R v Hagarty

Court of Criminal Appeal (NSW)|2004-03-10|Before: Simpson J, Sperling J, Bergin J

CITATION : R v Hagarty [2004] NSWCCA 89 HEARING DATE(S) : 10 March 2004 JUDGMENT DATE : 2 April 2004

JUDGMENT OF : Simpson J at 1; Sperling J at 2; Bergin J at 45 DECISION : Appeal dismissed.

CATCHWORDS : Criminal Law - appeal against conviction - sexual intercourse with a child - use of relationship evidence otherwise than as evidence of tendency - standard of proof - adequacy of directions LEGISLATION CITED : Criminal Appeal Rules, r4 Evidence Act 1995 B (1992) 175 CLR 599 Beserick (1993) 30 NSWLR 510 CASES CITED : Gipp (1998) 194 CLR 106 MM (2000) 112 A Crim R 519 Pfennig (1995) 182 CLR 461 Wickham (Court of Criminal Appeal, 17 December 1991, unreported) PARTIES : Regina Kenneth James Hagarty FILE NUMBER(S) : CCA 60417/03 COUNSEL : Ms D Woodburne for the Crown Mr S Odgers SC for the Appellant SOLICITORS : Director of Public Prosecutions Baird & Associates Solicitors & Attorneys for the Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0703 FILE NUMBER(S) : LOWER COURT Murrell DCJ JUDICIAL OFFICER :

18 - IN THE COURT OF CRIMINAL APPEAL 60417/03

Simpson J Sperling J Bergin J

Friday, 2 April 2004 Regina v Kenneth James Hagarty Judgment 1 Simpson J: I agree with Sperling J. 2 Sperling J: Following a trial before Murrell DCJ and a jury, the appellant was convicted on five counts of sexual intercourse with a child under 10 years of age, four counts of sexual intercourse with a child aged between 10 and 16 years and two counts of indecent assault. 3 The appellant appeals against conviction. 4 In passages from the summing up and the transcript quoted in this judgment I have substituted "the complainant" for the name of the child and "the father" for the name of her father.

The evidence 5 The principal evidence on which the appellant was convicted was that of the complainant, who was 14 years of age at the time of the trial, and that of her father. The critical evidence was, however, that of the complainant herself. This was made clear by the trial judge in the following passages in the summing up to the jury. 18 In this trial, in the case of each charge, the Crown case depends upon you accepting in substance the evidence of one person, that is the complainant... Therefore you should scrutinise all of the evidence of the complainant on each charge very carefully. Before determining whether you are prepared to accept her evidence on the critical matters about which she has given evidence, you should examine the complainant's evidence in the context of the accused's evidence and the other evidence in the case. 19 Apart from the complainant's evidence, the rest of the Crown evidence in the trial is peripheral and is there to assist you to resolve the fundamental question of whether, in relation to each alleged incident, you are prepared to accept the evidence of [the complainant] in relation to the critical aspects of that evidence. 6 In the course of her evidence, the complainant gave evidence, in general terms, of a course of sexual conduct on the part of the appellant towards her which were not themselves the subject of any one or more of the charges. I will refer to that evidence as "relationship evidence".

Addresses 7 In his address to the jury, the Crown Prosecutor said only the following concerning the relationship evidence (Tr 17.3.03, pp 2-3): Overall if you look at what she says it is of a history of sexual molestation over a long period of time. Shorn of its detail and in summary that's what it is that was the proposition that [the father] says he put to the accused at that meeting and which he says the accused admitted. It is not an admission to any particular charge but of the nature of the relationship that had existed an inappropriate sexual relationship. Similarly the phone call in which the accused, according to [the father], offered to pay for the counselling which was being undertaken by [the complainant] at that time I suggest again is an admission of that relationship, a consciousness of guilt, if you like, of that relationship. 8 In his address to the jury, the appellant's counsel said only the following concerning the relationship evidence (Tr 18.3.03 p 9): Taken at its highest for the prosecution, that is accepting every word of [the father]'s version and rejecting every word of Kenneth Hagarty's, what is the value, what is the significance of this evidence? It is not a confession to the events of any count in the indictment. It is placed before you by the prosecution as one strand of what the prosecution contend for as evidence of the relationship, the context of the relationship between [the complainant] and Mr Hagarty.

