier. It also concludes with the printed date, Tuesday 15 October 1991. The accused said in evidence that having received the letter he had a telephone call from VB some two weeks later, it was very hostile and admonished her for not responding as requested in the letter. At some time, either after receiving the letter or after this first of two phone calls, the accused said that he sought advice from a [Mr V], an employee of his medical insurer. He did not know whether [Mr V] at the time was a legal advisor or medical practitioner. The accused disclosed the contents of the letter and was told not to communicate with its author. The accused said he may have been told more, but did not recall what, if anything further was said by [Mr V]. The accused said that he received a further call from [VB], the content of which he does not recall, beyond the fact that he regarded her as paranoid and terminated any further communication. It was in the context of the last contact with a member of [CB's] family nearly 9 years before that the accused received a telephone call on the 24th June 2010 from a person identifying herself as [CB]. The accused agreed that the content of the conversation was accurately recorded in the transcript. When asked by his counsel what he believed the complainant was referring to when she said, "I need to - I've come to a point in my life where I need to just get some clarity on what went on there at your officers(sic) and feel I want to know why and as to why he had said, 'Well, so, yeah, I can understand that". The accused replied in the following terms: "The overwhelming memory I had of her was the horrendous emotional trauma that she and her family were suffering and which was mentioned to me and spoken about on almost every appointment that I saw her. This had huge ramifications because she was confined to home, she wasn't allowed out. Her mother came to seem(sic) me quite separately on occasions referring to the lack of help she gained from authorities and I thought when [CB] asked me about trying to get a sense of her life, this violence which I referred to before as coming from her father, was to do with this experience." The accused was then asked as to his understanding of what it was the complainant was referring to when she said, "Can you understand that you weren't meant to be doing those things to me when I was that age". He replied, "If became clear to me that she wanted to discuss similar allegations that were in a similar vain to previous false allegations that I had received and, so as a result of that, and knowing the advice I had been given, previously by my medical defence organisation, I attempted to reduce the conversation and I had straight away in mind the need to contact my defence organisation and, so, I wanted to terminate the conversation". The accused clarified that the similar false allegations to which he referred were those contained in the portions of the statutory declaration to which he had been referred and the matters arising in the letter from the complainant's sister in October 1991. It is common ground that certain allegations, not before the court, as a matter in anyway relevant to the present proceedings were made against the accused by the complainant's sister. At some time, as to which the court is not informed, the authorities determined that there should be no further proceedings in relation to any such compliant. The accused was cross-examined at some length as to the detail of the account that he gave. I note that neither the matter of the visits by police officers, nor the receipt of the letter, purportedly from VB, was the subject of any direct challenge as to the fact of those matters. The accused confirmed that as of the time of the call from [CB] on the 24th June 2010 he was not aware of any further complaint against him by any member of [CB's] family other than those in relation to which he had been informed in 1988 or 1989 on the occasion of the visit by police. In relation to the present matter, the accused, whilst not recalling whether the first contact by investigating police was on the 20th January 2011, did not dispute that or that he had telephone contact initiated by Detective Senior Constable Appleby in relation to serious allegations made by a former patient. The accused agreed that he had responded "if this is a patient whose name starts with 'B' who has called a couple of times in the last six months, I have already spoken to about that". The accused agreed that at the time he received the call from [CB] he had a recollection of roughly the period of time over which she was a patient and of the frequency of consultations with her. He also had a recollection of what was described in the Crown Prosecutor's question as "[CB's] family dynamics at that time". The accused said that he had conversations on that matter with the complainant's mother and that those conversations took place in his rooms, on the phone and "by my notes that she sent me". The accused was further asked in cross-examination about the statement of [CB], "I've come to the point where I need to just get some clarity on what went on there are your offices", which upon my suggestion was completed with the words "and I want to know why". The Crown Prosecutor asked (17/11/15 page 47 at [20-30]), "When she says "At your offices", that can't have been lost on you at the time you heard those words said, were they? The accused answered, "I think I picked up the first part of the question. Get clarity in my life, and that's the first thing that came to my mind is what I just previously described". The accused's position is that once it became clear that [CB] was raising a matter in some way connected to allegations previously raised he sought to conclude the telephone conversation. That point was effectively raised, as I understand his evidence and submissions made In relation to it at the point immediately after the complainant said, "Can you understand that you weren't meant to be doing those things to me when I was that age" and he responded by saying, "I think what I should do is get your record out and talk to you from my rooms". It is evident that the accused had in fact determined from that point to end the conversation, and in all probability seek advice, which, on his evidence, he did. The remaining portions of the conversation consist of a-to-and-fro about suitable times for further discussion. Although the accused denies the particular terms of the conversations with his wife and by his receptionist were as directed under his authority, those conversations, it must be said, are consistent with the accused's stated view that in light of the prior approaches, first by the police some 20 years before and by [VB] some 18 years before, he regarded it as appropriate to avoid any further conversation."
3. His Honour concluded at pp 33 - 34: "If the contrary be found it is submitted that the conversations should be excluded as inherently and unfairly prejudicial. In that regard the submission on behalf of the accused is that he is indeed in a situation analogous to that of the accused in Cook, in that admission of the four pretext conversations would deny him a fair trial. As I understand the arguments put on behalf of the accused, they are to the effect that he would face equally untenable options: in either offering no effective explanation when one was indeed available. Or of revealing those explanations, which are[sic] expose a history of unsustained allegations against him, none of which specifically relate to the complainant but all of which give rise to an irremediable level of suspicion as to what "relations with [CB's] family" might have entailed, apart from counselling sessions in his rooms. Upon careful consideration of these matters I have concluded that the evidence is not capable of sustaining proof of a fact in issue, as required for all relevant evidence. If I be wrong in that view I would reject the evidence, as mandated firstly pursuant to s.137 on a finding I make that the probative value is outweighed by the danger of unfair prejudice to the accused. In the event that I[sic] in error as to that level of certainty required for s.137 to apply, I would exclude the evidence in the exercise of discretion pursuant to s.135 (a), that being on the basis that the probative value of the evidence would be substantially outweighed by a substantial danger that the evidence would be unfairly prejudicial to the accused. In light of those findings which would exclude the core conversation of 24 June 2010 there is no requirement to indicate my view as to the admissibility of the three succeeding conversations or whether they may be admitted as made under authority."
4. Contrary to these conclusions, it must be accepted that the respondent's admissions, taken at their highest, have considerable probative value. His evidence on the voir dire is not relevant to that assessment. Their actual probative value will depend on the interpretation which the jury places on what was said and what inferences are drawn from the admissions and any other evidence which might cast light on them. The assessment of their probative value at this stage, cannot proceed on the basis of the more benign available interpretations of what was said, for which the respondent contended.

