R v Jennings

Court of Criminal Appeal (NSW)|2010-08-03|Before: James J, Latham J, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Latham J at 3

DECISION: Ruling made by his Honour, Judge Toner QC on 30th July 2010 is vacated

CATCHWORDS: CRIMINAL LAW - Appeal pursuant to s5F(3A) Criminal Appeal Act 1912 - tendency and coincidence evidence - whether Judge erred in revoking earlier ruling allowing Crown to rely on evidence of three complainants as tendency and co-incidence evidence.

COUNSEL: D Woodburne SC - (Aplicant) G Farmer - Respondent

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - (Applicant) Elliot Lawyers - (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2009/000161262

McCLELLAN CJ at CL JAMES J LATHAM J

2 SEPTEMBER 2010 R v JAMES PATRICK JENNINGS Judgment 1 McCLELLAN CJ at CL : I agree with Latham J. 2 JAMES J : I agree with Latham J. 3 LATHAM J : On 2 August 2010, the Crown appealed, pursuant to s 5F(3A) of the Criminal Appeal Act 1912, against a ruling made by Toner SC DCJ (the Judge) on 30 July, revoking an earlier ruling which allowed the Crown to rely upon the evidence of three complainants (HP, DP and TL), whose evidence supported counts 1 - 5 on the indictment, as tendency and co-incidence evidence in respect of count 6 on the indictment, which was founded on the evidence of a fourth complainant (RL). This ruling also allowed the evidence of RL to be used in the same way in respect of counts 1 - 5. 4 The revocation came at the end of the evidence in the trial, which commenced on 22 July 2010. All that remained was the addresses and the summing up. In those circumstances, the Court heard the appeal on 3 August 2010 and determined that the appeal should be allowed and the ruling of 30 July vacated. These are the reasons for that decision.