Directions 9 In her summing up, her Honour gave the following directions to the jury concerning the relationship evidence given by the complainant. 32 I am now giving you directions about this evidence of general sexual incidents which are not the subject matter of a particular charge. If you accept the complainant's evidence that these other incidents did occur, then you may see them as providing a background to the alleged offences, as showing the nature of the relationship between the accused and the complainant at the time of the alleged offences, and as placing the complainant's allegations in a realistic context in that the alleged offences were not isolated incidents which occurred out of the blue. 33 However, even if there was a background of other incidents of sexual impropriety occurring, that background cannot be relied on as tending to establish that any of the particular offences in fact occurred. You cannot use the evidence as tending to show that, at the time of the alleged offences, the accused had wrongful sexual feelings towards the complainant and, therefore, it is more likely that he committed the offences in question. 34 The evidence of general sexual impropriety is just background which puts the alleged offences into context in that, if you accept that this background of sexual impropriety existed, the alleged offences did not arise out of the blue. 10 The evidence of the complainant's father was summarised in the summing up as follows: 35 I now intend to talk to you about the way in which you should approach the evidence of [the father] concerning alleged admissions made by the accused to him. Now, in this case … the complainant's father gave evidence that in early August 1994 he confronted the accused with the allegation that the accused had been sexually molesting [the complainant] for some time and the accused said "Yes, Bob, that's true." He also said, "I don't know what got into me, I'm truly sorry.", and he offered to help. The accused, according to [the father], then asked [the father] whether he intended to report the matter to police and [the father] says that some days later there was an offer to pay for counselling for [the complainant]. 11 Her Honour directed the jury concerning the limited use they could make of that evidence. 38 If, after considering the warning which I have given, you do accept the evidence of [the father] and find that the statements were made by the accused, then you could treat them as admissions by the accused that he engaged in sexual molestation of [the complainant] for some time. The accusation was put to [the complainant] in very general terms and nothing said by the accused could be interpreted as an admission that a particular act of sexual misconduct occurred. You could treat the admissions as corroborating or backing up [the complainant]'s evidence that there was an improper sexual relationship between herself and the accused, i.e. that there was a background of incidents of sexual impropriety. However, you could not use the accused's admissions as tending to establish that any particular offence actually occurred because the admission was made to an accusation put in such general terms. You could not use the accused's admissions as tending to show that it was more likely that he committed particular offences.

Further direction sought 12 In the course of the summing up, counsel for the appellant sought a direction that the standard of proof applicable to the relationship evidence was proof beyond reasonable doubt. Her Honour declined to give that direction.

The ground of appeal 13 The notice of appeal specifies a single ground of appeal. The trial judge erred in directing the jury that, if they accepted the evidence that the appellant had made admissions, they could use the evidence to prove that the appellant had an improper sexual relationship with the complainant. 14 There was no application to amend or supplement that ground of appeal.

The law relating to relationship evidence 15 In B (1992) 175 CLR 599 Deane J said (at 610): The evidence that the applicant had committed acts of sexual indecency upon his infant daughter in the past was, in my view, admissible against him on his trial for similar acts of sexual indecency which he had allegedly committed upon the same daughter while she was still under sixteen years. Once that evidence was adduced, the jury was entitled to use it against, as well as for, the applicant. It was, on any approach, the key to an assessment of the relationship between the applicant and the daughter and, as such, constituted part of the essential background against which both the daughter's and the applicant's evidence of the alleged offences necessarily fell to be evaluated (See, eg, Plomp v The Queen (1963), 110 CLR 234, at p 242). Particularly in a context where the applicant was accused of unnatural acts (See, eg, Mutual Life Insurance Co of New York v Moss (1906), 4 CLR 311, at p 317; Plomp v The Queen (1963), 110 CLR, at p 249), it was capable of being seen by the jury as important evidence of motive, namely, sexual gratification. The jury was also entitled to accept it as providing corroboration of the daughter's evidence: it supported the truth of the allegation which was implicit in the whole of the daughter's evidence, namely, that the applicant entertained an unnatural passion for her. 16 Plomp, referred to in the foregoing passage, so far as is relevant, was a decision relating to motive, particularly at the page references specified by Deane J in the foregoing passage. 17 Wickham (Court of Criminal Appeal, 17 December 1991, unreported) involved two charges of carnal knowledge of the appellant's daughter. Gleeson CJ (with whom Carruthers and Mathews JJ agreed) reviewed the facts as follows: The alleged acts of carnal knowledge the subject of the first trial took place in 1983 and 1984, when the complainant was aged fourteen and fifteen years respectively. As is not uncommon in cases such as this, the complainant did not suggest that these were two isolated instances but, on the contrary, asserted that the appellant had intercourse with her regularly from early 1983 until August 1984. There was, moreover, a much more extensive history of sexual contact between the appellant and the complainant which, she said, began when she was about four years of age and continued thereafter.