R v Cook

1. There it was explained at [37] that the balancing exercise required by s 137 cannot be undertaken without consideration of any explanation an accused person might seek to advance, to nullify the adverse inferences that would otherwise arise from admissions. It is to this assessment that the respondent's evidence is thus relevant.
2. The respondent's case was that his circumstances were akin to those dealt with in R v Cook, where evidence of flight was sought to be relied on by the Crown as consciousness of guilt. That evidence was rejected, because it was concluded that the probative value of the evidence was outweighed by its prejudice.
3. The admission of the disputed evidence in R v Cook was found to put the accused in the position of explaining his conduct in such a manner as would disclose the commission of other offences. It was concluded at [48] that unfair prejudice would thus flow from admission of evidence of flight as revealing a consciousness of guilt, because the admission of the evidence put the appellant in "the awkward position" of having to not only disclose previous criminal offences, but offences with a disturbingly close relationship to the offence with which he was charged. In the result it was found that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence.
4. This is a different case.
5. Here it is not evidence of the commission of other offences which the respondent would disclose, if he was to advance the explanation he gave on the voir dire for what he said in the pretext conversations. What would be revealed would otherwise be inadmissible against him, his explanation resting as it does firstly, on past police investigations into his dealings with the complainant, which did not lead to any charges being laid against him and secondly, past allegations of unspecified offending by the complainant's sister, which have also never been pursued against him.
6. That his explanations would be inadmissible, unless raised by him, is not of itself a basis on which a finding of unfair prejudice can rest. In R v Taranto [1999] NSWCCA 396, for example, the respondent had been tried on charges of wounding with intent to murder, and, alternatively, malicious wounding with intent to do grievous bodily harm. Evidence that after the commission of the offence, one of the appellants had stayed away from home for some time, and when police attended at his home he ran away and hid inside the roof space of a garage was tendered as demonstrating consciousness of guilt. The explanation given was that the appellant faced unrelated charges of goods in custody, possession of a prohibited drug and possession of an unlicensed pistol, but still the evidence of his seeking to avoid apprehension was admitted. On appeal that was found not to have involved error.
7. Here the respondent's explanation does not raise problems of the kind dealt with in Cook, namely not only other offending, but "offences with a disturbingly close relationship to the offence with which he was charged". A finding that the respondent is in a similar position to the accused in Cook is thus not open. Nor is the conclusion that the probative value of the respondent's admissions is outweighed by its prejudicial effect.
8. The respondent's explanation does not nullify the adverse inferences that might otherwise arise from his admissions. In so far as his explanation depends on past allegations of offending against the complainant, it is capable of being viewed as supporting both the complainant's evidence and the interpretation of the conversations for which the Crown contends, because it is consistent with the complainant having made past complaint about his offending. In so far as the explanation rests on past allegations of unspecified conduct by the complainant's sister, while prejudicial in a way that directions might not address, it was not open to find that such prejudice outweighs the probative value of the pretext conversations.
9. It must, accordingly, be concluded that the pretext conversations do have real probative value and that while their receipt would be prejudicial, as would any other evidence which tends to establish that the respondent committed the offences charged, it would not be unfairly prejudicial. Nor is their probative value outweighed by the danger of unfair prejudice to the respondent.

Conclusion

1. In those circumstances, I consider that that both the complaint evidence and the evidence of the pretext conversations is admissible and that, accordingly, justice requires that the appeal be upheld.

Orders

1. For those reasons, I would order that: 1. The appeal be upheld. 2. The rulings of 18 and 24 November 2015 be set aside. 3. Adjudge that the complaint evidence of the complainant and the three witnesses, MG, RB and SS, and the evidence of the four pretext telephone conversations are admissible. 4. Otherwise remit the matter to Craigie SC DCJ for further hearing.

Amendments 14 September 2020 - coversheet - publication restriction "Order prohibiting publication of anything that would identify the respondent until such time as jury proceedings have concluded." lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2020