Background 5 It is not necessary for these purposes to relate the Crown case in detail. The accused was a priest in a boys' Catholic boarding school in 1960 and 1961. He was the Dean of Discipline at the school and occupied a bedroom on an upper floor of the dormitory where the students slept. All six allegations consisted of the accused's entry into the dormitory at night, after lights out, when he would approach the bed of a complainant, place his hand under the bed covers and indecently assault the boy. In respect of counts 1 - 5, it was alleged that the accused fondled the penis of the relevant complainant. In respect of count 6, it was alleged that the accused rubbed the boy's thigh on the outside of his pyjamas. 6 The terms of the tendency and co-incidence notices (which were relevantly the same) are of particular significance to the issues on the appeal. According to the notices, the Crown sought to prove that the accused had "a sexual interest in 12 - 15 year old boys", and that he had a tendency "to engage in sexual activities with 12 - 15 year old boys [and] to use his position of authority to obtain access to 12- 15 year old boys so that he could engage in sexual activities with them." 7 The particulars in the notices that corresponded to the allegations, the subject of counts 1 - 6 in the indictment, included :- (a) walking around boarding school dormitories during the night and observing 12 - 15 year old boys sleeping in their beds, (b) sitting on the beds of 12 - 15 year old boys whilst the boys were sleeping in their beds in boarding school dormitories, (c) putting his hands under the blankets while 12 - 15 year old boys were sleeping in their beds in boarding school dormitories, (e) approaching an 11 - 12 year old boy in his bed in his dormitory in a boarding school and putting his hand under the bed linen and moving his hand up and down the boy's thigh, (f) putting his hands inside 12 - 15 year old boys' pyjama pants whilst they were sleeping in their beds in boarding school dormitories, (g) fondling 12 - 15 year old boys' genitals whilst they were sleeping in their beds in boarding school dormitories. 8 The Judge's initial ruling on 21 July with respect to the evidence of each of the four complainants was not accompanied by extensive reasons. In the course of a judgment handed down on that day, his Honour said :- Each case clearly satisfies the definition of substantial probative value and I should also note in passing that in each case the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. In saying that, I observe that the similarities are stark and the conduct alleged is largely contemporaneous. The accused's answer to these charges is now in essence a bare denial. 9 This ruling was made on the basis of the statements of each complainant together with the written submissions provided by the Crown at trial. During the course of argument on the Crown's application, counsel for the accused acknowledged that the terms of the complaints by all four complainants were sufficiently similar to qualify as tendency evidence. The application was, however, resisted on the basis that the delay in the prosecution of the accused gave rise to prejudice that could not be cured by directions. 10 At the close of the Crown case, counsel for the accused made a no-case submission with respect to counts 2 and 6 on the indictment. That application failed. It is of some relevance to note that the basis of the application with respect to count 2 was the complainant's concession in cross-examination that he could be mistaken in his identification of the assailant as the accused, but that he still felt sure that it was the accused. The basis of the application with respect to count 6 was that there was no touching of the genitalia and that the circumstances suggested that it may have been no more than an act of comfort. 11 The critical feature of the alleged indecent assault constituting count 6 was that, according to the evidence of the complainant, he was awake when the accused came to his bedside and he engaged in conversation with the accused. There was little room for a submission as to mistaken identity, although it was put to the complainant that it was not the accused who touched him. 12 In these circumstances, the Crown, not surprisingly, drew considerable support from the availability of the evidence of all four complainants as tendency and co-incidence evidence in successfully resisting the application to withdraw counts 2 and 6 from the jury's consideration. In so far as DP's identification of the accused for the purposes of count 2 was compromised, the jury could take into account RL's evidence in determining whether they were satisfied beyond reasonable doubt of the accused's guilt on count 2. Similarly, in determining whether they were satisfied beyond reasonable doubt that the accused's touching of RL was indecent, the jury could take into account the evidence of HP, DP and TL. 13 At the close of the defence case, counsel for the accused submitted that the evidence of RL "had fallen somewhat differently" than was anticipated at the beginning of the trial for the purposes of the ruling of 21 July. In short, counsel submitted that RL's evidence no longer satisfied the test of underlying unity because the conduct alleged in count 6 was a different type of conduct to that alleged in counts 1 to 5, and that the alleged assault occurred shortly after lights out and not "in the middle of the night". For these reasons, counsel contended that RL's evidence could no longer be used as tendency evidence in the jury's consideration of counts 1 to 5, nor could the jury use the evidence of the complainants constituting counts 1 to 5 as tendency evidence in their consideration of count 6. 14 More generally, counsel submitted to his Honour that a tendency direction ought not be given to the jury in circumstances where the Crown did not put to the accused in cross-examination that he in fact had a sexual interest in boys and that he had used his position of authority to facilitate his engagement in sexual acts with those boys. In other words, counsel maintained that there was unchallenged evidence before the jury that the accused did not have a sexual interest in boys, that being the accused's response to a question put in examination in chief. 15 This was the submission, ultimately accepted by the Judge, that resulted in the revocation of the ruling of 21 July. The reasons provided by the Judge were as follows :- To my mind it would be dangerous [to allow use of the evidence as tendency and coincidence evidence] in that the circumstances in which it occurred were significantly different to that …. which apply to the cases of DP and HP and …… that related to TL.

It was prejudicial to the accused …. given the similarity of the tendency incidents that give rise to the charges that relate to DP, HP and TL and that of the circumstances that the Crown alleges give rise to the charge against RL, particularly in the context of the whole of the evidence in this case, and that's where … section 101 … in my view the probative value of it, namely the evidence of DP, HP and TL, either tendency or coincidence evidence in the Crown's case against the accused based upon the complainant RL, only count six, does not substantially outweigh the prejudicial effect upon the accused. 16 The difficulty with this ruling is that nothing had changed in the course of the trial, despite counsel's submission to the contrary. The tendency and coincidence ruling on 21 July was made on the basis that RL would give evidence that the accused approached his bed after lights out, while RL was still awake, and that a conversation followed, during which the accused placed his hand on RL's upper thigh on the outside of his pyjamas. RL's evidence was to this effect. It was no part of the tendency notice or of the grounds for the ruling that the event happened "in the middle of the night". RL's evidence conformed to the particulars of the notices set out at [7] (e) above.