Later in the judgment, Gleeson CJ said in relation to evidence of conduct other than the offences charged - In many cases it will go beyond merely demonstrating a propensity or disposition to commit crime, or crime of a particular kind. As in the present case, such evidence will often be relevant, and tend to make more credible the evidence of the complainant, in at least two ways. (Questions of fact and degree may be involved, and these two ways are not intended to be exhaustive). First, the evidence may establish a sexual relationship which makes the complainant's allegations more likely to be true. … … … The relationship in question need not be completely mutual, and the emotions or tendencies involved need not be shared for there to be a relevant relationship. The expression "guilty passion" is sometimes used in relation to an accused. It conveys an idea that most people would recognise as being of significance in determining whether a particular incident of a sexual nature has occurred. If past conduct shows that a child is an object of a parent's sexual desire then that may well make more credible an allegation that a particular alleged sexual incident occurred between them. Secondly, the evidence may constitute an essential aid to the understanding of an account or description of words or conduct. It will often be the case that it would be difficult, or impossible, to understand, or appreciate the full significance of, a complainant's account of the events relating to a particular incident without knowing what had gone before. A bare description of the conduct the subject of a particular charge may be difficult to evaluate, and perhaps misleading, if it stood alone as an account of an apparently isolated incident. As pointed out earlier, the present case provides an example. 18 In Beserick (1993) 30 NSWLR 510, Hunt CJ at CL (with whom Finlay and Levine JJ agreed) said (at 515): The true bases for the admissibility of evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge were analysed in some detail most recently by this Court in R v Wickham (Court of Criminal Appeal, 17 December 1991, unreported). The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The "guilty passion" of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 602, 609, 610-611, 618). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R v Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B v The Queen (at 610): see also (at 602-603; 605).

(The last reference to B is curious. At each of the pages there specified, the court was dealing with evidence about motive, which is germane to the first of the two bases mentioned by Hunt CJ at CL rather than to the second.) 19 The first of the two bases specified in Beserick, upon which it was said that relationship evidence may be admissible, corresponds with what was said in that regard in Wickham but, as to the second of those bases, the concept is more expansive in Beserick. In Wickham, it was said that the evidence of what went before may be relevant as an aid to the understanding, in its full significance, of an account or description of words or conduct constituting the offence charged. In Beserick, the relevance of such other evidence was also supported as rendering plausible what would otherwise be implausible. 20 Whatever the provenance and rationale of the formulation of principle in Beserick, that formulation has become entrenched in the law of evidence in this state: see for example MM (2000) 112 A Crim R 519, per Powell JA (with whom Hulme and Dowd JJ agreed), at 537-8. 21 In Gipp (1998) 194 CLR 106, it was said, by Gaudron J at [12] and by McHugh and Hayne JJ at [73], that, in the circumstances of that case, the history of sexual conduct by the appellant towards the plaintiff was relevant and admissible as helping to explain the complainant's apparent lack of surprise about the appellant's conduct on the occasion relied on as constituting the offence charged, and as helping to explain the complainant's failure to mention the incident to her mother and the appellant's apparent confidence that the complainant would regard the incident as nothing unusual. 22 Obviously enough, the way in which relationship evidence may be relevant will vary from case to case. 23 A clear distinction has, accordingly, been drawn by the authorities between the use of relationship evidence as evidence of what has variously been described as tendency or propensity evidence and the use of such evidence for other purposes. As stated by McHugh and Hayne JJ in Gipp (at [77]), if the evidence is tendered to prove propensity, there is a need for careful direction in accordance with principles emphasised in numerous cases such as Pfennig (1995) 182 CLR 461. Where such evidence is admitted for other reasons, a different kind of direction is required. What is needed in relation to that direction appears from the following extract from the judgment of McHugh and Hayne JJ in Gipp: 77 Moreover, as BRS v The Queen (1997) 191 CLR 275 shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence (BRS at 305-306). In BRS (at 305) , McHugh J pointed out: "If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence." 78 In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges. No doubt, it would have been better if his Honour had gone further and expressly told the jury that, if they found that there was a previous or continuing history of incidents, they were not to use that finding to reason that the accused committed the offences charged. But his Honour's failure to take that further step does not mean that he necessarily misdirected the jury or that the verdict is unsafe or unsatisfactory or that there has been a miscarriage of justice. Having regard to the conduct of the case and the rest of his Honour's summing up, there is no reason to suppose that the jury might have used the general behaviour evidence as propensity evidence. Neither counsel nor the judge suggested that course. Furthermore, the whole thrust of the summing up was that the jury had to be satisfied beyond reasonable doubt that the complainant's evidence in respect of each incident was reliable. 24 As to burden of proof, the following are extracts from the judgment of McHugh and Hayne JJ in Gipp: 76 If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a "guilty passion" in support of the charges in the indictment R v Ball [1911] AC 47 at 71; O'Leary v The King (1946) 73 CLR 566 at 575, 577, 582; R v Hissey (1973) 6 SASR 280 at 288-289. In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt. … … … 79 No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen (1990) 170 CLR 573 at 579 where: "the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so." That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present. 25 A distinction is sharply drawn. Where, as here, general evidence of prior conduct is led otherwise than as evidence of tendency, the criminal standard of proof does not apply.