Consideration of the Appeal 17 Two preliminary jurisdictional issues arose, namely, whether the ruling of 30 July was a ruling "on the admissibility of evidence" (s 5F(3A)) and whether the effect of the ruling on 30 July substantially weakened the prosecution case. The respondent's argument on the appeal was that the evidence of the four complainants had been admitted, so that the ruling with respect to the permitted use of that evidence did not come within the terms of the provision. The respondent further argued that the directions to the jury consequent upon the ruling, that is, that the evidence of HP, DP and TL could not be used towards proof of count 6 and that the evidence of RL could not be used towards proof of counts 1 - 5, would not substantially weaken the Crown case. 18 In R v Harker [2004] NSWCCA 427, Howie J said (Santow JA and Bell J agreeing) :- 32 In any event it seems that the legislature had in mind that the Crown could appeal against a determination in respect of the admissibility of evidence that was not a ruling on admissibility. It is unnecessary for present purposes to determine the scope of the matters that might fall within the scope of s 5F(3A) but it seems clear to me that the legislature wished to avoid the section being restricted to rulings on the admissibility of evidence strictly defined. In my view a determination under s 100(1) not to dispense with the notice provisions in relation to tendency evidence is at least a "decision…on the admissibility of evidence" and thus within the scope of s 5F(3A). 19 Counsel on the appeal were unable to point to any decision of this Court where a ruling on the availability of evidence as tendency and coincidence evidence has been the subject of an appeal under s 5F(3A). However, Howie J's judgment in Harker is persuasive on this issue. The Judge's ruling on 30 July that the prejudicial effect of the evidence of RL outweighed the probative value of that evidence on counts 1 - 5, and that the prejudicial effect of the evidence of the complainants HP, DP and TL, outweighed the probative value of that evidence on count 6, was a ruling "in respect of the admissibility of evidence". 20 In the light of the submissions made by counsel for the accused at trial, and confirmed to this Court on the appeal, I am also of the view that the effect of the ruling would substantially weaken the prosecution case, for the reasons set out at [10] to [12] above. The unavailability of the evidence of HP, DP and TL on the question of the sexual character of the accused's conduct towards RL substantially weakened the Crown case on count 6. Similarly, the unavailability of the evidence of RL on the question of the identity of the perpetrator against HP, DP and TL substantially weakened the Crown case on counts 1 - 5. 21 Turning to the appeal itself, it would appear that the Judge has misconstrued the meaning of "prejudicial effect" in s 101. Counsel for the respondent on the appeal conceded as much when he acknowledged that the prejudice he relied upon did not go beyond what the Crown sought to prove in its case. The argument simply was that the jury would be permitted to have regard to the evidence of HP, DP and TL when considering whether the accused's act in rubbing RL's thigh had a sexual connotation, and that the jury would be permitted to have regard to the evidence of RL when considering whether HP, DP and TL were reliable in their identification of the accused. Neither of those uses of the evidence is in any way unconnected with the issues in the trial. Rather, they go to the very heart of the matters in dispute. 22 I note in passing that there was no obligation upon the Crown, in the terms identified by counsel for the accused, to put to the accused in cross examination that he had the relevant tendency. The accused was under no misapprehension about the nature of the Crown case, or about the particular tendency that was alleged by the Crown. There was no rule of procedure or fairness that required the Crown to give the accused an opportunity to meet a submission that the Crown would ultimately make. It was also incorrect, in my view, to submit that there was unchallenged evidence that the accused did not have the relevant tendency. An uncontradicted assertion by the accused that he did not have a sexual interest in adolescent boys would not prevent a jury from legitimately reaching the opposite conclusion, after a properly crafted tendency and coincidence direction had been given to them. **********

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