First argument against conviction 26 It was submitted that the jury should have been instructed not to make any finding of fact at all concerning the conduct which was the subject of the relationship evidence in this case. It was argued that evidence of that kind should be received for no more than the assertions made in the witness box and not as evidence of the truth of what is asserted. 27 There was said to be an analogy with the law concerning evidence of complaint as it was prior to the Evidence Act 1995. Such evidence was then received as evidence of the fact of making the complaint at the time when the complaint was made, but not as evidence of the truth of what was stated in the complaint.

28 The analogy is inapposite. Relationship evidence is not relevant for the fact that the assertions are made when the evidence is given. It is relevant for the facts asserted in the evidence.

29 Rule 4 applies, but the argument should be rejected for lack of merit.

Second argument against conviction 30 It was submitted that the trial judge should have directed the jury that the legal standard of proof concerning relationship evidence is proof beyond reasonable doubt.

31 The argument is outside the scope of the ground of appeal but, in the absence of objection, the court received it. 32 As indicated above, the direction was sought at the trial. So Rule 4 does not apply.

33 The relationship evidence in the present case was not relied on as tendency evidence and was not indispensable to the proof of guilt. Proof beyond reasonable doubt was not required. 34 This argument should accordingly be rejected.

Third argument against conviction 35 In relation to the evidence of the complainant's father concerning the appellant's admission of having molested the complainant, it was submitted that the trial judge failed to instruct the jury that they should not use the evidence as tendency evidence in sufficiently clear and affirmative terms. 36 This argument was outside the scope of the ground of appeal. Again, however, in the absence of objection, we entertained the argument. 37 No further direction along these lines was sought at the trial. Rule 4 applies. However, the argument can suitably be dealt with by leave on its merits. 38 At the hearing of the appeal, counsel for the applicant submitted a draft direction as a convenient way of conveying to the court what was asserted to be the deficiency in the trial judge's directions. The draft was as follows: The only use which you may make of this evidence is to support the evidence of the complainant regarding a history of sexual molestation, which as I explained is only put before you to place the complainant's allegations in a realistic context in that the alleged offences were not isolated incidents which occurred out of the blue. The evidence of this improper sexual relationship is relied upon by the Crown to explain what otherwise might be incomprehensible, that is, the complainant's apparent lack of surprise and reaction to the incidents charged, why she continued to remain in contact with the accused and why she failed to complain until she was 12 years old. I direct you that you may not use the evidence in any other way than the way I have indicated. You may not use the evidence as [The word "direct" was added here in the course of oral submissions.] evidence of the accused's guilt of the offences charged. In particular, you are not permitted to, and must not, reason that the evidence tends to show that the accused had improper sexual feelings for the complainant and, therefore, it is more likely that he committed the offences alleged against him. While you might be attracted to such reasoning, I direct you as a matter of law that you are not permitted to reason in this way. You may only use the evidence to explain what otherwise might be incomprehensible about the complainant's account.

39 The draft has three features which distinguish it from the directions given by the trial judge concerning the evidence of admissions by the appellant. First, it refers to "sexual molestation" and to "improper sexual relationship" whereas the trial judge's direction refers consistently to "sexual impropriety". The trial judge's phraseology was preferable. Secondly, the draft direction contains a fuller statement of the use which the jury was entitled to make of the relationship evidence. Secondly, it contains a more stringent direction not to use the evidence of admissions made in that regard as evidence of tendency.

40 It does not follow, however, from the second and third differences that the directions given by the trial judge were deficient. In my opinion they were not. The directions in paragraphs 32 and 34 of the summing up sufficiently conveyed to the jury the way in which the relationship evidence given by the complainant could be used otherwise than as tendency evidence. In that regard, the directions incorporated the approach stated as the second basis for admissibility of such evidence in Beserick. The trial judge cannot be criticised for not going further than that, particularly in view of the scant attention given to this topic in the addresses to the jury by counsel for the accused and the Crown Prosecutor and the absence of any request for further directions. 41 As to the direction not to use that evidence as evidence of tendency, paragraph 33 of the summing up provided the necessary instruction with clarity and precision in relation to the complainant's evidence. It complied fully with the requirements for such a direction laid down in Gipp. 42 When it then came to the evidence of admissions made by the appellant, the trial judge, in paragraph 38 of the summing up, correctly limited use of that evidence in the same way and repeated the instruction against using the evidence as evidence of tendency. Taking what appears in paragraph 38 with what appears in paragraph 33 in the same connection, the criticism of the summing up is unsustainable.

Result and proposed order 44 The arguments advanced in support of the appeal having failed, the appeal should be dismissed. 45 Bergin J: I agree with Sperling J. -oOo-

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